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AGREEMENTS FOR THE ABANDONMENT OF THE ALLEYWAYS: Consider approval of the Agreement for the Abandonment of the north south and east/west alleyways related to the Atlantic Plaza II project. The abandonment agreement provides for an easement for public access and utilities to the City over the existing alleyways for a period of time until the existing utilities located in the alleyways are relocated and access through the alleyways are no longer necessary 3. RESOLUTION NO. 08-09/ATLANTIC PLAZA IURIGHT OF ABANDONMENT:Consider approval of a Right of Way Abandonment of a 0.55 acre rectangular shaped portion of N.E. 7th Avenue and two alleyways totaling 0.27 acres within Block 116 (Town of Linton Plat) in conjunction with the Atlantic Plaza II development, located between Atlantic Avenue and N.E. 1St Street, east of N.E. 6th Avenue (Northbound Federal Highway) and consideration of a waiver to the minimum street-jog offset distance as specified in LDR Section 6.1.2(C)(2)(d). E. BID PROTEST/WESTWAY TOWING INC.: Consider a bid protest filed by WestWay Towing Inc. regarding wrecker/towing services for the Police Department, Request for Proposal (RFP) No. 2009-06. F. STATE LEGISLATIVE PRIORITIES FOR 2009:Consider the proposed 2009 State Legislative Priorities for the City. G. HOFFERT v. CITY OF DELRAY BEACH/OFFER OF PAYMENT OF COURT COSTS: Consider approval of a payment by the City in the amount of $15,000.00 in Hoffert v. City of Delray Beach for court costs and final resolution of the case upon the conditions of dismissal of the appeal and the receipt of appropriate releases. H. PROPOSAL FOR SETTLEMENT IN HEATHER LEITCH v. CITY OF DELRAY BEACH: Consider a Proposal for Settlement in the amount of $35,000.00 in Heather Leitch v. City of Delray Beach. Staff recommends denial of the proposal for settlement. NOTICE OF CLAIM FILED/DORIS NYDELL v. CITY OF DELRAY BEACH: Consider a Notice of Claim in the amount of $50,000.00 filed by Doris Nydell v. City of Delray Beach and Florida East Coast Railway (FEC~ and authorize the City to work with Florida East Coast Railway (FEC~ to install sidewalks on N.E. 2"a Avenue and Atlantic Avenue. Staff recommends denial of claim. J. REQUEST FOR SIDEWALK DEFERRAL/200 MARINE WAY: Consider approval of a request to defer the installation of a sidewalk in front of 200 Marine Wav. K. APPOINTMENT TO THE CODE ENFORCEMENT BOARD: Appoint one ~) alternate member to the Code Enforcement Board to serve an unexpired term ending .Tanuary 14, 2010. Based upon the rotation system, the appointment will be made by Commissioner Bernard (Seat #4). L. APPOINTMENT TO THE AFFORDABLE HOUSING ADVISORY COMMITTEE: Appoint one (1) regular member to the Affordable Housing Advisory Committee to serve a partial term ending July 31, 2009. Based upon the rotation system, the appointment will be made by Commissioner Eliopoulos (Seat #1). M. APPOINTMENT TO THE DELRAY BEACH HOUSING AUTHORITY: Appoint one (1) regular member to the Delray Beach Housing Authority to serve an unexpired term ending .Tuly 14, 2010. Based upon the rotation system, the appointment recommendation will be made by Commissioner Bernard (Seat #4). 10. PUBLIC HEARINGS: A. ORDINANCE N0.06-09 (FIRST READING/FIRST PUBLIC HEARING): Consider an ordinance providing for the reclassification of twenty (20) properties in the Marina Historic District. If passed, a second public hearing will be held on March 3, 2009. B. ORDINANCE NO. 07-09 (FIRST READING/FIRST PUBLIC HEARING): A city initiated amendment to the Land Development Regulations (LDR) Section 4.4.9 (G~ "Supplemental District Regulations", and Section 4.4.13 (G) ~), "Central Core and Beach Area Supplemental Regulations", to change the parking requirements for business and professional offices within certain portions of these zoning districts. If passed, a second public hearing will be held on March 3, 2009. C. ORDINANCE NO. 08-09: City initiated amendment to the Land Development Regulations (LDR) Section 2.4.3(K~(1)(bb~, "Single Family Overlay District Site Plan Review", to increase the application processing fee for Single Family Overlay District Site Plan Review Applications and associated renaming to North Beach/Seagate and Ocean Neighborhood Overlay District Review. D. ORDINANCE 09-09: An ordinance amending Section 96.03, "Establishment of Limits In Which Bulk Storage Of Liquefied Petroleum Gases To Be Restricted", Section 96.05, "Fire Hydrants", Section 96.16, "Certain Codes Adopted By Reference", and Section 96.46, "Above Ground Installation", to update the City's Code of Ordinances in order to reflect recent changes in the Fire Prevention Code Standards. 11. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS FROM THE PUBLIC- IMMEDIATELY FOLLOWING PUBLIC HEARINGS: A. City Manager's response to prior public comments and inquires. B. From the Public. 12. FIRST READINGS: A. NONE 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS: A. City Manager B. City Attorney C. City Commission ANNUAL CITIZEN S ROUNDTABLE JANUARY 27, 2009 The Annual Citizens Roundtable Meeting of the City Commission of the City of Delray Seach, Florida, was called to order by Mayor Rita Ellis in the Crest Theatre at Old School Square at 7:00 p.m., on Wednesday, January 27, 2009. Roll call showed Present - Commissioner G ary E liopoulos Commissioner Fred B. Fetzer Commissioner Woodie McDuffie Commissioner Mackenson Bernard Mayor Rita E llis Also present were - David T. Harden, City Manager Susan Ruby, City Attorney Chevelle D. Nubin, City Clerk Mayor Ellis called the meeting to order and welcomed the public. She gave a brief overview regarding the meeting speakers and format. In addition, she shared some thoughts regarding the importance of the public's participation. ROUNDTABLE AGENDA 1. Land Use Issues and Trends -Comprehensive Plan Report - Paul Zacks, Planning and Zoning Board QZairperson Paul Zacks, Qzairman of the Planning and Zoning Boarcl, highlighted the City`s successes over the past year and the Board's annual report; and stated the Planning and Zoning Board's main focus is to guide the physical development of the city in a manner that will preserve its unique quality of life for present and future residents. The Comprehensive Plan serves as the City`s long range planning document which contains policy guidelines for the control of growth and quality of life in the city. He stated the plan was created through the collected input of the citizens and contains the communities' priorities. The board reviews proposals for new developments to insure that they are consistent with the City`s goals and objectives; and also reviews updates to the Comprehensive Plan to make sure that it is keeping pace with the changes in the City. Two and a half years ago, the city began the process for a major rewrite of the Comprehensive Plan with preparation of an Evaluation and Appraisal Report (EAR). This report required by Florida Statute afforded an opporhmity to suggest changes or amendments that were needed including reformulated goals, objectives and policies. A series of five (5) community workshops were held to obtain citizen input on the plan The completed EAR was adopted by the City Commission on October 17, 2006. A complete rewrite of the Comprehensive Plan based on the EAR was completed in 2008 and was adopted in December with a second amendment processed in 2008 to incorporate the City`s 20 year Water Supply Plan into the comprehensive plan. 1VIr. Zacks stated this has been a dynamic and exciting year for the City and significant progress has been made towards achieving the goals and objectives outlined in Comprehensive Plan He gave an overview of the projects that were accomplished; and those projects planned for 2009. 2. Community Redevelopment Agency Status Report -Frank Wheat, CRA QZairperson Frank Wheat, Q-iairman of the Community Redevelopment Agency (CRA) Soarcl, t11an1<ed the public for being in attendance. In addition, he recognized the members of the CRA Board and the CRA staff. 1VIr. Wheat stated 2008 was a challenging yet productive year for the CRA. With a budget of approximately $13 mullion, the CRA continued to carry out their projects and programs outlined in the Community Redevelopment Plary the Downtown Master Plan and other area wide redevelopment plans. Economic development and transportation projects were major priorities as were redevelopment efforts along the Northwest/Southwest 5~ Avenue comdor. The CRA also made significant investments in residential neighborhoods within their district; continued to find affordable and ~rkplace housing initiatives throughout the district and supported the Community Land Trust (CLT). He reviewed the major accomplishments of the Community Redevelopment Agency for 2008 and discussed the goals (projects) for 2009. 3. State of the Cit~eport - David T. Harden, City Manager David T. Harden, City Manager, stated Delray Beach is much more than a city. It is a community of people marking together to create the best possible living environment for themselves and their fellow citizens. He stated the vision as developed by citizens and Commissions which continues to focus the City`s efforts remains that Delray Beach will become a charming village by the sea, with a great world class beach, a vibrant downtown, a community of quality neighborhoods and schools, recreational and cultural opporhmities abound, people embrace cultural diversity, and the city govemmealt provides exceptional city services. The Commission set goals for 2013 and targets for 2008-2009 as we move toward this vision. Priorities change annuallybut our goals have remained the same for a number of years. He listed the 2013 goals in priority order. He informed the public that the national economic slowdown and credit cr~mch are huge obstacles for efforts to expand and diversify our local economy; and discussed projects affected by this in addition to plans regarding economic recovery. He continued to present the efforts, projects and accomplishments specific to each goal in detail. In addition, he gave information regarding communication efforts i.e. the City`s website, emergency radio 1620 am, media coverage, News for Neighborhoods, utility bills, live streaming/archiving of City Commission rr~eetings, hometown connection, and QAlert. He encouraged everyone to read the Annual Report. He stated the past t~ years have been difficult, however, 2010 will the most challenging year yet as we face a daunting drop in revenue; and we need the citizens input to decide where to focus our energy and lirrdted resources for FY 2010. JANUARY 27, 2009 Annual Citizen's Roundtable & Infrastructure Public Hearin The Annual Citizen's Roundtable & Infrastructure Public Hearing was held in the Old School Square Gymnasium. The participants mere presented with four questions regarding major issues in the city, suggestions to help improve issues in the city, infrastructure and ways to deliver city programs and services. The responses are attached hereto and made an official part of the record Mayor Ellis adjourned the Roundtable at 10:00 p.m. City Clerk ATTEST: MAYOR The undersigned is the City Clerk of the City of Delray Seach, Florida, and the information provided herein is the Minutes of the Annual Citizen s Roundtable Meeting of the City Commission held on Tuesday, January 27, 2009, which Minutes were formally approved and adopted by the City Commission on City Clerk NOTE TO READER: If the Minutes you have received are not completed as indicated above, this means they are not the official Minutes of the City Commission. They will become the official Minutes only after review and approval, which may involve amendmealts, additions or deletions to the Minutes as set forth above. JANUARY 27, 2009 1. Identify up to three major issues facing the City and provide suggestions of ways to help address at least one of the issue(s) identified (15 minutes) Table 1 (Question 1) Table 2 (Question 1) • Rehab houses (numerous) -business licenses, • Right Business mix for downtown tax (sales) enforcement • Crime -more police, homes for police in • Lack of revenue neighborhood, better lighting, citizen • Diversity of services for younger folks training/education • Crime • Attracting large scale employers and • Economic development: green tourism; maintaining them; focus on green clean identifying and selecting right business businesses, tax credits and/or grants (including green business); provide services for • Allocate more resources in neighborhoods all ages (for tourists) • Parking at beach • Constricting budget • Kee in charmin /small scale cit Table 3 Question 1) Table 4 Question 1) • Economy in the City • Over Building with commercial and residential • Climate change destroying the charm and small town feeling - • Perception of Over Development "Village By The Sea" is gone. Limit • Rehab center of United States variances; require compliance to the rules; • Southwest quadrant needing more care control height and density -may need to be • Wasteful spending changed; focus on marketing what we have • Reduce landscaping requirements-fertilizer now • Increase energy efficiency • Early Dropout rates -unproductive children - crime • Reduce water usage • Budget constraints: reduced revenues, setting • Xeriscape priorities • Fuel efficient vehicles • Re-soddin Old School S uare Table 5 (Question 1) Table 6 (Question 1) • Reduced Tax Base • Economic Situation -local, state and federal, • Budget Process -Revenues/Expenditures mixed • Diversity -Economic Development/Revenue • Overdevelopment -mixed opinions, suggest Predictability moratorium on Atlantic Plaza • Sustainability: affordable housing -smaller lot • Environmental Situation -green task force sizes; environmental impact -green task force report, recommendations and follow-up; business retention -focus on successful businesses or ones that will survive; city services -non-essential versus essential services (health, safety and welfare); prioritize, differentiate on lobal rather than de artmental Table 7 (Queation 1) • Budget Task Force -outside assistance/accountability; examine priorities; minimize consultants; communication; analyze effectiveness; compare to other cities - go to residents (benchmark); too compartmentalized; think like abusiness -offer incentive packages for early retirement • Economic Development -extend from Swinton Avenue to I-95; attract green technology; more variety of companies; variety of housing prices; change ownership to rental Table 9 (Queation 1) • Need to facilitate redevelopment • Supporting and initiating Green Task Force • Funding for continued and increased services • Police presence in neighborhoods • Completion of West Atlantic Avenue to I-95 • Underdeveloped properties along Atlantic and Military Trail • Stop waivers on height limits - U. S. 1, Congress, Military and Linton • Maintain local police not county • Need to improve public transportation • Streamline all city possesses to run a more efficient and therefore, less costly city: funding/partnership; finish Atlantic redevelopment; finish green task Table 8 (Queation 11- No participants at this table Table 10 (Queation 1) • Economic Challenges -crime; conversion of commercial to residential -preserving commercial • Sober houses • Job creation (target businesses) • Green initiatives • Seamless downtown I-95 to beach • Job creation -incentive package; bring in business; work with state and federal governments 2. Planning and Zoning infrastructure questions (15 minutes total -respond to both parts) a). Are there any infrastructure deficiencies in your neighborhood or at your business location within the City that you would like to have addressed? These would include, but not be limited to, sidewalks, drainage issues, sewer or water main related items, street lighting, street repairs, street resurfacing, public street signage etc. b). Are there any infrastructure deficiencies or needs you are aware of elsewhere in the City? Table 1 Question 2) Table 2 Question 2) • Street Lights - 100 NE 18~ Street • Lack of sidewalks on NW 22nd Avenue • Master Plan needed for AlA - beachside - • Streetlights/sidewalks -Country Club Acres sidewalk promenade, benches, trash cans • White Drive and A-1-A at Atlantic Dunes Park • N.E. 17~ Street -need sidewalks need flashing pedestrian lights • Parking east of bridge • More Light in the City Hall area • Construction should be planned for off season • More info on shuttle schedules • Need better signage for all one way roads • Betters nc on traffic li hts • Need to resurface roads in Plumosa Park • Overall infrastructure is good • Gateway -what happened to it? • Federal Highway north of George Bush needs beautification • Underground utilities -need to use fiber optics ahead existin Table 3 Question 2) Table 4 Question 2) • Neighborhood Parking on lawns • Tropic Isle, Tropic Bay -Water pressure • Lacking permeable surfaces to park on - • Venetian -Heavy Trucks, noise condition - drainage, sewage impact to residential street • Sidewalk on west side of Swinton • Lindell Blvd. -damaging speed humps • Increase lighting -energy efficient: parking • Parking on swales areas that have been garage, Wal-Mart (Linton and Military Trail), improved -destroying the improvements (no streets parking signs -church • Bike Lanes • Downtown WiFi • Too many signs on A-1-A • Florida Boulevard -need sidewalks • Securit in arkin ara e -cameras • B) None Table 5 (Queation 2 • Marina Historic District - (special assessment) sidewalks broken, need to redesign; extensive drainage issue on 7~ Avenue; street lights - underground utilities, decorative; street signs - decorative • North Palm Trail -Boarded buildings, no sidewalks, traffic calming, drainage • Marine Way -Flood during high tide • NE 2nd Avenue to 22nd street -resurfacing • SW 15~ Avenue (900 Block) -expansion limited by telephone poles -owners not encouraged by city to expand • B) Citywide -analyze sidewalk network • Traffic calming • Less asphalt • Expand re-claimed water distribution • Unfinished development • Street work-schedule off season • Alley paving • L.E.D. street lighting -cost analysis Table 7 (Question 2) • Water on George Bush/Federal Highway • Code Enforcement (more needed) • Street Lighting (West Atlantic Avenue) - 8~ - 12~ Avenues -alleyways need improvement • Sewage backups - N.E. 8~ Avenue Martel Arms Development • Traffic calming (speed humps) needed only - no roundabouts • Sidewalks needed for S.E. 2nd Avenue • Sewage bills higher than water bills • Turning signal 8d~ and Atlantic Avenue • Drainage concerns (Rainberry Woods) • Roundabout needs plants (Rainberry Woods) • Signage (No access to I-95) on N.W. 12~ Avenue and Atlantic • Incomblete Proiects (sidewalks for S.W. areal Table 6 (Queation 2 • Seaspray -one more street light • East Street and Atlantic Avenue -drainage issue after rain - 4 to 6 inches • Additional bike lanes on major north south and east/west • Decorative lighting on trees falling down east of Atlantic Avenue • Better sidewalks south and north of Atlantic west of Swinton and S.E. 2nd Avenue • Better communication for trash pickup days • Dress up the downtown shuttle i.e. trolley, etc. • Require recycling in all neighborhoods -all private communities • Community retro-fitting for energy -lighting, energy, mechanical -economic stimulus. Could we subsidize? • Traffic light coordination for flow. • Notification -construction streets Table 8 (Ouestion 2) - No participants at this table Table 9 Question 2) Table 10 Question 2) • Bus Shelters • Localized flooding- Gleason • Permeable parking surfaces • Traffic Calming/Beautification (Old • Increased signage -navigating Downtown, Germantown Road) able to be viewed • Drainage on N.W. 1 l~ Street/Lake Drive • Sidewalks in Tropic Isles • Kiosk for public signs in a pedestrian zone • Downtown Lighting -replace with efficient • Lake Drive Bridge Traffic calming lighting • B) Underground utilities • Better Landscaping i.e. flowers in medians • Signage • Safety cameras Downtown and dense areas and • Consistent landscaping requirements - U.S. 1 telephones similar to universities south of Linton • Rainberry Woods Traffic circle maintenance • No duplication (Delray Shores) complete properly -plan properly for infrastructure improvements • "Clean Up Your Backside" -resurrect program • CPTED for alle s 3 a). What suggestions do you have for improving City programs and services? 3 b). What programs, services, or topics would you like the City to communicate more about? (8 minutes total -respond to both parts) Table 1 Question 3) Table 2 Question 3) • A) Police Enforcement on private property - • Better communication on recreation programs more police in neighborhoods; especially • Email notification program Plumosa Park. • Sustainable development • Trash Pickup at Beach on weekends -also at • Better access to programs like residents parks. academ • B) CERT, Citizens and Police academies need more PR • Citizens on Patrol • Parking enforcement volunteer program • Citizen com laint s stem - QAlert Table 3 (Question 3) Table 4 (Question 3) • A) Improve lot line building requirements • A) Veterans park -building should be open on • Need shuttle service schedule and keeping it on weekends schedule Going into City Hall is absolutely wonderful • More animal control persons • Boating is limited -expand services, utilize • Shutting garages too early intercoastal areas • B) Information on developments and new • B) Old School Square programs and shows construction told to neighbors sooner and • Golf course events and programs larger than 500 feet • Email notice on global activities • Improve market of mydelraybeach.com agenda and meeting notices • Incentive for water minimum usage for residential Table 5 Question 3) Table 6 Question 3) • A) Minor permits -credit card • A) Good job • Online water payment • Communicate rate changes • Hometown -email, download capability • Add vocational training programs: High (saves paper) school: construction, auto and environmental • Plan submittal and product approval - pdf • Noise pollution -Atlantic Avenue - format motorcycles, A-1-A/Atlantic, Lawn Mowers - can the city buy electric mowers? • Planning and Zoning required 12 copies - • Worthing Place/park -needs grass reduced to one • B) Communicate -road construction • Trolley versus roundabout • Trash pickup • One day trash pickup -alternate days i.e. 1 day • Newsletter -good per week, 2 days per week, etc. • Website - ood Table 7 (Question 3) • Communicate TED center/library • Services to the community • Senior citizen services • No transportation to "505" teen center or from tri-rail to Lake Ida Road west of Congress Avenue • Need young adult, 18-25 year olds, training programs • Youth and young adults involvement on boards and committees (residents academy as well) • Recruit educationaUvocational satellite campuses • Additional law enforcement communication - police stop and talk • Mentoring programs/internships -transition to paving iob Table 9 (Question 3) • A) QAlert good • Red light cameras • HTE tracking • Concern on lack ofproject/idea implementation • Track topics "searched" on our website to get idea on hot issues • B) Planning and Zoning -televise • Commission Workshops -televise • WiFi Table 8 (Question 31- No barticibants at this table Table 10 (Question 3) • A) Better website • More attractive shuttle • Implement commercial recycling • B) The arts • Communicate plans for recycling • Post or publish roundtable questions in advance 4 a). What suggestions do you have for providing City services for less cost? 4 b). What City services do you feel could be cut back or eliminated? (8 minutes total -respond to both parts) Table 1 Question 4) Table 2 Question 4) • A) Subcontract landscaping and maintenance • For less cost: Better utilization of tennis center • Have more online self-service automation for programs. • Shorter workweeks -job sharing -job • Better control of take home cars/car allowances elimination where needed -job retaining • Better control over utilization of marine patrol • B) All buildings have motion activated • Eliminate any duplicate services (dog catcher) lighting • Follow green task force recommendations - hybrid cars • Ask employees on how to decrease expenses • Partner with neighboring city to reduce redundancy and make dollars • Have more tennis center events to raise mone Table 3 Question 4) Table 4 Question 4) • A) Implement Green Advisory Task Force • A) Buy fuel efficient vehicles recommendations • B) Keep the essentials (basic services) -cut • More fuel efficient city vehicles the one time expenditures i.e. building a park • Water incentive for minimum usage • B) City services: run it like a business • Check on homestead fraud -check the water bill Table 5 Question 4) Table 6 Question 4) • A) City Service for less dollars: trash pickup • A) Less cost ideas: ground cover instead of leave litter behind re-sodding • Meter readers -electronic read (digital) • Plant out retention ponds instead of cutting • Look a gas rates for waste management grass • Have volunteers utilize golf carts • Use LED lights only • Substitute barriers for flashing police cars • Building retrofit • No fire trucks @ Publix (Federal Highway and • Energy efficient vehicles -electric hybrids, 5~ Street) etc. • No cop cars idling while P.D. drivers are • Solar panels -City buildings absent • Plug in golf carts/type vehicles downtown for work crews • Fines for noise polluters -motorcycles and loud boats. • B) cutback - no new city hires • Shut off vehicles when not using • Less development equals less Planning and Zonin staff I Table 7 (Question 41 I Table 8 (Question 41- No barticibants at this table I • Cutbacks: • Consultants • Studies • Energy-implement Green Task Force Report • No gateway entrance from I-95 • No more parking lots/garages • Halt Federal Highway traffic study/project Table 9 (Queation 4) • A) Implement Green Task Force (sustainability report) • Implement budget task force • Reduce dollars on tennis center - are we getting enough monies in return? • Bl Keeb all services Table 10 (Queation 4) • A) More information/call center • Energy audit water/fuel and remove waste • B) Roundabout ridership goals -more efficiently • Ambulance transbort - reduce bersonnel FEBRUARY 3, 2009 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Rita Ellis in the Commission Chambers at City Hall at 6:00 p.m., Tuesday, February 3, 2009. 1. Roll call showed: Present - Commissioner Gary P. Eliopoulos Commissioner Fred B. Fetzer Commissioner Woodie B. McDuffie Mayor Rita Ellis Absent - Commissioner Mackenson Bernard Also present were - David T. Harden, City Manager Terrill Pyburn, Assistant City Attorney Susan A. Ruby, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Dr. Gary Guerrier, Pastor with First Baptist Church. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. AGENDA APPROVAL. Mr. McDuffie requested that Item 8.H., Resolution No. 11-09 be removed from the Consent Agenda and moved to the Regular Agenda as Item 9.A.A. Mr. Fetzer requested that Item 8.A., Service Authorization No. ll/Kimley-Horn Associates be removed from the Consent Agenda and moved to the Regular Agenda as Item 9.A.A.A. Mr. Eliopoulos requested that Item 8.E., Temporary Parking Use Termination/Pineapple Grove, LTD. be removed from the Consent Agenda and moved to the Regular Agenda as Item 9.A.A.A.A. He also requested Item 8.G., Parking Facility Warrantv/First Amendment to the Guaranty Agreement/Robert Federspiel Parking Garage be moved from the Consent Agenda to the Regular Agenda as Item 9.A.A.A.A.A. Item 8.L., Managed Care Arrangement (MCA) Provider Change For Workers' Compensation was added to the Consent Agenda by addendum. 02/03/09 Mr. McDuffie moved to approve the Agenda as amended, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes. Said motion passed with a 4 to 0 vote. 5. APPROVAL OF MINUTES: Mr. Fetzer moved to approve the Minutes of the Special/Workshop Meeting of January 13, 2009, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. McDuffie -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes. Said motion passed with a 4 to 0 vote. Mr. Eliopoulos moved to approve the Minutes of the Regular Meeting of January 20, 2009, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie - Yes. Said motion passed with a 4 to 0 vote. Mr. McDuffie moved to approve the Minutes of the Special Meeting of January 27, 2009, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mayor Ellis - Yes. Said motion passed with a 4 to 0 vote. 6. PROCLAMATIONS: 6.A. Recognizing Black History Month - February 2009 Mayor Ellis read and presented a proclamation hereby proclaiming the month of February 2009 as Black History Month. Lula Butler, Director of Community Improvement, came forward to accept the proclamation. 7. PRESENTATIONS: 7.A. None 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A. 8.B. CONSULTING CONTRACT/BARRY STROCK CONSULTING ASSOCIATES BSCA), INC.: Approve a consulting contract with Barry Strock Consulting Associates (BSCA), Inc. in the amount of $24,952.00 for assistance with the Request for Proposals (RFP) process for procurement of public safety software systems. Funding is available from 334-2111-521-66.10 (General Construction FundBooks/Publications/Software). -2- 02/03/09 8.C. CONTRACT CLOSEOUT (C.O. NO. 1/FINAL) WEST CONSTRUCTION, INC./FIRE-RESCUE STATION NO. 4/CORRECTION TO FINAL PAYMENT AMOUNT: Revise the previously approved Contract Closeout (C.O. No. 1/Final) to West Construction, Inc. for completion of Fire Station No. 4. to correct the final payment amount to $167,437.98. Funding is available from 334-6ll2- 522-62.88 (General Construction FundBuildings/Fire Station No. 4). 8.D. AGREEMENT/ENVIRODESIGN ASSOCIATES/OLD SCHOOL SQUARE PARK: Approve an Agreement between the City and EnviroDesign Associates in the amount of $8,650.00 for performance of a Limited Phase H Environmental Assessment for the Old School Square Park site. Funding is available from 334-4151-572-63.59 (General Construction Fund/Improvements Other/Old School Square- Park Improvements). 8.E. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A.A.A. 8.F. INTERLOCAL AGREEMENT/COMMUNITY REDEVELOPMENT AGENCY (CRA)/TENNIS TOURNAMENT SPONSORSHIP: Approve an Interlocal Agreement between the City and Community Redevelopment Agency (CRA) under which the CRA will contribute $500,000.00 for the sponsorship of City Tennis Tournaments. 8.G. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A.A.A.A. 8.H. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A. 8.I. ACCEPTANCE OF EMERGENCY MEDICAL SERVICES (EMS) GRANT: Accept Emergency Medical Services (EMS) grant funding in the amount of $43,880.00; and authorize the purchase of four (4) Glide Scope Ranger fiber optic laryngoscopes in the amount of $43,880.00 from Verathon, Inc. for the Fire-Rescue Department. Funding is available from 001-2315-526-64.90 (General Fund/Machinery/Equipment/Other machinery Equipment). 8.J. SPECIAL EVENT REQUEST/11th ANNUAL CINCO DE MAYO FIESTA: Approve a special event request to allow the llt Annual Cinco De Mayo Fiesta to be held Saturday, May 2, 2009, from 11:00 a.m. - 12:00 midnight., at Old School Square, to grant a temporary use permit per LDR Section 2.4.6(F) for use of the Old School Square surface lot; to authorize staff support for traffic control and security, trash removal, EMS assistance, signage preparation and installation, and to approve request to use the Old School Square parking garage, City Hall lots and City generator; contingent on the receipt of a hold harmless agreement and receipt of certificate of liability insurance and liquor liability insurance. -3- 02/03/09 8.K REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period January 20, 2009 through January 30, 2009. 8.L. AWARD OF BIDS AND CONTRACTS: 1. Bid award to Accurate Event Services in the amount of $31,309.20 for private security services for the International Tennis Tournament from February 16, 2009 through March 2, 2009. Funding is available from 001-4210-575-55.40 (General Fund/Recreational Supplies/Tennis Tournament). 2. Purchase award to Custom Pump & Controls, Inc. in the amount of $57,557.00 for the purchase of two (2) 75 horsepower (HP) pumps for the Area 11A Reclaimed Water System Booster Pump Station Conversion Project. Funding is available from 441-5181-536-65.96 (Water & Sewer Fund/Other Improvements/Reclaimed Water Transmission). 3. Purchase award to multiple vendors in the total cost of $470,590.00 for the purchase of twenty-two (22) replacement vehicles based on age and life to date maintenance cost. Funding is available from 501-3312-591-64.20 (Garage Fund/Machinery Equipment/Automotive) and 001-2115-521-64.20 (General Fund/Machinery Equipment/Automotive). 4. Purchase award to Southeastern Pump, Inc. in an estimated amount of $40,000.00 for the purchase of submersible wastewater pumps for the balance of FY 2008-2009. Funding is available from 441- 5144-536-46.20 (Water and Sewer Fund/Repair & Maintenance Service/Equipment Maintenance). Mr. Eliopoulos moved to approve the Consent Agenda as amended, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr. Fetzer - Yes; Mr. McDuffie -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes. Said motion passed with a 4 to 0 vote. 9. REGULAR AGENDA: 9.A.A. RESOLUTION NO. 11-09: Approve and adopt Resolution No. 11-09 recognizing and commending the Green Task Force for their work to improve environmental sustainability, formally accepting their final report and instructing staff to review the report for implementation. The caption of Resolution No. 11-09 is as follows: -4- 02/03/09 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING AND COMMENDING THE GREEN TASK FORCE FOR THEIR WORK TO IMPROVE ENVIRONMENTAL SUSTAINABILITY, FORMALLY ACCEPTING THEIR FINAL REPORT AND INSTRUCTING STAFF TO REVIEW THE REPORT FOR IMPLEMENTATION; AND PROVIDING AN EFFECTIVE DATE. (The official copy of Resolution No. 11-09 is on file in the City Clerk's office.) Richard Hasko, Director of Environmental Services, stated this is a resolution that proposes to express staff's appreciation to the Green Task Force for all the hard work that they have done and accept the report and essentially provide direction for staff to review the report and come back to the Commission with implementation recommendations from that report. Mr. McDuffie commended the Green Task Force for the phenomenal job that was done and incredible dedication. He would like staff to move on this as soon as possible. Mr. McDuffie moved to approve Item 9.A.A. (formerly Item 8.H.) with the provision that the Department Heads report back in 90 days from tonight, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mr. McDuffie - Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes. Said motion passed with a 4 to 0 vote. 9.A.A.A. SERVICE AUTHORIZATION NO. 11/HIMLEY-HORN AND ASSOCIATES, INC.: Approve Service Authorization No. 11 in the amount of $38,000.00 to Kimley-Horn and Associates, Inc., for the collection of data on the impact of reducing the number of traffic lanes along US 1 between S.E. 10th Street and George Bush Boulevard. Funding will be provided by the Community Redevelopment Agency (CRA). Richard Hasko, Director of Environmental Services, stated this is in conjunction with the proposals on the Federal Highway pairs. Mr. Hasko stated the City had the test project for several months operational and staff took traffic counts prior to implementing these revisions. He stated we need to try and find out and gather adequate information to compare with those counts and that data to make sure that the proposals that we implemented so far in terms of temporary narrowing of the roadways have actually achieved and accomplished the goals that were set in the Master Plan for slowing traffic, easing pedestrian crossing of the roads, etc. Mr. Hasko stated this is a little more expensive than the first contract that staff had for gathering this data because now they are not only gathering data but they have to complete the effort and make the comparisons with the pre-existing data and give us a technical memorandum and a report that evaluates the results of the changes. -5- 02/03/09 Mr. Fetzer stated he has not been a real advocate of this project just based on spending priorities that we have. He stated it is a noble effort; however, Mr. Fetzer stated there is a lot of funding involved on this whole issue. Mr. Fetzer stated it would probably be inappropriate for him to not vote to at least evaluate since the City has spent all the money to do the program and feels it is prudent that we analyze what this has gotten us. Mr. Fetzer reiterated that this is not high on his list of priorities for the City to be spending this money on. Mr. Eliopoulos asked what staff has spent to date as far as what is in place. Mr. Krejcarek stated he does not have that number with him. Mr. Eliopoulos asked if it was always intended to do the counts and everything twice. Mr. Krejcarek stated when staff first brought this forward with the trial modification versus going forward with the permanent modification the intent at that point was communicated to the Commission that staff was going to take counts, implement the temporary, wait a year and then come back and take the after counts. Mr. Krejcarek stated we are into season and now is the time to take the after counts. Mr. McDuffie stated he would like to make certain that the tracking is the same times of year for both studies. Mr. Krejcarek stated the before counts staff took early April and staff will betaking the after counts later this month or early March. Mayor Ellis concurs with Commissioner Eliopoulos that this is the future of Delray Beach and this is a step towards that Master Plan and the future that the Commission has envisioned. She stated she expects the numbers to support the efforts that we have done so far but we will have to wait and see and that will be one of the determining factors to take into account. Mayor Ellis stated it will be a big step forward to the traffic and the ability to freely move about our city north and south. Mr. McDuffie asked if there is any limitation on how long the temporary's can stay. Mr. Krejcarek stated he does not believe there is but what they would have to do is go back to FDOT if we so desire to leave it in place and extend the permit. Mr. Eliopoulos moved to approve Item 9.A.A.A. (formerly Item 8.A.), seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes. Said motion passed with a 4 to 0 vote. 9.A.A.A.A. TEMPORARY PARKING USE TERMINATION/PINEAPPLE GROVE, LTD.: Authorize submitting notification to Pineapple Grove, LTD., owners of the vacant property located at 105-115 N.E. 1st Street, that the City has vacated the property and will no longer use it for temporary parking. from the dais. Commissioner Eliopoulos declared a conflict of interest and stepped down Richard Hasko, Director of Environmental Services, stated staff is requesting authorization to send formal notification to Mr. Carbone that the City has an agreement with for the last couple of years to utilize the vacant property on the north side -6- 02/03/09 of 1st Street across from the garage as a temporary parking facility. Mr. Hasko stated the reason for this was to accommodate parking needs in the downtown area on an interim basis while the garage was being built. He stated the garage has been up and operational for over a year now and that lot tends to compete with the garage. Mr. Hasko stated the City is trying to increase, enhance, and promote usage of the garage so at this point staff has removed all of the improvements, barricades, and lighting. He stated staff has replaced all of the fencing and the screening and put the site back to its pre-existing condition. Mr. Hasko stated staff would like authorization from the Commission to send the official notification so that we have no more liability associated with that. Mr. McDuffie moved to approve Item 9.A.A.A.A. (formerly Item 8.E.), seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr. Fetzer - Yes; Mr. McDuffie -Yes; Mayor Ellis -Yes. Said motion passed with a 3 to 0 vote. At this point, Commissioner Eliopoulos returned to the dais. 9.A.A.A.A.A. PARKING FACILITY WARRANTY/FIRST AMENDMENT TO THE GUARANTY AGREEMENT/ROBERT FEDERSPIEL PARKING GARAGE: Approve the Parking Facility Warranty and First Amendment to the Guaranty Agreement for the Robert Federspiel Parking Garage. Commissioner Eliopoulos declared a conflict of interest and stepped down from the dais. The City Attorney stated this is a Parking Facility Warranty and First Amendment to the Guaranty Agreement for the Robert Federspiel Parking Garage. A warranty was approved a long time ago by this Commission and staff was trying to work out the terms on the warranty with the other parties. The City Attorney stated staff was not too satisfied initially with the warranty that was provided by the company that was going to correct some of the errors but now the warranty seems to be in perfect order and it has been reviewed by Environmental Services as well. The City Attorney stated it also includes a guaranty agreement by Mr. Morris which extends the guaranty. She stated this is warranted now through June 27, 2009. Mr. Fetzer moved to approve Item 9.A.A.A.A.A. (formerly Item 8.G.), seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. McDuffie -Yes; Mayor Ellis -Yes; Mr. Fetzer. Said motion passed with a 3 to 0 vote. At this point, Commissioner Eliopoulos returned to the dais. 9.A. WAIVER REQUEST/WORTHING PLACE: Consider a request to waive Land Development Regulations (LDR) Section 4.3.3(00)(1)(f), "Generators", to allow generators to operate the full capacity of the equipment being served for a reduced period not less than forty-eight (48) hours for the property located south of Atlantic Avenue immediately south of Worthing Park, between S.E. 1st and 2"d Avenues. (Quasi- Judicial Hearing) -7- 02/03/09 from the dais. from the dais. Commissioner Eliopoulos declared a conflict of interest and stepped down Commissioner McDuffie declared a conflict of interest and stepped down The City Attorney stated this item will have to be postponed because we need three votes to pass this. It was the consensus of the Commission to postpone the waiver request for Worthing Place to the Special/Workshop Meeting of February 10, 2009 as a special item. 9.B. OLD SCHOOL SQUARE PARK PHASE ONE FINAL DESIGN/GLATTING JACKSON KERCHER ANGLIN, INC.: Consider approval of a proposal from Glatting Jackson Kercher Anglin Inc. in the amount of $140,300.00 for professional services related to the final design of the Old School Square Park Phase One project. Funding is available from 334-4151-572-63.59 (General Construction Fund/Improvements Other/Old School Square-Park Improvements). Richard Hasko, Director of Environmental Services, stated this is a proposal from Glatting Jackson Kercher Anglin, Inc. for the design phase for Phase One of Old School Square Park. He stated Phase One is what is left of the CRA parking lot; the garage on the north, shops on the south, Pineapple Grove on the east and 1st Avenue alignment on the west. The proposal is a total of $140,300.00 and approximately 35% of that relates to infrastructure sub-consultants, civil drainage, electrical, soils work, etc. Mr. Hasko stated there were a lot of improvements that were ultimately proposed in this area; however, with the budget that we have for this project with this construction and design we are not going to get any of those major improvements and noted those are actually for future improvements as funding becomes available for this area. Mr. Hasko stated the City is going to get the lawn, some adequate infrastructure to support the special event activities, some hardscape, and we will also get the interactive recreational facilities that are required by the FCT (Florida Communities Trust) Grant. Mr. Hasko stated the proposal is all inclusive up through bidding. There is a budget number for Construction Administration ($35,600.00) that will not be awarded in this number. He stated staff will come back to the Commission with the proposal for awarding those services as and if they are necessary when staff gets to that stage. followed. Brief discussion between Commissioner Eliopoulos and Mr. Hasko Mr. Eliopoulos expressed concern over the change orders and commented about Bob Barcinski or Joe Gillie dealing with them so that there is some communication. Mr. Hasko stated the point person for Environmental Services is going to be him and what he is going to do in terms of his approach to coordinate between the City, the primary stakeholders and the consultant, is he is asking Bob Barcinski and Joe Gillie to partner with him in this effort. -8- 02/03/09 Mr. Hasko stated to address the concern about what the City received for their money. He stated the City got a Master Plan proposal which is a map and a very good set of directions for the development of that park. Mr. Hasko stated you cannot measure the scope that was performed for that first project in pounds of paper or sheets in a plan because it was not that kind of scope. He stated that scope involved a lot of meeting with the public, meeting with the stakeholders, a lot of presentation preparation, and a lot of alternative proposals to end up with the Master Plan that we ended up with. Mr. Hasko stated in terms of this proposal we are now in the design phase and at the end of this contract staff will have a complete set of working drawings, specifications, details, etc. that staff will be able to bid. Mr. Hasko stated the Commission will have tangible things that they can say they paid for. The City Manager suggested that some changes be made in 2.18 and 2.22 to clarify these two sections and stated that the City Attorney's office could come up with some appropriate language. Mr. McDuffie moved to approve a proposal from Glatting Jackson Kercher Anglin Inc. in the amount of $140,300.00 for professional services related to the final design of the Old School Square Phase One project, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mayor Ellis -Yes; Mr. Eliopoulos - No; Mr. Fetzer -Yes; Mr. McDuffie -Yes. Said motion passed with a 3 to 1 vote, Commissioner Eliopoulos dissenting. 9.C. FINAL SELECTION OF PERSON TO CONDUCT AN INDEPENDENT REVIEW OF CITY BONDING PRACTICES AND PROCEDURES AND COMMUNICATION PRACTICES: Select person to conduct an independent review of city bonding practices and procedures and communication practices. Mr. Fetzer stated he had a lot of conversations, emails and phone calls with both of these individuals since the last meeting. He stated he is very pleased with the professionalism of both of them. Mr. Fetzer stated he sent the Commission by copy of email their responses to his questions that were the consensus of the Commissions' questions as a group as far as how would they conduct the investigation, what resources would you use, could you do it in the timeframe we are looking for. Mr. Fetzer stated he told them that the City Commission is trying to bring closure to this issue before the new Commission is seated on March 26, 2009 and both firms indicated that they would meet that timeframe. Mr. Fetzer feels that either firm would do a very comprehensive review of this and hopefully clear the air on any feelings that the residents have that the City has not handled this in a proper and legal way. The City Attorney stated there is an engagement letter (fill in the blanks) at each Commissioner's seat. Mr. Fetzer stated the City Attorney helped him put together an agreement format and both firms agree to the format. -9- 02/03/09 Mr. McDuffie stated he was very pleased with the responsiveness of both of these individuals. He stated in reviewing the responses that he saw from both, Mr. McDuffie stated his impression that the more articulate definition of what is to be done was by Usher L. Brown, Esquire. Mr. McDuffie stated there is a substantial difference in the cost of the two; however, he stated that the better presentation, understanding and a better grasp of the situation was from Usher L. Brown, Esquire. Mr. Eliopoulos asked where is the City going to get this money from to pay the firm and asked if there is something else that the Commission needs to cancel this year in order to fund this to make sure it's right. Mr. Eliopoulos echoed comments of Commissioner McDuffie and although he is satisfied with the way both firms responded, there is a certain level with Usher L. Brown, Esq. that he feels will be more of a thorough professional level. The City Manager stated at this point in the year given the City's financial projections staff would have to designate it from the prior year surplus. He stated if the City is able to accomplish something similar to what we did last year by the time we get through the year we maybe able to cover it. Mr. Fetzer stated he asked both firms fora "not to exceed price". Mr. McDuffie stated it is prudent, because there was perceptible difference between the approach of both of these firms, to go ahead with Usher L. Brown, Esquire whether it need be line item transfers in the budget or go back to prior year surplus. He stated we need to move this ahead and get it done. The City Manager recommends taking the money from the prior year's surplus to pay the firm with the understanding that staff will make every effort to cover it in the current year's budget. Mayor Ellis stated she too leaned towards Usher L. Brown, Esquire because they understand the problems that we deal with everyday and they have dealt with a variety of issues that make them experienced. She stated the City Commission wants to make sure that the City is dealing with issues in the very best professional way. Mayor Ellis stated Usher L. Brown, Esquire seemed to grasp that in a way that she found particularly appealing. The City Attorney stated she would like to make sure that the Commission is satisfied with the nature of the services from both firms. Prior to the vote, Mayor Ellis thanked Commissioner Fetzer for his work on this and stated he has done an outstanding job. She stated there is no presumption of any wrongdoing by City staff or anyone else as it relates to the underwriting procedures but Usher L. Brown is being hired to find out if the underwriting procedures need to be changed, modified or updated. -10- 02/03/09 Mr. Fetzer stated assuming this item passes he will contact Mr. Brown and if the rest of the Commission agrees he would like to ask for the City Attorney's help in getting the agreement to Usher L. Brown to be signed and expedited. Mr. Fetzer stated since time is of the essence he would like to get word to them as soon as possible so that the Commission can get going on this. Mr. Fetzer moved to approve that the City of Delray Beach enter into an agreement with the firm of Usher L. Brown., Esquire in an amount not to exceed $50,000.00 and $6,000.00 for expenses, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie - Yes; Mayor Ellis -Yes. Said motion passed with a 4 to 0 vote. At this point, the time being 7:02 p.m., the Commission moved to the duly advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.A. ORDINANCE NO. 02-09 (SECOND READING/SECOND PUBLIC HEARING): Privately initiated amendment to the Land Development Regulations (LDR) Section 4.7, "Family/Workforce Housing", by enacting a new Subsection 4.7.9(0), to allow non-eligible occupants to occupy workforce housing units under certain conditions. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The caption of Ordinance No. 02-09 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SECTION 4.7, "FAMILY/WORKFORCE HOUSING", SUBSECTION 4.7.9, "GENERAL PROVISIONS", BY ENACTING A NEW SUBSECTION "O" TO ALLOW NON- ELIGIBLE OCCUPANTS TO OCCUPY WORKFORCE HOUSING UNITS UNDER CERTAIN CONDITIONS, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTNE DATE. (The official copy of Ordinance No. 02-09 is on file in the City Clerk's office.) The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. -11- 02/03/09 Paul Dorling Director of Planning and Zoning, stated this is a privately- initiated LDR amendment to allow non-eligible applicants to occupy workforce housing units under certain conditions. Mr. Dorling stated at its meeting of January 20, 2009, the City Commission recommended to incorporate some language that was recommended by the Planning and Zoning Board as it related to assuring that when workforce units are turned over that marketing continues to those workforce units and that they be allowed to go from anon-workforce to a workforce status when they lease a new unit to a compliant applicant. Staff added that language and also added language for clarification to ensure that if the 25% threshold was not met that there be an obligation to continue to market each subsequent unit to a workforce unit until that 25% is met. At its meeting of December 8, 2008, the Planning and Zoning Board unanimously recommended approval with a 7 to 0 vote. Mayor Ellis declared the public hearing open. Michael Listick, 190 S.E. 5t'' Avenue, Delray Beach (Attorneyl, stated they agree. There being no one from the public who wished to address the Commission regarding Ordinance No. 02-09, the public hearing was closed. Mr. Eliopoulos moved to adopt Ordinance No. 02-09 on Second Reading/Second Public Hearing, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mayor Ellis - Yes; Mr. Eliopoulos -Yes. Said motion passed with a 4 to 0 vote. 10.B. ORDINANCE NO. 04-09: City initiated ordinance amending Chapter 32, "Departments, Boards and Commissions", Section 32.09, "Expiration of Terms; Commencement of Terms", in order to substitute "Board of Adjustment' for "Board of Construction Appeals" and to update the references to other Boards. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The caption of Ordinance No. 04-09 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, BY AMENDING CHAPTER 32, "DEPARTMENTS, BOARDS AND COMMISSIONS", SECTION 32.09, "EXPIRATION OF TERMS; COMMENCEMENT OF TERMS", IN ORDER TO SUBSTITUTE `BOARD OF ADJUSTMENT" FOR `BOARD OF CONSTRUCTION APPEALS" AND TO UPDATE -12- 02/03/09 THE REFERENCES TO OTHER BOARDS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. office.) (The official copy of Ordinance No. 04-09 is on file in the City Clerk's The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. Terrill Pyburn, Assistant City Attorney, stated this is a housekeeping ordinance and staff is trying to correct any incorrect references to the prior Board name being changed. Mayor Ellis declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 04-09, the public hearing was closed. Mr. Fetzer moved to adopt Ordinance No. 04-09 on Second and FINAL Reading, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mr. McDuffie -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes. Said motion passed with a 4 to 0 vote. 10.C. ORDINANCE NO. 05-09: City initiated ordinance amending Ordinance No. 43-03 in order to include a new study regarding retail-only adult entertainment establishments in the legislative history of the ordinance. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The caption of Ordinance No. OS-09 is as follows: office.) AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ORDINANCE 43-03 IN ORDER TO INCLUDE A NEW STUDY REGARDING RETAIL- ONLY ADULT ENTERTAINMENT ESTABLISHMENTS IN THE LEGISLATIVE HISTORY OF THE ORDINANCE; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. OS-09 is on file in the City Clerk's -13- 02/03/09 The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. Terrill Pyburn, Assistant City Attorney, stated this ordinance is amending the City's prior ordinance to add an additional study that has come out with regards to retail-only adult entertainment businesses. Ms. Pyburn stated the City is trying to make sure that their ordinances are up-to-date with the latest studies and cases. Mayor Ellis declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. OS-09, the public hearing was closed. Mr. McDuffie moved to adopt Ordinance No. OS-09 on Second and FINAL Reading, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie - Yes. Said motion passed with a 4 to 0 vote. At this point, the time being 7:10 p.m., the Commission moved to Comments and Inquiries on Non-Agenda Items from the City Manager and the Public. 11.A. City Manager's response to prior public comments and inquiries. inquiries. The City Manager had no response to prior public comments and 11. From the Public. 11.B.1. Ken MacNamee, 1049 Del Haven Drive, Delray Beach, referenced the October issue of the News for Neighborhoods where in great detail the Commission goes over the 5% increase in water and the 15% increase in sewer rates and says these increases were recommended by the City Manager after carefully assessing preliminary reports from an independent consultant. However, Mr. MacNamee stated there is no mention of the increase to trash rates in this article. Mr. MacNamee read into the record statements from the Minutes of the September 16, 2008 City Commission Meeting regarding the water, sewer, and trash increases. Mr. MacNamee asked the Commission what the increase to trash collection was. He stated according to the budget there was a 63% increase in trash rates and there was 55% increase for a homeowner. Mr. MacNamee asked if this trash contract was bid. He stated he requested to see the Waste Management contract since January 8, 2009 and has not received a copy to date and noted it is going up about 45%. Mr. MacNamee stated he received the addendum to the contract; however, he noted that he is still looking for the base contract. Mr. MacNamee stated he hopes that this would be an Agenda item at a future meeting and as a taxpayer if he can get this information he will provide the Commission with a report on what he finds. Mr. MacNamee stated he was a CPA, a Chief Financial Officer of a very -14- 02/03/09 successful financial institution in Florida; he was in the real estate business for 20 years and was also a consultant. He stated he would do this gratis and would like to get this trash issue addressed. At this point, the time being 7:15 p.m., the Commission moved back to Item 9.D. of the Regular Agenda. 9.D. RESOLUTION NO. 10-09/ABANDONMENT OF RIGHT-OF-WAY: Consider adoption of Resolution No. 10-09 abandoning a 0.17 acre portion of Canal Street right-of--way in conjunction with a proposed two (2) lot single family subdivision to be platted as Marine Way, located at the southwest corner of S.E. 2"d Street and the Intracoastal Waterway (adjacent to 200 Marine Way). The caption of Resolution No. 10-09 is as follows: office.) from the dais. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH FLORIDA VACATING AND ABANDONING A PORTION OF THE CANAL STREET PUBLIC RIGHT OF WAY LOCATED AT THE SOUTHWEST CORNER OF S.E. 2ND STREET AND THE INTRACOASTAL WATERWAY AS MORE PARTICULARLY DESCRIBED HEREIN. (The official copy of Resolution No. 10-09 is on file in the City Clerk's Commissioner Eliopoulos declared a conflict of interest and stepped down Paul Dorling Director of Planning and Zoning, stated this is an abandonment of the City's interest in a 0.17 acre rectangular-shaped portion of Canal Street associated with the creation of two single family lots. Mr. Dorling stated the easement for the Intracoastal will stay in place and that is to the Army Corps. He stated one of the conditions of approval was that staff was to get sign-off from the Army Corps and this has been provided. At its meeting of September 15, 2008, the Planning and Zoning Board recommended approval as did the Historic Preservation Board at their October 15, 2008 meeting in association with a development proposal for the development of the two lots. Mr. McDuffie asked if this will set a precedent for the lots up and down the Intracoastal on this side. Mr. Dorling stated there has been an abandonment north of Atlantic Avenue of a similar 50 foot strip. He stated Canal Street is not to be developed in the future by the City if we are abandoning our interest in the street only in this case as we did in the last case. Mr. McDuffie asked if it becomes buildable. Mr. Dorling stated it is subject to approval by the Army Corps with respect to encroachments and it would -15- 02/03/09 be included as part of the area for the lot and setback measurements. Mr. Fetzer moved to approve Resolution No. 10-09, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mayor Ellis -Yes. Said motion passed with a 3 to 0 vote. 9.E. CONTRACT ADDITION (C.O. NO. 5)BSA CORPORATION/CITY HALL NORTH WING RENOVATIONS: Consider approval of Contract Addition (C.O. No. 5) in the amount of $13,748.00 to BSA Corporation for City Hall North Wing Renovations. Funding is available from 334-6112-519-62.86 (General Construction Fund/City Hall -North Wing & Chamber). Richard Hasko, Director of Environmental Services, stated this is a contract addition for $13,748.00 for unforeseen conditions and some additional scope in the North Wing project. He stated it involves carpeting some offices that used to be considered in the future phase that now need to be pulled into this phase. Mr. Hasko stated as they got into the improvements in the north wing of the planning area and the wallpaper came down they noticed a lot of mold on the drywall and some of the windows that need to be resealed and there is some addition and relocation of some emergency exit signs. Mr. Eliopoulos moved to approve the Contract Addition (C.O. No. 5) to BSA Corporation for the City Hall North Wing Renovations, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes. Said motion passed with a 4 to 0 vote. 9.F. APPOINTMENT TO THE NEIGHBORHOOD ADVISORY COUNCIL: Appoint one (1) At Large Representative to the Neighborhood Advisory Council to serve an unexpired term ending July 31, 2010. Based upon the rotation system, the appointment will be made by Commissioner Eliopoulos (Seat #1). Mr. Eliopoulos moved to appoint William Milner as an At Large Representative to the Neighborhood Advisory Council to serve an unexpired term ending July 31, 2010, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr. McDuffie -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes. Said motion passed with a 4 to 0 vote. 9.G. APPOINTMENT TO THE PARHING MANAGEMENT ADVISORY BOARD: Appoint one (1) Citizen-at-Large Representative to the Parking Management Advisory Board to serve a two (2) year term ending July 31, 2011. Based upon the rotation system, the appointment will be made by Commissioner Fetzer (Seat #2). Mr. Fetzer moved to appoint George Brewer as a Citizen-at-Large Representative to the Parking Management Advisory Board to serve a two (2) year term ending July 31, 2011, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie - Yes. Said motion passed with a 4 to 0 vote. -16- 02/03/09 At this point, the time being 7:23 p.m., the Commission moved to Item 12, First Readings. 12. FIRST READINGS: 12.A. ORDINANCE NO. 08-09: City initiated amendment to the Land Development Regulations (LDR) Section 2.4.3(K)(1)(bb), "Single Family Overlay District Site Plan Review", to increase the application processing fee for Single Family Overlay District Site Plan Review Applications and associated renaming to North Beach/Seagate and Ocean Neighborhood Overlay District Review. If passed, a public hearing will be held on February 17, 2009. The caption of Ordinance No. 08-09 is as follows: office.) AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 2.4.3(K), "FEES", SUBSECTION (1), "DEVELOPMENT APPLICATIONS", TO PROVIDE FOR AN INCREASE IN THE APPLICATION PROCESSING FEE FOR SINGLE FAMILY OVERLAY DISTRICT SITE PLAN REVIEW APPLICATIONS AND THE RENAMING OF THE OVERLAY DISTRICT; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 08-09 is on file in the City Clerk's The City Attorney read the caption of the ordinance. Paul Dorling, Director of Planning and Zoning, stated this is a request to increase the application processing fee of $100.00 for processing of single family overlay district site plan review applications. Mr. Dorling stated the City contracts with the firm that created those design guidelines and their fee up to last year was $850.00 and they have renewed their contract for $950.00. Staff is requesting that the City increase their fees as well to reflect that $100.00 increase. The balance between that and the overall application fee of $1,560.00 is a portion that goes to the City for review which is separate from that consultants review and then for advertising, postage, etc. At its meeting of January 26, 2009, the Planning and Zoning Board unanimously recommended approval. -17- 02/03/09 Mr. McDuffie moved to approve Ordinance No. 08-09 on FIRST Reading, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mayor Ellis -Yes. Said motion passed with a 4 to 0 vote. 12.B. ORDINANCE NO. 09-09: An ordinance amending Section 96.03, "Establishment of Limits In Which Bulk Storage Of Liquefied Petroleum Gases To Be Restricted", Section 96.05, "Fire Hydrants", Section 96.16, "Certain Codes Adopted By Reference", and Section 96.46, "Above Ground Installation", to update the City's Code of Ordinances in order to reflect recent changes in the Fire Prevention Code Standards. If passed, a public hearing will be held on February 17, 2009. The caption of Ordinance No. 09-09 is as follows: office.) AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, BY AMENDING SECTIONS 96.03, "ESTABLISHMENT OF LIMITS IN WHICH BULK STORAGE OF LIQUEFIED PETROLEUM GASES TO BE RESTRICTED", 96.05, "FIRE HYDRANTS", 96.16, "CERTAIN CODES ADOPTED BY REFERENCE", AND 96.46, "ABOVE GROUND INSTALLATION" TO UPDATE THE CITY' S CODE OF ORDINANCES IN ORDER TO REFLECT RECENT CHANGES IN THE FIRE PREVENTION CODE STANDARDS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 09-09 is on file in the City Clerk's The City Attorney read the caption of the ordinance. John Tomaszewski, Assistant Fire Chief, stated this ordinance is needed because every three (3) years by State Statute the State of Florida has to update the fire prevention codes. Mr. Tomaszewski stated this gives staff the opportunity to review our local amendments to get out some old technology and introduce some new technology. Mr. Fetzer moved to approve Ordinance No. 09-09 on FIRST Reading, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. Fetzer - Yes; Mr. McDuffie -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes. Said motion passed with a 4 to 0 vote. At this point, the Commission moved to Item 13, Comments and Inquiries on Non-Agenda Items. -18- 02/03/09 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. 13.A. City Manager The City Manager commented about the Florida League of Cities Board Meeting last Wednesday followed by a joint meeting with the Palm Beach County School Board and the Palm Beach County Commission. He stated at the Board Meeting Carmine Priore, President of the Florida League of Cities, gave a report on a joint meeting held in Tallahassee between the Florida League of Cities, the Florida Association of Counties, and the Florida Association of School Boards. The City Manager stated they issued a joint statement dealing with three issues on revenue and expenditure caps and agreed to oppose legislative or constitutional restrictions on local government authority to determine local tax burden or financial commitments to service or quality of life. On unfunded mandates, they agreed to support legislative efforts including an amendment to the constitution that provides meaningful enhancements to the existing unfunded mandates provision including but not limited to eliminating exemptions from unfunded mandates scrutiny, provides greater public notice, legislative scrutiny and fiscal information, enhances accountability and transparency, preserves self determination and local fiscal stewardship, provides a process to resolve conflicts and disputes and requires legislative support through the development of implementing legislation. The City Manager stated they have a joint statement on worker's compensation that they would support legislation providing for reasonable controls and limitations on legal fees and rates regarding worker's compensation litigation. The City Manager stated other issues that Dr. Priore reported on was there was concern with the Senate Committee on the Florida economy and some of the things that they are discussing that sound like Amendment One second go-around. The City Manager stated some other things that might come up in this session of the legislature are the idea of setting up a committee or commission that would do the redistricting instead of the legislature itself, the 1.35% tax cap on all property taxes, the growth management legislation, taxpayer's bill of rights, and the hometown democracy. He stated whether or not any of these will gain traction in this session in the legislature remains to be seen. The City Manager stated it was agreed that the League President should represent the League as an alternate on the Lake Worth Lagoon Initiative Board. Nellie Titcomb and Mr. Waldman were reappointed to the Advisory Boundary Committee for school attendance boundaries. The City Manager stated the League's Attorney reported that Lake Worth had won their zoning case and the County is proposing to delete the Corridor Master Plan provisions from the County's Comprehensive Plan Transmittal on April 13th. He stated it has not been used and there was an attempt to use it once and it did not work out so they are going to take it out. The City Manager stated at the joint meeting he commented about a report by Mike Jones from the Economic Council and noted he can send the Commission the Internet address if the Commission wishes to review the report. The City Manager stated the School District Chairman reported on Career Academies and there was concern expressed about safe pathways to school and working with the cities and counties to make that happen. He stated there was also some discussion from the County regarding the neighborhood stabilization funding from the -19- 02/03/09 Federal Government and the representative from the City of West Palm Beach pointed out that is only for homes that are foreclosed or abandoned. The City Manager stated one of the things that West Palm Beach did is they set up a rent to own program where they go in and buy a foreclosed house and then they turn around and rent it to the family that lost it in the foreclosure and if they stay in the home for a year, they can then buy it back at presumably a lower cost. 13.B. City Attorney The City Attorney had no comments and inquiries on non-agenda items. 13.C. City Commission 13.C.1. Mr. McDuffie Mr. McDuffie stated he would like to clear up any confusion regarding the IAFF Contract. He asked that if a union fails to ratify a contract what contract terms then go into affect and or is there a rule of law that determines that. The City Manager suggested that this be discussed at a SHADE Meeting as soon as possible when there is a full Commission. Secondly, Mr. McDuffie commented about the commitment that was made to the Southwest Neighborhood and stated organizations around the City are pointing fingers at each other and he feels it needs to be resolved. He suggested that this be a Workshop item. Lastly, Mr. McDuffie stated he has "Thank You" notes for all the people who participated in the Roundtable to be signed by the entire Commission. 13.C.2. Mr. Eliopoulos Mr. Eliopoulos stated he supports this project in the spirit that it was presented to the Commission. He stated the two parties need to resolve things and we as a City are being pushed into doing things and this is not what the agreements were about. Mayor Ellis stated this has gotten really ugly. She stated over the past few months she has made efforts whenever she could to try to resolve some of these issues. Mayor Ellis stated there is no getting around the fact that the original agreement that they came to the City with and that everyone got so excited about is no longer on the table and the relationship is not a viable relationship. Mayor Ellis stated the Community Redevelopment Agency (CRA) has backed out and said until it is resolved by the other two parties (Delray Beach Housing Authority and the Auburn Group) they will not be fronting their $3 million. Mayor Ellis stated she does not feel it is up to the Commission to solve this problem but what the Commission was promised and what they promised is no longer the same thing they are dealing with. Mayor Ellis stated she spoke with Commissioner Addie Green this week and she has backed away from this. Mayor Ellis -20- 02/03/09 stated it would not be in the City's best interest or in the best interest of the citizens who live in that neighborhood to push something through that does not have the wholehearted support of everybody involved. 13.C.3. Mr. Fetzer Mr. Fetzer stated the Roundtable Meeting was very good and he tries to take away some ideas that we could pursue particularly during our planning session that will be held in April. He stated a couple things he heard about that were of interest to some residents were the Tennis Stadium and noted the Commission received some new data tonight from the City Manager that shows some substantial economic impact of the six tournaments that we hold there. Mr. Fetzer stated there is a perception with a lot of residents that the City is not fully utilizing the tennis facility. He stated the City has tried to hold concerts, etc. but suggested that the Commission do some more deep thinking about how we can get better utilization out of the tennis facility because it appears that the facility is not used to the extent that it could be to help pay for that investment. Mr. Fetzer stated another item that was mentioned to him by a couple of people is the beach. He stated everyone recognizes that the beach is one of the prime attractions to Delray Beach and it means a lot to the economy and tourism. Mr. Fetzer stated there are a lot of the beach residents that feel the City is not updating our planning that we should be doing on the beach. He stated there is a feeling that the City is not doing things like they are doing in Pineapple Grove and other areas of the city. Mr. Fetzer suggested this as another topic for the planning session. He stated the end of the year Annual Report and Hometown Connection publication was great. Mr. Fetzer stated he would like an update on whether or not the City can do voluntary contributions on water bills. He would like to know if this is something the City can do and if and when we can implement that. He stated previously he asked for some updates on the ridership on the shuttles. Mr. Fetzer suggested that a quarterly update be provided to the Commission on what is happening with the ridership on the shuttles. He stated there is very strong pros and cons opinion about the shuttle. Mr. Fetzer stated a lot of people think that it's wonderful that the City is providing that service and doing that as a mass transportation impact that we could have on the City and there are people that say "Why are our taxpayer dollars paying for a free shuttle?" Mr. Fetzer stated he believes we are seeing continual increases in the ridership so it would help him if he could get an update. Lastly, Mr. Fetzer stated with regard to the investigation he needs direction from the Commission about whether or not they would like him to continue in a role of being a point person for the Commission. Mr. Fetzer suggested that either the City Attorney or a staff member in the City Attorney's office assist him in working with this firm in doing this investigation. -21 - 02/03/09 13.C.4. Mayor Ellis Mayor Ellis stated at the State of the City and Roundtable discussions there was a top quality group of citizens that showed up and had good input. She stated as she moved from table to table it was uplifting to see people engage in real pertinent and current issues and how they related to our City and to them personally. Mayor Ellis stated she received suggestions on less expensive ways to do things. She stated it was a pleasure to be there and she heard from many of the participants who were there that they enjoyed it and it helped them feel connected to our City. Secondly, she stated on Thursday she helped with the official measuring of the City's Pop-Up Book to determine if it will indeed be the largest Pop-Up Book. Lastly, Mayor Ellis commented about the Ocean Club at the Sandoway House Gala on Saturday, January 31, 2009 and stated it was very cold. She stated this was very enjoyable and was for a great organization. There being no further business, Mayor Ellis declared the meeting adjourned at 7:59 p.m. City Clerk ATTEST: MAYOR The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information provided herein is the Minutes of the Regular City Commission Meeting held on February 3, 2009, which Minutes were formally approved and adopted by the City Commission on City Clerk -22- 02/03/09 NOTE TO READER: If the Minutes you have received are not completed as indicated above, this means they are not the official Minutes of the City Commission. They will become the official Minutes only after review and approval which may involve some amendments, additions or deletions as set forth above. - 23 - 02/03/09 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAME-FIRST NAME-MIDDLE NAME NAME OF BOARD, COUNCIL, COMMISSION, AUTHORITY, OR COMMITTEE Eliopoulos, Gary Delray-Beach City Commission MAILING ADDRESS THE BOARD, COUNCIL, COMMISSION, AUTHORITY OR COMMITTEE ON 205 George Bush Boulevard WHICH 1 SERVE IS A UNIT OF: CITY COUNTY CITY ^ COUNTY ^ OTHER LOCAL AGENCY Delra Beach, Florida 33445 Palm Beach NAME OF POLITICAL SUBDIVISION: DATE ON WHICH VOTE OCCURRED Clt of Delra Beach MY POSITION IS: 2 3 2009 ~ ELECTIVE ^ APPOINTIVE WHO MUST FILE FORM 8B This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold ah elective or appointive position. For this reason, please pay close attention to the instructions on this form befdre completing the reverse side, and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative' includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER TaE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: • You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 86 - EFF. 1/2000 ~_ ~ ~ ~ ~•~ ,~ ~ . PAGE 1 APPOINTED OFFICERS (continued) • A copy of the form must be provided immediately to the other members of the agency. • The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: • You must disclose orally the nature of your conflict in the measure before participating. • You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST 1, Gary P. Eliopoulos ,hereby disclose that on February 3, 20 Q.4-: (a) A measure came or will come before my agency which (check one) _ inured to my special private gain or loss; %% inured to the special gain or loss of my business associate, Eliopoulos Architecture, Inc. _ inured to the special gain or loss of my relative, inured to the special gain or loss of, whom I am retained; or by inured to the special gain or loss of ,which is the parent organization or subsidiary of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: 2/3/2009 Date Filed Signature NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO •MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $10,000. CE FORM 86 - EFF. 1!2000 PAGE 2 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNT, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAME-FIRST NAME-MIDDLE NAME NAME OF BOARD, COUNCIL, COMMISSION, AUTHORITY, OR COMMITTEE Eliopoulos, Gary Delra Beach Cit Commission MAILING ADDRESS THE BOARD, COUNCIL, COMMISSION, AUTHORITY OR COMMITTEE ON 205 George Bush Boulevard yWyH~ICH I SERVE IS A UNIT OF: 'Gt~ITY ^ COUNTY ^ OTNER LOCAL AGENCY CITY COUNTY Delra Beach, Florida 33445 Palm Beach NAME OF POLITICAL SUBDIVISION: Gity of Delray Beach DATE ON WHICH VOTE OCCURRED MY POSITION IS: 2/3/2009 R~ ELECTIVE ^ APPOINTIVE WHO MUST FILE FORM 8B This foam is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. tt applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completirig the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: • You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 86 - EFF. 1!2000 ~ ~ . r ~ ~ ~ ~ ~ ~ ,~ ~ ~ PAGE 1 APPOINTED OFFICERS (continued) • A copy of the form must be provided immediately to the other members of the agency. • The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: • You must disclose orally the nature of your conflict in the measure before participating. • You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST I Gary P. Eliopoulos ,hereby disclose that on February 3, 20 U~: (a) A measure came or will come before my agency which (check one) inured to my special private gain or loss; ~ inured to the special gain or loss of my business associate, Eliopoulos Architecture, Inc. _ inured fo the special gain or loss of my relative. _ inured to the special gain or loss of. whom 1 am retained; or inured to the special gain or loss of is the parent organization or subsidiary of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: 2/3/2009 Date Filed by which Signature NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE'ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $10,000. CE FORM 86 - EFF. 1/2000, PAGE 2 FORM .8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAME-FIRST NAME-MIDDLE NAME NAME OF BOARD, COUNCIL, COMMISSION, AUTHORITY, OR COMMITTEE Eliopoulos, Gary Delra Beach Cit Commission MAILING ADDRESS THE BOARD, COUNCIL, COMMISSION, AUTHORITY OR COMMITTEE ON 205 George Bush Boulevard WHICH I SERVE IS A UNIT OF: CITY COUNTY IN ^ COUNTY ^ OTHER LOCAL AGENCY Delray Beach, Florida 33445 Palm Beach NAME OF POLITICAL SUBDIVISION: Cit of D l B h DATE ON WHICH VOTE OCCURRED y e ray eac MY POSITION IS: 2/3/2009 ~ ELECTIVE ^ APPOINTIVE WHO MUST FILE FORM 8B This fofm is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he.or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: • You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 86 - EFF. 1/2000 ~~~,~~~ . -~ ~ PAGE 1 APPOINTED OFFICERS (continued) • A copy of the form must be provided immediately to the other members of the agency. • The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: • You must disclose orally the nature of your conflict in the measure before participating. • You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is.filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST I Gary P. Eliopoulos ,hereby disclose that on February 3, , 20 09 (a) A measure came or will come before my agency which (check one) _ inured to my special private gain or loss; g~ iriured to the special gain or loss of my business associate, Eliopoulos Architecture, Inc. _ inured to the special gain or loss of my relative, _ inured to the special gain or loss of , by whom I am retained; or _ inured to the special gain or loss of ,which is the parent organization or subsidiary of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: 2/3/2009 Date Filed Signature NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE. OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $10,000. CE FORM 86 - EFF. 1/2000 PAGE 2 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAME-FIRST NAME-MIDDLE NAME NAME OF BOARD, COUNCIL, COMMISSION, AUTHORITY, OR COMMITTEE Eliopoulos Gary Delray Beach City Commission MAILING ADDRESS THE BOARD, COUNCIL, COMMISSION, AUTHORITY OR COMMITTEE ON 205 George Bush Boulevard WHICH I SERVE IS A UNIT OF: CITY COUNTY CITY ^ COUNTY ^ OTHER LOCAL AGENCY Delray Beach, Florida 33445 Palm Beach NAME OF POLITICAL SUBDIVISION: Cit f Del B h DATE ON WHICH VOTE OCCURRED y o ray eac MY POSITION IS: 2/3/2009 %~ ELECTIVE O APPOINTIVE WHO MUST FILE FORM 8B This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: • You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 8B - EFF. 1!2000 ~~ • ~ PAGE 1 APPOINTED OFFICERS (continued) • A copy of the form must be provided immediately to the other members of the agency. • The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: • You must disclose orally the nature of your conflict in the measure before participating. • You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST I Gary P. Eliopoulos ,hereby disclose that on February 3, , 20 09 (a) A measure came or will come before my agency which (check one) inured to my special private gain or loss; X% inured to the special gain or loss of my business associate, Eliopoulos Architecture. Inc. inured to the special gain or loss of my relative, inured to the special gain or loss of , by whom I am retained; or inured to the special gain or loss of is the parent organization or subsidiary of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: 2/3/2009 Date Filed Signature which NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $10,000. CE FORM 8B - EFF. 1/2000 PAGE 2 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAME-FIRST NAME-MIDDLE NAME NAME OF BOARD, COUNCIL, COMMISSION, AUTHORITY, OR COMMITTEE McDuffie, Nelson S. "Woodie" .Delray Beach City Cammi.ssi.on MAILING ADDRESS THE BOARD, COUNCIL, COMMISSION, AUTHORITY OR COMMITTEE ON 2364 S . W. 35th Avenue Wri1CH I SERVE IS A UNIT OF: CITY COUNTY ITY ^ COUNTY ^ OTHER LOCAL AGENCY Delray Beach, Florida 33445 Palm Beach NAME OF POLITICAL SUBDIVISION: Clty of Delray Beach DATE ON WHICH VOTE OCCURRED MY POSITION IS: 2/3/2009 ~ ELECTIVE ^ APPOINTIVE WHO MUST FILE FORM 8B This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly•depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization ,or subsidiary,of acorporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special tax districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a "relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who.showld incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: • You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 86 - EFF. 1/2000 ~ ~~ , PAr;F 1 APPOINTED OFFICERS (continued) • A copy of the form must be provided immediately to the other members of the agency. • The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: • You must disclose orally the nature of your conflict in the measure before participating. • You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST I Nelson S. "Woodie" McDuffie ,hereby disclose that on Fphr~.ar~ ~, , 20 09 (a) A~easure came orwill come before my agency which (check one) r! inured to my special private gain or loss; _ inured to the special gain or loss of my business associate, inured to the special gain or loss of my relative, _ inured to the special gain or loss of , by whom I am retained; or inured to the special gain or loss of ,which is the parent organization or subsidiary of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: U~~ ~ G~ ~ ~~~~ (,mac-~-t.C•--l A~ wA~1~11c°c_~ 1.~1 ~ 'Z'L~ 2/3/2009 Date Filed Signature NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $10,000. CE FORM SB - EFF. 1/2000 PAGE 2 SPECIAL/WORKSHOP MEETING FEBRUARY 10, 2009 A Special/Workshop Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Rita Ellis in the First Floor Conference Room at City Hall at 6:02 p.m., on Tuesday, February 10, 2009. Roll call shoed Present - Commissioner G ary P. E liopoulos Commissioner Fred B. Fetzer Vice Mayor Woodie McDuffie Commissioner Mackenson Bernard Mayor Rita E llis Absent - None Also present mere - David T. Harden, City Manager Doug Smith, Assistant City Manager Robert A. Barcinski, Assistant City Manager Susan A. Ruby, City Attorney Brian Shutt, Assistant City Attorney Chevelle D. Nubin, City Clerk Mayor Rita Ellis called the special rr~eeting to order and announced that it had been called for the purpose of considering the following Items: SPECIAL MEETING AGENDA 1. WAVER REQUEST/WORTHING PLACE: Consider a request to waive Land Development Regulations (LDR) Section 4.3.3(00)(1)(f), "Generators", to allow generators to operate the full capacity of the equipment being served for a reduced period not less than forty- eight (48) hours for the property located south of Atlantic Avenue immediately south of Worthing Park, between S.E 1St and 2nd Avenues. (Quasi Judicial Hearing) Mayor E llis read the City of Delray Beach Quasi-Judicial Hearing procedures into the record Chevelle D. Nubin, City Clerk, sware in those individuals who wished to give testimony on this item. Mayor Ellis asked the Commission to disclose their ex parte communications. Mr. Fetzer stated he had no exparte communications to disclose. Mr. Eliopoulos stated he had no ex parte communications. 02/10/09 At this point,lVlr. Eliopoulos declared a conflict of interest. Mayor Ellis stated she had no ex pane communications to disclose. 1VIr. Bernard stated he had no ex pane communications to disclose. 1VIr. McDuffie stated he had brief conversations with 1VIr. Weiner and 1VIr. Morris, and declared a conflict of interest. Paul Dorling, Director of Planning and Zoning, entered the Planning and Zoning Departmealt project file # 2009-065. 1VIr. Dorling stated this is a waiver request to LDR Section 4.3.3(OO)(1)(F) which requires generators to operate the full capacity of the equipment being served for a period not less than 120 hours. He stated this is a generator request in conjunction with Worthing Park which is a 2.37 acre site which was approved several years ago fora 217 unit mixed use development with 12,292 square feet of retail. On September 5, 2006, the City Commission approved this ordinance which required that all multi family developments be equipped with a generator. 1VIr. Dorling stated given the size of this development the applicant has indicated to accomplish this they would require 1,000 gallons of fuel on site and they are concerned about accommodating that much fuel on site and requested a lesser time for the required operation. 1VIr. Dorling stated in the analysis that the Environmental Services did staff would anticipate that a five (500) gallon tank that they have indicated that they would provide at 100 hours and their request is for a specific time of 48 hours. Staff recommends approval of the waiver but that there not be a timeframe on it but connect it with the hours that would run with a 500 gallon tank 1VIr. Dorling stated the Fire-Rescue Departrr~ent does not agree that this waiver should be granted Michael Weiner, 10 S.E. 1S` Avenue, Delray Beach (reFresenting the A~plicant~, stated LDR Section 4.3.3(OO)(1)(F) requires generator operation for one hundred and t~~enty (120) hours for elevators and emergency lights. 1VIr. Weiner stated this building was designed and approved in January 2000 and it was six years later that the Commission passed this ordinance requiring the size of this tank He stated with respect to this particular request for a waiver this would not be a special privilege but this particular waiver applies to a building that has been designed five years before the passage of the ordinance. 1VIr. Weiner stated there are design problems and the size of this tank would be huge and this was outside the building and would be aesthetically inappropriate. He stated inside the building they are talldng about being inside a garage. 1VIr. Weiner stated because of the unique design of the building, because of the day of the passage of the ordinances, and because it is not a special privilege, and because this is the safest way to address this particular issue they meet the requirements of LDR Section 2.4.7(5)(5) and that they should have a waiver to LDR Section 4.3.3(OO)(1)(F) and that the waiver should request that they install a 560 gallon diesel tank that would allow operations from 60 to 100 hours. John Tomaszewski, Assistant Fire Chief, stated there are 1,000 gallon storage tanks with a t~-hour fire resistance rating that negates the issue with regards to this being a problem for the Fire-Rescue Departmealt from a safety perspective. Mr. Tomaszewski stated he believes the Land Development Regulation that addresses this also addresses existing buildings that states within six years an existing building that meets a building of this nature be equipped with the same provision 1VIr. Tomaszew~ki stated staff is looking at this as the cost being passed from -2- 02/10/09 the developers onto the future occupants and residents. Mayor Ellis stated if anyone else from the public wishes to address the Commission regarding the waiver request, to please come forward at this time. There being no one from the public who wished to address the Commission regarding the waiver request, the public hearing was closed There was no cross-examination; there was no rebuttal from City staff. The following individual gave a brief rebuttal: 1VIr. Weiner stated the issues that are related to the installation of the 1,000 gallon tank are related not only to the safety issue but also to the size and capacity of that particular tank He stated in order to design this it mould mean that they mould have to lose additional parking or it would have to be on the exterior of the building and neither of them are suitable solutions. The City Attorney asked for clarification about the tank 1VIr. Weiner stated staff has mentioned 500; however, they can go to a 560 gallon tank The City Attorney asked if the applicant mould be agreeable to a condition that mould establish an agreement with a diesel fuel provider to provide for replenishment in the event of an extended power outage so that the generator would be operational until power is restored Everyone agreed to the condition of approval. 1VIr. Semard asked 1VIr. Weiner to explain that in the event of an extended power outage how he plans on replenishing In response,lVlr. Weiner stated there are commercial available contracts which mould be part of this waiver where you go to a replenishment service and they will come out to your property and fill the tanks. He stated on the lowest estimate it is 31/2 days and it is more than likely 100 hours which is more than 4 days and under those circumstances they will make it a part of the order and have it refilled 1VIr. Fetzer agrees with staff's recommendation and supports the waiver. Mayor E llis stated she too supports the waiver. The City Attorney briefly reviewed the Soard Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). 1VIr. Fetzer moved to approve the Soard Order subject to the condition that Worthing Place shall establish an agreement with a diesel fuel provider to provide for replenishment in the event of an extended power outage so that the generator mould be operational until power is restored, seconded by 1VIr. Semard Upon roll call the Commission voted as follow: 1VIr. Fetzer -Yes; Mayor E llis -Yes;1VIr. Semard -Yes. Said motion passed with a 3 to 0 vote. At this point, Commissioner Eliopoulos and Commissioner McDuffie returned to the dais. -3- 02/10/09 2. SERVICE AUTHORIZATION NO. 07-09/MATHEWS CONSULTING, INC.: Approve Service Authorization No. 07-09 in the amount of $54,979.00 to Mathews Consulting, Inc. for professional construction management services in the conversion of the Booster Pump Station to serve the Beach Area Reclaimed Water System. Funding is available from 441-5181- 536-65.96 (Water & Sewer Fund/Other Improvements/Reclaimed Water Transmission). Richard Hasko, Director of Environmental Services, stated this proposal is for provision of professional consulting services for the first contract which is the modification to Area 11A Reclaimed Water System. The proposal is for $54,979.00 and there are three (3) contracts involved with this project. Mr. Hasko stated staff split this up into three (3) contracts primarily because of the time element involved with the South Florida Grant. Mr. Eliopoulos stated in looking at the proposal for the construction administration on the Booster Pump Station this particular scope is beyond the City`s in house capabilities. Brief conversation between staff, the Commission and the City Attorney followed Mr. Eliopoulos moved to approve the Service Authorization No. 07-09 to Mathews Consulting, Inc. with the modification to the contract that the fees for additional services will not exceed $15,000.00, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. McDuffie -Yes; Mr. Bernard -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes. Said motion passed with a 5 to 0 vote. Mayor Ellis adjourned the Special Meeting at 6:28 p.m. WORKSHOP AGENDA 1. Presentation of Compensation and Classification StudX Bruce Koeser, Director of Human Resources, stated the Human Resources Department has been charged with taking a look at non bargaining positions, compensations, and practices to review the City`s job classification system. Mr. Koeser stated the City is not in a financial position to make a lot of changes but it is always good to stay on top of it. Dr. Jeffre~~g, Executive Vice President with Evergreen Solutions, LLC, stated the City asked Evergreen Solutions to engage in the following four (4) key components: (1) review its cunent system classification/compensation for its strength and weaknesses and assess the equity, (2) to evaluate where the City stands versus the City`s peers in the marketplace, (3) present findings and recommendations and any potential changes that would be necessary or beneficial to the City in the future, (4) and/or revive any classification descriptions or job information that would relate to the feedback provided to Evergreen Solutions by the employees. Mr. Ling gave a brief PowerPoint presentation and reviewed the proposed recommendations. -4- 02/10/09 Mr. Koeser stated the job descriptions for all non bargaining positions (320 employees) is now ADA compliant. Staff recognizes that they will not be able to make those financial commitments fully to what Evergreen Solutions is recommending The City Manager stated staff will look at this information both at mid year and in next year's budget and see what part of it the City might be able to implement at that point. The FLSA changes mould be made immediately to make sure that the City is incompliance. Brief discussion followed between Mr. Koeser and Commissioner Eliopoulos regarding FLSA issues. Mr. McDuffie asked if this will be reviewed on an annual basis. Mr. Koeser stated he does not feel there is a need to go into this level of detail annually; however, recommends that job classifications be reviewed every 2-3 years. Mr. McDuffie asked if the CPI (Consumer Price Index) adjustments will be looked at. Mr. Koeser stated the City does not generally do COLA adj ustments but they can look at everything relative to where the City is to the market. Portia Dinkins, Human Resources Consultant/Compensation & Benefits, stated what Evergreen Solutions suggested comes with a maintenance and followLup plan every year and noted there are guidelines to look at to maintain what they already put into place. Mr. Bernard asked if the title changes mould be made first. Mr. Koeser stated the FLSA piece would be done first. Mayor Ellis asked why the positions on the FLSA list were selected The City Attorney stated there have been changes in the law on how you describe criteria and this was looked at to make sure that they are categorized correctly. Brief discussion between Mr. Ling, staff, and the Commission followed Ms. Dinkins stated some of the Department Heads expressed concern over the issue of the financial cost to them with employees who generally work over 40 hours who are classified as exempt that will now become non exempt because this is a cost that they will now have to consider in their budget. The City Manager stated staff will look at restructuring positions or reassigning duties to rrrinirrriz~ that overtime cost. The City Manager stated this is informational at this point. 2. Presentation of Benefits Comparison including Pension and Voluntary Employee Benefit Association (VEBA~ Bruce Koeser, Director of Human Resources and Risk Management, stated staff took a look at other municipalities from the total rewards compensation picture including medical benefits, all types of benefits including pension, etc. He stated staff looked at the City of Boca Raton, the City of Boynton Beach, and Palm Beach County (including Palm Beach County Sheriff's office). Mr. Koeser stated when looking at the total benefits picture the City of Delray -5- 02/10/09 Beach stands pretty well compared to the competition. Mr. Eliopoulos asked how staff decides who to compare the City of Delray Beach to and what type of criteria was used Mr. Kceser briefly explained the criteria that was used The City Manager stated there are a lot of differences in details in the package between different entities and it makes it complex to make a comparison Jodie M. June, Area Vice President for Gallagher Benefit Services, Inc., stated the study has been broken down into three different segments: (1) Health and Welfare, (2) Senchmarking, and (3) Pension Study and all that rolls up into a total reward She stated on the Health and Welfare eight different cities were evaluated and on the pension there were six cities evaluated but rolling out the information on a combined level for the total rewards there were five that were considered into that. Glen Volk, Actuarial Consultant, briefly discussed the eight cities that were studied He stated that the one thing that stood out in the medical plan is that the City of Delray Beach charges a little more (approximately $150.00 more) for dependent coverage than most of its competitors. He briefly discussed VEBA for Police and Fire and noted that there is a 3.3% payroll contribution that is made by the City. He also discussed the pension evaluation and for police and fire and general employees (6 cities in the study). Mr. Vollc stated the Police and Fire Pension benefit has a greater cost compared to any other city and the General Employees Pension is competitive but is not clearly above the other cities. Mr. Eliopoulos asked Mr. Vollc if he has done studies for unions. Mr. Vollc stated he has not personally done studies for unions. Mr. Fetzer inquired about the medical benefits under the benchmarking study for HMO and it was clarified that most of the cities that were compared to the City of Delray Beach do not charge for HMO coverage for employees. Portia Dinkins, Human Resources Consultant/Compensation & Benefits, stated the County has started charging $10.00 per month for employees for the HMO and then they use that to offset dependent coverage. The City Manager stated one of the charts displayed showed VEBA contribution for those other entities that have VEBA and noted that he does not see that information in the back up and asked Mr. Vollc to comment on this. Mr. Vollc stated all of the VESA's define a benefit that comes out of the plan for retirees who meet the age and service requirements. He stated for the City of Delray Beach $5,200.00 a year and for a City of Delray Beach employee who is in the plan when they retire VEBA pays them $5,200.00 a year or approximately $450.00 a month that they can use toward paying their retiree healthcare. The City Manager stated the earlier chart showed a number of other entities required an employee contribution rather than the city malting the total contribution Mr. Vollc stated for most other entities the total contribution was 21/2% and the employees paid 2% and for most other cities this is largely financed by the employees. -6- 02/10/09 Mayor Ellis stated this is a lot of interesting information and it will take her a couple of days to digest this. The City Manager asked Bruce Koeser, Director of Human Resources, to get with Jim Tabeek and the City`s consultants to make sure his questions get addressed and noted that there maybe some things that need to be changed 3. Recommendations regarding the four (4) Historic Districts Paul Dorling, Director of Planning and Zoning, and Amy Alvarez, Historic Preservation Planner, gave a brief PowerPoint presentation and reviewed the recommendations that came out of the report for the three districts (Nassau Park, Old School Square, and Del-Ida Park). 1VIr. Bernard asked why the West Settlers Historic District cannot be brought forward Mrs. Alvarez stated the map is the last page of the West Settlers section and the consultant is doing additional research on some of the properties and once staff gets this information complete then staff will bring a revised report with the West Settlers recommendations to the Commission 1VIr. Bernard asked what the timeframe is in terms of coming back to the Commission. 1VIr. Dorling stated that research should be done in the next couple of weeks and staff will process each of these recommendations for the districts individually as ordinances. 1VIr. Fetzer stated Old School Square is the only historic district that plans to expand its geographic area and the period of significance was the main issue in the other districts as far as changing them to contributing structures and asked what the rationale is for what the period of significance should be. 1VIr. Dorling stated it deals with the type of development that occurred and the architectural styles which are part of those individual timeframes. 1VIr. Fetzer stated with all those changes he inquired if the City Attorney would require an ordinance. The City Attorney stated this mould require an ordinance. The Marina Historic District will be reduced and this reduction will go to the Historic Preservation Board (FII'S) next week 1VIr. McDuffie asked in what way the residents were involved in these areas. In response, 1VIr. Dorling stated this is getting the physical characteristics of the properties and the residents would not be a part of that data collection 1VIr. Dorling stated staff is just reporting the findings to the Commission now and it will go through the public hearing process moving forward and everybody will be noticed not only within the district but within 500 feet of the district. 1VIr. Fetzer asked how often the City agreed to resurvey these districts and what costs will the City incur to do this. 1VIr. Dorling stated staff tallced about resurveying the districts every five years. 1VIr. Dorling stated the resurvey of the Marina District was $10,000.00 and the other four districts cost $35,000.00. -7- 02/10/09 4. Environmental Services Department Expense Control Process Richard Hasko, Director of Environmental Services, briefly discussed the in house Environmental Services Department Expense Control Process regarding change orders. Mr. Hasko stated approval authorizations will be required as follows: (1) less than $1,000.00 will require approval by the ESD Director, (2) between $1,000.00 and $15,000.00 will require approval by the City Manager, (3) greater than $15,000.00 will come to the City Commission for approval. Mr. Hasko stated Contract allowances such as video and utility allowances will require approval by the Director only. These allowances are contract line items that are for specific generic activities for which staff assigns a dollar amount in the contract bid documents so they will not be determining factors for the contract award Brief discussion between Mr. Hasko and the Commission followed Mr. Eliopoulos stated he would like to rrrinirrriz~ some of the allowances. Mr. Semard asked if they can add the language that if there is any additional irk and if they do it without the authorization then it mould not have to come before the Commission to approve. The City Attorney stated there is case law that says if it is not approved by the City by a person who is authorized to approve it then we do not have to pay it. She suggested that the Commission look at the City`s ordinances to make sure that we codify the exact idea being presented here. Mr. Eliopoulos and Mayor Ellis stated this is a good start. Mr. Hasko stated staff will also be maintaining a monthly change order log Mr. McDuffie asked if the City has plane metrics in our GIS system for water and sewer. Sob NTickla, GIS Coordinator, stated they exist now in CAD and staff is currently in the process of converting the water and sewer from CARD to GIS. 5. Capital Improvement Program management s, s Randal Krejcarek, City Engineer, stated the goal of staff is to implement the inception and the creation of the CIP document using this process. He stated staff will also use this for reporting the status of current CIP projects as well. Joseph Safford, Finance Director, stated whenever there is a capital project there may be an impact on operating costs and asked if there is an area on the input screen where a department can tell us how much this project is going to affect their operating costs. Mr. Krejcarek stated this section is there. Mr. Sarcinski asked if you will be able to show reduced costs or cost savings. Mr. Safford stated you can do this either way (either positive or negative numbers). -8- 02/10/09 Mr. Hasko stated anybod~s staff that wants to initiate a capital project is going to Dave access to the first t~ templates displayed and the data entry will be done by the individual in that department. Mr. McDuffie asked what the data is is stored in for the HTE database. Mayor Ellis adjourned the Special/Workshop Meeting at 8:17 p.m. City Clerk ATTEST: MAYO R The undersigned is the City Clerk of the City of Delray Seach, Florida, and the information provided herein is the Minutes of the Special/Workshop Meeting of the City Commission held on Tuesday, February 10, 2009, which Minutes were formally approved and adopted by the City Commission on City Clerk NOTE TO READER: If the Minutes you have received are not completed as indicated above, this means they are not the official Minutes of the City Commission. They will become the official Minutes only after review and approval, which may involve amendmealts, additions or deletions to the Minutes as set forth above. -9- 02/10/09 MEMORANDUM TO: Mayor and City Commissioners FROM: SCOTT PAPE, AICP, SENIOR PLANNER THROUGH: PAUL DORLING, AICP, DIRECTOR OF PLANNING AND ZONING DATE: February 10, 2009 SUBJECT: AGENDA ITEM 7.A. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 SITE PLAN REVIEW AND APPEARANCE BOARD AWARDS PRESENTATION ITEM BEFORE COMMISSION Presentation of the 17th Annual Site Plan Review and Appearance Board Awards. BACKGROUND The Site Plan Review and Appearance Board (SPRAB) is conducting its 17th Annual Award Recognition Program. The awards are given to those property owners and their design teams who have significantly contributed to the beauty of the community through creative design or renovations to existing properties. Eligible projects are those that were approved by the Board, and received a Certificate of Occupancy during the fiscal year (October 1, 2007 -September 30, 2008). The SPRAB awards will be presented to the recipients mentioned below at the City Commission meeting. This year's design categories and recipients include: EXTERIOR RENOVATIONS Mercedez Benz Auto Nation, Inc. (Developer) Arc Avenue, Inc. (Architect) Thomas White, ASLA-ISA (Landscape Architect) COMMERCIAL REDEVELOPMENT New Century Commons New Century Linton One, LLC (Owner) Marc Wiener, AIA, (Architect) Architectural Alliance (Landscape Architect) MIXED-USE DEVELOPMENT Astor Condominiums Astor-Delray, LLLP (Owner/Developer) MSA (Architect) Carter and Associates (Landscape Architect) RESIDENTIAL DEVELOPMENT Harbour House * Porten Custom Homes (Developer) * Kupi Eliopoulos Architects (Architect) * Carter and Associates (Landscape Architect) PUBLIC FACILITY Fire Station #4 * City of Delray Beach (Owner) * Currie Sowards & Aguila (Architect) * Dave Bodker (Landscape Architect) RECREATIONAL La Hacienda Park * City of Delray Beach (Owner/Landscaper) * ARCADIS (Developer) ~` La Hacienda H.O.A. * Community Redevelopment Agency DOWNTOWN COMMERCIAL DEVELOPMENT Mellow Mushroom * Ronald L. Platt (Owner) * Cope Architects, Inc. (Architect) * Carter and Associates (Landscape Architect) MURAL DESIGN Delray Camera Shop * PGMS, Inc. (Sponsor) * Chris Reich (Owner) * Dana Donaty (Artist) SIGNAGE Mellow Mushroom * Be Seen Signs (Contractor) * Ronald L. Platt (Owner) MEMORANDUM TO: Mayor and City Commissioners FROM: Carolanne Kucmerowski, Construction Management Technician Richard C. Hasko, Environmental Services Director THROUGH: David T. Harden, City Manager DATE: January 2, 2009 SUBJECT: AGENDA ITEM 8.A. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 CONTRACT CLOSEOUT (CHANGE ORDER NO. 1/FINAL)/MCCABE BROS CONSTRUCTION, INCJATLANTIC DUNES PARK BOARDWALK REHAB ITEM BEFORE COMMISSION This item is before the Commission to approve a Contract Closeout (Change Order No. 1/Final) in the net deduct amount of (-$3,205.00) and final payment amount of $19,677.10 to McCabe Brothers Construction, Inc. for the completion of the Atlantic Dunes Park Boardwalk Rehabilitation Project #2007-021. BACKGROUND The project included the rehabilitation of the existing pedestrian boardwalk that spans from State Road AlA east to the beach. The project scope consisted of the modifications to the existing piles, new boardwalk decking, stringers, benches, and handrail system. The change order includes plus and minus quantity adjustments and liquidates the residual from contingency allowances. All changes for the project are itemized on the attached Schedule "A". The project is complete and all closeout documentation has been received. FUNDING SOURCE Residual funds to be liquidated from Purchase Order #652267 to funding account 334-4170-572-63.48 (General Construction Fund/Parks & Recreation/Improvements Other/Atlantic Dunes Boardwalk). RECOMMENDATION Staff recommends approval of a Contract Closeout (Change Order No. 1/Final) in the net deduct amount of ($3,205.00) and final payment amount of $19,677.10 to McCabe Brothers Construction, Inc. for completion of the Atlantic Dunes Park Boardwalk Rehabilitation Project. CITY ®3F DELRAY $EACII CiIA~"~GE ®Rl3ER T® ®RIGINAI, C®NTRACT CHANGE NO. 1/Final (Contract Closeout) PROJECT NO. 2007-021 DATE: PROJECT TITLE: Atlantic 13nnes 1'arlt Boardwalk Rehabilitation TO CONTRACTOR: McCabe Brothers Construction, inc. YOU ARE HEREBY REQUESTED TO MAKE THE FOLLOWING CHANGES TN 'THE PLANS AND SPECIFICATIONS FOR THIS PROJECT AND TO PERFOR'VI THE WORK ACCORDINGLY, SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. JUSTIFICATION: Complete changes to project per the attached Schedule "A". SUMMARY OF CONTRACT AMOUNT/CHANGES ORIGINAL CONTRACT AMOUNT $177,392.00 COST OP CONSTRUCTION CHANGES PREVIOUSLY ORDERED $ 0.00 ADJUSTED CONTRACT AMOUNT PRIOR TO THIS CHANGE ORDER $177,392.00 COST OF CONSTRUCTION CHANGES THIS ORDER - ($3,205AO) ADJUSTED CONTRACT AMOUNT TNGI-.UDING THIS CHANGE ORDER $174,187.00 PERCENT DECREASE THIS CHANGIr ORDER -1.80% TOTAL PERCENT DECREASE TO DATE -1.80% CERTIFIED STATEMENT: l hereby certify that the supporting cost data included is, in. nny considered opinion, accurate anal that the prices quoted are fair and reasonable. McCabe Brothers Construction, Inc. (Contractor to sign & seaij TO BE FILLED OUT BY DEPARTMENT TNTTIATING CHANGE ORDER Funding is available from account: DEPARTMENT FUNDING CERTIFIED BY DELRAY BEACH, I=LORIDA by its City Commission RECOMMEND: Enviro>vnentat Services APPROVED: City Attorney Sy: Mayor ATTEST: By: City Clerk S'~BngAd~ttinlProjeets120~712007-02110F'FCCTALIC0 1 Futal McCabe Arcs Atl Dunes Boardwalk GC UI2009.doc SCH:EI}T3LE "A,: T4 CHANGE ORDER NO. 1 /FINAL (CONTRACT CLOSEOUT) MCCABE BROTHERS CONSTRUCTION, INC. ATLANTIC DL,~]VES PARK BOARDWALK REHABILITATION PIN 20U7-021 CQNTRACT AWARD CONTRACT TO DATE ITEM DESCRIPTIDN UNIT NO. EST. UNET PRICE TOTAL ACTUAL UNET PRICE EXTENDED QLIANT ADJ. QTY. QTY. TOTAL. PRICE + 1- Rehabilitation of the existing pedestrian Boardwalk, including but not limited to the boardwalk 1 decking, stringers, benches, and handrail system complete as par plans and spaclficativns. Bid as a Lump Sum Total Amount of: $167,382.Dfl; itemized as follows: 1a Mobilization LS 1 $95,738.20 $16,738.20 1 $1fi,738.2q $ 16,738.2q $O.DO 1b Bond ~ Insurance LS 1 $1fl,fl42.92 $10,642.52 1 $10,D42.92 $ 10,042.92 $0.0(3 1c Demolition LS 1 $40,214.60 _ $4D,214.60 1 $40,214.60 $ 40,214.60 $D.OD 1d Concrete LS 1 55,386.28 _ $5,386.28 1 $5,386.28 $ 5,388.28 $0.00 1e Ga ant LS '[ $95,OOO,DO $95,000.00 1 $95,000.00 $ 95,ODOAO $0.00 Item No. 1 Totat Amount $1 fi7,382.D0 $ 167,382.Dfl $0.00 2 Contingency Allowance {Breakdown Below): LS 1 $10p00.00 $10,000.OD 1 $10,000.00 $ 6,795.00 ($3,205.D0 ltriodifica#ionsfaddition of hand rails at the stairs by the main entry and the shower area per Building LS 0 $0.00 $0.00 1 $4,437.OD $4:437.D0 Department Requiremen#s Additional services required to fix a can€lict which arose during construction; to bridge an opening LS 0 $0.00 $O.Oq 1 $1,275.25 $1,276.25 from the overwalk to the bath house entry Additional Handrail Returns installed at shower LS 0 $O.qq $O.Oq '[ $&35.50 $835.50 installation of Drop-aff beard at shower to prevent LS 0 $0.00 $0.00 1 $246.25 $246.25 undermining of Shower pad 3 indemnification LS 1 $ 10.00 ~ iD.00 1 $ 10.00 $ 10.00 $D.DO TOTAL OREGiNAL CONTRACT AWARD $977,392.Otl $174,787.00 ($3,205.00) Original Contract Award $977,392.00 Previously Approved Changes $O.DO Total AwardlApproved to Gate $977,$92.OA Final Contract to Date $974,187.00 CHANGE ORDER NO. '! I FINAL $ 3,2Q5.00 Page 1 of t MEMORANDUM TO: Mayor and City Commissioners FROM: Scott Aronson, Parking Management Specialist Richard C. Hasko, P.E., Director of Environmental Services THROUGH: David T. Harden, City Manager DATE: February 10, 2009 SUBJECT: AGENDA ITEM 8.B. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 AMENDMENT TO GAFFE LUNA ROSA PARKING LICENSE AGREEMENT ITEM BEFORE COMMISSION The item before the City Commission is that of approving a request from Gaffe Luna Rosa to amend its Parking License Agreement from 40 to 20 spaces and reassigning the associated parking lots. BACKGROUND At its meeting of March 15, 2005, the City Commission approved a request from Gaffe Luna Rosa to enter into an agreement for the use of 40 spaces in the Sandoway, Ingraham and Gleason Street Parking Lots for its valet. The agreement allowed use of the spaces on a first come, first served basis, at a rate of $30 per space, per month. Due to current the economic downturn and the discontinuance of construction at 6 South Ocean Blvd site (f/k/a Shore Restaurant), the applicant is requesting to reduce the number of parking spaces available under the current agreement to 20 spaces. In an effort to further reduce operating expenses by reducing manpower, the request includes reassigning of the lots by eliminating the Ingraham Lot and allowing exclusive use of the Gleason Street Lot for a1120 spaces, when available. Use of the Sandoway Lot would be permitted for overflow of the Gleason Lot, when unavailable due to church functions and on Sundays before 2:00 PM when the First Presbyterian Church has use of the lot for religious services. The spaces would remain available on a first come first serve basis. The current agreement for the 40 spaces, at $30 per space, per month, totals $1,200 per month. The reduction would equate to $600 per month for an annual savings of $7,200, which, when combined with the manpower reductions realized from the closer proximity of the Gleason Street Lot, should be of significant assistance to the valet and restaurant. Although amending the agreement results in a loss of revenue via the monthly agreement, Staff is confident that net revenue would not be negatively impacted, as use of the 20 spaces reverts to the general public, with payment made directly to the meters. Additionally, the Gleason Street Lot has historically been less utilized than the Sandoway Lot which would effectuate increased revenue in the Sandoway Lot by allowing the exclusive use of the Gleason Street Lot, as requested. REVIEW BY OTHERS The Parking Management Advisory Board, at its meeting of January 27, 2009, unanimously (6- 0) recommended approval of the applicant's request, as presented in the aforementioned staff report. (Gergen recused) RECOMMENDATION By motion, approve the request from Caffe Luna Rosa to amend its Parking License Agreement by reducing the number of leased spaces from 40 to 20 and allowing exclusive use of the Gleason Street Lot with the Sandoway Lot to be used for overflow and at times that the Gleason Street Lot is not available. AMENDMENT NO. 1 TO PARKING LICENSE AGREEMENT WITH CAFFE LUNA ROSA DATED MARCH 22, 2005 THIS AMENDMENT NO. 1 to the Agreement dated March 22, 2005, is made this day of , 2009, by and between the CITY OF DELRAY BEACH (the City) and CAFFE LUNA ROSA ("Licensee") WITNESSETH: WHEREAS, the parties entered into a Parking License Agreement dated March 22, 2005, to provide for the use of forty (40) public parking spaces; twenty-two (22) spaces at Sandoway, nine (9) spaces at Ingraham, and nine (9) spaces at the Gleason Street lots; and WHEREAS, the LICENSEE desires to reduce the number of spaces to a total of twenty (20) spaces to be made available at the Gleason Street lot exclusively, except for holidays and special church events which may render Gleason Street lot unavailable, in which case twenty (20) spaces at the Sandoway lot may be used. NOW, THEREFORE, the parties agree as follows: 1. The recitations set forth above are incorporated herein. 2. That Paragraph 2, "Parking" shall hereby be amended as follows: 2. Parking. The CITY agrees to allow LICENSEE the non-exclusive use of €~49) twenty~20~ parking spaces in the event that LICENSEE' S regular parking spaces in the Andrews lot are full. LICENSEE'S and the general public's use of the public parking spaces shall be on a first come, first serve basis. THE SPACES CANNOT BE RESERVED OR BLOCKED IN ANY MANNER. LICENSEE shall use no more than ~°1 ^r'~~r~ ~u~~~ngr,~'~^m '^* ~°~ twenty (20~ parking spaces at the Gleason Street lot. When the Gleason Street lot is not available, LICENSEE shall utilize no more than twenty (20~parking spaces at Sandoway lot. ,,,a c.,,,,a,,.,,.,., i„~~ ,,, ,~~ ~o ro o,a ~.o~,,,-o ~i,o Q:nn r i„~ ,.i„~;,,,. ~;,,,o. The parking spaces in the Gleason Street lot are to be used for valet parking by LICENSEE daily between the hours of 10:00 a.m. to 9:00 p.m. Monday through Saturday and Sundays between the hours of 2:00 p.m. and 9:00 p.m., excluding holidays (Christmas Eve, Christmas Day, Maundy Thursday, Good Friday and Easter), and special events (funerals, weddings, fundraisers, etc.). LICENSEE'S use of the Gleason Street lot shall be subject to the lease terms between the CITY and First Presbyterian Church. LICENSEE must close the gate at the Gleason Street lot no later than 9:00 p.m. Monday through Sunday. The City Manager or his designee(s), shall enforce the provisions of this agreement, including the location, time, parking limitations and requirements, and compliance with all applicable laws and ordinances. When required by law, the enforcement shall be accomplished through personnel authorized by law to enforce the law. 3. That Paragraph 3, "Waivers" shall hereby be amended as follows: 3. Waivers. CITY agrees to waive paragraphs 3 and 14 of LICENSEE'S Parking License Agreement attached as Exhibit "A" to the extent that the CITY is hereby allowing LICENSEE to utilize the public parking lots referenced herein. The CITY reserves the right to enforce those provisions, however, if LICENSEE uses more than e-~9-} twenty~20~ parking spaces in the ~~ Gleason Street lots and/or more than twenty-~~"~ 20 parking spaces in the Sandoway lot or if LICENSEE uses any other public spaces. LICENSEE may be permitted to use ~~ ~~'~'~*~~~~' ~~~° ~°` °~~~°° 2 ~ the Sandoway lot only if the Gleason Street lot is closed for a holiday, special church event and/or on Sundays between the hours of 11:00 a.m. and 2:00 p.m. 4. That Paragraph 13 shall hereby be amended as follows: 13. LICENSEE acknowledges, however, notwithstanding the foregoing that the CITY may terminate this non-exclusive License Agreement without cause or for cause and that this Agreement shall be void if it is determined that any provision herein is in violation of the CITY'S separate agreements with either Palm Beach County, DEP, the Army Corps of Engineers or First Presbyterian Church. LICENSEE will at all times comply with the CITY'S policy/procedure for use of public parking spaces to the extent that LICENSEE shall park no more than €~49~ twenty~20~ cars in the public parking lots and SHALL NOT CONE OFF OR RESERVE THOSE SPACES IN ANY FASHION. 5. This Amendment together with the original Agreement and any written amendments hereto, constitute the entire Agreement between the parties relating to the subject matter hereof. It is the final expression of agreement between the parties, thus, neither party shall be entitled to rely upon any conflicting oral representations, assurances, claims or disclaimers, made either prior to or simultaneous with the execution of this Amendment. 6. Except as expressly modified in writing herein or as modified by subsequent written amendments, all other terms and conditions of the original Agreement and any amendments thereto survive this Amendment and are deemed to be incorporated herein and are binding on the parties. 3 IN WITNESS WHEREOF, the parties have executed this Amendment to the Parking License Agreement on the day and year first hereinabove written. ATTEST: City Clerk Approved as to legal form and sufficiency: City Attorney WITNESSES: (please type orprint name) (Name printed or typed) STATE OF COUNTY OF Title: The foregoing instrument was acknowledged before me this 2009, by personally known to me or who has produced Identification. Signature of Notary Public CITY OF DELRAY BEACH, FLORIDA By: Rita Ellis, Mayor CAFFE LUNA ROSA By: (please type or print name) day of who is as 4 ,., k' PAP:]E~ING LICENSE AGREEMENT THIS AGREEMENT {"The Agreement"} is made this 1st day of April, 2006, by and between the CITY OF DELRAY BEACH, a Florida Municipal Corporation {the "CITY"}, and CAFFE LUNA RASA, INC., a Florida corporation {"LICENSEE"}. WITNESSETH: WHEREAS, LICENSEE has requested permission to use a certain number of public parking spaces along Atlantic Avenue and certain side streets far valet parking queues; and WHEREAS, in order to use the parking spaces, the CITY requires that LICENSEE enter into this non-exclusive License Agreement. NC}W THEREFC?RE, in consideration of the sum of Ten Dollars ($10.00}, the mutual covenants and conditions contained in this Agreement, and other goad and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of Recitals. The parties hereby represent and warrant that the above recitals are accurate and correct and hereby incorporate them in this Agreement. 2. Parking C}ueues. The CITY agrees to allow LICENSEE the non-exclusive use of 7 {seven} parking spaces on the south side of Atlantic Avenue between Salina Avenue and C~}cean Boulevard (State Raad AlA} for valet parking queues. The parking spaces are to be used for valet parking queues daily between the hours of 11:00 a.m. to 11:00 p.m. on Monday through Sunday ('7 days per week}. LICENSEE acknowledges that the valet parking queues may be unavailable for use during certain special events from time to time (as determined in the CITY's sole discretion} and during the special events, the license will not be valid. It is also understood by the terms of this Agreement that the valet queue location may from time to time be re-located by the CITY in its sole discretion after providing thirty (30) days' written native to LICENSEE. The LICENSEE and or the Valet shall not restrict the use of the Valet Queues to only persons using the LICENSEE'S business, but the valet queue shall be open to anyone wanting to use the valet service offered by LICENSEE. The City Manager or his designee{s}, shall .enforce the provisions of this agreement, including the lacatian, time, days of the valet service, parking limitations and requirements, and compliance with all applicable laws and ordinances. When and ordinances. when required by law, the enforcement shall be accomplished through personnel authorized by law to enforce the law. 3. Parking LocatianslA~reements. LICENSEE agrees that LICENSEE will provide the CITY with current written assurances and/or a lease agreement for use of a private parking fat(s). The private lot{s} must also comply with minimum City codes far a parking lot{s}. LICENSEE shall also provide the CITY with a copy of its current valet agreements, and a copy of its current insurance certificate as set forth in Exhibit A. LICENSEE will ensure that the valet service is operated in a manner that will not result in cars stacking on and/or blocking the travel ways of any alleyway, public street or parking lot. These assurances and agreements must be provided upon execution of this License Agreement., when there is a change in any agreement referred to herein ar upon the request of the CITY. Failure to comply with these conditions will be a basis for termination of this License Agreement. 4. Payment for Parking Queae Spaces. LICENSEE agrees to pay the CITY (7ne Hundred and Forty dollars ($140.00) per month, per parking queue space utilized by the 10th of each month. A late fee of 5°lo will be charged after this date. If more than one License Agreement is issued for the queues, the fee will be shared proportionately. 5. Si na e. The CITY agrees to post the valet parking queue spaces with valet parking times and days authorized. Sandwich board signs may not be used to advertise the valet service. Advertising signs will be allowed as prescribed by the City's Manager or his designee. 6. Valet Service; Valet Equipment. The LICENSEE'S operator may for the storage of keys install a moveable, temporary, valet desk an the sidewalk, either public or private, during the hours of valet service so long as the desk does not impede the pedestrian flaw. 7. Term and Renewal. The term of this Agreement shall be far one year from the date written above. The License may be renewed by the City Manager following receipt of a written notice from LICENSEE that LICENSEE desires to continue using the parking spaces far valet parking queue, if the City Manager determines in his sole discretion that the renewal is in the best interests of the CITY. The City Manager may add additional provisions to this agreement upon renewal, including but not limited to, the requirement to use an off=duty police officer during the time and dates the City Manager deems advisable. 2 8. Revocable License. This Agreement is only anon-exclusive License Agreement and maybe revoked by the CITY at anytime with or without cause during the initial term ar any renewals thereafupon providing written notice via U.S. Mail to LICENSEE. The revocation shall be effective when mailed. 9. Compliance with Laws, LICENSEE and his/her employees , agents, representatives and/or subcontractors agrees to comply and adhere to all state laws and local ordinances regarding traffic and parking that exist ar as amended from time to time. LICENSEE further acknowledges that due to the high traffic in this area, double parking unattended vehicles will not be permitted. 1 {}. Notice. Notices required to be provided pursuant to this Agreement shall be sent to the following addresses: Ta CITY: David T. Harden, City Manager 140 N.W. 1st Avenue Delray Beach, Florida 33444 To LICENSEE: Mr. Fran Marincala Gaffe Luna Rosa 36 S. fJcean Blvd. / Apt A - l Delray Beach, FL. 33483 11. Insurance. LICENSEE agrees to provide the CITY insurance far the valet service in the amounts and under the conditions prescribed in Exhibit A which shall at all times remain current, The City of Delray Beach shall be named an additional insured. 12. Indemnification. In consideration of the payment of Ten Dollars x$14.44}, receipt of which is hereby acknowledged, LICENSEE shall protect, defend, indemnify and hold harmless the CITY from and against any and all claims, suits, actions, damages and/or causes of action arising during the Term of this Lease far any personal injury, lass of life and/or damage to property sustained in or about the parking spaces/queues by reason or as a result of the use and occupancy of the parking spaces/queues by LICENSEE, its agents, employees, licensees, invitees, and members of the public generally, and from and against any orders, judgments, and/or decrees which may be entered thereon, and from and against all costs, attorney fees, expenses and liabilz'ties incurred in and about the defense of any such claim. 1n the event the 3 CITY shall be made a party to any litigation commenced against LICENSEE or by LICENSEE against any third party, then the LICENSEE shall protect, defend, indemnify and hold the CITY harmless and pay all costs and attorney's fees incurred by the CITY in connection with such litigation, and any appeals thereof. 13. Third Parties. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement upon any person other than the parties hereto and their respective heirs, successors, legal representatives, and permitted assigns, nor is anything in this Agreement intended to relieve ar discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision thereof give any third person any right of subrogation ar action aver or against any party to this Agreement. 14. Penalties for ViolationslTermination. Penalties will be imposed upon the LICENSEE for: (1) Valet parking of cars in either on-street oroff-street public parking spaces; andlor {2} Valet parking of cars in the designated parking queues; andJor {3) Expanding the designated parking queues area. The penalty schedule for the above violations is as follows: 1st violation - warning 2nd violation - $200 3rd violation - $S00 4th violation - Termination of License Agreement Notices of violation will be written by a Police Department representative and will be sent to the LICENSEE with a copy to the City Manager. Failure to make payment within thirty {30) days of receipt of the notice will result in termination of the agreement. LICENSEE acknowledges, however, notwithstanding the foregoing that the CITY may terminate this non-exclusive License Agreement without cause or for cause. LICENSEE will at all times comply with the City"s palicylprocedure for use of public parking spaceslqueues which shall change from time to time subject to the sole discretion ofthe City. 4 15. Taxes. LICENSEE shall pay and comply with all laws regarding taxes, levies, assessments, fees and charges, including, but not limited to gross receipts, taxes, use taxes, property taxes, and sales taxes that maybe imposed. 16. Assignment. This Agreement shall not be transferred or assigned without the express written consent of the CITY, which the CITY may withhold grants in its sale discretion. 1'7. Further Assurances. The parties sha11 from time to time execute and deliver such other and further instruments and documents and do all matters and things which may be convenient or necessary to more effectively and completely carry out the intent of this Agreement. 18. Binding Effect. All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective heirs, successors, legal representatives, and permitted assigns. 19. Entire Agreement. This Agreement shall constitute the entire agreement of the parties with respect to the subject matter of it. All prior understandings and agreements between the parties with respect to such matters are merged into this Agreement, which alone fully and completely expresses their understanding. 2f1. Amendments. This Agreement may not be amended, modified, altered, or charged in any respect, except by a further agreement in writing duly executed 'by each of the parties hereto. IN WITNESS WHERE FF, the parties hereto have caused this Agreement to be duly executed an their behalf this cy~' da of 2 Q Y 4 6. ATTEST: THE CITY 4F DELRAY BEACH, a Florida Municipal Caara~ian City Clerk Approved as to farm: _----- ~,~„ pity Attorney 5 By: (CORPOR.ATE SEAL} N Tit STATE OF ___~~~~-- ~ ~ ~~~~~~ f ame Printed: /~' le: _ - COUNTY OF ,~ The foregoing instrument was acknowledged before me this ~~ay of ~' 2041, by ~~ ..~ I~~ as ... f'" {name of officer or agent, title of officer or agent}, of _ r~-~'~~- (name of corporation acknowledging}, a ~~ '~____ (state or place of incorporation} corporation, an behalf of the corporation He ~e~.is personally known to me or has produced {type of identification} as identification. i ;~ r. ~ryt~c.~rdf~ Signature of Notary Public -State of • I~yCon~niaiw-E~+~. Florida ~~. gone„ a ~ -- EX~IIBIT A INSUP:~~.NCE REQUIREMENTS FOP;M 1. VtTarkers' Compensation per the Statutory limits of the State of Florida to include Employer's Liability Insurance with limits of at least $104,4441$544,444/$144,444. 2. Garage Liability Insurance of at least $1,444,444 combined single limits per accur,ence to protect the City against all risks of injury to persons (including death) or damage to property wherever located resulting from any action or operation under the contract ar in connection with the work. This policy is to provide coverage far premises/operations including auto liability, independent contractars, broad farm contractual liability, products/completed aperatians. 3. Garage Keepers Insurance with limits of no less than $60,444 per auto, with an annual aggregate of $544,444. 4. Automobile Liability of at least $344,444 combined single limits per occurrence for ownedlnon-owned/hired automobiles connected with the business. 5. The City of I}elray Beach and PRIVATE LOT OWNERS must be named as additional insured on the liability policies; and it must be stated an the certificate. 6. Thirty {34) days written cancellation notice required. 7. Best's guide rating B+, VIII ar better, latest edition, PUBLIC PARKING L4T LICENSE AGREEMENT THIS AGREEMENT (The Agreement) is made this aL~ day of 2005, by and between the CITY OF DELRAY BEACH, a Florida municipal corporation (the "CITY"}, and CAFFE LUNA ROSA, a Florida corporation {"LICENSEE"). WITNESSETH: WHEREAS, LICENSEE has requested permission to use a certain number of public parking spaces far valet parking; and WHEREAS, LICENSEE has executed a separate Parking License Agreement regarding his use of a valet queue to stage cars and the Valet Agreement is attached hereto as Exhibit "A" and referenced herein; and WHEREAS, the Valet Agreement attached as Exhibit "A" shall remain effective except as modified herein; and WHEREAS, the public has the right to use the public parking spaces pursuant to agreements between the CITY and Pahn Beach County, DEP and the Army Corps of Engineers, however, this Agreement shall allow LICENSEE to utilize the public parking spaces on a first come, first serve basis, during the hours provided herein; the only differences being the method of payrr~ent; and WHEREAS, in order to use the parking spaces referenced herein, the CITY requires that LICENSEE enter into this non-exclusive Public Parking Lot License Agreement. NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the mutual covenants and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which.are hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of Recitals. The parties hereby represent and warrant that the above recitals are accurate and correct and hereby incorporate them in this Agreement. 2. Parkin. The CITY agrees to allow LICENSEE the non-exclusive use of forty (40} parking spaces in the event that LICENSEE'S regular parking spaces in the Andrews lot are full. LICENSEE'S and the general public's use of the public parking spaces shall be on a first come, first serve basis. THE SPACES CANNOT BE RESERVED OR BLOCKED IN ANY MANNER, LICENSEE shall use no more than nine (9} parking spaces at the Ingraham lot, nine (9} parking spaces at the Gleason Street lot and twenty-two (22) parking spaces at the Sandoway lot. The parking spaces in the Ingraham and Sandoway lots subject to the terms and limitations set forth herein are to be used for valet parking by LICENSEE daily between the hours of 11:00 a.m_ to 5:00 p.m. Monday through Sunday, seven {7} days per week. Cars parked before 5:00 p.m. at the Ingraham and Sandoway lots must be removed before the 8:00 p.m. lot closing tune. The parking spaces in the Gleason Street lot are to be used for valet parking by LICENSEE daily between the hours of 11:00 a.m. to 9:00 p.zxi.. Monday through Saturday and Sundays between the hours of 2:00 p.m. and 9:00 p.m., excluding holidays (Christmas Eve, Christmas Day, Maundy Thursday, Good Friday and Easter}, and special events (funerals, weddings, fundraisers, etc.}. LICENSEE'S use of the Gleason Street lot shall be subject to the lease terms between the CITY and First Presbyterian Church. LICENSEE must close the gate at the Gleason Street lot no later than 9:00 p.m. Monday through Sunday_ The City Manager or his designee{s}, shall enforce the provisions of this agreement, including the location, time, parking limitations and requirements, and compliance with all applicable laws and ordinances. When required by law, the enforcement shall be accomplished through personnel authorized by law to enforce the law. 3. Waivers. CITY agrees to waive paragraphs 3 and 14 of LICENSEE'S Parking License Agreement attached as Exhibit "A" to the extent that the CITY is hereby allowing LICENSEE to utilize the public parking lots referenced herein. The CITY reserves the right to enforce those provisions, however, if LICENSEE uses more than nine {9) parking spaces in the Ingraham or Gleason Street lots and/or more than twenty-two (22} parking spaces in the Sandoway lot or if LICENSEE uses any other public spaces. LICENSEE may be permitted to 2 use an additional nine (9} spaces in Sandoway lot only if the Gleason Street lot is closed far a holiday, special church event and/or on Sundays between the hours of 11:00 a.m. and 2:00 p.m. 4. Pa anent for Parkin S aces. LICENSEE agrees to pay the CITY Thirty dollars ($30.00} per month, per parking space by the 10th of each month whether the spaces are actually used by LICENSEE or LICENSEE'S valet or not. A late fee of S% will be charged after this date. 5. Si~na~e. The CI7"Y agrees to provide the dashboard passes for LICENSEE'S valet to place inside the vehicles parked in the public parking lots. LICENSEE forfeits the use of any spaces due to lost or misplaced passes. LICENSEE is responsible to notify the CITY of any pass{es) lost or misplaced. LICENSEE or their agent, may not, under any circumstances, create replacement passes. Misplaced passes-will be replaced by the CITY an the following business day. 6. Term and Renewal. The term of this Agreement shall be for one (1} year from the date written above. The License may be renewed by the City Manager following receipt of a written notice from LICENSEE that LICENSEE desires to continue using the public parking spaces, if the City Manager determines, in his sole discretion, that the renewal is in the best interest of the CITY. The CITY has agreements with Palm Beach County, DEP, the Army Corps of Engineers and First Presbyterian Church for the use of the Ingraham, Sandoway and Gleason Street lots. This Agreement shall be void if it is determined that any provision of this Agreement is found to be in violation of either of those agreements. 7. Revocable License. This Agreement is only anon-exclusive License Agreement and maybe revoked by the CITY at anytime with or without cause during the initial term or any renewals thereof upon providing written notice via U.S. Mail to LICENSEE. The revocation shall be effective within forty-eight hours of mailing date. 8. Co~n~liance with Laws_ LICENSEE and luslher employees, agents, representatives and/or subcontractors agree to comply and adhere to all state laws and local ordinances regarding traffic and parking that exist or as amended from time to time. . 3 9. Notice. Notices required to be provided pursuant to this Agreement shall be sent to the following addresses: To CITY: David T. Harden., City Manager 100 N.W. 1st Avenue Delray Beach, Florida 33444 To LICENSEE: Fran Marincola 36 S=Ocean Blvd. Delray Beach, FL 334$3 10. Indemnification. Tn consideration of the payment of Ten Dollars ($10.00), receipt of which is hereby acknowledged, LICENSEE shall protect, defend, indemnify and hold harmless the CITY from and against any and all claims, suits, actions, darnages and/or causes of action arising during the Term of this Agreement for any personal injury, loss of life and/or damage to property sustained in or about the parking spaces by reason or as a result of the use and occupancy of the parking spaces by LICENSEE, its agents, employees, licensees, invitees, and members of the public generally, and from and against any orders, judgments, and/or decrees which may be entered thereon, and front and against alt costs, attorney fees, expenses and liabilities incurred in and about the defense of any such claim. In the event the CITY shall be made a party to any litigation cornrnenced against LICENSEE or by LICENSEE against any third parry, then the LICENSEE shall protect, defend, indemnify and hold the CITY harmless and pay all costs and attorney's fees incurred by the CITY in connection with such litigation, and any appeals thereof. l 1. Insurance. LICENSEE agrees to provide the CITY insurance for the use of the public parking lots. The insurance shall be in the amounts and under the conditions prescribed in Exhibit "B" and the City of Delray Beach and First Presbyterian Church shall be named as addi#ional insureds. 12. Third Parties. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement upon any person other than the parties hereto and their respective heirs, successors, legal representatives, and 4 permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any pravision thereof give any third person any right of subrogation or action over or against any party to this Agreement. 13. LICENSEE acknowledges, however, notwithstanding the foregoing that the CITY may terminate this non-exclusive License Agreement without cause or for cause and that this Agreement shall be void if it is determined that any provision herein is in violation of the CITY'S separate agreements with either Palixi Beach County, DEP, the Army Corps of Engineers or-First Presbyterian Church. LICENSEE will at all times comply with the CITY'S policy/procedure for use of public parking spaces to the extent that LICENSEE shall park no more than forty (40} cars in the public parking lots and SHALL NOT CONE OFF OR RESERVE THOSE SPACES IN ANY FASHION. 14. Assi~rrment. This Agreement shall not be transferred or assigned without the express written consent of the CITY, which the CITY may grant or withhold in its sole discretion, 1S. Further Assurances. The parties shall from time to time execute and deliver such other and further instruments and documents and do all matters and things which may be convenient or necessary to more effectively and completely carry out the intent of this Agreement. 16. Biudin~ Effect. All of the terms anal provisions of this Agreement shall be binding upon, inure to the benef t of, and be enforceable by, the parties hereto and their respective heirs, successors, legal representatives, and permitted assigns. 17. Entire A~reenaent. This Agreement shall constitute the entire agreement of the parties with respect to the subject matter of it. Ali prior understandings and agreements between the parties with respect to such matters are merged into this Agreement, which alone fully and completely expresses their understanding. 1$. Amendments. This Agreement may not be amended, modified, altered, or charged in any respect, except by a further agreement in writing duly executed by each of the parties hereto_ 5 IN WITNESS WHEREO~, the parties ~herpeto have caused this Agreement to be duly executed on their behalf this ds~~ day of ~~-!~v , 2005. A'T'TEST: • ly City Clerk Approved as to form: ~~.City Attorney ~ ~g ~~ (CORPORATE SEAL} STATE OF ~~ COUNTY OF ,G~ THE CITY OF DELRAY BEACH, a Flori Municipal Cro oration By: ~ 1 David T. Harden City Manager CAFFE LUN A By: Fran arincola, Owner The foregoing instnunent was acknowledged before me this ~ day of 2405, by ~r/-1 ±~ ~ ~1 r i /- c ~ ~ ~--~ , as ~ (~ vl .e -r- (name of officer ar agent, title of officer or agent), of _ ~ __ „{~ n ,4 ©s ~ ~-1-. (name of corporation acknowledging), a state or place of incorporation} corporation, on behalf of Elie corporation. He/She is personally known to me or has produced ~ ,~ * ,Q (type of identification) as identification. ,`g,(ZY AU6 OFFICIAL NOTARY SEItL 2 !~ GEi~iSEAVAttiC ~ ~~~ ¢ OOMMISSIONNLIM®ER noos~o2s ~lFQF F~d(t~ ~9Y COMMISSION EXPIRES SEPT 4,2oa5 Signature of Notary Public ~-State of Florida EXHIBIT "A" PARKII~TG LICENSE AGREEMENT THIS AGREEMENT ("The Agreement") is made this 1st day of April, 2004, by and between the CITY OF DELRAY BEACH, a Florida Municipal Corporation (the "CITY"), and Caffe Luna Rosa Inc., a Florida corporation ("LICENSEE"}. WITNESSETH: WHEREAS, LICENSEE has requested permission to use a certain number of public parking spaces along Atlantic Avenue and certain side streets for valet parking queues; and WHEREAS, in order to use the parking spaces, the CITY requires that LICENSEE enter into this non-exclusive License Agreement. NOW THEREFORE, in consideration of the sum of-Ten Dollars ($10.00), the mutual covenants and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of Recitals. The parties hereby represent and warrant that the above recitals are accurate and correct and hereby incorporate them in this Agreement. 2. Parking Queues. The CITY agrees to allow LICENSEE the non-exclusive use of 4 (four) parking spaces on the westernmost end on the south side of Atlantic Avenue between Salina Avenue anal Ocean, Boulevard {State Road AlA) for valet parking queues. The parking spaces are to be used for valet parking queues daily between, the hours of 11:00 a.m. to 11:00 p.m. on Monday through Sunday (7 days per week). LICENSEE acknowledges that the valet parking queues may be unavailable for use during certain special events from time to time {as determined in the CITY's sole discretion) and during the special events, the license will not be valid, It is also understood by the terms of this Agr-cement that the valet queue location may from time to time be re-located by the CITY in its sole discretion after providing thirty (34) days' written notice to LICENSEE. The LICENSEE and .or the Valet shall not restrict the use of the Valet Queues to only persons using the LICENSEE'S business, but the valet queue shall be open to anyone wanting to use the valet service offered by LICENSEE. The City Manager or his designee(s), shall enforce the provisions of this agreement, including the location, time, days of the valet service, parking limitations and requirements, and compliance with all applicable laws and ordinances. When required by law, the enforcement shall be accomplished through personnel authorized bylaw to enforce the law. 3. Parkin Locations/A reements_ LICENSEE agrees that LICENSEE will provide the CI'I`Y with current written assurances andlor a lease agreement for use of a private parking lots}. The private lot{s) must also comply with minimum City codes for a parking lot(s). LICENSEE shal3 also provide the CITY with a copy of its current valet agreements, and a copy of its current insurance certificate as set forth in Exhibit A. LICENSEE will ensure that the valet service is operated in a mazmer that will not result in cars stacking an andlor blocking the travel ways of any alleyway, public street or parking Iot. These assurances and agreements must be provided upon execution of this License Agreement., when thew is a change in any agreement referred to herein or upon the request of the CITY. Failure to comply with these conditions will be a basis for termination of this License Agreement. 4. Payment for Parkiru~ Queue Spaces. LICENSEE agrees to pay the CITY Sixty dollars {$b0.00} per month, per parking queue space utilized by the 10th of each month. A late fee of 5% will be charged after this date. If more than one License Agreement is issued for the queues, the fee will be shared proportionately. 5. Si~na~e. The CITY agrees to post the valet parking queue spaces with valet parking tunes and days authorized. Sandwich board signs may not be used to advertise the valet service. Advertising signs will be allowed as prescribed by the City's Manager or his designee. 6. Valet Serviced Vale# Equipment. The LICENSEE'S operator may far the storage of keys install a moveable, temporary, valet desk on the sidewalk, either public or private, during the-hours of valet service so long as the desk does not impede the pedestrian flow. 7. Term and Renewal The term of this Agreement shall be for one year from the date written above. The License may be renewed by the City Manager following receipt of a written notice frarn LICENSEE that LICENSEE desires to continue using the parking spaces for valet parking queue, if the City Manager determines in his sole discretion that the renewal is in the best interests of the CITY. The City Manager may add additional provisions to this agreement upon renewal, including but not limited to, the requirement to use an off-duty police off cer during the time and dates the City Manager deems advisable. 2 t 8. Revocable License_ This Agreerent is only anon-exclusive License Agreement and may be revoked by the CITY at anytime with or without cause during the initial term or any renewals thereof upon providing written notice via U.S. Mail to LICENSEE. The revocation shall be effective when mailed. 9. Compliance with Laws. LICENSEE and hislher employees agents, representatives and/or subcontractors agree to comply and adhere to all state Taws and local ordinances regarding traff c and parking that exist or as amended from time to time. LICENSEE further acknowledges that due to the high traffic in this area, double parking unattended vehicles will not be permitted. 10. Notice. Notices required to be provided pursuant to this Agreement shall be sent to the following addresses: To CITY: David T_ Harden, City Manager 100 N.W_ 1st Avenue Delray Beach, Florida 33444 To LICENSEE: Mr. Fran Marincola Caffe Luna Rosa 36 S. Ocean Blvd. / Apt A - 1 Delray Beach, FL. 33483 11. Insura~aee. LICENSEE agrees to provide the CITY insurance for the valet service in the amounts and under the conditions prescribed in Exhibit A which shall at. all rimes remain current. The City of Delray Beach shall be named an additional insured. 12. Indemnification. In consideration of the payment of Ten Dollars ($10.00), receipt of which is hereby acknowledged, LICENSEE shall protect, defend, indemnify and hold harmless the CITY from and against any and all claims, suits, actions, damages and/or causes of action arising during the Term of this Lease for any personal injury, loss of life and/or damage to property sustained in or about the parking spaces/queues by reason or as a result of the use and occupancy of the parking spaces/queues by LICENSEE, its agents, employees, licensees, invitees, and members of the public generally, and from and against any orders, judgments, and/or decrees which may be entered thereon, and from and against all costs, attorney fees, expenses and liabilities incurred in and about the defense of any such claim. In the event the 3 CITY shall be made a party to any litigation commenced against LICENSEE or by LICENSEE against any third party, then the LICENSEE shall protect, defend, indemnify and hold the CITY harmless and pay all costs and attorney's fees incurred by the CITY in connection with such litigation, and any appeals thereof. 13. Third Parties. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement upon any person other than the parties hereto and their respective heirs, successors, legal representatives,, and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision thereof give any third person any right of subrogation or action over ar against any party to this Agreement. 14. Penalties for Violations/Termination. Penalties will be imposed upon the LICENSEE for: {1) Valet parking ofcars in either on-street oroff-street public parking spaces; and/or {2) Valet parking of cars in the designated parking queues; and/or {3) Expanding the designated parking queues area. The penalty schedule for the above violations is as follows: 1st violation - warning 2nd violation - $200 3rd violation - $500 4th violation -- Termination of License Agreement Notices of violation will be written by a Police Department representative and will be sent to the LICENSEE with a copy to the City Manager_ Failure to make payment within thirty {30) days of receipt of the notice will result in termination of the agreement. LICENSEE acknowledges, however, notwithstanding the foregoing that the CITY may terminate this non-exclusive License Agreement without cause or for cause. LICENSEE will at all times comply with the City's policy/procedure for use of public parking spaces/queues which shall change from time to time subject to the sole discretion of the City. 4 15. Taxes. LICENSEE shall pay and comply with all laws regarding taxes, levies, assessments, fees and charges; including, but not limited to gross receipts, taxes, use taxes, property taxes, and sales taxes that maybe imposed. 16. Assignment. This Agreement shall not be transferred ar assigned without the express written consent of the CITY, which the CITY may withhold grants in its sole discretion, 17. Further Assurances. The parties shall from time to time execute and deliver such other and further instruments and documents and do ail matters and things which may be convenient or necessary to mare effectively and completely carry out the intent of this Agreement. 18. Binding Effect. All of the terms and .provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective heirs, successors, legal representatives, and permitted assigns. 19_ Entire A~reemeut. This Agreement shall constitute the entire agreement of the parties with respect to the subject matter of it. A11 prior understandings and agreements between the parties with respect to such matters are merged into this Agreement, which alone fully and completely expresses their understanding_ 24. Amendments. This Agreement may not be amended, modified, altered, or charged in any respect, except 6y a further agreement in writing duly executed by each of the parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on their behalf this~~day of~t,~ , 24Q~ ATTEST: ~` ~. \V ~ity Clerk THE CITY OF DELRAY BEACH, a Florida Municipal Corporation r By: ~ dom. ~'effPerlman, ayor Approved as to form: ~~~ ~.~~~,,City Attorney 5 {CORPORATE SEAL} By: Name ' ted• ~~~ Titl STATE OF COUNTY OF G~ f The foregoing instrunnezrt was acknowledged before nrre thi~~~day of 2001, by as i~~~ ~~~ {name of officer or agent, title of off cer or agent), of (Warne of corparation acknowledging), a (state or place of incorporation} corporation, on behalf of the corporation He he ersonally lo~own #o or has produced (type of identification) as identifica#xon. Sign e of Not lic -State of Florid iIRY Pu IUA4BF.IiLY THOMAS E7fPIRES: Fe~aty 4, 208 .. `~'a~,~ri~°t Bonded'fM~uBudgetttoi~ySahke"s EXHIBIT A INSURANCE REQUIREMENTS FORM 1. Workers' Compensation per the Statutory limits of the State of Florida to include . Employer's Liability Insurance with limits of at least $100,0001$500,0001$100,000. 2. Garage Liability Insurance of at least $1,000,000 combined single limits per occurrence to protect the City against ali risks of injury to persons {including death} or damage to property wherever located resulting froaa any. action or operation under the contract or in connection with the work. ~ This policy is to provide coverage for premises/operations including auto liability, independent contractors, broad form contractual liability, products/completed operations. 3. Garage Keepers Insurance with linz.its of no less thazz $60,000 per auto, with an annual aggregate of $500,000. 4. Automobile Liability of at least $300,000 combined single limits per occurrence for owned/non-owned/hired automobiles connected with the business. 5. The City of Delray Beach and PRIVATE LOT OWNERS must be Warned as additional insured on the liability policies; and it must be stated an the certificate. b. Thirty {30) days written cancellation notice required. 7. Best's guide rating B+, VIII or better, latest edition. 7 EXHYBYT "B" INSi]RANCE REQUIREMENTS FARM 1. Workers' Compensation per the Statutory limits of the State of Florida to include Employer's Liability Insurance with limits of at least $100,0001$500,0001$1[30,000. 2. Garage Liability Insurance of at least $1,000,000 combined single limits per occurrence to protect the City against all risks of injury to persons (including death} or damage to property wherever located resulting from any action or operation under the contract or in connection with the work. This policy is to provide coverage far premises/operations including auto liability, independent contractors, broad farm contractual liability, productslcompleted operations. 3. Garage Keepers Insurance with limits of no less than. $60,000 per auto, with an annual aggregate of $500,000. 4. Automobile Liability of at least $300,000 combined single limits per occurrence for owned/nan-owned/hired automobiles connected with the business. 5. The Ciry of Delray Beach and First Presbyterian Church must be named as additional insureds on the liability policies; and they must be stated on the certificate. 6. Thirty (30) days written cancellation notice required. 7. Best's guide rating B+, VIII or better, latest edition. 7 N N ~--~ _N O J N U MEMORANDUM TO: Mayor and City Commissioners FROM: Chevelle D. Nubia, City Clerk THROUGH: David T. Harden, City Manager DATE: February 10, 2009 SUBJECT: AGENDA ITEM 8.C. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 APPROVAL OF POLL WORKERS FOR THE MARCH 10, 2009 MUNICIPAL ELECTION ITEM BEFORE COMMISSION This is before the City Commission to approve the list of poll workers for the First Nonpartisan election to be held on March 10, 2009, and to direct the City Clerk to select a sufficient number of Clerks, Assistant Clerks, Inspectors and Precinct Advisors from the list to work during the election, pursuant to Section 34.02 of the City Code. BACKGROUND The list is attached for your review. RECOMMENDATION Recommend approval of the poll workers with direction to the City Clerk to select a sufficient number of workers for the municipal election to be held on March 10, 2009. City of Delray Beach Poll Workers Precinct Precinct Name Voters Po!! Worker Position Name 4060 505 Club 2,415 Assistant Clerk Mr. Charles Heiferman 4060 505 Club 2,415 Clerk Mrs. Elaine Joy Moran 4060 505 Club 2,415 Inspector Mr. Benjamin Beberman 4060 505 Club 2,415 Inspector Mr. Robert Finestone 4050 505 Club 2,415 Inspector Mrs_ Doris Lessner 4060 505 Club 2,415 Precinct Advisor Alice Pace 4070 505 Club 646 Inspector Mr. Richard Gallo 4070 505 Club 646 Inspector Ms. Luise Plane 4070 505 Club 646 Inspector Ms. Renee Blum 4166 Abbey Delray South 2,659 Assistant Clerk Eugene Singer 4166 Abbey Delray South 1,659 Clerk Mr. Paul Siegal 4166 Abbey Defray South 1,659 inspector Barbara Green 4166 Abbey Delray South 1,659 Inspector Mr. Eugene Rasoff 4166 Abbey Delray South 1,659 Inspector Ms. Lufa Hayes 4166 Abbey Delray South 7,659 Inspector Ms. Roselyn Cohen 4166 Abbey Delray South 4,659 Precinct Advisor Ms. Helen Fett 4012 Barwick Road Baptist Church 1969 Assistant Clerk Mr. Fred Cirlin 4012 Barwick Road Baptist Church 1969 Clerk Mr. Arnold Sobel 4012 Barwick Road Baptist Church 1969 Inspector Mr. Jerome Schulman 4012 Barwick Road Baptist Church 1969 Inspector Mr. Robert Levine 4092 Barwick Road Baptist Church 7969 Inspector Mrs. Elaine Bloomborg 4012 Barwick Road Baptist Church 1969 fnspector Mrs. Rochelle Kramer 4012 Barwick Road Baptist Church 1969 Inspector Mrs. Roma Freilich 4012 Barwick Road Baptist Church 1969 Inspector Ms. Etta Appelbaum 4012 Barwick Road Baptist Church 1969 Precinct Advisor Ms. Shirley Bellamy 4082 Boca-Delray Church of Christ 2,760 Assistant Clerk Mrs. Marilyn Shapira 4082 Boca-Delray Church of Christ 2,160 Clerk Ms. Bombina Marrone 4082 Boca-Delray Church of Christ 2,760 Inspector Mr. Calvin Dever 4082 Boca-Delray Church of Christ 2,160 fnspector Mr. Matt Atkinson 4082 Boca-Delray Church of Christ 2,160 Inspector Mrs. Linda Pesale 4082 Boca-Delray Church of Christ 2,160 Inspector Ms. Francine Freid 4082 Boca-Delray Church of Christ 2,160 Inspector Rhonda Bornstein 4082 Boca-Defray Church of Christ 2,160 Inspector Yvonne Walker 4082 Boca-Delray Church of Christ 2,'160 Precinct Advisor Linda Fleetwood Tuesday, February ]o, 2Ut79 ~ Page 1 of 5 City of Delray Beach Poll Precinct Precinct Nume Voters Po!! Worker Position Workers Nume 7142 Church of the Palms 1,015 Clerk Mr. Jahn McGovern 7142 Church of the Palms 1,015 Inspector Josephine Perino 7142 Church of the Palms 1,015 Inspector Mrs. Betty Dofinsky 7142 Church of the Palms 1,015 Inspector Mrs. Syrietta Kalla 7142 Church of the Palms 1,015 Inspector Ms. Lilyan 13. Kanir 7142 Church of the Palms 1,015 Precinct Advisor Kathleen O'Donnell 4050 Country Manors Clubhouse 1,062 Clerk Ms. Darlene Schmidt 4050 Country Manors Clubhouse 1,062 Inspector Mr. Paul Harrison 4050 Country Manors Clubhouse 1,062 Inspector Ms. Gloria Schulman 4050 Country Manors Clubhouse 1,062 Inspector Ms. Sylvia Centner 4050 Country Manors Clubhouse 1,062 Precinct Advisor Ms. Doris Goldberg 4018 Delray Adult Recreation Center 1,026 Assistant Clerk Mrs. Edith Frankel 4018 Delray Adult Recreation Center 1,026 Clerk Rose H. Davis 4018 Delray Adult Recreation Center 1,028 Inspector Ms. Marceline Steinberg 4018 Delray Adult Recreation Center 1,026 Inspector Ms. Sylvia Blumenthal 4048 Delray Adult Recreation Center 1,448 Inspector Mr. Morton Klibonoff 4048 Delray Adult Recreation Center 1,448 Inspector Ms. Mary W. Lurvey 4048 Delray Adult Recreation Center 1,448 Inspector Ms. Shirley Roth 4048 Delray Adult Recreation Center 1,448 Precinct Advisor Mr. Ross Zito 7144 Delray Beach Community Center 228 Assistant Clerk Mrs. Lonni Laikin 7144 Delray Beach Community Center 228 Clerk Mr. Gerry Franciosa 7744 Delray Beach Community Center 228 Inspector Mr. Michael Frankel 7144 Defray Beach Community Center 228 Inspector Mrs. Arlene Sobel 7144 Delray Beach Community Center 228 Inspector Mrs. Marilyn Gerber 7144 Delray Beach Community Center 228 Inspector Ms. Doris Hannum 7144 Delray Beach Community Center 228 Inspector Ms. Helen Rodrigues 7144 Delray Beach Community Center 228 Precinct Advisor Janell E. Dowdell 7168 Delray Beach Community Center 2601 Inspector Mrs. Esther Huesca 4062 Delray Beach First Baptist Church 1,961 Inspector Mr. Gilbert Berliner 4062 Delray Beach First Baptist Church 1,961 Enspector Mr. Neil E. Preston 4062 Delray Beach First Baptist Church 1,961 Inspector Mrs. Jean Alter 4072 Delray Beach First Baptist Church 2,149 Precinct Advisor Mr. Rafael Huesca, Jr. 4076 Delray $each First Baptist Church 1,115 Assistant Clerk Mr. Calvin Hermann 407fi Delray Beach First Baptist Church 1,115 Clerk Mr. Joel A. Josephs 4076 Delray Beach First Baptist Church 1,415 Inspector Mr. Melvin Gorenstein _.... , . Tuesdny, February l o, 2009 ~ Page 1 of 5 Precinct City of Delray Beach Poll Precinct Name Voters Poll Worker Position Workers Name 4076 Delray Beath First Baptist Church 7,115 Inspector Mr. Norman Laufer 4076 Delray Beach First Baptist Church '[,115 Inspector Ms. Carole Appelbaum 4058 Delray Beach Golf Club 1,414 Assistant Clerk John Maksim 4058 Delray Beach Golf Club 7,414 Clerk Mr. Robert Gross 4058 Delray Beach Golf Club 1,414 Inspector Mr. Jason Shapiro 4058 Delray Beach Golf Club 1,474 Inspector Mr. Richard P. Friedman 4058 Delray Beach Golf Club 1,474 Inspector Mr. Stanford Kalla 4058 Delray Beach Golf Cluh 1,414 Inspector Mrs. Miriam Weinstein 4058 Delray Beach Golf Club 1,414 Inspector Mrs. Roberta Miles 4058 Defray Beach Golf Ctub 1,414 Inspector Ms. Barbara Harrison 4058 Defray Beach Golf Club 1,414 Precinct Advisor Virginia T. Leonard 4080 Lake Delray Apartments 1,203 Clerk Mr. Irving Roth 4080 Lake Delray Apartments 4,203 inspector Lila Brushman 4080 Lake Delray Apartments 7,203 Inspector Marion Markley 4080 Lake Delray Apartments 1,203 Inspector Mrs. Ellen Frank 40$0 Lake Delray Apartments 1,203 Inspector Mrs. Hope Elaine Farber 4x80 Lake Delray Apartments 1,203 Precinct Advisor Ms. Linda Lioberman 4064 Orchard View Elementary School 1,037 Clerk Ms. Phyllis Berle 4064 Orchard View Elementary School 4,037 inspector Mr. Alfred Ryer 4054 Orchard View Elementary Sthaol 9,037 Inspector Mr. Les Frank 4064 Orchard View Elementary School 1,037 Inspector Mr. Stanley 5altz 4064 Orchard View Elementary School 1,037 Inspector Mrs. Anita Berliner 4064 Orchard View Elementary School 1,037 Precinct Advisor Mr. Lawrence J. Diou 4466 Pines of Delray East 407 Clerk Mrs. Fran Rowland 4066 Pines of Delray East 407 Inspector Mr. Lowell Krokoff 4066 Pines of Delray East 407 Inspector Mr. Paul Pesale 4066 Pines of Delray East 407 Inspector Mr. Ralph D'Annucci 4066 Pines of Delray East 407 Inspector Ms. Marilyn Friedman 4066 Pines of Delray East 407 Precinct Advisor Mr. Robert Fox 4014 Pines of Defray N Clubhouse 660 Clerk Mr. William Kramer 4014 Pines of Delray N Clubhouse 660 Inspector Louis Bornstein 4014 Pines of Delray N Clubhouse 660 Inspector Ms. Donna Zorn 4014 Pines of Delray N Clubhouse 660 Inspector Ms. Sylvia Cassino 4074 Pines of Defray N Clubhouse S60 Precinct Advisor Mr. Norton Rosenberg 7954 Pompey Park Recreation Center 1,8$3 Assistant Clerk LaToya Crawford _ _ r Pa e ~ ~, -.,-: Tuesday, February 10, 2009 g of S City of Delray Beach Poll Workers Precinct Precinct Name Voters Poll Worker Position Name 7154 Pompey Park Recreation Center 1,883 Clerk Ms. Rosena Miley 7154 Pompey Park Recreatian Center 1,883 Inspector Dorothy Payne 7154 Pompey Park Recreation Center 1,883 Inspector Ms. Mary Wright 7154 Pompey Park Recreation Center 1,883 Inspector Ms. Vera Farrington 7454 Pompey Park Recreation Center 1,883 Inspector Richard Dorsey 7154 Pompey Park Recreation Center 1,883 Precinct Advisor James Wilson 4052 St. Paul's Episcopal Church 1,357 Inspector Ms. Ilene Soyt 4052 St. Paul's Episcopal Church 1,357 Inspector Ms. Veronika Morvai 4084 St. Paul's Episcopal Church 1,992 Assistant Clerk Ms. Freyda Nussdorf 4084 St. Paul's Episcopal Church 1,992 Clerk Mrs. Susan Litchfield 4084 St. Paul's Episcopal Church 1,992 Inspector Mr. Jatk Lessner 4084 St. Paul's Episcopal Church 1,992 Inspector Mr. Ladislaus Bondor 4084 5t. Paul's Episcopal Church 1,992 Inspector Ms. Horty Singer 4084 St. Paul's Episcopal Church 1,992 Inspector Ms. Louise Edwards 4084 5t. Paul's Episcopal Church 1,992 Inspector Ms. Ruth Kahn 4084 5t. Paul's Episcopa! Church 1,992 Precinct Advisor Mr. Phillip Dolinsky S Standby Assistant Clerk Ms. Basia McDonnell S Standby Clerk Mr. Bill Weinstein S Standby Clerk Mr. Jerry Kern S Standby Clerk Mr. Leonard Brozgold S Standby Clerk Mrs. Gloria Brazgold S Standby inspector Mr. Anthony Mendillo S Standby Inspector Mrs. Linda Firestein S Standby Inspector Ms. Gloria Camarco 7150 Temple-Sinai-Garden Room 1,920 Assistant Clerk Ms. Annette Weinreb 7150 Temple-Sinai-Garden Room 1,920 Clerk Ms. Eileen Marks 7150 Temple-Sinai-Garden Roam 1,920 Inspector Mr. Allan Laikin 7150 Temple-Sinai-Garden Room 1,920 Inspector Mr. Kenneth Leiner 7150 Temple-Sinai-Garden Room 1,92D Inspector Mr. Marvin Bressler 7150 Temple-Sinai-Garden Room 1,920 Inspector Mrs. Celia Levine 7450 Temple-Sinai-Garden Room 1,920 Inspectar Ms. Eleanore R. Kresch 7150 Temple-Sinai-Garden Room 1,920 Inspector Ms. Rose N. Port 7150 Temple-Sinai-Garden Room 1,920 Precinct Advisor Ms. Elizabeth J. Thomas 7166 Village Academy 1,948 Assistant Clerk Betty J. Grover 7166 Village Academy 1,948 Clerk Ms. Ruth Davis Tuesday, February 10, 2009 Page 4 of S Precinct City of Delray Beach Poll Precinct Name Voters Pall Worker Position Workers Name 7166 Village Academy 1,948 Inspector Mary Howard 7166 Village Academy 1,948 Inspector Mr. Fred Ash 7166 Village Academy 1,948 Inspector Mr. 12ene Louis 7165 Village Academy 7,948 Inspector Ms. La Vira B. Brin 7166 Village Academy 1,948 Precinct Advisor Lisa B. Dean 4056 West Park Baptist Church 574 Glerk Mr. David Forest 4056 West Park Baptist Church 574 Inspector Mr. Harry Alter 4056 West Park Baptist Church 574 Inspector Mr. Martin Meltzer 4056 West Park Baptist Church 574 Inspector Ms. Alice Schultz 4056 West Park Baptist Church 574 Precinct Advisor Mr. Alvin Heckler ~_ _ Tuesday, February 1 Q 2009 Page 5 of 5 MEMORANDUM TO: Mayor and City Commissioners FROM: Terrill C. Pyburn, Assistant City Attorney THROUGH: Susan A. Ruby, City Attorney DATE: February 2, 2009 SUBJECT: AGENDA ITEM 8.D. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 FUNDING AGREEMENT/COMMUNITY REDEVELOPMENT AGENCY (CRA)/ECONOMIC DEVELOPMENT DIRECTOR ITEM BEFORE COMMISSION A Funding Agreement between the City of Delray Beach and the Delray Beach Community Redevelopment Agency for funding of the Economic Development Director position. BACKGROUND The attached Funding Agreement provides that the City and the CRA desire to participate together in funding a position entitled Economic Development Director. The Economic Development Director would be employed by the CRA with seventy-five percent (75%) of salary and benefits to be paid by the CRA and twenty-five percent (25%) of salary and benefits to be paid by the City with a maximum salary of Ninety Thousand Dollars ($90,000.00). The Director position shall be dedicated to economic development within the City of Delray Beach. The agreement provides for a two (2) year term subject to budget restrictions and approvals. FUNDING SOURCE 001-6311-559-82.01 RECOMMENDATION The City Attorney's Office recommends City Commission discretion. FUNDING AGREEMENT BETWEEN THE CITY OF DELRAY BEACH AND THE DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY THIS AGREEMENT is made this day of , 20Q9, by and between the DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY hereinafter referred to as the "CRA"), and the CITY OF DELRAY BEACH, hereinafter referred to as the "City". WITNESSETH: WHEREAS, increasing economic development within the City of Delray Beach is essential to maintain a vibrant and competitive community; and WHEREAS, the CRA and the City desire to work to further the economic development within the City in a more cohesive collaborative and streamlined manner; and WHEREAS, the City's Home Rule Power allows and F.S. §166A21 {9) expressly provides that. the expenditure ofi public funds for economic development is a valid public purpose; and WHEREAS, the expenditure of public funds for economic development within the CRA Redevelopment Area is consistent with the CRA's powers pursuant to Section 163.370, Florida Statutes, and the CRA's Redevelopment Plan; and WHEREAS, the CRA and the City desire to participate together in funding a position dedicated to economic development within the City of betray Beach. NOW, THEREFORE, in consideration of the promises and covenants herein contained, the parties agree as follows: 1. Recitations. The recitations set forth above are incorporated as if fully set forth herein. 2. Position. The CRA and the City, pursuant to the terms and conditions contained herein agree to contribute funds in order to provide for the creation of a new employment position entitled Economic Development Director, hereinafter referred to as the Director". The Director shall be employed by the CRA. 3. Employee of the CRA -Duties of the CRA. The Director shall report directly to the CRA's Executive Director, and shall formulate, recommend, and carry. out policies relative to business development, business retention, and business enhancement strategies and programs within the CRA Redevelopment Area and other identified business districts within the City. The CRA, as the employer, shall provide for and pay for al! employee benefits, assume ap duties and responsibilities to direct all employment duties and responsibilities of the Director The City's participation in providing funds to the CRA #o assist with the funding of the Director position shat! not constitute an employerlemployee relationship between the City and Director. The CRA shall provide office space for the Director. 4. Duties and Responsihilities. The duties and responsibilities of the Director shall be to formulate, recommend, and carry out policies relative to business development, business retention, and business enhancement strategies within the CRA Redevelopment Area and other identified business districts within the City by performing tasks including but not limited to the following: 2 (a) Assist in the development of goals and plans to improve the Ci#y's revenue growth, create new jobs, and promote awell-balanced and sustainable local economy. (b} Identify potential negative impacts to the local economy through close communication with stakeholders, including Local key employers and developers. Strategies shall be implemented tv reduce or elimina#e such obstacles where feasible. (c) Coordinate with other agencies and organizations such as the Business Development Board, Workforce Alliance, etc. on regional economic development activities as well as working with other appropriate government agencies, bankers, real estate and commercial brokers acting as a liaison to facilitate productive interactions with the City of Delray Beach. (d) Prepare and maintain demographic,. market and vacant land database. (e) Work with Commercial Realtors and others to assess and analyze current availability of space for retail, office and industrial use. Update, publish, and disseminate data to commercial real estate professionals at regular intervals (f) Meet, confer and provide de#ailed information to new businesses contemplating a relocation or expansion into Delray Beach. (g) Assist in the marketing and negotiations for development of CRA- owned properties. (h) Serve as a resource for the public, including the development community, businesses, property owners, community organizations and make public presentations to help educate focal residen#s, the business community, and City of Delray Beach staff about the benefits of a planned economic development effort. (i) Negotiate and assists in the resolution of issues related to permitting and development. (j) Review and analyze requests from businesses for financial or technical assistance and help facilitate the request through proper channels. (k) Respond to inquiries regarding economic data, trends and resources such as industrial and commercial development opportunities. (I) Conduct special studies and prepare comprehensive reports rela#ed to business development issues. (m) Represent the City with outside agencies or private developers and o#her interested parties. (n) Write, justify and budget for annual requests for CRA and City funding for economic development to include private fund raising through the Chamber of Commerce to support Delray's economic 3 development marketing plans and overall economic development efforts. (o) Make appropriate monthly and annual status presentations far CRA, Chamber, City and others as necessary. (p) PerForm related duties as assigned. 5. Pa ment to be Made Towards Fundin the Economic Develo ment Director Position. The CRA and the City acknowledge that the CRA's ability to fund the Director's position is limited to the extent that the Director provides services with respect to economic development activities within the Community Redevelopment Area.. In recognition of the CRA's funding limitations, the CRA shall only pay seventy=five percent (75%) of the Director's salary per year, The City shall pay to the CRA twenty- five percent (25%) of the Director's salary per year. The monies shall be paid at the start of each quarter in pro rata increments. The first pro rata payment shall be due March 1, 2009, if a Director is hired by the CRA. if a Director is not hired by March 1, 2009, the quarterly payments will commence on the first day of the month after the Director is hired on a pro rata basis. The Director's salary shall not exceed Ninety Thousand Dollars ($90,000.00) per year. The CRA and the City agree to meet on a regular basis to insure that the funding of the position is properly shared by the CRA and the City in proportion to the Director's duties and responsibilities as they relate to economic development within the Community Redevelopment Area and the City as a whole. 6. Term of Agreement. This Agreement shall be for a two (2) year period commencing March 1, 2009. The funding promised herein is subject to budget 4 restrictions and approvals. The Agreement may be extended for one {1) year periods if approved by the City and the CRA. 7. Recording. This Agreement shall be filed pursuant to the requirements of Section 163.01(11) of the Florida Statutes. 8. Entire A reement. No prior or present agreements or representation with regard to any subject matter contained within this Agreement shall be binding on any party unless included expressly in this Agreement. Any modification to this Agreement sha11 be in writing and executed by the parties. 9, Severab`rlity. The validity of any portion, article, paragraph, provision, clause, or any portion thereof of this Agreement shall have no force and effect upon the validity of any other part of portion hereof. 10. Governing Laws; Venue. This Agreement shall be governed by and in accordance with the Laws of Florida. The venue for any action arising from this Agreement shall in Palm Beach County, Florida. 11. Assignability. Neither the City nor the CRA shall assign or transfer any rights or interest in this Agreement. 12. Validi of A reement. This Agreement shall not be valid until signed by the Mayor of the City of Delray Beach and the City Clerk and the Chairman of the CRA. ATTEST: City Clerk Approved as to Form: City Attorney CITY OF DELRAY BEACH, FLORIDA By: Rita Ellis, Mayor (SEAL) 5 ATTE T: ;1.~- CQMMUNiTY REDEVELOPMENT AGENCY By: Print ame: v~ c Title: (SEAL) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this Id ~ day of -~. ~ 2 rt- , 2009, by -~ ~.- w / ~~- ~ as ~' ~r~ yti ~ -/ „ , of ~ € c. ~z~ Q €~G~ C 2 ~- corporation, on behalf of the corporation. HelShe is personally known to me or has produced f as identification. Nota ubl'tc - State o iorida ~av r.. ~ . nr?aasa56 ~ r .~ s r ;'.1304 6 MEMORANDUM TO: Mayor and City Commissioners FROM: Linda Karch, Director of Parks and Recreation THROUGH: David Harden, City Manager DATE: February 9, 2009 SUBJECT: AGENDA ITEM 8.E. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 FUNDING AGREEMENT/PALM BEACH COUNTY/DELRAY ROCKS YOUTH FOOTBALL AND CHEERLEADER ANNUAL TRIP ITEM BEFORE COMMISSION Request approval of an Agreement with Palm Beach County for reimbursable funding, not-to-exceed $3,600, through the Recreation Assistance Program (RAP) for the Delray Rocks football and cheerleaders end of the year trip. BACKGROUND The Delray Rocks Youth Organization Program offers its annual end of the year trip to the football players and cheerleaders who range in age from 6 - 15 years. The trip is a reward for the team for their accomplishments during the season. This year's trip was to Orlando, Florida, to attend the Captial One Bowl and to go to Universal Studios, which took plance from January 1 through January 3, 2009. Approximately seventy five (75) youth participated in the year end trip. Delray Rocks' year end trip cost approximately $6,500 for commercial buses and transportation, hotel rooms, meals, and other miscellaneous expenses. RECOMMENDATION Parks and Recreation Department recommends approval of the Agreement with Palm Beach County for a reimbursable amount up to $3,600. AGREEMENT BETWEEN PALM BEACH COUNTY AND THE CITY OF DELRAY BEACH FOR FUNDING OF THE DELRAY ROCKS YOUTH ORGANIZATION FOOTBALL YEAR END TRIP THIS AGREEMENT is made and entered into on , by and between Palm Beach County, a political subdivision of the State of Florida, hereinafter referred to as "County", and the City of Delray Beach, a Florida Municipal Corporation, hereinafter referred to as "Delray Beach". WITNESSETH; WHEREAS, Delray Beach sponsors the Delray Racks Youth Organization Program, which operates out of Pompey Parkin Delray Beach; and WHEREAS, participants in Delray Rocks' fiontbail and cheerleader program are provided with a yearend trip afterthe end of the football season to provide a pasitive outletforthe youth who participated in the program; and Capital One Bowl WHEREAS, this year's trip was to Orlando, Florida, to attend the E~ator-Bowl and go to Universal Studios, which took place from January 1 through January 3, 2009; and WHEREAS, approximately seventy five (75) youth participated in the year end trip; and WHEREAS, Delray Rocks' year end trip.cost approximately $6,500 for commercial buses and transportation, hotel rooms, meals, and other miscellaneous expenses; and WHEREAS, Delray Beach has requested from County an amount not to exceed $3,600 to help offset costs for trip expenses; and WHEREAS, County desires to provide funding to help offset costs for the Event; and WHEREAS, funding for the Event in an amount not to exceed $3,600 is available from the Recreation Assistance Program (RAP} _ District 7; and WHEREAS, Delray Beach's recreational programs are deemed to serve a public purpose; and WHEREAS, both parties desire to enter into this Agreement. NOW THEREFORE, in consideration of the covenants and promises contained herein, the parties hereby agree to the following terms and conditions: 1. County agrees to fund an amount not to exceed $3,600 to Delray Beach for Event casts for commercial buses and transportation, hotel rooms, meals, and other miscellaneous expenses, as specifically set forth in Exhibit "A", attached hereto and incorporated herein, hereinafter referred to as the "Project". 1 2. County will use its best efforts to provide said funds to Delray Beach on a reimbursement basis within forty-five (45) days of receipt of the following information: a. A written statement that the Project, as specified herein, was carried out in accordance with this Agreement; and b. A Contract Payment Request Form and a Contractual Services Purchases Schedule Form, attached hereto and made a part hereof as Exhibit "B", which are required for each and every reimbursement requested by Delray Beach. Said information shall list each invoice paid by Delray Beach and shall include the vendor invoice number; invoice date; and the amount paid by Delray Beach along with the number and date of the respective check or proof of payment for said payment. Delray Beach shall attach a copy of eaoh vendor invoice paid by Delray Beach along with a copy of the respective check or proof of payment and shall make reference thereof to the applicable item listed on the Contractual Services Purchases Schedule. Further, Delray-Beach's Program Administrator and Project Financial Officer shall certify the total funds spent by Delray Beach on the Project and shall also certify that each vendor invoice, as listed on the Contractual Services Purchases Schedule was paid by Delray Beach and approved by Delray Beach as indicated. 3. Delray Beach incurred expenses for the Project beginning on December 1, 2008. Those costs incurred by Delray Beach for the Project, approved and submitted accordingly by Delray Beach subsequent to December 1, 2008, are eligible for reimbursement by County pursuant to the terms and conditions hereof. 4. RAP funds maybe used as a match for other local, state, or federal grant programs, but Delray Beach may not submit reimbursement requests for the same expenses to the Courity as other fund sources to receive duplicate reimbursement for the same expenses. 5. Delray Beach agrees, warrants, and represents that all of the employees and participants in the Project were treated equally during employment, and for the provision of services without regard to residency, race, color, religion, disability, sex, age, national origin, ancestry, marital status, sexual orientation, gender identity, ar expression. 6. Delray Beach shall be responsib{e for the operation and maintenance of the Project, including all associated Project costs. 7. The term of this Agreement shall be until July 30, 2009, commencing upon the date of execution by the parties hereto. 2 8. The parties agree that, in the event Delray Beach is in default of its obligations under this Agreement, the County shall provide Defray Beach thirty (30j days written notice to cure the default. In the event Delray Beach fails to cure the default within the thirty (30) day cure period, the County shall have no further obligation to honor reimbursement requests submitted by Delray Beach forthe Project deemed to be in default and Delray Beach shall return any County RAP funds already collected by Delray Beach for the Project. 9. [~lotwithstanding any provision of this Agreement to the contrary, this Agreement maybe terminated bythe County, without cause, upon thirty (30) days prior written notice to the other party. This Agreement may be terminated by the County with cause, upon expiration of the thirty (30) day cure period provided far in Section 8 above. 10. Delray Beach must complete the Project by April 30, 2009 and invaices and checks submitted for reimbursement must be dated within the project time frame of December 1, 2008, through April 30, 2009, Delray Beach shall provide its final reimbursement request(s), including a project completion statement and reimbursement documentation as indicated in Section 2 above on or before July 30, 2009. Upon written notification to County at least ninety {90) days priorto thatdate Delray Beach may request an extension beyond this period for the purpose of completing the Project. County snail not unreasonably deny Delray Beach's request for said extension, 11. In the event Delray Beach ceases to exist, or ceases or suspends the Project for any reason, any remaining unpaid portion of the Agreement shall be retained by County, and County shall have no further obligation to honor reimbursement requests submitted by Delray Beach. The determination that Delray Beach has ceased or suspended the Project shall be made by County and Delray Beach agrees to be bound by County's determination. 12. Delray Beach agrees to abide by, and be governed by, all applicable federal, state, county, and municipal laws, including but not limited to, Palm Beach County's ordinances, as said laws and ordinances exist and are amended from time to time. In entering into this Agreement, Palm Beach County does not waive the requirements of any County or local ordinance or the requirements of obtaining any permits or licenses normally required to conduct business or activity conducted by Delray Beach. Failure to comply may result in County's refusal to honor reimbursement requests for the Project. 13. County reserves the right to withhold reimbursement if the Project is not completed as specified in Exhibit "A". 14. It is understood and agreed that Delray Beach is merely a recipient of County funding 3 and is an independent contractor and is not an agent, servant or employee of County or its Board of County Commissioners. It is further acknowledged that the County only contributes funding under this Agreement and operates no control over the Project. To the extent permitted bylaw and without waiving the right to sovereign immunity as provided by Section 768.28, Florida Statutes, in the event a claim or lawsuit is brought against County or any of its officers, agents or employees, Delray Beach shall indemnify, save and hold harmless and defend the County, its officers, agents, and/or employees from and against any and all claims, liabilities, lasses, judgments, and/or causes of action of any type arising out of or relating to any act or omission of Delray Beach, its agents, servants and/or employees in the performance of this Agreement. The foregoing indemnification shall survive termination of this Agreement. Inconsideration for reimbursement of costs incurred prior to the term of this Agreement, the foregoing indemnification shall apply not only during the term of this Agreement but also for the period prior to the Agreement for which Delray Beach is eligible to receive reimbursement from the County. 15. Without waiving the right to sovereign immunity as provided by Section 768.28, Florida Statutes, Delray Beach acknowledges to be self-insured for General liability and Automobile Liability under Florida sovereign immunity statutes with coverage limits of $100,000 Per Person and $200,000 Per Occurrence; or such monetary waiver limits that may change and beset forth by the legislature, In the event Delray Beach maintains third-party commercial Genera] Liability and Business Auto Liability in lieu of exclusive reliance onself-insurance under Section 768.28, Florida Statutes, Delray Beach shall agree to maintain said insurance policies at limits no# less than $500,000 combined single limit far bodily injury or property damage. Delray Beach agrees to maintain or to be self-insured for Worker's Compensation & Employer's Liability insurance in accordance with Florida Statutes 440. Prior to execution of this Agreement by the County, Delray Beach shall deliver to the County an affidavit or Certificate of Insurance evidencing insurance, self-insurance, and/or sovereign immunity status, which County agrees to recognize as acceptable for the above mentioned coverages. Certificate holder's address shall read Palm Beach County, c/o Parks and Recreation Department, 2700 Sixth Avenue South, Lake Worth, FL 33461, Attention: Administrative Support Manager. Compliance with the foregoing requirements shall not relieve Delray Beach of its liability and obligations under this Agreement. 4 16. Upon request by County, Delray Beach shall demonstrate financial accountability through the submission of acceptable financial audits performed by an independent auditor. 17. Delray Beach shall maintain books, records, documents and other evidence that sufficiently and properly reflect al! costs of any nature expended in the performance of this Agreement for a period of not less than five (5) years. Upon advance notice to Delray Beach, County shall have the rightto inspect and audit said books, records, documents and other evidence during normal business hours. 18. The County and Delray Beach may pursue any and all actions available under law to enforce this Agreement including, but not limited to, actions arising from the breach of any provision set forth herein. 19. This Agreement shall be gaverned by the laws of the State of Florida and any and all legal action necessary to enforce this Agreement shall be held in Palm Beach County. 20. As provided in Section 287.132-133, Florida Statufes, by entering into this Agreement or performing any work in furtherance hereof, Delray 8eaeh certifies that it, its affiliates, suppliers, subcontractors and consultants who will perform hereunder, have not been placed on the convicted vendor list maintained by the State of Florida Department of Management Services within the thirty six (36) months immediately preceding the date hereof. This notice is required by Section 287.133 (3) (a), Florida Statutes. 21. This Agreement represents the entire agreement befween the parties and supersedes all other negotiations, representations, oragreements, either written ar oral, relating to this Agreement. The Agreement maybe modified and amended only by written instrument executed by the parties hereto. 22. Any notice given pursuant to the terms of this Agreement shall a in writing and hand delivered or sent by U.S. mail All notices shall be addressed to the following: As to the County: Director of Parks and Recreation Palm Beach County Parks and Recreation Department 2700 Sixth Avenue South Lake Worth, Florida 33461 As to Delray Beach: City Manager City of Delray Beach 100 iV.W. Ist Avenue Delray Beach, FL 33444 23. This Agreement is made solely and specifically among and for the benefit of the parties hereto, and no other person shall have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise. IN WITNESS WHEREOF, the undersigned parties have signed this Agreement on the date first above written. ATTEST: PALM BEACH COUNTY, FLORIDA, BY ITS SHARON R. BOCK, Clerk & BOARD OF COUNTY COMMISSIONERS Comptroller By: Deputy Clerk ATTEST: By: Deputy Clerk APPROVED A$ TO FORM AND LEGAL SUFFICIENCY By: County Attorney Commissioner Jahn F. Koons, Chairperson CITY OF DELRAY BEACH By: Mayor APPROVED AS TO TERMS AND CONDITIONS By: Dennis L. Eshleman, Director Parks and Recreation Department Recreation Assistance Pror~ram {~E) Exh`r~it 4tA" to Agreement Name of Municipality: City of i]elray F3eaah Mailing Address: 100 h[.W. First Avenue, Delray Beach, FL 33444 Name of Mayor: Ri~.a ~I.3.is Name of City Manager: I~avia xarcten Project Liaison Infortr~ation: Name: David Ricks Telephone ~: 561.243.7359 Fax #~: 56'[.243.7342 e-mail: ricks@c'r.delray-beach.fl.us PR0.31wCT I1`IFURIVIATI~ '(. blame of Project: Delray Rocks Youth ~rganizatian Program Expenses 2. Project Description • General (Project Scope): To assist Defray Rocks with the end of the year trip e Public Purpose: to assist at youth participating in the Delray Rocks football program will the ability to take the players on a end of the year trip • Location: Pompey Park • Anticipated Number of Participants/l.#sers: 75 Project Elements: List anticipated broad categories of Expenditure Items such as capital outlay, contractual services, personnel costs, operational expenses, equipment, and "ether Miscellaneous Project expenses". Cho not include ex enditure fine item bud etl amounts. Transpartatlon, hotel Estimated Lump Sum Tota# for Project: $6.500.00 Project Initiation date {date of first invoice far which reimbursement will be requested) and anticipated End date {date which project will be completed and a[I invoices paid}. 1?ecerr~ber 1.2008 to ~~ ~~1 ~~`~ Note: invoices and copies of proof of payment documents will be required for PrajectlPrograrn reimbursement after the RAP Agreement is approved by the Board of County Commissioners. Da not submit reimbursement daeumentation at this time. After the Agreement is approved, and the reimbursement request is submitted,, all invoices and checks must be dated within the stated project time frame AND Categories for Project Elements must be listed in Section 3 alcove in order to be eligible far RAP reimbursement. Required Attachments: Certiiieate of Insurance Amount of Recreation Assistance Program Funding awarded $ 3.600 District 7 {filled in by County) F~mn avaiiab(e online by raquest. Contact Susan Yinger at sy_inaer~}a pbcoov.com EXNI~BIT A Psga 4 PALM EiEAGfi GOUNTY 6'~u c PARKS AND RE.GR~ATION DEPARTMENT ,aoR,9 ~rt CONTRACT PfAYMI=NT REQl1RST Date Grantee: _ Submission #: Item Kev Contractual Services (C) Salary & Wages (% of salaries) (S} Materials, Supplies, Direct Purchases (M) Equipment (E) Travel (T) Indirect Gosts (I) Project Costs This Submission E3:H1I31T I3 Cumulative Project Costs TOTAL PRO.tEGT COSTS E C ~ Contractual Serv€ces Kev Le end ' s =salary & wages 9 M =Materials, Supplies, Direct Purchases i E -Equipment T=Travel i I = [ndirect Costs i ...................___.__......................................................... ..........i Certification: I hereby certify that the above Certification: l hereby certify-that the documentation has expenses were incurred for the work identified as been maintained as required to support the project being accomplished in the attached progress expenses reported above and is available for audit upon reports. request. Administrator Date Financial Officer Date County Funding Participation TotaE Project Costs To Date: County Obligation Ta Date County Retainage ( % ) County Funds Previously Disbursed County Funds Due this Billing Reviewed and Approved Sy: PBC Project Administrator Date Department Director Date PAC t,d~~ ONLY _ Project Name: Reimbursement Period: G:\SYINGERIFORMS\3 Pg - Exhibit B page 1 of MEMORANDUM TO: Mayor and City Commissioners FROM: Terrill Pyburn, Assistant City Attorney THROUGH: Susan Ruby, City Attorney DATE: February 11, 2009 SUBJECT: AGENDA ITEM 8.F. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 INTERLOCAL AGREEMENT/COMMUNITY REDEVELOPMENT AGENCY (CRA)/COMPREHENSIVE PARKING STUDY ITEM BEFORE COMMISSION Interlocal Agreement between the City of Delray Beach and the Community Redevelopment Agency for Funding of a Parking Study. BACKGROUND The attached Interlocal Agreement between the City and the CRA provides for shared funding of a parking and transportation study to review and analyze parking lot utilization and public parking inventories within the City, including the Downtown Area. The study would include the following components: . An update of the current inventory of public parking in the downtown. . An analysis of the utilization of the available public parking and recommendations on how it can be improved. . Recommendations regarding the establishment of a fee based parking program. . A review of the City's current parking regulations and suggested changes. • Suggestions for innovative and environmentally-friendly parking methods could be implemented. . An analysis of the downtown shuttle's ridership, routes, and costs. The CRA has agreed to fund 75% of the costs of the study or $100,000, whichever is less, with the City to pay the balance of the costs. RECOMMENDATION The City Attorney's Office recommends City Commission discretion. INTERLOCAL AGREEMENT BETWEEN THE CITY OF DELRAY BEACH AND THE DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY FOR FUNDING OF THE PARKING STUDY THIS AGREEMENT is made this day of 2009, by and between the CITY OF DELRAY BEACH, a Florida municipal corporation, (hereinafter referred to as "CITY"), and the DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and politic, duly created and operated pursuant to Chapter 163, Florida Statutes, (hereinafter referred to as the "CRA") WITNESSETH: WHEREAS, the CITY desires to obtain a Comprehensive Parking Study to review and analyze parking lot utilization and public parking inventories within the City, including the Downtown Area, which is the area generally described as being bounded by I-95 on the west, A-1-A on the east, SW/SE 2nd Street on the south and NW/NE 2nd Street on the north; and WHEREAS, the Parking Study, once completed, will assist the CITY and the CRA in implementing programs and regulations that will encourage business and residential development in the Downtown Area, while ensuring that sufficient parking is available to serve those businesses and residences; and WHEREAS, the CRA desires to participate in the Parking Study as the Downtown Area is contained within the CRA's Redevelopment Area; and WHEREAS, the CRA has agreed to support the program by funding a portion of the cost of the Consultant who will be retained by the CITY to perform the Parking Study; and WHEREAS, the CRA and the CITY find that the Parking Study will serve a municipal and public purpose, is in the best interest of the health, safety, and welfare of the citizens, businesses, and residents of the City of Delray Beach, and is consistent with the CRA's Redevelopment Plan. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the parties hereby agree as follows: 1. Recitations: The recitations set forth above are hereby incorporated herein. 2. Duties: The CITY shall hire a consultant, by separate agreement, in accordance with its standard RFP process, to perform a Parking Study of the Downtown Area, as defined herein. The Parking Study shall consist of, but not be limited to, the following: a. Review and analysis of parking lot utilization of current public parking inventories in the study area; b. Review of the City's Shuttle Service including rider ship surveys, route review, and expansion feasibility; c. Review of parking regulations in the CITY's Land Development Regulations (LDRs) to assure that the most recent standards are being used; discuss how changing to minimum/maximum parking requirements would affect development in Delray Beach; discuss unbundled parking policies; d. Propose how the CITY will meet its goal to become more "pedestrian-friendly"; e. Review in-lieu and public parking fee programs; 2 f. Discuss innovative parking methods i.e. mechanical parking lifts, robotic parking, environmentally friendly parking components, etc.; g. Discuss parking garage management programs/fee based parking program; and h. Discuss traffic demand management programs. Both the CITY and CRA shall participate in funding the Consultant in accordance with Paragraph 3 herein. 3. Funding: The CRA agrees to fund an amount not to exceed One Hundred Thousand Dollars ($100,000.00), or seventy-five percent (75%) of the Consultant fees that the CITY is obligated to pay pursuant to a duly executed contract entered into between the CITY and the Consultant, whichever is less. The CITY agrees to fund the remaining balance of the Consultant fees incurred pursuant to the contract entered into between the CITY and the Consultant. The CRA shall make full payment to the CITY upon receiving written notice from the CITY that the Consultant has been retained, along with a copy of the executed contract entered into between the CITY and the Consultant. The provision of funding from the CITY and CRA shall not constitute an employer/employee relationship between CRA and/or CITY and Consultant. 4. Term of Agreement: This Agreement shall be for a one (1) year period commencing on the date that Consultant is hired. The funding promised herein is subject to budget restrictions and approvals by both the CRA Board of Commissioners and the CITY Commission. The Agreement may be extended for an additional one (1) year period if approved by the CITY and CRA in writing. 3 5. Agreement to be Recorded: This Interlocal Agreement shall be filed pursuant to the requirements of Section 163.01(11) of the Florida Statutes. 6. Modifications: No prior or present agreements or representations with regard to any subject matter contained within this Agreement shall be binding on any party unless included expressly in this Agreement. Any modification to this Agreement shall be in writing and executed by the parties. 7. Severability: The validity of any portion, article, paragraph, provision, clause, or any portion thereof of this Agreement shall have no force and effect upon the validity of any other part or portion hereof. 8. Governing Laws: This Agreement shall be governed by and in accordance with the Laws of Florida. The venue for any action arising from this Agreement shall be in Palm Beach County, Florida. 9. Assignment: Neither the CITY nor the CRA shall assign or transfer any rights or interest in this Agreement. ATTEST: City Clerk Approved as to Form: City Attorney CITY OF DELRAY BEACH, FLORIDA By: 4 Rita Ellis, Mayor ATTEST: COMMUNITY REDEVELOPMENT AGENCY By: Diane Colonna, Executive Director Frank Wheat, Chair (SEAL) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of 2009, by as (name of officer or agent, title of officer or agent), of (name of corporation acknowledging), a (state or place of incorporation) corporation, on behalf of the corporation. He/She is personally known to me or has produced (type of identification) as identification. Notary Public -State of Florida H:\2006\060018 DBCRAWGMT 2009\ILA with CRA for Funding of Parking StudyREV1(Clean).doc 5 MEMORANDUM TO: Mayor and City Commissioners FROM: Robert A. Barcinski, Assistant City Manager THROUGH: David T. Harden, City Manager DATE: February 10, 2009 SUBJECT: AGENDA ITEM 8.G. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 LICENSE AGREEMENT/EASTER SUNRISE SERVICE ITEM BEFORE COMMISSION City Commission is requested to approve a license agreement with St. John Primitive Baptist Church for the use of the Tennis Stadium and Tennis Center site for an Easter Sunrise Service to be held on Sunday, April 12, 2009 from 6:00 a.m. to 9:00 a.m. BACKGROUND Attached is a proposed license agreement between the City and St. John Primitive Baptist Church for use of the Stadium and Tennis Center site for an Easter Sunrise Service. St. John Primitive Baptist is teaming up again this year with St. John Missionary Baptist Church in Boynton Beach to produce this service. City responsibilities are outlined in paragraph 4 and the service producer responsibilities are in paragraph 5 of the agreement. The agreement also provides for set up and breakdown time. Staff is recommending waiver of the $3,000 rental fee, but not the costs as listed in Exhibit A of the agreement, estimated at $2,200. RECOMMENDATION Staff recommends approval of the license agreement between the City and St. John Primitive Baptist Church for an Easter Sunrise Service to be held in the Tennis Stadium on April 12, 2009 from 6:00 a.m. to 9:00 a.m. and waiver of the site rental fee, contingent on the receipt of a Hold Harmless Agreement. LICENSE AGREEMENT THIS AGREEMENT made this day of 2009, by and between the CITY OF DELRAY BEACH, FLORIDA, a municipal corporation of the State of Florida (hereinafter referred to as "City") and ST. JOHN PRIMITIVE BAPTIST CHURCH, (hereinafter referred to as "Licensee"). WITNESSETH: WHEREAS, City owns and controls certain land upon which is located the Delray Beach Municipal Tennis Center, and hereinafter called "Tennis Center"; and WHEREAS, City has determined that it is in the public interest to enter into an agreement with Licensee for the event at the Tennis Center. NOW, THEREFORE, it is mutually agreed as follows: 1. License/Term. (a) Licensee has presented to the City that it would like to use the Tennis Stadium and accessways thereto (Tennis Center) for the sole purpose of presenting the event known as Easter Sunrise Service (hereinafter referred to as the Event). (b) The License shall be for the exclusive use of the Tennis Center Stadium from 5:00 a.m. on April 12, 2009 until 10:00 a.m. on April 12, 2009 for the event beginning on April 12, 2009 at 6:00 a.m. and ending on April 12, 2009 at 9:00 a.m. Licensee shall be allowed to set up on April 11, 2009 after 8:00 a.m. and shall remove all equipment and vacate the premises by April 14, 2009 at noon. (c) In the event that Licensee is unable to hold the Event on the date provided above due to inclement weather, the City and Licensee shall then mutually agree on another date for the Event. 2. Purpose. The parties agree that Licensee shall promote and produce the Event in a manner which complies with community standards and appeals to the interest of the general public, and use its best efforts to promote this Event at the Tennis Center. Licensee, at its sole cost and expense, shall provide management and personnel experienced in the promotion and production of the Event and for the purpose of supervising and directing Licensee's obligations under this agreement. 3. Licensee's Rights for the Event. Licensee shall have authority, subject to the provisions and limitations set forth in this agreement, to enter into contracts or agreements to put 1 on the Event. All such contracts shall be negotiated and executed by Licensee in its name and shall not be contracts and obligations of City. All contracts entered into by Licensee shall specifically contain language which provides that City is not a party to such agreement and is not obligated in any manner by any of the terms therein. 4. Facilities and Services Provided by City. Unless otherwise herein specified, City shall be responsible for, or agrees to provide, the following facilities and production assistance in connection with the conduct of and staging of the Event: (a) use of a stadium court; (b) use of parking lots for attendees, staff and performers (parking attendant expenses are the licensees responsibility); (c) all electrical, water and sewer utilities and one on-site electrician (all costs and expenses are Licensee's responsibility) for the duration of the Event (hook-ups not included) and for setup; (d) restroom facilities and supplies; (e) on and off-site directional signage; (~ on-site management; all necessary permits; (g) mutually agreed upon marketing support of the Event; (h) access to utilities to include but not be limited to water/sewer, electric/lighting; (i) maintenance personnel to maintain and clean the restrooms as well as garbage pickup during and post event (Licensee shall be responsible for cost of personnel); 5. Staging and Production of the Event. The organization, staging, and conduct of the Event will be the responsibility of the Licensee, which responsibilities shall include the following: (a) Administering the entire Event; and Event management (b) Providing sound and lighting systems necessary for the Event; (c) Setting up each Event on-site and handling all activities of the Event, including set up and tear down of the lighting and sound systems; (d) Providing tent cover for the stage: 2 (e) Handling promotions, advertising, sales, public relations, and program production for the Event; (~ Licensee is responsible for the cost of covering courts if VIP tents are to be set up or if needed to cover courts used for contents; (g) Licensee shall handle and be responsible for all security measures needed concerning the Event, to include overnight security. (h) Payment to the City of costs listed in Attachment "A"; 6. Independent Contractor Status. It is understood between the parties that the relationship of City and Licensee is that of an independent contractor. Licensee shall have no authority to employ any person as an employee or agent on behalf of the City for any purpose. Neither Licensee or any person engaging in any work relating to Licensee's rights and obligations set forth herein at the request of or with the consent (whether actual or implied) of Licensee shall be deemed an employee or agent of City, nor shall any such person represent himself to others as an employee or agent of City. Should any person indicate to Licensee or any employee or agent of Licensee, by written or oral communication to Licensee, that the person believes Licensee or an employee or agent of Licensee to be an employee or agent of City, Licensee shall use its best efforts to correct or cause its employee or agent to correct that belief. 7. Compliance with Licensing Requirements. Licensee, prior to commencement of any activities pursuant to the provisions of this agreement, shall comply with applicable federal, state, county and City requirements, laws, rules and regulations and all licensing requirements and receive all necessary permissions, permits, approvals and licenses which are required to perform the activities of producer and promoter as set forth herein. 8. Compliance with Laws. Licensee agrees to comply with all applicable federal, state, county, and local laws and regulations regarding non-discrimination and specifically agrees not to discriminate against any person on the basis of color, race, religion, age, creed, sex, national origin or disability. 9. Event Personnel and Equipment. Licensee shall provide all personnel needed for the Event, including, but not limited to, ushers, sound technicians, stage hands, and performers. Licensee shall be responsible for the installation or removal of any additional staging or sound and/or lighting which is to be utilized for the Event or any other equipment of 3 any type or nature which is needed for the Event. Licensee shall designate a management representative in a timely manner who will coordinate the Event with the City and its designee. Licensee shall be responsible for the cost of all chair rentals that may be required and the cost of all staging, lighting and sound equipment, except as otherwise stated in this Agreement.. Licensee shall be responsible for the cost of all repairs needed to the tennis center when repairs are not the result of normal wear and tear. Licensee and the City's designee shall perform a "walk through" before and after the Event. 10. Police, Security and Emergency Personnel. Licensee agrees to make arrangements with the City Police Department and City's designee to provide for City police personnel which the City determines, in its sole discretion, is necessary for the Event. Licensee shall pay the officers at a rate to be determined by the City based on an analysis of the number of officers available to work the event, the number of officers required by the event and other factors within the sole discretion of the City. Licensee shall, at least thirty (30) days prior to the Event, consult with the Chief of Police or his designee and the City's designee to determine the proper scheduling of security for the Event and the rate that will be applicable for the Event. Licensee may provide private security with Police Department approval. 11. City's Right to Control Premises. City or its designee at all times reserves the right to eject or caused to be ejected from the premises any person or persons violating (or to keep persons from violating) any of the rules or regulations of the Tennis Center or any city, county, state or federal laws, and neither the City, its designee nor of any its officers, agents or employees shall be liable in any manner to Licensee or its officers, agents or employees for any damages which may be sustained by Licensee through the exercise of this right by City or its designee. 12. Parking, Signage and Traffic Control. The City shall provide parking spaces on City owned or controlled property for the Event which the City in its sole discretion determines it can make available without adversely impacting other public parking needs. Licensee shall be responsible for obtaining all additional parking that may be necessary to provide sufficient parking for the Event, including such additional parking as may be necessary in the opinion of the City, in order to ensure adequate parking is provided for the Event. City has a right to parking revenue, if collected. Licensee may provide onsite signage upon the prior approval of the City, which approval shall not be unreasonably withheld. City shall provide 4 traffic control, barricades and signs, as it deems necessary, in its sole discretion, and Licensee shall pay for the entire cost of providing such traffic control. 13. Insurance. Licensee shall obtain insurance at its own cost and expense of the type, nature, and amount and pursuant to the terms which are set forth on Exhibit "B" which is attached hereto and incorporated herein by reference. The City and its designee shall be named additional insureds on all insurance certificates. 14. Right to Enter. City and its designee and authorized agents and employees shall have the right to enter upon the subject premises at any and all reasonable times for the purpose of inspection and observation of Licensee's operation to assure that requirements of this agreement are upheld and that no violations of the rules, statutes, ordinances or regulations have occurred or are occurring. Said inspections may be made by persons identified to Licensee as City employees or City designees authorized for such inspection or maybe made by independent contractors engaged by City or its designee. Nothing contained herein shall be deemed a waiver of Licensee's obligation to hold the Event as provided in this Agreement. 15. Conclusion of Performance. All performances shall end no later than 11:00 P.M. unless otherwise approved by the City, or its designee. 16. Alterations. Licensee shall not make any alterations, additions or improvements to the Tennis Center or any part thereof without the prior approval of City or its designee. 17. Notice of Defects. Licensee shall report safety deficiencies or any defects it notices on the premises immediately to City's Risk Manager and the City's designee and shall cooperate fully with City and its designee in the investigation of accidents incurring on the subj ect premises. 18. Indemnification. Licensee does hereby release and agree to indemnify, defend, save, and hold harmless the City, its designees, officers, agents and employees from and against all claims, actions, causes of action, demand, judgments, costs, expenses, and all damages of every kind in nature incurred by or on behalf of any corporation, person, or governmental authority, whatsoever predicated upon injury or death of any person or loss over damaged property of whatsoever ownership, or copyright infringement arising out of or connected with, directly or indirectly, Licensee's operation pursuant to the terms of this agreement, whether or not the incident giving rise to the injury, death, loss or damage occurs within or without the premises. 5 19. Release. Licensee acknowledges and agrees that City, its designee, officers, agents and employees assume no responsibility whatsoever for any property placed in the premises provided for herein and City, its designee, officers, agents and employees are expressly released and discharged from any and all liability for any loss, injury, damage, theft, vandalism or other wrongful acts or acts of any kind or nature resulting in damage or loss to persons or property which may sustained by Licensee's use of the premises. Licensee further expressly waives any and all claims for compensation for any and all loss or damages sustained by reason of any defects, deficiencies, or impairment of the electrical or sound equipment, water supply, equipment or wires furnished for the premises or by reason of any loss or impairment of light, current, or water supply which may occur from time to time for any cause, or by reason of any loss or damage sustained by Licensee resulting from fire, water, hurricane, tornado, civil commotion, riot, theft or other acts of God, and Licensee hereby expressly waives all right, claims and demands and forever releases and discharges City, its designee, officers, agents and employees from any and all demands, claims, actions and causes of actions arising from any of the causes aforesaid. 20. Taxes. Licensee shall pay any and all taxes levied on the property by reason of Licensee's use thereof pursuant to the provisions of this Agreement and on any personal property and improvements belonging to License located on the premises and all applicable sales, use, rental and other taxes which may be levied against its operation. 21. License Costs. a. Licensee shall pay to the City costs as listed in Attachment "A" within ten (10) days after the Event. 22. Tennis Center Capacity. Licensee shall not admit to the Tennis Center a larger number of persons than the approved capacity it will safely accommodate. 23. Adyertisin~ Revenue. Licensee shall be entitled to retain all advertising and sponsorship revenues generated by advertisers or sponsors of the Event promoted by Licensee at the Tennis Center; provided, however that the City and its designee, jointly with Licensee, shall have the right to approve all advertising and its location. 24. Waiver of Breach. Neither the waiver by City or its designee of any breach of the Agreement, condition or provision of this Agreement or the failure of City or its designee to seek redress for violation of or to insist upon strict performance of, any agreement, condition or 6 provision, shall be considered a waiver of the Agreement, condition or provision, or any subsequent breach of any Agreement, condition or provision. No provision of this Agreement may be waived except by written agreement signed by the City and Licensee. 25. Controlling Law. This agreement shall be deemed to be made and shall be in accordance with the laws of the State of Florida which will be controlling in any dispute that arises pursuant to this Agreement. 26. Entire Agreement. This Agreement constitutes the entire agreement between City and Licensee and may not be altered, amended, or modified except by an instrument in writing signed by the parties to the agreement with all the same formalities as this agreement. 27. Force Maieure, Strikes and Unavoidable Causes. City shall not be responsible for its failure to make the premises available or to provide the facilities and services described herein, where such performance is rendered impossible and impractical due to strikes, walk-outs, acts of God, inability to obtain labor, materials or services, government restriction (other than City), enemy action, civil commotion, fire, unavoidable casualty, utility disruptions or blackouts, or similar causes or any other causes beyond the control of City. 28. Sublicense and Assignment. Licensee shall not sublicense the subject premises or any part thereof or allow the same to be used or occupied by any person or for any other use than that herein specified, nor assign said Agreement nor transfer, assign or in any manner convey any of the rights or privileges herein granted without the written consent of City. Neither this Agreement nor the rights herein granted shall be assignable or transferable by any process or proceeding in any court, or by attachment, execution, proceedings, insolvency, or bankruptcy either voluntary or involuntary or receivership proceedings. 29. Notice. Any notice or communication under this agreement shall be in writing and may be given by registered or certified mail. If given by registered or certified mail, the notice or communication shall be deemed to have been given and received when deposited in the United States Mail, properly addressed, with postage prepaid. If given otherwise, than by registered or certified mail, it should be deemed to have been given when delivered to and received by the party to whom it is addressed. The notices and communication shall be given to the particular parties at the following addresses: City: David Harden, City Manager City of Delray Beach 100 N.W. 1st Avenue 7 Delray Beach, Florida 33444 Licensee: Mayor E. Rollins, Pastor St. John Primitive Baptist Church 615 N.W. 1st Avenue Delray Beach, FL 33444 Either party may at any time by giving ten (10) days written notice designate any other person or entity or any other address in substitution of the foregoing to which the notice or communication shall be given. 30. Citv's Name/Lo~o The City shall have its name/logo included in all print, radio, and television advertising created by Licensee to promote the Event. 31. Subtitles and Captions. Paragraph headings are for reference purposes only and in the event that such paragraph headings conflict with any of the substantive paragraphs of this Agreement, the paragraph headings shall be disregarded. 32. Citv's Designee. For the purpose of this Agreement, the City's designee shall be JCD Sports Group, Inc. or its designee, unless the City notifies Licensee to the contrary. 33. This Agreement is not effective until signed by the City Manager. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their proper officials on the day and year first above written. ATTEST: By: City Clerk Approved as to Form By: City Attorney CITY OF DELRAY BEACH, FLORIDA By: David T. Harden, City Manager WITNESSES: LICENSEE By: 8 (Name printed or typed) (Name printed or typed) STATE OF COUNTY OF (Name printed or typed) The foregoing instrument was acknowledged before me this day of 200_, by (name of officer or agent, title of officer or agent), of (name of corporation acknowledging), a as (state or place of incorporation) corporation, on behalf of the corporation. He/She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment Name Typed, Printed or Stamped Fein No. 9 EXHIBIT "A" Delray Beach Tennis Center Sr. John Primitive Baptist Church Easter Sunrise Service April 12, 2009 Special Event (One Day Event) Estimated Costs Tennis Center North Stage Rent $ Waived Utilities $ 500.00 Trash Removal $ 250.00 Clean-up (during) inc. restrooms $ NSA Clean-Up (post) inc. supplies $ 100.00 Stage & Floor Installation and Removal $ 250.00 City Electrician $ 250.00 Parking Attendant(s) $ 100.00 $ 1,450.00 Additional 20 X 20 Stage (East) Event Coordinator\ Supervisor $25/hr Maintenance Personnel $15/hr Fire Police Estimate $750.00 $ No Charge 10 EXHIBIT `B" INSURANCE REQUIREMENTS OF THE CITY OF DELRAY BEACH FOR AGREEMENT WITH shall not commence operations under the terms of this Agreement until certification or proof of insurance, detailing terms and provisions of coverage, has been received and approved by the City of Delray Beach Risk Manager. If you have any questions call (561) 243-7150. The following insurance coverage shall be required. Comprehensive commercial general liability insurance to include coverage for premises and operations, independent contractors, broad form contractual liability, personal injury, and if items are sold, products and/or liquor liability, in connection with the contractual relationship and activities being done under this agreement. The policy will be endorsed to include the City of Delray Beach and it's designees named as additional insureds. The insurance will be written on an occurrence basis with the limits of liability not less than $2,000,000.00 combined single limit per occurrence, and as an annual aggregate, covering bodily injury, property damage and personal injury. Motor Vehicle Liability Insurance covering all vehicles associated with operations to include all owned, non-owned and hired vehicles. The coverage will be written on an occurrence basis with limits of liability not less than $1,000,000.00 combined single limit per each occurrence. The certification or proof of insurance must contain a provision for notification to the City thirty (30) days in advance of any material change in coverage, non-renewal or cancellation. shall furnish to the City, Certificate(s) of Insurance evidencing insurance required by the provisions set forth above, thirty (30) days prior to the holding of the event. If so requested by the City, certified copies of insurance policies will be provided by If any of the above coverages expire during the term of this agreement, will provide a renewal certificate at least ten (10) days prior to expiration. Mail to: City of Delray Beach, Attn. Risk Manager, 100 N.W. 1st Avenue, Delray Beach, Florida 33444. 11 MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director of Community Improvement Elizabeth Alpert, Neighborhood Services Adminiitrator THROUGH: David Harden, City Manager DATE: February 11, 2009 SUBJECT: AGENDA ITEM 8.H. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 REQUEST FOR SUBORDINATION/JOAN A. JOHNSON ITEM BEFORE COMMISSION City Commission authorization and approval to subordinate its second mortgage position in the amount of $17,000 to allow Joan A. Johnson to modify her mortgage to prevent foreclosure. BACKGROUND Joan A. Johnson, 642 SW 5~' Avenue, participated in the City's first-time homebuyer program in 2000. She was assisted with funds from the SHIP Program. Her mortgage company has agreed to modify her loan by extending it an additional 5 months. The interest rate and terms of the loan will remain the same. Subsidies provided for homeownership through State Housing Initiatives Partnership (SHIP) funds are secured by a Promissory Note and Second Mortgage. All grants are approved by the City Commission and require the applicant to maintain ownership/residence for a specified period according to the amount of the grant. Grant amounts less than $35,000 per unit have a recorded lien for a period of fifteen (15) years and grant amounts equal to or greater than $35,000 but less than $75,000 per unit have a recorded lien for a period of thirty (30) years. If the property is sold or transferred during this period for any reason except the need to meet major health care expenses (definition of what constitutes a major health care expense will be determined by Neighborhood Services Administrator on an individual basis) or transferred by inheritance at death, the homeowner shall immediately repay to the City the full amount of the grant. In order for a homeowner assisted by SHIP funds to refinance his or her first mortgage or obtain a second mortgage, the City of Delray Beach must agree to subordinate its second mortgage. When the City agrees to subordinate its second mortgage, the homeowner is able to borrow against the equity in their home. The City's decision whether or not to subordinate is rendered on a case-by-case basis with the primary objective being "increasing the affordability of housing". This request is to maintain the City's mortgage position in second position and grant a waiver of the current subordination policy to allow Joan A. Johnson to refinance her mortgage. A waiver is necessary because the policy does not normally allow for refinance with a longer term, but in this case refinancing will prevent foreclosure. FUNDING SOURCE No funding necessary. RECOMMENDATION Staff is recommending City Commission approval of Ms. Johnson's request to subordinate its second mortgage position in the amount of $17,000 to prevent foreclosure. SUBORD[NATION AGREEMENT KNOW ALL MEN BY THESE PRESENTS, that for valuable consideration, the receipt of which is hereby acknowledged, the undersigned CITY OF DELRAY BEACH being the owner and holder of a certain Mortgage originated by, CITY OF DELRAY BEACH in the original principal sum of $17,000.00 which was dated July 28, 2000 and recorded on August 1, 2000 in Mortgage book 11925 at page 1824 instrument 00-287265 , of the Real Property Records of PALM BEACH County, Florida upon the premises described therein ("Subordinate Mortgage"), does hereby waive the priority of the Subordinate Mortgage in favor of a certain Mortgage to FIDELITY FEDERAL BANK AND TRUST made by JOAN A JOHNSON in the original principal sum of $70,OOQ00 which was dated July 28, 2000 and recorded on August 1, 2000 in Mortgage book 11925 at page(s) instrument number 00-287264 of the Real Property Records of PALM BEACH County, Florida 1817 This Subordination Agreement shall apply to the Loan Modification dated January 1, 2009 for the modified principal sum of $64,855.11 U.S. dollars which was recorded the day of , of the Real Property Records of County, the State of and recorded in Mortgage Book , at Page Instrument ("Loan Modification Agreement") which modifies the original terms of the Superior Mortgage. The Subordinate Mortgage shall be subordinate to the Superior Mortgage and Loan Modification Agreement in the same manner and with [ike effect as though the Superior Mortgage and Loan Modification Agreement had been executed and recorded prior to the filing for record of the Subordina#e Mortgage, but without in any other manner releasing or relinquishing the encumbrance upon said premises. The undersigned CITY OF DELRAY BEACH shall include its heirs, executors, administrators, successors and assigns. IN W[TNESS WHEREOF, the undersigned has executed this Subordination Agreement effective this day of , 20_ Witness Signature: By: Name: Name: By: Title: Name: Approved as to form and legal su ficiency: STATE OF: +~--~_ gy: COUNTY OF: ~ trity AttOr Z/'C'~/Q `~ BEFORE ME, the undersigned authority, on this day personally appeared the of , known to me to be a person whose name is subscribed to the following instrument, and aclmowledged to me that he/she executed the same for the purpose and consideration therein expressed as the act and deed of said corporation/association and in the capacity therein stated. In Testimony Whereof, I have hereunto subscribed my name and affixed my official seal at this day of (date). (SEAL is Required) Notary Public Typed or Printed Name My commission Expires: MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Community Improvement Director Elizabeth Alpert, Neighborhood Services Adminsitrator THROUGH: David Harden, City Manager DATE: February 11, 2009 SUBJECT: AGENDA ITEM 8.I. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 DISASTER RECOVERY HOUSING INITIATIVE (DRI)/HOUSING REHABILITATION GRANT/CONTRACT AWARDS ITEM BEFORE COMMISSION Approval is requested for two (2) Housing Rehabilitation grant awards to be awarded to the lowest responsive bidder for the following projects: 915 SW 2nd Avenue/ South Florida Construction Services/ Total Rehab Cost: $34,764.20 228 SW 1st Avenue/ Haywood Construction /Total Rehab Cost: $38,684.55 BACKGROUND Grant awards are based on the actual cost of the rehabilitation, as determined by the low responsive bidder(s), plus a $1,000 contingency (per the DRI agreement between the City and County). The contingency may be used for change orders and all unused funds will remain with the DRI Housing Rehabilitation program. Cost also includes termite fumigation (if necessary) and lead based paint inspection and treatment fees. Inspection of work is done by the Department of Community Improvement's Building Inspection and Neighborhood Services Division. Contracts are executed between the building contractor and the property owner. The City remains the agent and this office monitors all work performed by the contractor, ensuring compliance according to specifications and program guidelines. Pay request forms require both contractor and homeowner's signatures. Program recipients have met all eligibility requirements as specified in the approved Policies and Procedures. The rehabilitation activities will bring the homes to minimum code requirements by repairing the roof, electric and plumbing systems and correcting other incipient code violations. Detailed work write-ups and individual case files are available for review in the Neighborhood Services Division Office. The low bidder for 915 SW 2nd Avenue was deemed non-responsive due to not being able to meet the lead abatement requirements. Also, the low bidder for 228 SW 1St Avenue was deemed non-responsive due to not providing a sufficient bid bond. Awards are recommend to the next low bidder for each project (South Florida Construction Services for 915 SW 2nd Avenue and Haywood Construction for 228 SW 1St Ave.); these bidders are determined to be the low responsive bidders. FUNDING SOURCE Disaster Recovery Initiative 118-1960-554-49.19 RECOMMENDATION Staff recommends awarding two (2) Housing Rehabilitation grant awards to the lowest responsive bidder for the following projects: 915 SW 2nd Avenue/South Florida Construction Services/Total Rehab Cost: $34,764.20 228 SW 1st Avenue/Haywood Construction /Total Rehab Cost: $38,684.55 CITY OF DELRAY BEACH NEIGHBORHOOD SERVICES DIVISION HOUSING REHABILITATION PROGRAM BID INFORMATION 5HEET BID #~: APPLICANT: PROJECT ADDRESS: DATE OF BID LETTERS: DATE OF BID OPENING: GENERAL CONTRACTORS 01-2009-N S Marcelo Santiago 915 SW 2nd Avenue October 8, 2008 November 4. 2008 BID AMOUNT ~ BID BOND ABC General Services Brian E. Rego, Inc. Cordoba Construction Co. Inc. Dakota Construction Gadsden Property Investment, Inc. Grace Construction Inc. Haywood Construction LQ. Constructions, Inc. Jemstone Construction*** Joiner Construction & Development, LLC. Ray Graeve & Sons Construction, LLC South Florida Construction Services, Inc. Sun Band Builders Construction, Inc. In~Mouse Estimate: CONTRACTOR AWARDED CONTRACT BIDICONTRACT AMOUNT Contingency up to $1,D00.00 $38,900.00 Yes $24,475.00 Yes $45,fi05.00 ~ Yew $34.150.00 Yes $33.235.00 ! Yes I $29,091.45 South Florida Canstruckian Services, Inc. $ 33,235.00 1,000.00 $ 34,235.00 Lead lnspectionlRiskAssessmmt 410.00 Lead Clearance Test 30.00 Termite Treatment - Recording Fees 89.20 $ 34,764.20 FUNDfNG SOURCE: DRI Account ~# ':118-1.960-554-49.19:- -- COMMENTS: Lowest bidder was unable to meet lead abatement requirements. Next lowest res bidder awarded project. CITY OF DELRAY BEACH NEIGHBORHOOD SERVICES DIVISION HOUSING REHABILITATION PROGRAM BID INFORMATION SHEET BID #: 01-2009-NS APPLICANT: Donna Porter PROJECT ADDRESS: 228 SW 1st Avenue DATE OF BID LETTERS: October 8, 2008 DATE OF BID OPENING: November 4, 2008 GENERAL CONTRACTORS ABC General Services Brian E. Rego, Inc. Cordoba Construction Co. inc. Dakota Construction Gadsden Property Investment, Inc. Grace Construction Inc. Haywood Construction I.Q. Constructions, Inc. Jemstone Construction Joines Construction & Development, LLC. Ray Graeve & Sons Construction, LLC South Florida Construction Services, Inc. Sun Band Builders Construction, Inc. In-House Estimate: CONTRACTOR AWARDED CONTRACT: BIDICONTRACT AMOUNT Contingency up to $1,000.00 NT BID BOND ~~ YeslNo $41, 000.00 Yes $49,984.00 Yes Insufficienf Bid Band $36,112.02 I *** Haywood Construction $ 36,120.00 $ 1,000.00 $ 37,120.00 Lead inspection $ 410.00 Lead Clearance $ 30.00 Termite Inspection $ - Termite Treatment $ 1,035.35 Recording Fees $ 89.20 FUNDING SOURCE: Disaster Recovery Initiative $ 38,684.55 Account # 118-1960-554-49.19 $36,120,00 ( Yes j $57,220.00 I Yes I $50,965,00 ~ Yes ~ $42,928.50 COMMENTS: Lowest bidder provided insufficient bid bond check and was subsequently rejected. Contract awarded to next lowest responsive bidder. MEMORANDUM TO: Mayor and City Commissioners FROM: Carolanne Kucmerowski, Construction Management Technician Richard C. Hasko P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: February 13, 2009 SUBJECT: AGENDA ITEM 8.J. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 CONTRACT ADDITION (CHANGE ORDER NO. 1)/WEST CONSTRUCTION, INC./MILLER PARK IMPROVEMENTS PROJECT ITEM BEFORE COMMISSION This item is before the Commission to approve a Contract Addition (Change Order No. 1) in the amount of $4,326.84 to West Construction, Inc., for the removal and relocation of fifteen (15) parrot nests from the sports lighting poles at Miller Park, for the Miller Park Improvements Project #2006-052. BACKGROUND West Construction has mobilized and started the demolition and clearing of the project site. The sports lighting poles are part of the demolition and are to be removed as part of the project. There are fifteen (15) parrot nests on top of the poles, which need to be removed, prior to the removal of the poles. This is an emergency request in order to prevent affecting the critical path of this project. This item is being submitted for Commission approval because additional work in the total amount of $14,462.58 has already been approved by the City Manager to be paid out of the project Allowance Account. The additional work was required in order to accommodate the request to keep the Little Fenway field open for the high school season. Therefore, with the addition of the parrot relocation expense; the combined total is over the City Manager's approval authority; and requires Commission approval. The attached Exhibit "A" to Change Order No. 1 details all additional costs and an appropriate time extension of four (4) days associated with this change order. Staff recommends completing this work as soon as possible to prevent a delay in the project schedule. FUNDING SOURCE Funding is available Park/Other Improvements). RECOMMENDATION from 334-4173-572-63.90 (General Construction Fund/Miller Staff recommends approval of a Contract Addition (Change Order No. 1) in the amount of $4,326.84 to West Construction, Inc., for the removal and relocation of fifteen (15) parrot nests from the sports lighting poles at Miller Park, for the Miller Park Improvements Project. CITY ®F D~LRAY BEACH CHAl~1GE ®RT~ER'1"® ®I2IGIIiiAL C63IV'I'RAC7l' CHANGE NO. 1/{Contract Addition} PROJECT NO. 2006-052 DATE: PROJECT TITLE: i1'Iiller Park Imisro~e~ents TO CONTRACTOR: Nest Construction, Inc. YOU ARE HEREBY REQUESTED TO MAKE THE FOLLOWING CHANGES IN THE PLANS AND SPECIFICATIONS FOR THIS PROJECT AND TO PERFORM THE WORK ACCORDINGLY, SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. JUSTIFICATION: Additional work required for the removal and relocation of fifteen (1 S} parrot nests at Miller Park, per the attacked Exhibit "A"; and a contract extension of flour {4} days. SUMMARY OF CONTRACT AMOUNT/CHANGES ORIGINAL, CONTRACT AMOUNT $5,436,917.00 COST OF CONSTRUCTION CHANGES PREVIOUSLY ORDERED $ 0.00 ADJUSTED CONTRACT AMOUNT PRIOR TO THIS CIIANGE ORDER $5,436,917.00 COST OF CONSTRUCTION CHANGES THIS ORDER $ 4,32~._~4 ADJUSTED CONTRACT AMOUNT INCLUDING THIS CHANGE ORDER $5,441,243.84 PERCENT INCREASE THIS CHANGE ORDER 0.07% TOTAL PERCENT INCREASE TO DATE 0.07% TOTAL CONTRACT TIME WILL BE INCREASED BY 4 DAYS CERTIFIED STATEMENT: I hereby certify that the supporting cost data included is, in my considered opinion, accurate and that the prices quoted are fair and reasonable. West Construction, Inc. (Contractor to sign & seai) TO BE FILLED OUT BY DEPARTMENT INITIATING CHANGE ORDER Funding is available from account: 334-4173-572-63.90 DEI'ARTIVIENT FUNDING CERTIFIED BY DELRAY BEACH, FLORIDA by its City Commission RECOMMEND: APPROVED: Environmental Services City Attorney 5:1£ngAdminlPxofects1200G~206G-Q5210PPICIALICO l West Miilcr Park GC OTI704.doc By: ~- Mayor ATTEST: By: City Clerk ~j. ~ ~I Project [nf6rniatoti -----.. ,Change Pr•oposafFteques# Prmject # fl8-1031 Ci~Ft f# 003 Title MILLER PARK IMPROVEMENTS - DELRAY ~ Issue Date Feb 12, 2009 Address 1905 SW 4TH AVENUE Suhject Remove and Relocate parrot City, State, Zip 33444 nests from sports lighting E Prime Corrtract Company, Contact Christopher Caprio Cnmpany WEST CONSTRtSCT{ON, INC. Address 318 SOUTH DIXIE HWY. SUITE 4 & 5 City, State, Zip 33450 Phone 561-588-2027 Fax 1-561-582-9419 Ow~:er m_. Contact Rafael Ballesteras Company CITY OF DELRAY BEACH Address 434 S. Swinton Avenue City, State, Zip 33444 phone 551-243-7300 Fax 561-243-7314 I~escrEption of the proposed change. Remove and relocate (15) parrot nests from sports ligh#ing poses. Please Nate #ha# this will clirec#ly affec# our critical pa#h far Clearing and Dernali#ian if no# addressed prier #a I`eruary 2pth 2UQ9, we are presently rnabilized and performing demalitian and clearing of project site. Net Amount of this Proposed Change: 4 325.84 The Cnntract Time due to this Change Proposal Request has increased by 4 Working Days This document, when fully executed as accepted, shat! constitute authvrizatinn to proceed with the work described herein. Submitted By Response: ^ Accept ^ Da Not Accept WEST CONSTRUCTfON INC. CITY OF DELRAY BEACH Company Company By Date 13y Date ~Carnraanv Fir~artcial andSchedu~e -~ lmnact Details' 1 remove and relocate (16) parrot nests from existing existing sports li htin 1 LS $4,040.00 $4,040.00 2 OFi&!' 1 LS $2fl2.00 $202.00 3 bond 1 L5 $84.84 $84.84 C:F'K hlnanciai €mpact = X4,:3"l4i.t34 2/13!09 ~ ~s N i=NViRC)h6ft~l=bfT,~L CQhVSULTAtyi"S, ltdC. 612 ~. Orange Ave„ A-10 Jupiter, Florida 33458 {561) 744-7420 (561 } 744-2887 I'AX f'irOi~®SAL Tca: Christopher Caprio, Project Manager phg11e; West Construction, Inc. Fax: 318 5. Dixie Highway, Ste 4-5 ernaif; Lake l~llarth, 1=L 33460 From: Gheryi M Carpenter, Principal Biologist Project liflgr: Shav~rn Sau#hwell 17ate: 02-11-09 Project: Miller parr Parrot nest Relocation 'i5 T/~SK 1 Principal Biologist 8ioingist Tree Cfirr~ber Specialist Equipment Rental, trailer, and disposal fees Includes mileage ~!®b ~: Gg-006 --~. 561-588-2027 651-582-9419 cca rio westcpnstruction,net i•loursl xtencied Units mate Price 1 hr $2001hr $ 204.00 16 hrs $85thr $ 1,3SO.~D0 16 hrs $35/hr $ 5Es0.00 X1,920 Total Task ~ Lump Sums Arciotrrst ~~,a~o.oo 'i. C & N agrees to provide the services outlined at~ove and West Construction, tnc.agrees to compensate C&N for those services rendered an a Lump Burn Task Carnpie'tion Basis. Above referenced company/property owner further agrees to pay C & N's inveice upon above referenced company/property owner's receipt of C & N's invoice far services rendered under this agreement. 2. t~a'i"E: Fti;filttSt3RSA8LE EXPIrRtSES _ ]n addition to the payments provided far in this proposal, fhe client, West Construction, Inc, ,shall pay the ac#ual cost af:al! Reimbursable Expenses incurred by C&N i=NV1#~ONMENTAL CONSULTANTS, INC. in connec#ion with all Basis or Additional Services. ~ieimbursable Expanses mean tl~e actual expenses incurred by CONSULTANT and CONSULTANT'S independent professional assacia#es and consultants, directly or indirectly, in connection with This Part of the project, such as expenses for; out a#~tawn transportation and subsistence incidental thereto; obtaining bids, proposals ar quotations from contractor{s}, providing and rrraintalning field office facilities including furnishings and u#ilities; tail #efephont; calls, cell phone coifs and #eiegrarns; reproduatian of reports. Plotting and copies of drawings, field supplies including flagging tape, aerial photographs, ~€ +uheel drive vehicles, mileage @ 58.i5 cents per mile, and similar project-related items in addition to those required by this proposal. above ,Nat Applicable; Casty included in Quote. 3. MOBItwtZA'rioN FEE: Above re#erenced company wil# be required to pay a mabiliaafion fee in the amount of $tdA for equipment andlar supplies for (description of equiprrient j) , This fee to be paid in full prior to commencement of job. . , 1 of 2 4. Above referenced companylproperty owner's endorsement as below and return to C & N a signed copy of this agreement along Sri#h a retainer in the amount of #dlA shall bs C&N's notice to proceed within five (5) business days (wl~ich will be held until final invoice) 5. Any otherwork or additional services requested of C & N not stipulated above, w'sll be completed under separate contract. 6. in any litigation arising out of this agreemen#, the prevailing party shall be entitled to compensation for all reasonable legal fees and court costs, including all such costs resulting from any appellate action. 7. The terms of this proposal shall be null and void in 30 davs unEess agreed #o and executed by both parties in writing. 8. If work is not commenced within 90 days from the date of this proposal, C&N will require a revised proposal. 9. PJDTE: Final reports or other deliverables will not be released until payment is made in full. 1 C}. Accounts not paid with€n 30 days are subject to 1.5% per monfh service charge. AGREfr® Se ACCEPI'E®: REV2-11-09 Authorized Signature Date Cheryl M. Carpenter, President oats for West Construction, Inc, for C&N Environmental Consultants, inc, 2 afi 2 MEMORANDUM TO: Mayor and City Commissioners FROM: Linda Karch, Director of Parks and Recreation THROUGH: David Harden, City Manager DATE: February 13, 2009 SUBJECT: AGENDA ITEM 8.K. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 PROJECT AGREEMENT AMENDMENT/FIND/DELRAY INTRACOASTAL PARK ITEM BEFORE COMMISSION Approve a Project Agreement Amendment between the Florida Inland Navigation District (F.LN.D.) and the City to amend Exhibit B of the Project Agreement for Mangrove Park. BACKGROUND The Delray Intacoastal Park (renamed Mangrove Park) Project Agreement, dated November 18, 2006, between Florida Inland Navigation District and the City of provides for funding on a reimbursable basis only, and for those authorized project costs as shown in Exhibit B not to exceed $688,420.00. FIND's share will not exceed 50% of the City's out-of-pocket costs for completion of the project. The Project was over-estimated in Exhibit B which requires a revision to the Project Agreement to modify FIND's share to $663,448.00. The Project Agreement Amendment needs to be executed in order to complete close-out procedures. RECOMMENDATION Delray Beach Parks and Recreation recommends approval of the Project Agreement Amendment. pR®JECT AGREEMENT AMEN©MEN`T Exhibit B ®Cost Estimate Rerrision In consideration of the continuing mutual pramises and covenants contained in that certain PROJECT AGREEMENT No. PB-DB-D6-1~.7 Delra Intracoastal Park MAS 5~0), revised to; Mangrove__Park between the FLORIDA INLAND NAVIGATION DISTRICT (F.I.N.D,) and CITY OF DELRAY BEACH >iPROJECT SPONSOR), the parties hereby agree that Exhibit B, the Project Cost Estimate, of that certain PROJECT AGREEMENT be deleted and the attached Revised Exhibit B be substituted therefore: In WITNESS WHEREOF, the parties have hereunto set their hands and seals this of 20 Attest: F.I,N,D, EXECUTIVE DIRECTOR Attest: Approved as to form and legal sufficiency: ,~~~~-/ ~y: PROJECT SPONSOR CONTRACT ADMINISTRATOR ~~,~r,. City Attorney PL®RYbA INLAND NAVIGATI®N DIS'I"RICT ~i~tlif~C 05t ~s~fr~N>>~~= ~i?~iS~Etl'a . RAM ~tp~r~v~: WATERWAYS ASSISTANCE PROG ~~ S PROJECT COST ESTINiA'I'E ~~~ ~am~i~in~ee PROJECT NUIVIBER: PB-DB-06-1.I7. ~~NT? ~c~gt~f;6t+G 1~ir~~ir PROJECT TITLE: Delray Intracoastal Park (M[.S..A,. 65t1}. IBevision I?ate: ~~` ~~ ~ APPLICANT: City Ot'Delray Beach Prajectl~lements Quantity Estimated ACastants ~~ st G a (Number and/or Faota e +$ 556B9:UD +$ 2-~Bg;9g. +$ ~SDfl.DO Seawall Repair ~-' ~ ~{1 f,„.~ •~'", ye'tis' ~'j` Boat Ramps ~,$ 48aBOB:~} 2 ~ _~.~, ; ,, +$ -185000:00 ,~.. ~ r 4:,ir,~,. ~' '" ~ "'~. . , ~~~ ~,.~ k ~' ~~ ~'~ ~; Restrnom Bulld'€ng 3:ti0 +$ ~85D00:00 },.. 410 S.F. +$~ ~Q9t pp Roadway & Paving 6&,421 S.F. +$ 15699:88 +$ '~~ Day Dank 5' x 55' +$ Jc[-OS9:66' +$ 2~D((DD4:DD ~~ +$ .~ 464DD,d10 , >:,s~ +$ 464DD.00 S'ste L€ghting ~ i~ ! (~'~1f' z ~t,. ~ + , ~~'^ . tJt'siities *$ 7-800©-00- ~ _~ +$ ~fl000:t70~ ~ i ~~r ! Drainage System ~ ~ c~ ~ ~~ ~`' ~~~ ,~~,! Roadway-&-P..auirag~-^-~ "°"."°"'. - :-..v.~.°~..+$ 1~5DOOAOy . :$ 1~~t~t3:p0 South Property Line Walt 750 L.F. +$ ~13540D:00 OD +$ '€35DOO: a g } ~.f, Retaining Watl ~„ +$ -~640A.DD, t$ ,:S60DA:flD.~ ~ Gr:<=, , ;.~;: ~ ~~~~ ~~ €~ ~ r,. Ht ~, ~~. ~ r s ~ 4~ Mit€gatian ~*$ ..274~iD:~O~ ~ +$ ~g3B2D:00' +$ "i'8°t82Q:'DO ~} ~ ~ -! ~~ i :~ , +$ 8884'20` ~ ,. -- ~ .z,.~:r~~ 's ~~.} +$ 88842E3:00' +$ ~ 37~684~:99- ~ , ,~ F'LORli3JA INI.ANll NAVIGATION DISTRICT WATERWAYS ASSISTANCE PROGRAM PROJECT COST ESTIMATES PROJECT NUIVIEER: PB-iDl3-b6-1:47 PROJECT TITLE: Delray Intracoastal Park (M.S.A. b50) APPLICANT: City Of Delray Beaeli Revisic~~ Date: Peb/11/2009 Project Elements Quantity Estimated Applicants F1ND {NumiJer and/or Cost Cost Cast r_ _._ __~ Seawall Repair +$ 5184.00 +$ 0.00 +$ 51$4.OD Baat Ramps 2 +$ 400831.86 +$ 103870.DD +$ 2967fi2.00 Restraam Building 410 S.F. +$ 120DOO.OD +$ 1200DO.D0 +$ O.DO Raadw~ay & Paving 68,421 S.F. +$ 297816.OD +$ 29781 fi.00 +$ D.00 Day back 5' x 55' ~$ 18328.DD +$ O.Ofl +$ 18328.00 Site !.€ghting +$ 64034.00 +$ 18D34.00 +$ 4600b.00 Utilities +$ fi6192.OD +$ 0.00 +$ 66192.00 Drainage System +$ 69321 AD +$ O.OD +$ 69321.00 Roadway ~ Paving +$ D.DD +$ 0.00 +$ 0.00 South Property Line Wail 750 L.F. +$ 123728.00 +$ 123728.00 +$ D.00 Retaining Wali +$ 154419.00 ~'$ D.DO +$ 154419.00 N1it€gafion +$ 7242.00 +$ 0.00 +$ 7242.00 ... +$ 132&885.65 +$ 663448.00 +$ 663448.00 TOTALS &'T.ORRIA INLAND NAV~~ATI~N B~IS1Ci~C!' WATERWAYS ASSISTANCI'a PROGI~TVI PROJECT CC03T L~'STI#4I~iTES PR©~CTNEJiV~iER: ~'~-DB-~w127 /~ PROJECT TIT•f,Es llletrsy Intracoastal Park (M.3.A, 53D) ~ ~~ r! AI'I'I.ICANT: C#ty Of lpe]ray 8eae'h !~~ Revts€na 3itate: Ptajeet dements Quantity -~t##'~f€d Applicants ~ (Number andlor Gust Cost Cost ~~ 43 ,oa t~ a .oa +~ a .uo ToTA~ Seawait Ragslr +$ . ~ ,~,1g~ *~ .i76 ~ +g ~98:9Q' 5,1~`~ BDnt RBtt,(~ 2 ~~ ~fA~, G3a ~' I n~. ~'74~ +~+ ! ~9~, 7~~. Resfroam Bulsling 470 S.fi. +$ ~6884:6~ 1~ 00~ ~'~• i'°""'"b ~,o ODD ' D Roadway & Pev#ng ~ 88,424 i"a.Fa ~$ d1D a9~~I *$~Tb9BC:tl~3 ~'1,~~~ d Day Doak t"i' x 69' ~,~.,'a8800;t1~ *$ 2~„pR86'.~0 ~~ d~~ ~ ~~~~, o~~ ~,oo~ b 1~ D ~ l~ ~~~~ r~~ ~ ~~ bra ~ South Propariy tine WSlI 75D {..F. ~-$ .00 +~i~ J+S~j„~,~',51tk'~~9:f1U loWJj /~~ Reta€tttrtg Wail •a$ .44 ~~i~~ ! V *~,(-.~ Imo( ~5 i _[ ~~ ~. M~#get~an ~.~ +g ~.rl0 +ffi . ~rboRtdA llal.ar~n laaviaA~riarl olsrRlcr war~RUVa~s assrs~~m~ce aRh~Rnr:i -. ~X~ft~3tr ^e^ PRO.t3CT 71Titc; f}atray Intracoasfal Park {Mangrove Park) APpWCAIdT': tatty of Oalr'ay 9eaeh Ganlremar Pey Appl. PRO.! Et.E EliTS em a, ty n p scan ast P113t3 Cnsls TotalAclual Cosi Seawa{I Repair 87 162 $52.00 3D.a9 5184.6D 5,184.00 BgBt Ramps 5t;eat PIIe Sea w8A wfCap ~ Bon! Ramps 32 95 $986.60 $0.09 D3,670.00 93,87a.0a t3oal RainPS {includes cheat P2+3 caffardam, rIp-rap ai ramps) 34 1 $187,920.00 $143,870.{35 84,049.85 187,920,09 Redestgrt 8 repfanemant Dz EAS7 seawaA at baa! ramp [ocaGon 63 t $88,328.60 $p.OD 68,32D.89 68,329,80 Redaalgn & roPlacarrutntof WEST seaK2l[at boas ramp tocatlon 84 1 55D,711.85 $O.DD 5D 711.85 6#1711.85 atatl3oatRam n 5193 0.05 5296?61.60 54D0831.86 Rentlanm But[dlrt 42 1 $720 DD0.00 5120 9DD.00 0.00 5120,OD6.00 Roadway and paving Type"A'Carb 12 3812 $14.40 526,788.00 D.OD $26.786.00 Type"P'Cur€s 73 1D2 $29,00 $2,04D.Oq 0.06 32,D49.OD f2" StabID~ed 8 Ccmpaciad Subgrade 94 7565 $5.00 337,925.D0 ~ a.Da 537,92b.OD #2" lJmerock Base 15 433 $25.aD $90,825.00 qA9 $10,$25.00 B'thrserackBase 16 8571 $14.00 5g5,364.fl0 0.00 $gS,$54.g0 B-tl2' A'sphatilc 5-3 17 424 ~ $34.00 $14,4#6.00 O.DO $14,435.00 1-1I2"S-3t2.i.Nls} 18 672$ $t3.Da 587,399.90 O.aD $57.3$9.D0 Pavers 18 277 $12,06 $3,324,110 D.00 $3.324.90 Themtn85(grtBQe 2a t $4,360A0 34,339.OD 0.06 $4,350.00 Whoe[ SiDPs 2i 10 $29.OD $280.80 D.aD $290.OD Sktewatha 22 605 $25.09 15125.D0 0.9D 335125.aD atat Raad artd pavtn 5297 816.06 30.9D 5297 616.90 o pads 36 t 518 326.Oq 50.09 78 328A9 $18 326.OD Bite U htln 43 1 $64 034.00 376 934.119 4fi 9DO.Oa 8d D34.D6 Utliltlas B"RfpWl4l,12'x6"t&ppingslaevri,2,8"RSGV 28 9 525,529.Oa SO.aO 26.520.0a 525,520.40 5artkaryManhata, Frame & tSd 24 2 34,#76.00 $O.OD 8,352.OD 36,352Da 6'C,ravMySasvar'ne-lnfoexisBn9rnanhoSeinatudsd 25 296 $?0.00 . 56.flD 20.72D.DD , $2D,720.OiJ Walar 5ervlcn wlrnetariwx & RPL BFp 26 t $2,988.00 SO,D9 2,D58.00 $2,OB8.6a &' Sanitary Raltuaf w1C.0. 27 3 $1,624, SOAa f 624.0II 31,924.90 Fire HydreR7 Assamh[y IlnCi. 5" RSGVlBD Llegtae t3and 8 Snmpln Patr€t ~ F3ydran! 26 2 35,944.00 30.aD T 688.00 $7 886.00 Tnfa9lJtlBtles - 9.9D 368,#92.96 586192,99 1 Omlrta3;;e Syatem s a $2,726.DO 3a.aa 19,9D4.96 $ta,9a4.aD StamtwatsrType C"inlet 7 1 $3,712,DR SR00 $,732,Dp 33,7t20b 4' Dlarnefer bTantroie • Siesm 8 1 $3.132.06 $9.00 3,332.Dd 33,1320D Cas>lrat5truciure•Typa C" 8 195 555.OD $9.W i7,3t0,DD 51i,310.0a 15' RCP Osstfail pipo soatlon From thn Central StrucWre 30 t1 $f57.00 $9.D9 2,567.99 $2,567.00 OtdfaB pipe sectlan tram the Control 5tnsrlura 11 58B $54.00 SD.OD 37 69600 $37.698.Oa Total Gratrt a stem SO S€q 369,327A0 369,321.99 South Prolrerty Rlrta Wn6 43 ~ 7D3 $176.OD 5123,728 4D a.9a $#23,720.00 Retalnln VYnit ParaPetwlhe0draii,FODT[ndex80D&860 30 303 5160.00 $0.06 36,48f1.Dil $t6,48D.D0 Re-analrseered retaining wet[ ulAiring King PIIas 52 1 3137,039.45 $,Q,QQ 137 959.46 ' $137.939.45 TotalRetatnln Wa1l• EO.aD 51SA 19A5 154479.46 Mitlgadorr RetlMan rove5eed?in 65 56B ..$72,75 50.96 7 z.D9 37 2.DD Tatat ~ 5863,446.05 1663,448.95 31,326,896.10 c~t~rl~ICArto~r at= ac~uarJdoNSTrzul:rtnN cows: 1 certity that the atl~e Ide~1t~~rojaat etemerrts were tnctarralt far the betray Itltracoastai Park (Mangfave Partf} pr~ t and to the hest of kFla re true ar:d carrecl: ~'. ~. Prepared by: Approved by: „~, i',_,•~/,,,~_ Printed e: J E FrrFnted Name: Re 1 BeltesiB iitte: C gnMenager 'title: utyplrecl9ra structlan ' gate: pe r 8.2008 17at6: pecembar 8,2A08 ~ FLORIDA IIV.AIVD I1IAVIGATI01~ DISTRICT COMMESSIONERS MICHAEL D. MESIAND CHAIR DUVAL COUNTY BRUCE D. BARKETT VICE-CHAIR WD1AN RIVER COUNTY JERRY H. SANSOM SECRETARY BREVARD COUNTY 5. NORMAN BRAY TREASURER NASSAU COUNTY GRAYCE K. BAACK vOlruslA couNTv GAIL A. BYRD MARTIN COUNTY DONN R. CDLEE, Jft. PALM BEACH COUNTY T. SRENCER CRDVJLEY, III MIAMI-DARE COUN11' 5U5AN M. ENGLE BROWARD COUNTY GAIL KAVANAGH ST. l.tJ01E COUNTY JONATHAN S. NETTS FLAGLER COUNTY CHARLE5 A. PADERA ST. JOHNS COUNTY DAVID K. ROACH EXECUTIVE DIRECTOR MARKT.CR05LEY ASSISTANT EXECUTIVE DIRECTOR February 10, 2009 Ms. Alberta Guam-Rickard Project Coordinator City of Delray Beach 100 NW 1st Avenue Delray Beach, Ft. 3344 RE: Deiray Intracoastal Park (MSA 650) Project # PB-DB-06-117; Project Agreement Extension Dear Ms. Guam-Rickard. Your FIND Commissioner and our Executive Director have approved your request fora minor cost estimate ,revision to the above referenced project. Attached you will find two (2) originals of the Project Agreement Amendment -Cost Estimate Revision and the Revised Exhibit B -Project Cost Estimate. Please read this agreement carefully and execute and return both agreements to me for final execution by the District. One fully executed original will be returned to you for your records. Please note, I have already processed your request for payment, which should be forwarded to your soon. Should you have any questions or need additional information please contact me. Since I , ark Cr s[ Assistan xecutive Director ADMINISTRATIVE OFFICE ON THE INTRAGOASTAL WATERWAY IN PALM BImAGH CC3UNTY 7314 MARCiNSKI ROAD, JUPITER, FI_ORII']A 33477-9427 7ELEPtiONE 561 627.3386 FAX Na. 581-624-6480 www.aiCw.arg ,. ~° - - ~ ,, ;~ w ! . ,; ~~ ~ . ,, ,'` PROJECT NO. PI3-DB-06- l 17 ~. This PROJECT AGREEIVIENT made and entered into this _ ~ ~ day of l[,~/~,(j~~-~__, ~~~ by and between the Florida Inland Navigation District (hereinafter the "DISTRICT"), and flee City of Delray Beach, (hereinafter the "PROJECT SPONSOR"). In. consideration of the mutual promises and covenants contained herein, the parties agree as follows: l . PROJECT ~ Subject to the provisions of this Agreement a~ad Rule 658-2'of the Florida Adrni.nistrative Coda (I?xhibit "A"), the DISTRICT has determined to provide assistance funding to the PROJECT SPONSOR in furtherance of an approved project ("PROJECT") consisting of the Deka Intracoastal PaxlC SA b50 . Said project is more specilzcally described in the PROJECT SPONSOR'S V4!'aterways Assistance Application, which is on file at DISTRICT lzeadcluart~:rs. Any zxaodifcations to the PROJECT shall require advance native to and the prior written approval of the DISTRICT. 2. TET2lVI -The PROJECT SPONSOR shall net carru~aence work on the PROJECT prior to the execution of this Agreement unless specifically authorized by the DISTRICT Board and sl~ail cc~u€~lete the T'ROJECT and submit all required payment rei~mburse~nent infQrwation on or before September 1, Z0~8? unless the PROJECT period has been extended with the prior written approval of the DISTRICT. In no event, however, shall the PROJECT period extend beyond three (3) years from October 1, 2a(}f. The PROJECT SPONSOR acknarrvledges there are no provisions to carry over the DISTRICT assistance funding under this Agreerx~.ent beyond September 30, 20(!9, and that any extension of funding beyond this date shall be at the sale discretion afthe DTSTRICT. Any request far extension of funding beyond the date set Earth in the preceding paragraph shall require subzriittal by the PROJECT SPONSOR of a request far extension to the ITSTRICT ~~..... ... I{yDORI13A TNEA,NI) N.AVIGATFON DIS'~`R~CT PROJECT A.GREEIVIENT na later than July 1, 2pp$. This request will then be considered by the DISTRICT Board, whose decision sha11 be final. 3. ASSISTANCE A1V.COUNT -The DISTRICT shall contribute ~o more than fiftv percent 5p°fo of the PROJECT SPONSOR'S out-a~ pocket costs for cotxtpletion of Ibis FROJECT ("PROJECT AMOUNT"). Payment of funds by the DISTRICT to the PROJECT SPONSOR. (the "ASSISTANCE AMOUNT") will be an a reitxtbursetnsnt basis only, and only for those authorized PROJECT COS'T'S as shown in Exhibit B and meeting the requirements of Paragraph S below and sba11 not, in any event, e~rceed $d$$.42U.pp. 4. MATCHING FUNDS -The FROJECT SPONSOR warrants and represents that it has the PROJECT SPONSOR Match Amount (the PROJEC'T'. AIVIOUNT less the ASSISTANCE AMOUNT) available for the completion of the PROJECT and sha11, prior to the execution of this Agreement, have provided the DISTRTGT with suitable evidence of the availability of such funds using DISTRICT Form. X95-p1 (Exhibit C), and including upon request, providing the DISTRICT with access to applicable books and. records, financial statements, and bank statements. 5. PROJECT COSTS - To be eligible for reimbursetx~.ertt under the Project Agreement, PROJECT COSTS must be necessary and reasonable far the effective and efficient accomplishment of the PROJECT and must be directly allocable thereto. PROJECT COSTS are generally described izx Exhibit B. PROTECT COSTS must be incurred and work perfartxzed . within the PROJECT period, with the exception of preTagreement costs, if any specifically identified in Paragraph 6 below, which are also eligible far reimbursetx~ent by the DISTRICT. 6. ERE-AGR.EEN.CENT COSTS -The D1STItT~T and the PROJECT SPONSOR fully usaderstand and agree that there shall be na reixnbursena.ertt of funds by the DISTRICT far any obligation ax expenditure made prior to the execution of this Project Agreement. 7. REIMSUI~SENIENT PROCEDURES -PROJECT COSTS shall be reported to the DISTRICT and summarized on the Payment Reimbursertaertt Request Form (Porto ~9p-I4) attached as Exhibit D. Supporting dacuxrtentation including bids and canceled payment vouchers for expenditures shall be provided to the DISTRICT by the PROJECT SPONSOR ar LIAISON AGENT' with any paytrtent request, All records ire support of the PROJECT COSTS Included 1n payment requests shall be subject to review and approval by the DISTRICT or by an auditor selected by the DISTRICT. Audit expenses shall be borne by the PROJECT SPONSOR, ~.. Project funds may be released in installments, at the discretion of the DISTRICT, upon subrr~ittal of a payment request by the PROJECT SPONSOR ar LIA.ISON ACi-ENT. The DISTRICT shall retain ten percent (IO%} ofeaah installment payixient until the completion ofthe PROJECT. The following casts, if authorized in the attached Exhibit B shall be reimbursed only upon completion of the PROJECT to the reasonable satisfaction of the DISTRICT and in accordance with Exhibit A: personnel, equipment, project management, administration, inspection, and design, permitting, planning, exkgineering, andlar surveying costs. The DISTRICT shall have the right to withhold any payment hereunder, either ixz whale or part, far non-compliance with the terms o£this Agreement. j g. TAI.. g,~~N.IBUItS1~l1~EI~IT -The FR.OJECT SPONSOR, upon completion of ~. the PROJECT, shall submit to the DISTRICT a request for final reirribursernezat of the PROJECT AIV3.OLTNT less any poor installment payments. The Payment ar~riouxits pxeviousIy retained by the DISTRICT sl?.all be paid upon (1) receipt of the Final Audit report of expenses incurred on the PROJECT by the DISTRICT, (2) full completion of the PROJECT to the reasonable satisfaction i of the DISTRICT, (3} submission of Project Caxnpletian Certification Form No. 9013 (Exhibit E}, arld (A~} su'br~aissian of a photograph. of the PROJECT showing the sign. required by Paragraph l7. Unless otherwise determined by the DISTRICT, the final reirriburserrieut check shall be . presented by " a DISTRICT representative to the PROJECT SPONSOR during a public cozr~inission meeting ar public dedication ceremony far the PROJECT facility. 9. RECO~S R~'ICI~NTION -The PROJECT SPONSOR shall retain all records supporting the PROJECT COSTS far three {3} years after the.end a~the fiscal year in which the Final Faymexit is released by the DISTRICT, except that such records shall be retained by the ' PROJECT SPONSOR until final resolution of matters resulting from any litigation, claim, or ', special audit that starts prior to the expiration of the three-yeax retention period. I0. NUNCONI~.'I..IANCE -The DISTRICT shall have the right to reimbursement, either in whole or part as it may determine, of the funds provided hereunder for noncompliance by the PROJECT SP©NSOR with any of the terixis of this Project Agreement. [Ipon notification ' frann the DISTRICT, the PROJECT SPONSOR shall reimburse such funds directly to the DISTRICT. The provisions of this paragraph shall survive campletiozi of the PROJECT. . l 11. DISTRICT' PROJECT MANAGER ~ The Executive I3irectar, or his designee, is hereby designated as the DISTRICT'S Project Manager for the purpose of this Project Agreement and shall be responsible for monitoring performance of its terms and conditions ar~d for approving all reimbursement requests prior to payment. 12. SPflNSflkZ'S LIAISON .A.GENT -The PROJECT SPONSOR shall appoint a LIAISON AGENT, whose Warne and title shall be submitted to the DISTRICT upon execution of the Project A~ree~xaent, to act on behalf of the PROJECT SPONSOR relative to the provisions of the Project Agreement. 13. STATUS REI~flIt'fS -The PROJECT SPONSt??R'S LIAISON AGENT shall subxnzt to the DISTRICT project status reports during the PROJECT terrra.. 'T'hese Quarterly Reports are to be on Form X95-02 (Exhibit F}. Project design drawings, engineering drawings, and a copy of the I'raject bid award construction item cast list will be submitted as available. Photographs shall be submitted when appropriate to reflect the work accomplished. NON- COMPLIANCE by the PROJECT SPONSOR with the reporting schedule in Exhibit G may result i[n revocation of this Agreement. l4. LAWS -The PROJECT SPONSOR agrees to obtain and to abide by all federal, state and local pernr~its and all applicable laws and regulations in the development of the PROJECT. The PROJECT SPONSOR agrees that all PROJECT facilities shall be designed and constructed in compliance with state and federal statutory requirements for accessibility by handicapped persons as well as all other federal, state and local laws, rules and requirements. I.S. NON-IHSCIIIMINATIflN -The PROJEC`T' SPONSOR agrees that when connpleted, the PROJECT shah., be readily accessible, an a nonexclusive basis, to the general public without regard to age, sex, race, physical handicap, or other condition, and without regard to residency of the user in another political subdivision. When such is required, adequate parking. shall be made available by the PROJECT SPONSOR to accommodate vehicles for the number of persons for which the PROJECT is being developed. 16. SITE DEDICATIpl1t -The PROJECT SPONSOR also agrees that the PROJECT site shall be dedzaatecl for the public use for a rninimurza pe:tind of twenty-five (25) years after completion of the PROJECT, such dedication to be in the form of a deed, lease, manage~n.eat agreezrzent or other legally binding dncu~nent. Any change in such dedication shall require the prior approval of the DISTRICT. The PROJECT SPONSOR shall recoxd evidence of such dedication within the Public Records of the County in which the PROJECT is located. 17. .A.C~IQ'VVLEDGl1~ENT -For constructioxa projects, the PROJECT SPONSOR shall erect a permanent sign, appro~red by the DISTRICT, in a prominent location at the completed project which shall indicate that the DISTRICT contributed Bands far the PROJECT. The wording of the sign, required by this paragraph shall be approved by the DISTRICT's staff before construction and installation of said sign. This sign shall contain the DISTRICT logo (Exhibit I-I} unless otherwise stipulated by ttae DISTRICT. In the event that the SPONSOR erects a temporary construction sign, it shall also indicate the DISTRICT's participation. p'or alI other type projects, the SPONSOR shall acknowledge the DISTRICT where feasible, in concurrence with the DISTRICT staff's recommendations. 18. P.RUJEC'I' MAINTENANCE - ~7laen and where applicable, the PROJECT SPONSOR agrees to operate, nraaixatain, and manage the PROJECT for the life of the PROJECT improvezxaents and will pay all expenses required for such purposes. The PROJECT improvements shall be maintained in accordance with the standards of rraaintenazace for other local facilities and in. accordance with applicable health standards. PROJECT facilities and improvements shall be kept reasonably safe and in reasonable repair to prevent undue deterioxatian and to encourage public use. The PROJECT SPONSOR warrants and represents that it has full legal authority and f nancial ability to operate and maintain said PROJECT facilities and improverrients. 19. SOVEREIGN INdNIUNITY -Each party hereto agrees that it shall be solely responsible for the wrangfial acts of its employees, contractors and agents. however, nothing contained herein shall constitute a waiver by either party of its sovereign immunity under Section 768.28, Florida Statutes. The PROJEC'T' SPONSOR acknowledges that the DISTRICT, its employees, comiriissioners and agents are solely providing fixnding assistance fax the PROJECT and are not involved in the design, corastructioza, operation or maintenance of the PROJECT. 20. 1NSI'ECTIOi~TS ~ The DISTRICT reserves the right, upon reasonable request, to inspect said PROJECT and any and ail recards related thereto at any tiix~.e. 21. RIGH'T`S ANU DU'T'IES -The rights anal duties arising under this Agreeixaent shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, and shall, unless the context clearly requires otherwise, survive completion. of the . ~ ~. PROJECT. The PROJECT SPONSOR znay not assign this Agreement nor any interest hereunder without the express prior written consent of the DISTRICT. ~2. WAI~RS -Waiver of a breach of any provision of this Agreement shall not be deetx~ed a waiver of any other breach of the same or different provision. 23. NOTICE -Any entice required to be given pursuant tv the terms azzd provisions of this .Agreement shall be in writing, postage paid, and shall be sent by certified 7xaail, return receipt requested, to the DISTRICT or PROTECT SPONSOR at the addresses below. The notice shall be effective on the date indicated on the return receipt. To the DISTRICT at: Florida Inland. Navigation District 1314 Marcinski Road Jupiter, Florida 33477-948 To the PROJECT SPONSOR at: City of Delray Beach Attention: Director, Parks & Recreation Dept. 50 NW 1st Avenue Delray Beach, FI., 3344 24. NO JO~_'VENTURE -The DISTRICT's role with respect to the PROJECT is that of a fctnding assistance authority only and the DISTRICT is not, and shall not be considered to be, an agent, partner, or joint venturer with the PROJECT SPONSOR. ~~ 25. G()~RNING LAW ~ The validity, interpretation and perl'orznance of this Agreement shall be controlled a7zd construed according to tl7.e laws of the State of Florida. 26. 'X'RANSFERENCE - It is the intent of the DISTRICT to issue this funding assistance to the PROJECT SPONSOR who has made application for this assistance. In the event the PROJECT SPONSOR transfers ownership or management of the PROTECT to a party or parties not now a part of this document, other than another governxnental entity that agrees to assume, in writing, PROJECTS SPONSOR'S obligation hereunder, the DISTRICT retains the right to full reimbursenzerat from the PROJECT SPONSOR to the 6711 extent of the funding assistance provided by the DISTRICT, including but not limited to any costs and reasonable s ~ ~ f.. . attorney's fees (regaxdless of whether litigatiozz ensues} incurred by the DISTRICT in collecting said xei~nl,ursement. 27. ENTI~ UNDERSTANDING -This Agreement, including any exhibits made a part hereof, embodies the entire .Agreement and uudarstanding of tlae parties and supersedes all, prior oral anal written cor~zuurticatians between them. The terms hereof may be modified only by a written amendment signed by both parties hereto. II~T WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day, month. and year aforesaid. WITH/E S .FLORIDA INLA I TIC) IS T J~ sy: DZrec or DATE: ~ ~v WITNESSES: By: Titl DATE: \ti~~~~~lp ~l~~~V i E~BIT B FLORIDA INLAND NAVIGATION DISTRICT WATERWAYS ASSISTANCE PROGRAM PROJECT COST ES"fSIvIATE See Rule Sectiaz~ 668-2.005 & 2.008 for sli 'bill and fiu~.din ratios PROJECT TITLE: Delray Xntzacaastal Park APPLICANT: Ci afA0lra Beach Pr+~,ject Elements Quantity Estimated Applicant's Cost FIND Cast (Please list the ~J'OR project elements and Cost pravlde a general cast break out far each one. (Number andlar Footage) Far ]'base 1 Projects, please List the rnajar elements and products expected) seawall Repair allowance $ 25,40a ~ $ 39,6aa , . Boat Ramps 1s 2 . - 0 - $l$5,Oa0 Restroozn building t~ 410 SF. ~ $ 85,a00 - 0 - Roadway and PaviuS 65,421 SF $17S,afla " 0 " Day dock S' x 55' -o- 2(3,OOa. Site lighting ~' -0- 46,000_ T3tilities -0- t 70,OOa - Drainage system "a- , 11 t1,El0U - Roadway and paving 175,000 -0- . South property line wall 750 liz~car ft. l35 000 -0- Retaining wail -0- 36,000 Mitigation 43,a20 . 181,820 .. ~`*TOTALS 11 $ $688,42fl $688,42a Form No. 90-25 dew laf14/92, Revised Agenda - 14 - MEMORANDUM TO: Mayor and City Commissioners FROM: Jasmin Allen, Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH: City Manager DATE: February 13, 2009 SUBJECT: AGENDA ITEM 8.L. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 REVIEW OF APPEALABLE LAND DEVLEOPMENT BOARD ACTIONS ITEM BEFORE COMMISSION The action requested of the City Commission is review of appealable actions which were taken by various Boards during the period of February 2, 2009 through February 13, 2009. BACKGROUND This is the method of informing the City Commission of the land use actions, taken by designated Boards, which may be appealed by the City Commission. After this meeting, the appeal period shall expire (unless the 10 day appeal period has not occurred). Section 2.4.7(E), Appeals, of the LDRs applies. In summary, it provides that the City Commission hears appeals of actions taken by an approving Board. It also provides that the City Commission may file an appeal. To do so: . The item must be raised by a Commission member. . By motion, an action must be taken to place the item on the next meeting of the Commission as an appealed item. REVIEW BY OTHERS Site Plan Review and Appearance Board Meeting of February 12, 2009 A. Approved with conditions (6 to 0, Chris Stray absent), a Class I site plan modification associated with the installation of awnings along the east and south elevations for the Turnover Shop, located at 10 NE 5th Avenue (west side of NE 5th Avenue, just north of East Atlantic Avenue). B. Approved with conditions (6 to 0), a Class III site plan modification and landscape plan associated with the demolition of two existing buildings, reconfiguration of the parking area and addition of a loading area, lighting and landscaping as part of the final phase of improvements for Delray Toyota, located at 2000 South Federal Highway (southwest corner of South Federal Highway and LaMat Avenue). Concurrently, the Board approved a waiver to reduce the required landscape strip between the off-street parking and the abutting property from 5' to 4' for the northeast portion of the car parking area. Historic Preservation Board Meeting of February 4, 2009 1. Approved (5 to 0, Keith Snider and Rhonda Sexton absent) a request for a Certificate of Appropriateness for as-built alterations on a contributing structure located at 60 Marine Way (northwest corner of Marine Way and NE 1st Street). No other appealable items were considered by the Historic Preservation Board. The following item which was considered by the Board will be forwarded to the City Commission for action. 2. Recommended approval (5 to 0, Keith Snider and Rhonda Sexton absent), of Ordinance 06-09, pertaining to the change of classifications within the Marina Historic District, with the revision that the property located at 238 SE 7~' Avenue not be reclassified to non-contributing. This condition is provided for in an alternate version (Version 2) of the subject Ordinance. RECOMMENDATION By motion, receive and file this report. Attachment: Location Map N SPRAB HPB A. TURNOVER SHOP 7. 60 MARINE WAY 8. DELRAY TOYOTA (PHASE lll) ~~~~~~~~~~ CITY LIMITS ~~~~~~~~~~ ~ ONE MILE ~ GRAPHIC SCALE CITY OF DELRAY BEACH, FL PLANNING & ZONING DEPARTMENT FEBRUARY 2009 MAP REF: S:\Planning &Zoning\DBMS\File-Cab\CC-DOC\2-17-09 --olGlraLaasEMaPSVSreM-- MEMORANDUM TO: Mayor and City Commissioners FROM: Victor Majtenyi, Deputy Director of Public Utilities Richard C. Hasko, P.E., Director of Environmental Services THROUGH: David T. Harden, City Manager DATE: February 6, 2009 SUBJECT: AGENDA ITEM 8.M.1 -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 BID AWARD/CLOSE CONSTRUCTION INC. ITEM BEFORE COMMISSION Approve a bid award to Close Construction, Inc. in the amount of $633,527.00 for construction of the Beach Area Reclaimed Water In-Line Booster Station project, PN 2008-048.1. This is Contract One of a multicontract project for the construction of the Beach Area Reclaimed Water System and its first phase, Area 11A. BACKGROUND On February 3rd, 2009, bids were opened for the Beach Area Reclaimed Water In-Line Booster Pump Station project. Close Construction, Inc. was the lowest responsive bidder. Although the low bidder has not previously performed work for the City, staff has verified and received positive feedback from their references. The project involves tapping the 36" outfall pipe, installing a 16" electro-magnetic flow-meter in a below ground vault, replacing two existing pumps with 75hp units inside the station, and installation of piping in a configuration to provide a stub out on NE 4~' Avenue for continuation of the transmission system to the south and east to serve the Barrier Island. The project area is identified on the attached location map. This is the first of three (3) contracts required for the construction of the Beach Area and Area 11A system Contract Two will extend the transmission main from the Booster Pump Station to the Intracoastal Waterway, and Contract Three will be for construction of the transmission/distribution system on the barrier island for Area 11A and ultimate connection of customers to the system. Our current budget for the multiple contract composite project is $ 2.7 million. The City has received grant funding for the composite project in the amount of $1,118,000 through the South Florida Water Management District (SFWMD). The grant program requires that all contracts be completed by August 31, 2009. FUNDING SOURCE Funding is available from 441-5181-536-65.96 (Water & Sewer Fund/Other Improvements/Reclaimed Water Transmission). RECOMMENDATION Staff recommends approval of a Bid Award to Close Construction, Inc. in the amount of $633,527.00 for construction of the Beach Area Reclaimed Water In-Line Booster Station project. 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A total of eleven (11) bids were received from Contractors. A summary of the bid tabulation is attached. The low bid was received from Close Construction Inc. located in Wellington, Florida in the amount of $633,527.00. We have reviewed the proposal submitted by Close Construction Inc. and have verified that their bid documents are complete (based upon clarifying information received from them on 2-6-09). We have also contacted several of their similar work references which confirmed they have performed satisfactory work in South Florida on past projects. Based on the bid proposal submitted and their past performance on utility infrastructure projects, Mathews Consulting recommends award of the project to Close Construction Inc. in the amount of $633,527.00. If you have any questions, please call us. Sincerely, H NSULTING, INC. ne :'Mat ews, P.E. President Enclosure c: File Delray / 1481 /Contract 1 Bidding Mathews Consulting, Inc. • 1475 Centrepark Boulevard, Suite 250 • West Palm Beach. FL 33401 561-478-7961 • Fax 561-478-7964 www mathewsconsultinginc. com ~ ~ '~ ° a m°~ ;e ~ ~. ~ o ~ ~ o 0 0 0 °o ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ N m W ~ m H C ~~ d E N Z C1 ~ d Z ~~ N N N W N W U1 d! N N N ~ O 3 W W W W W W W W W W W gym.. y 'Q a a a F - Q o 0. ~ ° ~ ~ ~ a o N ~ ~ i0 ~o ~ ~ °° ..,, M~ ~ W ~ W F ~ ~ ~ ~ ~} m O O O O O O O O O O O O O O O O H M ~~ O O O O p fA .~9 Q ~ ~ O ~ 'p p (~ ~ O O O O O e~7 00 O ~ . .~ m 7 ~.. M ti ti 'a' e+~ ~D f~ et N r r ~"~ p m ~ W >~ ~ Vs ~ K ~ u! ° ~ i ~ i to ti M ~ ~ M r ~ ~ oMO ~ w ~ ;« '~ Q ~ = W ~ o ~,. J c ~' > ~ ~'D a Z ~ ~ Vm ~ ~ o m ~ 0 d 0 V s o W ? N ~ a Z o ~ i ? • z a v v v ~ c z cs d z Z ~ Z ~ ~ z O v ~ ~ Z z QC ~ r Q Z O _ ~ W N V ~ Z _ ~ V W H o ~~" ~ Z z ° ~ V Z N ~ z O ~ ~ Z Z © W ~ ~ W W Q Q C7 W W ~ v O > `m a Z N H O J v W D a ~ N ~ ~ ~ z y ~ ~ } D W Z O ~ V Y Q ~ Z ~ ~.- ~ ~° y z y oc ~ ~ m ~ ~ o O ~ oc ea ~ a ' ~ m ~ ~ ~ ~ ~ ~ ~ ~ a Y ~ m~ 'm m > ~ c~ z ~ c~ ~. ~ ~ = a z ~ o r O Q a 3 3 Q x x ~ a a a a ~ o! o- a a a o o W ~ ~ ~ J K Q H N.E. 3RD ~ Nst ro 0 c 0 Y N ~ ~ N M z ~ ~^ Q E N.E. 2ND ST. n cv a 3 I ~ ~O ~ ~ ~ ~ ~ ~ J O ~ 4i ~J a 0] m Q D R Z ~ _ = N.E. ai a r` H H 1- o a ~ o' ~ z_ w ~ z ~ ~ a 4 Q c _ ~ N.E. 1ST ST. ~ o ~ ~ U ~ < r 0- Q N lal lal p O W O z z Z ~ Z ~ Q = _ ~ (n N Z O ~-0z~ ja o A T L A N T I C A V E N U E O ~ ~ ~ ~ ~ a a o ~ -- v°i in I a E - I a`~ 0 0 m 0 0 N O) O O U N O O_ 0 0 Q U W ~~ CITY of DELRAY BEACH I N-LINE BOOSTER PUMP STATION DATE:02/09/2009 d ENVIRONMENTAL SERVICES DEPARTMENT ®®~ 434 80UiH SWNiON AVBJUE, DELRAY BEACH, FLOFl~A 3;1444 LOCATION MAP FILENAME 2009-200 MEMORANDUM TO: Mayor and City Commissioners FROM: Joseph Safford, Finance Director Patsy Nadal, Purchasing Manager Amy Robinson, Sr. Buyer THROUGH: David Harden, City Manager DATE: February 12, 2009 SUBJECT: AGENDA ITEM 8.M.2 -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 BID AWARD/MULTIPLE VENDORS/ROAD CONSTRUCTION ITEM BEFORE COMMISSION City Commission is requested to approve multiple awards to low responsive bidders for Road Construction Materials to various vendors listed below, at an estimated annual cost of $250,000.00 for the City of Delray Beach. Road Construction Materials to be ordered "as needed". BACKGROUND The City of Delray Beach is the lead organization for this Co-op Bid. Eight (8) vendors submitted bids on January 15, 2009, one (1) bid was non-responsive. The bids are based on estimated annual quantities from six (6) governmental entities (Bid #2009-11 on file in the Purchasing Office). A tabulation of bids is attached for your review. Delivery Costs: A separate schedule of pricing sheet was included in bid specifications for delivery to each participating entity. Pick-Up Costs: In order to determine the true lowest cost to each entity and for the purpose of evaluation only for picking up road construction materials with City trucks, total cost concepts were placed in the Co-op specifications (a cost per mile, shall be added to vendor(s) unit price for travel by the participating entity). Awards are to be made individually by each participating entity based on an average cost of $.90 per mile that each governmental entity adds to the unit price. Actual miles to be based on round trip from entity's garage to each vendor's pick-up site. Attached for your review are the requirements and recommendations for award for the City of Delray Beach. Recommendations are being made to low bidder(s) for delivered materials and bidder(s) with low truckload cost for pick-up materials. The recommended vendors for the City of Delray Beach are as follows: Vendor Austin Tupler Trucking, Inc. Bergeron Sand & Aggregate Community Asphalt Corp. Devland Site Inc. D.S. Eakins Construction Corp. Hardrives Inc. Tate Transport Corp. Inc. The Deputy Director of Construction has reviewed the bids and recommended award for the City of Delray Beach as stated above per attached memo dated February 10, 2009. 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Y p - O ~ ~ ~ V Q7 a+ C ~ ~ N _ ~ J V U ~c ~ ui .c °m m = i~ U c ~ Q ~ W ~ ,~ a ~ ~ m '~ c ~ ~ N ~ O, ~ t W~ Q 2 E ~ _ ~ ~ ~ w L ~ f- ~~ U ~ 'a D m U a 3 U ~ ~ o ~ W y ~ ~ oo ~ H ~, v u~ co r~ O j ': W ~ ~ - © U (7 0 c~ J r d w ' `m f~ m M ti V N c ,O D a H m 0 City ®f Delray Beach Department o_ f'~nvironmental Services M E M O R A 1~ D U M zv-vrv.mydelraybeach.eam TO: Amy Robinson, Senior Buyer FROM: Rafael Ballestero, Deputy Director of Construction SUBJECT: Road Construction Materials Co-op Bid DATE: February 10, 2009 Listed below are the results of the co-op bid analysis, based on price and mileage. Group A, Road Materials -Asphalt {pick up): 1. Type 5-1 Asphalt - Hardrives, Inc. 2. Type IIAsphalt - Hardrives, Inc. 3 . Type III Asphalt - Hardrives, Inc. 4. Cold Patch Asphalt - Hardrives, Inc. S. RC#70 Tac Oil - Hardrives, Inc. 6. Permanent Cold Patch Asphalt -Community Asphalt, Inc. Group B, Road Materials -Non Asphalt {pick up): 1. Crushed Coarse Li~nerock -Austin Tupler Trucking, Inc. 2. Pit Run Shellrock - Hardrives, Inc. 3 _ Drainfield Rock 3/4" -Austin Tupler Trucking, Inc. 4. Best Mason Sand -Austin Tupler Trucking, Inc. 5. Clean Fill Dirt - D.S. Eakins Canst. 6. Precast Bumpers - NIA Do not award 7. Crushed Recycled Concrete - D. S. Eakins Const. 8. D.O.T. Crushed Rock - Hardrives, Inc. 9. #57 Rock -Austin Tupler Trucking, Inc. Group A, Road Materials -Asphalt (delivered): 1. Type S-1 Asphalt -Devland Site, Inc. 2. Type IIAsphalt -Devland Si#e, Inc. 3. Type III Asphalt -Devland Site, Inc 4. Crushed (recycled] Asphalt - D. S. Eakins Const. S. Pernaane:nt Cold Patch (Ready Road Repair or equivalent) - NfA, no bids Group B, Road Materials -Non. Asphalt {delivered): 1. Crushed Coarse Limerock -Bergeron Sand and Aggregate 2. Pit Run Shellrock -Tate Transport Corp. 3. Drainfield Rock 3/g" -Bergeron Sand and Aggregate 4. Best Mason Sand -Tate Transport Corp. 5. Clean Fill Dirt -Devland Site, Inc. b. Precast Bumpers - NIA Do not award 7. Crushed Recycled Concrete -Tate Transport Corp. ~: Richard Hasko; Director of ESD 5:1EngAdminlCons~ncfion 1?ivisionlBallesierolrlnnualmad materials memo.2.10.69.doc Page I of 1 Robinson, Amy From: Ballestero, Rafael Sent: Tuesday, February 9 0, 2409 2:25 PM To: Robinson, Amy Cc: Hasko, Riehard Subject: RE: Road Construction Materials Sid Recommendations Attachments: Annual road materials memo.2.10.09.doc Amy: Attached is my recommendation for the Road Construction Materials bid. Please note that my recommendation includes an award or two to a unit price which is not the lowest. The recommendations were based on overall benefit to the city, price and distance combined. Please call if you have questions. Thanks, Rafael C. ~allesfero Deputy Director of Construction City of Delray Beach (561) 243-7320 ballestero(a~ ci.delray -beach.fl.us From: Robinson, Amy Sent: Monday, February D9, 2DD9 9:56 AM To: Ballestero, Rafael Subject: Road Construction Materials Bid Recommendations Rafael, We need your recommendations sent back to the Purchasing Dept. ASAP to make the next Commission Meeting. Thank you, Amy Robinson Purchasing x. 7'163 2~1a~2ooa MEMORANDUM TO: Mayor and City Commissioners FROM: Joseph M. Safford, Finance Director Patsy Nadal, Purchasing Manager THROUGH: David Harden, City Manager DATE: February 12, 2009 SUBJECT: AGENDA ITEM 8.M.3 -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 BID AWARD/MULTIPLE VENDORS/MEDICAL AND DRUG SUPPLIES ITEM BEFORE COMMISSION City Commission is requested to make multiple awards to low responsive bidders, as stated below for medical/drug supplies for the Fire Department at an estimated cost of $160,000., for balance of FY 08/09 for the City of Delray Beach Fire Department to be ordered "as needed". BACKGROUND The City of Delray Beach is the lead entity for this joint bid with the City of Boynton Beach. Bids were received on December 22, 2008, from seven (7) vendors, all in accordance with City purchasing policies. NOTE: The group totals listed on the tab sheets reflects the total of each group for the UNIT PRICE of each item in that group. The bids have been reviewed by Victor B. Williams, Acting Division Chief for the Fire Department and he recommends award to various vendors for the City of Delray Beach per attached memo dated January 28, 2009. The City of Boynton concurs with the recommendations per attached e-mail dated February 10, 2009. Recommended awarded vendors per group are as follows: Bound Tree Medical LLC Henry Schein Matrix Medical Southeastern Emergency Equipment Matrix Medical Inc. Quadmed FUNDING SOURCE 001-2315-526-52.20 (General Fund/Operating Supplies/General Operation Supplies). RECOMMENDATION Staff recommends award to various vendors (lowest responsive bidders) as outlined above and highlighted on attached Tabulation of Bids for a total estimated annual cost of $160,000.00 [~ d ~ w ~ m n. w ~ a ~ ~n °'' ~ a ~ J ~ ~ ''' ai ° a ~ ~ ~ ^2 ~ ~ m ~ m O 4 r ~' a o ~ ,r h N r d Vr O C~ O ~ Z vi ~ ~_ ~} O ,~,., `fl o ~ 6] R z z `~' `~ z a ~ ~ ° w ~ w w ~ ~ J d1 J J IA F- ~ W U ~ ~ d o r ~ d ~ rQ1i ~ ~ r o7 ~ d rn ~ ~ ti ~ m m N G 2 C9 ~ ~` ? p Z D c0 C~ ~ ~ ~ M U7 ~ '~ C~ Q ~ Q1 ~ c ~ N ~ c ~] ~ N ~ Z Z - Z - 64 fR J W a ~ a ~ ~ ~ ~ ~ ~ ~' ~ ti ° O V m m m M m ~ Pa ti ~~ Z Z Z psi Z ado Z - ~"~ N ~ 64 ~ ~ (D N ~ Z X O ~ N O M C9 c0 ~ ~ z = ~" o ~ N ~ ~ n o 0 ~ w ~ ~ ~, ~ ~ ~ ~ ~ ~ v r r N a~ a w w M w ~ w c~~ ~ r rn w w ~ co c, W ~ U d ~ Q ~ ~ d Sri Op ao in tO a a ri ui r c ° r co a° o a ~ ~ N ~ ~ ~ o ti r i ~ ~ m ~ i ~ w~ C7 O ao ~ O rn Z ~ ai ~ O rn ao ~ N r u 00 r2 ~ ~ Z ~ Z ~ ~ ~ ~ ~ 6N4 ~ o . ~ Q ° m r °~ ~ N J ~ CEO, ~ `N7, ~ ~ r ~ L ~ r ~ ti ~~7 x z W U c+l ems- ~ li7 N ~ r ~ ~ ~ N 3 ~ N O r Ul O ~r ~ ~ W 00 00 ~ ao co ~ r C ~ ~ m ~ ~ ~ ~ ~ ~ ~ ~ .- ~ n m r ~ ~ o Q O M ~ p y U O ~ Q ~ ~ ~ d W ~ ~ ~ ~ C r D I~ ~L', ,, _CC ...{ G ~ ~ ti ~ [V N N ~ m ~ V: O N ~ ~ ^ -O ~ ~ ~ C X Q1 S ~ Q r Cl' ~ ~ ~ P SO N f*7 C'9 ~ ~ ~ ~ ~ • L O z ~ N r " N 69 Z 69 E9 &) 64 t9 !R a co h O - " '~ y O r ~' M n y .Q c ~ _ r o R .~ ~ .~ .~ .~ t~ r~ ,.~.. .~. .~ a0 of ~ N a H H 1-~ F~- F- F W ~ ~ ~ t~ E Q D ~ O Q ~ Ll a H ~ C ~ ~ N . r U C li] ~ ~ c c ~ Q ~ U *' ~ ~ 'a a ~ ~ w ~ o a~ y .~ C d P r ('~ o .c y p ~ ~ d = N ~ ~ O r ~ ~ ~ ~ a1 p Q. ~ ~ ~ ~ 'p ~ ~ E W ~ " N O r+ ~ ~ r p~~ a c~ S7 Q r 7 c~ d i ~ ~ r o r ~ ~ ~ ~ ~ ~ E ro `~, C Q ~ G y ~ m N ~ V m ~ ~ . ~ in ° w ~ ! d W y O ~ c C W ~ ( aZS ~ ~ N 41 ~ O p- ~ C'7 ~ r2 N ~ ~ y ~, G 7 ~ N 1~ CO ~Q N r y p E D ~--~ M N N r C31 N c d p 7 ~ N ~ ~ ~ ~ K D ~ O !O ~ ~ -o r E 7 R N E ~ ~/1 E C ~ S N E ~ p. - v1 E ~ 01 V f/J N O C d N r w C m p ~ m C o ~ °~ ~ '3 N ~ c a3 Q ~ a i ' R m w c c ~ ~ ~ ~ ~ u3 cn - m ~ _ m ~ ~ w w N ~ a v, so ~. m ~ ~~ ' t ~ a a a 3 7 3 3 7 7 ~~ f 7 V} fD ~ V 0 o v o 0 0 0 ,~ c ~ ~~ a ~ C7 C~ t7 C7 {9 C'f C9 m o ° m ° ~ ° a m c~ z [~ C7 C~ F F z 0 a z z w J a a O Q z a a U_ W '-- M~M~RANDUM f _ -..~ - Delray Beach Fire-Rescue Department :°Q~~,RPY Bfq~y.. S P~ ~~ ~ - ~~Rf AESR~E/.. TO: Patsy Nadel, Purchasing Department DATE: 1/28/2009 FROM: Victor S. Williams, Actin Division Chief SUBJECT: Medication and Medical Equipment Bids The following are our recommendations to the Purchasing Department for medical equipment and medications. If you need additional information, please feel free to contact me at a suitable time. Thank you for your consideration and understanding in this matter. Group # 1 Awarded to Quadmed based on lowest price. With the exceptions of 75, 76, 77, 85, 86 Group # 2 Awarded to Boundtree based on lowest price with acceptable exceptions. Group # 3 MedicallDrug Supply Bid. According to the bid response sheet two companies submitted bids far Group 3. I feel we should utilize both companies for items specified below to create an additional estimate saving to the city of $4017.18 for this fiscal period. Boundtree Medical LLC Items: 85, 126, 128, 129, 131, 132, 133, 136, 138, 147, 148, 153, 154, 155, 166, 167, 168 Henry Schein Matrix Medical Items: 75, 76, 77, 86, 127, 130, 134, 135, 137, 139-146, 149-152, 156-165 Group # 4 Awarded to Quadmed based on lowest price. Group # 5 Awarded to Quadmed based on lowest price with acceptable exceptions. Exception of item # 233 Item # 233 is awarded to Henry Schein Group # 6 Awarded to Henry Schein/Matrix based on lowest price with acceptable exceptions. Group # 7 Awarded to Henry Schein/Matrix based on lowest price. "Preparing for the worst...... Delivering the best! " -~ ~ MElVIQRANDUl~ ....u Delray Beach Fire-Rescue Department TO: Pats Nadal, Senior Bu er DATE: 112/~2/~9 FROM: Cecelia Shade, Ad istrative Officer TffitU: avid C. mes, F;r eseue Chief SUBJECT: Medical Su lies Per your request, the estimated total axu~.ua1 dollar amount for medical supplies is $160,000. These supplies are purchased through account #001-2315-526-52-20. If I may be of further assistance to yau, please contact me at extension 7411. "Preparing for the worst......Delivering the bestl " Medical Supplies Nadal, Patsy From: Allen, Janet [AIIenJ@bbfl.us] Sent: Tuesday. February 10, 2009 3:03 PM Ta: Nadal, Patsy Cc: Landress. Michael: Dauta. Mike Subject: Medical Supplies Patsy, Page 1 of 1 I have talked to Mike Dauta (Warehouse Manager} and Mike Landress (EMS Coordinator} and they both concur with your recommendations for the Joint Bid far the "ANNUAL CONTRACT FOR MEDICAL AND DRUG Sl1PPl IFS " Rlf}# ~M9-(}4 Thank you lanPt Allen ~anet (Len ~kacutement ~e+tvlces CJ°hone# 1iG1-748-8388 ~ax# 681 J48-8308 ~neail:~lle~s~@cl.ba~ntoa-Leach.. fLus MEMORANDUM TO: Mayor and City Commissioners FROM: Victor Majtenyi; Deputy Director of Public Utilities Richard C. Hasko; Director of Environmental Services Department THROUGH: David Harden, City Manager DATE: February 6, 2009 SUBJECT: AGENDA ITEM 8.M.4 -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 CONTRACT AWARD/CHAZ EQUIPMENT COMPANY, INC. ITEM BEFORE COMMISSION Approve a contract award to Chaz Equipment Co. Inc. in the amount of $130,175.00 for the emergency repair of a sanitary sewer collection manhole at Lift Station #56A, located in the Hamlet Subdivision off of West Atlantic Avenue. Pricing is in accordance with the City of Boynton Beach annual contract for emergency repair work, active through September 17, 2009. BACKGROUND Lift Station 56A is located on Hamlet Drive at the western end of the Hamlet Subdivision. On February 3rd, 2009, Water & Sewer Network personnel discovered the manhole directly west of the lift station had settled significantly. A TV inspection of the pipe segments revealed sections upstream and downstream of the manhole had also collapsed. The repair work is beyond the capabilities of in house resources, therefore staff solicited a price from Chaz Equipment to perform the work on an emergency basis. They have provided a quote in the amount of $130,175.00 to perform the necessary repairs. The work involves replacing a 18' deep manhole, installation and connection of pipe upstream and downstream from the manhole, connection to the lift station, relocation of landscaping, dewatering, bypass pumping, maintenance of traffic, and site restoration. Pricing is in accordance with an existing City of Boynton Beach annual contract for "Repairs and Emergency Services for Water Distribution, Wastewater Collection, and Stormwater Utility Systems", Contract #065-2821-07/JA, active through September 17, 2009. FUNDING SOURCE Funding will be from account #442-5178-536-63.51, Water & Sewer Renewal & Replacement/ Sewer Mains in the total amount of $130,175.00. RECOMMENDATION Staff recommends award of contract to Chaz Equipment Co. Inc. in the amount of $130,175.00 for the emergency sanitary sewer manhole repair at Lift Station 56A in the Hamlet subdivision. ~ ~'~~ `~'~+ti ''~!!r~ ~ _,=t ~ jy ~f ., n=3~-- ~~-~~~+'a'a' ~.t yF-x~ -u"~~ ' <a ~~.r~., 4r ~ e.; +~. ~ ~'. ~':'~ ~:. i i t~ i6{ , ':.~..~'~ ~?.. ~. ,. t...x .;, sr.. ~. _-3..~,. S.~~s._~~ ~L~.~~ _.,.~~~~ ~ ...,~~r~a - av:.~..; ~` ,:=~~r4 ~~,~ ~...,..- ~! ~ k. s»~y -.-R.4,i3~~ a, _,~ ,~;~ ~~ ~; .-tiY`< i ~'~ ~c i)~n ~;., '•< ;~v 01/08{2608 15:54 5617426316 BC]YNTON BCH FINANCE FAGS ©7 ate Ci - o,~ $ort~ort .~e~.c~ Prrrcarement Sers ices 100 E. I~oyntor, t3e~ch ,~ot~lev$rd p p, ,$ox ST 0 $oyn ton .8eae~a, ~lar.~da 33~G2S-0310 Telephane,Na~ (561}7~2-63T0 F,4J:: (561J 742-6316 Septer>.aber 19, 2007 CkiAZ EQCTIi~i~~IENT CO., INC. ,~ ~ sa ~ ~~,~~ ~ F~,RNIS Rn. ~Tl; ~ W>~IaLING'I~ON, lei. 33414 A,T'TN: ItQSE~T ~. WIGI-iT RE: `~REI'ATRTIE?~I AND 'I;'OAl1',~ WA."I'ER U II.X'~'Y S?' M8R DISTR~EUT~t3N, WASTEWATEit $ID #Q65-2821.-071~A CQN'T~t,4CT Ia7~ ~iIOD: 5eptembe~ 18, 20p7 to Septerr~her X7, 24Q9 Dear Mr. Wight: _ At the Gity Carrtrnissioz~ meeting of SeWASTFWAT~R~CU~,)r,~EGT Q AN~U OR11~ WAT R~ UT ~TT`Y FIIR WATER D>;STItI~UTIQN, SYS'I'~l1'XS" vvas a split awaxd to your ootxzpaaiy, along with. MAL]Sl<N-BAAI2. CORP. of Lake Warflz, Florida. As stipulated .~rithiz> C~7e Bid specifications, your cot~apany's oxigiual cett~catc of insuratce is eo be provided to our Risk Managetner~t Dcpaziane~it at ynut' earliest canvetlience, namip e Ci + of ~o t n Beac as adci~tionall insure - 'I~e would like to tharilc you fox acceptitxg the oppoztunity to respond to this px4ject- Upon receipt of your certificate of insurance, Purchase Orders will be issued on atz "As Ncecled k3asis". Ifiyau have arty fttztl~er questions ragax-ding this bid, please contact 3auet Allen, Buyer, at (56i) 742-6322. Si`n~ce'r~ely, --- /~ gabby ~ez>~cz Deputy Director ofFin;ciai Services /j a ~nclpsure: 7abulauon $I~ee=_ fete Mazzella - Deputy Utilities Director, Adtninistrati~n and Engineering Arlic~acl Low - peputy Ufi[itie5 t;7ircctrv, Qi}erati9ns and Maintenance CFtt'is RosGhek - Ergineering Aiaisian AQanager Tony ~p+ni}afdl ,~ VVastewatcr Supervisor Karen Riseley -Contract Administrator (".entral r~l~ bite ~, a 0 v U d ~ CITY of DELRAY BEACH LIFT STATION 56A DATE:09/16/2008 ®d ENVIRONMENTAL SERVICES DEPARTMENT LOCATION MAP ®0@ 434 9C1J11~ 8VVNIiON AVENUE, DELRAY BEACH, RORDA 33444 2008-200 MEMORANDUM TO: Mayor and City Commissioners FROM: Sharon L'Herrou, Administrative Officer Anthony W. Strianese, Chief of Police THROUGH: David T. Harden, City Manager DATE: February 11, 2009 SUBJECT: AGENDA ITEM 8.M.5 -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 LEASE AWARD/ENTERPRISE LEASING COMPANY ITEM BEFORE COMMISSION The current agreement for undercover leases is up for renewal. The Department is currently under contract with Enterprise Leasing and recommends maintaining them as the vendor. This agreement is for 6 rental vehicles to be used in the undercover unit for investigative purposes. Cost is $709 per month per vehicle for a total, annual cost of $51,048 (February 1, 2009- February 1, 2010). Costs for the period of February through September will be incurred in the current fiscal year. That eight month total will equal $34,032. BACKGROUND The Department's Vice, Intelligence, and Narcotics unit utilizes rental vehicles to conduct surveillance and undercover investigations. This unit plays a significant role in keeping the community safe by disrupting serious criminal activity. They help to keep major drug traffickers, organized crime figures, and prostitution out of the community. (They are directly responsible for shutting down the Gentleman's Privy prostitution ring and recently cooperated in a tri-cities sting resulting in the arrest of 123 defendants in a federal drug case). Enterprise Leasing was selected several years ago and has provided quality services. This vendor offers advantages such as: local offices, variety of vehicles, and the ability to "swap" vehicles as needed to maintain undercover status. They are the contracted vendor for the Palm Beach County Sheriff's Office, Boca Raton Police Department, and numerous other local law enforcement agencies. Based on our research, they offer the best service at the best price. Enterprise is willing to offer competitive pricing, based on the S.E. Florida Government Purchasing Cooperative Group agreement (see attachments). FUNDING SOURCE Funding is available in account number 001-2115-521-44.40. RECOMMENDATION The Police Department recommends approval. Preferred Rate Agreement Company: City of Delray Beach PD ("Customer") Company: Enterprise Leasing Company, a Florida Corporation ("Enterprise") Contact: Sharon L'Herrou Admin. Officer Contact: Jennifer Tarantino /Tom Caccamo Address: Delray Beach, Florida Address: 5105 Johnson Road, Coconut Creek, FL 33073 Contract No: Coral Springs 07-C-169 Delray Contract Covered: 2/1/09-2/01/10 Period Covered: 2/1/09 - 8/31/09 BASE RENTAL CHARGES VEHICLE CLASS (See Exhibit A for makes and models) RATES Car Class I $700.00/month Car Class II $709.00/month Car Class III $900.00/month EXCLUSIONS: Base Rental Charges do not include applicable taxes, surcharges, refueling, one-way, drop-off, delivery, pickup, youthful driver or additional driver charges; or, except as set forth below, any optional products or services such as collision damage waiver ("CDW"), supplemental liability protection ("SLP"), personal accident insurance and personal effects coverage ("Driver Protection Products"). DRIVER PROTECTION PRODUCTS: Base Rental Charges do not include the Driver Protection Product(s) below: They City of Delray Beach is self insured. MILEAGE CHARGES: No vehicle will be driven over 3,000 miles. Any vehicle approaching said mileage limitation will be returned and a replacement will be issued by Enterprise. If the combined mileage for the original vehicle and any/all replacement vehicles exceed three thousand (3,000) miles within a thirty (30) day rental cycle, the City will pay a $.17 per mile charge for each mile over three thousand (3,000) miles. ADDITIONAL TERMS AND CONDITIONS 1. Term. The term of this Preferred Rate Agreement ("Agreement") begins February 1, 2009, and ends on February 1, 2011. This Agreement may be extended for two (2) additional one-year periods upon mutual agreement of the parties. Either party may terminate this Agreement at any time by providing the other party with thirty (30) days prior written notice. 2. Rental Program. Enterprise agrees to make its vehicles available to Employees for rental from Enterprise's rental facilities for business use. 3. Rental Contracts. For each vehicle rented, the Employee must execute Enterprise's Rental Contract in the jurisdiction in which the vehicle rental occurs. Each Employee (and any person identified on page 1 of the Rental Contract as an "Additional Authorized Driver") must possess a valid driver's license issued by the state in which such person resides, and must be age 21 or older (unless otherwise agreed to in writing and 18 or older if required by law; and 25 or older for 12 and 15 passenger vans), and meet Enterprise's other normal renter qualifications. In the event of a direct conflict between the terms of this Agreement and the terms of any Rental Contract, the terms of this Agreement will govern. However, the specific terms of each Rental Contract will govern to the extent not directly in conflict with the terms of this Agreement. Customer agrees to pay Enterprise upon demand for all rental and other charges incurred and all indemnity and other payments owed by an Employee under a Rental Contract relating to a rental for business use not timely paid by the Employee. 4. Rental Rates. For the first 24 months following the date of this Agreement, Enterprise agrees to charge the Base Rental Charges quoted on the cover page of this Agreement. In each successive twelve-month period, the Base Rental Charges are subject to increase in accordance with the preceding year's Consumer Price Index (CPI) for All Urban Consumers, All Items (1982- 1984+100). In no event shall the price adjustment exceed five percent (5%) or be less than two percent (2%). In determining the length of rental, a day is deemed to be any 24-hour period or portion thereof. 5. Preferred Provider Status. Customer agrees to promote Enterprise as a preferred provider of rental cars, and to recommend Enterprise as an option to Employees renting vehicles for business use. 6. Miscellaneous. Except as otherwise required by law, Customer and Enterprise agree to maintain the confidentiality of the terms of this Agreement. This Agreement and any Rental Contract entered into between Enterprise and an Employee sets forth the entire understanding between the parties and may only be amended in a written document signed by each party. This Agreement shall 1 be governed by the substantive laws of the state listed as part of Customer's address on Page 1. Rental Contracts shall be governed by the substantive laws of the state in which they are executed. 7. Third-Party Beneficiary. The parties intend for each subsidiary of Enterprise Rent-A-Car Company, a Missouri corporation, to be accorded the status of third-party beneficiary under this Agreement, and for all rights hereunder to inure to the benefit of each such subsidiary. 8. Maintenance. Enterprise will maintain the vehicles, both as to mechanical repairs and routine maintenance. When a Vehicle is out of operation for service, a replacement or loaner Vehicle will be provided immediately upon return of said vehicle. In the event of an accident, a loaner or replacement vehicle will be provided at no additional charge while the damaged vehicle is repaired. 9. Vehicle Usage. It is understood and agreed that vehicles rented under this Agreement are intended for undercover investigation and surveillance by the Customer. The vehicles rented under this Agreement are not intended for use in traffic control and enforcement, nor are they intended for use in chase and apprehension or transportation of suspects under arrest. 10. Modification of Vehicle. Enterprise specifically agrees that the Customer may, at its own expense, apply tinting to the windows of any vehicle. Subsequently, there will be no charge to the Customer to remove the tinting if it becomes necessary. The Customer will maintain the tinting as to not detract from the value of the vehicle. The Customer may, at its own expense, install any electronic equipment it may deem necessary, provided that said installation causes no permanent damage to the vehicle (e.g. holes in sheet metal or dash area of vehicle). 11. Billing and Payments. The Customer will issue a purchase order to cover vehicles under this Agreement. Enterprise will invoice the Customer on a monthly basis and expect payment within Thirty (30) days, following receipt of said invoice by the Customer. 12. Signature on File. As part of any rental transaction in which Enterprise delivers possession of a rental vehicle to an Employee or agent of Customer other than the Employee intended as renter, the transaction will be subject to the following terms and procedures supplemental to those provided in the Rental Contract: (a) Customer's name will appear as "renter" on the Rental Contract; (b) the notation "Signature on File" will substitute for the signature or initials of the Employee intended as renter in each applicable part of the Rental Contract; (c) Customer will be responsible for designating the Employee intended as renter as authorized to accept possession of the rental vehicle, and for procuring a written receipt from such Employee confirming delivery of possession of the rental vehicle; (d) Customer will not allow use of the rental vehicle by any Employee under the age of 21 or as provided by law, or use by any Employee other than for business use, or use by any Employee not possessing a valid driver's license issued by the state in which the Employee resides; (e) Customer will be responsible for ensuring compliance with California Vehicle Code Sections 14604-14609 and any other state's comparable law by assuming Enterprise's responsibility to compare the signature of the Employee to whom the vehicle is to be rented to the signature of such Employee on his or her driver's license; (f) if the rental vehicle is a passenger van with seating for over 10 occupants, Customer will be responsible for distributing to all Employee drivers copies of the Large Van Addendum to the Rental Contract; and (g) Customer agrees to defend and indemnify Enterprise against all claims, liabilities, costs and expenses (including reasonable attorneys' fees) arising from the use of any rental vehicle or breach of any Rental Contract term by any Employee in connection with a "signature-on-file" rental transaction, including any claim based on an allegation of negligent entrustment attributable to the incompetence of such Employee to operate the rental vehicle, or other allegation of negligence. ENTERPRISE CUSTOMER By By_ Name: Jennifer G. Tarantino Name Title: Business Rental Sales Executive Title: Date: Date: -2- Exhibit A Car CUSS I Make Model Make Model 700.00 Chevy Cavalier Pontiac Sunfire Toyota Corolla Ford Focus Mitsubishi Lancer Ford Taurus Mercury Sable Buick Century Mitsubishi Galant Pontiac Grand Prix Chevy Malibu Pontiac Grand Am Dodge Stratus Chevy Impala Toyota Camry Nissan Altima Chevy Venture Ford Windstar Car CUSS II Make Model Make Model 709.00 Buick LeSabre Pontiac Bonneville Nissan Maxima Chevy Trail Blazer GMC Envoy Ford Explorer Jeep Grand Cherokee Chrysler T&C Dodge Grand Caravan Dodge Charger All Cargo- Ford F-150 vans Car Class III Make Model Make Model 900.00 Mercury Grand Marquis Buick Park Avenue Ford Expedition Chevy Tahoe GMC Yukon Dodge Durango Chevy Silverado Dodge Ram -3- N i tl ^ - ^ n dEl V ?w~ y~ T ~ I R~ ~ Y ^ K{ ^ p ~ Y ~ I}I 1, ,P_~ 1<1 ~ ~ ~ I r 1 ~ 1 ^ r Y m x I~~ 1 ^ r. x - • ~ II 1 r ar vl ~ ^ ti ^~ I M .F,, J s~ rl ^ 1 ~ a~ 1 1 rl _ ~ ~ ~ w ~ ^ • R ti I L 11 • ~^ I a r 'A I 1 G ~? [t n i71 ^ 1 x 1 ~ H l ~ r L'. Y.' 1 1 y 'i ^ c I ~r s T 1 :n x1 r ^ t' X77 w ^ :~ yJ 1 1 * 4 - +~ CBY y - _. - _ ~ ~+~~._ -r MEMORANDUM TO: Mayor and City Commissioners FROM: Estelio Breto, Senior Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH: City Manager DATE: February 11, 2009 SUBJECT: AGENDA ITEM 9.A. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 WAIVER REQUEST/TASTE RESTAURANT ITEM BEFORE COMMISSION Consideration of two (2) waiver requests, one to LDR Section 4.6.16(H)(3)(i) which requires a five (5) foot wide landscape island at the end of a 10 space parking row, and the other to LDR Section 4.6.14(A) (1) which requires that a 20' sight triangle is provided at the intersection of the handicap parking space and the east alley driveway. The development proposal does not comply with either of these requirements, and thus, the applicant has requested waivers. BACKGROUND Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body must make a finding that granting the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. LDR Section 4.6.16 (H~(3) (i) -Required 5' wide Landscape Strip: The applicant has requested a waiver to reduce the required five (5') foot landscape island to four (4) feet for the southern portion of the handicap parking space and to (0) feet for the northern portion of the handicap parking space [LDR Section 4.6.16 (H)(3) (i)] (note: the north reduction was referred to as a reduction to 2 feet in the January 14, 2009 SPRAB staff report). The applicant has optimized the design of the rear parking area despite the limitation presented by the reduced width of the lot (34' feet wide) to comply with the LDR parking requirements. Further, the area to the south will contain the same amount of landscaping (ground cover and shrubs) that would be accommodated in the 5' minimum. To the north a can wash and grease trap are accommodated in the 10' space adjacent to the parking space. Based upon the above, the waiver request will not adversely affect the neighboring area, diminish the provision of public facilities, or create an unsafe situation. This waiver would also be supported under similar circumstances and thus will not result in granting a special privilege. Consequently, a positive finding with respect to LDR Section 2.4.7(B)(5) can be made. LDR Section 4.6.14 (A) (1) -Visibility Triangle: The applicant has requested a waiver to reduce the required visibility triangle at the intersection of the handicap parking space and the east alley driveway from 20' to 2' [LDR Section 4.6.14(A)(1)]. The reduction is caused by the provision of a dumpster in the vicinity of the handicap parking space. The applicant has indicated that due to the nature of the intended restaurant use with outdoor dining in the back it will not be appropriate to locate the trash enclosure area further to the west thereby impacting the dining experience to unwelcome odors. The width of the subject property is only 34 feet, and thus, to locate the solid waste disposal area further to the south is not possible. The flow of traffic along the east alley is mostly to service the commercial bays located along the alley. This service is usually done during the hours that the restaurant is not providing service to customers. Thus, conflict between the handicap space and offset traffic flow should be minimal. Granting the requested waiver will not have an adverse affect on the neighboring area, diminish the provision of public facilities, or create an unsafe situation. Similar waivers have been approved for other projects in the CBD District, such as, Renaissance Village and Pineapple Grove Village. This waiver would also be supported under similar circumstances and therefore will not result in the grant of a special privilege. Consequently, a positive finding with respect to LDR Section 2.4.7 (B)(5) can be made. REVIEW BY OTHERS The Site Plan Review and Appearance Board (SPRAB) reviewed the waiver requests at their meeting of January 14, 2009 in conjunction with review of Taste Restaurant. After a brief discussion, the Board moved a recommendation of approval of the waiver on a unanimous vote of 6-0. A detailed description and analysis of the proposal is contained within the attached SPRAB staff report of January 14, 2009. RECOMMENDATION By Separate Motions: Move approval of the request for waivers to LDR Section 4.6.16 (H)(3)(i) to reduce the required five (5') foot landscape island at the end of a parking row, to four (4) feet for the southern portion of the handicap parking space, and to (0) feet for the northern portion of the handicap parking space, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.7(B) (5) of the Land Development Regulations. . Move approval of the request for a waiver to LDR Section 4.6.14(A)(1) to reduce the required visibility triangle at the intersection of the handicap parking space and the east alley driveway from 20' to 2', by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.7(B) (5) of the Land Development Regulations. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST FOR TASTE RESTAURANT ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. These waiver requests came before the City Commission on February 17, 2009, where the applicant is requesting waivers to the 5' landscape island requirement and the 20' site visibility triangle. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver requests for Taste Restaurant. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsections I and II. I. WAIVER TO LANDSCAPE ISLAND: LDR Section 4.3.4(H)(3)(i), requires a five foot (5') landscape island at the end of a parking row. The applicant has requested a waiver to this requirement to provide for four feet (4') for the southern portion of the handicap space and zero feet (0') for the northern portion. Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. Does the landscape island waiver request meet all the requirements of 2.4.7(8)(5)? Yes No II. WAIVER TO SITE VISIBILITY TRIANGLE: LDR Section 4.6.14(A)(1), requires a twenty foot (20') site visibility triangle be provided. The applicant has requested a reduction from twenty feet (20') to two feet (2') at the intersection of the handicap space and the east alley driveway. 1 Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. Does the site visibility waiver request meet all the requirements of 2.4.7(6)(5)? Yes No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original development application was submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves denies the waiver request. 6. Based on the entire record before it, the City Commission hereby adopts this Order this 17th day of February, 2009, by a vote of in favor and opposed. ATTEST: Chevelle Nubin, City Clerk Rita Ellis, Mayor 2 ~~ c~ ~~ v x°~~ o~ o ; W a m U o Q ~ <;e ~~~x^~ ~ = u~i v~i w ~ o ~3a~~W ~~ m a ~ ~ ~ ~ ~ p q p o 0 i~ SW -~ ~ ~ ~~ ~~ ~S 8 8~~8 8 w ~6 ~xe ~~ € ~ ,~ ~ ~ ~ s n~ .~ Vim- w >s ;_ a o y° ao~°; I~ ~ o~ 44 5 c~ y~ ~~ No aGG~~G a~~ ti~~":Gn . ~' _ n ~ S ~ F~3§p.~~ haw ~ tta~~t ~'w~ I 'y ~~9c ~ og YN°o3~o z3: s~i$m^'~'6"e ~~ ~- ~ ~ ~ ~, i~ ~~ ~ V ~ y a ~~ ~ ~; ~ at a'i'~ ~ d ~ i ~ ~ I ~~ ~ ~, ~ ~ , ~y ~ ~ ~$ p ~S~ ~~ o ~ ,~ J ~ ` ~ ~ ~ V ~ ~ _ ~ ~z ~~ ~ ~, T 1°~ ~ ~ I o g ~_ _ ~ ~- ~, ~ ~ ~ ; _.. ~~ _ 3 ~' ~ - ~ ~ -- -~ ~ Z _~ i_~ Ti I ~w~ ~, ~ ~~=F _~~~~w_ --~_=, `® RL M Q s ~ ~ ,.o ~~ ~' V y,~ y I ~ ~ ~ ~' _ ~ '~ ~. ~ M , { c Z ,.,~ -- ~_ f~ ~ ~ - ~~ ~~~ ~~ /. :y ~ .% ~ ~ . I~~\ ~ w~ ~ ~~_ , c -- ~~ ~ I z _~ , + i ¢¢a ~q -- yf ~~ ~~ O ~; i zoQ 5~ ~ a N I Q 0 , ~ 0 p o ~~~ ~ ~~ ~° Q III SSt/"IJ 9ViIdS j R~ 8 ~ ~ ~~~~ i- 1- v~ --° --- b~~3 Z -L-- I ~ g WW _ _____ _ _P a-'~ ~ fA .. __ ~ o 8 ~:-6 ~ ~ ~~~ ~~~ ~Im ~ €g v~ ~ W W U ~~ III ~~ _ / ' ~d W ~ a ~~ ~i~ ~ ee F e ~~ ~ fl~ 9J , m w a ~~ ~, ~ ~~ ~ ~ ~ - ~ ~ ;~ ~~~01-J or ~ 's d ~~ _ e a~~ sg ----- - - ~ ~ _~'' I SITE PLAN REVIEW AND APPEARANCE BOARD CITY OF DELRAY BEACH ---STAFF REPORT--- MEETING DATE: January 14, 2009 ITEM: Taste Restaurant -Class 111 site plan, landscape plan and architectural elevations associated with the conversion of two (2} commercial bays measuring 1,690 sq. ft. to restaurant, addition of a 76.5 sq. fit. walk-in cooler, addition of an 81 sq. ft. changing room, and an addition of 873.5 sq. ft. dining area in the rear, resulting in a total of 2,721 sq. ft. one story restaurant. The property is located at 169 and 171 NE 2"d Avenue, GENERAL DATA: Owner ................................... Robert Workens Agent ......................... ........... Robert Currie, FAIA, Currie Sowards Aguila Architects Location ....................... ........... East side of NE 2°d Avenue (169 and 171 NE 2°d Avenue}. Property Size ............... ........... 0.105 Acres Future Land Use Map.. ......... Commercial Care (CC} Current Zoning ........................ Central Business District (CBD} Adjacent Zoning......... North: Central Business District (CBD} East: Central Business District (CBD} South: Central Business District (CBD} West: Central Business District (CBD} Existing Land Use ........ ........... Retail Proposed Land Use ............... Restaurant Water Service .............. ........... Existing on site Sewer Service ........................ Existing on site N.E. ani N.E. aRp sr 0 0 N N.E. 2Np Sr . ~ -- 0 a Q a z a - N.E. 1 ST. [~ vi w Z ~ OLD 'UA17E ~ ~ ~z ATLANTIG AVE=NUE` __~-- ~ a s N ~s.E. isr sr. Tl-Tl~l r-~r~ ~~ ITEM BEFORE THE: BOARD The item before the Board is the approval of the following aspects of a Class III site plan request for the Taste Restaurant, pursuant to Land Development Regulations (LDR) Section 2.4.5(F): ^ Site Plan; ^ Landscape Plan; and ^ Architectural Elevations BacK~RauNQ The subject property measures 0.11 acres and is located on the east side of Pineapple Grove Way (NE 2"d Avenue) between NE 15t Street and NE 2"d Street, within the Pineapple Grove Main Street Redevelopment Area. The property consists of the north 34' of Lot 3, Block 83, Town of Delray. The property contains 2 commercial one-story bays measuring 1,690 sq. ft. The building was constructed in 1952 and the subject two bays were previously occupied by Vertex Optical lncorporated and Note's Take-out. On June 1fi, 1999, the Site Plan Review and Appearance Board approved an elevation change and color change. The associated improvements have been installed. On August 2, 2000, the Site Plan Review and Appearance approved the construction of a 1,600 sq. ft. second floor addition to accommodate two 1-bedroom units and associated parking. The improvements were never installed and the site plan expired on February 2, 2002. The building contains two bays and on April 10, 2002, the Site Plan Review and Appearance Board approved a Class I site plan modification and elevation change for the installation of Note's Take-Out Restaurant on the northern bay (731 sq. ft,). The proposal included the installation of a roof mounted exhaust fan and a trash receptacle enclosure along the east side (rear) of the building. A Class III site plan modification, landscape plan, and architectural elevations for the Taste Restaurant associated with the conversion of two (2) commercial bays measuring 1,690 sq. ft. to restaurant, addition of 76.5 sq. ft. walk-in cooler, addition of an 81 sq. ft. changing room, and an addition of 873.5 sq. ft. dining area in the rear resulting in a total 2,721 sq. ft. one story restaurant is now before the Board for approval consideration. PROJECT DESCRIP'TION~ The development proposal incorporates the following: ^ Conversion of two (2) existing commercial bays measuring 1,690 sq. ft. to restaurant; ^ Installation of 873.5 sq. ft. pavers-brick floor dining area with a covered shade structure and outdoor bar at the rear of the building; ^ Construction of a 76.5 sq. ft. walk-in cooler, and an 81 sq. ft. changing room for sfiaff at the rear of the building; ^ Installation of an outdoor dining area with a covered shade structure at the front of the property along Pineapple Grove way; and, ^ Installation of solid waste disposal area with can wash, and grease trap. Site Plan Review and Appearance , yard 5taf# Report: Meeting of 01/14/09 Taste Restaurant, Class Ill Site Plan, Landscape Plan and Architectural elevations Page 2 ^ Installation of a handicap parking space and associated landscaping. The Class III site plan modification also includes the following waiver requests: A waiver to reduce the required five (5} foot wide landscape island at the end of a parking row, to four (4) feet for the southern portion of the handicap parking space and to two (2) feet for the northern portion of the handicap parking space [LDR Section 4.6.16 (H)(3) (i)]. A waiver to reduce the required twenty feet (20') sight visibility triangle to two (2') at the intersection of the handicap parking space and the east alley driveway [LDR Section 4.6.14(A)(1)]. SITE PLAN ANALYSIS COMPLIANCE WITH THE LAND DEVELOPMENT REGULATIONS: Items identified in the Land Development Regulations shall specifically be addressed by the body taking final action on the site and development applicationlrequest. LDR Section 4.4.13 (I=) -- Central Business Dis#rict Design Guidelines: The proposed development does not meet the requirements of the LDR Section 4.4.13(F)(4)(c), for a height from finished grade to 25' with regard to building frontage and front setbacks (as required by the CBD Design Guidelines) along NE tad Avenue. However, the existing development is considered an existing non-conforming structure with regard to compliance with CBD design guidelines. [t is noted that the proposed covered shade structure for outdoor dining and suspended metal trellis at the front of the property is an attempt to reduce the existing non- conformity in terms of set back and frontage requirements and brings the development closer into compliance with the LDR Section 4.4.13{F) CBD zoning district design guidelines. Open Space: Pursuant to LDR Section 4.4.13(F}(2}, a minimum of 10% nan-vehicular open space shall be provided; however, within the area encompassed by the boundaries of the original Downtown Development Authority as described in Section 8.2.2(B), and within those sections of the CBD zoning district located within the Pineapple Grove Main Street area and east of the Intro-Coastal Waterway, there shall be no minimum open space requirement. The proposed development is located east of the Intro-Costal Waterway and along Pineapple Grave Main Street, and thus, no minimum open space requirement is required. However, in order to add interest to the proposal, the applicant has provided a landscape area at the rear of the building adjacent to the courtyard outdoor eating area and the proposed handicap parking space. OfF-Street Parkins Pursuant to LDR Section 4.4.13(G)(1)(d), Central Care Area Supplemental Regulations, the parking requirement for restaurants located within the CBD zoning district is established at six (6) spaces per 1,000 square feet of floor area. As the subject property was established as a retaiE floor area, only the difference in parking between the retail (4.511,000) and restaurant (611,000) parking ratios needs to be provided. Therefore, the number of vested retail parking spaces is 7.6 spaces (1,690 x 4.511,000 = 7.6}. Accordingly, the proposed 2,721 square foot restaurant requires 16.3 parking spaces (2,721 x 611,000) = 16.3). A total of 9 parking spaces are required for the conversion from retail to restaurant (16.3-7.6 = 8.7}. With the provision of Site Plan Review and Appearance yard Staff Report: Meeting of 091'[4109 Taste Restaurant, Class III Site Plan, Landscape Plan and Architectural Elevations Page 3 one (1) proposed handicap parking space to be located at the rear of the property, a balance of 8 parking spaces is required. LDR Section 4.4.13(G)(1)(c} states that within the CBD, when it is impossible or inappropriate to provide the required parking on-site or off-site, the parking requirement may be met by providing an in-lieu parking fee of $7,800 a space [REF: Section 4.6.9{E}(3} -Area 3; Parcels located within the OSSHAD and parcels located within the Pineapple Grove Main Street area which are zoned CBD and CBD-RC]. Due to site constraints and the location of the building, the in-lieu fee option has been proposed for the eight (8) required parking spaces, which will cost a total of $62,004 ($7,800 per parking space x 8 = $62,000). At its meeting of January 6, 2009, the City Commission approved a request for eight (8) in-lieu parking spaces for the Taste Restaurant. LDR Article 4.6 -Supplemental District Regulations: Handicap Accessible Parking: Pursuant to LDR Section 4.6.9(C) (1) {b), special parking spaces designed for use by the handicapped shall be provided pursuant to the provisions of Florida Accessibility Code for Building Construction. The subject property was established as a retail floor area. Therefore, the number of vested retail spaces is 7.6 spaces (1,690 sq. ft. x 4.511,000 = 7.6}. Accordingly, the proposed 2,721 square foot restaurant requires 16.3 parking spaces (2,721 x 611,000} = 16.3). A total of 9 parking spaces are required far the proposed restaurant (16.3-7.6 = 8.7}. The Florida Accessibility Cade for Building Construction and Federal ADA requirements for commercial properties require a number of parking spaces based on the number ofi spaces provided in a parking facility, versus the number of spaces required. In short, the code requires 1 ADA compliant space per 25 spaces up to the first 100 spaces, plus an additional space per each 50 up to 200, etc. The project wil[ provide 9 parking spaces, thereby requiring 1 ADA compliant space. The site plan shows 1 ADA parking space, thus meeting the code requirement. Refuse Enclosure: Pursuant to LDR Section 4.6.6(C) (1 ), dumpsters, recycling containers and similar service areas must be enclosed an three sides with vision obscuring gates on the fourth side, unless such areas are not visible from any adjacent public right-of-way. Instead of a regular dumpster, a roll- out trash bin container and recycle bins have been depicted on the floor plan, at the rear of the building on the east side of the property. The solid waste disposal area has been adequately screened with landscape material and enclosed with a 6' high CMU wall with stucco sand finish and a 6' high PVC privacy fence and gate panels. A detail of the solid waste disposal area including the proposed awning (for the can and mat wash area) has been provided. Thus, this LDR requirement has been met. Lighting; A photometric plan consistent with the requirements of LDR Section 4.6.8 has been submitted. There is a light pole proposed at the rear of the building and details of the Light pole and wall mounted light fixtures have been submitted. Thus, this LDR requirement has been met. Right-of Way Dedication: Alley: Pursuant to LDR Section 5.3.1 (D) {2}, the required width of an alley is 20` or the existing dominant width. Further, pursuant to LDR Section 5.3.1(D) (3}, additional right-of-way width may be required to promote public safety and to ensure adequate access, circulation and Site Plan Review and Appearanc.. yard StafF Report: Meeting of 011'{4109 Taste Restaurant, Class !II Site Plan, Landscape Plan and Architectural Elevations Page 4 parking in high intensity use areas. Such a determination shall be advanced by a recommendation from the City Engineer. The authority for requiring such additional right-of~way shall rest with the body having the approval authority of the associated development application. The existing east alley right-of-way width is 16'. The development proposal will provide customer parking off the alley. The City Engineer and DSMG at its meeting ofi December 4, 2008, determined that the width of the alley should be expanded to a width of 20', which is consistent with the widths provided with other redevelopment proposals located in the CBD District. Therefore, a dedication of two feet (2') from the subject property is required and has been provided on the engineering plan but must also be shown on the site plan. This is listed as a recommended condition of approval. The 2' r-o-w dedication along the east alley shall be executed by deed agreement between the City of Delray Beach and the land owner, and thus, this is being attached as a condition of approval. Sight. Visibility Triangles: Pursuant to LDR Section 4.6.14(A){1), a 20' sight triangle is required at the intersection of the handicap parking space and the east alley driveway. The sight triangle shall be depicted on the site plan, engineering plan, and landscape plan. The proposed solid waste disposal area encroaches into the required visibility triangle. The applicant has requested a waiver to reduce the required visibility #riangle at the intersection of the handicap parking space and the east alley driveway from 20' to 2' [LDR Section 4.6.14(A)(1)]. The following is an analysis of the waiver request: Waiver AnalySlS: Pursuant to LDR Section 2.4.7(8) (5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shal! not significantly diminish the provision of public facilities; (c) Shal! not create an unsafe situation; and (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. Within the east alley drive vehicular area a wood power pole with a guy wire is located. This wood power pole serves the subject property and the adjacent property. However, it is noted that the guy wire encroaches into the subject property with a field measurement of approximately 26' from the pole to the supporting stake in the ground and with approximately a 45 degree angle inclination. The solution suggested to the applicant to eliminate the sight visibility triangle encroachment was to move the solid waste disposal area a few feet to the west. This is not possible because of the existing wood power pole and guy wire location and angle of inclination. In addition, the applicant has indicated that due to the nature ofi the intended use as a restaurant with outdoor dining in the back it will not be appropriate to locate the trash enclosure area further to the west and submit the dining experience to unwelcome odors. The width of the subject property is only 34 feet, and thus, to locate the solid waste disposal area further to the south is not possible because of the handicap parking space location which is required by the Land ^evelopment Regulations {LDRs). In order to avoid any undesired hardship that may be Site Plan Review and Appearanc yard Staff Report: Meeting of 01/14/09 Taste Restaurant, Glass III Site Plan, Landscape Plan and Architectural Elevations Page 5 inflicted upon the applicant, a compromise should be found between the two code requirements, one the required visibility triangle and the other the handicap parking space. The flow of traffic along the east alley is mostly to service the commercial bays located along the alley. This service is usually done during the hours that the restaurant is not providing service to customers. Thus, the traffic flow along the alley is not significant enough as to negatively impact the subject property in terms of its handicap parking space visibility triangle and safety. Given these conditions, the reduction of the visibility triangle from 20' to 2' is appropriate and the amount of relief will be further reduced if the sight triangle measurement eliminated the panel portion of the handicap parking space. This would still allow compliance with the handicap parking space code requirement. Granting the requested waiver will not have an adverse affect on the neighboring area, diminish the provision of public facilities, or create and unsafe situation. Similar waivers have been approved for other projects in the CBD District, such as, Renaissance Village and Pineapple Grove Village. This waiver would also be supported under similar circumstances and therefore will not result in the grant of a special privilege. Consequently, a positive finding with respect to LDR Section 2.4.7(6)(5) can be made. Landscape Islands: Pursuant to LDR Section 4.5.16 {H){3) {i), a five (5) foot wide landscape island is required at the end of a 10 spaces parking row. One shade tree or equivalent number of palm trees shall be planted in every interior island. The applicant has requested a waiver to reduce the required five (5') foot landscape island at the end of a parking row, to four (4} feet for the southern portion of the handicap parking space and to two (2) feet for the northern portion of the handicap parking space [LDR Section 4.6.16 Warner Analysis: The applicant has submitted a waiver request to the above regulation. Pursuant to LDR Section 2.4.7(6)(5}, prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a} Shall not adversely affect the neighboring area; {b} Shall not signifiicantly diminish the provision of public facilities; {c) Shall not create an unsafe situation; and, (d} Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. The limited width of the site {34 feet wide} does impact the ability to layout improvements in a manner that would not compromise the provision of five {5} feet landscape island to the north and south side of the handicap parking space. The applicant has optimized the design of the rear parking area despite the limitation presented by the reduced width of the lot to comply with the LDR parking requirements. Further, the two areas under consideration will be adequately screened with a twenty four {24) inches high Cocoplum hedge, an 8" high Wart Fern groundcover, and a Silver Button Wood tree in each landscape island. Based upon the above, the waiver request will not adversely affect the neighboring area, diminish the provision of public facilities, or create an unsafe situation. This waiver would also be supported under similar circumstances and thus will not result in granting a special privilege. Consequently, a positive finding with respect to LDR Section 2.4.7{B}{5} can be made. Site Plan Review and Appearanc yard Staff Report: Meeting of 01/141Q9 Taste Restaurant, Class III Site Plan, Landscape Plan and Architectural Elevations Page 6 OTHER ITEMS: Underaroundina of Utilities: Pursuant to LDR Section 6.1.8, utility facilities serving the development shall be located underground throughout the development. A note to this effect has been placed on the site plan, and thus, this LDR requirement has been met. Site and Engineering Plan Preliminary Technical Items: While the revised site plan has accommodated most of the staff concerns, the City Engineer has not yet undertaken his final review, and thus, the following engineering technical items might still remain outstanding, and if so, will they need to be addressed prior to building permit submittal: Provide copy of certified boundary and topographic survey meeting requirements of LDR Section 2.4.3 {A}, (B) and (D). Existing grades should be taken approximately 10-fleet outside all subject property lines for elf adjacent properties. Survey shall provide sufficient information to determine historical drainage pattern. Survey shalt include all existing easements. Survey needs to be completed within the last 6 months per LDR 2.4.3 {B){20). LAIV pSGAPE PLAN=ANAL11'S1S A landscape plan has been submitted and evaluated by the City Senior Landscape Planner. The plan provides for perimeter landscaping of the parking area. A variety of plants and groundcover materials are employed to enhance the development, The proposed landscape plan wll be consistent with Section 4.6.16 of the Land Development Regulations ante the landscape #echnical items listed below are addressed. The City Senior Landscape Planner has reviewed the landscape plan submitted by the applicant and has found that some landscape technical items wilt have to be addressed. Based on the above analysis, the Landscape Plan complies with LDR Section 4.6.16, provided the technical items are addressed. Landscape Plan Technical items: While the revised site plan has accommodated most of the staff concerns, the City Landscape Planner has not yet undertaken his final review, and thus, the following landscape technical items might still remain outstanding, and if so, will they need to be addressed prior to building permit submittal: The City's Senior Landscape Planner has listed the previous comments and their outcome is described below: 1 } Specify the quantities for each area of plantings. This comment has been addressed, but may need to be modified based on the below comments. 2) The proposed fence that faces the alley Right-of~Way requires hedge screening. The fence wilt have to be set back a min. of 2' from the curb to allow enough space for the required plantings. I would suggest to use mare of the proposed Cocoplum as the hedge for this particular situation. Site Plan Review and Appearan~ oard Staff Report: Meeting of 01/14/09 Taste Restaurant, Class III Site Plan, Landscape Plan and Architectural Elevations Page 7 This comment has not been addressed 3} The landscape islands are less than the required 5' width, exclusive of curb. Resize these islands and show dimensions. The applicanf is requesting a waiver for the required 5' width for both landscape islands. The following are new comments generated as a result of modifications to the initial landscape plan: 4) A 12' overall height canopy tree or an equivalent number of palms is required for the landscape island on the north side. The original plan showed a silver buttonwood in this island wl a 4' width landscape area. The newest plans do not show any trees and the island was reduced to 2' in width. 5} Show the tree that is proposed for removal on the landscape plans. Identify the species with botanical name, caliper, height and spread. Replacement trees may be required. ARCHtTEC~URAL ELEVATIONS :ANALYSIS t_DR Section 4.6.18fB) (14) -Criteria for Board Action: The following criteria shall be considered by the Site Plan Review and Appearance Board {SPRAB), in the review of plans for building permits. If the following criteria are not met, the application shall be disapproved: 1. The plan or the proposed structure is in conformity with good taste, good design, and in general contributes to the image of the City as a place of beauty, spaciousness, harmony, taste, fitness, broad vistas, and high duality. 2. The proposed structure, or project, is in its exterior design and appearance of quality such as not to cause the nature of the focal environment or evolving environment to materially depreciate in appearance and value. 3. The proposed structure, or project, is in harmony with the proposed developments in the general area, with the Comprehensive Plan, and with the supplemental criteria which may be set forth for the Board from time to time. The proposed architectural style, with the covered fabric shade structures as dominating features at the front and rear of the property, will be harmonious with the surrounding buildings. The proposed restaurant will be architecturally compatible in style, building material, and color with the existing and adjacent commerciallretail shops and restaurants in the area, such as those located in the City Walk building, Paradise Salon, etc. The fabric shade structures proposed at the front and rear of the building add architectural interest to the building and create an attractive streetscape along Pineapple Grove Way. The proposed architectural style incorporates the typical artistic Mediterranean flavor to the Pineapple Grove Artistic District. The proposed building is of good taste and attractive architectural design, and thus, there are no concerns noted with respect to the proposed building elevations as they are consistent with Section 4.6.18 {B}{14} of the Land Development Regulations. Based upon the above, the proposed structure is of good design and appearance of quality as to be a positive contribution to the surrounding Pineapple Grove Main Street area and the City as a whole. Therefore, positive findings can be made with respect to LDR Section 4.fi.18{B} {14). Site Plan Review and Appearanc yard Staff Report: Meeting of 011141p9 Taste Restaurant, Class lli Site Plan, Landscape Plan and Architectural EWlevations Page 8 _: REQUIREQ FINDINGS: _ ___ Pursuant to LDR Section 2.4.5(G) (1) {c) Class III Site Plan Modification, a modification to a site plan which represents either a change in intensity of use, or which affects the spatial relationship among improvements on the land, requires partial review of Performance Standards found in LDR Sections 3.1.1, and 3.2.3, as well as required findings of LDR Section 2.4.5(G) (5). LDR Section 2.4.5fG) (51: Pursuant to LDR Section 2.4.5(G) (5), a finding that the proposed changes do not significantly affect the originally approved plan must be made concurrent with approval of a Class III modification. The development proposal involves conversion of 2,729 square feet of first floor general commercial floor area to restaurant floor area. Pursuant to LDR Section 2.4.5{G) (5), this minor modification does not significantly impact the previous findings. However, the applicable Future Land Use Map and Concurrency items as they relate to this development proposal are discussed below. Pursuant to LDR Section 3.1.1 (Required Findings), prior to the approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through informa#ion on the application, written materials submitted by the applicant, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. These findings relate to the following areas: LDR Section 3.1.1 (A) -Future Land Use Map: The subject property has a Future Land Use Map {PLUM}designation of Commercial Core (CC) and a zoning designation of CBD which are consistent with one another. Pursuant to LDR Section 4.4.13(B}(3), restaurants and outdoor cafes are allowed as a permitted use in the CBD zoning district. Thus positive findings can be made with respect to PLUM consistency. LDR Section 3.1.1(B) - Concurrency: As described in Appendix "A", a positive finding of concurrency can be made as it relates to water and sewer, streets and traffic, drainage, and solid waste. LDR Section 3.1.1 (D) -Compliance with the Land Development Regulations: As described under the Site Plan Analysis section of this report, a positive finding of compliance with the LDRs can be made when all outstanding items attached as conditions of approval are addressed. Comprehensive Plan Policies: A review of the objectives and policies of the adopted Comprehensive Plan was conducted and the following objective is noted. Future Land Use Element Polic C-4.4: The City supports the efforts to revitalize the Pineapple Grove Main Sfreef area, and the use of the Main Street approach: organization, promotion, design, and economic restructuring. While the CRA is the lead support agency for the PGMS organization, fhe City will provide technical support and assistance through the Planning & Zoning and Community Improvement Departments. Site Plan Review and Appearanr. .lard Staff Report: Meeting of 01/14/09 Taste Restaurant, Class iil Site Plan, Landscape Plan and Architectural Elevations Page 9 The Pineapple Grove Main Street Neighborhood Plan contains severs! design guidelines that address redevelopment efforts within this area. The following is an analysis of the applicable design guidelines: Sfreef and Parking Lot Lighting- Pursuant to the Neighborhood Plan, all street and parking lot lighting should be consistent with the Pineapple Grove Main Street lighting. The light poles and fixtures should have a pedestrian scale of 12' to 16' and the lamps must be metal halide and powder coated cast aluminum far the pole and fixture. When wall fixtures are proposed, they must be decorative. The existing street lighting along NE 2nd Avenue, which is consistent with the Neighborhood Plan, will be retained with the development proposal. Details have been provided that depict proposed light fixtures and poles as being consistent with the above referenced lighting requirements. Sfreef Furniture: The Neighborhood Plan indicates that benches, trash receptacles and bollards are to be provided when the streetscape plans are formulated. The streetscape plan for this portion of the Pineapple Grove Neighborhood was developed an implemented previously and the current development proposal will retain the adjoining streetscape elements. Culfural Arfs: The Neighborhood Plan strongly supports the establishment of areas for the public display of art objects- With the previously developed and implemented streetscape plan an area far the display of public art and the current development proposal will not impact the previously developed and implemented streetscape plan. Future Land Use Element Obiective A-7: Property shall be developed or redeveloped in a manner so fhat the future use and intensify is appropriate and complies in terms of soil, Topographic, and other applicable physics! considerations, is complimentary fo adjacent land uses, and fulfills remaining land use needs. There are no special physical or environmental characteristics of the land that would be negatively impacted by the proposed development. The property is bordered on the west side by NE 2"d Avenue right-of-way and a multiple tenant retail store building built in 1948; the east by the alley r-o-w and the Florida Power Light building; by a retail store built in 1946 on the north; and a multiple tenant retail structure built in 1950 on the south side. The existing development is consider anon-conforming structure with regard to compliance with CBD zoning district design guidelines set back and frontage requirements. It is noted that the proposed covered shade structure for outdoor dinning and suspended metal trellis at the front of the property is an attempt to reduce the existing non-conformity in terms of set back and frontage requirements and brings the development closer into compliance with the LDR Section 4.4.13(1=} CBD zoning district design guidelines. Since the adoption of the 1989 Comprehensive Plan, the downtown has changed from a somewhat seasonally oriented shopping area to a more dynamic and vibrant retail, service, and entertainment area with an active nightlife. A critical housing and mixed-use element has been slowly added to the downtown area. The proposed restaurant will help to fulfill the need of retail and commercial services required by the adjacent office, mixed-use, and residential areas. The proposed development will be complimentary #o adjacent land uses. Site PEan Review and Appearan~ ,oard Staff Report: Meeting of 01/14/09 Taste Restaurant, Class 111 Site Plan, Landscape Plan and Architectural Elevations Page 10 Housing Objective A-12: To assist residents of the City in maintaining and enhancing their neighborhood environment, the City shall take steps to ensure that modifications in and around the neighborhood do not lead to its decline, such as those described in the following policies. Housing Policv A-12.3: In evaluating proposals for new development or redevelopment, the City shall consider the effect that the proposal will have on the stability of nearby neighborhoods. Factors such as noise, odors, dust, traffic volumes and circulation patterns shall be reviewed in terms of their potential to negatively impact the safety, habitability and stability of residential areas. if it is determined that a proposed development will result in a degradation of any neighborhood, the project shall be modified accordingly or denied. As noted previously, the conversion of this existing retail bays into restaurant will aid in the economic stability of the downtown area. The restaurant component will also likely improve the safety of the area by introducing more daylearly evening commercial activity and more "eyes an the street" to observe what is happening in the area, which would be a deterrent to criminal activity. The proposed restaurant will generate an estimated 107 Average Daily Trips at project build-out. According to the Traffic Statement submitted by the applicant the Average Daily Trip (ADT) volume for Atlantic Avenue is 11,580 Trips per Day (TPD). The net daily trips added to Atlantic Avenue will be less that 1 % (107 TPD 1 11,580 ADT x 100 = 0.92%}, and thus, no adverse impact on the area is anticipated as a result of this project. Based upon the above, the development proposal will be consistent with Housing Policy A-12.3. LDR Section 2.4.5 F 5 - Com atibilit Site Plan Findin s : The approving body must make a finding that development of the property pursuant to the si#e plan will be compatible and harmonious with adjacent and nearby properties and the City as a whole, so as not to cause substantial depreciation of property values. The following table identifies the zoning designations and uses that are adjacent to the subject property: Zonin : Use: North Central Business District CBD Retail sho built in 1946. Soufh Central Business District {CBD} A multiple tenant retail. East Central Business District {CBD} The alley r-o-w and a Florida Power li ht Buildin . West Central Business District (CBD) NE 2" Avenue r-o-w and a multiple tenant retail buifdin built in 1948. With respect to the uses, compatibility is riot a concern. The development proposal will enhance the aesthetics of the subject property. Further, the neighborhood and the downtown as a whole will benefit by the change of look from a progressively dilapidating building and the inclusion of a renovated structure. Based an the above, a finding can be made that the proposed development will be compatible and harmonious with adjacent and nearby properties and the properties will not experience a depreciation of property values. REVIEW BY QTHERS Community Redevelopment Area (CRA): At its meeting of December 11, 2008, the Community Redevelopment Agency {CRA} reviewed the development proposal and recommended approval. However, one Board member (Mr. Howard Lewis) was concerned about the number of in-lieu parCcing spaces being requested. Site Plan Review and Appearanc. yard Staff Report: Meeting of 01/14/09 Taste Restaurant, Class III Site Plan, Landscape Plan and Architectural Elevations Page 11 Downtown Development Authority {DDA At its meeting of December 8, 2008, the Downtown Development Authority (DDA) reviewed the development proposal and unanimously recommended approval of the site plan and the request for in-lieu parking for 8 spaces for Taste Restaurant project. Pineapple Grove Main Street Corrtmittee (PGMS}: At its meeting of December 3, 2008, the Downtown Development Authority (DDA) reviewed the development proposal and unanimously recommended approval of the site plan and the request for in-lieu parking far 8 spaces for the Taste Restaurant project. Courtesy Notices: Courtesy notices have been sent to the following homeowner's andlor civic associations: - Neighborhood Advisory Council - Delray Beach Chamber of Commerce Letters of objection or support, if any, will be presented at the Site Plan Review and Appearance Board (SPRAB) meeting. ASSESSMENT'A~JD CONCLUSION .. -- - .. _. _ -- _ .:-- The proposed 2,721 sq. ft. restaurant is consistent with the zoning and FLUM designations of the subject property and will aid in the long term revitalization of the Central Business District as well as the Pineapple Grove Main Street area. Positive findings can be made with respect to Concurrency and Comprehensive Plan consistency as well as the specific findings required by LDR Section 2.4.5(G) (5), provided the conditions of approval are addressed. :~ -_ ~- _~ _ALTERNATIV`E ACTIONS A. Continue with direction. B. Move approval of the waiver requests, Class III site plan, landscape plan, and architectural elevations for the Taste Restauran#, by adopting the findings of fact and law contained in the staff report, and finding that the request is consistent with the Comprehensive Plan and meets criteria set forth in Sections 2,4.5(G)(5), 4.6.16 and 4.6.18(B)(14}, and Chapter 3 of the Land Development Regulations, subject to conditions. C. Move denial of the waiver requests, Class III site plan, landscape plan, and architectural elevations for the Taste Restauralnt, by adopting the findings of fact and law contained in the staff report, and finding that the request is inconsistent with the Comprehensive Plan and does not meet criteria set forth in Sections 2.4.5(G)(5), 4.6.16 and 4.6.18(B)(14), and Chapter 3 of the Land Development Regulations. STAFF RECO~VIMIEN©ATION By Separate Motions: Waiver Re uesf: 1. Recommend approval to the City Commission of the request for waiver to LDR Section 4.6.16 {H)(3} ('I)] to reduce the required five (5') foot landscape island at the end of a parking row, to 4" for the southern portion of the handicap parking space and to two (2) Site Plan Review and Appearanc, yard Staff Report: Meeting of 01/14/09 Taste Restaurant, Class III Site Plan, Landscape Plan and Architectural Elevations Page 12 feet far the northern portion of the handicap parking space, by adapting the findings of fact and law contained in the staff repork, and finding that the request and approval thereof is consistent with LDR Section 2.4.7(8) (5). 2. Recommend approval to the City Commission of the waiver request to LDR Section 4.6.14 (A}(1) to reduce the required twenty feet (20') sight visibility triangle to two {2') at the intersection of the handicap parking space and the east alley driveway, by adopting the findings of fact and law contained in the staff report, and finding that the request is consistent with LDR Section 2.4.7{B) (5}. Class Ill Sife Plan: Move approval of the Class III site plan for the Taste Restaurant, by adapting the findings of fact and law contained in the staff report, and finding that the request is consistent with the Comprehensive Plan and meets criteria set forth in Sections 2.4.5{G){5} and Chapter 3 of the Land Development Regulations, subject to the following conditions: That three {3) copies of the revised plans are submitted addressing all conditions of approval and engineering technical items contained in the staff report; 2. Provide copy of certified boundary and topographic survey meeting requirements of I-DR Section 2.4.3 (A), (B) and {D). Existing grades should be taken approximately 14-feet outside all subject property lines for all adjacent properties. Survey shall provide sufficient information to determine historical drainage pattern. Survey shall include all existing easements. Survey needs to be completed within the last 6 months per LDR 2.4.3 (B}(20); 3. That the two {2) feet r-o-w dedication dimension needs to be depicted on the site plan; and 4. That the 2' r-o-w dedication along the east alley shat[ be executed by deed agreement between the City of Delray Beach and the land owner, and thus, this is being attached as a condition of approval. Landscape Plan: Move approval of the landscape plan for the Taste Restaurant, by adopting the findings of fact and law contained in the staff report, and finding that the request meets criteria set forth in Section 4.8.16 of the Land Development Regulations, subject to the following conditions: 1. That three {3} copies of the revised plans are submitted addressing all conditions of approval and landscape technical items as indicated and contained in the staff report; 2. That a hedge screening be provided for the proposed fence that faces the alley Right-of- Way, and that the fence be set back a minimum of 2' from the curb to allow enough space for the required plantings with a Cocoplum to be used as planting material; 3. That the quantities for each area of plantings be specified; 4. That a 12' overall height canopy tree or an equivalent number of palms be provided for the landscape island on the north side; and 5. That the tree that is proposed for removal on the landscape plan be shown, and that each species be identified with botanical name, caliper, height and spread. Site Plan Review and Appearanc yard Staff Report: Meoting of 01/14/09 Taste Restaurant, Class ili Site Plan, Landscape Plan and Architectural Elevations Page 13 Archlfecfural Elevafions: Move approval of the architectural elevations for the Taste Res#auran#, by adopting the findings of fact and law contained in the staff report, and finding that the request meets criteria set forth in Section 4.6.18(B){14) of the Land Development Regulations. Staff Report Prepared by: EsfeAo Brefo, Senror Planner. Attachments: Appendix `A'; Slfe Plan; Landscape Plan and Archlfectura! Elevatlons. =APPENDIX " A" . _` :. -.-: CQNCURRENCY [=I'NDINGS Pursuant to LDR Section 3.1.1(8}, Concurrency, as defined pursuant to Objective B-2 of the Land Use Element of the Comprehensive Plan, must be met and a determination made that the public facility needs of the requested land use andlor development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Water and Sewer: Water is available via a lateral connection to an existing 8" water main located along NE 2nd Avenue r-a w. Sewer service is available via service lateral connections to an existing 8" sanitary sewer main within the east alley right-of--way. Adequate fre suppression will be provided via an existing fire hydrant located approximately 70' south of the subject property on the east side of NE 2"d Avenue. Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water Treatment Plant and the South Central County Waste Water Treatment Plant for the City at build-out. Based upon the above, positive findings can be made with respect to this level of service standard. Streets and Traffic: The subject property is located within the City's Transportation Concurrency Exception Area (TCEA), which encompasses the CBD, CBD-RC, OSSHAD, and West Atlantic Avenue Business Corridor. The TCEA exempts the above-described areas from complying with the Palm Beach County Traffic Performance Standards Ordinance. Therefore, a traffic study is not required for Concurrency purposes, however a traffic statement is necessary to keep a record of krips approved in the TCEA and for calculation of traffic impact fees. A traffic statement has been submitted by the applicant which indicates that the proposed restaurant will generate an estimated 107 Average Daily Trips at project build-out. According #o the Traffic Statement submitted the Average Daily Trip (ADT} volume for Atlantic Avenue is 11,580 Trips per Day (TPD). The net daily trips added to Atlantic Avenue will be less that 1% {107 TPD 1 11,580 ADT x 100 = 0.92%), and thus, no adverse impact on the area is anticipated as a result of this project. Based upon the above, a positive finding with respect to traffic Concurrency can be made. Parks and Open Space: Park dedication requirements do not apply for non-residential uses. Thus, the proposed developmenk will not have an impact with respect to this level of service standard. Solid Waste: The proposed restaurant will generate 7.25 tons of solid waste per year (2,721 x 24.9 = 67,752.9 1 2,000 - 33.87). The Solid Waste Authority has indicated that its facilities have sufficient capacity to handle all development proposals until the year 2021, thus a positive finding with respect to this level of service standard can be made. Drainage: There are no modifications to the footprint of the building and the existing drainage system will be maintained (exfiltration trench}. Thus, there should be no impact on drainage as it relates to this level of service standard and there are no problems anticipated in complying with SFWMD requirements since the property has been in operation far more than 20 years. Schools: The project contains no residential component. Therefore, school Concurrency is not applicable. L~ z. w Q Iv.t. 3RI3 5T. L<i w a ~ _ M- o ra d" h-- N { ~ z N.E. 2ND 5T. 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JEFFERSON, SENIOR PLANNER PAUL DORLING, AICP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER DATE: February 12, 2009 SUBJECT: AGENDA ITEM 9.B. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 WAIVER REQUEST/LAKE DELRAY ELDERLY APARTMENTS ITEM BEFORE COMMISSION The item before the City Commission is consideration of a waiver request to LDR Section 4.3.3(00)(1) (F) which requires generators to operate the full capacity of the equipment being served for a period not less than 120 hours. A reduction to not less than 2 hours is being requested. BACKGROUND The subject 16.60 acre property serves a 404 unit elderly apartment complex and is located on Lindell Boulevard, west of South Federal Highway and south of Linton Boulevard. On November 10, 2009, the City administratively approved a site plan modification for installation of five (5) backup generators. One (1) generator is proposed in each of five (5) free-standing buildings on-site. The buildings consist of two (2) five-story multiple family residential buildings, two (2) three-story multifamily residential buildings and one (1) one-story clubhouse. On September 5, 2006, the City Commission approved an LDR text amendment requiring all multi-family residential buildings equipped with elevators to install backup generators within six (6) years of the adoption of City Ordinance 46-06. In retrofitting this project to comply with this ordinance the applicant has identified some concerns over the amount of fuel and the size of the tank (over 300 gallons) that would be required to accommodate the 120 hours operating time frame. A waiver request to LDR Section 4.3.3(00)(1)(F) to allow reduced operating hours minimums is requested. WAIVER LDR Section 4.3.3(00)(1)(F) requires generator operation for one hundred and twenty (120) hours for elevators and emergency lights. Consequently, the Florida Building Code only requires two (2) hours and LS hours respectively. The applicant claims that the provision of 120 hours of generator power would be a financial hardship. Grant funds from Palm Beach County are pending approval for the installation of five (5) natural gas or liquid propane backup generators with a maximum 300 gallon capacity which would provide a minimum of thirty (30) hours of operation at full load. After Hurricane Wilma, the Fire Department responded to a significant number of calls for service at this location for residents who were virtually trapped in their units because of lack of power. Given this history, support of the waiver is not recommended. It is noted that waivers which require 500-550 gallon tanks have been supported for other projects. Consideration of support for the extended period of time accommodated by those larger tanks would provide some protection for the residents and some relief for the applicant. Approval of this waiver as requested would grant a special privilege, create an unsafe situation, and is not supported. Further, the City Fire Department confirms that the complications evacuating residents during hurricane events from the subject site attributed to the necessity for more stringent generator requirements for multi-family residences. RECOMMENDATION Deny the waiver due to a failure to make positive findings with respect to LDR Section 2.4.7(B)(5). IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST FOR LAKE DELRAY APARTMENTS ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This waiver request has come before the City Commission on February 17, 2009 wherein the applicant is requesting a waiver from the requirement that auxiliary power generators for the elevator, all interior corridor lighting and exit signs must operate for 120 hours and instead would like to install a generator that operates for 2 hours due to concerns over financial restraints that create a hardship to accommodate the required 120 hours operating time frame. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver request for Lake Delray Apartments located on Lindell Boulevard, west of South Federal Highway and south of Linton Boulevard. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVER: Pursuant to Section 4.3.3(00)(1)(F) of the Land Development Regulations all new multifamily residential buildings (including hotels and motels) equipped with public elevators that apply for a building permit after the effective date of the ordinance (September 5, 2006) shall provide auxiliary power generators for all interior corridor lighting and exit signs and at least one (1) public elevator that operates for 120 hours. Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, 1 (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. Does the request to waive the generator operating time requirement meet all the requirements of 2.4.7(6)(5) subject to the condition that Lake Delray Apartments shall establish an agreement with a diesel fuel provider to provide for replenishment in the event of an extended power outage, so that the generator will be operational until power is restored? Yes No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original development application was submitted and finds that its determinations set forth in this Order are are not consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves denies the waiver request to Section 4.3.3 (OO)(1)(F) of the Land Development Regulations. 6. Based on the entire record before it, the City Commission hereby adopts this Order this 17t" day of February, 2009, by a vote of in favor and opposed. ATTEST: Chevelle Nubin, City Clerk Rita Ellis, Mayor 2 Jan 29 09 C2: 21p SEEGERS RRCH I7ECTS "~` ~S~i 1456-, p. 1 /R, WILLIAM SEEGERS ARCHITECTS 44T NORZ'Ft .IEFFER~N B~REET SUITE 305 CFtICAGO ILCiN015 80561 312 ~t54 0099 The Planning snd Znrting Department City of Delray Beach lt1Q N W i~' Avenue Delray Beach, FL 33444 Re: Lake Delray Apartments Date: January 29.31>lf9 Emergency Gener+tttnrx 7tH! Lindell Boulevard De{ray leach, Florida 33444 AWS it ©803 To Wham k May Concern: Per ttiy past phone conversation with Mr. Michael Vinci (with his assistance to the City of Delray $each web site) of the Planning and Zoning Department ! am requesting a waiver to: Section 4.3.3.1 f: "Generators shat! be designed and equipped to operate the full capacity ofthe equipment being served for a period not less than ono hundred twenty (12t!}hours: attd: ' Regtustinga wavier, from S days 1120 hours) to a tninirnu~.af got lesstlran:~, hnuss~as stated in codes listed betnw and also allow us to caminue, our permit application. Matt are the only to:rurtunity itt the. area which requires this excessi. a time period of Sdays (1Z0 hours) for this type of nse this is not for required. of condatniniums. 't`his use; is not Institutional, Hospital, or Assisted Living. This is for residential use. tan our siyc w~ have 5 lneildiegs (two S story, two 3 slaty and one 1 story). T'he standby generator is to service one ekvalarand emergency lighting fareach buildingonly, not arty other service to the individual living units. To require 12fl hours at full load vvnuld require fuel tanks to be aver 300 gal. which then requires them to have a 3 hour fire-rated enclosure which vouid be as large as the generators thernselvcs, and to cover mare land with additional landscape screening . This gently increases the cast and site land coverage withotrt direct benefit to the residents. ]t also cr~cates excessive fuel storage in a residential art:a. The diesel foci stared and eat tttilixed ofa period of one year woe{d then need to be reptxtcessed. if power to the betiding is lost far any extended period of time, the living units tvi{I not be improved by running the stastd by generator for a S day period. The living units w71 siill be.vithaut power for [heir needs (light, heat and cooling). The main reason for the standby generator is to the [:cep the elevator operatictg, a{lowing the residents to evacuate the beiiding safely. Jan 29 09 d2:21p SEEDERS RRCHITECTS 3i2 454 1458 p.2 nny review of the Florida and other cedes fur the reguiretnent of l?0 hour full operation, is excessive use and with no additional benefit to the rc5idents. The 3005 LfC code'Sectian 60~i?. l 5.1.1 Fuel sttpply. An nn-premises fuel supply, sufficient focttot less then 2-hour full -demand operation of sy~stctn. steal{ be provided. National Electrical Code ?OOi edition Article 700.1?B ?shall 6e provided with an an-premises fuel supply. suffscient for net Tess than 2-hour full-demand operation of system. also talked to the 1"larida State Fire Marshall Office in reference [o standby power for this use and 1 was told that 90 minutes far liglttittg and 2 hours for clevatar5 is standard. am enclosing a Processing Fee checEc for S?50.00, as i was informed to do. Timing is of the uunost importance. l rCgltesC tfiat you to put us un tfie Feltruary 3.2009 meeting, itat ail possible. 1 wil I be available to meet with yatit at that time. 1 f you fiave any questions, please call me. Sincerely, A. [ism ARCHITr=CTS iikam eegers AlA AWSIds Page 1 of 1 Jefifierson, Candi From: Tomaszewski, John Sent: Wednesday, February 04, 2009 4:14 PM To: Jefferson, Candi; Knabb, Benjamin Cc: Greenberg, Harvey; Etchison, Phillip; Thayer, Byron Subject: RE: Lake Delray Apartments The Fire-Rescue Department opposes this waiver request. This is specifically one of the locations that this ordinance was meant to address. After the past hurricanes we assisted numerous residents of this complex that were trapped in or out of their unit because there was no power to operate their elevator. John Tomaszewski Assistant Fire Chief Delray Beach Fire-Rescue Department 501 West Atlantic Avenue Delray Beach, FL 33444 Office: (561) 243-7420 Cell: (561 } 441-3017 FAX: (561) 243-7408 `tPreparirrg fortfie ~worst...~DeCvering tote &est".i From: Jefferson, Candi Sent: Wednesday, February 04, 2009 4:06 PM To: Knabb, Benjamin; Tomaszewski, John Cc: Greenberg, Harvey; Etchison, Phillip; Thayer, Byron Subject: Lake Delray Apartments TAC: Attached is the proposed generator specifications for the Lake Delray Apts. waiver request for min. two {2) hour full load capacity instead of 120 hour operation. Please return any comments, questions or concerns by this Fri. Feb. 6th .This item is currently scheduled for CC review on Tuesday, Feb. 17th. Candi N. Jefferson Senior Planner jefferson cr_ci.delray-beach.fl.us (561 } 243-7049 phone (561 } 243-7221 fax 2/12/2009 MEMORANDUM TO: Mayor and City Commissioners FROM: Robert A. Barcinski, Assistant City Manager THROUGH: David T. Harden, City Manager DATE: February 10, 2009 SUBJECT: AGENDA ITEM 9.C. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 WAIVER REQUEST/SAVOR THE AVENUE ITEM BEFORE COMMISSION City Commission is requested to consider a waiver request per LDR Section 4.6.7(F)(3)(f) to allow banners to be hung more than fourteen (14) days prior to Savor the Avenue being held March 26, 2009. BACKGROUND Attached is a letter request received from Marjorie Ferrer on behalf of Florida Table to allow street light banners to be put up on March 2, 2009 versus March 12, 2009. The reason for this request is to allow the banner sponsors more time prior to the reservation cut off date of March 19, 2009. The event was previously approved. This is an additional request. RECOMMENDATION Staff recommends approval of the waiver request to allow banners to be hung for Savor the Avenue on March 2, 2009. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA SIGN WAIVER REQUEST FOR THE SAVOR THE AVENUE EVENT ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This waiver request to allow banners to be placed 3 '/ weeks prior to the special event has come before the City Commission on February 17, 2009. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver request for Savor the Avenue Event. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. WAIVER: LDR Section 4.6.7(F)(3)(f) limits the time that a banner may be placed prior to an event to 14 days. The Applicant has requested a waiver from this requirement to install the banners 3'/ weeks prior to the event. Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. Does the waiver request meet all the requirements of 2.4.7(8)(5) subject to the conditions, if any, listed below? Yes No 1 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the request was submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves denies the waiver request to LDR Section 4.6.7(F)(3)(f), subject to the conditions, if any, imposed in this order. 6. Based on the entire record before it, the City Commission hereby adopts this Order this 17t" day of February, 2009, by a vote of in favor and opposed. ATTEST: Rita Ellis, Mayor Chevelle Nubin, City Clerk 2 ~'~ ~ ~ ~¢ ~~0~ AD SERV CE51VE February 2, 2009 Mr. Robert A. Barcinski, Assistant City Manager City of Delray Beach 900 NW 1St Avenue Delray Beach, Florida :33~~+4 Re: Waiver for Banners r Savor the Avenue Event Dear Mr. Barcinski: This Downtown Marketing Cooperative is requesting the City Commission to waiver its banner policy by giving permission for the Savor the Avenue banners to be put up on March 2, 2008, 3'/~ weeks in advance of that event instead of the two weeks allowed. Savor the Avenue takes place on March 26, 2009. The banners will be put up on intersection lamp pasts from Swinton to Fifth Avenue. We expect to put up 20 banners. There is no conflict as no other event is being held at that time. Putting up the banners on March 2nd allows the restaurants and the banner sponsor more time for advance sales. Reservation cutoff is March 99t" This is a very unique event, paid for by the sponsors and certain to get national attention. Thank you for consideration of our request. Sincerely, r ~ Marjorie F rr r Executive erector - DELRAY BEACH DOWNTOWN MARKE'flN(. COOPF,RAa'IVE • City of Delray Beach • Community Redevelopment Agency • Downtown Development Authority • Greater Delray Beach Chamber of Commerce 64-A SE Fifth Avenue, Delray Beach, FL 33483 • Tel: 561.279. ] 380, ext 16 Fax: 56].278.0555 www.DowntownDeirayBeach.com MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, Assistant City Attorney THROUGH: City Attorney DATE: February 13, 2009 SUBJECT: AGENDA ITEM 9.D. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 ATLANTIC PLAZA II -ABANDONMENT AND RELOCATION OF N.E. 7TH AVENUE AND ABANDONMENT OF ALLEYWAYS ITEM BEFORE COMMISSION Approval of the attached agreements and easements regarding the abandonment and relocation of N.E. 7th Avenue between N.E. 1st Street and East Atlantic Avenue and the east-west and north-south alleyways lying east of N.E. Gtr' Avenue and north of East Atlantic Avenue. BACKGROUND The owner has submitted a request for the abandonment and relocation of N.E. 7th Avenue and the abandonment certain alleyways as described above in order to accommodate the proposed Atlantic Plaza project. When N.E. 7th Avenue is relocated the City will have an easement over it for the use by the City and the public. Due to the size of the project and the time periods involved between the actual abandonment of the road and alleyways and the reconstruction and relocation of 7th Avenue, the attached agreements have been developed to set forth the rights of the parties as it relates to the abandonments and relocation. The attached agreements provide that if the City approves the abandonment resolution, then the City shall have an easement over the alleyways and 7t1i Avenue until certain conditions are satisfied. If the conditions are not satisfied the owner will reconvey the alleys and 7th Avenue back to the City, however, once a certain point ("No turn back deadline") is reached, the City may not request a reconveyance of the abandoned areas and may only proceed with requiring the construction of the relocated 7t1i Avenue. If certain time frames are not met regarding the completion of relocated 7t1i Avenue by the owner, the City has the right to draw on the owner's letter of credit to complete the construction. Once the construction is completed the owner, or its successors or assigns, shall have the obligation to maintain 7t1i Avenue and the adjacent sidewalks. A quick summary of the time periods for 7th Avenue is as follows: provide environmental audit within 180 days of abandonment resolution approval must obtain SPRAB approval by 12/1/09 must obtain site plan certification within 18 months of SPRAB approval - must complete construction of underground tunnel under relocated 7th Avenue within 3 years of SPRAB approval (this is the "no turn back deadline") If the owner meets these times frames the City can no longer require a reconveyance of the abandoned roadway and alleyways. The owner then must achieve substantial completion of the relocated 7th Avenue within 2 years of reaching the "no turn back date", if the owner fails to make this deadline the City may finish the construction by using the funds from the letter of credit. The alleyways have slightly different trigger points as they are not being relocated. The City is receiving utility and access easements for the alleyways. A quick summary is as follows: - the utility easement shall be terminated by the City once it is determined that all utilities currently in the alleyways have been relocated and reconnected - the access easement may be terminated once the owner provides notice that certain tenants, who may use the alleyway, have been provided equivalent access - the City will still maintain its reconveyance rights in accordance with those mentioned for 7th Avenue above I have also attached a summary prepared by the owner that explains in greater detail the basic transaction and time lines. Furthermore, the Agreement for Abandonment and Relocation of N.E. 7th Avenue includes: - The Financial Guarantee and Agreement - Declaration of Reserved Rights and Agreement not to Encumber N.E. 7th Ave. - Easement Agreement for Vacated 7th Avenue - Easement Agreement for Relocated 7th Avenue - Traffic Enforcement Agreement - Escrow Agreement The Agreement for the Abandonment of the Alleyways includes: - Easement Agreement for the Abandoned Alleyways - Financial Guarantee and Agreement - Declaration of Reserved Rights and Agreement not to Encumber the Alleys - Traffic Enforcement Agreement If the Agreement for Abandonment and Relocation of N.E. 7th Avenue and the Agreement for the Abandonment of the Alleyways are approved, these Agreements incorporate the agreements listed above and they would likewise be approved. Our office has attempted to accommodate the abandonment of public rights-of-way while still preserving the public's right to use the current 7th avenue while construction is proceeding as well as providing for the public's right to use the relocated 7th Avenue. EXECUTIVE SUNINIARY - ATLANTIC PLAZA DEVELOPMENT II Basic Transaction: The basic transaction involves a relocation of existing N.E. 7th Avenue ("Old 7th Ave") to the east of its present location. This will be accomplished by an abandonment of Old 7th Ave and its replacement by a new roadway located slightly to the east of Old 7th Ave ("New 7th Ave"). New 7th Ave will be located on private property, in part, but shall function as a public roadway through an easement agreement between the City and the Property Owner. The transaction is structured to enable the Property Owner to proceed with its approvals for the project without j eopardizing the City's or the public's rights in Old 7th Ave and to ensure, at all times, that the City and the public shall have full use of Old 7th Ave until the Property Owner delivers to the City and the public New 7th Ave. The transaction also further protects the City and the public by providing assurances that if the Property Owner is unable to deliver New 7th Ave in a timely fashion, the City may require the Property Owner to return ownership of Old 7th Ave to the City. In addition, the agreements to carry out this transaction require the Property Owner to deliver letters of credit or other security to the City to ensure that the City shall not incur any costs to complete or maintain New 7th Ave. As an additional assurance that Old 7th Ave will be returned to the City if the Property Owner does not timely construct New 7th Ave, the Property Owner shall deliver a deed to the title of Old 7th Ave to the City's outside legal counsel to be held in escrow at the time the abandonment resolution is approved by the City. The deed shall be released and recorded by the City's outside counsel if the Property Owner fails to timely construct New 7th Ave, at the City's option. Transaction Documents: The relocation, abandonment and protection for the City shall be accomplished through a series of agreements as follows: 1. Agreement for the Abandonment and Relocation of N. E. 7th Avenue; 2. Financial Guarantee & Agreement; 3. Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7th Avenue; 4. Vacated 7th Ave Easement Agreement; 7776/19692-011 CurrenU13584167u1 02/13/2009 04:05 PM 5. Relocated 7th Ave Easement Agreement; 6. Traffic Control Agreement; and 7. Escrow Agreement. Important Events and Dates: There are certain "Development Conditions" that the Property Owner must comply with as follows: 1. SPRAB Approval Deadline: By December 1, 2009, the Property Owner must receive site plan approval by SPRAB. 2. Site Plan Certification Deadline: No later than 548 days after the SPRAB Approval Date, the Property Owner shall procure site plan certification for the project. 3. No Turning Back Deadline: No later than 1,095 days after the Site Plan Certification Date, the Property Owner must construct New 7th Ave to the "No Turning Back Point". The "No Turning Back Point" was established by the City Engineer and it is the point when the tunnel under New 7th Ave is constructed. 4. Environmental Audit Deadline: Within 180 days after the City passes the Abandonment Resolution, the Property Owner shall deliver a "clean" Phase I Environmental Assessment to the City. The Property Owner has submitted the Environmental Audit to the City for review by the City Engineer. If the Development Conditions are not timely satisfied as set forth above, the City is entitled to require the Property Owner to return Old 7th Ave to the City. This shall occur by the City giving notice to the City's outside legal counsel to release and record the deed for Old 7th Ave, thereby returning Old 7th Ave to the City. This is known as the "Reconveyance Right". The City has a certain time to exercise its Reconveyance Right. If the City does not timely exercise its Reconveyance Right, the City's Reconveyance Right is released. To ensure that the City does not inadvertently miss the deadlines for its Reconveyance Rights, the agreements require the Property Owner to notify the City in writing before any of the Reconveyance Rights expire. The notice to the City provides the City with sufficient time to exercise its Reconveyance Rights if it desires to do so. Another important deadline is the date for "substantial completion" of New 7th Ave. New 7th Ave must be substantially complete no 7776/19692-011 CurrenU13584167u1 02/13/2009 04:05 PM later than 730 days after the No Turning Back Deadline. After New 7th Ave is substantially complete, the City Engineer can require the Property Owner to bring New 7th Ave to final completion within 90 days. If the Property Owner fails to meet these deadlines, the City can complete New 7th Ave at the expense of the Property Owner. The Property Owner is required to post a letter of credit to secure this obligation. Security: 1. Letter of Credit. In an effort to provide security to the City for the completion of New 7th Ave, the agreements require the Property Owner to deliver to the City an irrevocable letter of credit prior to commencing construction of New 7th Ave. At such time as the Property Owner has substantially completed certain stages of the construction of New 7th Ave, the City Engineer shall determine if the letter of credit shall be reduced. 2. Maintenance Suretv. The Property Owner shall deliver to the City at or prior to the completion of New 7th Ave, a surety to ensure that the Property Owner timely and properly maintains, repairs and replaces New 7th Ave. The surety shall remain in effect unless the City permits otherwise. 3. Amount of Letter of Credit/Maintenance Suretv. The requirements of the letter of credit and the maintenance surety have been established by the City Engineer as follows: a. Letter of Credit - $405,000 b. Maintenance Surety - $100,000 Functions of New 7th Ave: New 7th Ave and its sidewalks will function as a public right of way for all intents and purposes. The City shall maintain the right to use New 7th Ave for any public purpose approved by the City, including but not limited to, street fairs, festivals or other events approved by the City within the exercise of the City's governmental or quasi-governmental functions. The Property Owner shall not have the right to determine how New 7th Ave operates or functions. Maintenance of New 7th Ave.: The Property Owner shall maintain New 7th Ave at its sole cost and expense, as required by the City. In addition, the Property Owner shall be responsible for the payment of all ad valorem real property 7776/19692-011 CurrenU13584167u1 02/13/2009 04:05 PM taxes, general and special assessments and other governmental charges assessed against New 7th Ave. Title Insurance: At the Property Owner's expense, the Property Owner shall deliver to the City a title insurance policy insuring the City's easement over New 7th Ave in the amount of $1,000,000. Alleys: To enable the Property Owner to proceed with its development of the project, the City shall also abandon certain alleys. The alleys provide easements for certain utilities. In addition, they provide a rarely used access way primarily for the benefit of the adjacent properties. The Property Owner now owns or controls all properties on both sides of the alleys. The abandonment of the alleys will occur in a similar fashion as the abandonment of Old 7th Ave and similar documents will be executed between the Property Owner and the City. In connection with the project, the Property Owner intends to disconnect, relocate and reconnect the utilities in the alleys so that the alleys are no longer necessary to operate such utilities. In order to assure the City that the utilities will be removed and reconnected, the Property Owner shall provide the City with an irrevocable letter of credit prior to commencing construction in the alleys. Like Old 7th Ave described above, the City shall have a Reconveyance Right to require the Property Owner to return the alleys to the City if the Property Owner does not timely satisfy the Development Conditions for New 7th Ave, as described above. 7776/19692-011 CurrenU13584167u1 02/13/2009 04:05 PM AGREEMENT F[IFk '>('HE ABANI]ONMENT AN17 RELOCATION GF N. E. 7~a AVENUE THIS Agreement far the Abandarnncnt and Relocation of N. E. 7'h Avenue this "Agreement"} is entered into as of February Y7, ~Ot79 (the "Effective Date"}, between the CITY OF DELRAY BEACH, a Florida Municipal Corporation {the "Ci~t "), and ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership {collectively the "Developer"}, far the purpose of enumerating the conditions precedent to the Developer's requested abandonment by the City of a portion of N.E. 7th Avenue, Delray Beach, Florida, and the Developer's reloca#ion of I~. E. 7`h Avenue and easement thereon granted to the City by Developer to accommodate the Developer's mixed use project in Delray Beach, Florida on lands now currently known as Atlantic Plaza. RECITALS: A. The Developer intends to construct and develop amixed-use project (the "Protect"} vn that certain real property described as follows {the "Overall Parcel"}; See Exhibit "A" attached hereto and made a part hereof. B. Pursuant to a Resolution the "Abandonment Resolution"), the City, at the Developer's request, shall consider vacating and ahandoning al] right, title and interest the City holds in and to that Certain roadway more particularly described as follows {"Vacated 7tn Avenue"}: See Exhibit "B" attached hereto and made a part hereof. The Abandonment Resolution shall be recorded in the Public Records of Palm Beach County, Florida, as set forth herein. C. As a result of the approval by the City of the Abandonment Resolution, the Developer has became the owner and holder of fee simple title ofrespective portions of Vacated 7t1' Avcnuc and, pursuant to that certain proposed easement agreement to be recorded in the Public Records of Palm Beach County, Florida (the "Vacated 7`n Avcnuc, Agreement"), the I.]evelaper has agreed to grant the City: (i} a perpetual exclusive roadway easement far unobstructed and unimpeded vehicular and pedestrian traffic for ingress and egress, and over, upon, and across Vacated 7°~' Avenue, and for the City to exercise its governmental and quasi- gavemmental functions with respect to Vacated 7cn Avenue; and {ii} a perpetual non_exclusive subsurface utility easement within Vacated 7t'` Avcnuc {collectively, the "Vacated 7`~' Avenue Easement"}. The proposed Vacated 7`f' Avenue Ageement form is attached hereto as Exhibit ..C„ I U44811969~•016 CurrertV13490934v11 02~~13120fl91~:56A~f D. Tn connection with the development of the Project and as set forth in the Relocated 7th Avenue Agreement {defined below}, the Developer may construct a relocated 7`'' Avenue, between N.E. IS` Street and East Atlantic Avenue ("Relocated 7`h Avenue"}, including the installation of improvements located thereon, including, without limitation, streetlights, pedestrian and vehicular traffic signs and markings, sidewalks, planters, trees landscaping and other rc[atcd appurtenances in accordance with floe City's appxoval which may be issued or withheld in the exorcise of the City's governmental ar quasi govcrnxncntal functions. Relocated 7`h Avenue is legally descril}ed as follows: See Exhibit "L7" attached hereto and made a part hereof E. In connection with the construction of Relocated 7~n Avcnuc and as set Earth in the ReIacated 7th Avenue Agreement, the Developer also agreed, among other things, to grant to the City: (i} a perpetual exclusive roadway easement fur unobstructed and unimpeded vehicular and pedestrian traffic For ingress and egress, and over, upon, and across Relocated 7`h Avenue, and far the City to exercise its governmental and quasi-govex~runental Functions with respect to Relocated 7'r' Avenue; and {ii} a perpetual non-exclusive subsurface utility easement within Relocated 7r'' Avenue. The proposed "Relocated 7`~' Avenue Agreement" is in the form attached hereto as Exhibit "E". F. The Vacated 7'h Avenue Agreement provides, in part, that the Vacated 7'''' Avenue Easement shall terminate and be of no further force and effect upon recordation of the "Certi#icate of Substantial Completion" {as defined in Section ~~f} of that certain Financial Guarantee & Agreement, the form of which is attached hereto as Exhibit "F" {the "Financial Guarantee A>;reemGnt"}}, evidencing that construction ^f Relocated 7''' Avenue has been substantially completed in accordance with the "Specifications" {as defined in Section 2{a} of the Financial Guarantee Agreement) and in the Declaration of Reserved Rights and Agreement Not to Encumber hr.E. 7`h Avenue (the "Declaration of Reserved Ri is"} executed by and between the City and Atlantic Center, Ltd., a Florida limited partnership, and CDR Atlantic Plaza, Ltd, a Florida limited partnership, the form of which is attached hereto as Exhibit "G". G. This Agreement sets Earth the obligations of the Developer in connection with the adoption of the Abandonment Resolution by the City, subject to and in accordance with the terms and conditions hereinafter set forth. NGW, THEREFORC, in consideration of the mutual covenants contained herein and other goad and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Developer hereby agree as follows, 1. Incarpo_ratian of Recitals. The above recitals are true and correct and are incorporated herein as if set forth in full. 2 ~4L8119692.Oifi Currentli349'J934vi 1 fl2,'i312409 ifl:56AM 2. Developer Obligations. The following obligations shall be satisfied by the Developer in connection with the abandonment contemplated by the Abandonment Resolution: a. At the Developer's expense, the Developer shall deliver to the City a Lille insurance comrrzilment issued by a Florida title insurance underwriter agE•eeing to insure marke#able title of the cascnncnt in Favor of the City that is described in the Relocated 7th Avenue Agreement in the amount of $1,Oaa,~Qd, subject only to the matters set forth in Exhibit "H", which is attached hereto (the "Permitted ,Exc~tiyns"} and an owners' marketability title policy issued upon the retarding of the Relocated 7''' Avenue Agreement. 't'he owners' marketability title insurance policy shall delete all standard exceptions, except the survey exceptions, and the title insurance commitment shall provide gap coverage. The Developex stroll cause the satisfaction of all ]3-1 requirements in the title insurance commitment, at the 1eveloper's sale cost anti expense. b. At the Developer's expense, a sketch of a survey showing the location of the proposed rcIacatcd 7th Avenue shall be provided to City for Relocated 7~' Avenue. c. Execution by the Developer and delivery to the City of the Financial Guararrtee Agreement, Relocated 7th Avenue Agreement, Vacated 7`~' Avenue Agreement and the Declaration vf' Resezved Rights {collectively hereinafter referred to as the "Executed ,Agreements"} . d. Delivery to the City of executed and recardahle subordination agreements in coruiectian with mortgage iit;.ns, if any, which encumber the lands described in the Relocated 7th Avenue Agrcczncnt and Vacated 7''' Avenue Agreement. ~.1 In the event the City does not adopt the Abandonment Resolution within ninety {9D} days after the Effective Date, or if the City adopts the Abandonment Resolution ("Cit 's Deci5iozl"}, but the City's Decision is appealed or a writ of certiorari is filed (collectively, the "Appeals"} and either the City's Decision is reversed by a fZnal non-appealable order or if the Appeals are still pending three {3}years after tha City's Decision, then either party may cancel this Agreement upon written notice sewed upon the other party within fourteen {I4} days after the party is entitled to cancel this Agreement. The City shall not retard the Abandazunezrt Resolution during the pendency crf any Appeal. If this Agreement is cancelled, the original Executed Agreements shall be of no further effect or farce and the parties shall be relieved of further obligations hereunder. if theca is a reversal ar modification of the tcrzln,s or conditions of the Abandonment Resolution andlor the Executed Agreements as a result of an Appeal, the City and the Developer shall fully cooperate with each other to modify the Abandonment Resolution andlor the Executed Agreements in order to comply with the Appeal, If the City and the Developer are unable to mutually agree upon the terms and conditions of the modified Abandonment Resolution andlor the Executed Agreements then either party may cancel this Agreement upon written notice sen~ed upon the other party and this Agreement shall 3 0408119692.916 Currentl13490934v11 02113I20~910a~fiA~l he cancelled and the original Executed Agreements shall be of no fur#her effect or force and the parties shall be relieved of further Obligations hereunder. 2.2 if the City timely adap#s the Abandonment Resolution, and the City's Iecision becomes final and non-appealable within thirty one (3 ] }days ai~er the City's Decision, or if the City's Decision is appealed, but the Appeal is resolved without any nlodifications to the Abandonment Resolution or the Executed Documents, then the Executed Agreements described in paragraph {~}{c} of this Agreement shall be effective and the City shall be authorized to and shall promptly regard the Abandonment Resolution, the Vacated 7th Avenue Agreement, the Relocated 7th Avenue Agreement and the Declaration of Reserved Rights and promptly thereafter the Developer shall cause the title insurer to issue the owiler's policy of title policy insuring the City's good right and title in and to Relocated 7th Avenue wi#hin thirty {34} days thereafter. 3. Condition of Vacated 7''' Avenue. Except with respect to any matters set forth in the documents executed by the City in connection with the abandonment of Vacated 7`h Avenue, Vacated 7t>: Avenue, if abandoned pursuant to the Abandonment Resolution, shall be abandoned in its "AS l5" condition and the City makes no warranty or representation regarding the title to Vacated 7th Avenue and makes no representation or warranty either expressed or implied regarding the t:undition, operability, safety, fitness far intended purpose, use, governmental requirements, development potential, utility availability, legal access, ecanaillic feasibility or any other matters whatsoever with respect to Vacated 7;'' Avenue. The Developer specifically acknowledges and agrees that the City shall abandon Vacated 7`'' Avenue on an "A5 IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except far the City's representations and warranties specihealiy set forth in this Agreement, the DeveIaper is oat relying on any representations or warranties of any kind whatsoever, express or implied, Uy the City or its respective agents, officers, or employees as to any matters concerning Vacated 7t'' Avcnuc, including, without lirnitatian, any matters relating ta: { 1 } the quality, nature, adequacy, or physical condition of Vacated 7'h Avenue, [2} the quality, nature, adequacy ar physical condition of soils, fill, geology, or any groundwater, {3] the existence, quality, nature, adequacy or physical condition of utilities serving Vacated 7t~' Avenue, {4} the development potential, ii~coiiie potential, expenses of Vacated 7th Avenue, {S] Vacated 7`h Avenue's value, use, habitability, or merchantability, {6} the fitness, suitability, or adequacy of Vacated 7`'' Avenue for any particular use or pur~ose, (7) the zoning or other legal status of Vacated 7'h Avenue, (S} the compliance of Vacated 7` Avenue or its opera#ion with any applicable nodes, laws, rules, regulations, statutes, ordinances, covenants, Judgments, orders, dlreCtlves, deci5i0ns; guFdelInes, CpildltlOI]s, ^r res#rictians of any governmental or quasi-governmental entity or of any other person ar cn#ity, including, without limitation, envirarimental person or entity, including without limitation, environmental laws, (9} the presence of Hazardous Materials {as defined herein) ar any other hazardous ar toxic matter ^n, under, or about Vacated 7th Avenue, or adjoining or neighboring property, {ld} the freedom of Vacated 7`h Avenue from latent or apparent defects, {11}peaceable possession of Vacated 7t'' Avanue, {12} envirpnrriental matters of any kind or nature whatsoever relating to Vacated 7t'' Avenue, {13} any development order ar agreement, 4r (14} any other 04 0811 9692-01 5 CurrenU'i349~93~}v]1 0?J1312009 f0:5fiAM matter or matters ^f any nature or kind whatsoever relating to Vacated 7th Avenue ar any improvements located thereon. 4. Ci~,y's Maintenance Obligations. The City shall not have any obligation to repair, replace, or remediate Vacated 7''' Avenue yr any portion thereof as a function of vacating Vacated 7't' Avenue in the sense that the Develope~~ is accepting Vacated 7`'' Avenue in its "AS IS Where Is Condition"; provided, however, the City shall be responsible for maintenance, repairs and restoration to Vacated 7`~' until such time as Vacated 7`~` Avenue Agreement is terminated. It is the parties' intention that until such time as the Vaoated 7t'' Avenue Agreement is terminated, that Vacated 7`~' Avenue shall continue to operate in all respects as a public right-of way in accordance with the teens aild provisions of the Vacated 7t" Avenue Agreement and, as such, the City shall continue to operate Vacated 7th Avenue in all respects, including, without limitation, repair, restoration, replacement, maintenance, and traffic enforcement thereof and thereon until such tune as the Vacated 7'h Avenue Agreement is terminated and Vacated 7`f' Avenue is thereby replaced by Relocated 7`" Avenue, If the Developer damages Vacated 7th Avenue, the Developer shall be responsible to repair a.iid restore Vacated 7th Avenue as a result of such damage. 5. Risk ^f Lass. Prior to the termination of the Vacated 7`~' Avenue Agreement, the City shall hear the risk of lass or damage from casualty of Vacated 7`" Avenue, except such lass that has been caused by the Developer. The Developer shall bear the risk of lass or damage from casualty of Relocated ?`" Avenue as stated in the Relocated 7th Avenue Agreement. 6. Costs. Al[ documentary stannp taxes, title evidence, owners' title policy and commitment, and recording charges shall be paid by the Developer and such charges shall be paid to the City prior to such costs being iixcurred by the City. In the event such casts are not necessary or in excess of the amounts required, the City shall reimburse the Developer far the above described prepaid charges. 7. lteenresentations of Developer. The Developer represents and warrants to the City, to the bast of Develapex's knowledge; as follows, which re~presenlativns and warranties shall be deemed made by the Developer to the City as of the Effective Date and as of the recording ai'the Relocated 7th Avenue Agreement and Vacated 7th Avenue Agreement, and they shall survive recording: A. There are i1o parties in possession of any portion of easements described in the Relocated 7th Avenue Agreement other than Developer or as set forth in any title commitment delivered to the City. B. There is no pending ar threatened litigation ar other proceeding ar assessment against the Developer which if adversely determined in a final non-appealable judgment will have an adverse impact an the transactions contemplated by this Agreement or any 5 04 0811 9692-01 6 Cu.'renV'f3490934v'fi 02113J200910:68AM of the agreements to be exec~zted and delivered in connection with this Agreement or the abandonment eontemplatcd by the Abandonment Resolution. C. The Developer has complied with ail applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Iand described in the Relocated 7th Avenue Agreement or any part tl~tereaf the failure of which would have a material adverse affect an the transactions contemplated by this Agrccmcnt. D. Developer is authorised to enter into this transaction and has full authority to convey the easements described in the Relocated 7th Avenue Agreement and Vacated 7`s Avenue Agreement to the City without violating any rule, law, statute, agreement or other condition. E. The Developer is not a party to any unrecorded contracts, restrictions, Basemen#s, leases, option contracts, ar rights of first refi~sal with respect to the lands described in the Relocated 7th Avenue Agreement andlor Vacated 7`'' Avenue Agreement, the failure of which would have a material adverse affect vn the transactions contemplated by this Agreement, F. The Developer warrants that it wifI not, between the Effective Date of this Agreement and the date of recording of the Executed Agreements, without the City's prior written consent, create by the Developer's consent, any encumbrance, lien ar claim a~ainst title to the lands described ixi the Relocated 7th Avenue Agreement and Vacated 7' Avenue Agreement. 8. General Frnvisions. $.1 Amendment. This Agreement rosy be amended ar modified only by a written ins#rument signed by both parties or their respectivc successors and assigns. 8.Z Entire__Agreernent. This Agreement sets Earth the entire agreement between the Developer and the City with respect to the conditions precedent to the City's abandonment of Vacated 7`~` Avenue. This Agreea~t~e#at supersedes all prior and contemporaneous negotiations, understandings and agreements, wz-ittcn or oral, between the parties. 8.3 Go~~ernin I_aw- This Agreement will be interpreted and enforced in accordance with Florida law. 8.4 Successors,,,and Assignns. The covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigns of the Developer and the City. $.5 Authority to Execu#e• Re~resentatioi~s. The Developer and the City each ,,...__ warrant and represent to the other that the individual s signing this Agreexent an behalf of the 6 0408119692-0#6 CurrenV13490934v1# 02+13lP00910:56AM Developer and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto. $.5 Countemarts. 'T'his Agreement may be signed in two ar mare counterparks, each of which constitutes the Agreement of the parties and each of which shall be treated as an original. $.7 Severability. If any term or provision of this Agreement or application thereof to any person or circumstance shall, to any extent, be found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application ^f such term or provision to persons or circumstances other than those as fo which it is held invalid ar unenforceable, shall not be affected thereby and each term or provision of this Agreement shall he valid and enforceable to the fullest extent permitted by law. 8.$ Nan-Vdaiver. Na waiver of, or failure to assert, any claim, right, benefit ar remedy of any party pursuant to this Agreement shall operate as a waiver of any other claim, right or benefit. The failure of any party at any time ar times to require performance of any provision hereof shall in no mannex• affect such party's right at a later time to require such performance or to enforce the same fully. Na waiver or rrtadificatinn of the terrr~s hereof shall be valid unless in writing and signed by the party to he charged, and then only to the extent therein set forth. 8.9 Headings. The headings of the articles of this Agreement are for guidance and convenience of reference only and shall not limit or otherwise affect any of the terms or provisions of this Agreement. $.10 Delav. If any party to this Agrer~rient is delayed, lundered ire, or prevented from the performance of any act required to be performed by that party by reason of acts of God, strikes, lockouts, unavailability of xnaterials, failure of power, prohibitive governmental laws or regulations net imposed by the City, riots, insurrections, the act ar failure to act of any other party to this Agreement, adverse weather conditions preventing the performance of work as certified to by an architect, war, act of terrorism, or other reason beyond that party's reasonable control and for which, in each of the aforesaid circumstances, the party is diligently and in goad faith and with reasonable dispatch seeking to abate and remove the circumstances causing the delay or hindrance or prevention from performance of the act required to he performed lay that party, then the time for performance of the act shall be extended for a period equivalent to the period of the delay. Lack of adequate funds or financial inability to perform or financial or ecanainic losses or hardship resulting from performance shall not be deemed to be a cause beyond the reasonable control of such party. 8.11 .lainl Preparation. The preparation of this Agreement has been a joint effort of the City and the Developer and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one party than the other. 7 4908119592-01fi CUrrenVi349093~1v1f a2113I20a910:56AM 8.12 Notice. Ally IlDtlce, demand or reyut:,4t which may be permitted, required or desired to be given in connection #hcrcwith shall be given in writing and directed to the City and the owner as follows: As to City: City of Delray Beach 1 a0 N.W. 1 s~ Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (5fi1} (561) 278-4755 With a copy ta: 2~a N.~V. 15' Avenuc Delray Beach, Florida 33444 Attn: City At#omey Facsimile: {561 } 278-4755 As to Developer: Atlantic Center, Ltd. clo CDS International Holdings, Inc. 3?99 N.W. Znd Avenue Baca Raton, FEorida 33431 Attn: President Facsimile: (S51} 278-693D CDR Atlantic Plata, Ltd cl^ CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Baca Ratan, Florida 33431 Attn: President Facsimile: (551) 278-693^ Notices shall he deemed properly delivered and received when and if either {i) personally delivered; or (ii) one (1 }business day after deposits with United Parcel Service or other oven-dght courier; ar (iii}the same day when sent by confirmed facsimile before S:~Q p.m. {Eastern limo}. 8.13 Attorneys Fees. In connection with any litigation, or dispute arising out of this Agreement, each party shall hear its own attorneys' fees and costs. 8.14 Further Assurances. The parties agree to execute all future instruments and take all further action that may be reasonably required by any party to fully efFectuate the terms and provisions of t11is Agreement and the transactions contemplated herein, including without limitation, executing and delivering all Executed A~eements and all other dacutnents referenced in the Executed Ageernents. 8 X408119692-Otfi CurrenV13A9a934v1T ~21T3I2p091fl:56AM 8.15 Venue. Any dispute relatizzg to tl~is Agreement shall only be filed in a court of campeten# jurisdiction in Palm Beach County, Florida, and each of the parties to this Agreement submits itself to the jurisdiction of such court. g. Remedies and Default. 9.1 Default. The failure of the Developer or the City to obsez~~e or perf'onn any of their xespective obligations under this Agreement (the "1efaulting ~art~'} withuin thirty X36} days after receipt of written notice from the other party specii=ying the nature of the failure the "Nan- Defae~lting Party"}, shall constitute a default and breach of this Agreement; provided, however, if such failure is of a nature that it cannot reasonably be cured ~vithin such thirty {34} day period, then the Defaulting Party shall not be in default so long as the Defaulting Party commences such cure promptly after receiving such written notice, and is diligently pursuing such cure to Completion. This Section 9.1 is oat applicable to any provision contained in Section 2 ar subsections of Section 2 of this Agreement. 9.2 Remedies. The terms and provisions of this Agreement arc enforceable with all remedies at law and in equity, including, but not limited to, bringing an action far actual damages, an action for specific performance, an action for temporary restraining orders, preliminary or permanent injunctions, declaratory judgments or other similar orders for relief; provided, however, that suspension or tercninatian aftliis Agreement on account of a broach shall oat be an available remedy unless otherwise expressly provide for herein. The parties further agree that neither party shall have the right to recover any consequential, punitive, special, extraordinary or speculative damages as a result of the breach ot'this Agreement. The parties to this Agreement hereby acknowledge and stipulate the inadequacy of legal remedies and the irreparable harm that would be caused by a material breach of any ol~ligatiori under this Agreement by a party to this Agreement. This A~eement may not be suspended or #crrninated except by an instrument in writing signed by City and Developer and recorded in the real property records afl?alm l3each County, Florida. 1~. No Third Part Beneficiaries. No third parties other than the City sl-rall have tlrc right to bring a cause of action against the Developer under this Agreement. 1l . Governmental Functions. Notwithstanding anything to the contrary contained in this Agrec~rnc:nt: a. Sven though the City has certain contractual obligations under this Agreement such olJltgatE4n5 shall oat relieve any person subject to this Agreement from complying with all applicable gor~~enunental regulations, rules, laws, and ordinances; b. To the extent approval or permission must be obtained from the City, such approval or permission shall be panted or denied in accordance with app[icah[e go~~ernrrtental regulations, rules, laws, aizd ordi><rances, and no person Shall have any vested rights; 9 4A48l19692-O~fi CurrenVi3490934v1i 02rt3J2D0910:5BAM c. The City has aaot ~vai~ed its sovereign immunity and the tort limits of liability set forth in Fla. Stat. 768.28 which arc currently $100,444 per person and $2Q4,040 per oGCUrrence are applicable; and d. Any action by City shall be without prejudice to, and shall nat constitute a limit an, irnpairment or waiver of, ar otherwise affect the City's right to exercise its discretion in connection with its ga~ernmental or quasi-go~ernrnental functions. 12. Intentionally Omitted. EXECUTION' PAGES `1'U FQLLQVV 14 0408119n92.01fi Cu~rer~U134969Q4v11 02%~+2f10®16:56AI~ Ihr WITNESS ~JHERECF, the partic;s to this Agreement set their hands and seals the day and year first above written. ATTEST: By: City Clerk Approved as to Form: By: City Attorney STATE OF CDLTI~TTY ~F CITY OF DELRAY BEACH, FLnRIi]A gy:~ Name: Its: Date: The foregoing instrument was acknowledged before me this day of , 2t]Q9, ny _ .._ ____ ,the of the CITY QF DELRAY BEACH, FLORIDA. He1She is personally known to me or has pxQduced (type of identification} as identification, Signature of Person Taking Acknowledgment - 0408I19fi92-0#G CurrentP134909Q4v1# 02+#3I200914:5fiAM WITNESSES: Print Name' Print Name: STATE OF COUNTY DF DEVELOPER ATLANTIC CEI~ITER, LTD., a Florida limited partnership Sy: ATLANTIC CENTER, INC., a Florida corporation its General Partner By: Pri~~t Name: Its: The foregoing instrument was aclcnvwledged before me khis day ^f -- , 2DQ9, by ......_. , as the , of ATLANTIC CENTER; INC., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership, an behalf ^f the limited partnership. He1She is personally lcnowzi to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment F 3 f 611081]9692-~16 CurrenU1349D93-0v1] 42!]3120~91D:56A.~! DEVELOPER CDR ATLANTIC PLAZA, LTD., a Florida limited partnership Sy: DELRAY HISTORIC, INC., a Florida corporation, its General Partner Print Name: Print Name: By. Print Name: Its: STATE OF CUUN~I'Y OF The foregoing in~~trument way acknowledged before me this day of 2409, by ,the of DELRAY HISTORIC, FNC., a Florida corporation, the general partner of CDR ATLANTIC PLAZA, LTD., a Florida limited partnership, on behalf o~~ the limited partnership. H~'She is personally known to me or has produced (type of identification} as identification. Signature of Person Taking Acknowledgment 04ff8l39fi92-Q16 Current11349p9Q4v11 0~13J2Qfl91p:56AM Exhibit ~`A" T_ a_. Agreement for the Abandonment and Re~vcatian of N.E. 7~'~ Avenue Legal Description of the ~~erall Parcel 4408119692-416 Current113490934v11 42/13/2409 30:58 AM DESCRIPTION OF PROTECT S ITE: LOT 1, LESS THAT PORTION DEEDED TO THE STATE OF FLORIDA FDR ROAD RIGHT OF WAY , AS DESCRIBED IN OFFICIAL RECORDS BOOK 511, PAGE 516, LOTS 2 THROUGH 11, INC~LL)SIVE, LESS `T'HE VVES'1' S.C] FIE'1' `T'HEREOF F(7R ROAD RIGHT OF WAY, LQTS IZ THROUGH 19, INCLUSIVE, LQT 2Q, LESS THAT PDRTxON FDR THE RIGHT DF ~'VAY FOR EAST ATLANTIC AVENUE AND U.S. HIGHWAY NO. 1, LOTS 21 THROUGH 2~, INCLUSIVE, LESS THE SOUTH 7.4 FEET THEREOF FOR ROAD RIGHT OF ~'VAY, ALL THE EAST-WEST ALLEY LYING SOUTH OF AND AI]IACENT TO SAID LOT 11, LESS THE WEST S.0 FEET THEREOF FOR ROAD RIGHT OF WAY, ALL OF THE NORTH-SOUTH ALLEY BIGHT OF WAY LYING EAST DF AND ADJACENT TD LOTS 1 THROUGH 11, INCLUSIVE AND LDT 22, LESS THE SOUTH 7.~ FEET THEREOF FOR. ROAD RIGHT 4F'LUAY, ALL LYING IN BLOCK 116, TOWN OF LINTDI~I (NOW I]ELRAY BEACH), ACCORDING Ta THE PLAT THEREOF AS RECQRDED IN FLAT S4DK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. TOGETHER 'VdITH: ALL OF THE PLAT DF ATLANTIC PLAZA, ACCORDING. TO THE PLAT THEREOF' AS RECORDED IN PLAT BOOK 5~, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. AND TOGETHER WITH: THAT PORTION DF THE EAST HALF OF THE 5If FOOT ROAD RIGHT OF WAY FOR N.E. 7~ AVENUE LYING WEST OF AND ADJACENT TO THE SAID PLAT QF ATLANTIC PLAZA, AND THAT PORTION aF THE WEST HALF OF THE 50 FOOT ROAD RIGHT OF VVAY FOR N.E. 7~ AVENUE LYING EAST OF AND ADJACENT T4 SAID BLOCK 116, LESS THE SOUTH 7.0 FEET THEREOF. Exhxl3it ccBs~ To ment for the Abandonment and Relocation of N.E. 7~h A~eaue Lego] Description of Vacated 7'h,A~enue a408l1969Q•0#8 Currentl#3490934v#1 6?J#3l200910:56A,4! ~ 1V.E_. 1ST STREET U ~ o N IV.89°58'~7"E. ~~ ~~' NDi4TH LINES I I LIVdi?1~H LINE BLgC~C 115 P.Q 50, PAGE 129 ~ h ~ ~! v~ ~ ~ ~ ~~ w ~~~ w ~ ~ Q w ~~~ ~ ~ ~~ ~~ ~ ~ rn ~ ~ (p ~ ~~~ ~ ~'~ ~ Q ~ p~ Q ~ ~ w ~ ~~ U ~ ~ ~~ 50UTh' LINE SW. CORI~R BLD~K 1 i~ P.B 5D, PAGE" 1Z9 NoRrH ~rcHr OF WAY LAVE ~ EAST A ~LAN17C ~ A YEN[JE nESCRrPrroN• ALL THAT PpRTIgN OF THE 4C] FggT ROAD RIGHT 4F WAY' FQR NF 7TH A UENLE BOI~'VDED AS FOLLOWS• ON THE NORTH BY 7NE EASTEI?L Y EXTENSIQIY OF THE NQRTH LINE OF BLOCK 116, TQWN dF LINTa1V (NOW C7~RAY BEACN~ ACCORDING Tq THE PLAT T7-IEREOF A5 RECORDED IN PLAT BOOK 1, PAGE 3, P[,l9LlC RECC4D5 GF PALM BEACH COLWTY, FLORIDA AID nN Th+E 502JTH BY THE EASTERL Y EXTENSIGW OF THE 54UTH LII~ of sarD BLacx 115 NDTEa- THIS 1S N4T A SC~+IEY =CENTERLINE Tl-IE NORTH LJII~ OF BLOL7C 116 IS A55L~D TD BEAR NB9°58'~7''~ P.B. = PLAr aoDx PAUL D. EIYGLE SURVEYQR & MAPPER x`5708 DATE.• JULY 9, Z0~8 8. ~; ~~ a ~; ~; ~i a. g• ~; w. ~; $: o Exhibit "C" To_A~reement far the Abandonment an Relocation of N.E. 7t'' A~cnuc Form Vacated 7`~' Avenue A~eement 0408119692-015 ~urrenl113494934vii 02113J200910;56 RM Ties instrument was prepared by And should be returned ta: Brian Shutt, Esq. City Aitvmey's Off ce 200 N.W. 1 st Avenue Delray Beach, Florida 33444 EASEMENT AGREEMENT {Vacated 7t Avenue Easement} THIS EASEMENT AGREEMENT (this "A~eement"} made as of February l7, 2009 (the "Effective Date"), arnvng the C1TY t]F DELRAY BEACH, FLORIDA (the "~"}, with a mailing address of 100 N.Vi~. 1st Avenue, Delray Beach, Florida 33444, a Florida municipal corporation in Palrn Beach County, State of Florida, and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership and ATLANTIC CENTER, LTD., a Florida limited partnership (collectively, the "Cwner"}. RECITALS: A. Pursuant to a Resolution (the "Abandonment Resolution"}, the City has ageed to vacate and abandon all right, title and interest the City holds in and to that certain roadway more particularly described as follows ("Vacated 7`f' Avenue"}: See Exhibit "A" attached hereto and made a part hereof. The Abandonment Resolution has been recorded in the Public Records of Palm 13each County, l~lorida. I3_ As a result of the approval by the City of the Abandonment Resolution, each Owner became the owner and holder of fee simple title of and to a portion of Vacated 7th Avenue and the Owner together own fee simple title in and to the property constitutirrg tyre entire Vacated 7th Avenue. C. The Cwner, with respect to the portion of the Vacated 7''' Avenue, which s~zch Owner owns, desires to grant to the City: (i} a perpetual exclusive roadway easement far the unobstructed and unimpeded vehicular and pedestrian traffic for ingress and egress, and over, upon, and across Vacated 7tn Avenue, and for the City to exercise its governanental and quasi- goverutnental fu«ctians with respect to Vacated 7E~' Avenue, including without limitation, traffic regulation, and other uses and purposes as may be permitted by the City's Code of Crdinarrces ar by resolutions adopted by the Cite Commission with respect to public rights-of--Ways located 7776u'15692-fl16 GUrrenS`335a435~r6 0~l13'20~972:31 PM within the City and for all purposes for which the City has all power under haine rule authority, including but not limited to those expressed in Florida Statutes or City Grdinances, and this Agreement shall not in any way limit those powers including but not limited to access, ingress and egress, maintenance, control, closing, or other use of the Vacated 7`h Avenue by members of the public, and City officers, agents, errcployees or contxactoxs, and {ii} a perpetual non-exclusive subsurface utility easement aver and under Vacated 7`~` Avenue, each for the uses and purposes and upon the terms and conditions herein contained. D. fri connection with the City approving the Abandonrrient Resolution, and pursuant to the terms and conditions of that certain Financial Guarantee & Agreement, dated February 17, 2t7t39, between the City and Atlantic Center, Ltd., a FIorida limited partnership {"Atlantic Center"}, Atlantic Center re]ay construct a relocated 7`h Avenue, between V.E. 1St Street and East Atlantic Avenue {"Relocated 7`~ Avenue"}, including the installation of improvements located thereon, including, without limitation, streetlights, pedestrian and vehicular traffic signs and markings, sidewalks, planters, trees landscaping and other related appurtenances. Relocated 7th Avenue is legally described as follows: See >-;xhihit "[3" attaahred hereto and made a part hereof. E. This Agreement shall remain in full force and affect until Relocated 7th Avcnuc is constructed as set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the City and the Owner agree as follows: 1. Recitals. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set faith in their- entirety. ~. Roadwav Easement. 2.1 Grant_nf Roadway Easement. Subject to the terms of Section 14 of this Agreement, the Owner, as grantor, hereby grants and conveys to City, its successors and assigns and the general public; tcallectively hereinafter referred to as the "Raadwa Grantees"}, commencing upon the date of recording of this Agreement and perpetually thereafter, an exclusive unimpeded and unobstructed easement far the use and benefit of the Roadway Gxantees {"Roadwav Easement"} over, upon, and across Vacated 7`~' Avenue far the following pt]rpases: a. The unobstructed and unimpeded use for pedestrian and vehicular parking and traffic, including sidewalks, access, ingress and egress, as a tliraugl~ roadway, and far the proper installation, maintenance, repair and replacement of a paved roadway and its subsurface components; 7Tf5f19692i1]5 CurrenV13504359u6 02173!2009 ]2:3] PM b. 1?or any public purpose permitted by the City's Code of Ordinances which relate to or concern the use or regalatian of public rights of way located within the City; c. 1=or any public purpose approved by the City Cornnnissian which the City Commission could approve with respect to public rights of way located within the City in the exercise of its governmental and quasi-governmental functions; and d. Far all purposes for which the City has all power under Homc Rule Authority, including but not limited to those expressed in Florida Statutes or City Ordinances, and this Agreement shall not in any way limit those powers including but not limited to access, ingress and egress, maintenance, contxol, closing, or other use of the Vacated 7`~ Avenue by members of the public, and City officers, agents, employees or contractors, including, without limitation, closing Vacated 7`~' Avenue far street fairs, festivals ar other even#s approved by the City within the exercise of its governmental or quasi-governmental functions similar to any other City public right of way. e_ Alatwithstanding the foregoing, the grant of an exclusive perpetual easement, as set forth herein, shall not preclude the owner from exercising its rights or performing its obligations hereunder with respect to Vacated 7`~` Avenue, as speciCcally set firth in this Agreement. 2.2 Maintenance. Except as otherwise provided in this Agreement, the City hereby shall and does accept sole responsibility for the maintenance, repair and replacement of the Roadway Easement and all related improvements, including without limitation, sewers, drainage, landscaping, traffic control devices, street lights, median requirements, striping, sidewalks, paving, and curbing, in good condition and repair, and in connpliance with all appIicablc govcrrvncntal rules, laws, regulations and ordinances as they pertain to public rights of ways. Z.3 Alterations. The Owner shall not make any alterations to the roadway design, location or improvements thereon unless the City consents to same in the exercise of its governmental ar quasi-govc-~nmental functions. 2.4 Rights of tho Roadway Grantees. The R.aadway Grantees shall have the right to use the Roadway Easement in an unobstructed and unimpeded manner seven [T) days a week, twenty-four (24] hours per day, except as otherwise authorised by the City in the exercise of its governmental ar quasi-gavernme~ital functions. Na tae ar otl~er expense shall be charged by the Owner to the City or the roadway Grantees for use of the Roadway Easement. The City may install and maintain, at its expense, pulalic parking meters for parking on the Roadway Easement, and all revenues generated by the meters shall be retained by the City. 2.5 Towing Vehicles. The Owner shall not be allowed to tow or otherwise relocate vehicles located in the Roadway Easement; provided the Owner shall retain the right to tow vehicles located on private property in accordance with all applicable law, 3 T17fi119692~016 Current1t35D4~9v6 0?113J2009 72:33 PM 2.5 Obstruction. No ol,struatian of the free flow of pedestrian and vehicular traffic or use of the Roadway Easement for parking shall be permitted ar caused by the Owner. 2.7 Taxes. The Owner shall pay ar cause to be paid before delinquency a]I ad valorem real properly taxes, general and special assessments and other gavemmenta] charges assessed against the fee parcel, subject to the Roadway Easement and improvemen#s on the Roadway Easement and provide evidence of the same to the City. If those amounts are not timely paid by the Owner, the City may [lout shall not lie obligated to} pay all ar part of those amounts and the Owner shall immediately reimburse the City those amounts upon demand, together with interest at the rate of eighteen percent (1$.d%} pex annum an the amounts so paid by the City, from the date of advance until reimbursed. The City shall also have a lien against the fee simple interest subject to the Roadway Easement to secure repayment of taxes paid and the manner of filing a lien, its priority, and its enforcement shall be the same as set forth in Section 2.9 of this l~greement. This Roadway Easement shall be an ingresslegress easement within the meaning of Florida Statutes Chapter 197.572. 2.8 Intentionally omitted. 2.9 The City's Remedies Upon a Default. In the event the Owner causes damage or dcstxuction to the Raadvs~ay Easement or any improvements thereon (the "Owner Dan?a~e"}, or as a result of the negligence ar misuse of the retained servient estate rights of the Owner, then the Owner, at its sole cast and expense shall, as expeditiously as possible aver becoming aware of such damage, repair and restore Vacated 7~' Avenue andlor the damaged utilities installed by the City in the Utility Easement (defined below} to the condition the same were in immediately prior to such damage, except in the event such damage was caused by the City, its employees, agents, contractors, representatives or the Roadway Grantees, in which event the City shall be responsible far the casts of repair and restara#ian ^f the Roadway Easement and the improvements thereon if such damage shall create a dangerous condition, as determined by the City. Any restoration and repair work undertaken shall be performed in accordance with all applicable laws by licensed contractors and in a good, non-negligent, and workmanlike and lien- free manner or by City personnel, if performed by the City. Should the Owner fail to promptly restore the Roadway Easement or any improvements located thereon, as a result of any Owner Damage, and as a consequence; the City's easement rights created ley this Agreement became impaired or City is unable to utilize the Roadway Easement as intended by this Agreement, in addition to any remedy the City may have, City; after not less than thirty [3U} days prior written notice to the Owner to cure the default except no notice shall be required in the event of an emergency}, may, lout it is not obligated to, enter onto any portion of the Roadway Easement to perform all necessary construction, repair, maintenance, replacement and operating wank gird racy assess Owner far the reasonable cost of said work. Owner shall pay the cost of said work within thirty tad} days a#ler the City delivers to the Owner ("I'a eat Date"}: ~i} a written statement setting forth the anaaunt of the costs and expenses expended by the City; and (ii} book up information and detail evidence supporting such expenses, including without limitation paid invoices for all such work, if any. The Payment Date shall not connanence until such time as the City has delivered to the Owner all of the information set forth in items (i} and {ii} above. If the foregoing aanount is oat paid an ar before the Payment Date, then said amount shall bear interest 4 7T!&'19692-016 Ccrrent~13504359v6 U7113f2U~912:31 Pi~1 at simple interest rate of eighteen percent ~18.~°~0) per annum, from and after the Payment Date until paid and after the Payment Date the City shall have the right to retard a lien against the fee simple interest subject to the Roadway Easement. The lien shall be in a form substantially in the form of a Construction Lien prescribed under Florida Statutes Chapter 7I3 and shall attach to the to the fee simple interest subject to the Roadway Easement and shall be effective upon recording of a notice thereof in the Public Records of Palm Beach County, Florida. The lien rights granted herein will not affect the casements and other rights glrantcd herein to the City, and such rights shall continue in full fflrce and effect. Such lien nnay be foreclosed in the same manner as a mortgage and in accordance with law. Reimbursement of such work casts and interest shall also be the nhligatian of Owner at the time the costs are incurred, and may be collected by the L'ity accordingly in an action against the Owner. 2.1 D Bindini7 Effect. The Roadway Easement is an easement appurtenant to the City's public right-af--ways and shall run in faVOr of the City, and shall be binding upon the Owner and its successors and assigns of owner holding the servient estate. 2.i 1 Contractors. All work performed by the Owner in the Roadway Easement shall be performed only by properly licensed contractors and in compliance with all applicable laws, rules and wades. Each contractor performing work for the owner shall be reasonably insured, without cost to the City and the City will be indemnified and held harmless for any Claims (defined below} that may arise out of the performance of the work. The foregoing insurance coverage requirements are not intended to require insurance coverage against any defects in the work, except to the extent that such defective work causes bodily injury or personal property damage as a result of such defective work (but not including the repair or correction of any defective work}, FQr purposes of this Agreement, "Claim" shall rneal~ any abligatiaxi, liability, claim (including, but not limited to, any claim for damage to property ar injury to or death of any persons}, lien or encumbrance,1055, damage, post, ar expense. 2.12 `IVarranty. The Owner warrants that: (i} the Owner is seized of fee simple title to Vacated 7~' Avenue and has the right to convey tl~e Roadway Easement to the City, free and clear of all liens and encumbrances other than those acceptable to the City; and {ii} the City shall have quiet enjoyment of the Roadway Easement, and the Owner does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever, subject to any permitted exceptions permitted by the Ciiy. 2.13 Traffic Enforcement A1reement. The Owner agrees that the City shall have jurisdiction over the Roadway Easement to enforce all applicable traffic regulations and the Owner shall, simultancausly herewith, execute the Traffic Enforcement Agreement, the form ^f which is attached hereto as Exhibit "C". 3. t]tility Easement. 3.1 Grant of Easement. Subject to the terms of Section lQ, the owner, as grantor, hereby gents and conveys to the City, its successors and assigns, commencing upon the Effective Date anal continuing perpetually thereafter For the use and heneft of the City, a non- S 7TfG+19B9P-916 Currentl3a504359r6 fl?J131~OR912:31 PM exclusive easenent {the "Utility Easement"} under and below Vacated 7a' Avenue, far the purpose of installing, maintaining, repairing, replacing and restoring noxxnal municipal utilities such as pipes, cables, electrical wires, cable television wires, conduit, plumbing, andlar appurtenances relative tv such facilities in the manner and location which same exists as the of Effective Date {collectively, the "Utilities"}. The term Utilities as defined in this Agreement when referring to the City Utilities shall mean only City owned "lltilities" acid suGl~ teen shall not include nor grant any cascxncnt rights to or in favor of any privately owned utilities either direr#1y ^r indirectly through any municipal franchise agreements with the City {i.e. utilities owned by Florida Power & Light or cable television companies, etc.} ("Private Utilities"}. The right to grant any further easement rights in favor of Private [Jtilities is expressly reserved to the owner. 3.Z The Owner warrants that; (i} the Owner is seized of fee simple title to Vacated 7"` Avenue and has the right to convey the I]tility Easement to the City, free and clear of all liens and encumbrances, other than those acceptable to the City; and (ii} the City shall have quiet enjoyment of the Utility Easement, and Owner does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever, subject to any permitted exceptions permitted by the City. 4, Usc of Vacated 7'~ Avenue by Owner. The owner shall have the right, from time t4 time, to temporarily close portions of Vacated 7`~' Avenue to access and construct improvements in the Roadway Easement or the Utility Easement, and for other matters reasonably necessary to maintain, repair and replace the Roadway Easement, the Utility Easement, or any components of or improvements within the foregoing, the adjacent properties in the Owner's reasonable discretion (the "Roadway Closuc-e"}. L~ performing any Roadway Closure, the Dwner agrees ta: (i} use goad faith efforts to minimize the impact of such road closure on vehicular and pedestrian traffic, including, but not limited to, consideration as to the date and time of the Roadway Closure and to comply with the City's requirements for temporary road closures an City public right of ways. Notwithstanding anything to the contrary in the foregoing, in na event shall there be Roadway Closure for a period in excess of one hundred and twenty (1 Z4} days, in aggregate, during the term of this Agreement, S. Siva c_. The City, at its sole cost and expense, may install, maintain and operate signage on Vacated 7'~' Avenue, in such locations and in such capacities as the City may approve in the City's exercise of its governmental or quasi-governmental functions. d. Default and Remedies. 6.1 Default. The failure a£ the Owner or the City to observe or perform any of their respective obligations under this Agreement {the "Defaulting'} within thirty (3D} days after receipt of writ#en notice from the other party specifying the nature of the failure (the "Nan- Defaultin~ Party"}, shall constitute a default and breach of this Agreement; provided, however, if such failure is of a nature that it cannot reasonably be cured within such thirty (3~) day period, then the Defaulting Party shall not be in default so long as the Defaulting Party commences such cure promptly after receiving such written notice, and is diligently pursui~~g Such cure to TTlfil19692-U16 Currenfl]3504359v6 02113J20~912:31 PM completion. This Se~tian 6.1 is not applicable to any provision contained in Section 2,9 of this Agreement. 6.2 Remedies. The terms and provisions of this Agreement are enforceable with all remedies at law and in equity, including, but not limited ta, bringing an action for actual damages, an action for specific performance, an action far temparazy restrainizzg orders, preliminary ar permanent injunctions, dc-claratory judgments or other similar orders far relief; provided, however, that suspension ar termination of this Agreement an account of a breach shall oat be an available remedy ur>less otherwise provided far herein. The parties further agree that neither party shall have the right to recover any consequential, punitive, special, extraflrdinary or speculative damages as a result of the breach ^f this Agreement, except as specifically permitted i~z this Agreeznezzt. The parties to this Agreement hereby acknowledge and stipulate the inadequacy of legal remedies and the irreparable harm that would be caused by a material breach of any obligation under this Agreement by a party to this Agreement. This Agreement znay not be suspended or terminated except by an instrument in writing signed by the City and the owner and recorded in the real property records of Palm Seach County, Florida. 7. Notice. Any notice, demand or request which may be permitted, required or desired to be given in connection therewith shall be given in writing and directed to the City and the owner as follows: As to City: City of Delray Seach 1 d0 N.W. 1 S` Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: 1561} 278-4755 With a copy to: Z~~ N.W. iS` Avenue Delray Beach, Florida 33444 Attn: City Attorney Facsimile: (561) ~7$-4755 As to owner: Atlantic Center, Ltd. cla CDS International Holdings, loc. 3299 N.W. 2"~ Avenue Boca Raton, Florida 33431 Attn: President Facsimile: [561 } 278-6934 CDR Atlantic Plaza, Ltd. clo CDS International Holdings, Inc. 329 N.W. 2"~ Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (551} 278-693 7TTEJi9692-016 Currenlll35{1435Sr6 D2113@OD912:31 P~ Notices shall be deemed properly delivered and received when and if either (i} pexsonally delivered; or (ii} one (1} business day after deposits with United Parcel Service ar other overnight counier; or [iii} the same day when sent by confirmed facsimile before d:Qa p.m. (Eastern time}. 8. Gcncral Provisions. 8.1 Amendment. This Agreement may be amended or modified only by a written instrument signed by both parties or their respective successors and assigns, which instrument must be recorded in the Public Records of Palm Beach County, Florida, 8.2 Entire Agreement. This Agreement sets forth the entire agreement between the Owner and the City with respect to the easemen# granted in this Agreement. This Agreement supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parties. 8.3 Gaverrting Law, This Agreement will be interpreted and enforced in accordance with Florida law. 8.4 Successors and Assi s. The covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigns of the Owner and the Gity. 8.5 Authority to 1Execute,_Representations. The owner and the City each warrant and rcprescnt to the other that the individuals signing this Agreement an behalf of the Gwner and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto. $.6 Counterparts. This Agreement may be signed in two or more counterparts, each of which constitutes the Agreement of the parties and each ^f which shall be treated as an orignal. 8.7 Nan-Public. The Comer and the City specifically acknowledge and agree that this Agreement and the rights and obligations granted hereunder are not intended to be, and shall zzot Cotlstitute in any respect qr n3anrrer, a }public dedication of any right or interest of the Gwner in Vacated 7~' Avenue whAtsoever, but rather axe private rights for the sole use and benefit of the parties hereto, their respective successors and assigns. 8.8 Breach 5ha11 Nat Permit Termination. It is expressly agreed that no breach of this Agreement shall entitle either the Gwner or the City to terminate this Agreement, but such limitation shall oat affect in any manner any other rights or remedies which either the Gwner or the City may have hereunder >?y reason of any breach of this Agreement. $.9 Severability. If any term or provision of this Agreement or application thereof to any person or circumstance shall, to any extent, be found by a court of competent 8 7776!19692-01fi CurtenV13504359v6 Q?Ji3129D912:31 PM jurisdiction to be invalid ar unenforceable, the remainder of this Agreement, ^r the application of such term ar provision to persons ar circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted bylaw. 8.10 Non-Vi~aiver. N4 waiver af, or failure to assert, any claim, right, benefit or remedy of any party pursuant to this Agreement shall operate as a waiver of any other claim, right or benefit. The failure of any party at any time or rimes to require performance of any provision hereof shall in no manner affect such party's right at a later time to require such performance or to enforce the same fully. No waiver or modification of the terms hereof slrali be valid unless in writing and signed by the party to be charged, and then only to the extent therein set forth. 8.11 Hems. The headings of the articles ^f this Agreement are for guidance and convenience Qf reference only and shall not limit or otherwise affect any of the terms or provisions of this Agreement, 8.12 Covenant R n~with the Land. This Agreement and the easements granted herein, and all of the rights, duties and obligations of the parties with respect thereto, sliall be construed as covenaaits ruruiing with floe land, binding and inuring to the bcnett of the City ar the Owner, as the case maybe, their respective successors, assigns andlor grantees. 8.13 Force Majeure. If any party to this A~eement is delayed, hindered in, or prevented from the performance of any act required to be performed by that parry by reason of acts of God, strikes, lockouts, unavailability of materials, failure of power, prohibitive gavemrnental laws or regulations not imposed by the City, riots, insurrections, the act or failure to act ^f any other party to this Agreement, adverse weather conditions preventing the performance of work as certified to by an architect, war, act of terrorism, or other reason beyond that party's reasonable control and far which, in each of the aforesaid circumstances, the party is diligently and in good faith and with reasonable dispatch seeking to abate and remove the circumstances causing the delay ^r hindrance or prevenlinn from performance of the oat required tv be performed by that party, then the time for performance of the act shall be extended for a period equivalent to the period of the delay. Lack of adequate funds ar financial inability to perform ar financial ar economic losses or hardship resulting from performance shall not be deemed to be a cause beyond the reasonable control of such party. $.14 3oinder by Mortgagees. By its joinder in this Agreement, all mortgages holding a lien against the Roadway Easement, if any, have consented and do hereby consent to this Agreement, and the liens and security interests held by such lienholdcrs arc hcrcb}~ made subject and subordinate to the terms of this Agreement without the necessity of the execution of any other document. Any future deeds of trust or xnartgages shall automatically, without fire necessity of any additional instrument, be subject and subordinate to the terE-ns and conditions of this Agreement and shall be bound by the terms of this Agreement. Any party foreclosing any such deed of trust or mortgage, or acquiring title by deed in lieu of foreclosure or trustees sale shall acquire title subject to all the terms and provisions of this Agreement. 9 777611969-016 CurrenU1354a359vb 0?J13f200912:31 PM 8.15 Ri t to P1edg_e, The Owner shall have the right to mortgage, pledge or collaterally assign its interest in this Agreement and to assign or pledge the same as security far any debt and alI rights acquired by such secured party under any such security_ Fram and after the date any deed of trust beneficiary, mortgagee ar secured party comes into possession of the Owner's rights under this Agreement, such deed of trust beneficiary, mortgagee ar secured party shall possess all rights of the Owner under this Agreement and all obligations of the Owner shall thcrcaflar be the obligation of such decd of trust beneficiary, mortgagee or secured party. Tn no event shall such transfer of possession cause a release, satisfaction, or waiver of any obligation of Owner which occurs prior to the date of such transfer, including without limitation, City's right under this Agreement to record and foreclose a lien. 8.16 Na Merger. It is expressly understood and agreed that the parfies da nc~t intend that there be, and there shall in na event be, a merger of the dominant and servient tenements in Vacated 7='' Avenue by virtue of the present or future ownership of any portion of said tenements being vested in the same persan(s} or entity, but instead intend that the easement servitudes shall not be extinguished thereby and that said dominant and servient tenements be kept separate. 8.17 Joint Preparation. The preparation of this Agreement has been a joint effort of the City and. the owner and the resulting docuzncnt shall not, solely as a matter ^f judicial construction, be construed mare severely against one party than the other. $.1$ Attorney's Fees. In oonnectian with any litigation ^r dispute arising out of this Agreement, each party shall bear its own attorneys' fees and casts. 8.19 Further Assurances. The parties agree to execute all future instruments and take all fixrther action that may be reasonably required by any party to fully effectuate the tez-rns and provisions of this Agreement and the transactions contemplated herein. 8.24 Vez~ue. Aa~y dispute relating to this Agreement shall only be filed in a court of competent jurisdiction in Palm Beach County, Florida, and each of the parties to this Agreement submits itself to the jurisdiction of such court. 8.21 Hazardous Substances. Neither the Owner nor the City shall cause or permit at any time during the terms of this Agreement, any hazardous substances to be disposed of or otherwise released an, to or under the Roadway Easement. Neither the owner nor the City slYall engage in operations over, upon or under the Roadway Easement that involve the generation, rnan-xfacturc, refining, transportation, treatment, handling or disposal of "Hazardous Substances" or "hazardous wastes" as such terms are defined under any environmental laws. The Dwner acknowledges however, that the Roadway Easement will be utilized for parking and driving vehicles which may leak ail, gasoline, or other fluids onto the ground, and the City shall not be responsible far remflval of such waste or have any liability for it under this Agreement. 8.22 Intentionally Omitted. 14 7776Ii9692-~16 Cu7enV135U4359v6 OP1i3J20d912:37 PM 8.23 l~ia Third Party Beneficiaries. Na private parties other than the City shall have the right to bring a cause of action against the Owner under this Agreement. 9. Governmental Functions: Notwithstanding anything to the contrary contained in this Agreement: a. Even though the City has certain contractual obligations under this Agreement such obligations shall not xelieve any person subject to this Agreement from coznply~ing with all applicable governmental regulations, rules, laws, and ordinances; b. Tp tl~.e extent approval ar permission must be obtained fi-orrt floe City, such 0.ppraval or permission shall 1}e ganted Qr denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested rights; c. The City has not waived its sovereign immunity and the tort limits of liability set fozth in Fla. Stat. 748.28 which are currently $ I Ot],a6D per person and $2iSD,ODt} per occurrence are applicable; and d. Any action by City shall be without prejudice to, and shall not constitute a limit on, impairment or waiver of, or otherwise affect City's right to exercise its discretion in connection with its governmental or quasi-governmental functions. lt]. Termination. 1 D.1 This Agreement shall terminate at such time as the engineer from the City {the "City Engineer"} records in the Public Records of 1'alrn Beach Gounty, Florida the Certificate of Substantial Completion {the "Certificate of Substantal__Completon"} in the form attached hereto as Exhibit "17". 1 t7.2 lntentionally Qmitted. 1 t7.3 Upon recordation of the Certificate ^f Substantial Completion, this Agreement shall be terminated of retard and shall be of no further farce and effect and all rights, obligations and easements granted hereunder shall be of no further force and effect. if the Owner requests, the City shall execute any further documents evidencing the termination of this Agreement to be recorded in the Public Records of Palm Beach County, Florida. Notwithstanding anything to the contrary contained in this Section, the termination of this Agreement shall not constitute the release ar satisfaction of any claim that arose prior to termination, and such clairra shall survive termination of this Agreement. IO.~ The City and the Owner shall record a certificate in the Public Records of Palm Beach County, Florida, at such time as the termination rights pursuant to Sections IO.I above is terminated and thereafter, this Agreement shall be of no further force and effect. I1 n~~nsss~-ass c~~ut3saa35~,s 02f1312009i2:3i PM [EXECCTTIQN PAGES TQ FQLLQW] 12 7T161i9692.4i8 CurrenV135fl4369v8 Q?113Y~Oa9 i2:3i P!~ N WITNESS WHEREOF, the parties to this l~greement se# their hands and seals the day and year first above written. ATTEST: CITY CF DELRAY gEACI~, rL4RIDA I3y: City Glerk Approved as to Foz m: By: City Attorney STATE CF C4[]I~1TY DF EY=____ Name: Its: The foregoing instrument was acknowledged before zne this day of , 2449, by ,the of the CITY DF DELIZAY BEACH, FLORIDA. HelShe is personally known tv me yr has produced (type of identif cation} as identification. Signature of Person Taking Acknowledgment 771fiJ19692-016 Curren}P13504359v6 ~PJ13J200912:31 P~ WITNESSES: Print blame: OWNER CDR ATLANTiC PLAZA, LTD., a Florida limited partnership Sy: Delray Historic, Inc., a Florida corporation, its gcncral partner Print Narr]e: STATE 4F CDi31VTY C3F 13y: Print Name: Its: The feregoing instrt~rrtent was acknowledged l3efv~~e me this day of , 2QQ~, by ,the of Delray Historic, Inc., a Florida corporation, thc gcncral partner of CDR ATLANTIC PL1~A, LTD., a Florida limited partnership. HelShe is personally known to me ar has produced {type of identification} as identification. Signature of Person Taking Acknowledgment TT7~v't9fi9~-0]fi CurrEnl~'135Q4359v6 U21]3d2Q[19 ]2:3] PAS d WNER ATLANTYC CENTER, LTII., a Florida limited partnership Prizrt Na.ine; Print Name: By: Atlantic Center, Inc., a Florida corpoxation, its general partner By, Print Naane: Its: STATE OF CQUNTY OF The foregoing instrument was o~clcnowledged before me this day of , 2QQ_, by ,the of Atlantic Center, Inc., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership. He15he is personally known to me or has produced {type of identifications as identification. Signature of Person Taking Acknowledgment 7776J79692.03$ Cu7anU1350A359v5 D7J1312IX19 72:37 PM Exhibit "A" Leal Description of vacated 7th Avenue 7776119692.916 CimenUi'.~04359v6 62113~'20d9 x.3:22 Phil Sf~CETCH OF DESCRIPTION Exr~~IT 'A„ sr~Er ~ DF ~ N.E: 1ST STREET ~ a ~ `~ N.89°58'47"E. ~O Q~~ nraR~-r unrF~ ~ I L-voR~H Lrr~ ELQCI~ 116 1 PB. SG, PAGE X29 fl F- J ~~ 00 ~m ~~ o~ m soUTK urrE ~.aCx 115 ~~ ~a~ ~ W a e W ~~~ o ~~° ~ ~ ~~~ ~ ~,~, ~~ z ~ ~~ ~~ ~ ~ C} Q ~~ ~~ z °'' ~ m ~g ~~ z ~ s w. cow '.~5 S0, PAGE 1~9 NflRT7-I RIGN7- ~OF WAY LNI~ FasT a r~ArvT~c ~a vENUE IJOTES• rrns Is n~T .~ sr~vEr - CENTERLII+~ T!-~ ND,RTN Ll1~ OF ELDCfC 116 Is A5S{11~D TO 8E,4R N.$9°58'47' P.B. =PLAT BdQk DESCRIPTrDN.• A11 FNAT PDRTIQN ~ 77-~ 4D FAT ROAD RIGHT" DF WAY FDR N.E. 7TH AVEM~ 9OL~A.7ID AS FOLLOW. DN T!•~' IV4RTN 6Y PAUL D. ElYGLE THE EASTFRL }~ EXTENSION DF 7'1-x' NORTN UI~ OF 6LOCK SURVEYOR & MAPPER x`570$ 116, TOWN OF LINTQN (NOW DELRAY &EACH), AGCOR2~NG TD T7-IE PLAT 77-~REOF A5 RECQRDLD IN PLAT B~fC 1, PAGE 3, PUBLfC f?EGY]r?DS DF PRLM EEAG71 CaCAVT"Y, FLORIDA AND ON DR TE• JULY 9, 2aD8 T7-lE SO~J77-18Y ThE EASTERLY E~'TElV~'ON OF TI-~' SO[ITH LINE OBRIEN, SUlTER & D'BRIEN, !NC OF 5A1D BLOCfC 115. cERri~rcArE of AurHv~i~ATroN ~6`L8353 SURYEYQR AND MAPPED IN RESP~+rSfBLE CFlARGE• P,4U[. D. ENGtE 955 N W. ~7TN AVENUE, SUITE XT QELRAY SEACN FLQRlDA 33445 QRC~i4 N4. D4-764 PARCEL 8 ABANDOM4ENT (567} 276-4501 {5G1j 732-3279 Ex~iibit "B" Leal Description of lZelocated 7th Avenue 7776J19fi92-016 CurcenVi35U4359vfi 4?J'13r20491~:31 PM s~r~rc~ aF flFSaRiPriaN EXhO'Bi'T 'A" SNEET T OF 2 J N.E TST STREET U _ _ _ ~ a ~ NQRTH LINE ~ P.8 5D, PAGE 1~9 ~ NCR7H LINE 22118' sss°5s'rs"w eLOC~c rrs . ~ ~ NE CCf2NER sry ~ ~ P.l4 5D, PAGE ]29 4 ~ PQINT~ ~ Q ~~ ~~ ~D di Q ~~ ~~ ~~ ~~ o ~ ~ ~ i ~ ATLANTIC PLAZA W ~- ~ ~PLA T BaalC 5q `'" ~ ~~ PACE 7~9~ Q~~ ~0 0 ~ ~ S~ E ti F~ ~' }~ ~~~ ~ ~ ` ARC = r3a 89' J ., CA. ~ 3fi 3325 O p RADIUS = 245.00' C.B. = S 18°T6'43"W. rvoorF.~ ~~RC = 1a~~8' Tres Is Nor A suRVEr C.A = 35°3325' lVQRTH RIGHT RADI[IS =165.09' ~ ~ CE7J7ERlJ11E C.F = 5 TS°r6'43`wV. OF' WAY LINE Th6E ~~ LII~ ~- 50UTH LINE g 50UTN UNE PLAT BLCCI~ f16 !5 A~SCIMm 9LOCK Ir6 ~ ~ eQOfC 50, PAGE r2s T4 FEAR N89°58'47' ~ ~ ~ N0R7N RIGNr P.b~ =PLAT B~I~ OF WA Y LIFE a 5 W. CQRI~R o paTE.- JkN. 23, Zoos P.B 5^, PAGE r29 Mi ' EAST A TLANTIC _ ~ o'ERIEN, SUlTER & Ora,grFnr, rNG _ cERrrFic~arF a~ .aurNa~rza r-orv 8.~5~' 6 E ' ~~~ QR AND MRPP~R 1N RE5P 51 L SURYE} CHRf2GF• PAU1. d. EIVGf.E 955 N.W. 17TH AVENUE, 5L11TE k1 DELRAY BEACFI FLaRIDA 33445 ORDER IVo. 04-164 7TN AVENUE RE-ALIGNMENT f561} 2~s-a~50i {5sr) 732-3.279 8' ~; sKFTa~ a~ flESC~~P ~rorv EXI~791T 'A" s!-~Er ~ aF ~ QESCRIPTJON FOR N.E. 7TH AVER RE--ALIGIvPv~NT.- A 40 FOQT EASEMENT BEING A PORTION OF A rLANT1C PLAZ,4, AGC4RDING TD Thy PLAT ThEREOF AS RECCRDEII 1N PLAT BDD1C 50, PAGE T2~, PUBLIC RECORDS GF PALM BEAG7a CO[NTY, FLQRIDA AND THAT P0R77n1V OF Th&~ 44 FQQ7' ROAD R1GHT OF WAY FOR N.E 7TH AI/El~'JE LYING WEST OF AND Ap,IACEA'T TO SAID ATLANTIC PLAZA AS SFIDWIV O1V THE PLAT DF THE Td WN DF LINTOIY (N4W DELRA Y BEACH} AGGORDNVG Tp THE PL.4 T T~IEREOF' A5 RECORDED 1N PLAT B041C ]PAGE 3, P[JBL1C EGQRDS OF PALM BEACH COUNTY, FLOR1pA, BEING ~4 FAT WEST OF Alm ADJACENT T{7 T!-E' FOLLOWHVG L7ESCR~9ED L111~: COMMENCING AT 77-~ NQRTNEAST GOh'NER OF SAIp PLAT OF ATLANTIC PLAZA; TI~NCE 589°58'x5"W., ALGNG THE NORTH L1NE OF 5A1D PLA T OF ATLANTIC PLAZA, A 415I'AIVCE OF 221.18 FEET TQ THE POINT OF 8EG1116~VIVG` ~~ 50°QO'OQ'E A DISTANCE OF 359.41 FEET TO A Pa'NT OF CC~'lIA TC~94E CONCAVE TO THE N4f~THYYEST HA VING A CENTRAL ANGLE aF 36°33'25" AND A RAD1U5 aF 2O5.OQ FEET; TJ•~NCE SOUTNWESIFftLY ALONG THE ARG G~" SAID O'C.dR1/E, A D15rANCF OF 130.80 FEET TQ A PQ1NT OF REVERSE CL~VA 72J12E CONCAVE T4 THE SDUT~AST HAVING A G'ENTRAL ANGLE OF 3sS°3325" AND A RADIUS OF 165.D0 FEET THENCE SOUTNWESTERL Y, ALONG TJ-~ ARG D~ SAID GL04VE, A p157~ANCE pF 1(75.28 FEET; THENCE SD°OQ'0O'E, A DISTANCE GF 25,OO FEET' TO A PD1NT QN THE SOUTH LI1UE OF SA1O ATLANTIC PLAZA AND A P01NT DN THE NORTH LINE OF EAST ATLAN77C AVENUL• A5 NDW LA1D OIJT AND IN USE A1Vfl THE TFJ2M4NfJ5 PDlNT DF SA1D EASEMENT: THE SIDE LINES aF SRID EASEMENT' TG BE E~7 E1-~Et1 OR SHORTEIIED 7'G MEET A 7• ALL ANGLE Pa1NT5 AIdD TO TERM7IVA TEAT T!-E NORTH AND SOUTH LINES OF 5A1D PLA T OF A TLANTIG PLAZA AND 77-~ WESTERLY PROJECTION OF T7-E 50UTN LINE G~ SAIU PLAT QF ATLANTIC PLAZA PAUL D. ENGLE SURVEYOR & MAPPER ~`57D8 QA TE• JAN. 23, ~a~9 ORDER NO. O4-1v4 7TH AVE RE-AIJGI~LIENT Exhibit;~C" Traf~]c Enforcement Agreement TI7EJ]9692-978 Currenll135U4339vb O~Ji31200912:31 PM TRAFFIC ENF~RCEiVIENT AGREEMENT [Vacated 7`h Avenue} WHEREAS, the CITY DF DELRAY BEACII; FLORIDA, {hereinaf$er xeferxed to as "CITY") through its Police Department, wishes to make its Community Policing efforts in Atlantic Plaza, as effective as possible; and WHEREAS, ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership [hereinafter referred to as "Owner"} is desirous of the enforcement of state and municipal traffic laws on its property; and WHEREAS, both the CITY and the Owner feel that such enforcement will make the Community Policing effort a more positive inlTuenoe on the wmmunity; and WHEREAS, F.S. 316.005(2},{l}},[1} allows for such enforcement on private roads pursuant to a written agreement approved 17y the City Gammission which provides far reiml7ursement far actual Costs of traffic control and enforcement liability insurance and indemnification and other terms as are mutually agreeable by the parties. Naw, therefore, for the mutual consideration, covenants; and matters set forth herein, as of the date set forth below, the parties hereto do hereby agree as follows: 1. The CITY does hereby agree to enforce all state and municipal traffic laws on Vaca#ed 7th Avenue, which is described on Exhibi# "1" attached hereto. a week. 2. The enforcement of tho traffic laws by the C1TY will occur 2~4 hours a day, 7 days 3. The Ownex shall hereby pay to the CTFY ~ 1.00 per month to cover the actual cos#s of the traffic central and enforcement incurred by the CITY. 4. The speed limit shall be that set by Florida Statute 316,183[x} and 316.189(1 } of 34 mph. 5. Signs posting the speed limit must comply with the Manual of Uniform Traffic Control Devices used by the United States Department of Transportation ("Manual"}and F.S. 31b.189[3}. 6. Step signs must conform to the 1~Ianual and specifications of the United States Department of Transporta#ion as stated in Florida Statute 316A06[2}[b}[3}. 7. The Owner shall defend, indemnify and hold harmless the CITY, its agents, officers, affic,-ials and ernplvyees from any and all claims, suits, causes of actions yr any claims whatsoever made arising from any and all acts by owner of traffic control and txaff c 842?J#9692-01& Currentl73571711~ ~~t3J200963:72PM 1 enforcement that occur on Vacated 7'h Avenue following the date of this Agreement. Nothing herein shall be deemed a waiver of the privileges and imrnuruties granted t4 the CITY under F.S. 7fi8.28. This indemnification shall survive the cancellation of this Agreerent. 8. Tlie Owner shall prpvide liability inserrance to cover the indemnification in the amount of ~ 1,~DO,QQa.OQ and name the CITY as an additional insured. 9. This Agreement shall take effect upon execution and approval by the Delray Beach City Commission and the execution of the Owner and shall continue in full farce and effect for as long as the certain Vaulted 7'" Avenue Easement between City and Gwner, which is recorded in the Public Records ofPalm Beach County, Florida, is in effect. l Q. The t]wner by signing below, affirms that it has read and understand this Agreement and that it has been given the opportunity to have its attorney afits choice review this Agreement, [SIGNATURE PAGES FALLOW] 842?J39692.01fi Current1i357i71 iti2 02113120fl9 D3:12 PM This Agreement is made and entered into an this day of , 209, ATTEST: CITY OF DELRAY BEACH, FLORIDA City Clerk Sy: Rita Ellis, Mayar Approved as to farm and Legal sufficiency: Catherine M. iCa~ol, Assn. Ci#y Attorney 8422119fi9Q-d#G CurrenU1357171 #v2 ~1'~2R~9 63:12 Ph+1 []WNER ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner By: Print blame: Its; 8422J49fi92.018 CarrenV13571711 rrP X11 X2009 03;12 PM OWNER CI)R ATLANTIC PLAZA, LTD., a Florida limited partnership By: Delray Historic, Inc., a Florida corporation, its general partner By: Print Name: Its: 6422119fi9P•016 CurrenV13571711v2 Q?J13lE04903:12 PM EXHIBIT ~{ 1" Vacated 7'~' Avenue 8+k27J19692-a1fi ~urrenG'33571711v2 0~11312~0993:f2PM SfCFTCH DF DESCRIPTIDIV E~1-~'B1T A" SHEET 1 OF 1 tU ~. 1ST S~~T J - t.] ~ Q O ¢~ nD' NDTES~ IV~4TH LGVE NO1?TH LINE T1-H5 15 NDT A SGP2YEY BL 4CK J16 P.Q 5Q, PAGE 129 O `~1 ~ -- CENTERLINE THE IVa4TH LINE QF 8LOC1C 116 ~ ~' 7 ~ 15 ASSUMED TO BEAR N.89°5$'47'' J ~ W~~ ~ ~ ~ P.8 = PLAT BGDEC ~~ M~7, ~ ~~~ ~~,~~~ ~~ 0 0 ~ 4 z~~ o ~ ~~ ~ ~ D [p ° it ~ ° to ~ ~ ~ d ~~ Z ~ ~~ ~~ °~ ~ ~ SCUTN LINE S W. CORNER SOCK 1 ~ P.B. 5G, PAGE 129 f NORTH Rrc~lr QF WAY LIIIL~ r~s~aroo ~ ~ ~ ~,asr ,a T~anlric .a v~vt~ ~scRrPr%v ALL THAT PC]RTICN OF THE 4Q FQOT RQA[J RIGHT QF WA Y FQR NE. 7TH AVENUE BOUM]EO AS FQLL4WS.• ON Tl-~ NORTH BY PAUL !7. EIYGLE THE EASTERL Y E.~TENSION CF' T1-,E NORTH [.INE QF BLOCFC SCIRVEYQR & MAPPER ~57G8 11fi TOWN QF" LINTQIV ~NQW DELRA Y BEACH), ACCQRDING TO THE PLAT THEREOF A5 REC014DED !N PLAT 6CJO+C 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COGWTY, FLORIDA AIvD CIV DATE• JULY $ 2CQ8 THE 50L1TH 8Y Try EASTL~RL. Y FXTFN570N QF• T~ 50UTH LII~' 0 6RlEN, SUITER & O'BRfEN, INc QF SA1f3 8LOC1f 116. GER~IFICATE OF AU~HCRf~ATIDlY LB353 SURVEYOR ANp 14fAPPER IN RFSP~N5IBLE CHARGE.• PA[1L D. FNGLE 955 N, W. 1?'TN .4 VL'NU~; SUf TE K1 dELRAY BEACh' FLORIDA 33445 QRDER NO. 04-96'4 PARCEL $ ABAl~C1MLfENT {561) 276-45Q1 {561) T32-3279 I i i FYr„~~t «ns~ Certificate af' Substantial Carnnletian Prepared by and upon Retarding Return to: Stuart T. Kapp, lasq. Proskauer Rose LLP 2255 Glades Aoad Suite 3~0 West Eoca Ratan, Florida 33431 CERTIFICATE QF SUBSTANTIAL COMPLETIDN nF CQNSTRUCTIt71~~ QF RELOCATED 7TH AVENUE `THIS C;ER'I'1FICATE C]F 51]BSTANTIAL COMPLETION OF CONSTRUCTION (this "Certificate") is issued as of the day of 20~, by , Cify Engineer fcr the Cify of Delray Beach, whose address is {the "City Englneer"}. WITI~ESSETH: V4'HEREAS, this Certil•"xcate is issued pursuant to Section 10.1 of that certain Easement Agreement, dated as of 24D9, between the City of Delray Beach, Florida {the "C~t "}, CDR Atlantic Plaaa, Ltd., a Florida limited partnership and Atlantic Center, Ltd_, a Florida limited partnership (collectively, the "Cwner"), retarded in Official Records Book , Page , of the Public Records of Palm Beach County, Florida (the "Easement, A~eement"}; WAEREAS, the Easement Agreement provides that the City Engineer shall record this Certificate upon substantial completion of construction of a relocated 7th Avenue ("Relocated 7th Avenue"). Relocated 7`~` Avenue is legally described as follows: See Exhibit "~1" attached hereto and made a part hereof; and V4~HEREAS, the City Engineer hereby issues this Certificate pursuant to Section 10.1 of the Agree~nezrt. NOW, THEREFORE, in accordance with the Agreement and in ransideration of the Burn of Ten Dollars ($1 O.OD}, and other good and valuable consideration the receipt whereof is hereby acknowledged, the City Engineer hereby states the following: Tf76I19fi92.01$ Cursend13504359vfi a2113r2oa91P:3] PM 1. The forcgoir-g Rcoitals arc true and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. The undersigned is an engineer for the City of Delray Seaeh and has reviewed and inspected the construction of Relocated 7~h Avenue. 3. I'he City Engineer certifies and confirms that the construction of Relocated 7~' Avenue has been substantially completed. 4. All terms not defined herein shall have the meanings set forth in the Easement Agreement. [SSGNATURE PAGE FGLL4WS.] Tf76l1969~-Di6 Gu~eny]354~35ga6 4~J~3I200912:3t PM 3 IN Vi~ITNESS WHEItEGF, the City Engineer hereby executes and delivers this Certificate as of the day and year first above written. WITNESSES: [Print Name) (Print Name} STATE aT CGi]I~1TY GF CITY ENGINEER: City Engineer, City of Delray Beach The faregaing instrument was acknowledged before me this day of 20 , by _ - -, the City Engineer for the City of Delray Beach. He1She is personally known to me or has produced (type of identification} as idcntificatian. Signature of Person Taking Aclcnawledgment 77~6l19692~16 CumenV13504359v6 Q2113~'200912:31 PM E~HII3IT "A" to the Certificate of Substantia3 Completion of Construction af,Relocated 7~' Avenue Relocated 7;~' Avenue 7776I1969Q~U16 Currentl13504359v6 OPJS312W912:31 PM W J ~~.] V7 IILE_. SST ST-_~i'EET _ MJRTN LINE 'B SQ PAGE 129 ~~ s IVDR7H LNVE BLOCK 916 O ~~ J O `z ~~ D~ ~- m ~~ ~~ o~ ND~4TH RIGHT OF WA Y LINE 50JrN L1NE- BLOCFC r16 22t 18' 589°5B'15"W. NE C014NERJ ~ ~ PB~ 5D, PAGE 129 ~r POlM" DF ~ ca~r~+ENCE~Nr w ~ ~w a°~ ~ ~~ ~ ~ ~ D ~ ~ A TLaNTIC PLAZA w ~- ~ a ~PLA T eoox 50, PAGE 1~9~ ~~~ ~~o ~ z~ ~~ ° ~ ~ r / RRC = 13~ 80' f C.A. = 36°33'25„ RADIUS = 2DS.OO' CB. = S l8°16'¢3"W. 7 Yf.! T~~~ ARC = 9U528' TF~S 15 NDT A SURREY C.A. = 36°3325„ RADHJS = 165.D0' ~' =CENTERLINE C.B. -- S 18°16'43' YY. o. ' ~+ S. w. eDI~ a oA r~:~ ~An! a3 2ovs P,B 5G, PRGE 129 ~ a'BRIEN, S~ITER Ba d EAST ATLANTIC _ _ c~~rlF~ca re of- Aurti A VENUE SuRVE'Y017 AIYD MAPPE ki TI-,L~ IVQRTH LII~ DF S SDUTN U1+~ PLAT eLOCIr 116 15 AS5L1,1~~ BDO1C 50, PAGE 129 TO BEAR N.89'°58'4~'E ~ IvORTN ~IGHr DF WAY LINE P.B. =PLAT' B00jC ~' ~: ~~ ~'; ~; ~; ~, - ~' 6 c~ a 4 J. i ~~ i ,~ ~~ v~ i i i i i SKETCH C]F DESCF~IPTION FxHrsJr 'A" SI-~ET ~ of 2 ASCRIPTION FQR N.F 7TH AVEM.~ RE AL.JGNMrE'NT• A ~0 FOOT EASE+4~'"]'VT BEING A PD~4TTON OF ATLANTIC PLAZA, ACCORDING TD TJ-~" PLAT THEREOF A5 RECORDED JN PLA T EOOIC 5Q PAGE 129, PG~LIC RECORDS OF PALM 6EACH Cf1(~ITY, FLORIDA AID TNA r PDR77ON OF Thy' 40 FOOT ROAD RIGHT 01=' WAY FOr? IuE 7TH A I~EN[!E L r1NG WEST DF AND ADJACENT TO SAIO A TLANTlC PLAZA A5 51-1pWN C~'V Thy' PLAT OF THE TOWN OF LINTQIV {NOi~1 DELRAY BEACH} ACCORDING Tp 77-x' f~.A7 ThERE4F A5 RECORDED 1N PLAT BOOK 1 PAGF 3, PUBLIC RECORDS QF PAL1Lf BEACH CDLHVTY, FL~?IDA, BEING 40 FFFT WEST OF AIID AOJACFM TO 77-~ FdLLOW1NG DESCRIBED LII+,E COMMENGYNG AT THE NORTJ-,EAST COR11~R OF SAI1] PLAT DF ATLANTIC PLAZA; THENCE 589°58'15"W., ALONG 77-JE' NORTH LIRE' OF" SAID PLAT OF ATLANTIC PLAZA, A DISTANCE 4F' 221 T8 FEET TO T1~' POINT DF BEGI'~I1JVG; THENCE S.0°00'00'E, A D15TANCE DF 359.41 FEET TQ A PO1NT OF CL44VAT1~RE CONCAVE T4 77-1F NORTHWEST HAVING A CENTRAL ANGLE G4c 3fi°3325" AND A RADIUS OF Z05.O0 FEFT,• TI-~1VCE SOUTHWESTERLY ALONG 7'7~ ARC OF' SAID GL~?VE, A DISTANCE OF 130.80 FEET T'{7 A POINT OF RE1rER5E CL~4VA TURF CONCAVE T4 ThL' SOUTHEAST HAVING A CENTRAL ANGLE OF 36°3325" AND A RADIUS OF 1650a FEET, THENCE SOUTHWESTERLY, ALONG TT-~' ARG OF SAID CG64VE, A D15TANCE OF T05.2B FEET TF~"NCE S o°00'00'x, A D15TANCE OF 25.00 FEET TD A PAINT ON 77 ~ 5O[!TN LINE OF 5A1D ATLANTIC PLAZA AID A POINT ON THE NORTH LINE OF FAST ATLANTIC AVE1V~ AS NOW LAID OUT AND 1N USE AIJD 771E TERM7MJS PD,+IVr OF SAID EASE7rIENT. THE .S1DF L1NE'S OF SAID EASEMENT TO F3E EXTEI~ED Gb4 SHOR7EAIED TO MEET AT ALL ANGLE POHVTS AND TO TER~LA'NA TE A T THE IVURTH AND SOUTH LINES OF SAID PLAT DF ATLAII'T1C PLAZA AND THE WESTERLY PROJECTIUIV OF ?-HE SOUTH LINE OF 5A1D PLAT OF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER ~`57Q8 DATE.• J.4N. 23. 2003 ORDER ND. 0~-16~ 7TH A1fE RE Aucnr~Nr Exhibit "D" Ta Agreement for the Abandonment and Re~.ocation of N.E. 7"' Avenue Lc al Descri Lion of Relocated 7`~ Avenue a4fl8119692-Q#fi Curren11i3490°34v1# a2113+2t]Q310;56 AM w z NORTFI LII~' BLOCx r1s 0 ~~ ~~ o~ ~~ oa '' o ~~ J Q~ N.E. SST STREET _ NORTH LINE '.6 5a, PAGE 129 22x.18' S89°.58'15"W. ~ ~ NF. ~'C~4I4~'R J vti ~ ~ P.B 5D, PAGE 129 POINT OF co~un~rucEn~-NT w w~ ~~ og ~~ ~° "~~ ~ o `" z ~ ~ TLANTIC PLAZA ~- ~ (PEA r eoo~ 50, ~ ~ ~ PAGE 7~9~ ~~ o m a ~~ ~°~ ARC = r~a.sn' I C.A. = 36°3325" RADIUS = .2n5.C)D' C.E. = 5 TS°r6 43"W. NQTES• ~~~' -_ 1D.528' T7-A'.S f5 NOT A 5(J4YEY C.A. = 36°33'25" i?ADJ[!5 ~ 165n0' ~' .~ CEN7FRU1~ C.B = 5 T8°16'43"H! nroRTH R1cHT OF fNAY LINE SOUTH LIIUE- ELOG'f[ 115 ki Tl~ NDRTF-1 UI~ Q1~ SOLITN LINE PLAT BLOeCIC 116 15 ASSU1fnED ' ' " ° g o BnDK 54 PAGE Z29 ~RT R C~ T 7 O BEAR N.89 ~FT ~ 58 +~i o N N I I Cam' WAY LINE PB. -~ PLAT 80O1f ' N Ui a S vY. CoRn~ o flea rE• ~~nr. z3, zoos P.B. 5D PAGE 129 EAST .4 T L.ANTIC _ _ ~ C RRTIF~C~ E ~ ~a °H v~ SURVEYnR AIYD MAPPE r.~aRr.~• pa-~i n Fnx:~ 8~ s ~! ~; ~; SF~ETCH 0~ D~SCRlP T!C]!V Fx>~arT ';a" sr~T a of 2 DESCRIPTION FOR NE. TTH AYE1'YI~" RE ALIGN~IVT: A 4O FOOT EASEMEM' BEING A PD14TlDN OF ATLANl7C PLAZA, ACGC~4DING TD THE PLAT TF~7?EOF AS RECORDED IN PLAT 9QDff 50, PAGE 129, PL@L1C RECDi4D5 DF PALM BEACH CQI.4VTY, FLORIDA AI+,~ THAT PDRTJON OF ThE' 4D FOOT ROAD RIGHT OF WAY FOR N.E. TTN AVEM~ LYING WEST DF AND ADJACENT" TO SAID ATLAN77G PLAZA AS SHOWN OIV THE PLAT DF THE TQV~'N aF LINTON (NOW DELRAY @EACH ACCORDING TD THE PLAT 7!-~REOF AS RECORDED !N PLAT BDDK f PAGE .~ PUELIC EGORDS DF PALM BEACH COL~YTY, FLORIDA, BEING 40 FEET WE5T DF AID ADJACENT TO 77$ FOLLOWING DE5CR19m LII~ CpMMENCING AT ThE NDi~T!-IE'AST CORNER OF SAID PLA T OF ATLANTIC PLAZA; THENCE S S9°58'f5"W., ALONG 7F~ NORTH UI4E OF 5A1D PLAT DF A RANTfC PLAZA, A D15TANCE OF' 221.18 FEET TC THE POINT DF BEGd~19'NG; Th~NCE 5D°ODbp'E, A D15TAIVGE DF 359.af FFFT TD A POINT OF C[~4VA TCA4E CpNCA VE TO ThE' NORTHWEST HA VIIVG A CENTRAL ANGLE OF 36°3325" Af4~ A RAI]IUS OF 2O5.DD FEET TJ~TNCE SOUTNWESTFI`~L Y ALONG -7-,E ARC 4F SAID CURVE, A DISTANCE Dry f30.8D FEET TD r4 POINT OF REVERSE CClRVA TUBE CDNCA l/E TD THE SOUTJ-BAST HAYrNG A CENTRAZ ANGLE DF 36°3325" AhD A RAD![IS QF 16S.OD FEFT, THENCE SDUTHWESTEf2L Y, ALONG TIC ARC OF SAID C[~VE, A DISTANCE QF- 105.28 FEET,' Ti-,ENCE S.D°OD'DD'E, A DISTANCE pF' 25.QD FFET T'0 A PD9'IVT ON 77~ SQCITH LIFE C~ SAID ATLAM7C PLAZA AND A POINT DN rHE NORTH LIB DF EAST ATLANTIC AYEINI~' AS NOW LAID OUT AID IN USE AID ThE TERMUNUS PD1NT OF SAID EASFME7NT. T7`IE SIDE 1.l14E5' OF SAID EA5EM~7NT T?7 8E EXTDYDED 4F? 5f-h7RTE1t1ED TD II+~T AT ALL ANGLE POINTS AIVD TO TERMIIIATF AT 7~ NORT'H A1~3 SOUTH LINES ~ SAID PLAT OF A LLANTIG PLAZA AND 7h~ WESTER[. Y PROJECTION OF T!-E' SO~JTN LIB OF 5A1D PLA T DF A TLANTIC PLA,~A. Exhibft "E" cement for the Abandonment and Relocation of N.E. 7t`~ Avenue Farm Relocated 7`~' Avenue A eement 0408119692-D16 CurrenU1349D934v11 Q2r1 312009 1 0'5fiAM This instrument was prepared by and should be xeturned to: Brian Shutt, Esq. City Atkvrney's Office ~~~ N.'VV. 1st Avenere Delray Heach, Florida 33444 EASEMENT AGREEMENT {Relocated ?` `Avenue Easement} THIS EASEMENT AGREEMENT this "Agreement"~ made as of February l7, 2~a9, by and between the CITY DF DELRAY BEACH, FLGRIIIA, with a mailing address of l ~~ N.W. 1st Avenue, Delray Beach, Florida 33444, a Florida municipal corporation (the "City"} and ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership {collectively, the "Owner"}. RECITALS: A. The City Commission passed a Resolution pursuant to which the City abandoned its interest in and to a portion of that certain publicly dedicated r^adway known as N.E. 7th Avenue in Delray Beach, Florida (the "Abandonment Resolution"} and, in connection therewith, a relocated 7th Avenue may be constructed, betv4~een N.E. 1St Street and East Atlantic Avenue ("Relocated 7th Avenue"), including the installation of improvements located thereon, including, without limitation, streetlights, pedestrian and vehicular traffic signs and markings, sidewalks, planters, trees landscaping and other related appurtenances. Aelcated 7th Avenue is legally described as follows: See Exhibit "A" attached hereto and made a part hereof. B. In connection with the construction of Relocated 7ch Avenue, the Owner has agreed, among other things, to grant to the City: (i} a perpetual exclusive roadway easement for unabstxucted and unimpeded vehicular and pedestrian traffic for ingress and egress, and aver, upon, and across Relocated 7'h Avenue, and for the Cit~ to exercise its governmental and quasi- governxnental functions with respect to Relocated 7t, Avenue, including without ]imitation, traffic regulation, and other uses and purposes as may be permitted by the City's Code of Ordinances or by resolutions adapted by the City Comxnission with respect to public rights-of- ways located within the City and for all purposes far which the City has all power under home rule authority, including but not limited to, those expressed in Florida Statutes ar City Ordinances, and this Agreement shall not in any way limit those powers including, but not limited tv, access, ingress and egress, maintenance, control, closing, or other use of Relocated 7a' l aaasnsss~•ots Currentl'i3as9s69via az~~312v~ a2:i2 PEA Avenue by rnernbers of the public, and Gity officers, agents, employees or contractors; and (ii} a non-exclusive utility easement within the "[7tility Easement Area" (as hereinafter defined}. NaW, THEIEtEF~RE, for an in consideration of the sure of TEN AND NQI144 DCLLAftS {$10.44} and other gaud and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the City and the Owner agree as fflllaws: 1. Fncorparation of Recitals. The foregoing Recitals axe true and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. Roadway Easement. 2.1 Grant of Roadway Easement. Owner, as grantor, hereby grants and conveys to the City, its successors and assigns and the general public (collectively, hereinafter referred to as the "Roadway Grantees"}, commencing upo~r the substantial cvinpletivn of construction of Relocated 7t Avenue by 4wncr has cvidcnccd by the rccording of the "Certi£~cate of Substantial Completion" by the City Engineer in the form attached hereto and rrxade part hereof as Exhibit "B"] (the "Effective Date"} and perpetually thereafter, an exclusive unimpeded and unobstructed easement far the use and benefit ^f the Roadway Grantees {the "Roadway Easement"} over, upon, and across Relocated 7th Avenue for the fallowing purposes: a. The unobstructed and unimpeded use for pedestrian and vehicular parking and traffic, including sidern~alks, aece55, ingress and egress, as a through roadway, and for the pr^per installation, maintenance, repair and replacement ^f a paved roadway and its subsurface components; b. For any public purpose permitted by the City's Code 4f Ordinances which relate to ^r concern the use or regulation ^f public rights-of-way located within the City; c. For any public purpose approved by the City Commission which the City Cornrr~ission could approve with respect to public rights of way located within the City in the exercise of its governmental and quasi-governmental functions; and d. Far all purposes for which the City has all power under Home Rule Authority, including but not limited to, those expressed in Florida Statutes nr City Ordinances, and this Agreement shall not, in any way, limit those powers including but oat limited to, access, i~~gress and egress, aaintenance, control, closing, or other use of the Relocated 7t'' Avenue by members of the public, and City officers, agents, employees or contractors; including, without limitation, closing Relocated 7`E' Avenue for street fairs, festivals ar other events approved by the L'ity within the exercise of its governmental nr quasi-governmental functions similar to any other City public right of way. 2 QA081]9692-01fi CurrenUt3488GD9vi4 ~2133120~902,12 Phi e. Notwithstanding the foregoing, tFze gant of an exclusive perpetual easement, as set Earth herein, shall oat preclude the owner of fee simple title to the Relocated 7'h Avenue from exercising its rights ar performing its obligations hereunder with respect to Relocated 7th Avenue, as specifically set forth in this Agreement. 2.2 Initial Canstntction. Except as set forth herein, the initial canstrtiction of the Roadway Easement and related improvements thereon (the "Initial Construction"} shall be made by ^wner, at Owner's sale cost and expense. Cwner shall, in compliance with all applicable gavenr~mental ntles, laws, regulations and ordinances, maintain, repair and replace the improvements constructed as a part of the Initial Construction of the Roadway Easement and related improvements thereon, including without limitation, sewers, drainage, landscaping, signage, traffic control devices, street lights, anedian requirements, striping, sidewalks, pavingo and curbing. Notwithstanding the foregoing, Qwner shall z~vt be required to: {i} install at its expense any traffic lights ar similar types of traffic control devices; {ii} install or maintain unprovements to the Roadway Easement beyond those improvements constructed as a part of the Initial Construction; (iii} pay far any City installed holiday or festival lights, banners or decorations; or {iv} pay far the costs of electricity for street lighting oat installed by the Cwner. Z.3 Alterations. The Owner shall not make any alterations to the roadway design, location ar improvements thereon unless the City consents to same in the exercise of its governmental orquasi-governmental functions. 2.4 Ri is of the Raadwa Crrantees. The Roadway Grantees shall have the right to use the Roadway Easement in an unobstructed and unimpeded manner seven {7) days a week, twenty-four (2~) hour per day, except as otherwise authorized by the City in the exercise of its govemmental yr quasi-gaver~unentai functions. Na fee or Other expense shall be charged by the Cwner to the City or the Roadway Grantees far use of the Roadway Easement. {The foregoing shall not apply to any parking charges or valet fees For parking andlor valet services occurring on private property adjacent to the Roadway Casement.} The City may install and maintain, at its expense, public parking meters far parking an the Roadway Easement, and all revenues generated by the meters shall be retained by the City. Z.S Towin Vehicles. The Cwner shall not be allowed to taw ar otherwise relocate vehicles located in the Roadway Easement; provided however, the Qwner shall retain the right to taw vehicles located an private property that is not a part of the ltaadway Easement irz accordance with alI applicable law. 2,fi Cbstruetion. Na obstruction of the free [Taw of pedestrian andlvr vehicular traffic or use of the Roadway Easement for parking shall be permitted ar caused by the Owner. 2.7 Maintenance. The Cwner shall cause any and al] mai~~tenance, repairs ar replacements tQ be made to the Roadway Easement, as may b~ necessary or appropriate from 3 04D8,'19Fi9P~16 Currentli34896D9v14 02113J240902i2 ANI tithe to time, in a goad a1~d workmanlike manner and in accordance with the applicable standards for the maintenance and repair of City public rights-af--way far the same level of use. Maintenance items include, withcut limitation, the surface of the street, the underlay, curbs, gutters, lighting facilities installed by the Gwner, striping, markers, directional signs, mowing, weeding, trirnming and watering. The Owner shall take any and all safety measures reasonably required to protect the persons and property of the City, invitees of City and the Roadway Grantees from accidental death, injury, ar damage caused by or resulting from the construction or performance of a«y such work. 2.8 Insurance. a. The Qwner shall purchase and maintain "all risk" property damage insurance, (including, to the extent available, at commercially reasonable prices, #lood and wind} up to the full replacement cost of the Roadway Easement impraveanents. b. Intentionally Omitted. c. The Owner shall purchase and maintain General Liability Ixsurance to cover legal liabilities arising from the Roadway Eascrncnt. Tire combined bodily injury and property damage limits shall not be less that $S,aa0,D00 per occurrence with an annual aggregate of $S,OO~,ODO. The Gvvner rrtay use umbrellalexcess liability insurance to meet these requirements. d. Intentionally Omitted. e. A]l insurance policies required by this Section shall have an A.M. I3cst rating of at least A-NIT and shall provide for a least thirty ~3a} days written notice by the Owner, or its insurers} to the City of any cancellation, intent to non-renew, or material reduction or change in insurance coverage_ f. The City shall be named as an additional insured by way of the most current ISD endorsement, or its equivalent, an the Dwner's liability insurance policies required under this Agreement. g. Nat less than thirty (3~} days prior tQ the Effective Date, the City must receive and approve Certificates of Insurance evidencing the insurance coverages and requirements under this Agreement. Renewal Certificates shall be provided to the Gity at least ten [ld} days prior to the expiration of any policy. h. Ta the extent permitted by law, the Qwner and its insurers waive (and will so endorse their insuxartce policies} all rights of subrogation they may have against the City, its employees, officers, directors, and agents far the recovery of darnages covered under any of the City's insurance and self-insurance programs. It is the express intention of the City that the waivers apply to all matters described in this Agreement, including, without limitation, 4 X468119692-~16 Currenll13489fi{19v14 67113J2D[}9 D2:12 PA+~ any matter that is caused in whole ar in part by the sale or concurrent negligence of the City. 2.9 Indemnification. The Owner shall save and hold harmless the City from, and shall indemnify the City against any loss, liability, claim, damage, expense, attorney's fees, costs, penalty, or fine, including without limitation, bodily injury, death, and property damage, arising out o#' the use, operation, maintenance, repair and replacement of the Roadway Easement by the Owner, its employees, representatives, agents, and contractors {but only when such parties are acting solely in their capacity on behalf of Owner, but excluding any matters arising from the Owner or said parties when such parties are not acting an behalf of the Owner, but are utilizing the Roadway Easement as any member of the public). Each claim for indemnification made under this Agreement shall lae subject to the following provisions: a. The indemnity shall corer the ousts and expenses of the indemnities including, without limitation, reasonable attorney's fees, disbursements, and court costs, related to any actions, suits, flr judgments incident to any of the matters covered lay such indemnity. b. The indemnities shall notify tine indemnitor of any Claim (as herein defined), in writing, against the indemnitee covered by the indemnity ("indemnification Notice"} within forty-five {4S} days after it has notice of such Claim, but failure tv notify the i~~cdei~uutoz- shall in no case prcjudicc the rights of the indcntnitee under this Agreement unless the indemnitor shall be prejudiced by that failure and then only to the extent the indemnitor shall be prejudiced by the failure. Should the indemnitor fail to discharge ^r undertake to defend the indemnitee against such liability after receipt of an Indemnification iVotice, then the indemnitee may settle such liability, acid the liability of the indemnitor under this Agreement shall be conclusively cstablishcd lay that settlement, the amount of such liability to include both the settlement consideration and the reasonable costs and expenses, including attorxrey's fees, disbursements and court costs, incurred by the indemnitee in effecting the settlement. c. For purposes of this ~Lgreament, "Claim" shall mean any obligation, liability, clailxi {including, but not limited to, any claim for damage to property ar injury to or death of any persons}, lien or encumbrance; lass, damage, cast, or expense. d. The obligations of the parties under this Section 2.9 shall survive the termination or expiration of this Agreement and remain Iainding upon the parties to this Agreement until fully observed, kept, or performed. 2.14 Taxes. The Owner shall pay or cause to be paid before delinquency all ad valorem real property taxes, general and special assessments and other goven-jmental charges assessed against the fee parcel, subject to the Roadway Easement and improvements on the Roadway Easement, and provide evidence of the same to City. If those arnaunts are not timely paid by the owner, the City may {lout shall not be obligated to} pay all or part of those amounts and the Owner shall immediately reimburse the City those amounts upon demand, together with 5 04D8l19692-016 Currenf1134896o9v14 07J13I2D09 D2:12 PM interest at the rate of eighteen percent {18.4°/6} per annum an the amounts so laaid by the City, from the date of advance until reimbursed. The City shall also have a lien aginst the fee simple interest subject to the Roadway Easement to secure repayment of taxes paid and the manner of filing a lien, its priority, and its enforcement shall be the same as set Earth in Section 2.13 of this ~Lgreement. The Roadway Easement shall be an ingresslegress easement within the meaning of Florida Statutes Chapter 197.572. 2.11 Casual In the event of damage or destruction by casualty of the Roadway Easement or any improvements located thereon, the Owner shall repair and restore the same within a reasonable period of time, to a condition substantially similar to that ixnrnediateIy prior to such damage ar destruction. Said repair or restoration shall be at the sale expense of the owner except in the event such damage was caused by the City, its einplayees, agents, contractors and representatives, in which event, the City shall be responsible for the costs ^f repair and restoration of the Raadway Easement and the improvements thereon. 2.12 Intentionally Omitted. 2.13 The City's Remedies. a. Should the Owner fail to maintain, repair or replace any portion of the improvements located an the Roadway Easement by which this Agreement imposes an obligation upon the Dwner to maintain, repair and replace, and as a consequence, the City's easement rights created by this Agreement became impaired ar the City is unalale to utilise the Raadway Easement as iaxtended by this Agreement, in addition to any remedy the City nrzay have, the City a$er oat less than thirty {34} days prior written notice to Ovvner to cure the default (except na notice shall be required in the event of an emergency}, may, but it is not obligated to, enter onto any paz-tion of the Raadway Easement to perform all necessary construction, repair, rrraintenance, replacement and operating work and may assess the Dwner for the reasonable cyst of such work. Any restoration and repair work undertaken shall be performed in accordance with all applicable laws by licensed cankractvrs and in a goad, non-negligent, and workmanlike and lien-free manner or by City personnel, if performed by the City. The Dwner shall pay the post of said work within thirty (3t]} days after the City delivers to the owner ~Che "Payment Date"}, (i) a written statement setting forth the amount of the costs and expenses expended by the City; and {ii} bank up information and detail evidence supporting such expenses, including without limitation paid invoices for all such work. The Payment Date shall oat commence until such time as the City has delivered to Owner all of the information set forth in items (i} and {ii} above. If the foregoing amount is not paid an ar before the Payment Date, then said amount shall bear interest at simple interest rate of eighteen percent {18.4°fo) per annum Pram and after the Payment Date until paid and ai~er the Payment Date. b. The City shall have the right to record a lien against the fee simple interest subject to the Roadway Easement if Owner has oat paid the City by the Payment Date. Tlie lien shall be in a form substantially in the form of a Construction Licn prescribed under 6 U4081i9692-6tfi Currentli3489fiU9v14 0?Jf3J20U962'1~PM Florida Statutes Chapter 713 and shall attach to the fee simple interest subject to the Roadway Easement and shall be effective upon recording of a notice thereof in the Public Records of Palm Beach County, Florida with a priority date as of the tinne and date vl' recording. The lien rights granted herein will not affect the easements and other rights granted herein to the City, and such rights shall continue in full force and effect_ Such lien maybe foreclosed in the same manner as a rnvrtgage and in accordance with Florida law. Reimbursement of such work costs and interest shall also be the obligation of the Owner at the time the costs are incurred, and may be collected by the City accordingly in action against the Owner. c. The Owner shall deliver tv the City, at the Owner's Sole cost and expense, a maintenance bond, a letter Qf credit, cash collateral, guarantee or other surety {collectively, the "Surety"} at the Owner's election, subject to the consent of the City, riot to be unreasonably withheld, conditioned ar delayed. The Surety shall provide that if the Owner fails to timely and properly maintain, repair or replace the Roadway Easenrrent in accordance with the terms of this Agreement, the City shall be entitled to payment from the Surety far the casts and expenses the City incurs (including in-house employees} for maintaining, repairing yr replacing the Roadway Easement. The Surety shall be in the amount of $100,~0a {as adjusted for the cost of living for such ten { 1 ~} year period every ten { 14} years {if the Surety remains in effect}} (the "Surety Amount") and shall be issued and delivered to the City at or prior t4 the completion of Relocated 7th Avenue. The farm and content of the Surety and the issuing institution, if any, shall tae subject to the reasonable approval of the City Attorney. The Surety shall remain in effect during the term of this Agreement, unless the City permits otherwise. If the City draws on the Surety, then within thirty {30} days thereafter, the Owner shall restore the Surety to the original Surety Amount. If at any time after the Surety is issued, the Owner creates a property owner's association ("PDA"}, the City shall evaluate, upon the owner's written request, whether the creation of the PDA provides the City with reasonably equivalent security far the Surety. The City xnay accept the PDA as reasonably equivalent security in its sole discrctian. In evaluating the Owner's request, the City may require the Owner to provide the City with copies of the PDA's incorporation and governing documents and financial information. if the City agrees that the PaA is reasonably equivalent security, then the Surety requirement shall be waived by the City. The Owner shall have the right to transfer fee title to Relocated 7th Avenue or otherwise assign and delegate the rights and obligations under this Agreement to the PDA at anytime the Surety is in place by the owner or the PDA and the City has approved the PDA as set forth above. Upon such conveyance of Relocated 7'h Avenue andlor assignrnentldelegatian to a PDA, the Owner hereunder shall he released from the obligations and liabilities under this Agreement that accrue after the transfer to the PDA and the City shall lavlc solely to the PDA and the Surety for perfarnnance of all obligations and liabilities under this Agreement arising after such transfer, assignment ar delegation. Prior tv any conveyance or assignrnentldelegatian to a PDA, such P4A shall accept and assume al] obligations set forth in this Agreement in writing and the parties may record an acknowledgement of same in the public records of Palm Beach County, if so desiied. 2.14 Binding Effect. The Roadway Easement is an easement appurtenant to 7 0448!] 9fi9~-016 Curren11134896E}9v14 4ti1312009 42:12 PM the City's public right-of--ways and shall run in favor of the City, and shall be binding upon the owner and its successors and assigns holding the servient estate. 2.I 5 Contractors. All wflrk perfflzmed by the Qwner in the Roadway Easement shall be perfornned only by properly licensed contractors and in compliance with all applicable laws, rules and codes. Each contractor performing work Far owner shall he reasonably insured, ~vithout cast to the City and the Gity will be indemnified and held harmless far any Claims that may arise out ^f the performance of the work, solely to the extent and manner set forth in Section 2_9 of this Agreement. The foregoing insurance coverage requirements are not intended to require insurance coverage against any defects in the work, except to the extent that such defective work causes bodily injury nr personal property damage as a result of such defective work [but not including the repairer correction of any defective work}. 2.16 Warranty. The Qwner warxants than (i} the owner is seined of fee simple title to Relocated 7th Avenue and has the right to convey the Roadway Easement to the City, free and clear of alI liens and encumbrances ether than those acceptable to the Gity; {ii} the City shall have quiet enjayinent of the Roadway Easement; and {iii} the Qwner does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever, subject to any permitted exceptions permitted by the City. 2.17 Traffic Enforcement _Agreement. The Qvs~ner agrees that the City shall Nava jurisdiction aver the Roadway Easement to enforce all applicable traffic regulations and the Qwner shall, simultaneously herewith, execute the Traffic Enforcement Agreement, the form of which is attached heretn as Exhibit "C". 3. Utili„t~ Easement. 3.1 Grant of Easement. The Qwner, as grantor, hereby grants and conveys to City, its successors and assigns, commencing upon the Effective Date and continuing perpetually thereafter far the use and benefit of the City, anon-exclusive easement {the "Utility Easement"} within the unimproved subsurface areas under and below Relocated 7t'' Avenue, excluding the areas under and below any tunnels which are constructed as part of the "Subsurface Improvements" (as defined in Section 3.3} {the "Utility Easemea~# Area"}, for the purpose of installing, maintaining, repairing, replacing and restoring normal municipal utilities such as pipes, cables, electrical wires, cable television wires, conduit, plumbing, andlor appurtenances relative to such facilities {collectively, the "Utilities"}. The term [Jtilities as defined in this Agreement when referring to the City Utilities shall mean only City Awned "i3tilities" and such term shall not include nor grant any easement rights to yr in favor of any privately owned utilities either directly ar indirectly through any municipal franchise agreements with the City {i.e. utilities awned by Florida Power & Light ar cable television companies, etc.} ("Private Utilities"}, The right to grant any further easenent ruts in favor of Private Utilities is expressly reserved to the Qwner. 1fie Utility Easement shall on all instances be subject to and limited by the previsions of Sections 3.2-3.5 below. 8 x468!19692-016 Currentfi3g896p9vi4 021t312D090~i2 PIV1 3.2 Non-Interference. The City's use of the Utility Easement shall not materially interfere in any manner with any Utilitics which have been installed, or rrlay from time to time, be installed under Relocated 7t'` Avenue by or an behalf of the Owner without the Cwner's prior autharizatifln_ 3.3 Subsurface S ace & Subsurface Im rovements. The City ackrlowlydges that the area located under the paved surface level of Relocated 7`h Avenue the "Subsurface Space") shall contain certain subsurface improvements, infrastructures, Utilities, and Private Utilities, including, but not limited to, certain foundations, garages, tunnels, girders and supports, as may exist from time to time (collectively, the "Suhsurf'aGe linpt-oyetnents"}. Accordingly, the City's use of the Utility Easement granted pursuant to this Agrccnacnt shall not unreasonably interfere Wlth the installation, construction, operation, maintenance, repair, replacement pr structural integrity of the Subsurface Improvements, or any above-ground irr~provements, awned, installed, maintained or operated in the Utility Easement Area. The City shall not cause any penetrations into or through, or alterations, modifxcativns, additions or changes in or to the Subsurface lrnprovements, owned, installed, maintained or operated in the Utility Easement Arca without the Owner's permission. Conversely, Owner's use of the Subsurface Space shall not interfere with the City's use of the Roadway Easement and owner shall not cause any penetrations into or through the paved surface level of the Roadway Easement unless approved by the City. 3.4 Minor Construction Encroachments. The City acknowledges that the improvements constructed on the adjacent properties, from time to time, may encroach into the Roadway Easement andlar the Utility Easement and the City agrees that such encroachments shall not violate this Agreement and may remain as constructed, provided that such encroachments da not impede ar obstruct vehicles or pedestrian access, ingress and egress or otherwise interfere with the use of the foregoing easements in any material respect, and provided that such encroachments occurred during construction, repair or replacement of such improvements. The foregoing shall not apply to improvements which Owner kllows will encroach on the Roadway Easement prior to their construction and any such improvcmcnts which Owner knows shall encroach prior to commencement of the construction thereof must be approved by the City in accordance with the exercise of the City's governmental and quasi- govemmental functions. 3.5 Restoration. a. If the City's rr115u5C of the Utility Easement or the Roadway Easement ar negligence causes any damage to the improvements in said easements, then the City, at its sole cast and expense and as expeditiously as possible after becoming aware of such damage, shall repair and restore Relocated 7''' Avenue and the improvements thereon andlor the Subsurface lrnprovelnents to the condition same were in imrrlediately prior to such damage. Any restoration and rcpair work undertaken pursuant to this SeGtian 3.5 shall be performed in 9 0408ft9592.016 CurrenUl3A~fi09v14 02+13I2D~902:12P~1 accordance with all applicable laws and in a gaol and workmanlike and lien-free manner. However, nothing constxued herein shall constitute the waiver ^f its sovereign immunity or any limit Qr defense imposed by ar allowed by chapter 758, Florida Statutes. h. Any damage caused to the Roadway Easezxzent ar improvements located thexean by ar as a result of the installation, maintenance, repair ar replacement of the Owner's Subsurface lrnprovements in the Utility Easement ar any portion thereof, ar as a result of the negligence or misuse of tl~e retained servient estate rights of the Gwner, then the owner, at its sale cost and expense shall, as cxpcditiausly as possible after becoming aware of such damage, repair and restore Relocated 7tzi Avenue andlor the damaged utilities installed by the City in the Utility Easement to tlae condition same were in immediately prior to such damage_ Any restoration and repair work undertal€en pursuant to this Section 3.5 shall be performed in accordance with all applicable laws and in a goad and workmaniilce and lien-free manner. 3.6 The Gwner warrants that: (i} the Owner is seized flf Relocated 7`'' Avenue and has the right tv convey the Utility Easement tv the City, free and clear of all liens and encumbrances other thaw (hose acceptable to the City; (ii} the City shall have quiet enjoyment of the Utility Easczncnt; and (iii} the Owner does hereby fully warrant the title to said land and will defend the same against the lawful claims of all person whatsoever, subject to any permitted exceptions permitted by the City. 4. Use of Relocated 7l~' Avenue by owner 4.1 Permitted Uses. The Owner shall have the right, from time to time, to permit andlor operate: [i} solos and promotional 1C1o51C5 and other income-producing S~rVrCe5~17u5zne5Ses on Relocated 7~' Avenue and the appurtenances thereto, and (ii} street festivals, fairs, municipal and civic events and other similar events on any portion of Relocated 7`h Avenue; provided such uses are approved by the City in the Gity's exercise of ifs governmental ar quasi-governmental functions_ 4.2 Roadway Closure. The owner shall have the right, from time to time, to temporarily close portions of Relocated 7t~' Avenue to access, maintain, improve, repair or replace any improvements in the Roadway Easement or the Utility Easement, including, without limitation, Relocated 7`h Avenue and any Subsurface Improvements, and for other matters reasonably necessary to maintain, repair and replace the Roadway Easement, the Utility Easement, the Subsurface lnr-prvvements or any components of or improvements within the foregoing in the Owner's xeasonable discretion (the "Roadway Closure"}. In performing any Roadway Clasux+e, the Gwner agrees ta: (i} use good faith efforts to minimise the impact of such mad closure on vehicular and pedestrian traffic, including, but not limited tv, cvnsideratian as to the date and time of the Roadway Closure; and [ii} comply with the City's requirements for temporary road closures ^f City public-right-of--ways. 1~ 0408119692-Oifi ~urrsnt1~3489fi09v1G 4?J~312009 Q2~'!2 P!~[ 5. Si a e. The Owner, at its sole cast and expense, may install, maintain and operate signage an Relocated 7~~' Avenue, In 5uG11 locataDns at3d tit Such Capacities ~.5 the Clty naay approve in the City's exercise of its governmental or quasi-govGrnmGntal functions. Default and Remedies. 5,1 Default. The failure of the Qwner or the City to observe or pexform any of their respective obligations under this Agreement the "Defaultin Part '} within thirty (30) days after receipt of written notice from the other party specifying the nature of the failure the "Nan- Defaultin~ 1?artv"}, shall constitute a default and breach of this Agreement; provided, however, if' such failure is of a nature that it cannot reasonably he cured within such thirty (30} day period, then the Defaulting Party shall not be in default so long as the Defaulting Party corntnences such cure promptly after receiving such written notice, and is diligently pursuing such cure to completion. The foregoing shall not apply to Section 2.13 afthis Agreement. 6.2 Remedies. The terms and provisions of this Agreement are enforceable with all remedies at law and in equity, including, but not limited to, bringing an action for actual damages, an action for specific performance, an action for temporary restraining orders, preliminary ar permanent injunctions, declaratory judgments or other similar orders for relief; provided, however, that suspension or termination of this Agreement an account of a breach shall nai be an available remedy unless otherwise expressly provided far herein. The parties further agree that neither party shall have the right to recover any consequential, pui><itive, special, extraordinary or speculative damages as a result of the breach of this Agreement. The parties to this Agreement hereby acknowledge and stipulate the inadequacy of Legal remedies and the irreparable harm that would be caused by a material breach of any obligation under this Agreement by a party to this Agreement. This Agreement may not be suspended ar terminated Gxccpt by art instrument in writing signed by City and Owner and recorded in the real property records of Palm Beach County, Florida. 7, Notice, Any notice, demand yr request which may be permitted, required or desired to be given in connection therewith shall be given in writing and directed to the Gity and the Owner its follows: As to City: City of Delray Beach 100 N.W. 1 s` Avenue Delray Beach, Florida 33444 Attn: City Manager FaG5tmlle: X551} 278-4755 Wish a wpy to: 200 N.W. 1 `' Avenue Delray Beach, Florida 33444 040BI19692-p1 ~ Currer~Vl3q$9509~~14 Q2l13+~p9 ~~:12 PM Attn.: City Attorney Facsimile: {S51} 278-4755 As to Owner: Atlantic Center, Ltd. clo CDS International Holdings; Inc. 3299 N.Vi~. 2"~ Avenue Boca Ratan, Florida 33431 Attn: President racsizxrile: {5dl} 278-593 GDR Atlantic Plaza, Ltd. clo CDS International Holdings, Inc. 3299 N.Vit. 2"d Avenue Saco Raton, Florida 33431 Attn: President Facsimile: {561} 278-6~3U Notices shall be deemed prUperly delivered acrd received when and i#' either [i} personally delivered; or {ii} one [1} business day a$er deposits with CTnited Parcel Service or other overnight courier for next day delivery; or [iii} the same day when sent by confirmed facsimile before S:QO p.m. {Eastern time}. 8. General Provisions, 8.1 Amendment. This Agreement may be amended or modit~ed only l7y a written instrumern signed by both parties ar their respective suacessars and aS51~Ir5, which instrument must be recorded in the Public Records of Palm Beach County, Florida. 8.2 Entire A Bement. "Phis Agreement sets forth the entire ageement behveen the Owner and the City with respect to the easement granted in this Agreement. This Agreement supersedes all prior and contemporaneous negotiations, understandings and agreements; written or oral, between the parties. 8.3 Governing Law. This Agreement will be interpreted and enfflrced in accordance with Florida law. 8.4 Successors and As51 s. The covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigirs of the Owner and the City. 8.5 Authari to Execute Re resentatians. The Owner and the City each warrant and represent to the other that the individuals sigrii~rg this Agreement on behalf of the 12 440Bft9fi92~D16 Currend134896Q9v14 021i3l20~90~i2 Paul owner and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto. 8.6 Counter~,parts. This Agreement may be signed in two ar mare counterparts, each of which constitutes the Agreement of the parties and each of which shall be treated as an original. 8.7 Non-Public. The Qwner and the City specifically acknowledge and agree that this Agreement and the rights and obligations granted hereunder are not intended to be, and shall not constitute in any aspect or manner, a public dedication of any right or interest of the Owner in Relocated 7~' Avenue whatsoever, but rather are private rights far the sole use and benefit of the parties hereto, their respective successors and assigns. 8.8 Breach Shall Nat Permit Termination. It is expressly agreed tha# nn breach of this Agreement shall entitle either the Owner or the City to terminate this Agreement, but such limitation shall not affect in any manner any other rights or remedies which either tl~e Owner ar the City may have hereunder by reason of any preach of this Agreement. S.9 Severabiliiv. If any term or provision of this Agreement ar application thcrcof to any parson or circumstance shall, to any extent, be found lay a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term ar provision to persons ar circumstances other than those as to which it is held invalid ar unenforceable, shall not be affected thereby and each term or provision of this Agreement shall be valid and enforceable to the fullest extant permitted by law. 8.14 Nnn-waiver. No waiver of, or failure to assert, any claim, right, benefit or remedy of any party pursuant to this Agreement shall operate as a waiver ^f any other clairn, night or benefit. The failure of any party at ax~y time or tunes tv require performance of any provision hereof shall in no manner affect such party's right at a latex time to require such performance or to enforce the same fully. No waiver or modification of the terms hereof shall be valid unless in writing and signed by the party to be charged, and then only to the extent therein set forth. 8.1 l Headings. The headings ofthe articles of this Agreement are far guidance and convenience of reference only and shall not limit or otherwise affect any of the terms ar provisions of Phis Agreement. 8.12 Covenant Running with„the Land. This Agreement and the easements granted herein, and all of the rights, duties and ahligations of the parties with respect thereto, shall be construed as covenants running with the land, binding and inuring to the benefit of the City or the dwner, as the case maybe, their respective successors, assig~~s andlar grantees. 13 Q409ft9fi92-416 Gume~VI34S9649Vt4 02l33+20~902:t~Pl~l 8.13 Farce Ma'eure. If any party to this Agreement is delayed, hindered irt, ar prevented from the performance of any act required to be perforrned by that party by reason of acts of Gad, strikes, lockouts, unavailability of materials, failure of power, prohibitive gavetnme~ital laws or regulations not imposed by the City, riots, insurrections, the act or failure to act of any other party to this Agreement, adverse weather conditions preventing the performance of work as certified to by an architect, war, act of terrorism, or other reason beyond that party's reasonable control and far which, in each of the aforesaid circumstances, the party is diligently and in good faith and with reasonable dispatch seeking to abate and remove the Circumstances causing the delay yr 1-undrance ar prevention from performance of the act required to be pcrforrncd by that party, then the time for performance of the act shall be extended for a period equivalent to the period of the delay. Lack of adequate funds or financial inability to perform or financial ar economic lasses ar hardship resulting from performance shall not be deemed to be a cause beyond the reasonable Control of such party. 8.14 Joinder b Mart a ees. By its joinder in this Agreement, all mortgagees holding a lien against the Roadway Easement, if any, have consented and da hereby Consent to this Agreement, and the liens and security interests held by such lienholders are hereby made subject and subordinate to the terms of this Agreement without the necessity afthe execution of any othcr dacurncnt. Any future deeds of trust or mortgages shall automatically, without the necessity of any additional instrument, be subject and subordinate to the terms and conditions of this Agreement and shall be bound by the terms of this Agreement. Any party foreclosing any such deed of trust or mortgage, or acquiring title by deed in lieu of foreclosure ar trustees Sale shall acquire title subject to all the terms and provisions of this Agreement. 8,15 Right to fledge. The Dwner shall have the right to mortgage, pledge ar collaterally assign its interest in this Agreement and to assign ar pledge the same as security for any debt and all rights acquired by such secured party under any such security. From and after the daft any deed of trust beneficiary, mortgagee ar secured party tames into possession of the Owner's rights under this Agreement, such deed of trust beneficiary, mortgagee ar secured party shall possess all rights of the owner under this Agreement and all obligations of the Owner shall thereafter be the alaligation of such deed ^f trust beneficiary, mortgagee ar secured party. In na event shall such transfer of possession cause a release, satisfaction, ar waiver of any obligation of the Owner which occurs prior to the date ^f such transfer, includinb without limitation, the City's right under this Agreement to record and foreclose a lien. 8.16 Na Mergex. It is expressly understflod and agrccd that the parties do not intend khat there be, and there shall in no event be, a merger of the dominant and servient tenements in Relocated 7`~` Avenue by virtue of the present or future ownership of any portion of said tenements lacing vested in the same person{s) or entity, but instead intend that the easement servitudes shall not be extinguished thereby and that said dominant and servient tex~.eazte~7ts Ue kept Separate. 14 oaoa~t~ss2-ais c~rrentli3489649v14 02113JZOflS6~12 FNi 8.17 Joint Preparation. The preparation of this Agreement has been a joint effort ^f the City and the Owner and the resulting document shall not, solely as a matter of judicial construction, be construed mare severely against one party than the ether. 8.18 Attorneys' Fees. In connection with any litiga#ian or dispute axising out of this Agreement, each party shall bear its own attameys' fees and costs. 8.19 Further Assurances. The parties agree to execute all future instruments and take all further action that may be reasonably required by any party to fully effectuate the terms and. provisions of this Agreement and the transactions contemplated herein. 8.2~ Dispute. Any dispute relating to this Agreement shall only be filed in a court of Competent jurisdiction in Palm Beach County, Florida, and each of the parties to this Agreement submits itself tv the jurisdiction of such coon. 8.21 Hazardous Substances. Neither the Owner nor the City shall cause ar permit at any time during the terms of this Agreement, any hazardous substances to be disposed of or otherwise released on, to or under the Roadway Easement. Neither the owner nox the City shall engage iii operations aver, upon or under the Roadway Easement that invplve the generation, manufacture; refining, transportation, treatment, handling or disposal of "Hazardous Substaxaees" ox "17aZaI'd4U5 Wastes" a5 SuCh terms are defined under any environmental Iaws. l7wner acknowledges however, that the Roadway Easerraer~t will be utilized fur parking and driving vehicles which may Ieak oil, gasoline, ar other fluids onto the ground, and the City shall not be responsible for removal of such waste ax have any liability for it under this Agreement. 8.22 Assignment to Property Qwner's Association. The Clwner shall have the right to convey fee simple title to Relocated 7`h Avenue to a I'GA or Otherwise transfer, assign andJpr delegate the rights and obligations under this A~~eenxe~it to a PGA iii accordance with Section 2,13{~}. 8.23 Na Third Party_Seneficiaries. No private parties othex than the City shall have the right to bring a cause of action against the Owner under this Agreement. $.Z4 Estoppel Certificate. From time to time, the Owner shall have right to request the City to execute and deliver to the Owner and any other party, within fifteen [15} days of notice thexeaf, an estoppel certificate the "Certificate"} certifying the Owner's compliance with the terms and provisiaxas of this Agreement, in a farm reasonably acceptable to the City. The Dwner and such other parties shall have the right to rely on the Certificate. 9 Governmental Functions: Natwithstandi:ng anything to the contrary contained in this Agreement. 15 04481t9692-D16 Currenf1134896Q9v14 0~1131~Q09 Q2:12 P~+I a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any pcrson su6jcct to this Agrccmcnt from complying with all applicable governmental regulations, rules, laws, and ordinances; b. Ta the extent approval or pennissian must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any nested rights; c. The City has not waived its sovereign immunity and the tort lirnits of liability set Earth in Fla. Stat. 768,28 which are currently ~ 144,044 per person and $200,444 per occurrence are applicable; and d. Any action by City shall be without prejudice to, and shall not constitute a limit on, impairment or waiver of, or atlaerwise affect City's right to exercise its discretion in connection with its govemrnental ar quasi_governmental functions. 14. Termination. 10.1 This Agreement shall terminate if: {i) the Ciry properly and timely exercises the City's Raconveyance Right {as such term is defined in the Declaratio~a of Reserved Rights and Agreement Not to Encumber N.E. 7't` Avenuc bctwccn the City and Atlantic Center, Ltd, and CDR Atlantic Plaza Ltd, as the "Developer" (the "Declaration"}}; and [ii} the Relocated 7°i Avenue Termination Certificate, the farm af' which is attached to the Declaration, has been recorded in the Public Records of Palm Beach County, Florida. 14.2 Upon recordation of the Relocated T'~ Avenue Termination Certificate, this Agreement shall be terminated of record and shall be of no further force and effect and all rights, obligations and easements granted hereunder shall be of no further force and effect. If the Owner requests, the City shall execute any further documents evidencing the termination of this Agreement tv be recorded in the Public Records of Palm Beach Comity, Florida. Nvtwitlistanding anything to the contrary contained in this Section, the termination of this Agreement shall not constitute the release or satisfaction of any Maim that arose prior to teraninativn, and such claim shall survive termination of this Agreement, Notwithstanding anything contained in this Agreement to the contrary, if the City exercises the City's Reconveyance Right, the City's easement rights hereunder shall not terminate until such time that the City is vested with marketable and insurable title to Vacated 7~` Avenue. 14.3 The City and the Owner shall record a certificate in the Public Records of Palm Beach County, FIarida, at such bane as the tenmination rights pursuant to Sections 14.I and 10.2 above are teraniunated and are of no further force and effect and this Agreement is no longer subject to ternnation pursuant to such provisions. 1G ~46811969P-fl16 Ctxrenl113489fifl9v14 a2l73+2U09 U2:12 PM E~ECi3TIDN PAGES TD FQLLQW I7 64D9fl 9692.616 Curre~1113489699d14 6211 y2~U9 62:12 Pld IN WITNESS WI-IEItEOF, the parties to this Agreement set their hands and seals the day and year first above written. ATTEST: CITY CF DELRt1~Y SEACFI, FLORIDA, $y. y' --- --- _ _. -- . ..... ..... ...... . City Cleric Name: Its: Date: Approved as to Form: By: City Attorney STATE aF CaUNTY ~F The foregoing instrument was acknawledgecl before me this day of , 2009,1oy the of the CITY OF DELRAY BEACH, FLORIDA. He1She is personally known to me or has produced (type of identification} as identification. Signature of Person Taking Acknowledgrrtent ~4~&'195S2-ais CurrenV13489609v14 U7J'13120G9 D2:12 Ptu4 WITNESSES: UWi~~ER ATLANTIC GENTER, LTD., a Florida limited partnerhip By: ATLANTIC CENTER, TI~TC., a Florida corporai7an ifs General Partner Print Name: Print Nanne: By. Print Name: Its: STATE ~F COUNTY OF The foregoing instniment was acknowledged before me this day of 2009, by a~ the , of ATLANTIC CENTER, INC., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partuc~sliip, an behalf of the limited partnership. He1She is personally known to me or has produced type of identil`icatian} as identification. Signature of Persart Taking Acknowledgment D46&+39692-0i6 Currend33489fi09v14 ~TJi3+2U0902t2 PM owr~Ell~ CDR ATLANTIC I'I,A7.A, I TD_, a Florida limited partnership By: DELItAY HISTORIC, INC., a FEori.da corporation, its General Partner Print Name: Prurt Maine: 13y, Print I~iame: Its: STATE 4F C[][fN`i'Y aF The foregoing instrument was acknowlodgcd before me this day of 20a9, by ,the , of DELRAY H1ST~RIC, 1NG., a Florida corporation, the general partner of C17R ATLANTIC PLALA, LTD., a Florida limited partnership, an behalf of the limited partnership. HelShe is personally known to me or has produced .w type of identification} as idexitif cation. Signature of Person Taking Acknowledgment 0408119592-016 CurranU1348960{Nt4 07J13J20D9~2:12 PM F.KNiR1T "A" Legal llescriptian of Rela~ated_7`~'_Avenue 44Q81'19592-01fi Carrent'13489&{19v14 Q211312pptJ fl2:12 Ply 3 S~CET~H OE DESCRIPT~4N Fxl~slr ,~ „ s-~T r of 2 W N.E. 9ST STREET _ z° NORTH LINE 8LOC1C 7In i 0 ~~ J o~ ~~ 00 ~~m ~~ ~~ D~ ~o w ~~ ~~ ~g~g ~z NORTH L1I~ Pe. 50, PAGE 129 r~n~ ~r ~ 589E°58'15rw ~^ NE. CRS P.B. 50, PAGE 129 ~i PO1,VT OF CC1v1~7VGEMEIVT oQ h°o ~° a vi A TLAIVTIC PLAZA (P~ A ~ eaor~ .~~, PAGE 129 -ARC = 13080' ~ C.A. = 36°33'25" RAD1tJ5 = 2O5.0D' C.B = S 18°5'43"N! NOTE. -------- ~4RC =105.28' Th95 15 NQT A S[~4VEY C.A. - 36°335" ~ = CEl~TERLINE ~ 4~~' ~u NORTH RIGHT ~! 518° 8 of f~AY u1vE ~; T1-~ IvoRrH LI1UE of SDoUTH L111,E ~ SOVTN L1NE PLAT" &.4CK 116 15 A55~D " ° ' BLOCK 1fiS ^ v ~ 47 58 BOOK 50, PAGE 129 TC BEA,4 IV.89 N RTH FdGHT O ~ ~ °. OF WA Y LINE P.~ = PLR T bDDIC ~ ~ ~ 0 a S W. CORIIER P.~ ~ pATF:• JRn[ 23, 2D09 50, PAGE 129 ' C~ T ` ~ ~ ~r~+ ~•11 Y I !4 ~iS! ~ T1, E7? & ~'BRIEN, INC Q'BRIEN, SUI ] Q~RTIFJCA7E' OF ~4UT'H4R12A77QN ~L83 _ A 1rENUE _ _ SGRVEYQR AND MAPPER !N RESP NSIE r.-~ar~r:~:• ~au~ a. ~nrc~~ ~f2 IVQ. 04-154 7TH AYES RE ~iLIGI~9~lEIY7' ~~ ~~ ~~a ~~ ~~~ ~~ ~~~ ~i _~ ~~ ~; ~? ~: ~~ ~~ ~; a; SI~CETCH OF DESCF~fPTION Exl~~rr ';a" sJ-~r ~ of 2 DESCRIPTION FOR N.E. 7TH AVEN[~ RE-ALJGM~NT.- A 40 FOOT EASEM~7VT BEING A PORTIDIV ~' ATLANJ7C PLAZA, ACCORL~+NG TO TF~ PLAT ThEREOF AS RECORDED IN PLAT BOOK 50, PAGE T29, P[lBLIC RECORDS OF PALM BEACH CO~~d+JTY, FLORIDA AID THAT POR77DN nF" THE 4D FDDT ROAD 141GH7 OF" WAY FOR N.E. 7TH AWE7~IE LYING WEST' OF AND ADJACENT' TO SAID ATLANTIC PLAZA A5 sl-IOwN onJ ~ PLAT of rIg rowly of LINTav ~NQW DELRAY BEACH ACCORDING To T~ PLAT TF#"REpF A5 RECORDED 1N PLAT BOOK ]PAGE .~ PUBLIC CORDS DF PALM BEACN COZAVTY, FLORIDA, 9E7NG 40 FEET WEST OF AND ADJACENT TC THE FOLLOWING DE5CR16ID LIII~ CONCING A?' T7-IE' NQRTI-BAST CQRI~'R OF SAID PLAT" DF ATLANTIC PLAZA; TI,ENCE 589°58'15"W, ALC'YG 77~- NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE Or 22t J8 FEET TD 7f-~ POINT OF BEGIIW,WVG,~ ThE'NCE SR°D4'QQ`~, A D15TANCE DF 359.01 FEET TD A PAINT OF C[~2l~AT[~?E CDNCA VE TD TI-JE' NC~4TNWEST NA DING A CENTRAL ANGLF OF 36°,3325" AII~ A RAL7JU5 GF 2D5.OD FEF7; THENCE SCCI7HWESTERL Y ALONG T]`~ ARG 4F SAID CL9`2V~ A DISTANCE C~ 13d8O FEET TO A POINT OF REVEI4.SE' CL94VATU4E CONCAVE TO ThE SOUTI-~AST HAVING A CENTRAL ANGLE OF 36°3325" AND A RADIUS OF 1fi5.~ FEFT, THENCE 5O[ITHWESTERL Y, ALONG THE ARC nF SAID CL@'?VE; A C7JSTANCE OF T(15.28 FEET Tf-ENCE SD°4D'aD+~, A DISTANCE G~" 25.OD FFE'T Tp A PAINT ON TI,dE' SOCITH LINE ^F SAID ATLANTIC PLAZA AND A POINT OIV TT-~ NDR77Y 1JhE OF EAST A TLANTIC A YEN(' AS NQW LAID OUT AID 1N U5F A1vD T7~ 7ERMVMJS PRINT dF SAID EA5QNE7JT. ?7-~ SYDE LI1~5' OF SAID EASEIl~7V7" T4 BE EkTE71DED 0R S~RTEIIJED TO MEET A T ALL ANCLE POINTS' AIID TO TERJLONATE AT 7-1~ NORrH AII~ 50CITH LIDS aF SA+D PLAT' OF A TLANTIC PLAZA AND T]'-E WESTERLY PROJECTION OF TI-+E SOUTN LIJ~ OF SAID PLAT' OF ATLANTIC PLAZA. PAUL D. ENCLE SURVEYQR & MAPPER X5708 QATE.' JAIY 23, 2~D9 QRDER hIQ. 04-164 7TH AVE RE-ALIGI~IENT EXH18~T "B" Certificate of Substantial Cam letian 6468119692-676 Currend73489fi69v74 d21731266962:72PM Prepared by and upon Recardin~ Return to: Stuart T. Kapp, Esq. Praskaucr Rosc LLP 2255 Glades Road Suite 340 West Boca Ratfln, Florida 33431 CERTIFICATE DF SUBSTAI~iTIAL COMPLETION Relocated 7l~' Avenue) THIS CERTIFICATE DF SUBSTANTIAL CDMPLETI~N (this "Certificate"} is issued as of the day of , 2Q~ by ,City Engineer far the City of Delray Beach, whose address is (the "City Engineer"}. WITNESSETH: ~VHEI~>vAS, this Certifrcate is issued pursuant to Section Z.l of that certain Easement Agreement, dated as of , 2Q09, between the City of Delray Bea~:h, Florida {the "City"), CDR Atlantic I'Iaza, Ltd., a I'Iorida limited partnership and Atlantic Center, Ltd., a Florida limited partnership {collectively, the "Owner"}, recorded in Official Records Baak , Page , of the Public Records of Palrrr Beach County, Florida {the "Easement Agreement"}; WHEREAS, the Easement Agreerraent provides that the Gity Engineer shall record this Certificate upon the substantial corrrpletion of construation of a relocated 7'h Avenue ("Relocated 7`h Avenge"}. Relocated 7`€' Avenue is legally described as follows: See Exhibit "A" attached hereto and made a part hereof; and '4VHEREAB, the City Engineer hereby issues this Certificate pursuant to Section 2.l of the Easement Agreement. ND~7V, THEREFORE, in accordance with the Easement Agreement and in consideration of the sum of Ten Dollars (~ 1 Q.aQ}, and other good artd valuable consideration the receipt whereof is hereby acknowledged, the City Engineer hereby states the fallowing: 1. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set Earth in their entirety. 2. The undersigned is an engineer for the City of Delray Beach and has reviewed and inspected the construction of Relocated 7`h Avenue. 3. The City Engineer certifies and confirms that the construction of Relocated 7`h Avenue has been substantially completed. 1 8547f19692.418 Currentli3544127~1 OPJ1312~9 a2:i6 pM 4. All terms not defined herein shall have the meanings set Earth in the Easement Agreement. [SIGNATt1RE PAGE FDI~LDWS.] 8547!19692-~16 Currenti'135+W127v1 OP113J2W9 62:16 PM IN WITNESS VSR~EREOP, the City Engineer hereby executes and delivers this Certificate as of the day and year first above written. '9VITNESSES: CITY ENGINEER: (Print Name} {Print Name} STATE OF C~I]NTY ~F Gity Engineer, City of Delray Heach The foregoing instrument was acknowledged before me this day of 2~ by ,the City Engineer far the City of Delray Beach. He1She is personally known to me or has produced (type of identification} as identification. Signature of Person Taking Acknowledgnent 854719692-0ifi CurrcnV13544127v1 ~2113~'20D902:i6 PM EXI-III3IT "A" to the Certificate ^f5ubstantial Caix~.pletivn Relaca[ed 7`h A~enee 8547!19692.415 CurrenU'1a544iP7v1 Q?J13120Q9D2:16 PM SKETCH ~~ DESCRIPTI~~ F~`Fd61 ~ `:4 „ 57-EE7" ~ BF ,~ w N.~ ~.ST S174FET _ N NQi4Th+ LINE BLC}CIC 110" ~ D ~~ ~~ ~~ ~, o~ ~~ ~m ~~ ~~ o~ ~~~ ~~ W ~a ~~^ ~~ ~~ ~~ °~ w~ ~~ U ^~ ~~ IV~RTN LINE P.B. Sa PAGE 129 X2118' ~ ~ IuF CoJ P.9. 5B, PAGE 129 ~` PDINT GF ' CQ~L~v~NCEI~fEN7 w ;~ vo ~° D v1 ,4 TLAI~TIG PLAZA ~PLA T B~DI~C 50, PAGE 7~9~ -ARC = z~a8a~ ~ C.A. = 35°335" RABIUS = 205 ~' C.~ = 5.18°16'3"W. IVUTE~ - -ARC = 1U5.28' Th,95 r5 NUT A 5[.IRI~EY C.A. •_ .36°335" RAD1i1S = I65 00' ~' = CFNTFRLrn,~ " hROR771 RIG~fT C.B. W 518°i6'43 W. of ~A r LINE ~ 7~ n~o,R77~+ Lrn~ CAS 5QfJ71-! LII~" g 50U7N UII~ PLAT BLO~GYC 71615 ASSZ~D 89°58'~FT'~: 7.0 BEAR N ~Q~YC 11S ~ a . BQUIC 5{3, PAGE 129 ~ ~ ~ IJORlN RrC~Y-rT ~" WA Y LfI4E P.B. =PLAT B4pFC C a . ~ W. C6~R ~ D.4 TE: JAN 23, 2~9 P.B. 50, PAGE T29 "~ ' "' ~ A ~y ~ ~r EAST ~ ! L~! Y ! IG !Y, rNc o aRrFrv, svirER ~ o79RIE CERTIF!'CATE OF AU7"HnRIZA77a1V ~LB3 A ~ " ~ ~• SCIRVEYnR AMID MAPPER IN RL'SP NSfE f`Hlll?I:F'• PAl11 A_ FNG! F aRaER rvo. ~-1~¢ ~TI-r ~avEn~' ICE-ALra~'Nr s~r~r~H o~ ~ESC~~~ri~n~ Exhvarr 'A" sr~ET z of z DESCRPTroN FvR rug ~rN A vENL~' ~~ ALrGru'aENr A 40 FCOT EASEMENT BEH4QG A PORTIG~'V QF A TLAN]7C PLAZA, ACCCRDJNG TD TI-~ PLAT TI-~RECF A5 RECORDED IN PLAT BQOIC 54, PAGE 129, P(IBLrC RECORDS Df' PALM BEACH COWi TY, FLORIDA AID TIYAT PORTION OF TPA 40 FOOT ROAD RIGHT OF WAY FDR N.F 7TH Al/EMJE L YING WEST ^F AND AD~IACENT TO SA1D ATLANTIC PLAZA A5 SHOWN ON ThE PLAT OF ThE TOWN DF LJNTGW (NOYY DELRAY BEACH} ACCG4~2L~+NG TO THE PLAT Th~'REDF X15 RECORDED !.V PLAT BQOK 1 PAGE 3, Pr.~LIC CORDS aF PALM BEACH CQU411TY, FLnRIDA, BEING ¢0 FEET WEST OF AND ADJAG`FNT TO THE FOLLQWING DESCRIBED LINE. CDMMEIUCING AT THE NDRT7'-FAST CDi4hER QF SAID PLAT OF ATLANTIC PLAZA; THENCE S89°SS'r5"W., ALONG THE NORTH LII~ QF SAID PLAT DF ATLANTIC PLAZA, A D15TANCF OF 22T.18 FEET TO T7-IE POINT OF BEGIM'V!NG; THENCE 51 °dDY]0°E., A DISTANCE OF 359.01 FF~'T TO A PQ1NT QF CC~4VA T2.dRF CDi'VCA lrE TO TFfE' NOR77-!WEST NA III'NG A CENTRAL ANGLE DF 35°3325" AIYD A RADIUS DF 2D5.Oa FEET; THENCE SDUTI-M~ESTEri'L Y ALONG THE ARC OF SAID CCA4YE, A DISTANCE DF 13080 FEET TD A POINT DF REVERSE CLRYAT[.A4E CONCAIrE TD T7-,E S(1UT7~45T HA I/ING A CENTRAL AAIGCE DF 36°3325" AID A F2AalU5 QF T65.Oa FEET. Th~IGE SOUTHWESTERLY, ALONG TI-~ ARC DF SAID CL44VE, A DISTANCE OF T05.28 FEF7; THENCE 5O°On'[JD'E, A D15TANCE DF 25.00 FEET TO A PAINT dl+l THE 50UTH LII~' OF SAID ATLANTIC PLAZA Ally A PGYNT ON THE NORTH LIhE' OF EAST ATLANTIC AI/ENL1E AS 1V4~W LAID QUT AND W USE AID 7I-~ TE"RbA'1~15 PAINT OF SAID EA5EA~7dF THE SIDE LINES QF SAID EASE-[~7VT TD 8E EXTEII~ED OR SHDRTENt'~7 TO -l~T A T ALL ANGLE POINTS ANCJ T4 TERh~PNATE AT TTY' NORTH Alm S4[ITN L11~5 OF SAID PLAT OF ATLANTIC PLAZR AII,® TI-E WESTEI?LY PRnJECTfgN (~ THE SQUTN LIVE DF SRID PLAT DF A TLANTIC PLAZA. PAUL ~. ENGLE SURVEYOR & MAPPER X5708 AATE.~ JAN. 23, 209 ORGER NO. 4~F-154 7TH AYE RE-AL.IC~-~IENT EXHIBIT "C" Traffic EnfQrcement_Ag~eement a4U811969~~b16 Currentl134896D9v14 Q211312~9~2:12 PM TRAFFIC ENFQRCEMENT AGREEMENT (Relocated 7`h Avenue} WHEREAS, the CITY DF D>LRAY BEACH, FLORIDA, {hereinafter referred to as "CITY"} through its Police Department, wishes to make its Community Policing efforts in Atlantic Plaaa, as effective as passible; and WHEREAS, ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership (hereinafter referred to as "owner"} is desirous of the enforcement of state and municipal traffic laws on its property; and WHEREAS, both the CITY and the Owner feel that such enforcement will make the Cvrrrmunity Policing effort a more positive influence an the community; and WHEREAS, F.S. 316.006{2},{b},{ I } allows far such enforcement on private roads pursuant to a written agreement approved by the City Commission which provides for reimbursement for actual Cd5t5 of traffic cantml and enforcement Iiability insurance and indemnification and other terms as are mutually agreeable by the parties. Now, therefore, for the mutual consideration, covenants, and rnatters set Forth herein, as of the date set Earth below, the parties hereto da hereby agree as follows: ] . The C1TY does hereby agree to enforce all state and municipal traf#"iic laws an Relocated 7`'' Avenue, which is described on Exhibit "1" attached hereto. 2. The enforcement of the traffic laws by the C1TY will occur 2417aurS a day, 7 days a week. 3. The Owner shall hereby pay to the CITY $ I AO per month to cover the actual casts of the traffic control and enforcement incurred by the CITY. 4. The speed limit shall be that set by Florida Statute 3I5.I83(2} and 3I6.I89(I) of 30 mph. 5. Signs posting the speed limit must comply with the Manual of Uniform Traffic Control I]evices used by the United States Department of Transportation ["Manual"}and F.S. 316.189(3). 6. Stop signs must conforrri to the iVlanual and specifications of the United States Deparhnent afTransportation as stated in Florida Statute 3I6.006{2}{b}{3}. 7. The Owner shall defend, indemnify and hold harmless the CIT1r, its agents, officers, officials and employees from any and al] claims, suits, causes of actions ar any claims whatsoever made arising front any and all acts by Owner of traffic control and traffic 8427119692-016 Current1i3506366w3 D2113l200943:12PN3 I enforcement that occur on Relocated 7`h Avenue fallowing the date of this Agreement. IVathing herein shall he deemed a waiver of the privileges and immunities granted to the CITY c€nder F.S. 7fi8.~8. This indemnification shall survive the cancellation of this Agreement. S. The Dwner shall provide liability insurance to cover the indemnification in the amount of $1,ODD,ODO.DD and name the CITY as an additional insured. 9. This Agreement shall tafce effect upon execution and approval by the Delray Beach City Commission and the execution of tl~e Qwner ar~d slaai] cantiz~.ue iii full force and effect for as long as the certain Relocated 7t" Avenue Easement betwccn City and owner, which is recorded in the Pulalic Records ^f Palm Beach County, Florida, is in effect. 1d. The Owner by signing below, affirms that it has read and understand this Agreement and that it has been given the opportunity to have its attorney of its choice review this Agreement. [SIGNATURE PAGES FDLLDWJ 8422119692.415 Currenfi~'1356630fiv3 0211312ap993:1PPM This Agreement is made and entered into on this day of . 20Q9. ATTEST: CITY OF DELRAY BEACH, FLORIDA City Clerk Sy: Rita Ellis, Mayor Approved as to form and legai sufficiency: Catherine M. Kazal, Asst. City Attorney 842?J19fi92-Q1B Currentf3~66306w3 02r7312~943:12PM OWNER ATLANTIC CENTER, LTD., a Florida limited par#.nership By: Atlantic Center, lnc., a Florida carparation, its general partner B}': Print Name: ~t5: 8422l1~692-016 Currer~VT356fi306rt'3 021131200903.12PNi DWNER ~I]R A'~'LAN'1'IC' PLAZA, ~,TD., a Florida limited partnership By: Delray Historic, Inc., n Florida corporation, its general partner By: Print Name: Its: 84221i9692•b18 Currentli35fifi346~3 fl?Ji3J240903:i2PU EXHIBIT ~s1" Rely~ated 7'h Avezzue 8422119692-Df6 ~urrenf1i3566306~ a211312~49a3:12 PNj W NORTH LWF BLOCff i16 ~~ a `~ 4 ~, o~ ~m ~~ a~ m NORTH RIGFIT QF WA Y Ulllr SOUTI-1 Lli'1IE- BLOCiC 1I6 nr.E: 1sT sTR~r NaRrH urv~ P.6~ 5Q PAGF 129 22z 18' 589°58'15"W. N.E. COY4IVFR v~ ~ ~ P.Q 5D, PAGF 129 a ~ PQ1N7' OF 2~ CQ-41MEMCEMENT Q W l,ij o ..°a ° Qi °~ "~ a I. [ri w q ~ ~ ATLANTIC PLAZA ~ ~PLA T BnCK 5D, PAGE ~~9~ Q~~ ~ ~~~ ~~ ~°~ ARC = 130.80' ~ C.A. = 3b'33'25" RAB+US = 2n5.OD' C.B. = 518°1S'~3"W. NO]~•S.• ARG = 1O52B' 7hg5 IS NOT A 5C1RlrEY GA. = 36°33'.25" RAD~[J5 = 165.00' ~` .- CE7VrERL1NE " C.B. = 518°16'43 W. ki ThL II'Q!?T'f-J L1NE OF S SpUTH LINE PLAT BLDCiC 71fi t5 A55[JtitED ~ BODfC 50, PAGE 129 TO BEAR N.89°58'~~'E IV~?TH RfGHT ~ ~ OF WAY Ulm P.B. =PLAT BODK O 5 W CORNER Q P.6~ S0, PAGE 129 Mi DA r~• ~.aN 23, coos 'T ATLANT?'C ~ °~ '~ C' _ _ c r , ATE ~F AIJTH~RI7ATIQN ~LB3: Y ~1 YULC SURVEYdR .41VD MAPPER !N RESP NSIB~ r!sae,vr_c. aeon n An~r_~ c• 8~ - ~~ N . s ~~ ~; ~' w ~' ~: ~; U~ ~~ ~~ 0' i { s yi 1 i • ............................... ......•-•------•----------•------•- •--------•------•--....................---••-•-•---------------.............-------•-----------------... 4 f SIC~"TC~1 ~F DES~RIPTl~111 IXM'BIT 'A" 5hEE'7' 2 DF 2 DE5CRIPTJCh+V FDR N.E. 7TH A UENUE RF ALIG1l91AENT: A 4p FDOT EASF~IENT BEING A PORTION OF ATLANTIC PLAZA, ACCQRDING TO THE PLAT THEREDF A5 RECQi4DED 1N PLAT 9ODIC 5O, PAGE 129, P[IBLIC RECORDS OF PALM BEACH COLWTY, FLORIDA AND THAT PDRTION DF THE 4D FOOT RDAD RIGHT DF WAY FDR N.E. 7TH A l~EI1~JE L PING WEST" OF AII~3 ADJACENT TU SAID ATLANTIC PLAZA AS SHDWN DAl TI-,L PLAT OF T!-~ TDWN DF LINTON {NOW DELRAY BEACH} ACCORDING TO Tf-JE PC.A T INEREDF AS RECORDED IN PLAT BOGK 1 PAGE ,~ PI.IBCJC f?EC0~4DS QF PALM BEACH COUn1TY, FLORIDA, BEING 40 FEET WEST QF AfID ADJACENT TD 77,E FDLL4WING flESCRreED uNE: Co+~1ENCING AT THE NDRTHEAST coRNER DF sA1D PLAT of A TLANnc PLAzA, rl-ONCE S89°58'15"3+t!, ALONG THE NORTH LINE OF SAID PLAT OF A lLANIIC PLAZA, A DISTANCE DF 22~ iB FEET TO 77YE PRINT G'F EEGNVNNG,• TNENGL' S d °d0 pp'E, A DISTANCE' OF 359, Dl FEET TO A PD1NT DF C[~4VA TI~94E CDNCA IIE TO THE NDRTHWEST HA V1NG A CENTRAL ANGLE OF 36°3325" AND A RADIUS OF 205,00 FEFT,• 77-ONCE SOCJTNWESTFRLY ALD'VG ThE ARC QF SAID C[A4VE, A DISTANCE OF 13Q80 FEET T'D A Pn1NT DF REVERSE Ci~iVATURE CONCAVE T4 Tl-~' SOUTHEAST HAl/1NG A CENTRAL ANGLE CF 36°3325" AND A RACXUS OF 165.DD FEET, THENCE SOUINWESTERLY, ALDNG THE ARC DF SAID CL~4VE, A DISTANCE OF 1x528 FEET; TI~NCE SO°DaaO'E, A D15TANCE DF 250Q FEET TD A PRINT ON THE SDUTH LINE DF SAID ATLANTIC PLAZA A!~ A PD1NT DN TF,E NORTH LINE OF ~'A5T ARANI7C AUFNUE A5 NOW LAID QUT AID IN USE AND THE' TERA~'I~JS' PDrYVT DF SAID EASEMENT. THE 5YDE L1h~S G'F SAIp EASEMENT TO BE IXTE1vDED OR SHORTENED 74 1v~T A T ALL ANGLE POINTS AND TD TERMINATE AT Th,~' NORTh' AND 50[ITH LINES OF SAJa PLAT QF" ATLANTIC PLAZA AND THE Wt~TfliL Y PROJECTION OF TFiE 50UTH LIrUE OF 5A1D PLAT DF A TLANTIC PLAZA PAUL D. ENGLE SURVEYpf? & MAPPER ~`5TQ8 AATF.• JAN 23, ,2p~9 ORDER No. 0~-16~ 7TH AVE RE ALrc~ Exhibit ~{F" Ta A reement for the Alaandonment and Rei.ncation of N.E. 7t~' Avenue Form Fir~a>3cial Guarantee Agreement 04D8l1969Z•016 Currentl13490934vi1 D?J13!?A091D:56RM FINANCIAL GUARANTEE & AGREEMENT {Relocated 7"' Avenue: Letter of Credit} THIS FINANCIAL GUARANTEE c5'r AGREEMENT (this "A~r_e_ernent") is entered into as ^f the February 17, 2449 {the "Effective Date"}, between the CITIT OF DELRA`f BEACI-I, a Florida municipal corporation {the "C~"} and ATLANTIC CENTER, LTD., a Florida Iimited partnership (caller#ively, the "Developer"}, for the purpose of assuring the City that the Developer sha[1 construct "Relocated 7`h Avenue" {as defined below} in accordance with the terms acid conditions of this Agreement. RECITALS: A. The Developer intends tg construct and develop amixed-use pmject {the "Project"} on that certain real property described as follows {the "Overall Parcel"}; See Exhibit "A" attached hereto and made a part hereof. S. Pursuant t4 a Resolution (the "Abandonment Resolution"), the City, at the Developer's request, slaall consider vacating and abandoning all right, title and interest the City holds in and to that certain roadway more particularly described as follavs~s ("Vacated 7'h Avenue"}: See Exhibit "B" attached hereto and made a part hereof C. As a result Qf the approval by the City of the Abandonment Resolution, the Developer has become the owner and holder of fee simple title of Vacated 7`~ Avenue and, pursuant to that certain proposed easement agreement to be recorded in the Public Records of palm Beach County, Florida {the "Vacated 7`h Avenue, A~;eement"}, the Developer has agreed to grant the City an exclusive roadway and utility easement over, upon, under and across Vacated 7`~' Avenue the "Vacated 7`h Avenue Eascmont"}. The proposed Vacated 7`i' Avenue Agreement farm is attached hereto as Exhibit "C". D. In connection with the development of the Project ar~d as set forth in the Relocated 7th Avenue E1.greement {defined below}, the Developer may construct a relocated 7`h Avenue, between N.E. l'` Street and East Atlantic Avenue {"Relocated 7`~' Avenue"}, including the installation ^f improvements located thereon, including, without limitation, streetlights; pedestrian and vehicular traffic signs and markings, sidewalks, planters, trees landscaping and other related appurtenances iai accordance with the City's approval which may be issued or withheld in the exercise of the City's gaverntnental or quasi govemunental functions. Relocated 7'~' Avenue is legally described as follows: See Exhibit "D" attached hereto and made a part hereof E. In connection with the construction of Relocated 7'h Avenue and as set forth in the Relocated 7th Avenue Agreement, the llevelaper als^ agreed, among other things, to grant to the 8547119692.Ot8 Gurrent1i3223D26v9 4?1i3r2~96~:24 PEA City: {i} a perpetual exclusive roadway easement far unobstnrcted and uniinpcdcd vehicular and pedestrian traffic far ingress and egress, and aver, upon, and across Relocated 7t'' Avenue, and far the City to exercise its governmental and quasi-governmental functions with respect to Relocated 7`'' Avenue; and {ii} a perpetual non-exclusive subsurface utility easement within a portion of Relocated 7t~' Avenue. The proposed "Relocated 7th Avenue Agreen~ent" is in the form attached hereto as Exhibit "E". P. The Vacated 7th Avenue Agreement provides, in part, that the Vacated 7''' Avenue Easement shall terminate and be of nv further force and effect upon retardation of the "Certificate of Substantial Cvinpletivn" {as defined in Section 2{f} of this Agreement}, evidencing that construction of Relocated 7th Avenue has been substantially cornplctcd in accordance with the "Specifications" {as defined in Section 2{a} of this Agreement}. G. This Agreement sets Earth the Developer's obligations regarding the construction of Relocated 7`h Avenue, subject to and in accordance with the terms and conditions hereinaftei- set Earth, and the Developer acknowledges that this Agreement is not a 5u175tltute far or satisfaction of the requirement impaled by the City Land Development Regulations which require the execution and delivery to City flf a Subdivision lmpravenaent Agreement and Guarantee for the improvements at' the Pmject which are not included in the construction of Relocated 7`h Avenue. NOW, THEREFORE, in consideration of the mutual covenants contained herein and ^ther good and valuable consideration, the receipt and sufficiency of which are hereby acltnowledged, the City and the Developer hereby agree as fvlla~vs: 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein as if set forth in full. 2. Cynstructi4n of Relocated 7`n Avenue. a. Generally. If the Developer elects to proceed with the Project, the Developer, at the Developer's sole cost and expense, shall construct Relocated 7'h Avenue in accordance with: {i} the specifications and criteria set forth an Exhibit "F" attached hereto and made a part hereof (the "Specifications"}; {ii} al] legal requirements imposed by applicable governmental authorities having jurisdiction over Relocated 7th Avenue {the "Governmental Authorities"); [iii} the certified site plan far the Project as it relates tc Relocated 7`'' Avenue, and {iv} the terms and conditions of Section 3{a} below. The construction of Relocated 7`h Avenue shall be performed by licensed contractors in a good, workmanlike, and non-negligent manner and in alien-free condition. b. Installation of Improvements. If the Developer elects to proceed with the Project, the Developer shall have the right to install and shall install at its solo cast and expense various improvements ^n Relocated 7`h Avenue, including, but not limited ta, streetlights, pedestrian and vehicular traffic signs and markings, sidewalks, planters, trees, landscaping and other related appurtenances as required by the site plan for the Project tivhich is approved and 2 854TJ19fi9Z•D1fi CurrenGt3223fl~~v9 O~It312~090Q24PM certified by the City, and the Specifications described below as they relate to Relocated 7tn Avenue. c. Changes ta_ the Specifications. If a change to the Specifications is necessary due to requirements imposed by the Governmental Authorities, tl~e City and the Deve€oper shall work together in goad faith to revise the Specifcatians in a manner which is acceptable to the City and the Developer. From time to time, the Developer may request that the City approve a change to the Specifications by submitting an analysis of the additional cost or savings ^f any proposed change {the "Developer Chance"}, The City, in the exercise of its governmental and quasi-governmental functions, may approve or witlxtaoId approval of such prOp05ed Changes. d. Permits. Prior to the commencement of construction of Relocated 7~' Avenue, the Developer shall apply fox al] necessar~ permits, licenses ar ^ther authorizatipns in connection with the construction of Relocated 7° Avenue as required by the Governmental Authorities {collectively, the "Permits"}. The City shall promptly execute any documents reasonably necessary far the Developer to obtain the Permits, provided such execution by City is required for it to comply with the exercise of its gavernrnenta€ ^r quasi- governmental tiinctions. e. Cooperation. The City shall cooperate with the Developer and use its best efforts in furtherance of and in connection with the perf'armance of ail obligations under this Agreement, including; without limitation, reviewing the progress of construction and all construction related materials in an expeditious manner and executing any and alI applications of the Developer reasonably necessary and related to the construction of Relocated 7`~ Avenue, provided the City is obligated to execute such applications in the exercise of its governmetrtal or quasi-governmental functions. f: Substantial Completion. Upon "substantial completion" of Relocated 7`~ Avenue in accordance with the terms and conditions of this Agreement, the engineer far the City (the "City Isn~aneer"} shall execute and deliver to the City and the Developer a Certificate of Substantial Completion, in the form attached hereto as Exhibit "G", which shall be recorded in the Public Retards of Palm Heath County, Florida (the "Certificate of Substantial Completion"}. In accordance with Section 10.1 of the Vacated 7'h Avenne Easement Agreement, fallowing recordation of the Certificate of Substantial Completion, the Vacated 7`h Easement shall terminate and such termination shall be filed of record. Within ninety [90} days following the City Engineer's notification to the Developer, to reach final camp€etion, the Developer shall frx]ally complete the construction of Relocated 7`h Avenue; provided that the City Engineer shall not deliver such notice until the Developer has reached substantial completi~an of Relocated 7rh Avenue. If the Developer fails to finally complete within said days, the City may complete Relocated 7`h Avenue to final completion and be reimbursed in accordance with Section 3(h} of this Agreement. The terms "substantial completion" and "substantiail tom fete" shall have the meanings set forth Qn Exhibit "H" attached hereto. 3 8547!]969-0]6 Currenf1i32230Q6v9 Q2l1312Q09 Q2:24 P~9 3. Construction ^f Relocated 7`Et Avenue. a. Failure to Substantiall Com fete Construction. If the Developer fails to substantially complete construction of Relocated 7`h Avenue no later than seven hundred and thirty {73Q} days fallvwitxg tlxe Nv Turning Back Deadline (as defined in the Declaration of Reserved Rights and Agreement Not to 1/ncumber N.E. 7'h Avenue between the City and Atlantic Center, Ltd. and CDR Atlantic Plaza, Ltd}, then the City is authorized to complete construction of Relocated 7th Avenue in accordance with the Specifications (the "City Construction"}, b. Cast and Ex ense of Construction. i. If' the City completes the City Construction in accordance ~vith the Specifications and certified site plan for the Project as it relates to Relocated 7th Avenue, then upon completion of the City Construction, the City shall be reimbursed for such by making a demand on the "Letter of Credit" (as dcfncd in Section 5}. ii, Following demand an the Letter of Credit, if the amount remaining under the Letter of Credit is insufficient to reimF~urse the City for the casts and expenses to complete the City Construction in accordance with the Specifications, then the City shall submit invoices to the Developer and the Developer shall pay to the City the additional funds necessary to pay the costs and expenses in connection with the completion of the City Construction in accordance with the Specif~catians. Payment shall be made by the Developer within ten (lt7} days after Gity submits an invoice(s) tv the Developer. ~#. Intentionally Omitted. 5. Letter of Credit. Prior to the date the Developer procures a permit from the City tv commence construction ^f Relocated 7`h Avenue, including any subsurface improvements, the Developer shall furnish the City with an irrevocable letter of credit in the amount of Four Hundred Five Thousand Dollars and NOIIDD ($445,OOa} {the "Letter of Credit"}, naming the City as the beneficiary, as security for the faithful performance anal observance l,y the Developer of the terms, prQVisions and conditions of this Agreement, The Letter of Credit shall be substantially in the farm of Exhibit "l" attached hereto. t?. Reduction of the Lcttcr of Credit. a. I.IC Reduction. In accordance with the table below, the Letter of Credit shalE be reduced (the "LIC Reduction"} at such tune as the Developer has sulrstantiatly completed the fallowing portions of Relocated 7th Avenue, as rc;asvnal~ly determined by the Developer and the City Engineer, and has delivered written notice of same to the City (the "LIC Reduction Notice"}: 4 954713969.016 Current1132230~fiv9 ~21]3'2dQ9d2:2A PA! Evesst Arr:ourrt of 12eduetiorx of~etter a~Credit , substantial completion of nne-half {l12} of Relocated 7`h Avenue as determined by the TataI Reduction of Letter of Credit: City's Engineer by an amount equal tv ninety percent (90°/oy of the dollar {$} cast tv substantially complete fifty percent {5[]%} of Relocated 7`~' Avenue as determined by the City Engineer final completion of Relocated 7th Avenue as determined by the Total Reduction of Letter of Credit: City's Engineer Complete reduction of the Letter of Credit shall only ^ccur upon delivery of a maintenance bond ar a satisfaetory equivalent to the City, as set forth in Section 2.13 of the Relocated 7th Avenue Ap•e~ement b. Cit A roval of LIC Reduction. 1~vllawing delivery 4f the L1C Reduction Notice to the City Engineer, the City Engineer shall have the right to review and approve the LIC Reduction within thirty (3Q} days from receipt of the LIC Reduction Notice in the City Engineer's sole, lout reasonable discretion. 7. Dther Matters Related tv the Letter of Credit. If upon presentment, the Letter of Credit is dishonored, then the Developer shall be liable to the City for the full amount which znay tae duo under the Letter of Credit for either the completion ^f construction of Aelacated 7`'' Avenue or tv rectify defects in materials and~or workmanship pursuant tQ the guarantee requirement of Land Develapnnent Regulation Section 2.4.10. In addition, if the City must take steps tv collect under the Letter of Credit from the Developer because of dishonor of the Letter of Credit, then the Developer shall pay all reasonable attorneys fees, collection cos#s, court costs and other expenses incurred by the City in its efforts to collect the amount due. Further, it is understood that in addition to the construction casts ^f Relocated 7th Avenue, the Letter of Gredit shah secure ail ^f the aforementioned costs which may 6e incurred by the City, $. Notice. Any notice, demand or request which may be permitted, required ar desired to be given in connection therewith shall be given in writing and directed to the City and the Developer as fallUws: As to City: Cify of Delray Beach 104 N.V[~. Ig` Avenue Delray Beach, Florida 33444 Attn: City Manager 8547119fi92-Oifi Current113223426v9 a211y20Q9 62:24 PN~ Facsimile: {5d1} (561] 278-4755 With a copy to: 200 N.W. 151 Avenue Delray Beach, Florida 33444 Attn; Cily Attvmey Facsimile: (Sd1 } 278-4755 As to Developer: Atlantic Center, Ltd. clo CDS International Holdings, loc. 3299 N.W. 2°° Avenue Baca Raton, Florida 33431 Attn, President Facsimile: (561 ] 27$-693 ~ With a copy ter: Preskauer Rase LLP 2255 Glades Road, Suite 34dW Boca Raton, FL 334-31 Attn: Stuart T. Kapp, Esq. Facsimile: {~61 } 241-7145 Notices shall be deemed properly delivered and received when and if either {i] personally delivered; or {ii} one {1] business day after deposits with United Parcel Service or other overnight courier; or (iii} the same day when sent by confirmed facsimile before 5:00 p.m. {Eastern time). ~. MI5Ce11ane4US. a. Governing Law. This Agreement shall be governed by and construed in acGQrdance with the laws of the State of Florida acid vei3ue shall be in Palm Beach County, Florida. h. Amendment. This Agreement may be amended or modified only by a written instrument signed by both parties or their respective successors and assigns. e. Entire Agreement. This Agrcc~ncnt sets Earth the entire agreement between the Developer and the City with respect to the terms and conditions set forth in this Agreement. This Agreement supersedes all prior and cvntemparaneous negotiations, understandings and agreements, written or oral, between the parties. d. 5ucccssors and Assi tgns. The covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigns afthe Developer and the City. e. Authority. The Developer and the City each warrant and represent to the other that the individuals signing this Agreement an behalf of the Developer and the City, 6 85A7119692.018 ~~rrenb'13P23026v9 02112009 02:24 PM respectively, have full power and authority to execute and deliver the Agi-eeinent and tv bind the respective parties hereto. f. Counternarts. This Agreement may be signed in two or mare counterparts, each of which constitutes the Agreement of the parties and each of which shall be treated as an original. g. No Retardation, This Agreement shall not be recorded, however, it may be referenced iii other agreerrrenis involving the Project which may be retarded. h. Headings. The headings of various Sections in this Agreement are for convenience only, and are not to be utilized in construing the content or meaning of the 5111}StantlVe prpVl5ian5 hereof. i. Severabilih•. The provisions hereof shall be deemed independent and severable, and the invalidity or partial invalidity ar enforceability of any one pmvisian shall not affect the validity of enforceability of any other provision hereof. j. Siri~ular. Whenever required by the Context, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not he construed. as if prepared by one of the parties, but rather according to its fair meaning as a whale, as if bath parties had prepared it. All Exhibits at#ached hereto are incorporated in this Agreement by reference thereto. k. Prevailing Party. In the event of litigation between the parties with respect to this Agreement, the each party shall bear its own costs and expenses incurred by the party in connection with such litigation, including, but not limited ta, reasonable attorneys' fees of counsel selected by the party. 1. Force Ma, jeuro. If any party to this Agreement is delayed, hindered in, ar prevented from the performance of any act required to be perfartned by that party by reason of acts ^f God, 5tr11Ce5, lookouts, unavailability of materials, failure of power, prohibitive governmental laws or regulations not imposed by the City, riots, insurrections, the act or failure to act of any ether party to this Agreement, adverse weather conditions preventing the performance of work as ccz-tificd to by an architect, war, act of terrorism, or other reason beyond that party's reasonable control and for which, in each of the aforesaid circumstances, the party is diligently and in goad faith and with reasonable dispatch seeking to abate and remove the circumstances causing the delay ar hindrance ar prevention from performance of the act required to be performed by that party, then the time for performance of the act shall be extended for a period equivalent to the period of the delay. Lack of adequate funds or financial inability to pe:rfarm or financial or economic losses or hardship resulting from performance shall not be deemed to be a cause beyond the reasonable central of such party. m. Waivers. Alo delay ar omission by any party in exercising any right or power accruing upon any default, non-compliance ar failure of performance of any of the provisions of this Agreement shall be constructed to be a waiver thereof. A waiver by any party 85d7l196J2.01fi Cu'tenV13223026v9 a~1131POQ9 fl224 PM of any of the obligations of the other party shall not be construed to be a wavier of any subsequent breach of such obligations or a waiver of any breach of any other terms, covenants or conditions oft this Agreement. n. Intemrefation. i. If any provision of this Agreement, or portion thereof, or the application thereof to any person or circumstances, shall, to any extent be held invalid, inoperative or ~znenforceal7le, fire remainder of this Agreement, or the application of such provision or portion thereof to any ether persons ar circumstances, shall eat be affected thereby; and each provision ^f this Agreement shall be valid and enforceable to the fullest extent permitted bylaw. ii. Nothing in this Agreeinel~t shall be construed to make the parties hereto partners or join# venturers or render any of said parties liable for the debts or obligations of the other. iii. The captions contained in this Agreement are far the purposes of convenience of reference only, and in no way define, limit ar described the scope or intent ^fthis Agreement ^r in any way affect this Agreement. All references in this Agreement to the terms "herein," "hereunder," and words ^f similar import shall referred to this Agreement, as distinguished from the section within which such term is located. The use of the word "shall" is not a synonyan for "may" IIl that "shall" describes Illa~rdatoiy actions, Ilot perrllISSive actions. All pronouns and any variations thereof shall be deemed to the masculine, feminine, neuter, singular yr plural as the identity of the person, entity or thing may require. o. No 'Third Part, Beneficiaries. Nothing in this Agreement shall confer upon any entity, other than the parties hereto and their respective successors and permitted assigns, any rights ar remedies under or by reason of this Agreement; provided, however, that a mortgagee shall loo a third party beneficiary hereunder to the extent such mortgagee is granted rights hereunder. p. Remedies. The terms and provisions of this Ageement are enforceable with all remedies at law and in equity, including, but not liirlited to, bringing an action for actual damages, an action for specific performance, an action for temporary restraining orders; preliminary ar permanent injunctions, declaratory judglnents ar other similar orders for relief; provided, however, that suspension ar termination of this Agreement an account of a breach shall not be an available remedy unless otherwise expressly provided for herein. The parties further agree that neither party shall have the right to recover any consequential, punitive, special, extraordinary or speculative damages as a result of the breach of this Agreement. The parties to this Agreement hereby acknowledge and stipulate the inadequacy of legal remedies and the irreparable harm that would be caused by a material breach of any obligation under this Agreement by a party to this Agreement. This Agreement may not ba suspended ^r terminated except by an instrument in writing signed by the City and the Owner and retarded in the real property records of Palm Seach County, Florida. 8 8541f19692•Qi8 Cu~rent113223U2~9 021132009 62:24 PN3 1Q. Gavenuaiental Fu~ictions: l~Totwithstanding anything to the contrary contained in this Agreement. a. Even though the City has certain contractual obligations ~mder this Agreement such obligations shall not relieve any person subject to this Agreement from complying with all applical~Ie governmental regulations, rules, laws, acid ordinances; b. To the extent approval nr permission must be obtained from the City, such approval or permission shall be granted ar denied in accordance with applicable governmental regulations, nrles, laws, and ordinances, and no person shall have any vested rights; c. The City has net waived its sovereign immunity and the tort limits of liability sct forth in Fla. Stat. 748.28 which are currently $ IOO,adt} per person and $2Qa,t]t7Q per accunrence are applicable; and d. Any action by City shall he without prejudice tn, and shall not constitute a limit an, impairment or waiver of, or otherwise affect Gity's right to exercise its discretion in connection with its governmental or quasi-gavemn-~ental functions. I1. Developer Nat obligated to Construct Relocated 7'r' Avenue. Notwithstanding anything in this Agreement to the contrary, the Developer is not obligated to construct Relocated 7 Avc such that the failure to so construct Relocated 7~' Avenue shall render the Developer in breach of this Agreement and liable for damages or subject to other legal or equitable remedies. If the Developer does oat construct 7~' Avenue in accordance with the tern-FS and provisions of this Agreement, the Ciry shall have the right to exercise the Ciry's Reconveyance light as set Earth in this Agreement yr the right tv cainplete Relocated 7'k' Avenue as provided in this Agreement if the Developer fails to substantially coznplcte Relocatscl 7`~ Avenue by the Substantial Completion Date. This provision shall not, in anyway, limit the City's rights andlor remedies under this Agreement ar any other agreement the Ciry has executed in connection with the Project. [EXECUTION PAGE TO FOLLaW.] 9 8547Ii9e92.Oi& Currenf113223(}26u9 02113J2~96P:24 PA9 IN WITNESS WHEREOF, the parties hereiU have entered into this Agreement as of the Effective Date. ATTEST City Clerk Approved as to legal form: City Attorney CITY CITY aF DELRA'i' BEACH S y: City Ma~~ager DEVELOPER A'1'LAN'I'1C L'EN"I'ER, LTD., a Florida limited partnership By: Atlantic Center, lnc., a Florida cnrporatinn, its general partner By: Print Name: Tts: 85471f9fi92-fl16 Currenl113223~2Bv9 x21131200902:24 PM Exhibit "A" Overall Farrel 85A7119592-01 B Cu-renV13223~fiv9 a2113r2IX19 Q2:24 PM I]E5 CRIPTION OF PROTECT S ITE: LOT 1, LESS THAT PORTION llEEDED TD THE STATE OF FLORIDA FOR ROAD RIGHT OF~VAY , A5 DESCRIBED IIV OFFICIAL RECORDS SOaK 511, PAGE Sld, LOTS 2 THROUGH 11, INCLUSIVE, LESS THE WEST 5.4 FEET THEREOF FQR ROAD RIGHT OF WAY, LOTS I2 THROUGH 19, INCLUSIVE, LOT 2D, LESS THA"I' PC)RTIDN FOR TIC RIGHT OF WAY FOR EAST ATLANTIC AVENUE AND U.S. HIGH1~'VAY NO. ] , I,C]"I:5 21 THROUGH 24, INCLUSIVE, LESS THE SOUTH 7.4 FEET THEREOF FOR ROAD RIGHT OF WAY, ALI_ THE EAST-WEST ALLEY LYING SOUTH flF AND ADJACENT TO SAID LOT 1 I, LESS THE WEST 5A FEET THEREOF FOR ROAD RIGI IT OF WAY, ALL OF THE NORTH-SOUTH ALLEY RIGHT QF WAY LYING EAST OF AND ADJACENT TO LOTS 1 THROUGH 11, INCLUSIVE AND LDT 22, LESS THE SOUTH 7.Q FEET THEREOF -FOR RDAI3 RIGHT flF WAY, ALL LYING IN BLOCK 1 ] 6, TOWN OF LINTDI~I (I~IQVJ DELRAY BEACH}, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOCK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. TOGETHER WITH: ALL DF THE PLAT OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF A5 RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FL,GRIDA. AND TOGETHER WITH: THAT PORTION OF THE EAST HALF OF THE 54 FOOT ROAD RIGHT OF WAY FOR N.E. 7~ AVENUE LYING WEST OF AND AI3.T,4CENT TO THE SAID PLAT OF ATLANTIC PLA~4, ANI] THAT PORTION OF THE WFST HALF OF THE 54 FOOT ROAD RIGHT OF WAY tiflR N.E. 7~ AVENUE LYING EAST OF AND ADJACENT TO SAID ELQCK 116, LESS THE SOUTH 7.0 FEET THEREOF. Exhibit "H" Vacated 7`f' Avenue 854711969-016 Currenf113~23p26'r9 02113l2~0902:24 Rh+I Z f1L89°5847'E .1 f'1 f1~'17 `--!NORTH LII~• P.Q 5O, PAGE r29 NORTH LINE eLaCx 11s Q ~~ ~W ~ ~ ~~ ~ ~ o ~ w w~~ ~~~ ~ _~ o°a ~ ° ~ ~~ ~~ ~~ ~~,~ ~ o~ m 5Q(/7N L1NE~ BLOGC rrs ~sCR~nanr.~ ~ ~~ ~~ ~~ ~ z ~ ~n ~~ ~a ag ~°m ~ ~~ ~ J 5 W. CORNER PB, 5Q PAGE 129 NORTH RIGHT OF WA Y L1NF E,4ST A TLANTIC ~ ~IENUE ALL THA]" PORTION OF THE 4Q FOOT ROAD RIGHT OF WAY FOR N.E. ~'TH AfIEIYL+E' 8O[AI~ED AS FOLLOWS' ON TF~" NORTH BY THE EASTERLY EXTENSJON CF THE NORTH LIME OF BLOCK J1~ TaWN OF" LINTON NOW DE'LRAY BEACH), ACCQRDYNG TD THE PLAT 7~REOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PCIE3LIC RECORDS OF PALM BEACH COLWTY, FLORIDA AA,O ON 7NE SOU77-16Y ThZ~ EASTFRL Y EXTENS70N OF n-E S4UTH L1NE' {7F' SAID 6L4Cff r1s ORDER fVQ 04-~-r64 PARCEL 8 ABANDONMENT N~~ THi'S IS NOT A SLI,RVEY ~ = CEIVTERLfNE r~ n~RrH un~ aF ~Lacfc r~s Is .~ss~EO To BEAf2 n18s°~4~'~: P.B. =PLAT BOOK PAUL ~_ ENGLE SURI~EYOR & MAPPER #5708 DA T~• JCN_ Y 9. 20x8 ~: o; R~ ~; ~_: U ~~ ~: ~; ~; c~ , i s Exhibit "C" Vacated 7t'` Avenue Agreement 854TI€9682-016 Currentl3322342fiv9 02113120U9D2:24 FNS This instrument was prepared by and should be returned ta: Brian Shutt, Esq. City Attorney's Office 200 N.`N. 1st Avenue Delray Beach, Florida 33444 EASEMENT AGREEMENT {Vacated 7` Avenue Easeanent} TAIS EASEMENT AGREEMENT (this "A cement"} made as of February 17, 2009 {the "Effective Date"}, among the CITY nF DELRAY BEACH., FLDR>1DA {the "Ci„t~+"}, with a mailing address of lOd N.W. lst Avenue, Delray Heach, Florida 33444, a Florida rreunicipal corporation in Palm Beach County, State of Florida, and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership and ATLANTIC CENTER, LTD., a Florida limited partnership {collectively, the "Owner'. RECITAL5: A. Pursuant to a Resolution [the "Abandonment Resolution"}; the G4ty has agreed to vacate and abandon all right, title and interest the City holds in and to that certain roadway mare particularly described as follows ("Vacated 7`h Avenue"}: See Exhibit "A" attached hereto and made a part hereof: The Abandanrnent Resolution has been recorded in the Public Rccards of Palm Beach County, Florida. B. As a resrtlt of the approval by the City of the Abandonment Resolution, each ^wner became the owner and holder of fee simple title of and to a portion of Vacated 7th Avenue and the Owner tpgether own fee simple title in and to the property constituting the entire Vacated 7th Avenue. C. The Qwner, with respect to the portion of the Vacated 7`~ Avenue, which such owner awns, desires to grant to the City: {i} a perpetual exclusive roadway easement far the unobstructed and unimpeded vehicular and pedestrian traffic far ingress and egress, and over, upon, and across Vacated 7`h Avenue, and far the City to exercise its governmental and quasi- gavemmental functions with respect to Vacated 7~' Avenue, ii;eluding without limitation, traffic regulation, and other uses and purposes as may be permitted by the City's Cade of 4rdinanecs or 17y TC:SUlut10n5 adopted by the City Commission with respect to public rights-of ways located l 777fi1]9692.0]6 Currenfl]3504359v6 0?113,+2a0912:3] PM within the City and for all purposes for which the City has all power under home rule authority, including but not limited to those expressed in Florida Statutes ar City ordinances, and this Agreement shall not in any way limit those powers including but not limited to access, ingress and ogress, maintenance, control, closing, ar other use of the Vacated 7th Avenue by members of the public, and City officers, agents, employees or contractors, and {ii} a perpetual non-exclusive subsurface utility easement aver and under Vacated 7~' Avenue, each for the uses and purposes and upon the tcrrns and conditions hcrcin contained. D. In connection with the City approving the Abandonment Resolution, and pursuant to the terms and conditions of that certain Financial Guarantee & Agreement, datrdd February 17, 2~~9, between the City and Atlantic Center, Ltd., a Florida limited partnership {"Atlantic Center"}, Atlantic Center may construct a relocated ~ih Avenue, between 1~I.E. ls` Street and East Atlantis Avenue {"Itelacated 7tn Avenue"}, including the installation of improvements located thereon, including, without limitation, streetlights, pedestrian and vehicular traffic signs and markings, sidewalks, planters, tress landscaping and other related appurtenances. Relocated 7~s Avenue is legally described as follows: See Exhibit "B" attached hereto and made a part hereof. E. This Agreement shall remain in full farce and effect until Relocated 7th Avenue is constructed as set forth hcrcin. NGW, THEREFORE, in consideration of the mutual covenants and promises contained heroin and other good and valuable consideration, the receipt, sufficiency and adequacy of which are I~ereby acknowledged, the City and the Owner agree as follows: 1. Recitals. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set Earth in their entirety. 2. Roadwa Easement. 2.1 Grant of Raadway Easement. Subject to the terms of Section 1 Q of this Agreement, the Gwner, as grantor, hereby grants and cnnveys to City, its successors and assigns and the general public {collectively hereinafter referred to as the "Roadway Grantees"), commencing upon the date of retarding of this Agreement and perpetually tlierea$ez-, an exclusive unimpeded and unobstructed easement far the use and 17enefZt of the Roadway Grantcss {"Roadwa Easement"} aver, upon, and across Vacated 7zE' Avenue far the following purposes: a. The nnnhstructed and unimpeded use for pedestrian and vehicular parking and traffic, including sidewalks, access, ingress and egress, as a through roadway, and far the proper installation, maintenance, rc°pair and replaceinezxt ^f a paved roadway and its subsurface CQrrk~anent5 ~ Z T7T6ft9692-016 C~rren0't3564359v6 p2l1~'ZUp972:3i PM la. For any public purpose permitted by the City's Code of Ordinances which relate to or concern the use or regulation of public rights of way located within the City; c. For any public purpose approved by the City Commission which the City Commission could approve with respect to public rights of way located within the City in the exercise of its governmental and quasi-governmental functions; and d. Far all purposes far which the City has alI power under Home Rule Authority, including 1?ut not limited to those expressed in Florida Stahites ar City ordinances, and this Agreement shall not in any way limit those powers including but not limited to access, ingress and egress, maintenance, control, closing, ar other use of the Vacated 7`]' Avenue by memUers of the public, and City of&cers, agents, employees or contractors, including, without limitation, closing Vacated 7t~' Avenue for street fairs, festivals or other events approved by the City within the exercise of its governmental yr quasi-governmental functions similar to any other City public right of way. e. Notwithstanding the foregoing, the grant of an exclusive perpetual easement, as set forth herein, shall not preclude the Owner frarn exercising its rights yr perfoa~rning its obligations hereunder with respect tv Vacated 7`~` Avenue, as specifically set forth in this Agreement. 2.2 MaintenanGe_ Except as other-~~ise provided in this Agreerr}.ent, the City hereby shall and does accept sale responsibility far the maintenance, repair and replacement ^f the Roadway Easement and all related improvements, including without limitation, sewers, drainage, laridscapuig, traffic control devices, street lights, median requirerraen#s, striping, sidewalks, paving, and curbing, in good condition and repair, and in compliance with all applicable governmental rules, laws, regulations and ordinances as they pertain to public rights of ways. 2.3 Alterations. The Owner shall not make any alterations to the roadway design, location or improvements thereon unless the City consents to same in the exercise of its govemrnental or quasi-governmental functions. 2.~ Rights of the_ Roadway Grantees. `l`he Roadway Grantees shall have the right to use the Roadway Easement in an unobstructed and unimpeded manner seven (7} days a week, twenty-four (24} Hours per day, except as otherwise authariced by the City in the exercise of its governmental or quasi-governmental functions. No fee ar other expense shall be charged by the Owner to the City or the Roadway Grantees for use of the Roadway Easenent. The City xnay install and maintain, at its expense, publio parking meters for parking on the Roadway Easement, and all revenues generated by the meters shall lie retained by the City. 2.5 Towing Vehicles. The Dwner shall not be allowed tv taw ar otherwise relocate vehicles located in the Roadway lasement; provided the Owner shall retain the right to tow vehicles located on private property in accordance with all applicable law. 3 TT7f~]9E92-U]B CurfenV13504359v6 ~2113r2UQ912:3] PM 2.6 Qbstruction. No obstruction of the free flow of pedestrian and vehicular traffic ar use of the roadway Easement for parking shall be permitted or caused by the owner. ~.7 Taxes. The Owner shall pay ar cause to be paid before delinquency all ad valorem real property taxes, general and special assessments and other governmental charges assessed against the fee parcel, subject to the Roadway Easement and improvements on the Roadway Easement and provide evidence of the sanrae #v the City. If those amounts are nv# timely paid by the owner, the City may {but shall not be obligated to} pay all or part of those amounts and the Qwner shall immediately reimburse the City those amounts upon demand, together with interest at the rate of eighteen percent {l $.0%) per annum an the amounts sa paid lay the City, from the date of advance until reimbursed. The City shall also have a lien against the fee simple interest subject to the Roadway Easement to secure repayment of taxes paid and the manner of filing a lien, its priority, and its enforcement shall be th.e same as set forth in Sectivr~ 2.4 of this Agreement. This Roadway Easement shall be an ingresslegress easement within the meaning of Florida Statutes Chapter 147.572. z.8 Intentionally Omitted. 2.9 The City's Remedies Upon a Default. In the event the Gwncr causes damage or destruction to the Roadway Easement nr any improvements thereon (the "Gwner Damage"), or as a result of the negligence or misuse of the retained sezvient estate rights of the Owner, then the owner, at its sole cost and expense shall, as expeditiously as possible after becoming aware of such damage, repair and restore Vacated 7th Avenue andlor the damaged utilities installed by the City in the L3tility Easement {defined below} to the condition the same were in immediately prior to such damage, except in the event such damage was caused by the City, its employees, agents, contractors, representatives or the Roadway Grantees, in which event the City shall be responsible for the costs of repair and restoration of the Roadway Easement and the improvements thereon if such damage shall create a dangerous condition, as determined by the City. Any restoration and repair work undertaken shall be performed in accordance with alI applicable laws by licensed contractors and in a goad, non negligent, and workmanlike and lien- free manner yr by City personnel, if performed toy the City. Should the Owner fail to promptly restore the Roadway Easement or any improvements located thereon, as a result of any Owner Damage, and as a consequence, the City's easement rlglltS created lay this Agreement become impaired or City is unable tv utilise the Roadway Easement as intended by this Agreement, in addition to any rennedy the City may have, City, after not less than thirty {30} days prier written notice to the Qwner to cure the default {except no notice shall be required in the event of an emergency), may, but it is oat alaligated ta, enter auto any portion of the Roadway Easement to perfvnn all necessary construction, repair, maintenance, replacement and operating work and may assess Owner for the reasonable cast of said work. Owner shall pay the cast of said work within thirty {30} days afer the City delivers to the Owner ("Payment Date"}: {i} a written statement setting forth the amount of the casts and expanses expended by the City; and (ii} back up infarmatian and detail evidence supporting such expenses, including without limitation paid invoices for all such work, if any. The Payment Date shall oat commence until such time as the City has delivered to the Owner all of the information set forth in items {i} and {ii} above. If floe foregoing amount is net paid on or before the Payment Date, then said amount shall bear interest 4 ~7~r~is6~z-ais Currenv135o4359v6 0~I13+2009 i2:3i PM at simple interest rate of eighteen percent {18.a%} per annum, from and after the Payment Date until paid and after the Payment Date the City shall have the right to record a lien against the fee simple interest subject to the l~aadway Easement. The lien shall be in a farm substantially in the farm of a Construction Lien prescribed under Florida Statutes CY~apter 713 and shall attach to the to the fee simple interest subject to the Roadway Easement and shall be effective upon recording of a notice thereof in the Public Records of Palrn Beach County, Florida. The lien rights granted herein will not affect the easements and other rights granted herein to the City, and such rights shall continue in full form and effect. Such lien may be foreclosed in the same manner as a rx~ortgage and in accordance with law. Reimbursement of such work costs and interest shall also be the obligation of Qwner at the time the costs are incurred, and may be collected by the City accordingly in an action against the Owner. 2.16 Binding Effect. The Roadway Eascmcnt is an cascnncnt appurtenant to the City's public right-af--ways and shall run in favor of the City, and shall be binding upon the Owner and its successors and assigns of Dwner holding the servient estate. 2.11 Contractors. Ali work performed by the Gwner in the Roadway Easement shall be per#'armed only by properly licensed contractors and in compliance with all applicable laws, rules and codes, Each contractor perfpnning wprk far the Owner shall be reasonably insured, without cost to the City and the City will be indemnified and held harmless for any Claims {defined below} that may arise out of the performance of the work. The foregoing insurance coverage requirements are not intended to require insurance coverage against any defects in the work, except to the extent that such defective work causes bodily injury ar personal property damage as a result of such defective work {but not including the repair or correction of airy defective work}. Far purposes of this Agreement, "Claim" shall mean any obligation, liability, claim {including, but not limited to, any claim for damage to property or injury t0 or death of any persons}, Iien or encumbrance,1055, damage, cast, or expense. 2.12 Vi~arranty. The Owner warrants that: {i} the Owner is seised of fee simple title to Vacated 7='' Avenue and has the right to convey the Roadway Easement to the City, free and clear of all liens and encumbrances other than those acceptable to the City; and {ii} the City shall have quiet enjoyment of the Roadway Easement, and the Gwner does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever, subject to any permitted exceptions permitted by the City. 2.13 Traffic Enfyrceanecrt Agreement. The Dwner agrees that the City shall have jurisdiction over the Roadway Easement to enforce all applicable traffic regulations and the Owner shall, simultaneously herewith, execute the Traffic Enforcement Agreement, the form ^f which is attached hereto as Exhibit "C". 3. []tility Easement. 3.1 Grant of Easement. Subject to the terms of Section l~, the Owner, as grantor, hereby grants and conveys to the City, its successors and assigns, commencing upon the Effective Date and continuing perpetually thereafter for the use and benefit ^f the City, a non- 5 777fiJ19692-016 Currenf113504359a6 OP1~3120D912:37 PM exclusive easement (the "Utility Easement"} under and below Vacated 7`'' Avenue, far the purpose of installing, maintaining, repairing, replacing and restoring normal municipal utilities such as pipes, cables, electrical wires, cal3le television wires, conduit, plumbing, andlor appurtenances relative to such facilities in the manner and location which same exists as the of Effective Date {collectively, the "lltilities"}. The terns Utilities as defined in this Agreement when referring to the City Utilities shall mean only City awned "Utilities" and such terra shall not include oar grant any easement rights to or in favor of any privately owned utilities either directly ar indirectly through any municipal franchise agreements with the City {i.e. utilities awned by Florida Fower 8c Light ar cable television companies, etc,} ~"Private Utilities"}. The right to grant any further easement rights in favor of Private Utilities is expressly reserved to the Dwner. 3.2 The Owner warrants that: {i} the Owner is seized of fee simple title to Vacated 7~` Avenue and has the right to convey the Utility Easement to the City, free and clear of all liens and encumbrances, other ttran those acceptable to the City; and {ii} the City shall have quiet enjoyment of the Utility Easement, and Owner does hereby fully warrant the title to said land and will defend the same against the lawful claims of ail persons whomsoever, subject to any penuitted exceptions permitted by the City. 4. Use of 'Vacated 7`~' Avenue by Owner. The Owner shall have the right, from time to time, to temporarily close portions of Vacated 7`~' Avenue to access and construct improvements in the Roadway Easement or the Utility Easement, and far other matters reasonably necessary to maintain, repair and replace the Roadway Easement, the Utility Easement, ar any components of ar iauprovenients within the foregoing, the adjacent properties in the Owner's reasonable discretion {the "Roadway Closure"}. In perfarcning any Roadway Closure, the Owner agrees to: {i} use good faith efforts to minimize the impact of such road closure on vehicular and pedestrian traffic, including, but not limited ta, consideration as to the date and time of the Roadway Closure and to comply with the City's requirements for temporary road closures on City public right of ways. Notwithstanding anything to the contrary in the foregoing, in no event shall there be Roadway Closure far a period in excess of one hundred and twenty {120) days, in aggregate, during the term of this Agreement. 5. S_ i is e. The City, at its sole cost and expense, znay install, maintain and operate signage on Vacated 7`'' Avenue, in such locations and in such capacities as the City may approve in the City's exercise of its governmental ar quasi-governmental functions. 6. Default and Re~nedies. b.l Default. The failure of the Qwner or the City to observe ar perform any of their respective obligations under this Agreement {the "Defaultin P '} within thirty {34} days after receipt of written notice from the other party specifying the nature of the failure (the "Non- Defaulting~art~'}, shall constitute a default and breach ^f this Agreement; provided, however, if such failure is of a nature that it Baru-gat reasonably be cEUerl within such thirty {30} day period, then the Defaulting Party shall not he in default so long as the Defaulting Party commences such cuxG promptly after receiving such written notice, and is diligently pursuing Such Gure to 7776119692.916 Gurrentl13544359u6 02113J2~Q9 12:31 PM completion. This Section 6.l is not applicable to any provision contained in Section 2.9 of this Agreement. 6.2 Remedies, The terms and provisions cif this Agreezz3ent az-e enforceable ~vith all remedies at law and in equity, including, but not limited ta, bringing an action for actual damages, an action for specific performance, an action for temporary restraining orders, preliminary or permanent injunctions, declaratory judgments ar other similar orders for relief; provided, however, that suspension or termination of this Agreement on account of a breach shall not be an available remedy unless otherrh~ise provided for herein. The parties fiirther agree that neither party shall have the right to recover any consequential, punitive, special, extraordinary ar speculative daanages as a result of the breach of this Agreement, except as specifically permitted in this Agreexzaent. The parties to this Agrccrncnt hereby acluiowledge and stipulate the inadequacy of legal remedies and the irreparable harm that would be caused by a axxaterial breach of any abliga#ion under this Agreement by a party to this Agreetx~ent. This Agreement may not be suspended or terminated except by an instrument in writing signed by the City and the owner and recorded in the real property records of Palm Beach County, Florida. 7. Notre. Any notice, demand vx request which may be permitted, required yr desired to he given in connection therewith shall be given in writing and directed to the City and the Dwner as follows: As tQ City: City of Delray Beach 1 ~~ N.W. l5t Avenue Delray Beaclx, Florida 33444 Attn: City Manager Facsimile: X561} 27$-4755 With a copy to: 2U0 N.W. lst Avenue Delray Beach, Florida 33444 Attn: City Attvx-ney Facsimile: X561 } 278-4755 As to Owner: Atlantic Center, Ltd. cla CDS International Holdings, lno. 3299 N.W. 2°d Avenge Baca Ratan, Florida 33431 Attn: President FaGSiinile: X561 } 278-6930 CDR Atlantic Plaza, Ltd. cla CDS International Holdings, Tnc. 3299 N.W. Z"a Avenue Boca Raton, Florida 33431 Attn: President Facsirr~ile: X561} 278-4930 T ~Tlfa~t9692-016 Cu~renY13544359v6 G2lia'200912;3i PM Natives shall be deemed properly delivered and received when and if either (i} personally delivered; or (ii} one (1} business day a$er deposits with United Parcel Service or other overnight cauriez-; or (iii} the same day when sent b}~ confirmed. facsimile before 5:Q0 p.m. (Eastern time). $. General Provisions, 8.1 Amendment. This Agreement may be amended ar modified only by a written instrument signed by both parties or their respective successors and assigns, which instrument must be recorded in the Public Records of Palm Beach County, Florida. 8.2 Entire Agreement. This Agreement sets faith the entire agreement between the Uwner and the City with respect to the easement granted in this Agreement. This Agreement supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parties. $.3 Governing Law. This Agreement will be interpreted and enforced in accordance with Florida law. S.4 Successors and Assigns. The covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigns ofthe owner and the City. 8.5 Authority to Executc; Rcprescntations. The Qwner mod the Gity each tivarrmnt and represent to the other that the individuals signing this Agreement fln behalf of the Owner and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto_ 8.5 Counteaparts. This Agrccmcnt mmy be signed in two ar more counterparts, each of which constitutes the Agreement of the parties and each of which shall be treated as an original. 8.7 Nan-Public. The dwner and the City specifically aclrnowledge and agree that this Agreement and the rights and obligations granted hereunder ai-e not intended to be, and shall not constitute in any respect ar manner, a public dedication of any right or interest of the Owner in Vacated 7`s Avenue whatsoever, but rather are private rights for the sole use and benefst a£the parties hereto, their respective successors and assigns. 8.8 Breach Shall Not Permit Termination. It is expressly agreed that no breach of this Agreement shall entitle either the Owner or the City to terminate this Agreement, lrut such limitatioir shall Riot affect in arty manner any other rights ar remedies which either the Owner or the City may have hereunder by mason of any breach of this Agreement. 8.9 Severability. If any term or provision of this Agreement ar application thereof to any person ar circumstance shall, to any extent, be found by a cauri of competent 8 TIT6J39692-016 CurrenU135[}~359v6 07113J20Q912:31 PSI jurisdiction to be invalid yr unenforceable, the remainder of this Agreemenrt, yr the application of such term ar provision to persons or circumstances ^ther than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term ar provision of this Agreement shall be valid and enforceable to the fullest extent permitted bylaw. 8- I O Nan-Waiver. Nv waiver of, or failure to assert, any claim, right, benefit or remedy of any parry pursuant to this Agreement shall operate as a waiver of any other claim, righ# or benefit. The failure of any party at any time ar times to require performance of any provision hereof shall in na manner affect such party's right at a later time to require such performance or to enfarce the same fully. No waiver or mvdiflcativn of the terms hereof shall be valid unless in writing and signed by the party to be charged, and then only to the extent thcrcin set forth. 8.11 Headin>~s. The headings of the articles of this Agreement are far guidance and convenience of reference only and shall not limit or otherwise affect ally of the terms or provisions of this Agrcczncnt, 8.12 Covenant__Running with the Land. This Agreement and the easements granted herein, and all of the rights, duties and obligations of the parties with respect thereto, shall be construed as covenants running with the land, binding and inuring to the benefit of the City yr the 4wncr, aS tha sra5c may bC, tllCli rCSpCCt1VC SuccC5Sar3, a531gns andlor grantsCS. 8.13 Farce Maieure. If any party to this Agreement is delayed, hindered in, ar prevented from the performance of any act required to be performed by that party by reason of acts of Gad, 5tr11£es, lockouts, unavailability of materials, failure of power, prohibitive governmental laws or regulations not imposed by the City, riots, insurrections, the act or failure to act of any other party to this Agreement, adverse weather oanditions preventing the pel-tarmance of work as certitZed to by an architect, war, act of telrarism, or other reason beyond that party's reasonable control and for which, in each of the aforesaid circumstances, the party is diligently and in good faith and with reasonable dispatch seeking to abate and remove the circumstances causing the delay or hindrance ar prevention from performance of the act requiredi tp be performed by that party, then the time for pcrfarrnancc of the act shall be extended for a period equivalent to the period of the delay. Lack of adequate funds or financial inability to perform ar financial ar economic losses ar hardship resulting from performance shall not be deemed to be a cause beyond the reasonable control of such party. $.I4 ]cinder by Martr~a~ees. By its joinder in this Agreement, all mortgages holding a lien against the Roadway Easement, if any, have consented and da hereby consent tv this Agreement, and the liens and security interests held by such lienhalders are hereby made subject and subordinate to the terms of this Agreement without the necessity of the execution of any other document. Any future deeds of trust or mortgages shall automatically, without the necessity of any additional instrument, be subject and subordinate to the terms and conditions of this Agreement and shall be bound by the terms of this Agreement. Any party foreclosing any such deed of trust yr rnvrtgage, yr acquiring title by deed in lieu of foreclosure or trustees sale shall acquire title subject to all the terms and provisions of this Agreement. 9 7776119692-016 Gurrenl113594359~~b 82113I~OQ9 i~:31 PM $.15 Right fo Pledfie. The Owner shall have the right tc mortgage, pledge flr collaterally assign its interest in this Agreement and to assign or pledge the same as security for any debt and ail rights acquired by such secured parry under any such security. From and after the date any deed of trust beneficiary, mortgagee ar secured party comes into possession of the Owner's rights under this Agreement, such deed of trust beneficiary, mortgagee or secured party shall possess all rights of the Owncr undcr this Agreement and all obligations of the flwncr shall thereafter be the obligation of such deed of trust beneficiary, mortgagee or secured party. Irc nv event shall such transfer of possession cause a release, satisfaction, or waiver of any obligation of Owner which occurs prior to the date ^f such transfer, including without limitation, City's right under this Agreement to record and foreclose a lien. 8.15 No Merger. It is expressly understand and agreed that the parties da not intend that there be, and there shall in na event be, a merger of the dominant and servient tenements in Vacated 7`'' Avenue by virtue of the present or future ownership of any portion of said tenements being vested in the same person(s) or entity, but instead intend that the easement servitudes shall not be extinguished thereby and that said dominant and servient tenements be kept separate. 8.17 Joint Prepaxatian. The preparation of this Agreement has been a joint effort of the City and the Owner and the resulting document shall not, solely as a matter of judicial construction, be construed mare severely against one party than the other_ 8.18 Attvrney's_Fees. In connection with any litigation ar dispute arising nut of this Agrccmcnt, cach party shall bear its own attorneys' fees and casts. 8.19 Further Assurances. The parties agree to execute all tiiture instruments and take all further action that may be reasonably required by any party to fully effectuate the terms and provisions of this Agreement and the transactions contemplated herein. 8.2~ Venue. Any dispute relating to this Agrccmcnt shall only be filed in a court of competent jurisdiction in Palm Beach County, l~ lorida, and each of the parties to this Agreement submits itself to the jurisdiction of such court. 8.21 Hazardous Substances. Neither the Owner nor the City shall cause or permit at any time during the terms of this Agreement, any hazardous substances to be disposed of or otherwise released on, to or under the Roadway Easement. Neither the Owner nor the City shall engage in opcratians aver, upon or under the Roadway Easerrrent that involve the generation, manufacture, refining, transportation, treatment, handling ar disposal of "Hazardous Substances" or "hazardous wastes" as such terms are defined under any environmental laws. The Owner aclcnawledges however, that the Roadway Easement will be utilized for parking and driving vehicles which may leak oil, gasoline, yr other fluids onto the ground, and the City shall not be responsible for removal of such waste or have any liability for it under this Agreement. 8.22 Intentionally Omitted• 10 77~6J19692.016 Curren11935~9vG 0711~+20D912:3i PM 8.23 Na Third Party Beneficiaries. No private parties other than the City shall have the right to bring a cause of action against the Uwner under this Agreement. 9 this Agreenrrent: a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agreement from complying with all applicable govenunental regulations, rules, laws, and ordinances; b. To the extent approval ar permission must be alatained from the Gity, such approval or pennissian shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and nn person shall have any vested rights; ~. The City has not waived its sovereign inuxxunity and the tart limits of liability set Earth in Fla. Stat. 748.28 which are currently $ l Ot7,00D per person and $244,4fl4 per aocurrence are applicable; and d. Any action by City shall be ~vithout prejudice to, and shall oat constitute a limit an, impairment or waiver of, or otherwise afFeGt City's right to exercise its discretion in connection with its governmental or quasi-governmental functions. 14. Termination. 14.1 This Agreement shall terminate at such time as the engineer from the City the "City Engineer") records in the Public lZecards of Palm Beach County, Florida the Certificate of Substantial Completion (the "Certificate of Substantial Camt~letian"} in the fpnn attached hereto as Exhibit "D". 14.E Intentionally Uznitted. 14.3 Upon recordation of the Certificate of Substantial Completion, this Agreement shall be terminated of record and shall be of no further farce and effect and all rig~tts, obligations and easements granted hereunder shall be of no further force and effect. If the Owner requests, the City shall execute any further docurnents evidencing the termination of this Agreement to be recorded in the Public Records of Palm Beach County, 1~lorida. Notwithstanding anything to the contrary contained in this Section, the tennination of this Agreement shall not constitute the release or satisfaction of any Glaim that arose prior to termination, and Such G1alzn Shall 51.1rY1VC tcrrr-Ination of tl]i5 AgxGGlnGnt. 14.4 The City and the Dwner shall record a certificate in the Public Records of Palm Beach County, Florida, at such time as the termination rights pursuant to Sections 14.I above is terminated and thereafter, this Agreement shall be afno feather force and effect. ll Ga~ernrrtental Functions: Notwithstanding anything to the contrary contained in 7776J19692-Ui5 Curr~V13544359v6 OP113(2d09 i2:3i PM [EXECUTION PAGES TG FOLLOW] 12 T77fiJ19fi92-ois Curr~nU'ia5a435Ev8 aTJ13r'~04912:31 PM IV W1rI'NE55 WHEREOF, the parties to this Agreement set their hands and seals the day and year first above written. ATTEST: CITY CF DELRAY SEACI3, FLDRIDA By: City Clcrk Approved as to Forfn; By: City Attorney STATE ~F COUNTY 4F By: Name: ItS: The foregoing instrument was acknowledged before me this day of 209, by the of the CITY DF DELR.A,Y BEACH, FLORIDA. He1She is personally known to me or has produced (type of identification} as identification. Signature of Person Taking Acknowledgment 7776J19692.OT6 CurrenYT3504359rfi a7113P20Q912:31 PM Vi~ITNESSES: UV4~NER CDR ATLANTIC PLATA, LTD., a Florida limited partne7E•ship Print Naane; By: Dclray Historic, Inc., a Florida corporation, its general partner Print Naane: By: Print Name: Its: STATE ~F CQUNTY ~F The foregoing instrument was acknowledgcd before me this day of , 2~4 , by ,the of Delray Historic, Inc., a Florida corporation, the general partner of CDR ATLANTIC PLAZA, LTD., a Florida limited partnership. He1She is personally known to me ar has produced (type of identification} as identification. Signature of Person Taking Acknowledgrnent 77T61]9692-Ot6 CuTenU13504359v6 OP113J2DQ912:31 PM awNER ATLANTIC CENTER, LTD., a Florida limited partnership Print Name: By: Atlantic Center, Inc., a Florida corporation, its general partner Print Name: STATE 4F CtiUNTY OF By: Print Marne: ItS: The foregoing instrument was acknowledged before zne this day of , 2~0_____, by ,the of Atlantic Center, lnc., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership. He1She is personally known to me ar has produced {type of identification} as iClentiiication. Signature of Person Taking Acknvwledgm.ent 771&'7°5~-015 Currenf17354435W6 Q2113~'2GQ912:3] PM Exhibit "A" Legal Descx-iptian of Vacated 7~h Avenue ~76~19692-016 Currentl135fl4359u6 Q?J1312~9 x3:22 P!~ SffETCH QF DESCRIPTION ExhrB,+T "A" SF~EET 1 OF 1 ~ N.~ ~sr sr~~r U a `~ J~f89°58'47'E ~a f~~]' NOf~]~H LIIVE~ I [ `IVCJRTH LINE BLDCx rrs I P.Q 5a PAGE 12g _~ ~ V i'`-] ~~ w~~ ~ Q~ w w 0 ~ { ~ ~ ~ ~o ~ o ~~~ ~~~ ~o ~ ~ ~~ it ~ ~ f` m ~~ ~ ~ ~~ ~~ ~~ ~ ~ Cp ~-- SOUTH LINE SIN. CORIr~'R BLDCfC r16 P.B. 5D, PAGE 1~9 NORTH ~rc~~r OF WA Y LlIIIF n_r~n~ FRS r A rLANr1C A ~~1~lCIE oESC~Prion~~ ALL mA T POFTItJN QF T1-E 4o FOQ r RoAO ~rcr-rr of wA r ~0-4 N.E. 7TH AVFNL~ BOLd'+1DED AS FOL,LDYVS• ON THE NORTH BY ~ EASTERL Y EXTEN51pN pF TF,~ ND14TH LIKE OF BLOCK 11F TQWN OF LIIVTQN {NQW DrLRAY EEACH) ACCG'RDING TD THE PLAT ThEREOF A5 RECO,RDEIJ IN PLATT"" 8pplf 7 PAGE 3, PCIIX,IC RECORDS' DF PALM BEACH C~fJNTY, FLQRI~A AND pN THE 5O[!TH BY THE EASTERLY EXTENSION OF T7-IF SpUTN LINE pF SANJ BL DCiC 11fi IVQTES• TFH51S N~37' A 51JRVEY =CENTERLINE THE 14Qi4TH LINE OF BLOClf 1T6 15 ASS[1MFD 7'D DEAR N.$9°58'47'E P.B. =PLAT ~K PAUL D. ENGLE 5CIRVEYOR & MAPPEP ~5~D8 ~' N; ~i ti ~' ~~ ~' a? ~: ~; U u~ ~, o; Exhibit csg» Legal Description of ~telacated T`~` Avenue 1776119092.41& Cuff0Cttl135043i9u8 07113J20Q912:31 Pty W 0 Sri NG~4TH LINE BL.OCif 116 N.F 1ST STREET _ !,~ 0 ~~ J~ ~~ ~, o~ ~~ ~~ U~ ~~ NORTH R~GNT pF WAY LI,~IE 50UIH LINE- BLCG'!C ]f6 .~ ~w~ a ~~ ~~4 ~~~ ~~~ ~~ w°~ ~~ ~o ~~ W ~~ U~ ^~ ~~ g NpRTH LINE P.g, 5Q, PAGE 729 22T. f8' 589°58'15"W N.E. CORNER J P.B. 50, PAGE 129 P41NT pF COM~LfENCENENr v~~ ~~ ~i A TCAIVTIC PLAZA (PLAT BGGK 50, PAGE i29~ r ~ ARC = 130.8Q' J C.~4. = 36°33'25" RAflI2JS = 2Q5.QQ' C.B. = 518°1fi'~3"YV. n-aTES- ~,ar~c = ra,~aa' T~s Is Ivor A suRU~Y C.A. = 36°33'25" RAD1ClS = ffi5. aQ' ~ = CEN7Ff2L1-VE C.E3 = 518°f6'43"W. .(.~ THE NdRF7-I LINE OF 50UTH LINE PLAT ~OCIf 116 I5 A5S[JAAE1] ° " BOpIC 5D, PAGE 129 NOf2TN RIGFfI- TQ BEAF? N.89 E 58'47 ~ q pF WR Y LINE P.B. =PLAT BOQK ' `~ [n S. W. CORNER PB. 5Q, PAGE 1.29 ~ DA rF.• JAN. 23, 2~ds sT A rLA1VTIG ~ cER IFI'cATE'T of AU H Q ~~~E ~' ~ 52JRVE'YaR AND MAPPE r--rerar!F- resin n ~n~r_~ 8 ~: n, ~~ ~~ ~~ ~; ~~ z; ,; ~, x~ ~; - ~~ 3 ~~ ~; J~ 1 4 U. w' u: a~ SIfETCH ~P DFS~R~P TI ~1V EXHIBIT `A" SHEET 2 DF Z DESCRIPTION FQR N.E. 7TH AVFNI.~' RE ALIGI~kL1EN7' A ~Fp FOOT EASEMENT BEING A Pn,41-IDN OF ATLANTIC PLAZA, ACCORDING TD THE PLAT THEREOF A5 RECQl4DFD 1N PLAT 9OCiC 5Q, PAGE 129, PL~LlC RECOI7DS DF PALM BEACH COL~9'VT3; FLORIDA AND TNA7' PORTION OF T!-~ 4D FOOT ROAD RIGHT {~' WAY FDR NE. 7TH A VENf~E L PING WEST DF AND ADJACENT TD SAID ATLANTIC PLAZA AS SNQWIJ D'V THE PLAT OF ThE TOWN OF LINTDN (IJQW DE"LRAY BEACH} ACCORDING TD THE PLAT THEREQF' A5 RECORDED 1N PLAT BDDIC T PAGE 3, P[IBL1C RECORDS OF PALM BEACH CDU4~ITY, FLORIDA, BE7NG 4Q FEET WEST DF A11~ ADJACENT TO TIC FCaLL0W1NG DE5CR18ED LIII~ CDMMENGYNG AT THE NORTHEAST CORNER DF SAID PLA 7' OF ATLANTIC PLA2'A; THENCE 589°58'15"!4!, ALONG TfdE IVDRTH LUTE DF SAID PLAT OF ATLANTIC PLAZA, A D15TANCE OF .~Z118 FEET TD THE PQlIVT OF" BEGI114'19'IYG; THENCE SD°44'p0'E:, A DISTANCE QF 359Dr FFET TO A PD1NT DF C[~4VAT[~4E CDNCA VE TD THr NORTHWEST HA l/'NG A CEMRAL ANGLE OF 3S°33'5" AND A RADIUS DF 2Q5, ~ ~T; THENCE SOUTHWESTERL Y ALONG THE ARC OF SAID CL94VE, A D15rANCE ^F T30 8D FEET TD A PDINr DF REVEI-'SE CL94VA TCh4E CDNCA 4~E TC] THE 5IXITHEAST HAVING A CENTRAL ANGLE DF 35°33'25" AND A RADIUS CIF ~S.pp FEES THENCE SIXJTLIWESTL7?LY, ALONG TIC ARC DF SAII] C[~4VL; A DISTANCE OF" 1D528 FEET,- TNENCE S.p°Dp'OQ'E, A DISTANCE QF 25 pp FEET TD A POINT ON TF-c~ 5d[Jl-H LINE OF SAID ATLAM7C PLAZA AND A POINT OIV THE NGb47h+ LII~' ~ EAST ATLANTIC AVENUE A5 NDW LAID OtJT AND !N USE AND ThE TERII~'NUS POINT OF SAID EASEMENT. THE SIDc L1NF5 OF SAID EASEMENT TD BE EXTE-IGDED DR SHORTENED TD MEET AT ALL AA'GLE POINTS AND TD TERMINATE AT THE NDRTN AND SDtl7'H LIA~ES OF SAID PLAT DF ATLANTIC PLAZA AI11~ THE WESTERL Y PROJECTION DF THE SDIJTH LINE dF SAI!] PLAT DF A TI.ANTIC PLAZA PAUL D. ENGLE SURVEYQR & MAPPER x'5708 pA TE• JAN. 23, 20Q9 oRO~ No. o4-rs~ ~rx A 4~E 1~ ALIGn~NT Exhibit °SC" Traffic Enforcement Agreement 777F~i9692-p16 GUrrenf17a504355v5 021f31204912:37 PM TRAFFIC ENFORCEMENT AGREEl1~IENT {Vacated 7''' Avenue} WHEREAS, the CITY DF DELR.A.Y BEACH, FLORIDA, {hereinafter referred to as "CITY"} through its Police Department, wishes to make its Community T'alicing efforts in Atlantic Plaza, as effective as possible; and WHEREAS, ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD,, a Florida limited partnership, {hereinafter collectively referred to as "gwner"} is desirous of the enforcement of state and municipal traffic laws an ifs property; and WHEREAS, both the CITY and the Owner feel that such enforcement will make the Community Policing effort a snare positive influence an the community; and WHEREAS, F.S. 315.006(2},(b},(] } allows for such enforcement on private roads pursuant to a written agreement approved by the City Gammission which provides far reiml}ursement far actual costs of traffic control and enforcement liability insurance and indemnification and other terms as are mlztually agreeable by the parties. Now, therefore, far the mutual consideration, covenants, and matters set forth herein, as of the date sat forth below, the parties hereto do hereby agree as follows: 1. The CITY does hereby agree to enforce alI state and municipal traffic laws on Vacated 7'h Avenue, which is described on Exhibit "1"attached hereto. 2. The enforcement of the traffic lar~~s by the CITY will occur 24 hours a day, 7 days a week. 3. The Owner shall hereby pay to the CITY ~ 1.00 per month to cover the actual casts of the traffc central and enforcement incurred by the CITY. 4. The speed limit shall be that set by Florida Statute 316.183{2) and 315,189(1 } of 3d mph. 5. Signs posting the speed limit must comply with the Manual of Uniform Traffic Control Devices used by the Uni#ed States I]epartment of Transportation ("Manual") and F.S. 316.189{3). 5. Stop signs must conform to the Manual and specifications of the United States Department of Transpartatian as stated in Florida Statute 316.005('?){b}(3}. 7. The Owner shall defend, indemnify and hold harmless the L'1`I'Y, its agents, officers, officials and employees from any and all claims, suits, ceases of actions or any claims whatsoever made arising from any and alI acts by Owner ^f traffic cantr^1 a~~d traffic 8k22119698•D#8 Current113571711v2 021#3l200962:3SP~1 enforcement that occur on Vacated 7`~ Avenue following the date of this Agrccment Nothing herein shall be deemed a waiver of the privileges and immunities granted to the CITY under F,S. 7b8.~8. This indell~nitication shall survive the canoeltatian ^f this Agreement. 8. Tile Owner shall provide lial~iIity insuraxice to cover the inderniiificatioii in the amount of $1,000,000.~b and name the CITY as an additional insured. 9. 'I'bis Agreement shall take effect upon execution and approval by the Delray Beach City Commission and the execution of the Owner and shall continue in full force and effect for as long as the certain Vacated 7`~' Avenue Easerrreni between City and Gwner, which is recorded in the Public Records of Palm $each County, Florida, is in effect. lU. The Uwner by signing 17elaw, affirms that it has read and understand this Agreement and that it has been given the opportunity to have its attorney of its choice review this Agi~een~ent. [SIGNATURE PAGES FGLLOWj 84P?119692•D15 CurrenU'13571711vE pFJ13J2aQ9 flP,3fi PM 's i 1 This Agreement is made and entered into on this day of , 209. ATTEST: CITY dF DELRAY BEACH, FLQRIDA City Clerk By: Rztd Ellis, Mayor Approved as to form and legal sufficiency: Catherine M. Kozol, A55t. City Attorney 842?11169~-016 GurrenUi35717iiv2 02'1312DQ9 D2:36 PM DWNER ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its gcneral partner By: Print Alame: Its: sari ~s~-o1 s c~~~u~ ~~z7z s~ aa~ ~~ na:ss R~ CDR ATLANTIC FLAZA, LTD., a I •lorida limited partnership By: Delray Historic, Inc., a Florida ~arpvratioii, its General Partner By: Print I~Iame: Its: 892~J]9692-aifi Current11357i7t1~ Q2113J2Q0962:36Ph+f EXHIBIT "1" Vacated 7t~' Avenue 8422139662-018 ~urrenL'1357171 iv2 02J1312~49 x2:36 PAS! S~CFTCH ~P DESCRIP TI4N ExwalT ';a" s~EErlof~ b I~E_. 1ST S~RF~'T ~ Q Q ~ pp ry IV,8~pnn50r~~~E ~LJ. a~J NORTH L1NE~ I ~ `NORTH LINE BL DCI[ 118 P.B. 5D, PAGE 1~9 ~~ ~ ~ ~ ~ ~~ ~ ~ ~~ -~ ~~ ~ W ~3~ Ww ~ ~Q to a7 ~ ~' ~o~ `~ ~ o~ `~ ~ ~~ ~ ~ g ~~ o~ m ~- Sn[1TH LINE 5 W. GD>~NER BLOCK 116 P.B. 50, PAGE 129 NORTH RIGHT QF WAY LINE o r~~~o~p~ o ~ EAST A TLANTlC ~ ,4 lIENLJE oESCRIPr~anr. ALL THA T PDR7'IDN OF TI-IE ~D FDDT RDA[] RIGHT DF WAY FOR Ii[E. 7TH AYENUE BOUNDED A5 FOLLnW.S~ DN THE NORTH BY TI-,~ EASTERL Y EXTENSION OF T!-,~' AIQI2TH UNE Or BLOCK 116, TOWN DF LfNrDN (NOW DELRAY BEACH}, ACCORDING TO THE PLR T THEREOF A5 REGD14DED IN PLAT BDnFC I, PAGE 3, P[~9LIC RFCDf?D.S OF PALA~I6EACH CD[Ih~7'Y, FLURlDA AND ON TI-IE SOUTH BY THE EASTERLY EXTENSION DF THE SOUTH LINE pF SAID BLOCft 116. +'!V TES. Th!+S 15 NDT A SURVEr = CENTERLfNE TF~ NORTI.1 LINE DF BLOCK 116 15 A55[.Ih~D TD BEAR Iu89°5847'E Pa. = PLAT aoarr PAUL D. E-VGLE SURVEYOR & MAPPER ~`57D8 bA 7~:• JlIL Y 9, 245 ~; ~~ ~~ ~; N; ~, U• V=. ~ ~~ ~~ ~~ ~a~ ~~ ~. F.tiri:ihif ~sYl» Certificate of Substantial Comnletian Prepared by and upon Recording Rehirn to: Stuart T. Kapp, )1sq. Proskauer Rose LLP 2255 Glades Road Suite 34~ West Boca Raton, Florida 33431 CERTIFICATE DF SUBSTANTIAL COMPLETION OP CONSTRUCTION OF RELC7CATED 7 ~~ AVENUE "PHIS CERTIFICATE DF SUBSTANTIAL COMPLETION OF CCNSTRUGTIDN (this "Certificate") is issued as of the day of _ 20~, by , City Engineer for the City ^f Delray Beach, whose address is (the "City Engineer"). WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section I Q.1 of that certain Easement Agreement, dated as of 2fl49, between the City of Delray Beach, Florida {the "C~"}, CDR Atlantic Playa, I,td., a Florida limited partnership and Atlantic Canter, Ltd., a Florida limited partnership (collectively, the "Owner"}, recorded in Official Records Book , Page , of the Pu1,Iic Records of Pairn Beach County, Florida (the "Easeme~~t Agreement"}; WHEREAS, the Easement Agreement provides that the City Engineer shall record this Certificate apan substantial completion of construction 4f a relocated 7th Avenue {"Relocated 7tb Avenue"). Relocated 7`~' Avenue is legally described as follows: See Exhibit "A" attached hereto and made a part hereof; and WHEREAS, the City Engineer hereby issues this Certificate pursuant to Sectior- l ~. l of the Agreement. NC3W, "I'HE1ZEl~ORE; in accordance with the Agreement and in consideration of the sum of Ten Dollars ($1~.Qp), and other good and valuable consideration the receipt whereof is hereby aclEnowledgexl, the City Eiigineez~ lzez-eby states the fallowing: 77T6119fi92-0]& Currerttl1350A359ufi 021t3d2L0912:31 P~ 1. The foxcgaing Recitals axe true and correct and axe incorporated herein by this reference, as if set forth in their entirety. 2. The undersigned is an engineer for the City of Delray Beach and has reviewed and inspected the construction of Relocated 7th Avenue. 3. The City Engineer certifies and confirms that the construction of Relocated 7t~' Avenue has been substantially completed. 4. All ternrts nat defined herein shall have the meanings set Earth in the Easement Agxeexnent. [SIG;~IATC]RE PAGE FOLLORTS.] 777E+19692.015 CumenV13504~9vfi QFJ13J2Q09 12:31 PM IN VL~ITI~ESS WHEREOF, the City Engineer hereby executes and delivers this Certificate as afthe day and year #irst above written. `]VITNESSES: {Print Name} (Print Name} STATE DF COUNTY aF CITY ENGINEER: City Engineer, City of Delray Beach '1 he foregoing instrument was acknowledged before me this day of 2Q by ,the City Engineer for the City of Delray Beach. He1She is personally lcnown to me or has produced {type of identification} as identification. Signature of Person `T'aking Acknowledgment 777f~+19692-a~6 Curreny73504~59v6 Q2113J'204912:31 Pik EXHIBIT "A" to the Certificate of Substantial Completion of Car~struction of Relfleated 7'h Avenue Relocated 7`'' Avenue 77T6di969P-038 Curre~dla5[1A359vfi 4~Ji3a'204912:31 PM NQRTH LINE BLOGYC 1T6 Q F- J o~ ~, ~o ~~ m ~~ U ~ m NDRTH RIGHT ~F WAY L1NE 5DU1 H L1NE- eLOCx rrs 0 0 • ~ 11lORTH LINE P,B. 5d PAGE r,29 221. f8' ~S9°58'y5"W. o NE CDRNERJ cry ~ ~ P,B. 50, PAGE 129 Q m PAINT OF COh+I+LfENCEMENT w ~ ~w ~ ~ o °°~ Dui ~o ~~ g A TLANr~c PLAZA ~~a PLAT BdGfC 50, ~ ~ r PAGE ~~9~ ~~~ 40 ~~ wow ~ ~ ARC = rsasa' i C.R_ = 36°33'25" RAD,"US = 2D5 00' C.B = S18°1843"W. NQTES• ARC = 105.28' ThC'S IS NOT A 51JRl~EY CA. -• 36°33'.25" f?ADIUS -- rfi5. p0' ~ =CENTERLINE kl THE NOI277Y LINE OF SDUTH LINE PLAT' ELOCJf 1rfi 15 ASSrJM-EL] ' S 4 BOOx 50, PAGE 129 1VORTH RIGI-Jr TG EFAF2 AZ89°58'~7 E '~ o OF WA Y L114~' P& = PLa r soOJc ' ~~ S W. CCIRNER o P.B..50, PAGE r29 ~ DATE.• JAN. 23, 2ab9 'T' A TLANTlC _ _ °c~r' Ica ~T oR AurH A ~~~~ 5Llf?VEYDR AlYb MAPP! (7RDER Na p4-16~ 77N .4YENUE RE ALIGNMENT SICFTCH ~F DFSCRIPTION Exha'BI7' r~ n sHEEr ~ of ~ DESCRIPTION FOR N.E. 7TH AVENUE' RE-ALIGNR~ENT A 40 FOQT EASEMc'"]'VT BEING A Pp~4TI0N pF A TL.AN77C PLAZA. ACCORDING TQ THE PLAT THEREOF A5 RECORDED IN PLAT BpO1C 5Q PAGE 129, P[,.49LIC RECORDS DF PALM BEACH COUNTY, FLORIDA AMA TNA T PORTION OF THE 4D FOOT ROAD RIGHT OF WAY FQR !1(E 7TH AVEI~IE LYING WEST pF AND ADJACENT TO SAlD ATLANTIC PLAZA A5 SHOWN CbN THE PLA T OF Tf-IF TQWN OF LINTpN {NOW DELRA Y BEACH ACCC~4DING TO THE PLAT T!-IEREQF A5 RECORDED 1N PLAT BOOK 1 PAGE 3, PUBLIC CORDS DF PALM BEACH COUNTY, FLpRIGA, BEING 40 FEET WEST OF A14D ADJACENT TO TI-~ FOLLOWING DESCRIBED L11vE COMArfENCING A T TFIE NDRTHEAS7' Ca4NER OF SAID PLAT Or A RANTIC PLAZA; TI~'NGE 589°58'TS"~!, ALONG TIDE NORTH L111E OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 221 T8 FEET TO TFIE POINT OF BECIMMNG; THENCE 5 4°aa aO'E, A DISTANCE OF 359.01 FEET TO A POINT OF CGQ4VATl~4E CONCAVE TO THE NORTHWEST HA V1NG A CENTRAL ANGLE OF 3fi°33'25" AND A RADI[.(S' OF 205.OD FEET; TFJENG'E SOUTHWESTEIS'L Y ALONG Tr1E ARC OF SAId C1~94VE, A d157"ANCE OF 13D.8O FEET TQ A POINT OF REVERSE CCA~2VA TURF CONCA YE TO T1fE SOIJTFIEAST HAV1I44G A CENTRAL ANGLE OF 3fi°3325" AND A RADIUS OF ~cS.~OO FEET, THENCE SOUTHWESTERLY, RLONG TF~ ARC OF SAID CURVE, A DISTANCE OF 10528 FEET; THENCE SO°0040'E, A DISTANCE OF 25.00 FEET TU A PAINT OIV THE SOUTH LINE DF ,SAID ATLANTIC PLAZA ANJ A PAINT ON T2~' NORTH LINE OF EAST ATLANTIC AVENLE AS NOW LAID OUT AND IN USE AND THE TFRIyNNUS POHVT OF SAID EASEMENT: THE SIDE L11~5 OF SAID E.~5EIr1ENT I Q 8E E~TEI+~FD OR SHORTENED TO MEET AT' ALL ANGLE POINTS AND TQ TERbA'NATE AT THE NORTH AI11~3 50UTH LINES OF SAID PLAT OF ATLANTIC PLAZA AND Ti-IE WESTERLY PRpJECT10N OF THE SOUTH LINE OF SAID PLAT QF ATLANTIC PLAZA. PAUL D. FNGLE SURVEYOR & MAPPER x¢`5708 aA rE:~ ~,an! 2~ ~avs ORDER NO. 04-164 7TH AVE RE ALIGM+~fENT 1 . ' exhibit "D" Relocated 7''° Avenue ~47f1969@•Dt6 Gurrentli3223026v9 Q7113J20a9fl2:24 P!~ !NORTH L.1NF B[.OC-[ J16 ~~ ~~ o~ ,~, a~ ~^ m U~ o °~- m r~RTH Rlc~lT OF 1NA Y L~'NE SO[J7N L1NE- BLOCIC 116 ~.~ ~sr sTR~r _ ~~~ ~. ~ ~~a ~~~ ~~o ~~am ~~ ~~~ Q NORTH LINE P,Q 5D, PAGE 129 •p 22t 18' 589°58'15"W. o~ NE. CORlVFR try Z P,Q 5D PAGF I29 z 4 m POINT OF CGA+IMENCEMENT ~i W :W ~~ D~ ~ ~ ~~ "' ~ ~o p er; ~ ~ ATLANTIC PLAZA (PLA T eoo~c 5n. PAGE 1~9~ ~ ` ARC = 13a 80' f C.A. = 3fi°33'25" RA~'C1S = 205.00' C.B~ ~ 518°1643"W. N4TES- ARC = 1Q5.28' TI-95 I5 NOT A 5[IRUEY C.A. - 36°335" RADIUS -- 16500' ~ = GE7117F-FrLlNE C.B. = S I8°16'43"IN. o. ' ~ ~ pps w. GORNER ~ PLJ. ~0r PAGe 129 ~ ~ATE.• JAN. 23, 2~D9 EAST Ig TLI~NTI4 _ _ cERTIFCATE Q &~'rN IQ ~~~ S[1RVEYO,R AlYD MAPPE rr.~e iaac• pe ~ n n cnir_. 41 77~E NCIRTH LINE OF S SOI.l7'H LINE PLAT BLOCk 716 IS ASS[.1MEB ° ' 5847 F o B0OK 50, PAGE 129 TG BEAR A!89 g ° ``~ ^ NORTH RIGh+T OF WAY LIIrE P.B. =PLAT BQOfC S~C~TCH CF DESCRIPTICI~ EXh9'8JT 'A" SHEET' 2 Qf' 2 DESCRIPTION FOR N.E. 7TH At/ENUE RF ALIGNMENT: A 4D FAT EASEMENT BEING A PDF?TIDN DF ATLANTIC PLAZA, ACCORDING TD THE PLAT 7NEREOF A.S RECOR£]EQ 1N PLAT BCOk 5Q PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLCRrDA AND THAT PORTION OF THE ~0 FDD7' ROAD RIGHT DF WAY FDR N.E. 7TH A VENUE L PING WEST DF AID ADJACENT TD SAID A TLRNTIC PLAZA A5 5HONN QIV TI ~E PLAT OF 7hE TOWN OF LINTpN NOW DFLRAY 6EACH ACCO>'~+NG TQ TIC PLAT T!-~RL'DF A5 RECO14DED 1N PLAT BOOK 1 PAGE .~ P2/BL1C ~ECORDS QF PALM BEACH CO[~9'VTY, FL014~DA, BEING 4n FEET WEST OF AID ADJACENT TO THE FOLLOWING DESCRIBEQ LII~: COM4blENCIIVC AT THE NORTHEAST CORNER QF 5A1D PLAT DF A 7ZANTIC PLAZA; THENCE S89°5$'r5"N!, ALONG THE NORTH LIII~' pF SAJa PLAT OF ATLANTIC PLAZA, A DISTANCE DF 22~ ~ FEET TO Th+E POHVT CF BEGINM'NG; 7NENCE S 0°OD'DO'E, A DISTANCE OF 359.C1 FEET TO A POINT OF C[~94VAT[~94E CONCAVE TQ THE ND,4THWEST HA IIING A CENTRAL ANGLE CF 36°3325" AND A RADIUS CF 2D5~ FEET,• 7HENCE SQCJTNWESTESi'LY ALONG TI-!E ARC OF 5AIC7 C[~71~E, A DISTANCE OF 13080 FEET 7"C A POINT OF REVERSE CURVATURE CONCAVE TD THE STJUTNEAST HAVHVG A CENTRAL ANGLE OF 36°3325" ANv A RADIUS OF r55.DD FEET; THENCE SO[JTHWESTERLY, ALONG TI-,E ARG DF SAID C[~1~E, A UrSTANCE DF I05.28 FEE7;- THENCE S.Q°0440'E, A D15TAIVCE OF ,~S.DQ FEED" TO A POINT ON Thl~' SOCITH LINE DF SAID A TLANTIC PLAZA AND A PQ1NT DN T?-IE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID CUT AND IN U5E AND Th1E TERIL~IWJS POrYVT OF SAID EASEMENT. THE S+DE LINES C7F' SAID EASEMENT TO BE EXTENQED DR SHORTENED TQ MEET A7 ALL ANGC,E POINTS AND TO TERMINA TE A T THE NORTH AND 5IXlTN LINES OF SAID PLAT DF A TLANTIC PLAZA AND THE VYESTERL Y PRO~IEC7rCN QF THE 50UTH LINE DF SAID PLA T OF ATLANTIC PLAZA. PAUL D_ ENGLE SURVEYOR & MAPPER X5708 oATF• ~.an~ 23, Zoos aRV~ No. o~-rs~ 7TH AvE RE-ALIGM~lENT Exhibit "E" Relocated 7`t' Auenue Agreement 8547f19fi92-016 Currentli3223fl2fiv9 02113f20Q9Q2:24 P~ rl'his instrument was prepared I7y and should be returned ta: Brian Shutt, Esq. Lity Attorney's Office 204I~f.VV. 1st Avenue Delray Beach, Florida 33144 EASEMENT AGREEMENT {Relocated 7t Avenue Easement} TI3IS EASEMENT .1GREEMENT {this "Agreement"} made as o£ February 17, ?~09, by and laetween the CITY OF DELRAY BEACH, FLDRIllA, with a mailing address of i 04 N.W. lst Avenue, Delray Seach, Florida 33444, a Florida municipal corporation {the "City") and ATLA1tiITIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership {collectively, the "Owner"}. RECITALS: A. The City Commission passed a Resolution pursuant to which the City abandoned its interest in and to a portion of that certain publicly dedicated roadway known as N.E. 7`h Avenue in Delray Hooch, Florida the "Abandonment Resolution"} and, in connection therewith, a relocated 7'h Avenue may be constructed, between l~l.E. 15° Street and East Atlantic Avenue ("Relocated 7'h Avenuc"}, including the installation a£ improvements located thereon, including, without iirnitatian, streetlights, pedestrian and vehicular traffic signs and markings, sidewall€s, planters, trees landscaping and other related appurtenances, Relocated 7t~' Avenue is legally described as follows: See Exhibit "A" attached hereto and made a part hereof. B. In cotuzection with the construction of Relocated 7a' Avenue, the Cwner has agreed, among other things, to grant to the City: {i} a perpetual exclusive roadway easement for unobstructed and unimpeded vehicular and pedestrian traffic far ingress and egress, and vier, upon, and across Relocated 7~' Avenue, and far the Cit~+ to exercise its gavernnaen#al and quasi- gavemmental functions with respect tv Relocated 7` Avenue, including without limitation, traffic regulation, and other uses and purposes as may be permitted ~y the City's Code of Qrdinances ^r by resolutions adopted by the City Commission with respect to public rights-of- ways located within the City and for all purposes £or which the City has all power under home rule authority, including lout not limited to, those expressed in Florida Statutes or City Ordinances, and this Agreement shall not in any way limit those powers including, but not limited to, access, ingress and egress, maintenance, control, closing, or other use o£ Relocated 7u` D44&'19E92-0is CurrenV13489&09v14 atit~aoog a~:12 ~ Avenue by members of the public, and City officers, agents, employees or contractors; and (ii) a non-exclusive utility easement within the "Utility Easement Area" (as hereinafter defined}. NDVV, THEREFORE, far an in consideration of the s1.uxl of TEN AND NDII04 DOLLARS (~ l t].~t}} and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the City and the Owner agree as follows: 1. Incorporation of Recitals. The foregoing Recitals axe tzue and correct and are incorporated herein lay this reference, as if set forth in their entirety. 2. Roadway Easement. 2.1 Grant of Roadway Easement. Owner, as grantor, hereby grants and conveys to the City, its successors and assigns and the general public (collectively, hereinafter referred to as the "Roadwa Grantees"}, COInInenClIlg upon the substalitlal completion Qf construction of Relocated 7` Avenuc by Dwncr (as cvidcnccd by the rccoxding of the "Certificate of Sulastantial Completion" by the City Engneer in the form attached hereto and made part hexeaf as Exhibit "B"] (the "Ef#ective Date"} and perpehlally thereafter, an exclusive unimpeded and unolistruoted easement for the use and benefit of the Roadway Grantees {the "Roadway Easement"}over, upon, and across Relocated 7'h Avenue for tl~e following purposes: a. The unobstructed and unimpeded use for pedestrian and vehicular parking and traffic, including sidewalks, access, ingress and egress, as a through roadway, and ft~r the proper installation, maintenance, repair and replacement of a paved roadway and its subsurface corrlponents; b. For any public purpose permitted by the City's Cnde of Ordinances which relate to or concern the use or regulation of public rights-of way located within the City; c. For any public purpose approved by the City Commission which the City Commission could approve with respect to public rights of way located within the City in the exercise of its govemmental and quasi-governmental functions; and d. For all purposes for which the City has all power under Home Rule Authority, including but not limited to, those expressed in Florida Statutes or City Ordinances, and this Agreement shall not, in any way, limit those powers including but not limited to, access, ingress and egress, maintenance, control, closing, or other use of the Relocated 7th Avenue by members of the public, and City officers, agents, employees or contractors; including, without limitation, closing Relocated 7`~' Avenue for street fairs, festivals or other events approved by the City within the exercise of its governmental or quasi-governmental functions similar to any other City public right of way. 0469119092-016 CurrenU13489E09v14 ~113r20094P:12Phl~ e. Notwithstanding the foregoing, the grant of an exclusive perfietual easement, as set forth herein, shall not preclude the Owrner of fee simple title to the Relocated 7`'' Avenue from exercising its rights ar performing ifs obligations hereunder with respect to Relocated 7~' Avenue, as specifically sct forth in this Agreement. 2.2 Initial Construction. Except as set forth herein, the initial canstniction of the 1~aadway Easerrrerrt acrd related irnpravements thereon {the "Initial Construction"} shall be made by Owner, at Owncr's sale cost and expense. Owner shall, in compliance with all applicable goveriuxaental rules, laws, regulations and ordinances, maintain, repair and replace the improvements constructed as a part of the Initial Construction of the Rfladway Easement and related improvements thereon, including without limitation, sewers, drainage, Landscaping, signage, traffic canirol devices, street lights, median requirements, striping, sidewalks, paving, and curbing. Notwithstanding the foregoing, Owner shall not be required to: {i} install at its expense any traffic lights or similar types of traffic control devices; {ii} install or maintain impraverrrents to the Roadway F..asement heyand thane improvements constructed as a part of the Initial Construction; {iii) pay far any City installed holiday ar festival lights, banners ar decorations; or {iv} pay for the cysts of electricity for street lighting not installed by the Qwner. 2.3 Alterations. The Owner shall not make any alterations to the roadway design, location ^r improvements thereon unless the City consents to same in the exercise of its goverrrmental argcasi-governmental functions. 2.4 Right's of the Roadway Gr-antees. The Roadway Grantees shall have the right to use the Roadway Easement in an unobstructed and unimpeded manner ser~err (7} days a week, twenty-four {24} hour per day, except as otherwise authorized ~y the City in the exercise of its gpvernmental ar quasi-governmental functions. No fee or other expense shall be charged by the Owner to the City or the Roadway Grantees for use of the Roadway Easement. {The foregoing shall oat apply to any parking charges or valet fees far parking andlor valet services occurring on private property adjacent to the Roadway Easement.} The City rx~ay install arrd Fnaizxtaix--, at its expense, public parking meters for parking an the Roadway Easement, and all revenues generated by the meters shall be retained by the City. 2.5 Tawin~ Vehicles. The Owner shall oat be allowed to tow ar otherwise relocate vehicles located in the Roadway Easement; provided howCVGr, the Owner shall retain the right to taw vehicles located an private property that is not a part of the Roadway Easement in accordance with all applicable law. 2.6 Qbstructian. No obstruction of the free flow of pedestrian andlor vehicular traffic or use of the Roadway Easement far parking shall be permitted or caused by the Owner. 2.7 Maintenance. The Dwner shall cause any and all maintenance, repairs or replacements to be made to the Roadway Easement, as may be necessary or appropriate from 04flS1i9fi92.038 Curren6'134896~9v14 D?Ji31~a09 ~2~9F PN! time to tune, in a good and workmanlike manner and in accordance wifln the applicable standards far the maintenance and repair of City public rights-of way for the same level of use. Maintenance items include, without limitation, the surface of the street, the underlay, curbs, gutters, lighting facilities installed by the Gwncr, striping, markers, directional signs, mowing, weeding, (rimming and watering. The Owner shall take any and all safety measures reasonably required to protect the persons and property of the City, invitees of City and the Roadway Grantees from accidental death, injury, ar damage caused by or resulting from the construction or performance of any such work. 2.8 Insurance. a. The Owner shall purchase and rirkaintain "all risk" property damage insurance, (including, to the extent available, at commercially reasonable prices, flood and wind} up to the fill replacement cost of the Roadway Easement improvements. b. Intentionally Gmitted. c. The Groner shall purchase and maintain General Liability L;suraace to cover legal liabilities arising from the Roadway Eascmen#. The combined bodily injury and property damage limits shall not be less that $5,000,4D0 per occurrence with an annual aggregate of $5,000,000. The Groner may use urnbrellalexcess liability insurance to meet these requirements. d. Intentionally Gmitted. e. All insurance policies required by this Section shall have an A.M. Best rating of at least A-IVII and shall provide for a least thirty (30} dAys written notice by the Groner, or its insurers} to the Gity of any cancellation, intent to non-renew, or material reduction ar change in insurance coverage. f. The City shall be named as an additional insured by way of the most current I5G endorsement, or its equivalent, on the Owner's liability insurance policies required under this Agreement. g. Mat less than thirty [30} days prior to the Effective Date, the City must receive and approve Certificates of Insurance evidencing the insurance coverages and requirements under this Agreement. Renewal Certif€cates shall be provided to the City at least ten ~ 1 d} days prior to the expiration of any policy. h. To the extent permitted by law, the Owner and its insurers waive (and will s^ endorse their insurance policies) all rights of subrogation they may have against the Gity, its employees, officers, directors, and agents far the recovery of damages covered under any of the City's insurance and self-insurance programs. It is the express intention of the City that the waivers apply to all matters described in this Agreement, including, without limitation, 4 fl44B11969P-Difi CurrenV13489609v1k 6211312b~9 42:12 P~+A any matter that is caused in whole ar in part by the Sala or concurrent negligence of the City 2.9 Indemnification. The Owner shall save and hold harmless the City from, and shall indemnify the City against any loss, liability, claim, damage, expense, attorney's fees, casts, penalty, or fine, including without limitation, bodily injury, death, and property damage, arising out of the use, operation, maintenance, repair and replacement of the Roadway Easement by the Qwner, its employees, representatives, agents, and cvartractoi~s {Uut only wl~ien such parties are acting solely in their capacity on behalf of Owner, but cxcluding any matters arising from the O~crner ar said parties when such parties are oat eating on behalf of the Owner, but are utilizing the Roadway Easement as any member of the public}. Each claim for indernniflcatian made under this Agreement shall be subject to the following provisions: a. The indemnity shall caner the costs and expenses of the indemnities including, wathaut limitation, reasonable attorney's fees, disbursements, and court oasts, related to any actions, suits, ar judgments incident to any of the matters covered by such indernniiy. b. The indemnities shall notify the indemnitor of any Claim (as herein defined}, in writing, against the indemnitee covered by the indemnity ["Indemnification Notice"} within Early-five (45] days after it lzas notice of such Claim, but failure to notify the indemnitar shall in na case prejudice the rights of the indernnitee under this Agreement unless the indernnitor shall be prejudiced by that failure and then only to the extent the inderrinitar shall be prejudiced by the failure. Should the indemnitor fail to discharge ar undertake to defend the indemnitee against such liability after receipt of an Indemnification Notice, then the indemnitee may settle such liability, and the liability of the indemiutar under this Agreement shall be conclusively established by that settlement, the amount of such liability to include both the settlement consideration and the reasonable casts and expenses, including attomey's fees, disbursements and court costs, incurred by the indemnitee in effecting the settlement. c. For purposes of this Ageement, "Claim" shall mean any obligation, liability, claim (including, but not limited to, any claim for damage to property or injury to or death of any persons}, lien ar encumbrance, loss, damage, cost, ar expense. d. The obligations of the parties under this Section 2.9 shall survive the termination or expiration of this Agreement and remain binding upon the parties to this Agreement until fully observed, kept, or performed. x.14 Taxes. The Owner shall pay or cause to be paid before delinquency all ad valorem real property taxes, genera] and special assessments and other gnvemmental charges assessed against the fee parcel, subject tv the Roadway Easement and improvements an the Roadway Easement, and provide evidence of the carne to City. If those amounts are not timely paid by the Owner, the City may (but shall oat be obligated to} pay all or part of those amounts and the Owner shall immediately reimburse the City those amounts upon demand, together ~vith 5 4+1~8119fi82-016 Gurread134$9609v14 UTJ131200902:12 P~+1 interest at the rate of eighteen portent (18.4°/a} per annum on the amounts sa paid by the Cify, from the date of advance until reimbursed. The City shall also have a lien aginst the fee simple interest subject to the Roadway Easement to secure repayment ^f taxes paid an[i the manner cf filing a lien, its priority, and its enforcement shall be the same as sct forth in Section 2.13 of this Agreement. The Roadway Easement shall be an insresslegress easement within the meaning of Florida Statutes Chapter 187.572_ 2.11 Casualty. In the c~•cnt of damage or destruction by casualty ^f the Roadway Easement or any irnprnvez~nents located thereon, the Owner shat] repair and restore the sanne within a reasonable pentad of time, to a condition substantially similar to that immediately prior to such damage or destruction. Said repair or restoration shall be at the sole expense of the Owner except in the event such damage was Caused by the City, its employees, agents, contractors and rcprescntatives, in which event, the City shall tae responsible for the costs of xepair and restoration of the Roadway Easement and the improvements thereon. 2.12 InteF~tivnally Omitted. 2.I3 The City's Remedies. a. Should the Owner fail tQ maintain, xepair or replace any portion of the improvements located on the Roadway Easement by which this Agreement i:mpases an obligation upon the Ch~vner to maintain, repair and replace, and as a consequence, the City's easement rights created by this Agreement became unpaired or the City is unable to utilize the Roadway Easement as intended by this Agreement, in addition to any remedy the City may have, the City after not less than thirty X34} days prior written notice to Ownex to cure the default (except na notice shall be required in the event of an emergency}, may, but it is not obligated to, enter ante any portion of the Roadway Easement to perfprm all necessary construction, repair, maintenance, replacement and operating work and may assess the Owner for the reasonable cast of such work. Any restoration and repair work undertaken shat] he pcrformed in accordance with all applicable laws by licensed contractaxs and in a goad, non-negligent, and workmanlike and lien-free manner ar by City personnel, if performed by the City. The Owner shall pay the cost of said work within thirty [3D} days after the City delivers to the owner (the "Payment Date"}: (i} a written statement setting forth the amount of the casts and expenses expended by the City; and (ii} back up information and detail evidence suppor[~ng such expenscs, including without lirnitatian paid invoices fflr all such work. The Payment Date shall oat commence until such time as the City has delivered to owner all of the information set forth in items (i} and (ii} abase, If the foregoing amount is not paid an nr before the Payment Date, then said amount shall hear interact at simple interest rate afeighteen percent (i8.4%) per annum from and after tlae Payment Date until paid and after the Payment Date. b. The City shall have the right to record a lien against the fee simple interest subject to the Roadway Easement if owner has not paid the City by the Payment Date. The lien shall be in a form substantially in the form of a Construction Lien prescribed uxader 0408119692616 Current113489609v14 621131200962:12 FM Florida Statutes Chapter 713 and shall attach to the fee simple interest subject to the Roadway Easement and shall be effective upon recording of a notice thereof in the Public Records of Palrn Beach County, Florida with a priority date as of the time and date of recording. The lien rights granted herein will not affect the easements and other rights granted herein to the City, and such rights shall continue in full force and effect. Such lien maybe foreclosed in the same manner as a mortgage and in accordance with Florida law. Reimbursement of such work costs and interest shall also be the obligation ^f the Owner at the time the costs are incurred, and may lie collected 17y the City accordingly in action against the Owner. c. The Owner shall deliver to the City, at the Owner's sale cost and expense, a maintenance bond, a letter ^f credit, cash collateral, guarantee or other surety (collectively, the "5u- rety"} at the Owner's election, subject to the consent v#'the City, not tU be ui~z-easonabIy witl~laeld, conditioned or delayed. The Surety shall provide that if the Dwner fails to timely and properly maintain, repair ar replace the Roadway Easement in accordance with the terms of this Agreerr~ent, the City shall be entitled to payment from the Surety far the costs and expenses the City incurs (including in-house employees) for maintaining, repairing or replacing the Roadway Easement. The Surety shall be in the amount of $1 t74,000 (as adjusted fox tlxe cyst of living for such ten {10} year period every ten {1Q} years {if the Surety remains in effect}} (the "Surety Amount"} and shall be issued and delivered to the City at or prior to the completion of Relocated 7t~' Avenue. The form and content of the Surety and the issuing institution, if any, shall be subject to the reasonable agpra~s~al of the City Attamey. The Surety shall remain in effect during the term of this Agreement, unless the City permits otherwise. If the City draws oar the Surety, then within thirty {34} days thereafter, the Dwncr shall restore the Surety to the original Surety Amount. if at any time after the Surety is issued, the Owner creates a property owner's association ("PDA"}, the City shall evaluate, upon the Qwner's written request, whether the creation of the PDA provides the City with reasonably equivalent security for the Surety. The City may accept the POA as reasonably equivalent security in its sale discretiax~. In evaluating the Owner's request, the City may require the Owner to provide the City with copies of the POA's incorporation and governing documents and financial information. if the City agrees that the PDA is reasonably equivalent security, then the Surety requirement shall }ae waived by the City. The Owner shall have the right to transfer fee title to Relocated 7t'' Avenue or otherwise assign and delegate the rights and obligations under this Agreement tv the POA at anytime tl~e Sua-ety is in place by the Owner or the PDA and the City has approved the PDA as set Earth above. Upon such conveyance of Relocated 7E'' Avenue andlar assignmentJdelegation to a PDA, the owner hereunder shall be released from the obligations and liabilities under this Agxeerrfent that accrue after the transfer to the POA and the City shall look solely to the POA and the Surety for performance of all obligations and liabilities under this Agreeinexrt arising oiler such transfer, assignment ar delegation. Prior to any conveyance or assignrncntldclcgatian to a POA, such POA shall accept and assume all obligations set forth in this Agreement in writing and the parties may record an acknowledgement of same in the public records at' Halm Beach County, if so desired. 2.14 Bindin Effect. The Roadway Easement is an easement appurtenant to 7 0468119692.Of6 Current193489fi09v74 ~2113J20090~1~ Fh+f the City's public right-ot=ways and shall run in favor of the City, and shall be binding upon the owner and its successors and assigns holding the servient estate. 2.15 Contractors. Ail work performed by the Owner in the Roadway Easement shall be performed only by properly licensed confractors and in compliance with all applicable laws, rules and codes. Each contractor performing work for owner shall be reasonably insured, without cyst to the City and the City will be indemnified and held ha.ximless for any Claims that rriay arise out of the performance of the work, solely to the extent and manner set forth in Section 2_9 of this Agreement. The faregQing insurance coverage xequirements are not intended to require insurance coverage against any defects in the work, except to the extent that such defective work causes bodily injury or personal property damage as a result Qf such defec,-tive work {but nai including tlxe repair ar correction of any defective work}. 2.I 6 Warranty. The owner warrants that: {i} the Owner is seized of fee simple title to Relocated 7th Avenue and has the right to convey the Roadway Easement to the City, free and clear of all liens and encumbrances other than those acceptable to the City; {ii} the City shall have quiet enjoyment of the Roadway Easement; and {iii) the Qwner does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever, subject to any permitted exceptions permitted by the City. x.17 Traffic Enforcement A Bement. The Owner agrees that the City shall have jurisdiction over the Roadway Easement to enforce all applicable traffic regulations and the Dwner shall, simultaneously herewith, execute the Traffic Enforcement Agreement, the farm of which is attached hereto as Exhibit "C". 3. Utility Easement. 3.1 Grant of Easement. The Owner, as grantor, hereby grants and conveys to City, xts successors and assigns, commencing upon the Effective Date and continuing perpetually thereafter for the use and benefit ^f the City, anon-exclusive easement (the "Utili Easement") within the unimproved subsurface areas under and below Relocated 7th Avenue, excluding the areas under and below any tuxazels tivluch are constructed as part of the "Subsurface h-npravements" (as defined in Section 3.3) [the "Utili Easement Area"~, for the purposB of installing, maintaixxing, repairing, replacing and restoring normal municipal utilities such as pipes, cables, electrical wires, cable television wires, conduit, plumbing, andlar appurtenances relative to such facilities (collectively, the "Utilities"}. The term Utilities as defined in this Agreement when referring to the City Utilities shall mean only City Owned "Utilities" and such term shall not include nor grant any easement rights to or in favor of any privately owned utilities either directly ar indirectly through any municipal franchise agreements with the City (i.e. utilities owned by Florida Power & Light or cable television companies, etc.} ("Private Utilities"). The right to grant any further easement rights in favor of Private Utilities is expressly reserved to the Owner. The Utility Easement shall on all instances be subject to and lianited by the provisions of Sections 3.~-3.5 below. 8 0448119692-016 Currentli3489669v14 a7113l20a902:12 F!J{ 3.2 Non-Interference. The City's use of the Utility Easement shall not materially interfere in any manner with any Utilities which have beelx ilstalled, ar may from time to time, be installed undcr Rcloeatcd 7th Avenue by or on behalf of the owner without the Owner's prior authorization. 3.3 Subsurface Space & Subsurface-Improvements. The City acknowledges that the area locatcd undcr the paved surface level of Relocated 7th Avenue the "Subsurface Space"} shall contain certain subsurface improvements, infrastructures, Utilities, and Private Utilities, including, but not limited to, certain foundations, garages, tunnels, girders and supports, as may exist from time to time (collectively, the "Subsurface Impro~ernents"}. Accordingly, the City's use of the Utility Easennellt granted pursuant to this Agreement shall not unreasonably interfere with the installation, construction, operation, maintenance, repair, replacement ar structural integrity of the Subsurface Improvements, or any above-ground improvements, owned, installed, maintained or operated in the iltility Easement Area The City shall not cause any penetrations into or through, ar alterations, modifications, additions ar changes in or to the Subsurface Improvements, awned, installed, maintained or operated in the Utility Easement Arca without the Owner's permission. Conversely, Owner's use of the Subsurface Space shall not interfere with the City's use ^f the Roadway Easement and Owner shall not cause any penetrations into or through the paved surface level of the Roadway Easement unless approved by the City. 3.4 Minor Construction Encroachments. The City acknowledges that the irprovements constructed nn the adjacent properties, from time to time, may encroach into the Roadway Easement andlar the Utility Easement and the City agrees that such encroachments shall oat violate this Agreement and may remain as constructed, pro~~ided that such encroachrncnts dq not impede or obstruct vehicles or pedestrian access, ingess and egress ar otherwise interfere with the use of the foregoing easements in any material respect, and provided that such encroachments occurred during construction, repair or replacement of such improvements. The foregoing shall not apply to improvements which Owner knows will encroach can the Roadway Easement prior to their corlstructian and any such improvements which Owner knows shall encroach prior to commencement of the constructiox thereof must be approved by the City in accordance with the exercise of the City's governmental and quasi- gavernmen#al functions. 3.5 Restoration, a. If the City's anisuse of the Utility Easement or the Roadway Easement ar negligence causes any damage to the improvements in said easements, then the City, at its sole cost and expense and as expeditiously as possible a#ter becoming aware of such damage, shall repair and xestare Relocated 7th Avenue and the ilxlprnvements thereon andlor the 5ul~surface Improvements to the condition same were in immediately prior to such damage. Any restoration and repair work undertaken pursuant to tlxls Section 3.5 shall be perfoxxned in 9 p408119692~D16 CurrenV13489fi09v14 Q7113r2~Q9fl2:12 PM accordance with all applicable Iaws and in a gaud and workmanlike and lien-free manner. However, nothing construed herein shall constitute the waiver flf its sovereign immunity or any limit or defense imposed lay or allowed by chapter 768, Florida Statutes. b. Any damage caused to the Roadway Easement or improvements located thereon by or as a result of the installation, maintenance, repair ar replacement of the Owner's Subsurface Improvements in the Utility Easement or any portion thereof, or as a result of the negligence or misuse of the retained scrvicnt estate rights of the Qwner, then the Owner, at its sale cost and expense shall, as expeditiously as passible aver becoming aware of such damage, repair and restore Relocated 7`k' Avenue anchor the damaged utilities installed by the City in the Utility Easement to the condition same were in immediately prior to such damage. Any restoration and repair work undertaken pursuaart to this Section 3.5 shall be performed in accordance with all applicable Iaws and in a goad and workmanlike and lien-free manner. 3,6 The Qwner warrants that: {i} the Owner is seized of Relocated 7'h Avenue and has the right to convey tl-ce Utility Easement to the City, free and clear of alI Iicns and encumbrances other than those acceptable to the City; (ii} the City shall have quiet en}ayment of the 1:]tility Easement; and {iii} the Qwner does hereby fully warrant the title to said land and will defend the same against the lawfiil claims of all person whatsoever, subject to any permitted exceptions permitted by the City. 4. Use of Relocated 7`~l Avenue by Owner 4,1 Permitted Uses. The Qwner shall have the right, Pram tune to time, to permit andlor operate: {i} sales and proxnotional kiosks and other income-producing sen~iceslbusincsscs on Relocated 7`h Avenue and the appurtenances thereto, and {ii) street festivals, fairs, municipal a.nd civic events and other similar events on any portion ^f Relocated 7th Avenue; provided such uses are approved by the City in the City's exercise of its governmental or quasi-governmental functions. 4.2 Raadway Closura. The Owner shall have the right, fronn time to time, to temporarily close portions of Relocated 7`~` Avenue to access, maintain, improve, repair or replace any improvements in the Roadway Easement ar the Utility Easement, including, without limitation, Relocated 7'h Avenue and any Subsurface Improvements, and far other matters reasonably xaecessary to maintain, repair and replace the Roadway Easement, the Utility Easement, the Subsurface Improvements or any components of or improvements within the foregoing in the Owner's reasonable discretion (the "Roadway Glysure"}. In performing any Roadway Closure, the Qwner agrees to: (i} use gaud faith efforts to minimize the impact of such road closure an vehicular and pedestrian traffic, including, but not limited ta, consideration as to the date and time of t1--e Roadway Closure; and {ii) comply with the City's requirements for temporary road closures of City public-right-of--ways, 10 64081i9652.01B CurrenU134$9669u14 621131200967:12 PDA 5. Ste. The Dwner, at its sole cost and expense, xnay install, maintain and operate signage on Relocated 7`~' Avenue, in such locations and in such capacities as the City may approve in the City's exercise of its governmental or quasi-governmental functions. 5. Default and Remedies. 6.1 Default. The failure of the Owner ar the City to observe or perform any of their respective obligations under this Agreement {the "Defaulting Party"} within thirty {34} days after receipt of written notice from the other party specifying the nature of the failure (the "Nan- Defaultin~_P_art~'}, shall constitute a default and breach of this Ageement; provided, however, if such failure is of a nature that it cannot reasonably be cured within such thirty {3t]} day period, then the Defaulting Party shall not be in default so long as the Defaulting Party carnmences such cure promptly after receiving such written notice, and is diligently pursuing such cure tv completion. The foregoing shall not apply to Section 2.13 of this Agxccment. 6.2 Remedies. The terms and provisions of this Agreement are enforceable with all remedies at law and in equity, including, but riot limited tv, bringing an action far actual damages, an action far specific performance, an action for temporary restraining orders, preliminary or perrnaraent injunctions, declaratory judgmrents ar other similar orders for relief; provided, however, that suspension or termination of this Ageement on account of a breach shall not be an available remedy unless otherwise expxessly provided for herein. The parties further agree that neither party shall have the right to recover any consequential, punitive, special, extraordinary or speculative darnages as a result oCthe breach of this Agreement. The parties to this Agreement hereby acknowledge and stipulate the inadequacy of legal remedies and the irreparable harm that would be caused by a material breach of any obligation under this Agreement by a party to this Ageement. This Ageement may not be suspended ar tez7minated except by an instrument in writing signed by City and Owner and recorded in the real property records of Palm Beach County, Florida. 7. Notice. Any notice, demand ax request which may be permitted, required ar desired to be given in connection therewith shall be given in writing and directed to the City and the Owner as follows: As to City: City of Delray Beach 1 aQ N•W. lsr Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: {561} ~7$-4755 'With a copy to: 24t? N.'W. lst A~•enue Delray Beach, Florida 3344 11 0408li9692-ai6 Current~i3489&09v14 02113120090~:12PM Attn: Gity Attamey Facsimile: {561} 278-4755 As to Qwner: Atlantic Center, Ltd. clo GDS International Holdings, Inc. 32991V.W. 2"~ Avenue Boca Raton, Florida 33431 Attn: President Facsimile: {561} 278-6~3~ CDR Atlantic Plaza, Ltd. clo CDS lnternaticndl Holdings, Inc. 3299 N.W. 2°a Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561} 278-fi93~ Notices shall be deemed properly delivered and received when and if either {i} personally delivered; or iii} one (1}business day after deposits with CTxuted Parcel Service or ether overnight courier fflr next day delivery; or (iii} the same day when sent by confirmed facsimile before 5:I)0 p_m. (Eastern time}. 8. General Provisions. 8.1 Amendment. This Agreement may be amended or modified only by a written instrument sided by both parties qr their respective successors afrd assig€~s, which instrument must be recorded in the Public Records of Palrn $cach County, Florida, 8.2 Entire Agreement. This Agreement sets forth the entire a~eernent between the Owner and the City with respect to tlxe easement gra~zted in tlus Agreement. This Agreement supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parties. $.3 Governing Law. This Agreement will be interpreted and enforced in accordance with Florida law. 8.4 Successors and Assigns. The covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigns of the Qwner and the City. 8.5 AutharitY to Execute; Representations. The Qwner artd the City each warrant and represent to the other that the individuals signing this Agreement on behalf of the 12 0408i19fi92-fl16 CurrenV13489fi09v14 021331200902:32P~A ^wner and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto, 8.d Counterparts. This Agreement may be signed in two ar mare counterparts, each of which constitutes the Agreement of the parties and each of which shall be treated a`s an original. 8.7 Van-Public. The Owner and the City specifically acknowledge And agree that this Agreement and the rights and obligations gamed hereunder are not intended to be, and shall not constitute in any respect or manner, a public dedication of any right ar interest of the Qwner in Relocated 7'~' Avenue whatsoever, but rather are private rights for the sale'use and benefit of the parties hereto, their respectlVL suCCe55orS and a55lgl]s. 8.8 Breach Shall Nat Permit Termination. It is expressly agreed that no breach of this Ageement shall entitle either the l7wner or the City to terminate this Agreemen#, but such limitation shall not affect in any manner any other rights or remedies which either the Owner or the City may have lereunder by reason of any breach of this Agreement. 8.9 Severability. if any term or provision of this Agreement or application thereof to any person or circumstance shall, to any extent, be found by a court of competent jurisdiction to tae invalid or unenforceable, the remainder of this Agreement, or the application of such term ar provision to persons or circumstances other than those as to which it is held invalid ar unenforceable, shall not be affected thereby and each term or provision of this Agreement shall be valid and enfnrceahle to the fullest extent permitted by law. 8.14 Non--Waiver. No waiver of, or failure to assert, any claim, right, benefit or remedy of any party pursuant t4 this Agreement shall operate as a waiver of any other claim, right ar benefit. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect such party's right at a later time to require such performance or to enforce the same fully. No waiver er modification of the terms hereof shall be valid unless in writing and signed by the party t4 be charged, and then only to the extent therein set forth. 8.11 Headings. The headings of the articles of this Agreement are for guidance and convenience of reference only and shall not limit or otherwise affect any of the terms or provisions of this Agreement. S.1Z Covenant Running with--the Land. This Agreement and the easements granted herein, and all of the rights, duties and obligations of the parties with respect thereto, shall be construed as covenants Winning with th,e land, binding and inuring to the benefit of the City or the Dwner, as the case maybe, their respective successors, assigns andlar grantees. 13 D4d8l19692•a16 Currendi34896a9vi4 6?113fE0~9~2:12 RM 8.13 Force Maieure. If any party to this Agreement is delayed, hindered in, ar prevented from the performance of any act required tv be performed by that party by reason of acts of Gad, strikes, lockouts, unavailability of materials, failure of power, prohibitive governmental Iaws or regulations not imposed by the City, riots, insurrections, the act ar failure to act of arty other party to this Agreement, adverse weather conditions preventing the performance of work as certiE€ed to by an architect, war, act of terrarisrn, or other reason beyond that party's reasonable control and far which, in each of the aforesaid circumstances, the party is diligently and in good faith and with reasonable dispatch seeking to abate and remove the circumstances causing the delay or hindrance ar prevention from performance of the act required to be perfarzned by that party, then the tune for performance of the act shall be extended far a period equivalent to the period of the delay. Lack of adequate funds or financial inability to perform ar financial or economic lasses or hardship resulting from performance shall not be deemed to be a cause beyond the reasonable control of such party. 8.1.4 Joinder by Mart a~L;~ees. By its joinder in this Agreement, all mortgagees hnIding a lien against the Roadway Easement, if any, have consented and da hereby consent to this Agreement, and the liens and security interests held by such lienholde~-s are hereby made subject and subordinate to the terms of this Agreement without the ncocssity of the execution of any other document. Any future deeds of trust or mortgages shall automatically, without the necessity of any additional instrument, be subject and subordinate to the terms and conditions of this Agreement and shall be bound by the terms of this Agreement. Any party foreclosing any such deed of trust or mortgage, or acquiring title by deed in lieu of fareclvsuz-e or trustees sale shall acquire title subject to all the terms and provisions of this Agreement. 8.I5 Ri t to Pled e. The Owner shall have the right to mortgage, pledge ar collaterally assign its interest in this Agreement and to assign or pledge the same as security for any debt and all rights acquired by such sccured party under any such security. From and after the date any deed of trust beneficiary, mortgagee or secured party comes into possession of the owner's rights under this Agreement, such deed of trust beneficiary, mortgagee ^r secured party shall possess a!l rights of the Owner under this Aglreenaent and all obligations of the Owner shall thereafter be the obligation of such deed of trust beneficiary, mortgagee or secured party. In no event shall such transfer of possession cause a release, satisfaction, or waiver of any obligation of the Qwner which occurs prior tQ the date of such transfer, including without limitation, the City's right under this Agreement to record and foreclose a lien. 8.16 Na McrgGr, It is expressly understood and agreed that the parties da not intend that there he, and there shall in na event be, a merger of the dominant and servient tenements in Relocated 7`'' Avenue by virtue ^f the present ar future ownership of any portion of said tenements being vested in the same persan(s} or entity, but instead intend that the easement servitudes sha11 not be extinguished thereby and that said dominant and servient tenerr~ents be kept separate. 14 p4D8119652.018 CurranU13489fi09v14 0?Ji31200962:12 Paul 8.17 daint Preparation. The pxepaxation of this Agreement has been a joint effort ^f the City and the Qwner and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one party than the other. 8.I8 Attorneys' Fees. In connection with any litigation or dispute arising out of this Agreement, each party shall bear its own attorneys' fees and costs. 8.19 Further Assurances. The parties agree to execute al] future inshuznents and take all further action that may be reasonably required by any party to fully effectuate the terms and provisions of this Agreement and the transactions contemplated herein. 8.20 Dispute. Any dispute relating to this Agreement shall only be filed in a court of competent jurisdiction in Palm Beach County, Florida, and each of the parties to this Agreement submits itself to the jurisdiction of such court. 8.21 Hazai-dour Substances. Neither the Owner nor the City shall cause or permit at any tixnc during the terms of this Agreement, any hazardous substances to be disposed of or otherwise released on, to ar under the Roadway Easement. Neither the Dwner nor the City shall engage in operations over, upon or under the Roadway Easement that involve the generation, manufachxre, refining, transportation, treatment, handling ^r disposal of "Hazardous Substa~xces" or "Hazardous wastes" as such terms are de£tned under any environmental laws. Owner acknowledges however, that the Roadway Easement will be utilized far parking and driving vehicles which may leak oil, gasoline, or other fluids onto the ground, and the City shall not be respnnsilsle for removal of such waste or have any liability For it under this Agreement. 8.22 Assignmen# to Property Qwner's _Ass4ciation. The t]wnex shall have the right to convey fee simple title to Relocated 7t~' Avenue to a PQA or otherwise transi~er, assign andlar delegate the rights and obligations under this Agreement to a PQA in accordance with Section 2,13 (c). 8.23 Na Third Party Beneficiaries. No private parties other than the City shall have the right to bring a cause of action against the Owner under this Agreement. 8.2d Estoppel Certificate. From time to time, the Owner shall have right to request the City to execute and deliver to the Qwner and any other party, within fifteen X15} days of notice thereof, an estoppel certificate {the "Certificate") certifying the owner's compliance with the terms and provisions of this Agreement, in a Foran reasonably acceptable to the City. The Qwner and such other parties shall have the right to rely an the Certificate. 9 Governmental )~unctions: Notwithstanding anything to the contrary contained in this Agreement. 15 oaaa~tss~-o1s Currenfl13AS9fi09+11A OFl13J2009 02,12 Ph+i a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agreement fsam complying with all applicable governmental regulations, rules, laws, and ordinances; b. To the extent approval or permission must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested rights; c. The City has not waived its sovereign immunity and the tart limits of liability set forth in FIa. Stet. 768.28 which are currently $100,000 per person and $200,000 per occurrence are applicable; and d. Any action by City shall be without prejudice ta, and shall not constitute a limit on, impairment or waiver af, or otherwise affect City's right to exercise its discretion in connection with its governmental or quasi-governmental functions. 10. Termination. 10.1 Tlus Agreement shall terminate il' {i} the City properly and tianely cxerciscs the City's Rocanveyance Right {as such term is defined in the Declaration of Rescrvcd Rights and Agreement Not to Encumber N.E. 7~' Avenue between the City and Atlantic Center, Ltd, and CDR Atlantic Playa Ltd, as the "Developer" {the "Declaration"}}; and (ii} the Relocated 7`a' Avenue Termination Certificate, the form of which is attached to the Declaration, has been ree:ordeti in the Public Records of Palau 13eacli County, Florida. 10.2 Upon recordation qf' the Relocated 7`~ Avenue Termination Certificate, this Agreement shall be terminated of retard and shall be of no further force and effect and all rights, obligations and easements granted hereunder shall be of no further force and effect. If the Dvvner requests, the City shall execute any further documents evidencing the termination of this Agreement to be recorded in the Public Records of Palm Beach County, Florida. Notwithstanding anything to the contrary contained in this Section, the termination of this Agreement shall not constitute the release or satisfaction of any claim that arose prior to termination, and such claim shall survive termination at' tlli5 Agreement, Notwithstanding anything contained in this Agreement to the contrary, if the City exercises the City's Reconveyance Right, the City's easement rights hereunder shall not terminate until such time that the City is vested with marketable and insurable title to Vacated 7~' Avenue. 1.0.3 The City aril the owner shall record a certificate in the Public Records of Palm Beach County, Florida, at such time as the termination rights pursuant to Sections 1 D.1 and 1C.2 above are terminated and are of no farther farce and effect and this Agreement is no longer subject to termination pursuant to such provisions. 1~ 0408119692-Oi& Currenl113489609v14 D2l1312009 02:12 PM E~ECLITI~AI PAGES TG FOLLQW l7 0406I19o9Q-016 Currenf1134896Q9vi4 ~Ji3120p902:'12PM IN WITNESS WHEREQF, the parties to this Agreement set their hands and scats the day and year first above written. ATTEST: CITY aF DELRAY BEACH, FLS7RIDA By: By: Gity Clerk Name: Its: nate~ A~~~~v~l ~5 to I~a1~n, By: City Attorney STATE OF C~Uh'TY 4F The foregoing instrument was acknowledged before me this day of , 2449, by ,the of the CITY OF DELRAY BEACH, FLaRIDA. He1She is personally known to me ar has produced (type of identification} as identification. --- .. Signature of Person Taking Aclur:owlcdgmcnt 04D8119692-016 CurrenV13489fi09v14 a2l1~2{]6902:12 PM WITNESSES: aWNER ATLANTIC CENTER, LTD., a Florida Iimi#ed partnership By: ATLANTIC CENTER, INC., a Florida corporation its General Partner Print Name: Print Name: By: Print Name: Its: STA'I'D. OF cavlvT~ aF The foregoing instrument was acknowledged before me this day of 2t][39, by , as the , of ATLANTIC CENTER, INC., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership, on behalf of the limited partnexship. HelShe is personally known to me ^x has pxaduced {type of identification} as identification. Signature ofI'ersan Taking Acknowledgment ~4081196~-016 CurrEnl~'13d89549v14 a7J131240942'12 PNi OWNER CDR ATLANTIC PLAZA, LTD., aFlorida - limited par~ership By: DELRAY HISTQRIC, NC., a Florida corporation, its General Partner Print Name: Print Name: By. Print Name: Its: STATE QF COUNTY QF The foregoing instrurrtent was aoknawledged before rte this day of 249, by the , of DELftAY HISTORIC, INC., a Florida carparatian, the general partner of CDR ATLANTIC PLAZA, LTD., a Florida limited partnership, on bc:.half of fhe limited partnership. He15he is personally known to me ar has produced (type of identification} as identification. Signature of Person Taking Acknowledgment 0408l~9G92-016 GurrenU134896Q9Uf4 0?Jf312~A62:12PM ~xr-rrr~~T «A„ Legal_Descriptian of ~2elocated 7`~' A~ent~e 0448119fi92•D~8 Curren1113489fi09~14 D?J13l20fl902:12FM fY,f~.. LLm'YCR 'J ~ ~ ~ P.B. 50, PAGE 129 PAINT CF a a `~ C4M~ENCEMENr W W ~ ki 3 ~°~ O ~°~ ~S ~~ ~~ "-'a ~w ~z ~ Q ~ w ~ w ~ A TL,~IV TLG PLA,~A ~- ~ ~PLA T Lad ~7K 5d, ~° ~ ~ a P,4 GE 9~9~ ~~~ d o moo ~ ~~m ~~~ ~~ W°~' L ~ ~ ARC = 1o0.S0' , CA. = 38 3325' m RADUS = 2D5. d0' C.B. = S l8°16'43"W. N4TF5- ---ARC = td5.28' Tf~S 151VOr A SURREY C.A. = 36°33'25" RADIUS = Tfi5.QQ' ~ =CENTERLINE NoRrH Rraar ce. = s iB°16'43"w. QF WAY LINE ,,~ THE NDR7'H LINE CF S~1TH LINE SDUTH UNE PL4T BLDCI~f 116 15 ASSC1'19E0 6+tCGfC 116 S o BODfC 5d PAGE 129 TQ BEAR N.89°58'47'E R ~ D N ° LII~IE P.B_ =PLOT B04k aF WA a S W. CORNER o P.B. pATE.• Jr~N. 23, 2p09 5Q PRGE ]29 rv`i ~ ~ry~+ EAST A TL ANI It 0 Bf?IE'N, 5U17'ER & Q'9RIEIV, ING ' _ r - - CERTIFICATE QF AUTNORIZATIQN ~L83 AVENUE S[JRVEYQR AND d~fAPPeR I!Y i~ESP Nsls !'Hd1?f:'F• 074111 n ~nr_I ~ 8 ~: N. ~~ ~i ~i 7: ~~ ~` a 4 D~ U. ~~ ~; ~; ~~ y~~7 I K ri. 1/ f rT H YCIYLlC, JLN 1 t It t DELRA Y 6EACH F'LOF?I~A 33~~45 QROER NQ. D4-164 7TH AI~EI~'J~' RF ~iLIGMhrfcNT {56I} ,27fi-~5Q1 {56]j 732-379 S`K~T~H ~P D~SC~4IPTI~N EXHIBIT 'A" SHEET 2 pF 2 DESCRJPTIa1V FOR N.E. 7TH AVEMIE RE ALIGNMENT A 4Q FggT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCOr'~DING TO THE PLAT T,4EREDF A5 RECORDED 1N PLAT BDOIf 50, PAGE 129, P[JBL.IG RECORDS aF PALM BEACH COUNTY, FLORIDA AND THAT PORTION DF THE 4O FOOT F2DAD RIGHT DF WR Y FQf~ N.E. 7TH A VEnIUE L PING WEST OF AII~] ADJACENT 7O SAID A TLANTTC PLAZA A5 SH{]WN CYV 7NE PLAT OF TI-~ TOWN DF LINTDN ~NDW DELRAY BEACH ACCgRD1NG TO ThE FLAT THEREpF A5 RECgRDED IN PLAT BOCK r PAGE .~ PUBLIC EGORDS OF PALM BEACH COUNTY, FLORIDA, BEING 4q FFET WEST dF Alm ADJACENT TO THE FALLOWING DESCRIBED LINE. CDMMENC~lNG A T THE NDF?THEAST GORNER OF 5A1D PLAT aF A RANTIC PLAZA; Th~NCE S89°58'15"W., ALONG THE' NOR7N LINE OF SAID PLAT OF ATL4IVTIC PLAZA, A DISTANCE DF .~,~~ ]B FEET TQ THE PQHVT OF BEGINNi'NG,~ THENCE 50°DO'~'E, A DSTANCE DF 359.OT FEET TD A POINT OF GURVATL64E CQNCAVF TD Tl~ IVpRTHWEST HA VII~,QG A CENTRAL ANGLE CF 36°3.3'25" AND A RADIUS OF 2O5 GO FEET,- Tl-IFNCE SDUTHWESTERL Y ALQNG ThE ARC OF SAID CIJI~VE, A DISTANCE OF 13DSO FEET TO A PAINT qF REVERSE CLIh'VATURE C(]NCA 1~E TD TIC 5OUTHEAST HAlI1NG A CENTRAL ANGLE OF 36°3325" AND A RADIUS OF 16500 FEE7; TNE7VCE SgUTNWESTFRL Y, ALONG TIC ARC OF SAID C(~2VE, A DISTANCE OF 105.2$ FEET; THENCE SO°O0 4O'E, A DISTANCE qF 25. Da FEET TD A PAINT AN THE 5q[.JTH LINE DF SAID ATLANTIC PLAZA AND A PAINT QN THE NORTH LINE OF EAST ATLANTIC AVE'IVLF AS NqW LAID OUT AND IN USE AND THE TERNJI~JS PAINT qF' SAID EASEMENT. THE 51DE LINES OF SAID EASEMENT Tq BE EXTENDED DR SHORTENED TO MEET AT ALL ANGLE POIN7"S AND TD TERPrIlNA TE A T TFIE' NORTH AND SgLlTH LINES OF SAID PLAT pF ATLAN77C FLAZA AND THE WESTETi'L Y PROJcCTIDN OF THE SOUTH LIRE OF SAID PLA T AF ATLANTIC PLAZA. PAUL D. ENGLE 5Ul~VEYDR & MAPPER ~`57OS DA ~~ JAN. ~3. 2aQ9 DI2DER No. D4-rs~ ZTN AIIE RE-AL1c~IFNT FYHTRTT "R" Certificate of Substantial Completion D4D8fiP6S2-0'16 Current+13489fi09v14 0?Ji312D09 DP:12 PM 3'repared by and upon Retarding Itetuaei to: Stuart T. Kapp, Esal. Proskauer Rose LLP 2255 Glades Road Suite 3R0 West Boca l2a#on, Florida 33431 CERTIFICATE OE SUBSTANTIAL COMPLETION {Relocated 7"' Avenue] THIS CERTIFICATE OF SUBSTANTIAL COMPLETION (this "Certificate"} is issued as of the day of , 2Q____, by ,City Engineer for the City of Delray Beach, whose address is the "City Engineer"}. V~ITN ESSETH: WHEREAS, this Certificate is issued pursuant to Section 2.1 of that certain Easement Agreement, dated as of , 2QQ~, between the City of 17elray Beach, Florida [the "Clio"}, CDR Atlantic Plata, Ltd., a Florida limited partnership and Atlantic Center, Ltd., a Florida limited partnership {colleGti~ely, the "Owner"), recorded in Official Records Book , Page , of the Public Retards of Aalm Beach County, Florida (the "Easement Agreement"}; WHEREAS, the Easement Aglccment provides that the City Engineer shall record this Certificate upon the substantial cornpletifln of construction ^f a relocated 7t'' Avenue ("Relocated 7t'' Avenue"}. Relocated 7`r' Avenue is legally described as follows: See Exhibit "A" attached hereto and made a part hereof; and WHEREAS, the City Engineer hereby issues this Certificate pursuant to Section ~.1 of the Easement Agreement. NOW, THEREFORE, in accordance with the Easement Agreement and in consideration of the surri of Ten Dollars ($ID.aO}, and other pond and valrrable consideration the receipt whereof is hereby acknowledged, the City Engineer hereby states the fallowing: 1. The foregoing Recitals are true and correct and are incorporated herein by this reference, as ifset forth in their entirety. 2, The undersigned is an engineer for the City of Delray Beach and has reviewed and inspected the construction of Relocated 7''' Avenue. 3. The City Engineer certifies and confirms that the construction of Relocated 7th Avenue has been substantially completed. 8547119692.018 Currentli3544127v1 t1~li31240902:16 PM 4. All terms nat defined herein shah have the meanings set Earth in the Easement Agreement. ~SIGVATURE PAGE FOLLOWS.] 2 8547139692.018 C~rrenfl13544127v1 0211312902:16 PNi ICI WITNESS Vi~'HEREQF, the City Engineer hereby executes and delivers this Certificate as of the day and year first above written. WITNESSES: {Print Name} {Print Name} STATE OF Ctli]h'I'Y GF CITY ENGINEER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me this day of 2d , by ,the City Engineer for the City of Delray Beach. He1She is personally known to the 4r has produoed (type of identification} as identification. Signature of Person Taking ILcknowledgrnent 85d7,'19fi92-016 Ctrrent~13544127v1 fl~Jf3~'2Dp9D2'~5 Pfd EXHIBIT "A" to the Certificate of Su1,stAntia~l Completion Relocated 7`~' Avenue &547119fi92•~16 Curren1113544121v1 021I3l2009Q2t6 PSI rd0~4TH Lrl~ BLACK 115 0 .~ J~ o~ ~w ~~ ~~ FFFr ^~~~ ~~ tr~1 ~1 Q~ IVni4TN ,4rGHT QF Wei Y LINE SafITH LINE 6LCCJC 1~ N(7RTH LINE :B. SD, PRGE 129 •D 5S9°5°58']5"W ~ ~ NE. CDRr1~H-~-f ~ P.8 5D, PAGE 129 ~'~' PG-'NT OF " ~ h4CEMEIVT CC~ W w~ w ~~ aQ ~ ~~ N D ~O ~i ~~ ~ ATLANTIC PLAZA w ~-~ PLA T Baa~r 5a, w ~4 PAGE 1~9~ ~~n ~~~ ~ n V ~~ ~~ ARC = 130.80 C.A. = 3fi°33'25" RADrC1S - 2D5. DD' C.E3 ~ S 18°16 43"~! CA• - 3fi°3325" C.B. - S 18°16`43"W. . °0 5g1JTN Llrl~ PLR T o ~ BDDrC 5D, PAGE 129 RTN RrC~' N Q ry ~° r CF WA Y LrA~ 0 rVQTES• TNrS IS 1VdT A S[.~VEY W CENT~Lri11E T~ nraR~-r Gln~ o~ ~oc~c rrs rs ,assume TD EEAR N89°58'47'~ PB. = PLRT B~rC s w. ear T ~+ P.6. 50. PRGE 129 ~ DATF• JAN. 23, .20p9 ~~ 1 ~ TL_AN~L,r C~RT~ CATS' d Av N SlJRVEYaR AlYA MAr'P2 Y~V~ ~ CHARGE: f~AUL D. ENG ~~ ~; ~~ ~: ~K; O ; ~; $~ ~~ i ~, ~: {JI ~ W ~ x a; a, ~~~Rar'~Facti ~LORraA ~3¢a5 Of~QEfi' rV0 D4-164 7TN AYErI'IJE RE-ALIGrV~NT (56i} 276-45Q1 {561J 732-3279 Sf~ETCH OF DESCRIPTION Exl~arT 'A" sr~EET z OF ~ DESCRIPTION FOR N.F 7TH AVENUE RE-AL1GM~sElv7:• A 40 FOOT EASEMENT BEING A PORTION qF ATLANTIC PLAZA, ACCORDING TD TIC PLAT Tf-~7~EgF A5 REC4RDE0 IN PLAT 8q~ 5Q, PAGE y29, PUBLIC 14ECgRDS qF PALM BEACH CO[AVTY, FLORIDA AIYD THAT PORTION OF T~ 4Q FOOT ROAD R'G'-IT' OF YYAY FOR N.E. 7TH AVENUE LYWG JEST OF AhD ADJACENT Tn SAID A TLANTIC PLAZA A5 SHgWN qN ThE PLAT qF 1'HE rOth'N OF LINTgN ~N4W DELRAY BEACH) ACCORDING TO 1 f~ PLR T THE14EDF A5 RECORDED IN PLAT BgQIC 1 PAGE 3, PU&IC REGgf?D5 DF PALM BEACH Cglr4'V1'Y, FLORIDA, BEING 44 FEET WEST qF AID AD~1,4CEN7' T4 TIC FOLLOWING DESCRBED LINE. COMMENCING A T THE NORTHEAST CQi411ER CF SAIp PL4 T OF A TLANTIC PLAZA; T7-rENCE S.B9°58'15"ICJ., ALONG TIDE' NnRTN LINE' OF SAID PLAT DF ATLANTIC PLAZA, A DISTANCE Gf 22118 FEET TO THE POINT OF BEGIII~VJ~IG,• 77-fENG~ 50°00'QO'E, A DISTANCE OF 359.gI FEET TO A POINT OF CL9`2VA TirRE CCNCA YE TO THE NORTHWEST HA VING A CENTRAL ANGLE GF 36°3325" AIV®A RADIUS DF 205.00 FEET THENCE SgUTI Ni'ESTERL Y ALONG ThE' ARC dF SAID CCA~?VE, A DISTANCE Or 13080 FEET" TO A PAINT OF REVERSE CC~2VA TURF CONCAVE TO THE SpUTNE'AST HAYING A CENTRAL ANGLE OF 36°3325" AID A RADIUS OF 165.OD FEET, n~ENC~E souTywESTFRL r, ALONG Try ARC of SAID C(~4411F A DISTANCE aF cos 2a ~'T; T!-,ONCE SQ°dd'~'E, A D15TANCE G~ 2~Sg0 FFFT l~0 A POINT ON TIC SOUTH LINE OF SAID ATLANTIC PLAZA AND A PAINT ON THE NORTH LIKE OF EAST ATLANTIC AYENl~ A5 NDW LAID OUT AID W USE AND TI-r~' TERMINUS POINT OF 5AIL1 EASEII~Nr ThE SIDE LINES OF SAID EASEMENT TO &E EJCTENQED OR SHORTENED TO MEET A T ALL ANGLE POINTS AND TO TE-411~P'NATF AT ThE NORTH AIdD SOUTH LIKES' qF 5A1D PLAT OF ATLANTIC PLAZA All® TI-E I~JESTFRLY PROJECTION OF 71-+E SOUTH LII~ DF 5A1D PLAT OF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & INAPPER #57QS ^ATE.• JAN. 23, 20a9 aR~ER n~ o4-I64 STN ASE RE AucTVT EXHIBIT "~" Traffic En#'orc~ment Agreement OA~B119&9~-~16 CurrenU134896p9u14 021i3120096~:f2PM TRAFFIC ENFORCEMENT AGREEMENT (Relocated 7`~' Avenue} WHEREAS, the CITY OF DELItAY BEACII, FLQRIDA, thereinafter referred tv as "CITY"} through its Police Department, wishes to make its Community Policing efforts in Atlantic I'la~a, as effective as possible; and WHE1tEAS, ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLAl~ITIG PLAZA, LTD., a Florida limited partnership (hereinafter refereed tv as "owner"} is desirous of the enforcement of state and municipal traffic laws an its property; and WHEREAS, both the C1TY and the Owner feel that such enforcement will make the Cvxz~.enunity Policing effort a more positive influence on the community; and WHEREAS, F.S. 316.06[2},(b},{1} allows for such enforcement on pnivate roads pursuant to a written agreement approved by the City Commission which provides for reimbursenr-ent for actual costs of traffic control and enforcement liability insurance and indemnification and other terms as are mutually agreeable by the parties. Now, therefore, for the mutual consideration, covenants, and matters set forth herein, as of the date set Earth below, the parties hereto do hereby agree as follows: 1. The CITY does hereby agree to enforce all state and municipal traffic laws on Rclocatcd 7`h Avenue, which is described on Exhibit "1"attached hereto. ~. The en#orcement of the traffic laws by the CITY will occur 24 ho~zrs a day, 7 days a week, 3. The Owner shall hereby pay tq the CITY S1.Da per month to cover flee actual costs of the traffic control and enforcement incurred by the CITY, ~. The speed limit shall be that set by Florida Statute 314.183(2} and 315.189{1} of 3 ~ iixpli. S. Signs pasting the speed limit must comply with the Manual of L7niform Traffic Control Devices used by the United States Department of Transportation ("Manual"}and F.S. 315,189(3}. 5. Stop signs must conform to the Manual and specifications of the United States Department of Transportation as stated in Florida Statute 31 G.445{~){b}(3}, 7. The Owner shall defend, indemnify and hold harmless the CITY, its agents, OffiC['rS, aCficials and employees from any and all claims, suits, Causes of actions or any elalms whatsoever made arising frorrc any and all acts by Owner of traffic control and txaffic 8422119692.616 Current113666366~3 021131260903:1PP~A enforcement that occur on Relocated 7th Avenue following the date of this Agreement. Nothing herein shall be deemed a waiver of the privileges and immunities granted to the CITY under F.S. 758.8. This indemnification shall survive the cancellation of this Agreement. 8. The Owner shall provide liability insurance to cover the indemnification in the amount of ~ I,t700,~~dAO and name the CITY as an additional insured. 9. This Agreement shall take effect upon execution and apprQVal by the Delray Beach City Commission and the execution ^f the Owner and shall continue in full force and effect for as long as the certain Relocated 7th Avenue Easement between City and Qwner, which is recorded in the Public Records of Palm Beach County, Florida, is in effect. IQ. The owner 17y signing below, affirms that it has read and understand this Agreement and that it has been given the opportunity to have its attorney of its choice review this Agreement. [SIGNAT[1RE PAGES FQLLDW] 8422!39592-016 Curren}1135663U6v3 02113l2~9 63:12 FNi 2 This Agreement is made and entered into on this day of , 20x9. ATTEST: Cl[TY nF DELRAY BEACH, FLURIDA City Clerk By: Rita Ellis, Mayor Appra~ed as to faz-m and legal sufficiency: Catherine M. l~ozol, A55t_ ~lty Attorney 842?J19fiJ'2-01G CurrenU1356fi306v3 Oa13J2009 63:12 PM OWNER ATLANTIC CENTER, LTD,, a Florida limited partnership By: Atlantic Center, Ina., a Florida. a~rparatian, i#s general partner By: Print hiame: Its: 8422!19692-018 Cur~enU1356fi3x6tifJ x211312009 x3:12 PM ow~vEx CDR ATLAI~ITIC PLAZA, LTD., a Florida limited partnership By: Delray Historic, Inc., a Florida carparation, its general partner By: Print Name: Its: 8A22J19692.016 Current1i35Gfi30Ev3 02l13J200903:1PPM EXHIEIT "1" Relaeate~ 7''' A~en~1e 84P~i'19592-018 CurrenV1356G30fiv3 0~113I2QG903.12 PM a SI~CETCH OF DFS~RlPT1~N Exwalr ':a" sHEFr r of ~ NQRTH 1JNE BLOCfC rrs Q ~~ ~~ o~ ~~ o~ ~m ~~ U ~ o~ m n1oRrH ~rcNr OF WA Y LINE 5O[IrH LINE- BLCGIC rr6 I i~l lV.E. 1ST 5Ti4EET a' ~w ~~a ~~~ ~o$ z R~~ ~°a a ~~ W ~~ ~~ ~' ~~ °z g NgR7H LINF ~ P.6. 5p, PAGE 129 _ 22r.18' .._.~ 1 5.89°58'15"W. ~6 ~ NE GARNER-~-~ P.6. 5d PAGE 129 a m PAINT OF con~naENCEnf~nlr s ~~ a A TLAN~IC PLA,~A (PLAT B~U~C 54, PAGE 1~~~ ARC = r3^.so• ~ CA. = 36°3325" C.B. -~ sr8°r643"W. ~~ ~~ ARC = (0528' Th1S IS IV'J~" A StIRUEY C.4. = 36°3325•' RADltJS = r65.pQ' ~' =CENTERLINE GB = .~ 18°15'3°W. 1-ki THE IVdf?TN LINE QF SOUTH LINE PLAT ELaCIf 116 IS ASSCIMED g BOQX 5Q PAGE 129 TO BEAR N89°58'~7'~ NORTH RIGHT cry v°~ OF WAY Lll1~' P$ =PLAT BC]O!C S W. CORNER o P.B. 50, PRGE 129 Mi DATF.• JAN. 23, 2008 ~ (19RIEN, 5UI TER & O'BRIEN, INC AST A TL_ANTIC _ _ cERTl~rc.a rF o~- AurhlortlzA rioN Les: A I/ENUE SuRVEYDI? ANp MAPPER !rv RESP IVSIBi ruenr_E'. anrrr n cn~rr c 8 c. g~ ~~ w ~` a ~' ~s ; 4. U• V. ~: ~~ ~; a. 0 i i E 3 i S~CFTCH DF DESCRIPTI~IV EXI-OBIT 'A" sr-rEET 2 nF z DF5'CRIPTIGW FOi4 N.E. 7'TH AVEN2~ RE-ALJGNMfENr A 40 FAT EASEMENT 9EING A PORTION DF ATLANTIC PLA~'A, ACCORDING TC T]aE PLAT THEREOF AS RECORDED IN PLAT BnOk 5D, PAGE 129, PUALIC RECOh'D.S OF PALM BEACH CO[INTY, FLORIDA AIr4~ THAT PORTION OF 77-fE 4D FOOT ROAD RIGHT' DF WAY FQR N,E. 7TH AVENUE LYING WEST OF AND ADJACENT TO 5A1D ATLANTIC PLA2,4 A5 SHOWN nN THE PLR T QF' TIC' TOWN DF LINTQN {NOW DE"L,RAY BEACH} ACCORDING TO THE PLAT THEREOF A5 RECORDED IN PLAT BOniC 1 PAGE 3, P[BLIC RECORDS DF PALh4 BEACH COUNTY, FLnR1DA. BEING 4Q FEET WEST CF AND ADJACENT TO THE FnLL4W1NG DE5CR18ED LINE CDIL~I~IENCING AT THE NORTHEAST CORNER OF SAID PLAT" OF ATLANTIC PLAZA; THENCE a83°58'15'1W., ALONG TFIE NORTH LIME nF 5AI1] PLAT OF ATLANTIC PLA2'.4, A DISTANCE DF 22,18 FEET TD TFIE POINT QF BEGINM'NG,' TIYENGE 5 ^°QO DD'E, A DISTANCE nF 359.01 FEET TD A POINT OF C[.44VATCA4E CONCAVE TD THE NORTNYYEST HA ~lNG A CENTRAL ANCLE OF 3G°33'25" AND A RADIUS OF 205.nn FEET; 71-k~VCE SnUTHWE57FRLY ALONG 7NE ARC ^F SAID C[.1RVE, A Df57~ANCE DF T3a 8Q FEET TO A POINT DF REl/ERSE CCA4VAT71RF CONCAVE TQ 77-~ SOUTHEAST HAVING A CENTRAL ANGLE OF 36°33'25" AND A RADIUS 4F 155 Da FEET; THENCE Sn[JTHWESTERLY, ALONG THE ARC nF SAID CURVE, A DISTANCE OF ~n5.28 FEET, THENCE 50°DD`DO'E, A D15TANCE OF 25.D0 FEET TD A Pn1NT C1V THE .SOUTH LINE DF SAID ATLANTIC PLA~'A AND A POINT ON THE NORTH LINE OF FAST ATLANTIC AVENGE A5 NDW LAID OUT AND IN USE AND THE TL~NUS PnNVT nF SAID EASEMENT, THE SIDE LIKES ~ SAID EASEMENT TO BE EXTENDED OR SHORTENED TD MEET AT ALL ANGLE POINTS AND TD TERMINATE AT THE NORT7~ AMJ SOUTH LINES OF SAID PLAT' OF A7LANJ7C PLAZA AND TFE WESTERL Y PRQJECTION QF THE SOUTH LINE OF SAID PLA T nF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER ,~57'O8 ,v,a T~• ~,anr. z3 2aos ORDER ND D4--15~ 7TH AYE RE-ALIGYIG~fENT 1lxlubi# "F" Specifications All ct~nstructic~n fc~r Retccated 7`~ Avenue, including subsurface matters, shall be governed by the latest edition ^f the City of Delray Beach Minimum t/~nstruction Standards and Specifications. 854I~19692-0~6 ~urrenU'13223a28v9 02l73J2~0942:24 PM Fxhihit °LC:" Certificate of Substantial Gampletion Prepared lay and upon Recording Return to: Stuart T. Rapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 L~TVest Baca Ratan, Florida 33431 CERTIFICATE OF SUSS"I"AN'I'IAL COMPLE`T'ION THIS CERTIFICATE DF SUBSTANTIAL COMPLETION {this "Certificate") is issued as of the day of , 24~, by ,City Engineer for the City of Delray Seach, whose address is (the "City Fn~nneer"]. WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section 2.l of that certain Easement Agreement, dated as of , 2009, between the City of Delray Beach, Florida (the "City"}, CDR Atlantic Playa, Ltd., a Florida limited partnership and Atlantic Center, Ltd., a Florida limited partnership {collectively, the "Owner"}, recorded in Official Records Book , Page , of the Public Records ^f Palm Beach County, Florida (the "Easement Agreement"}; WHEREAS, the Easement Agreement provides that the City Engineer shall record this Certificate upnn the substantial completion of construction of a rela~ated 7th A~ernie ("Re]Q~ated 7t'' Avenue"}. Relocated 7t'' A~~enue is legally described as follows: See Exhibit "A" attached here#o and made a part hereof; and WHEREAS, the City Engineer hereby issues this Certificate pursua~Yt to Section 2.1 Qf the ~Lgreement. NOW, THEREFORE, in accordance with the Easerrtent Agreement and in consideration ^f the sum ^f Ten Dollars ($10.00}, and other goad and valuable consideration the receip# whereof is hereby acknowledged, the City Engineer hereby states the fallowing: 1. The foregoing Recitals are true and correct and are incorporated htrrein by this reference, as if set forth in thcix entirety. 85d7f19o92-Q1fi Currentl13223~26v9 Q2113120090224 PM ~. The undersigned is an engineer for the City of l7elray Beach and has reviewed and inslaected the oonstructian of Relocated 7`~' Avenue. 3. The City Engineer certifies and con~xrrns that the construction of Relocated 7'h Avenue has been substantially completed. 4. Al] ternis not defined lzerein shall have thi meanings set forth in the Easement Agreement. [SIGNATURE PAGE FOLLOWS.] s~a~~3 sos~-ai s cu-renvi ~~aeavs a~a+zovs az:2a PM IhI WITNESS WHEREQF, the City Engineer hereby executes az~d delivers this Certificate as of the day and year first above written. Vi~ITNESSES: [Print Name) (Print Name) STATE 4F CQUNTY QF CITY ENGINEER: City Ingineer, City of llelray Beach The foregoing instrument was acknowledged before me this day of 2~ , by ,the City Engineer for the City of Delray Beach. IIe1She is personally known to me or has produced (type of identification) as identification. Signature ^f Person Ta[cing Acknvwledpnent 8547+19692.416 Currenl~1322342fiv9 4?J13~'244942:24 Phi EYHIBIT "A" to the Certificate of Substantial Cam letion Relocated 7`~' Avenue 8~a~t~~~-ors Currenv13223026v9 6~J13+2fl49 X2:24 PM W IVDO+RT~NvLl,NE 9L~1+11 '~6 ~~ J o~ ~~ 00 ~a ~~ UJ o~ NQRTH F?JGNl- OF WA Y LHVE sourH unlE- BLOCIC 115 ~E ~sr srREEr ~~~ W'~ ~~q ~~ ~~~ ~~ ~~~ 0 NORTH LINE P.8 54, PAGE 129 p 22118' 889°58'15"W c.~ ~~ N.F CnRNER ~ P.B 50, PAGE 129 a W POINT OF a m o COMA~f~CEMENT w~ w ~ Q ~ o ~~ ~ ~ ~ i'i ~ ATLANTIC PLAZA (PLAT BCC~C 5~, PAGE 129 ARC = 130 84' C.A. = 3fi°33'25" PA~'U5 = 205.04' C.B. = 518°7643'"W. NOTES• ARC = 9Q5.28' ThAS 1S IVQ7" A SURREY CA. = 36°3325" RAQILJS = 165.04' ~' .~ CEN]ERLINE ~:8. = 518°16'43°W. ~.~] THE NORTH LINE CF 5DL1TH LlI4E PLAT ELCCff 916 J5 ASSCI~IED g S 6~ QRTH RIGHT 9 TQ EEAR N.89°58'4 ~'~ O , N ° OF WA Y LIII~ P.E. =PLAT 60JlC 0 `~ P,B 0 PAU~ 29 ~ dA ~~ SAN. P3', ,~OD9 EAST ~[ TL_AIV?7C _ ~ c°ERr'-~"rca ~ oR Au°~k A 11ENL1E _ SvRVeYOR AND +uAPPE rwe ar_F~ aee n n ~-nrr_~ ~: N~ ~: ~; N; ~~ ~; ~~ ~~ ~; ~; ~; J' a ~~ ~; a: o~ ~ ORDER NO 4¢-164 7rH AVENUE RE-ALIGNi~E1VT ~ tavrf r~o-v~aw ~aa+~ ~~r-terry ~ S~CETGH OF DFSCR~PTI~IV ExFk"61T rr~ rr SHEET Z OF ~ DESCRIPTION FOR N.E. 7TH AVEMIE RE-ALIGNMENT.• A ~40 FOOT EASEILIENT BF1NG A PORTION OF ATLAN77C PLA,~A, ACCORDING TC THE PLAT THEREOF AS RECORDED IN PLAT' B00K 50, PAGE 129, P[JBLIC RECORDS DF PALM BEACH COLWTY, FLa4HJA AND THAT PORTION OF THE ~4D FOQT ROAD RIGHT OF WRY FOR 11IE. 7TH AVENUE L YING WEST OF AND A-OJACENT TO SAID ATLANTIC PLAZA A5 5H4WN CN THE PLR T OF THE TOWN OF LINTON (Np~~ DELRAY BEACH) ACCORDING TO THE PLAT THEREOF A5 RECORDED IN PLAT BnOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH CDGWTY, FLORN.3A. BEING 4Q FEET WEST QF AH,,D ADJACENT TO THE FOLLOWING DESCRIBED LINE. CO~'LfMENCING AT THE NORTHEAST CORNER DF SAID PLAT OF ATLANTIC PLAZA; TI-iE1VCE S89°58'15"N!, ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A D15TANCE OF 2Zt 18 FEET TO THE POINT CF BEGII~M'IJG,• THENCE S p°pp'pp'E, A DISTANCE ^F 359.DJ FEET TO A POINT OF CL44VATl~4RE CONCAVE TO THE NORTHWEST HARING A CENTRAL ANGLE OF 36°33':25" AND A RADIUS OF 20500 FEET THENCE SOUTHWESTERLY ALONG THE ARC CF SAIL] CURVE, A DISTANCE OF 13D8p FEET TO A POINT OF REVERSE C[A4VATURE CONCAVE 7Q ThE' SOUTHEAST HAVING A CENTRAL ANGLE QF 3fi°3325" AND A RADIUS OF 155.D0 FEE7; THENCE SOI.JTHWESTFRLY, ALONG TI-~ ARC OF SAID CURVE, A DISTANCE OF Tf15.Z8 FEET THENCE 5.0°(]000'E, A D15TANCE OF 25.00 FEET TD A POINT ON THE Sa"lTH LINF OF SA1D ATLANTIC PLAZA AI+~ A POINT QN THE NORTH LINE OF EAST ATLANTC AVENL.E AS NOYY LAID QlJT ANO IN USE AND THE TFRII~'NUS PDHVT OF SAID EASEIvdEN7: THE SrflE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET AT ALL ANGLE POINTS AND TO TERMINATE ~# T THE NORTH AM] SOrJTH LINES OF SAID PLA T OF ATLANTIC PLAZA AND THE WESTER[. Y PRQJECTIDIV QF THE SOUTH LINE OF SAID PLA T OF A TLANTIG PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER x`5708 oa r~:- Ant a3 .~aos ORDER ND. O~--16~ 7TH AUE' RF ALrG~,GLfENT Exhibit "H" Substantial Completion "Substantial Completion" far Relocated 7`" Avenue shall mean Installation of all roadway pavement and appurtenances to open the road far its intended purpose. Items not required for substantial completion include, but are not limited to, the final lift of pavement, sidewalks, pavers within the travelway, punch list items and other incidentals. 8547l19692.01fi CurrenN13223026v9 0?J13120Q902~24 PH! F.xhihit "T" Letter of Credi# In farm and from an institution acceptahfe to the City. 8547119692.416 CurrenU13223Q2fiv9 D?J131200962~24PM Exhibit "G" Ta Agreement fyr the Abandonment and ~Relvcatinn of N.E, 7r'' Avenue Form Declaration of Reserved Ri is ~448115fi9P-~16 Current'1349o934v11 421f3l2008 10;56 AM This instrument was prepared by and should be returned to: Brian Shutt, Esq. City Attorney's Office 20Q N.'VV. 1st Avenue Delray Beach, Florida :~34A~4 DECLARATION 4F RESERVED RIGHTS AND AGREEMENT NUT TO ENCUMBER N.E. 7t~' AVENUE (Vacated 7' Avenue) This Declaration of Reserved Rights and Agreement Nat to Encumber N.E. 7°~' Avenue (this "A~eement"} is entered into as of February 17, 209 {the "Effective Date"}, among the CITY DF DELRAY BEACH, a Florida Municipal Corporation {the "C~"}, and ATLANTIC CENTER, LTD., a Florida limited partnership and CDR 1~TLANTIC PLAZA, LTD., a Florida limited partnership [collectively the "Developer"}, for the purpose of setting forth the Developer's contingent obligation to reconvey Vacated ?th Avenue (as defined below}, which the City abandoned. u1~rrTn r .~ A. The Developer intends to construct and develop amixed-use project (the "Proiect"} on that certain real property described as follows (the "overall Parcel"}: See Exhibit "A" attached hereto and made a part hereof. B. Dn February 1?, 2009, the City Commission passed a Resolution the "Abandonment Resolution"), pursuant tv which the City abandoned its interest in and to that certain publicly dedicated roadway mare particularly described as follows {"Vacated 7'h Avenue"}: See Exhibit "B" attached hereto and made a part hereof. The Abandonment Resolution shall he recorded in the Public Retards of Palm Beach County, Florida. C. As a result of the approval by the City of the Abandonment Resolution, the Developer became the owner and holder of fee Simple title of Vacated 7`h Avenue and, pursuant to that certain proposed easement agreement to be recorded in the Public Retards of Palm Beach 1 0408119692.415 Current+'13499016v11 02113l2D09U3:3i PM County, Florida {the "Vacated 7c" Avenue Agareement"}, the Developer has agreed to grant the City an exclusive roadway and utility easement aver, upon, under and across Vacated 7tn Avenue [the "Vacated 7`t' Avenue Easement"}. D. In cvnrcectivn with the development ^f the Project, the Developer ma}~ construct a relocated 7'h Avenue, between N.E. 151 Street and East Atlantic Avenue {"Relocated 7~h Avenue"}, including the installation of improvements located thereon, including, without limitation, streetlights, pedestrian and vehic>r11ar traffic signs and markings, sidewalks, planters, trees landscaping and other related appurtenances. Relocated 7`'' Avenue is legally described as fa6laws: See Exhibit "C" attached hereto and made a part hereof. E. In connection with the construction of Relocated 7th Avenue, the Developer also agreed, among other things, tv grant tv the City: (i) a perpetual exclusive roadway easement far unobstructed and unimpeded vehicular and pedestrian traffic for ingress and egress, and over, upon, and across Relocated 7trt Avenue, and for the City to exercise its gavernmenta! and quasi- gaven~rnental f€inatians with respect to Relocated 7~' Avenue; and tii} a perpetual non-exclusive subsurface utility easement within Relocated 7th Avenue [collectively, the "Relocated 7`" Avenue Easements"}. F. The vacated 7`'' Avenue Agreement provides, in part, that the Vacated 7tn Avenue Easement shall terminate and be of no ~hlrther force and effect u~on retardation of the "Substantial CvmpletiQn Certitrcate" {as defined in the Vacated 7" Avenue Agreement), evidencing chat construction of Ralc~caterl 7th AVL'nE.iL' has been substantially completed in accordance with the "Specifications" has defined in Section 2(a} of that certain Financial Guarantee & Agreement, dated February I7, 2409, between the City and Atlantic center, Ltd., a Florida limited partnership [the "Financial Guarantee"}. G. This Agreement sacs forth the obligations of Developer to re~anvey Vacated 7t" Avenue to the City in the event the City exercises its right of recanveya.nce as described in the Financial Guarantee and as set forth herein. NGVi~, THEREFORE, in consideration ^f the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby Aclcnowlcdged, the City and the Dcvclopcr hcrcby agrcc as follows: I. Recitals. The foregoing Recitals are tr<te and correct and are incorporated heroin by this reference, as if set forth in their entirety. 2. Rcserr~ed,Rights. 2 0408l19692.01fi Current11349901Gv11 42!131200903:31 PEA a. Back rte. The Developer has certain obligations relating to the construction of Relocated 7`" Avenue. The I}eveloper shall [collectively, the "Development Cvnditivrks"): {i} obtain approval of the Developer's site plan by the City's Site Plan Review and Appearance Board no later than December i, 2009 {the "SPRAB Approval Deadline"} (the "SPRAB Approval Cantlitian") (The date 4n which the Developer obtains the SPRAB approval {the "SPRAB Approval"} shall hereinafter be defined as the "SPRAB Approval Date"}; {ii} obtain site plan certification for the Project from the Gity within five hundred and forty eight {548) days fallowing the SPRAB Approval Date (the "Site Plan Certification Deadline"} (the "Site Plan Certification Condition"). {The date on which the Developer obtains the site plan certification of the site plan shall hereinafter be defined as the "Site Plan Certification Date"); provided nothing herein shall be deemed an approval of extension for site plan approval; (iii} construct Relocated 7'h Avenue to the "No Turning Back Paint" {defined below} within one thousand ninety frve [1,095} days after the Site Plan Certification Date {the "No Taming Back Deadline"} (the "Na Turning Back Condition"). The "No Taming Sack Paint" shall be the paint at which the Developer has constructed a tunnel under Relocated 7''' Avenue in accordance with its site plan as the completion of such is determined in the sole, but reasonable discretion, of the "City Engineer" (as defined below}; provided nothing herein shall be doomed an approval of extension for site plan approval; and (iv) dclivcr to the City, within one hundred eighty (180} days after the City adopts the Abandonment Resolution (the "Environmental Audit Deadline"}, a Phase I environmental a~idit report (the "Environmental Audit"), prepared at the Developer's expense by a properly licensed environmental engineer and certified tv the City, attesting that the portion of Relocated 7th Avenue which is not included in the legal description of 'uaeated 7`h Avenue, does not identify any environmental conditions that warrant further investigation in a Phase II environmental audit or require any remediativn or corrective action 54 that the City is an innocent landowner under applicable L31V1ronmU'ntal IdWS and regulations {the "Environmental Audit Condition"). 3 G~108119892-016 vurrenl~'13499ai~v11 4?J1312008~3:31 PM b. Rig~it of Reconveyance. If the Developer fails to timely satisfy the Development Conditions set forth in {a} at,ave, then the City shall have the right to pause the Developer to reconvey Vacated 7'h Avenue tp the City, at the City's option, in the City's Sale and absolute discretion. The Developer's obligation to reronvey Vacated 7''' Avenue to the City in each of the four [4} circumstances set forth in {a) above is hereinafter collectively re#erred to as the "City's Reconveyance Right". c. Evidence of Satisfaction of the Devela naent Conditions. 1'he Devplapcr shall evidence that the 17evelaper has satisfied the Development Conditions set forth in {a} above by recording in the Public Records ^f Palm Beach County, Florida certain certificates to be issued by the City as follows: i. issuance of a letter from the City's Planning and Zoning Departrnent evidencing SPRAB Approval {which the Developer may record by attaching it to an affidavit); ii. a certificate issued by the engineer for the City {the "City Engineer"} confirming that an acceptably Environmental Audit has been delivered to the City by the Environmental Audit Deadline; in the farm attached hereto as Exhibit "D„; iii, a certificate issued by the City's Dircctor of Planning and Zoning Confirming that the Developer has procured site plan certification by the Site Plan C;ertificatian Deadline, in the form attached hereto as Exhibit "E"; and iv. a certificate issued by the Gity Engineer confirming that the Developer has reached thy No Turning Back Paint by the No Turning Back Date, in the form attached hereto as Exhibit "F", The City lrngineer and the City's Director of Planning and Zoning shall issue the above mentioned certificates upon the Developer's timely completion of each Development Condition, respectively. d. Ri~ht_ta Exercise the City's Reconveyance Riglaht. The City may exercise the City's fteponveyance Right if: i. the Developer has not obtained the SPRAB Approval by the SPRAB Approval Deadline; 4 4408!19692-416 Currenf113494Q1fivi1 4?J13124a943:31 FM ii, the Developer has not sa#isfied the Site Plan Certification Condition by the Site Plan Certification Deadline; iii. the Developer has not reached the No Turning Back Point by the No Turning Back Deadline; ar iv. the Developer has not delivered the Environmental Audit to the City by the Environmental Audit Deadline. e. _Methad to Exercise the City's Recanveyance Right. To exercise the City's Recvnveyance Right, the City shall notify Escrow Agent {as identified in Section 3 of this agreement} and the Developer in writing of such exercise within sixty {Gt7} days after the City is entitled tv exercise the Gity's Recanveyance Right because the Developer has failed to timely 5at15fy Qi7e ^f the Development Conditions. T13e Clty'S failure t0 timely exercise the City's Rcconvcyancc Right with respect t4 one of the Development Conditions shall not be deemed a waiver of the City's right to exercise the City's Recanveyance Right as to the failure of the Developer to timely satisfy any of the other Development Conditions. £ Recanveyance Following Exexcise of the City's Rec~nvey_ance Rift. If the City exercises the City's Recanveyance Right, then the Developer shall reconvey Vacated 7`t' Avenue to the City, free and dear ^f all encumbrances, liens and taxes, and title shall be goad, insurable and marketable, subject only to the matters described in Exhibit "G" which is attached hereto (the "Permitted Exceptions"]. Evidence of the Developer's compliance yr noncompliance with the title requirements of this Agreement shall be by the issuance of a title insurance commitment and owners' marketability title insurance policy by a Florida licensed title by Fidelity National Title Company, ar another national title insurer reasonably acceptable to the City and the llevelaper, ar by the opinion of a real estate attorney licensed in the State of Florida selected by the City. g• Termination of the City's Recanveyance Ri1~ht. If the City is entitled to, but does not timely exercise the City's Recanveyance Right within sixty {d0} days after the Environmental Audit Deadline, the Site Plan Certification Deadline, the No Turning Back Deadline yr the SI'RAS Approval Deadline, as applicable (the "Recvnveyance Right Deadline"}, then the City shall forever waive and release the right to exercise the City's Recanveyance Right with respect to the applicable Development Condition, as the case may be. The Developer shall provide written notice of the Recanveyance Right Deadline to the City five {5} days prior to the expiration of the Recanveyance Right Deadline (the "l~econveyance Ri t Expiration Notice"}. The failure ^f the Developer to timely deliver the Recanveyance Right Expiration Notice t~ the City shall cause the Recvnveyance Right Deadline to extend until the date which is five (5} days following the delivery of the Recanveyance Right Expiration Notice by the Developer to the City. The Developer's delivery of the Recvnveyance Right Expiration Notice is not a condition 5 p4DS'19692~16 GurrenV13499015vj1 C2l13120fl803:9i Ph1 to the City's right to exercise the City's Reconveyance Right. If the City fails to exercise the Gity's Reconveyance Right far alI of the I]evelopment Conditions such that the City is na longer entitled to exercise the City's Reconveyance Right (and provided that the City has not in fact exercised the City's Reconveyance Right}, upon the request of the Developer, the City Manager shall execute and record in the Public Records of Palm Beach County, Florida, a "Certification of Termination and Release" evidencing the termination and release of this Agreement and a termination and release ^f the City's Reconveyance Right set forth in This Agreement, which Certification of Termination and Release shall be in the form attached to this Agreement as Exhibit "H". The Certification of Termination and Release shall confirm that all terms and provisions of this Agreement have been satisfied and this Ageement and the City's Reconveyance Right is waived, released and of na further Force and effect confirming that the Developer shall no longer have any obligation to reconvey ~Tacated 7`~' Avenue to the City. h. Sidewalk Installation. The certified site plan shall include a provision for the installation by Developer, at Developer's sole cast and expense, of sidewalks as part of or contiguous with Relocated 7`h Avenue. The sidewalk shall meet the City's minimum sidewalk standards applicable to the Overall Parcel and shall be at least eight feet ~$'} in width. The location of the sidewalk shall be a part of and contiguous with the east and west boundary lines of Relocated 7th Avenue and shall be as set forth in the certified sine plan, and may also extend beyond the boundaries of Relocated 7"` Avenue. The Developer shall grant to the City an unimpeded and unalastructed sidewalk easement, which the Developer shall be obligated to maintain and its cast and expense and whereas the City shall have all rights as if it were a public sidewalk, the farm and content of which shall be in the same form as the City's standard sidewalk easement agreement, which shall be reasonably satisfactory to the City attamey. Section 2. Time of l/ssen~e. Time is of the essence with respect to the provisions of 3. Escrow of Rcconveyancc Deed. To secure the City's Reconveyance Right, the Developer has, on oven date herewith, executed and delivered to City's counsel, Steven D. Rubin, Esquire, as Escrow Agent, a fully executed Special Warranty Deed [the "`Ti~arranty Deed"), the form of which is attached hereto and made a part hereof as Exhibit "1". If the Developer fails tv timely satisfy the Developrr~ent Conditions aril the City properly and timely exercises the City's Reconveyance Right, then upon the City's written notice (together with an executed "Relocated 7t'' Avenue Termination Certificate"} to Escrow Agent and the Developer stating that City has properly and timely exercised the City's Reconveyance Right, the Escrow Agent shall be authorized to and shall promptly record in the Public Records of Palm Beach County, Florida: ~i} the Warranty Deed to effectuate the recvnveyance of Vacated 7th Avenue; and (ii} a "Relocated 7'h Avenue Termination Certificate" evidencing the termination and release of the City's Relocated 7'h Avenue Easements. The form of the Escrow Agreement is attached fi 04Q81396°2•D16 CurrenG't34990t6v#1 OPJ131200903:3i PM heretfl as Exhibit "7" and the form of the Relocated 7th Avenue Termination Certificate is attached hereto as l;xhibit "K", 4. Agreement. Not to Encumber. During the term of this Agreement, except as may be reasonably necessary in connection with the development of the Project, the Developer shall not: {i} encumber the title to Vacated 7`~' Avenue; (ii} lien, sell, Canvey, transfer, pledge, mortgage, or hypothecate Vacated 7`h Avenue; and {iii} permit any person ar entity to acquire any right, title, or interest in Vacated 7th Avenue {collectively referred to as an "Encumbrance"}. Any Encumbrance which is pez-~nitted under this Agreement must expressly acknowledge that it is subordinate and subject to the City's Reconveyance Right set forth in this Agreement and that any such Encumbrance shall be extinguished and terminated if the City exercises the City's Reconveyance Right set Earth in this Agreement. Prior to creating any such Encumbrance, the Developer sha11 provide the City with written notice thereof together with satisfaction of such other requirements of the City and an acknowledgement from the beneficiary of such Encumbrance of the extinguishment of such Encumbrance upon the City's exercise of the City's RewnveyanCe Right and any other related matters the City shall reasonably require, including without limitation, an assumption of the Declaration, and a replacement Warranty Deed front the new owner of the Vacated 7`~' Avenue to be placed in escrow with the Escrow Agen#, provided fee simple title to the Vacated 7`h Avenue is transferred. Any Encumbrance not obtained in accordance with the terms and provisions set forth in this section shall be void and have na farce or effect with respect to Vacated 7'h Avenue, and shall at all times be subject and inferior to the City's Reconvcyancc Right. The City shall be entitled to obtain a judgment against any person or entity who may hold an Encumbrance declaring that the Encumbrance is void and of no force and effort and it is extinguished fi'am the Public Records of Falm Beach County, Florida with respect to Vacated 7th Avenue. The City's remedies include, but arc not lirnitscl ta, injunction, specific performance, quiet title, and declaratory relief. 5. Default and Remedies, 5.1 Default. The failure of the Owner or the City to observe or perform any of their respective ^bligativns under this Agreement {the "Defaulting_Party"} within thirty {34} days after receipt of written notice from the other party specifying the nature of the failure {the "Nori- Defaultinc Forty"], shall constitute a default and breach of this Agreement; provided, however, if such failure is of a nature that it cannot reasonably be cured within such thirty {30} day period, then the Defaulting Party shall not be in default sa sang as the Defaulting Party commences s~zch cure promptly after receiving such written notice, and is diligently pursuing such cure to completion. The foregoing shall not apply to the Developer's failure to satisfy any of the Development Conditions. 5.2 Remedies, The terms and provisions of this Agreement are enforceable with all remeries at law and in equity, including, but not lirrxited ta, bringing an action for actual 7 d4Q&1i9692-43fi Currentli3499p16vi1 O~Jt312009D3:3i Piul damages, an action for specific performance, an action far temporary restraining orders, preliminary or permanent injunctions, declaratory judgments or other similar orders for relief; provided, however, that suspension or teni3ination of this Aga~eentent ^n accvurit of a }~reaclr shall not be an available remedy unless otherwise expressly provided for hcrcin. The panics filrthcr agree #hat neither party shall have the right to recover any consequential, punitive, special, extraordinary or speculative damages as a result ^f the breach of this Agreement- The parties to this Agreement hereby acknowledge and stipulate the inadequacy of legal remedies and the irreparable baron tlrat would Ue caused by a material breach of any obligation under this Agrccmcnt by a party to this Agrccrncnt. This Agreemcnt may oat be suspended ar terminated except by an instrument in writing signed by the City and the Developer and retarded in the real property records at--Palm Beach County, Florida- 5.3 Additional Remedy, Iftlie City exercises the City's Recanveyance ltigtrt but Vacated 7~' Avenue is oat effectively reconvcycd tv the City in compliance with the terms and conditions of this Agreement, or if reconveyed, there is a breach of the Developer's oblige#ion not to encumber Vacated 7~' Avenue, yr the City does not obtain goad, insurable, and marketable title to Vacated 7`" Avenue, subject only to the Permitted Exceptions, in that event, in addition to any other available remedy tv the Gity, the City may declare a violation of andlor withhold, [ieny, abate, yr revoke approval ^f any then pending or existing permit, site plan, development ^rder, variance, or other governmental or quasi-governmental consent which relates to or concezns the Qverall Parcel, until the Developer causes the reconveyance of Vacated 7~' Avenue to the City in compliance with this Agreement. 5. l~lytice, Any notice, demand or request which may be permitted, required or desired to be given in connection therewith shall be given in writing and directed to the City and the Dwner as follows: As to City: City of Delray Eeacla 1 OO I~,W. IS` Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561)-278-475 With a copy to: 200 N.W. ls~ Avenue Delray Beach, FIarida 33444 Attn_ City Attorney Facsimile; (561}-27$-4755 As to Developer: Atlantic Center, Ltd. cla CD5 International Holdings, Inc. 0408!19692.016 Cvrrentl13499016vii 0?J13lP009a3:3€ PM 3299 N.W. Z"~ Avenue Saco Ratan, Florida 33431 Attn: President Facsimile: [5b1 } 278-6930 CI]R Atlantic I'laaa, I.,td. clo CDS International Holdings, Inc. 3299 N.W. 2"d Avenue Boca Raton, Florida 33431 Attn: Presiden# Facsimile: (5b1} 278-693[3 !~s to Esaraw Agent: Steven D. Rubin, Esquire 9$ON. Federal Highway Suite 434 Boca Raton, Florida 33432 Attn: Steven D. Rubin Facsimile: 561-347-0828 Notices shall be deemed properly delivered and received when and if either [i} personally delivered; or (ii) one [ 1) business day after deposits with United Parcel Service or other overnight courier far next day delivery; or {iii} the same day when Sent by canf~rmed facsimile before 5:00 p.m. [Eastern time}. 7. General Provisions. 7.1 Amendrrrent. This Agreerz>.ent znay be amended or modified only by a written instrument signed by bath parties or their respective successors and assigns, which instrument must be recorded in the I~ublic Records of Palm Seach County, Florida. 7.2 Entire Agreement. This Agreement sets forth the entire agreement between the Developer and tlae Gity and supersedes all prior and conterr-paraneous negotiations, understandings and agreements, written or oral, between the parties. 7.3 Governin>a Law. This Agreement will be interpreted and enforced in accordance witl-i Florida law. 7.4 Succe550rs and Assigns. The covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigns nftheDevelaper and the City. 9 0468.+19G92-01S Current1134990i8v11 02113,''269 D3:31 PM 7.5 Authority to Execute; Representations. The Developer and the City each warrant and represent to the other that the individuals signing this Agreement on behalf of the Developer and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto. 7.6 Counterparts. This Agreement may be signed in two or more counterparts, each of which constitutes the Agreement of the parties and each of which shall Ue treated as air original. 7.7 Nan-Public. The Developer and the City specifically acknowledge and agree that this Agreement and the rights and obligations granted hereunder are not intended to be, and shall net constitute in any respect or mariner, a public dedication of any right or interest of the Developer in Vacated 7a' Avenue whatsoever, but rather are private rights for the sale use and benefit of the parties hereto, their respective successors and assigns. 7.8 Breach Shall Not Permit Termination. it is expressly agreed that no breach of this Agreement shall entitle either the Developer or the City to terminate this Agreement, but such limitation shall not affect in any manner any other rights or remedies which either the Developer ar the City may have hereunder by reason of any breach of this Agreerrxent. 7.9 Severability. if any term or provision of this Agreement or application thereof to any Berson or circumstance shall, to any extent, be found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, snail not be affected thereby and each term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 7.1 ~ Non-Waiver. No waiver of, ar failure to assert, any claim, right, benefit or remedy of any party pursuant to this Agreement shall operate as a weaver of any other claim, right or benefit. The failure of any party at any time or times t^ require performance of any provision hereof shall in no manner affect such parry's right at a later time to require such performance or to enforce the lama fully. No waiver or modification of the terms hereof shall 6e valid unless in writing and signed by the party to be charged, and then only to the extant therein set forth. 7.11 Headings. The headings of the articles of this Agreement era far guidance and convenience of reference only and shall net limit ar otherwise affect any of the terms or provisions of this Agreement. 7.12 Covenant Running with the Land. This Ageement and all of the rights, duties and obligations of the parties with respect thereto, shall be construed as covenants zunzi.ing 1~ OA48175692.O7B Currenll73499a7Gw71 OPIi312009D3:37 PM with the Iand, binding and inuring to the benefit of the City yr the Developer, as the case may be, their respective successors, assigns andlor grantees. 7.13 3oinder by Mort~es. By its joinder in this Agreement, all mortgagees holding a lien against Vacated 7th Avenue, if any, have consented and do hereby cnnsent to this Agz~eernent, artd the Iicns and se[;urity interests held by such lienholders are hereby made subject and subordinate to the terms of this Agreement without the necessity of the execution of any other document. Any future deeds of trust or mortgages shall automatically, without the necessity of any additional instrument, be subject and subordinate to the terms and conditions of this Agreement and shall be bound by the terms of this Agreement. Any party foreclosing any such deed ^f trust or mortgage, yr acquiring title by deed in lieu of foreclosure or trustees sale shall acquire title subject tv all the terms and provisions of this Agreement. 7.14 Joint Pr~aratian. The preparation of this Agreement has been a joint effort of the City and the Developer and the resulting document shall not, solely as a matter of judicial construciirrn, be wnstr~red more severely against one party than the other. 7.15 Attorneys Pees, In connection with any litigation, or dispute arising out of this Agreement, each party shall hear its awn attorneys' fees and costs. 7.16 Further Assurances. The parties agree to execute all future instnunents and take alI further action that may be reasonably required by any party to fully efFectuate the terms and provisions ofthis Agreement acrd the transactions contemplated herein. 7.17 Venue. Any dispute relating to this Agreement shall only be filed in a court of competent jurisdiction in Palm Beach County, Florida, and each of the parties to this Agreement submits itself to the jurisdiction s]f such court. 7.18 Hazardous Substances. Neither the Developer nor the City shall cause or permit at any time during the term of this Agreement, any hazardous substances to be dispnsed of ar vtherwrse released an, to yr under Vacated 7~' Avenue or Relocated 7th Avenue. Neither the Developer nor the City shall engage in operations over, upon or under Vacated 7t'' Avenue or Relocated 7~' Avenue that involve the generation, manufacture, refining, transportation, treatment, handling or disposal of "Hazardous Substances" or "hazardous wastes" as such terms are defined under any environmental laws. Developer acknowledges however, that Vacated 7'h Avenue wilf be utiliceti for paricing and driving; vehicles which may leak ail, gasoline, yr other fluids onto the gr-aund, and City shall not be responsible for removal of such waste or have any liability far it undex this Agreement. 7.19 No Third Parke. Beneficiaries. No private parties other than the City shall have the right to bring a cause of action against the Developer under this Agreement. 11 04tl8139692-a16 CutrenV13499016vi1 ~TJi3120D90331 PEA 7,2~ Farce Maieure. if any party to this Agreement is delayed, hindered in, or prevented from the performance of any act required to he perfanned by that party by reaso« of acts of God, strikes, lockouts, unavailability of materials, failure of power, pmhibitivc governmental laws or regulations not imposed by the City, riots, insurrections, the act ar failure to act of any ether party tv this Ab Bement, adverse weather cnnditions preventing the perfant;ance of work as certified tv by an architect, war, act of terrorism, or other reason beyond that party's rcasona6le control and for which, in each of the aforesaid circumstances, tl~e party is diligently and in goad faith and with reasonable dispatch seeking to abate and remove the circumstances Causing the delay ar hindrance or prevention fram performance of the act required to be performed by that party, then the time for performance of the act shall he extended for a period equivalent tv the period of the delay. Lack of adequate funds or financial inability to perform or financial or economic losses or hardship resulting from. performance shall not be deemed to be a cause beyond the reasonable control of such party. 8. Na Penalty. Tlie Developer acknowledges that construction of improvements on the Overall Parcel is subject to the City's Rccanveyance Right. Therefore, s~rch construction is at tl~e Developer's risk and that the loss of such improvements resulting fram the City's exercise of the City's Recanveyance Right shall not be deemed a penalty or forfeiture. g. City Approvals. The City reserves its authority to approve ~e architectural design and site plan of the Project and the issuance of building permits in accordance with its governmental and quasi-governmental functions. The foregoing provision shall not impose any additional requirements or obligations an the Developer or the 1'raject other than as set forth in the City's code of ordinances and all other applica>31e laws and codes or in addition to any and all approvals for the Project granted and approved as of the Effective DaI~. 1 Q. Governmental Functions. Notrx~ithstanding anything to the confrary contained in this Agreement: a. Even though the City has certain contractual obligations under this Agreement such Qbligations shall net relieve ally person subject to this Agreement fram complying with all applicable governrrtental regulations, rules, laws, and ordinances; b. '1'o the extent approval or permission must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable govemmental regulations, rules, laws, and ^rdiriaxices, a1><d no person shall have any vested rights; c. The City has net waived its sovereign immunity and the tart limits of liability set forth in l~la. Stat. 768.28 which are currently ~1 Q~,aD~ per person and $2OQ~Q0 per occurrence are applicable; and 12 04p8119p92-ai6 Currenf1~3499e]t6vi1 U2113l2009d3:31 PM d. Any action by Cite shall be without prejudice ta, and shalt not constitute a limit on, iinpainrzent ar waiver crt, ^r otherwise affect City's right to exercise its discretion in connection wi#h its governmental ar quasi-gvvernn~cntal feinctions. I1 _ Termination. Notwithstanding anything contained in this Agreement tv the contrary, if the City exercises the City's Revonveyance Right, the City's easement rights in Vacated 7'~` Avenue shall not terminate until Seth time that the City is vested with marketable and insurable title to the fcc of Vacated ?u` Avenue and the "Abandoned Ailey" has defined in that certain Declaration of Reserved Rights and Agreement Nat to Encumber the Abandoned Alley, dated l~ebruary 17, 2t7~9, between the City and the l]evelvper} subject to matters of retard against Vacated 7`t' Avenue and the Abandoned Alley which existed as of February 1 b, ~t}D9. E~ECL]TICN PAGES TG FGLLDW 13 04081t969Q•dtfi CurrenVt34990ifivil C2J73120J903:33 ?M N ~'L~ITNESS ~Tf-iEREQF, the pdz-ties #o this Agreement set their hands and seals the day and year first abar~e written. ATTEST: $y: City Clerk Appra~~ed as to Farm: By: City Attorney STATE aF CQUNTY QF CITY ~F DELRA'Y BEACH, FLORIDA sy: Name: Its: Date: "1'he €nregaing instr~ent was acknowledged hefare me this day of , ?409, by _ ,the of the CITY aF DELRAY BEACH, FLORIDA. He1She is personally kl~vwn tv Ille ar has produced (type of identification} as identification. Signature of Person Taking Acknowledgment U4Q8119692-D16 Cufrentli349@ai8vil 421T312D09a3:3I PM WITNESSES: Print Narne: Print Name; STATE dF C:OI]NTY OF The fr~regving instrument was acknowledged F~efgre me this day of 2009, by , as the , of ATLANTIC CENTER, INC., a Florida corporation, the general partner of ATLANTIC CENTER, L'l'1}., a Florida limited partnership, an behalf of the limited partnership. He1She is personally known to me ax has produced (type of identification) as identification. Signature o€ Person Taking Acknawledgrrcent DEVELOPER ATLANTIC CENTER, LTD., a Ffarida limited partnership By: ATLANTIC CENTER, INC., a Florida corporation its General Partner Sy: Print Name: Its: i14b8119fi92•a1fi CurrenVi34990ifiv11 42l1312~69Q3~31 PH! DEVELaPER CDR ATLANTIC PLAZA, LTD., a Florida Iimited partnership Sy: DELRAY HIS'I~RIC, INC., a Florida corporation, its General Partner Print Name: Print Name: Sy: Print Name: Its: STATE OF CU[INT7~ OF The foregoing instrument was acknowledged before me than day of 2~q9, by the _ of D)±LRAY HISTORIC, INC., a Florida corporation, the general partner of CDR ATLAI~ITIC PLAZA, LTD_, a Florida limited partnership, on behalf of the limited partnership. He1She is personally known to 1ne or has produced (type of identification} as identification. Signature of Person Taking Acknowledgment 04b8I19fi92.016 CurrenUi3499Qf61ii1 02I7312o0903:31 PM EXHIBIT ".A," Le aI D~scri Pion of #ho D~erall Parcel Q4Q8li969e-OiG Currenf1i3499p1$v1i 42l13l2U09Q3:31 PM DESCRIPTION OF PRO]ECT SITE: LOT 1, LESS THAT PORTION I]EEI3EI7 TO THE STATE OF FLORIDA FUR READ RIGHT OF WAY , AS DESCRIBED IN OFFICIAL RECORDS SDQK 511, PAGE 516, LOTS 2 TI~OUGH 11, INCLUSIVE, LFSS THE WEST S.d FEET THEREOF FOR ROAD RIGHT OF WtAY, LQTS 12 THRDL7GH 19, INCLUSIVE, LOT 2d, LESS THAT PORTION FOR THE RIGHT DF WAY FOR EAST ATLANTIC AVENUE AND U.S. HIGHWAY NU. 1, LU'1'S 21 "1'HRUUGEi 24, INCLUSIVE, LESS THE SOUTH 7.d FEET THEREOF FOR ROAD RIGHT DF WAY, ALL THE EAST-WEST ALLEY LYII~~G SOUTH DF AND ADJACENT TD SAID LOT 11, LESS THE WEST 5.d FEET THEREOF FOR ROAD RIGHT OF WAY, ALL OF THE NQRTH-SOUTH ALLEY RIGHT OF V[~AY LYING EAST DF AND ADJACENT TD LQTS 1 THROUGH 1 i, INCL[15IVE AND LOT 22, LESS THE S[7C]TH 7.^ FEET THEREOF FOR ROAD RIGHT OF WAY, ALL LYING IN SLACK 116, TQWN OF LINTQIv (NOW DELRA3~ I3EACHJ, ACCORDING TD THE PL.aT THEREOF AS RECQRDED IN PLAT BOOK 1, PAGE 3, FUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA_ TOGETHER WITH: ALL OF THE PLAT OF ATLANTIC PLAZA, ACCORDING TG THE PLAT THEREOF AS RECOR~EI~ IN PLAT BDUIC 5d, PAGE 1.29, PUBLIC RECCR175 DF PALM BEACH COUNTY, FLORIDA. AND TOGETHER WITH: THAT PORTION OF '1'HE EAST HALF DF THE 5d FOOT ROAD RIGHT DF WAY FOR I~T.E. 7~ AVENUE LYING WEST QF AND ADJACENT TD THE SAID PLAT OF ATLANTIC PLAZA, AND THAT PORTION OF THE WEST HALF DF THE 5d F4QT ROAD RIGHT OF Vi~AY FOR h.E. 7~~ AVENUE LYING EAST OF AND ADJACENT TD SAID ELDCK I16, LESS THE 50UTH 7A FEET THEREOF. EYHIBIT "B" Leal Descrx~tian of Vacated, 7'~' Avenue D4U8~19692-016 Curren1113499Q1fiv11 Q2l13~20Q903:31 PEA W NOf2TN LIIrE BLOCK 11fi N89°58 47'E NOTES• ~NQRTI-1 LHVE P.B. 50, PACE 129 TI~515 IVOT A 5I~64VEY = CENTERG.I+VF n! ~~ ~~~ ~ ~~ o~ ~ ~~~ wh ~~ ~~ ~~ ~ ~ ~ ~ ~ ~~ ~~ o ~- ~~ ~ o ~ ~ o~ ~° ~~ ~ ~' `V ~' o ~' Q O ~~ ~ ~ o ~~ C~ ~ ~ z ~ ~~ souTH LINE s w. Cow~wR B[. DCfC 1 ~ P.B. 50, PAGE 129 ~F~ A YRLWE E,asr ,~ rc~arvr~c ~ v~vu~ oESCRrPTroly ALC TNA T Pl]R77CIV OF T~ 4U FOOT ROAD R1GHT OF WA Y FOR fV.E TTN AVENUE BO(A1®ED R5 FOLLOWS.• OlJ 77-~ NORTH 8Y THE EASTE.RL ]` EXTENSIDIV OF TI E NORTH LINE OF BLOG~C 116, TpWN OF LI,VTON {NpW QELRA Y BEACH}, ACCARI~'NG TO 7~1f PLAT THEREOF A5 RECOR^Q7 IIY PLAT 6~ ~ PAGE 3, PL~LIC REGARDS C8~ PALM BEACH CnLA11TY, FC.ORIDA Al1,~ DIV THE SQUT1-! 8Y T7 dE EASTERL Y EXTENSION OF T!-~ SOUTH LINE QF SAID BLOCK TT6. 77 ~~ NCRTN L1NE OF BLQCif X16 IS A55U~ Ta 6EAR N89°S8%~7"E P.B =PLAT BOAC PR UL D. ENGLE SURVEYOR & 144APPER ~`57U8 I1A TE.• ~u~ r s, zoos ~; ~~ ~: a; ~; ~• ~: ~a~ ~; ~: s: ORDER lVQ. 04-164 PARCEL 8 A8Ah~0P~44~NT EXHIBIT "C" Legal Description of Relocated, 7rh Ave~uc 0408119692-016 Ctrrent113499a18v11 02113!200903:31 PM SFCETCH OF DESCF~fPT~~N Exr~aalT ';a " SHEET r OF ~ b w N~ ~sr sr~EEr _ ~ ~ _ a ~ NORTH Llt~' ~ P.B. 5D, PAGE 129 22118' N7RT-`-I LINE 5.89°58'15"W. eLOCx 116 o ~ P.B. r5D PAGE 129 ~i POINT OF i ~ CQA~l+~lENCE?rlEIVT w ~ ~; ~^ r j ~~ ~a ~ ~ ~i a ~ ~ ~ ~ ~ A TLAI~TIC PLAZA ~ ~ ~- ~ (PLAT BGG~C 50, s~ ~ ~ 4 PAGE ~~9) ao ~~" ~ o ~~~ ~~ ~ ~~~ U 4 ,ARC = r~o.so' ~ ~' C.A. = 36°33'25" RppAa'~IS-p 205~.74DF~'~ I YI.J ~J. ~--~---ARC =10528' Th95 151~OT A 5(JRVF}` C.A. = 36°33'25• RAQI[JS = 165.OD' ~ . _ (,~M~.INE NORTH RIGHT C.B. = 518°16'43"W. OF WA Y LINE ~ TIC NORTH LINE O!- SOUTH LINE g 50UTN LIII~ PLAT BLG~C 116 IS A55CJ~~D BL 4GC 116 a S BOOfC 50, PAGE 129 TO FEAR N.89°58'47'E 0 o NORTH RIGHT ~ D N ~ OF' WAY LINE P.8 =PLAT 80DK a O S. W. C~RI1~72 ~ pA TE• JRN. ~3. 2Q09 ~t P6Z SC, PAGE 129 ~'S 0 9RIEN. 5UI TER & O'81~IE~ ING EAST A~rLy_ANTIC CERTIFICA 1'E OF AU7~NaRlZATIQh! ~L6353 A VENUE - _ CHARGE: PAU~A. ENGLE IN RESP NSY9LE 955 N W. 17TH AVENUE, 5U1TE Kr i1ELRAY BEACH FLORIDA 33445 O4OFR N0. 0~4-164 7TH AuEI+RIE RE ALIGIVhAENT (5sr} 276-a.so1 {56r) 732-3,279 8~ ~: ~• ~; ~~ ~5 ~; $; ~~ S~~ SS 5J5 ' 4, ~; ~: ~: o~ s~cFTC~ o~ ~FS~~~~rion~ Ex~lelr 'a N sl~Er 2 of 2 oFSrrRIPno~v FDR N.E. 7TH A VEn,~ R~ ALra4w~-nrr.~ A 40 FOOT EASFMEIVT BEING A PORTION OF ARANTIC PLAZA, ACCQf?DING TO TI-~ PLAT THEREOF AS RECORDED NV PLA ]" BDOIC 50, PAGF 129, P[~LIC RECORDS DF PALM 9EAGY-1 CQL+PVTY, FLORIDA AND T?YA T POR77ChV OF TI~• ~40 FOOT J40AD R+'GNT OF 61'A Y FQ1~ NE 7TH AVEMJE L PING WEST OF .4ND AI]JAG'ENT TO 5A10 A TZANTIC PLAZA AS SHOWN OA! T!-,E PLAT OF THE TOWN OF LINTON (IVQW DELRAY BEACH) ACC~NG T4 T~$ PLAT TI-fEREpF A5 RECORDED IN PLAT BdOfr I PAGE 3, PUBLIC REG'ORDS OF PALM BEACH CO(~'VTY, FLORIDA, BEING 4D FEET WEST OF AIJfl ADJACF1VT TO T]'~ FOLLOWING DESCRI9ED LINE. COII~fENC1NG AT THE N0,4THEAST CORI~R QF SAID PLAT QF ATLANTIC PLAZA; THENCE 5S9°5$'t5"~!, ALONG Tf-!E !NORTH LINE OF SAID PLAT ~' AT2.AIVTIC PLAZA, A DISTANCE OF 221.18 FEET TO THE PDIIYT OF BECIM'v~NG; THENCE 54°4a'~'E, A G~+STANCE DF 359.01 FEET TD A POINT QF CL~4VATL~-'E' CONCAVE TO T7~E NORTHWEST HAV1140 A CENTRAL ANGLE OF 36°33'25" AND A RADIUS DF 2x5.00 FEET; T]-~NCE SQUTr-(WESTERLY ALONG Tlf ARC DF SAID CCA~VE, A DISTANCE DF 13080 FEET' Td A POINT' OF REVERSE C[A4YATURE GONGAVE Td THE SdUT1-EAAST HAVING A CENTRAL ANGLE DF 36°3325" AI4D A RAf]IUS OF T65.Da FFET, THENCE SOUTHWESTERL Y, ALONG T1~ ARC {7F SAID CL~2VE, A DISTANCE OF 105.28 FEE'7;• TI$7VCE 5.D°0d'0d'E, A DISTANCE QF 25.D0 FEET T•O A Pd'NT ON THE 50UTN L11~ OF SAID ATLANTIC PLAZA AND A POINT ON T7-~ NC7RTH LINE D~ EAST' A TLAIV77C AYEI~ AS NOW LAID dUT AID W CISE A1~ TIC TERMINUS POINT OF SAID EASEMENT. TFJE SIDE LINES QF SAID EASE1~!E1VT Tp BE EXTEI~~D DR SHORTENED TO MEET AT ALL ANGLE POIldTS AND TO 7E'RMIh;4 TF AT TI-,E NDRTN AND SOUTH LINES OF SAID PLAT dF A 7LANTTG PLAZA AID Tf•~` WESTERLY PRD~ECTT[7N QF TI-,E SDtlTN LAVE .aF SAID PLAT OF ATLAIV77C PLAZA. PAUL D. EIVGLE SURVEYOR & tilAPPER X5708 ~a rE.~ J.4N 23, aoa~ OI2DEJ4 NO. 04-16~ 7TH AVE RE-AL.IGI~dh~fEl~lT ~~ S y~ ~' M h ti w ~~ q; ~~ $; ~: 4' U. ~~ ~~ ~~ a' ~~ a'~ 0~ 45x1 {56TJ 732-3275 L'~'XHISIT "D" Certificate of Delive of Environmental Audit 04C8119fi92-016 Curre~U13499p1fiv11 42J13+20a9Q3:31 PM Prepared by and upon Recording Rctum to: Stuart T. Kapp, Esq. Praslcauer Rose LLP ??55 Glades Road 5ui#e 3~t7 West Snca Ratan, Florida 33431 CERTIFICI~TE flF IELIVERY OF ENVIRONMENTAL AUDIT THIS CERTIFICATE 4F DELIVERY Ol~ ENVIRONMENTAL AUDIT [this "Certificate") is issued as of the day of 2809, by , City Engineer for the City of Dclray Beach, whose address is (the "Cit En 'veer"}. WITNESSETH: WHEREAS, this Certificate is issued pursuant to 5ectinn 2 of that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7`h Avenue, dated as of , 2Qa~, bctwccn the City of Delray Beach, Florida {the "Ci~t rr"}, Atlaiitia Center, Ltd., a Florida limited partnership and CDR Atlantis Plata, Ltd., a Florida limited partnership (collectively, the "Developer"}, recorded in Dfftcial Records Baok ,Page , of the Public Records of Palm Beach County, Florida {the "Declaration of Reserved Ri hts"}. The Declaration of Reserved Rights encumbers that certain roadway more particularly described as follows ~"Vacated 7`h Avenue"}: See Exhibit "A" attached hereto and made a part hereof. IVOW, THEREFORE, in accordance with the Declaration of Reserved Rights and in consideration afthe sum afTon Dollars {$lQ,QO}, and other good and valuable consideration the receipt whcreof is hereby acknowledged, the City Engineer hereby states the fnllnwing: 1. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. The undersigned is an engineer for the City of Delray Beach and has reviewed the EnviranmentaI Audit. 3. This Certificate satisfies that certain requireE-nent set forth in Section 2(c](ii} afthe Declaration of Reserved Rights which provides, in part: The Developer shall evidence that the Developer has satisfied the Environmental Audit Condition by recording in the Public Records of Palm Beach County, Florida a cartifrcate issued by the City 85471[9692-a16 Curre,~U#374]334vt 62113r29Q9 Q251 Fl~A Engineer canfiinzing that an acceptable Environmental Audii has been delivered to the City by the Environmental Audit Deadline. 4. All terms not defined herein shall have the meanings set forth in the Declaration ^f Reserved Rights. [SIGNATL]RE PAGE FnLL~WS.] 2 8547!19692-U3fi Currentl13541334vf ~2113J2~902:5T PM 1N WITNESS WHEREOI', the City Engineer hereby executes and delivers this Certifircate as of the day and year first above written, WITNESSES: (Print Name) Print Name} STATE 4F COUNTY QF CITY ENGI1~ EER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me #his day of 2009, by ,the City Engineer for the City of Delray Beach. He1She is gcrsonally l€~-~own to me or has produced {type ^f idea--tir~;afion} as identification. Signature of Person Taking Acknowledgment 8547f1969~-016 Current113541334v1 Q?113I2~9a~57 PM ~~I~IBIT "A" to the Certii7~ate of Delivery„ of En,,v,,,ironmental Audit Vacated 7~n Avenue 8547l19692.01fi Currenl113541334v1 02!13!240902:57 PM w U c~ g N.89°sa~~~'~ NQRTH LlNE~ I I `NORTH LIME BLDC1f 118 1 P.8 5D, PAGE r29 ~~ ~ ~ T- ~~ w~~ ~ ~~ ~Q ~ W ~~ ~Q w ~~~` W~ ~~ ~~ ~~ ~a ~~° ~ w~ap ~~ ~ o ~~ ~ '~~ ~~ O ~ ~ ~ ~ . to O • `h~ ~ ~ { ~Q ~ ~ ~~ ~~ ~~ ~ 4 ~ ~-- SOUTH LlIIE S W. CORNER BL.CCK r16 P.B. SD, PACE 129 NQRTN RlG'-!J" OF WAY LHYE EAST A TLAIVTI~ A ~IEII~CIE NnrES:~ i"!-~'S f5 IVOT A SURVEY - CEIVTFRLrnE r"HF NaRrH LrnE of BLOCK rrs !5 AssuMEO rO BEAR N.89°58 ~7'E P.8 =PLAT BODK aESCRiPnON~ ALL THAT PpRTION OF ThE 4D FAT RDAD RIGHT OF WAY FQR NE. 7TH A I~EN[.]E BU[JNDEd AS FOLLOYYa ON TI-E NORTH BY 7NE EA57ERLY EXTENSION OF T15E NCRTI-,+ UIiE OF BLOGYC J1fi 7~DWN QF" LINTD,'V (1VOW ^ELRAY BEACH , ACCDR~E+N+G TO Tf~' PLAT Tf-,ERE A5 RECORDEI] IN PLA BQQft 1, PAGE 3, PG~[.!C RECORDS OF PALM ~_"ACH CIX~4VTY, FLORlL]A ANG O!'! Tf-E SQUTH BY Thy' EASTEh'LY IXTENSlQN QF Tl,E SOUTH Lll~ of sAl~ eLO~c r1s d,4OER NO. 04-16~ PARCEL & ABANQOMufENT PAUL Q. EIVGLE 5L1F2VEYOR & MAPPER #5Tp8 ova rE• ~uL r s, anoa O BRIEA; 5U1 TER & 4 6R1EN, I1VC CERTIFICATE OF AUTFIDR1IA77CIV ~LB353 SURVEYbR AIYD MAPPER 1N RE5'P N518LE CFIARGE.• PAUL b. ENGLE' 955 N.W. T7TH .4 VE1VU~; 5U1 TE k1 bELI?AY BEACH FLORIf~A 33445 (561J 2~6-45a1 {5&1} 732-32?'9 E3CHIBIT "E" Certificate; Uf Site Plan Certif cation OAOtil19o92.016 Curren11134994ifiv11 021131204903:31 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Praskauer Rose LLP 225 Glades Raad Sul#e 34t7 West Boca Raton, Florida 33431 CERTIFICATE CF SITE PLAN CERTIFICATIdI~I THIS CERTIFICATE DF SITE PLAN CERTIFICATION {this "Certificate"} is issued as of the day of , ~~D9, by ,Director of the City of Delray Beach Planning and Zoning Department, whose address is (the "Plannin and Zanin De artment"}. WITNESSETII: WHEREAS, this Certificate is issued pursuant to 5ectian 2 of that certain Declaratian ^f Reserved Rights and Agreement Nat tv Encumber N.E. 7'h Avenue, dated as of , 2009, between the City ^f Delray Beach, Florida, Atlantic Center, Ltd., a Florida limited partnership and CDR Atlantic Fla~a, Ltd., a Florida limited partnership {collectively, the "Develn~er"}, recorded in Official Records I3oak ,Page , ^£ the Public Records of Palrn Beach County, Florida {the "Declaratian of Reserved Ri is"}. The Declaration of Reserved Rights encumbers that certain roadway znvre particularly described as follows ("Vacated ~~n Avenue"}: See Exhibit "A" attached hereto and made a part hereof. NOW, THEREFORE, in accordance with the Declaration of Reserved Rights and in consideration of the sum of Ten Dollars ($ ] 0.00}, and other good and valuably consideration the receipt whereof is hereby acknowledged, the Planning and Zoning Department hereby states the following: 1. The foregoing Recitals are true and correct and are incorporated herein by, this reference, as if set forth in Chair entirety. 2. The undersigned is the director of the Planning and Zoning Department for the City of Delray Beach and has reviewed the Developer's site plan. 3. This Certifica#e satisfies that certain requirement set forth in Section ~{c}{iii} of the Declaratian of Reserved Rights which provides, in part: The Developer shall evidence that the Developer has satisfied the Site Flan Certification Condition by recording in the Public Records of Palm Beach County, I`lorida a certificate issued by the 8547f19692-d16 CurrenV13542578vt D21t3I2009 ]2:Q7 PM Planning and Zoning Department confirming tha# the Developer has obtained certification of the Devclapcr's sitc plan 13y the Site Plan Certification Deadline. 4. All terms not defined herein shall have the meanings set forth in the Declaration of Reserved Rights. [SIGNATURE PAGE FnLLDWS.] 8547119092.016 Cu~renU135G257$v1 02113l20i}J 12:07 PN! IN WITNESS WHEREOF, the Planning and honing Department hereby executes and delivers this Certificate as ^fthe day and year first above written. WITNESSES: i'LANNTNG AND 20NiNG DEPARTMENT: {Print Name} {Print Name} S'I'A'I'E OF CDLTI~TY OF By: ,Director The foregoing instrument was ackziowled~ed before me this day of ~UU9, by ,the Director of the City of Delray Beach Planning and Zoning Department. He1She is personally known to me or has produced (type efidentification} as identification. Signature of Person Taking Acknowledgment I 8547119692.016 Curranf1135G257~u1 O~Ii3126D9 12:07 PM F3CHTRiT "A" Certiftaate of Site Plan Certification Vacated 7t'' Avenue $547lf9fi92-O3fi CurrenUf3542578v1 02113l2a[I9 f2:07 PM W V N.S9°58'~7'~: NORTH UI~~ ~-NORTH L!lt,c-~ BLOCIf 116 P.B. 5~ PAGE 129 ~- L.~ N ^~ ~~ ~~ ~~ ~ ~ w ~ t ~ ~~], ~ ~~~ ~ ~ ~' o ~ ~ ~~ ~ ~~ ~~ ~~~ ~~~~ ~n I. ~ Z w ~~ Q ~ ~ ~ ~~ ~ g ~ m sourH un~ s w. cal~vER BLOCK 116 P.8 SQ, PAGE 129 NORTH RlaaT aF w.a Y LINE 4~ OQ~' ~~~ EAST A TLAl1~T1'C a uErvuF ^ESCRIP77QN.• ALL THAT PG44TIDN 0~" THE' 4O FOOT ROAD RI(~-!1' OF WAY FDR N.E. 7TN AVENUE B4L~1lpED RS FOLLOWS. DN ThE NORTH 8Y TFlE EA5TE4LY EXTENSIDIV OF T7-,E NDRTN LINE OF BLOCK 116, TOWN DF LINTDN (NON' DELRAY G-~'ACH~, ACCORDING TO THE PLAT 77-~REOF AS RECORDED !N PLAT BOOK ~ PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AII~ DN Tf-,~' SDUl7-1 BY Tf-~' EAS]ERC. Y EXT'ENS10N DF T!-~ SG~I]"H Llh~' OF SAID BLOCK 116. IUD TES• T!-~'S !5 NDT A 5[114VEY = CENTERLIl~ Tl-~' N~Y4TN LINE OF BLOD'IC 115 15 ASSfkLfEa TD BEAR N89°58'4~'E P.B.~ PLAT 6DDtC PAUL L7. ENGLE SURVEYOR & MAPPER #51x8 Q~ rE• ~uL r s ~~a g ~: (y 0~4DFR 11~ 04-15~ PARCEL 8 ABAI+,DD1194~'NT EKH~IT "F" Ccrfificate ^TConsfr~cction fo fhe "No Turning Back Point" QAOII119692.016 4urrenUi34?9Q18v11 02Ji312~0903:31 PM Prepared by and upon Recording Return ta: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Raad 5uitc 340 West Boca Ratan, ~'larida 33431 CERTIFICATE fl1F CONSTRUCTION TG THE "Nn T[]RNI1~rG BACK FOINT" THIS CERTIFICATE OF CDhlSTRUCTION TO THE "NQ TL7RNING BACK P4CI~[T" (this "Certifzcatc") is issued as ^f the day of 2QQ9, by , City Engineer far the City of Delray Seach, whose address is (the ``city Engineer°'}. WITNESSETH: V4'HEREAS, this Certificate is issezed pursuant to Section 2 of that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7`~ Avenue, dated as of , 2QQ9, between the City of Delray Beach, Florida {the "City"), Atlantic Ccntcr, Ltd., a Florida limited partnership and CDR Atlantic Plaza, Ltd., a Florida limited partnership {collectively, the "l~eveloner"}, recorded in Offrcial Records Book ,Page of the Public Records of Falm Beach County, Florida (the "Declaration of Reserved Rights"}. The Declaration of Reserved Rights enGUZirbers that certain roadway more particularly described as follows {"Vacated '7~h Avenue"]: See Exhibit "~" attached hereto and made a part hereof. ND1]~!, THEREFORE, in accordance with the Ieclaration of Reserved Rights and in consideration of the Burn of Ten Dollars {~ 1 a.00], and other goad and valuable consideration the receipt whereof is hereby acknowledged, the City Engineer hereby states the following: 1. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. The undersigned is aza engineer for the City of Delray Beach and has reviewed the constnzCtign cf' Relocated 7lh Avenue. 3. This Certificate satisfies that certain rcquirctncnt set forth in Section 2{c}~iv} ^f the Declaration of Reserved Rights which provides, in part; The Developer shall evidence that the Developer leas satisfied the No Taming Baclc Condition by recording in the Public Records of Palm Beach County, Florida a certificate issued by the City Engineer confirming that Relocated 7`~` Aveni.ie has been l 854T1~9692•Q16 Curren1113542552v1 fl~It312~0912:09 PEA constructed to the No Turning Back Point by the No Taming Back Deadline. 4. AlI terms not defined herein shall have the meanings set forth in the Declaration of Reserved Rights. [SIGNATL]RE PAGE FaLL~WS.] 2 8547i1a692-016 Current'13542552v1 02113J~0~912:69 PSI 1N WITNESS WHEREQF, fhe City Engineer hereby executes and delir~•ers this Certificate as of~the day and year first above written. WITNESSES: {Print NAme} (Print Marne} CITY ENGINEER: City Engineer, City flf Delray Beach STATE ^F C~llNTY QF The foregoing instrument was acknowledged before nne this day of 20Q9, by ,the City Engineer for the City of Delray Beach. He1Shc is personally known to me or has produced (type of identification} as identification. Signature of Fersan Taking Acknowledgment 85~47fi9fi92•Gt6 Current113542552v1 l}2113l200912:09 PM EXHIBIT "A" to the Certificate of Construction to the "ltiTo Turnip Back Point" Vacated 7`h Avenue &55711969P-U16 Currenfl13542552v1 Q2113120Q912:09 Pi++l ~ N.F: 1ST S7f~~FET V ~ p N.89°5$4~'~ ~ ~~ ~~' IYGTE.S- NDi4TN L1NE~ ~ ~ `'"~~ LJI~ Tr~S ~ NOT A SLRVEY 6LOCK 116 P.B 5O, PAGE 129 = GENTERLlNE ~ r~~ ~~ Tf~ ~1N ~~ ~ ~~K ~~ ~ 15 A55[~a~D TO BEAR N 89°58'47'E ~ ~ U.I~d ~ ~ ~ P.E. =PLAT BDQK w ~ a w ~ n W W cQ qp ~ .Q~ ~' ~~ ~ ~ I{ ~ o~ ~ ~ ~ m SOUTH Llr~ S W. COf~R BLOCK 115 P.B. 54, PAGE 129 NaRTN RIGHT OF WA Y Ldl~ ~n_nn~ _ DESCRIPTTCJJN.• 'T A TL~NTlC AVENUE ALL TNA T PQR T1O1V OF THE 4~3 FOOT RnAB RIGHT OF WA Y FOR N.E. 7Tl-r AYEN[JE BO[~ED R5 FQLLOW~ ON ThE' NORTH 8Y THE EASTERL Y EX7EN51QN dF TF-~ rvoRTN LII~ 4F BLOCS 116, TQINN QF LINTON (NOW DELRA Y BEACH), ACCORDING TO ThE PLAT ~OF A5 RECORDED 1N PLAT BOQK ~ PAGE ~ Pr~Lrc RECORDS of PALM BEACH coUwrY, FLOR1flA AIv47 aN TI-~ SOrJTN BY Tl-~' EASTERL Y EXTENSION OF TJ-+~' SaUTH LINE a~ saro eLOCrc 11s PAUL D. ErYGLE SURVEYOR & MAPPER ~`57a8 a~ rF- duL r s, 2aas $i a; rogg; ~r ~; N; ~~ ~' ~' ~. ~: z. ~; ~; ~; ~: a; ORDER No a~-~~ PARCEL 8 A~AruDanw~JVr E~I-~IBIT "G" Permitted Exceptions 0448119652-416 Currend134SA0iBvt 1 42`132009 03:31 Pl~i 1. Restrictions {deleting therefrarn any restrictions indicating any preference, limitation nr discrimination based on race, color, religion, sex, handicap, familial status ar national origin.}, covenants, easements}, setback(s), if any, as may be Shown on the Plat recorded in Plat Bao1C 5~, Page(s} I29, of the Public Records of Paitn Beach County, Florida. ~. Rcstxxctlons {dclcting therefrom any restrictions indicating any preference, limitation or discrimination based an race, coiar, religion, sex, handicap, familial status ar national origin}, covenants, easement{s}, setback{s}, if any, as may be Shawn on the Plat recorded in Plat Book 18, Pages} 91, of the Public Records of Palm Beach Caut~ty, Florida. 3. Declaration of CTnity of Title dated February 4, 1993, recorded February 22, 1993, in Official Records Baak 7596, Page 63, Public Records of Palrxt Seach County, Florida. 4. Easement Deed 6y and between Carteret Savings and. Loan Assoc., F.A., and the City of Delray Beach, a Florida rnurucipai corporation, dated May 14, 1984, recorded Iuly I9, 198, in Official Rccards Boak 430, Page 1126, Pu61ic Records of Palm. Beach County, Florida. 5_ Easement Deed in favor ^f the City of llelray Beach, recorded September 3, 1985 in Official Records Boak 46~Q, Page 1168; Public Records of Palart Beach County, Florida d. Easement in favor of Florida Power & Light Carnpany dated November 11, 1985, recorded December 3I, i9$S, in official Records 13aali 4752, Page 538, Public Records Qf Palm Seach County. Florida. 7. Corrected Easement Agreement in favor of the City of Delray Beach, a municipal corporation irz Palm Beach County, State cf Florida, dated November 27, 1974, recorded December 5, 1974, in official Records Baak 2372, Page 1687, Public Records of Palm Beach County, Florida. $. Easement Dccd by and between First Federal Savings and Loan .Assa. of Delray Seach, and the City of Delray Beach, a Florida rnunicipa[ corporation, dated Ularch 18, 1977, recorded April 18, 1977, in offrcial Records Honk 2666, Page 1136, Public Rccards of Palm Beach County, Florida. 8541ri9fi92~i6 Curren~lt3544t t2vt 4?JtN2a6910:23 Aid EXHIBIT "H" Certification of Te~nination and Release 440811969P-01$ Currenl1334990i&v11 0211312~96~37 PM Prepared by and upon Recording Return ta: 5tuar[ T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Rnad Suite 340 West Boca Raton, Florida 33431 CERTIFICATION DF TERMINATION AND RELEASE THIS CERTIFICATION 4F TERMINATION AND RELEASE {this "Certification") is made as of the day of 20 {the "Effecti~~e Date"), among the CITY OF DELRAY BEACH, PLCRIDA {the "C~"}, and CDR ATLANTIC I'LA;aA, LTD., a Florida limited partnership and ATLANTIC CENTER, LTD., a Florida limited partnership (collectively, the "Developer"}. WITI~ESSETH: WHEREAS, this Certification is issued pursuant tv Section 2{g} of that Certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7`h Avenue, dated as of 20D9, between the City and the Developer, retarded in Official Records Book , Page , of the Public Records of Palm Beach County, Florida {the "Declaration of Reserved Ri is"). The lleclaratian ^f Reserved Rights encumbers that certain roadway mare particularly described as follows ("Wacated 7`'' Avenue"); See Exhibit "A" attached hereto and made a part hereof. 1ti OW, THEREFORE, in accordance with the Declaration of Reserved Rights and in consideration of the sum of Ten Dollars ($10.00}, and other good and valuable consideration the receipt whereof is hereby acknowledged, the City and the Developer hereby agree as follows: 1. The foregoing Recitals arc trot and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. The City and the Developer lrercby tcrrninate the Declaratir~n of Reserved Rights as of the Effective Date (the "Termination Date"}. The City and the Developer confirm that all terms and provisions of the Declaration of Reserved Rights have been satisfied and that as of the Tenninatinn Date, the Declaration of Reserved Rights shall tae null and void and ^f no further farce ar effect and shall be Cancelled of record. 3, As a result ^f the termination of the Declaration of Reserved Rights, the City's Reconveyance Right is hereby terrriinated, released and of no further force and effect and the Developer shall no longer have any obligation to reconvey Vacated 7`~ Avenue to the City. 1 8547119o92.O1& Currentl135426fi9u] 021131200912:13 PFh 4. Ail terms nat defined herein shall have the meanings set Earth in the Declaratiera of Reserved Righ#s. [SIG1tiIATURE PAGES FGLLGW] 85d7l19692-a1fi Currentl'f35426fi~++1 6211312p0912:13 PNi IN FITNESS WHEREQF, the parties hereby execute and deliver this Certification as of the Effective Date. ATTEST: CITY DF DELRAY BEACH, FLURI<DA By: Ci#y Clerk Approved as to Form: By: City Attorney STATE OF C4Ul~l'TY OF By:~ Marne: ItS: The foregoing instrfament was acknowledged before me this day of __ ________ _, 20,_____, by ,the of the CITY CP DELRAY BEACH, FLORIDA. IIe1She is personally known to me or has produced type of identification} as identification. Signature of Person Taking Acknowledgment 85G7119fi92-O1G Current113542fi69v1 D2J13l200912:18 Fh+f WITNESSES: Print I~Iame: CDR ATLANTIC PLAZA, LTD,, a Florida lunited partaiersliip By: Delray Historic, Inc., a FIorida corporation, its general partner Print Name: ST~.TE DF CDC~NTY OF gy: Print Name: Its: The foregoing instrument was acknowledged before me this day of , 24_ _ , by ,the of Delray Historic, Inc., a Florida corporation, the general partner of CDR ATLANTIC PLAZA, LTD., a Florida limited partnership. He~She is personally known to me ar has produced {type ^f' iclentificatian} as identification. Signature of Person Taking Acknowledgment 854If19692-fl16 Current1135A2869~~1 62113I2aD912,i3 PM ATLANTIC CEI~ITER, LTD., a Florida limited partnership Print Name: By: Atlantic Ce~xter, Inc., a Florida corporation, its general pttrh-ier Print Name: By: Print NaFne: ItS: STATE DF CUUIVT'Y OF The #'oregaing instrument was acknowledged before rine this day of , 2~ , by ,the of Atlan#ic Center, Inc., a Florida corporation, the gcncral partner of ATLANTIC CENTER, LTD., a Florida limited partnership. HelShe is personally known to me ar has produced {type of identification} as identitiGatian. Signature of Person Taking Acknowledgment 8547119692.016 Cu~rent1135426fi9vi x2113+200912:13 PM EXI-IIDIT "A" to the Certification of Termination and Release Vacated 7`h A~~nue ~47119G92-016 Curr~ni113542B69a1 O'tJ13124U912:13 PM S~~"T~H 0~" DESCRlPT1U1V FX!-k'617' 'A" Sh+EET 1 OF 1 ~ rvE Tsr sr~~r '~ a ~ N.89°58'47'E ~~ ~' NORTH LII~' ~ ~ `-NORTH LINE 9LaCK ~`6 P.B. 5D, PAGE 129 Z a~ ~ i fit! 4.! ~ ~' ~ C~ ~ ~~ ~ ~~~ ~ h ~~ ~ ~- V_ ~7 Q^ Q o ~~o~p ~ ~ ~~ ~ ~ ~! ~ iE ~ ^ ~ Cq ~ w ~~ Q ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~-' S4UTN L1NE $ Nlr C~q~ SOCK 1 ~ P.& 54, PAGE 1~9 ~~ OF WA YL11dE u EASr A TL~41Vr1C A I/ENUE aES~lPrlanr ALL T7-1RT PORTIQN OF T7-!E 4Q F"OOT R4A~ RIGHT QF WAY FOR N.E. 7TH A UEM~ BOLE!] A5 FD[..LGWS~ ON T!-~ NOf~TH 8Y T~ EASTF..i4L Y EXTENSION OF T1-c~ NOr~TN L11vE OF BLOCK 176, TOWN QF L1fYTON (IYOW ~ELRAY ,6E~ICH), ACCORa'NG TO T~ PLAT 77-~`Fi'EOF A5 RECORA~ 1N PLA rT BOOFC ~ PAGE 3, PL~49L.1C RECQ+2DS (JF PALM BEACH CO[A'VTY, FLORIQA Alm CSI Th1E 5~[JTN BY Tl~ FA.STFRL Y EX7~NSTON OF TJ-~' SOUTH LINE DF SAID &OC1C 11fi ol~ ~ a~-r~~ PARCEL 8 A6AI~R7ONH~Nr N4TF5• 77~'S 1S 1~IQT A 5[~411EY =CENTERLINE 7~ N~4TH LINE OF BLOCK 116 !s ,~ssu~EO ro aEAR r-~~s°5a ~~'~ P.Q = PLA T BOCK PAUL D. FNGLE SURVEYOR & MAPPER ~5~'O8 as r~- ruL r s coos ^~eRrEnr, surrER ac 4~6F~IEN Inrc CER77F7CA 7E QF AfIfHQR1ZA r14l+f SURVEYOR AND MAPPER IN RESP~ CHARGE: PAUL D. ENCLE 955 N. FY. IT TH R VEhIUE, S[ll TE if 1 aELRA Y BERCN FLQRlDA 33445 {5fil) 276-4541 (5fi1} 735-.3279 EXHIBIT "T>' Sgecial Warrant r~Deed D4a8Ji9fi92-a1fi CurrenU'i3499a18v17 021i3120090.3:3i PM This [nstrument prepared ~iy and when recorded r-eturrz to: BRIAN .7HUTT, ESQ. CITY ATTORNEY'S OFFICE 20D N. W. 1 sr AVENUE I7ELR.~Y BEr1.CH, FL~RII3A 33444 SPECIAL WAHHAN't'Y llEEll THIS SPECIAL WARRANTY DEED is executed lay ATLANTIC CENTER, LTD., a Florida limited partnership and GDR ATLA?ti1TIC PLAZA, LTI]., a Florida limited partnership {collectively, "Grantor") whose address is clv CDS International Holdings, Inc., 3299 N.W. 2"~ Avenue, Sofia Raton, Florida 33431, and is delivered tv CITY GF DELRA.Y BEACH, a Florida Municipal Corporation ("Grantee"}, whose address is 1 DD N.W. 1 ~ Avenue, Delray Beach, Florida 33444. Granter, for and in consideration of the sum of TEN & NOII DO DDLLARS ($1 t7.DD} and other good and valuable consideration, paid to Grantor by Grantee, the receipt and sufFiciency of which arc hereby aclcnowlcdgcd, grants, bargains, sells, and conveys to Grantcc and Grantee's successors and assigns forever, that certain parcel of land, situate, lying and being in Palm Beach Co~~nty, Florida, described in Exhibit "A" attached hereto and made a part hereof [the "Property"}; Together With all easements, tenements, heredi#aments, and appetrtenances belonging to the Property; and Together ~'Vith all t~uildings and other improvements now yr in the future located vn the Property; and Together With all of Grantor's right, title, and interest, if any, in and to the streets, avenues, roads, ways, alleys, waterways; and canals, open and proposed, in front of or adjoining the Property; To Have And To Hald the same in fee simple forever. This conveyance is made subject to' {a} Taxes for the year 2flQ9 and subsequent years that are not yet due and payable; {h} Applicable zoning ordinances and restrictions; and (~) Conditions, rBStriction5, reservations, ]imitations, and easements of record, which are not reimposed by this deed. 8422+'19692-415 ~wrenU'13547134rf~ OPJ13l204J~3:o1 Plµ Grantor covenants that at the tune of delivery of this deed, except as described above; the Property is free of any encumbrances made by Grantor, and Grantor specially warrants the title to the Property, and will defend it against the lawful claims and derrcands of all persons Maiming by, through ar under Grantor, but against none other. jSIGNATURE PAGES FOLLOWS] 2 8427J19692.4i6 ~urrenL'13547T34r~2 tlP113J20~903:OT PM Grantor has caused thus instrument to be derly executed an 20 Signed, sealed and delivered in the presence of: Sl~latlire of ~1tI1e55 ~ Print Name of Witness I S ignature of Witness 2 I'rilit NaEne of Witness 2 ATLANTIC CENTER, LTD., a Florida limited partnership By: ATLANTIC CENTER, INC., a Florida corporation, its General Partner By: Its: Print Namc: STATE QF ) } SS: COUNTY aF } The foregoing instrument was acknawiedged before me this _ day of 2[i[}9, 1}y as ^f A'1'I.AN'I'1C CENTER, INC., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership, on behalf of the corporation and the limited partnership, I-Ie1She is ~chcck one] personally lcnown tv rrle or has produced as identification. SEAL} Notary Pu61ic Signature Print Name State of at Large Commission Na.: My Comrnissian expires: 84~2119692•C>ifi Cur~en11135G713~1r~ 02l13~2D0903:Ut PM Grantor leas caused tl~is instrument tv be duly executed ^n Signed, sealed and delivered in the presence 4f: Signature of Wifiess 1 Print Name of Witness l Signature of Witness 2 Print Name of Witness 2 STATE flF GDR ATLANTIC PLAZA, LTD., a Florida: limited partnership 13y: llELRAY HI5`I~OIZIC, INC., a Florida Corporation, its General Partner By: 1t5: Print Name: zoos. } SS: CnllN'T'Y OF } The foregoing instrument was acluiowledged before the tl~is _ day of 2QQ9, by as of DELR.AY HISTQRIC, INC., a Florida corporation, the general partner of GDR ATLANTIC PLAZA, LTD., a Florida limited partnership, ^n behalf of the cnrpnratinn and the limited partnership. He15he is ~checlc One} personally known to me or has produced as identification. SEAL} Notary Public Signature Print Name State of at Large CQmnnissian No.: My Commission expires: 8k2711969P•U1fi C~nt1135AT13tiv2 Q2!]3120Q903~o1 P~1 EXHIBIT "A"" The Property 842~J1969~-D16 Current113541134~ O~J1312DD903:01 PM s~c~TC~ o~ fl~scR~P ~~oN Fxw~fr ';a" sr-~Er ~ o~ r w I~.E 1ST STRF.~'T ~, `•'~' a a o ~ ~; z `~ N.89°58'~7'E `~ 4~ ~n~ NORTH LINE eLOCrc ors ~~ J O~ ~~ °o _~~ ~~ J o~ m SCIJTFI LINE BL~G'K l16 DESCRIPnonr.- Ll~lOf2TH LINE P.B. SR PAGE 7,~9 ~~ ~~ ~ a Q~~ ~~ ~~ ~~ ~ ~~ ~ ~~ ~ ~ ~ ~ ~~ 5 N! G'Of~R P,6 5a PAGE 1~9 NORTH RIGHT OF WAY UNE FAST ,~ TLAIVTIC ~ 1~E~fClE ALL THAT PQRTIQN ~ ThE 4Q FOOT RQAa RIGHT OF 17~A Y FG~R 1V.E. 7TH A wE11~.~' 6Q~ED AS FOL10W~ ON 7I~ NQi4TN BY ThE EASTQ?LY EXTEN510N OF ThE NORTH LINE OF" gLdG~C 1&S TDI~IV OE LINTni1l SNOW DFIRAY EEACH~, ACG'ORDIfVG TD T1~E PLAT ThEREOF" A5 REG~R~ IN PLA BOOfC 1, PAGE 3, PLBLIC RE'COhRDS QF PALM BEAC~-1 COL~VTY, FLpRIOA AID did T7-~' SIXJTH BY Tf-~ EASTERLY F_1C7ENSfOIV OF TI-E SOU77-1 Lf1YE OF' SA1D BLOCff tl5 ~oT~s~ T1~5 I5 I1+'L7T A SI/RI~EY =CENTERLINE TF~ IV0~4TH LINE {7F' 8L nG'K 116 IS A55L9t~D TD PERR N89°58'47`E Pe. = PLAT eoolc PACIL D. EIVGLE" SURVEYOR & MAPPER ~S7O8 DATE.• JULY 9, 2008 QRDER NO. Q4- I6¢ PARCEL 8 A8Al~QIYMENT F~CHTRiT `°i'" Escrow A~rcement OA08I196°2•~16 Curcenf~'13499p16v11 ~113JE04843:31 f'M ESCROW AGREE1tiTENT THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of this _ day of February, 209, by and between the C1TY CF DELRAY BEACH, a Florida Municipal Corporation {the "City"), ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC ALA2A, LTD., a Florida liz-nited partnership {collectively, the "Developer"} and STEVEN D. RUB1N, ESQ. ("Escrow Agent"}. (The City, Developer and Escrow Agent are sometirnes referred to herein individually as a "l'artv," and collectively as the "Parties."} ~F~r~rer c~ A. The City And the Developer are parties to that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7`~' Avenue dated as of February 17, 269 {the "Declaration of f~eserved Rights). Pursuant to the terms of the Declaration of Reserved Rights, if the Developer fails to timely satisfy the Development Conditions {as such term is defined in the Declaration of Reserved Rights}, the City has the right to cause the Developer to reconvey Vacated 7E'` Avenue and the Abandoned Alleys to khe City {the "City's Reconveyance Ri }gait"). B. To secure the City's Reconveyance Right, the Developer has caused to be executed and delivered to the Escrow Agent: {i} a filly executed special warranty deed for Vacated 7"' Avenue; and {ii} a fully executed special warranty deed for the Alandoned Alleys, both to be held in escrow with Escrow Agent {collectively, the "Deeds"}. C. Escmw Agent is willing to hold the Deeds in escrow in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City, Developer and the Escrow Agent hereby agree as follows: 1. Recitals azzd Cat~italized Tez~zns. The foz-egoiaig Recitals are tc-ue and correct a~zd arc incorporated herein by this reference, as if set Earth in their entirety. All initial capitalized terms used, but not defined, in this Agreement shall have the meaning set faith in the Declaration of Reserved Rights. 2. Receipt and Deposit of Deeds. By its execution and delivery of this Agreement to the City, the Escrow Agent hereby aC14nDW~EdgeS that it has received the Deeds from the Developer. 3. Retardation of Deeds. If the Developer fails to timely satisfy the Development Conditions and the City properly and timely exercises the City's Reconveyance Right, then upon the City's written notice to Escrow Agent and the Developer stating that the City has properly and timely exercised the City's Reconveyance Rip~-it, the Escrow Agent shall promptly record the Deeds in the Public Recoxds of Palm Reach County, rlorida. Escrow Agent shall promptly deliver a copy of the recorded Deeds to the City and the Developer. Following delivery of the 1 8547l39692.61fi C+:rrentr13546918v2 ~21t312a09D2:A7 Phi recorded Deeds to the City aid the ^evelaper, the Escrow Agent shall thereupt~n be released and discharged from any further duty or obligation hereunder. ~. Costs and Expenses. The Developer agrees to reimburse the Escrow Agent far all costs and expenses incurred by the Lscrow Agent in serving as Escrow Agent hereunder, including, but not limited, reimbursement for all fees in connection with recording the Deeds. S. Compliance with Court Drders. Escrow Agent is acting as a stakeholder only with respect to the Deeds. if there is any dispute as to whether Escrow Agent is obligated to record the Deeds, Escrow Agent may refuse to make any recordation and may continue tg bald the Deeds until receipt by Escrow Agent of an authorization in writing, signed by the City and the Developer, directing the disposition of the Deeds. In the absence of such written authorization, Escrow Agent may hold the Deeds until a final determination of the rights of the parties in an appropriate proceeding or may bring an appropriate action yr pmceeding for leave to deposit the Deeds in a court of competent jurisdiction pending such determination. Escrow Agent shall be reimbursed for ail oasts and expenses of such action ar proceeding, including, without limitation, reasonable attorneys' fees and disbursements, by the party determined not to be entitled to the Deeds. 6- Exculpation of Escrow Agent. It is agreed that the duties of Escrow Agent are herein specifically provided and are purely ministerial in nature, and that Escrow Agent shall in~;ur no liability whatsae~er except for its willful misconduct or grass negligence, so long as Escrow Agent is acting in gaud faith. The City and the Developer do each hereby release Escrow Agent fxoFn any liability far any error of judgment or for any act done 4r omitted to be done by Escrow Agent in the good faith performance of his duties hereunder and do each hereby indemnify Escrow Agent against, and agree to hold, same, and defend Escrow Agent harmless from, any cUSts, liabilities, and expenses incurred by Escrow Agent in serving as Escrow Agent hereunder and in faithfully discharging its duties and obligations hereunder. 7. Relationship of Parties. The City and the Developer acknowledge and agree that Escrow Agent is acting solely as a stakeholder at their request, and that Escrow Agent shall not be deemed to be the agent of either the City or the Developer. S. Notice. Any notice, demand ar request which may be permitted, req~zired or desired to he given in corurection therewith shall be given in writing and directed to the City and the Dwner as follows: As to (:ity: L'ity of Delray Beach 1 Qa N.W. 1 s` Avenue Delray Beach, Florida 33444 Attn: City 1Vlanagcr Facsimile: X561] 278-4755 With a copy to, 2Da N.W. Isl Avenue Delray Beach, Florida 33444 Attn: City Attorney 2 8547119682-p16 Currenb'1354fi918~2 42193120090247 A~ Facsimile: (551 ~ 278-4755 As tv Dwner: Atlantic Center, Ltd. coo CDS International Holdings, Inc. 3299 N.W. 2"~ Avenue Doca Raton, Florida 33431 Attn: President Facsimile: (S6I } 27$-693D CDR Atlantic Plaza, Ltd. clo CDS International Holdings, Inc. 3299 N,W. 2"d Avenue Soca Raton, Florida 33431 Attn: President Facsimile: (561) 278-G93D As to Escrow Agent: Steven D. Rubin, Esq. 9$Q North Federal Highway, Suite 434 Hoca Raton, Florida 33432 Facsimile: (561} 347-D828 Notices shall he deemed properly delivered and received when and if either {i} personally delivered; or (ii} one (1} business day after deposits with United Parcel Service or other ^vernight courier for next day delivery; ar [iii) the same day when sent by confirmed facsimile before 5.DD p.m. {Eastern time}. 9. Successors and Assigns; Third Party Beneficiaries. This Agreement shall be binding upon and in~zre to the benefit of the Parties and their respective successors and assigns under the Declaration of Reserved Rights. lfiis Agreement shall not confer any rights or remedies upon any person or entity other than the Parties and their respective successors and assigns under the Declaration of Reserved Rights. 1 D. Conflict with Declaration,• of',Reserved Ri~.hts. 'With respect to the subject matter of this Agreement only, if any of the terms or previsions of this Agreement conflict with, yr are inconsistent with, any terms yr provisions of the Declaration of Reserved Rights, the terms and provisions of this Agreement shall control. 11. Gavernin Law' Ser•erability. This Agreement shall be governed by the laws cif the State of FIorida. If any term or provision of this Agreement is held to be ar rendered invalid or unenforceable at any time in any jurisdiction, such term or provision shall not affect the validity or enforceability of any other terms ar provisions of this Agreement, or the validity ^r enforceability of such affected terms ^r provisions at any other time or in any other jurisdiction. l2. Waiver of Trial l7y ]ury. Each Party hereby waives its right to a trial by jury in any litigation or ether court proceeding by any Party against any other Party with respect to any matter arising from or in connection with this Agreement. 85A7~19fi92-0ffi Currentli354fi918+~ U?J13~'20Q9 X2:47 PM 13. Attorney's Fees. In cox-ne~tion with any litigation or dispute arising out of this Agreement, each party shall bear its own attorrxeys' fees and costs. 1~. Entire Agreement; Amendments to Agreement. With respect to the subject matter o€ this Agreement only, this Agreerrtent sets Earth the entire understanding and agreement of the Parties hereto, and shall supersede any other agreements and understandings written or oral} between or among the Parties an qr prior to the date of this Agreement. No amendment or modification to any terms of this Agreement, ^r cancellation of this Agreement, shall he valid unless in writing and executed and delivered 1}y all of the Parties. 15. Facsimile; Counterparts. A Party may deliver executed signature pages to this Agreement by facsimile transmission to any other Parties, which facsimile copy shall be deemed icy be an original executed signature page; provided, however, that such Party shall deliver an ^riginal signature page to the other Parties promptly thereafter. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which counterparts together shall constitute one agreement with the same efFect as if the Parties had signed the same signature page. [Signatures appear on the following page] 4 854liiaGG92-016 GurrenL'135469SSt~ ~21i312~902:47 PM IN 'VL'TTNESS WHEREOF, the City, Developer and Escrow Agent have caused this Agreement to IJe executed and delivered in their names by their respective duly authorized officers or representatives as of the day and year first above written. CITY CITY DF DELRAY BEACH, FLORIDA sy:_ Name: Its: DEVELOPER ATLANTIC CENTER, LTD., a Florida limited partnership I3y: Atlantic Center, Inc_., a r lorida corporation, its General Partner By: Print Name: Its: CDR ATLANTIC PLAZA, LTD., a Florida limited partnership 8y: Delray Historic, Inc.., a Fiarida corporation, its General Fortner Sy: Print Name: Its: 85A7~#969-016 ~urrenU#35469#8v2 ESi:Itf]W AE~LN'I' Steven D. Rubin, Esq. a~f13~'~00902:41 PM JOINDER The undersigned, as the Owners ^f Vacated 7`~ Avenue and the Abandoned Alleys, hereby execute this Agreement for the sale purpose of confirming the Escrow Agent's a~.thorization to release and recprd the Deeds in the event the City's Reconveyance Right is property exercised. FREECOR INVESTIYTENTS, Ilt'C., a Florida corporation By: Print Name: Title: CDS ASJ 13UILDFNG, INC., a Florida corporation Sy: Print Name: Title: CD5 ~5, LLC, a Florida limited liability CDrnpany By: Print Name: Title: -- 85d71t959Q-4'Ifi Current17354697&+f~ ~l13l~~a9flP:47 PNl ATLANTIC CENTER, LTD,, a Florida ]invited paxtnexship Ry: Atlantic Center, Inc., a Florida corporation, its general paa~tx~e~~ >~ y:_ Name_ Title: CDS GAS STATION, LLC, a Florida limited liability company By: CDS International Realty, LLC, n Florida ]invited liability company, its manager By;_ Name: Title; 8547119892-af6 Curtenll135a6918~2 a~ia+~aa9a2~a7 RNi Exhibit 1C ltelacated 7cn Avenue Termination Certificate b4U8119fi92-016 Currcnt1134~3018v11 a?l1',d+2DD903:31 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esp. Proskaucr Rasc LLP 2255 Glades Read Suite 34~ West Boca Raton, Florida 33431 RELOCATED 7~ AVENUE EASEMEI~IT TERMINATIOlti~ CERTIFICATE THIS RELOCATED 7`r' AVENUE EASEMENT TERMI~IATTON CERTIFICATE (this "Certificate"] is issued as of the - _.. tiay of 20_ _ -- {the "Effective Date"}, by the CITE OF DELRAY BEACH, FLORIDA, a Florida municipal corporation in Palm Beach County, State of Florida {the "Cite"). RI"i'C'YTA1'.~• A. CDR Atlantic Playa, Ltd., a Florida limited partnership and Atlantic Center, I,td., a Florida limited partnership {collectively, the "Developer") is the current owner of fee simple title to Relocated 7i~, Avenue which is legally described as follows: See Exhibit "A" attached hereto and made a part hereof. B. The Developer, as grantor, granted the City, as grantee, certain easements set forth in that certain Easement Agreement, dated , 2049, and recorded in Official Records 1'igDk ,Page , of the Public Records pf Falm Beach County, Florida [the "Easement A~,reement"}. C. The City desires to terminate the Easement Agreement as set forth in this Certificate. NOW, THEREFORE, in consideration of the sum of Ten Dollars ($14.00}, and ether goad and valuable consideration the receipt whereof is hereby acknowledged, the City hereby states as follows: 1. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set Forth in their entirety. 2. The City heret~y terminates the Easement Agreement as of the Effective Date (the "Termination Date"}. The City confirms that as of the Termination Date, the Easement Agreement shall be null and void and of na further force or effect and shall be terminated of record and that all rights granted to the City under the Easement Agreement are hereby terminated. asa~li~s~-ors cun~nurasaaaooti,~ av~a,~zaos t2:~ ~n~ 3. All terms nat defined herein shall have the meanings set forth in the Easement Agreement. [SIGNATURE PAGE FGLLO~IS] L i 85471196-41fi CurrEnG'13543,i00v1 02l1312D09 12:22 PM € IN WITNESS WHERECI ,the City hereby executes and deliver this Certificate as of the Effective Date. ATTEST: CITY 4F DELRAY BEACH, FLQRIDA By: City Clerk ApprQVed a5 tQ Fvr~n: B y: City Attorney STATE OF CU[TNTY QF By: Name: ItS: `I'he fvregning instrument was acknowledged before me this day of , 2~_ , by ,the of the CITY DF DELR.AY BEACH, FLQRIDA. He1She is personally known la me or has produced (type of identification} as identification. Signature of Person Taking Acknawledgrnent 8547119692.016 ~urrenV135433~Ov~ 0?J~31200912:22 PIS EXI-IIB IT "A" to the Relocated 7`~' Avenue Terminatitin Certificate Relocaiecl 7`~' Avenue 854769692-Otfi Currentl]3543.'i~Ov1 42113f2009i2:22 PM s~Erc~r a~ aESCRiPr~aN Exl-err ;a" .SI-~E'T 1 ~ 2 a ~ IV.E ~5T STREET _ _ ~ a ~ N NORTH L111E P.E. 5d PAGE 129 NORTH LffvE •O 22t 18' ~~ ~~ 589°58'15"W. N.E. CGRNER N ~ ~ P8 ~fVT ~ 729 CO~'I+fMENCErL1ENT ~~ W W 0 ~ o o ,,°a ai a ~ t j ~~i ~'o J W ~Q ~ o ~ ~ ~ ~ ~ ~ ATLANTIC PL.4~A ~ ~ ~ ~ a ~PLA T BOOK 5'O, o ~ ~ ~ ~. PAGE 129) ~p ~0 0 ~^47 ~~~ ~~ ~~ ~v ~~~ ARC - 13Q.8Dr v GA. = 36°33'25" ~ RADIUS = 2p5.OD' G.B. = 518°16'43°W. NdTES• y- ARC =10528' Th9'S 15 NOT A SfJR1~EY C.A. _ .36°33'25" MORTH RIGHT 14AD1[IS = 1fi.~QO' ~ = CEMFRL,INE OF WAY LINE C.B. -= S 18°16'¢.3"W. SOUTH LIME o THE NORTH LAS Ct~' BLOCk 11B p 50UTH L,WE PLAT BL~Cif 11615 ASSfJA+IFD o BOt1iC 54, PAGE 129 TD BEAR N89 58 47'~ ~~ N(~2TN RIGHT ~ ~ ~t° OF WAY LII~ PB. =PLAT BD4k a 5 N! ~R o P ~ so, PAGE ~9 ~; flA rE ~Arv 23 coos r ~+ "} o Br1Fnr, SulTER & 0 6f~lEN !NC L~_ ST ~ ~~N~V _ _ CERTfF7CATF DF AIITHaR1~ATlON_~'LB353 A YGf VV~ SURVE~'OR .4Nf3 MAPPER IN RFS NSIBLE CHARGE' PAUL D. E7VGLE 955 N.W. 77TH R VENUE, 5[IlTE K 7 ^ELl4A Y BEACH FLGRIDR 33445 oROER No. 0¢--18¢ 7TH ,~ vENL~' RE aucnrn~rvT ~5sr} ~~-45ar {567J 732--3279 ~' ~; ~, ~: ~' a; ~; ~~ q^q• V: ., ~' ~; ~: o~ s~Frc~ o~ ~~sc~i~rlorv IXhllB1T 'A" SF~ET 2 OF 2 DESCF~JPTlON FQR NE. 771 ~' AVENLE RE-ALfGN,UENT• A 40 FOOT EASEMENT BEING A PORTION DF ATLANTIC PLAZA, ACCORDING To 7~E PLAT" THEREOF AS RECORDED IN PLAT BUOIC 50 PAGE 129, P[~UC RECOl~D5 DF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 4O FOdT ROAD RIGHT OF WAY FOR NE. 7TH AVEJv[IE L PING WEST OF AND ADJACENT TO SAIp ATLANTIC PLAZA A5 SHOWN ON THE PLAT OF THE TOWN DF LINTON SNOW DELRAY BEACH ACCORDWG TO TIC PLAT TI-IEREOF A5 RECORDED IN PL4 r B~IC l PAGE 3, PUBLIC CORDS OF PALM BEACH COi.9'VTY, FLORIDA, BEING ~D FEET WEST DF AND ADJACENT TO T1••~ FdLLOWWG DESCF~i9ED LH~: COMMENGWVG AT 71-,E NC1~4THEA5T CORNED' OF SAID PLAT DF A TLANI7G` PLA,~A; rHE71'CE 589°58'15"14!, ALONG THE NORTH LINE OF 5A1D PLAT 0'~ A TLANTIC PLAZA, A DISTANCE OF 22!:18 FEET TD THE POINT aF BEGIMYING; THENCE 5O°QO'OD'E, A DISTANCE Oar 359.01 FEET TO A PRINT OF CL94VA TL~94E CdNG'A VE TO THE NORTHWEST HA VIIYG A CENTRAL ANGLE OF 36°33'25" AND A RADIUS OF 205.DQ FFET,• Th,ENCE SOU7NWESTERL Y ALONG TI-~ ARC ~7F 5AD CI~YE A D15TAh'CE OF 130.8a FEET TO A POINT OF REVERSE CU7VATL~4E CONCAVE TO 71-+E SOUTHEAST HAVING A CENTRAL ANGLE OF 36°33'25" AND A RADJJ5 ~ 165 DD FEET; TI~NCE' SflUTHWESTFRLY, ALONG Tl-~' ARC OF SAID CL6RVE, A DISTANCE OF 1f1528 FEF7; ThE1VGE 5 a°OD DO'S, A DISTANCE OF Z5D4 FEET TD A POINT DN T1'-~ SOUTH LINE OI- SAID A TLANTIC PLAZA AID A P011VT QN THE NORTH Uh,E DF EAST ATLANTIC A 1~EN[~ AS NOW LAID OU7" AND 1N U5E AND TFfF 7 ERMCN+JS PINT ~F SAID EASEMENT. THE 51DE LINES DF" SAID EASEMENT TO BE FXTENDEa C~b4 SHdRTENED TO MEET AT ALL ANGr.E POINTS AND TO TERMINATE A T THE NORTH AND SOUTH L11+~'S OF 5A1D PLAT DF A TLANTIC PLAZA AAfO TJ-JE WESTERL Y P12OJECTT~V OF THE SOLITh' LINE OF SAID PLAT DF A TLANTIC PLAZA. PAUL ~. FIVGLE SfJRVEYOR & MAPPER X5748 aA r~~ SAN ~3 2oog ORDER NQ. D4-f6~F 7TH AVE RE-ALI~IJT w' ~; ~: ti, ~~ a: k a. S: Sg; S; a• u: ~~ ~~ ~s ~~ ~~ U ' i !~ Y ~ ~~ ~~ a Exhibit "H" To Agreement for t_he Abandonment and Relocation of N.E. 7t~ Avenue Pe~nitted Exceptions ~40fi+19fi92.01fi CurrenU1349G93~v11 G211312QGB 1G:5fi Air! 1. Restrictions {deleting therefrom any restrictions indicating any preference, limitation ar discrimination based an race, color, religion, sex, handicap, familial status or national origin}, covenants, easement{s], setl7ack{s}, if any, as may be shown an the Plat recorded in Plat Book 5U, Page[s] 129, of the Public Records of Palm Beach County, Florida. 2. Restrictions {deleting therefrom any restrictions indicating any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin}, covenants, easerrwent{s], setback(s), if any, as may be shown ozx the Plat retarded ui Plat Book 18, Page{s] 91, of the Public Records of Palm Beach County, Florida. 3. Declaration of Unity of "Title dated February 4, 1993, recorded February 22, 199~i, in Dl'ficial Records Book 7596, Page 63, Public Records of Palm Beach County, Florida. 4. Easement Deed by and between Carteret Savings and Lean Assoc., F.A., and the City of Delray Beach, a Florida municipal corporation, dated May 14, 1984, recorded July 19, 1984, in ^fficial Records Book 430, Page 1126, Public Records of Palm Beach County, Florida. 5. )Casement Deed in Favor of the City of Delray Beaclz, reco~~ded September 3, 1985 iii Official Records Baok 464, Page 1168; Public Records of Paixn Beach County, Florida 6. Easement in favor ^f Florida Power & Light Company dated November 11, 1985, regarded December 31, 1985, in official Records Book 4752, Page 538, Public Records of Palm Beach County, Florida. 7. Corrected Easement Agreement in favor of the City of Delray Beach, a municipal corporation in Palm Beach County, State of Florida, dated November Z7, 1974, recorded December 5, 1974, in Official Records Book 2372, Page 16$7, Public Records of Palm Beach County, Florida. $. Easement Deed by and between First Federal Savings and Loan Asso. of Delray Beach, and the City ^f Delray Beach, a Florida municipal corporation, dated March 1 S, 1977, recorded April 18, 1977, in D~zcial Records Book 2666, Page 1136, Public Records of Pahn Beach County, I'lorida. 854Tli9692-018 Currenb13544t12v1 82!]~12DU910:23 PNl AGREEMENT F4R THE ABAI~"DUNIVIENT ~C TIIE ALLEY`i~AYS This Agreement for the Abandonment of the Alleyways (this "A~reerrtent"} is entered into as of February i7, 2~Q9 {the "Effective Date"}, between the CITY nF DELRAY BEACH, a Florida Municipal Corporation (the "City"}, and FREECGR INVESTMENTS, INC., a Florida corporation ["Freecar"), ATLANTIC CENTER, LTD., a Florida limited partnership ("Atlantic Center"), CDS AS.I BUILDING, ll~1C., a Florida corporation ("CDS"}, CDS 45, LLC, a Florida limited liability company {"C:DS 45") and CDS GA5 STATION, LLC, a Florida limited liability company ("Gas Station"; and together with Freecor, Atlantic Center, CD5 and Cl7S 45, collectively referred to lae~~eilr as the "Developer"}, for the purpose of enumerating the conditions precedent to the Developer's requcstcd abandonment by the City of those certain alleyways, located in Deh-ay Beach, Florida, to accaxnmQdate the Developer's mixed use project in Dclray Beach,l~lorida on lands now currently known as Atlantic Plaza. RECITALS: A. The Developer intends to construct and develop a mixed-usc project {the "Proiect"} an that certaili real property described as follows (t11e "overall Parcel"): See Exhibit "A" attached hereto and made a part hereof. B. Pursuant to a Resolution {the "Abandonment Resolution"}, the City, at the Developer's request, shall consider vacating and abandoning all right, title and interest the City holds in and to the alleyways more particularly described as follows ("Abandoned Alle "): See Exhibit "B" attached hereto and made a part hereof. The Abandonment Resolution shall be recorded in the Public Retards of Palm Beach County, Florida, as set forth herein. C. As a result of the approval by the City of the Abaardatxxneirt Resolution, the Developer became the owner and holder of fee simple title of and to a portion of the Abandoned Alley, and pursuant to that certain proposed easement agreement to be recorded in the Public Records of Palm Beach County, Florida (the "Abandoned Alley Agreement"), the Developer has agreed to grant the City: {i) a perpetual exclusive roadway easement for unobstructed and unimpeded vehicular and pedestrian traffic far uigress and egress, and over, upon, and across the Abandoned Alley, and for the City to exercise its governmental and quasi-governmental functions with respect to the Abandoned Alley (the "Roadway Easement"}; and {ii} a perpetual non-exclusive slzbsurCace utility easement within the Abandoned Ailey (the "Utility Easement"; together with the Roadway Easement, the "Abandoned Alley Easement"}. The proposed Abandoned Alley Agreement farm is attached Hereto as Exhibit "C". 1 7116,'1°692•fl11 CurrenV135G490UY.i a2l13I2009a1:44 Fhb D. The Abandoned Alley Agreement provides, in part, that: (i} the Roadway Easement shall terminate and be of no further force and effect upon the recordation of the Owner Certificate {as def ned in Section ld. l ^f Abandoned AIIey Agreeznezlt], [ii} the Utility Easement shall terminate and be of no further force and effect upon recordation of the "Utility Relocation Certificate" (as defined in Section 1.0.2 of Abandoned AIIey Agreement}, and (iii} at such time as (i} and [ii) above have heerz completed, the City and the Qwner (as defined in the Abandoned Alley Agreement} shall record a termination agreement in the Public Records of Palm Beach County, Florida, azxd thert;after the Abandoned Alley Agreement shall be of no further force and effect. E. This Agreement sets forth the obligations of the Developer in connection with the adaptia~~ of the Abandonment Resolution by the City, subject to and in accordance with the terms and conditions hereinafter set forth, NGW, THEREFaRE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Developer hereby agree as follows: 1. Incorporation of Recitals. The above recitals are true azld correct and are incorporated herein as if set forth in full. 2. De~~loper Dbli ate Inns. The following obligations shall he satisfied by the Developer in connection with the abandanznezat contemplated by the Abandonment Resolution: a. Execution by Atlantic Centez', Ltd. a Florida lizxzitcd partnership and delivery to the City of the Financial Guarantee & Agreement, the form of which is attached lzez~eta as Exhibit "D", the Abandoned Alley Agreement and the Declaration of Reserved Rights and Agreement Nat to Encumber the Abandoned Alley the form of which is attached hereto as Exhibit "E" the "Declaration, of Reserved Rights"} (collectively hereinafter referred to as ~e "Executed A •eernents"}. b. Delivery to the City of executed and recordable subordination agrcernents in connection rvitl-z mortgage liens, if any, which encumber the lands described in the Abandoned Alley Agreement. 2.1 In the event the City does not adopt the Abandonment Resolution within ninety [90) days after the Effective Date, or if the City adopts the Abandonment Resolution ("Cit 's Decision"}, 13ut the City's Decision is appealed or a writ of certiorari is filed (collectively, the "meals"} and either the City's Decision is reversed icy a filial non-appealable order or if the Appeals are still pending three {3} years after the City's Decision, then either party may cancel this Agreement zzpnn written notice served upon the other party within fourteen {14} days after the party is entitled to cancel this Agreement. The City shall oat record the Abandonment Resolution du~~ing the pendency of any Appeal. If this Agreement is cancelled, the original Executed Agreements shall be of no fuz-ther effect ar farce aril the parties shall be 2 777fili9692-ail Cu:r~l1135B~90q~J OZI13l2QG9~1:44PM relieved of further obligations hereunder. if there is a reversal or modification of the terms ar conditions of the Abandonment Resolution artdlar the Executed Agreements as a result of an Appeal. the City acrd the Developer shall fully cooperate with each other tv Itlodify the Abandonment Resolution andlor the Executed Agreements in ordar to comply with the Appeal. If the City and the llevelvper are unable tv mutually agree upon the terms and conditions of the Irrodlfied Abandonrrlerlt Resolution andlor the Executed Agreements then either party I77ay cancel this Agreement upon writtelr Irotice served upon the other party and this Agreement shall be cancelled and the original Executed Agreernen#s shall be of no furtlrer effect or force and the parties shall be relieved ^f further obligations hereunder. 2.2 If the City timely adopts the Abandonment KesnIution, and the City's Decision becomes final and non-appealatrle within thirty one {31} days after the City's Decision, yr if the City's Decision is appealed, but the Appeal is resolved without any nrodifications tv the Abandonment Resolution or the Executed Documents, then the Executed Agreements descxihed in paragraph {2}(a} of this Agreement shall 17e effective and the City shall be authorized to and shall promptly record the Abandonment Resolution, the Abandoned Alley Agreement, and the Declaration of Reserved Rights. 3. Condition of Abandoned Alle ~. Except with respect to any matters set i'arth in the documents executed by the City in Connection with the abandonment of the Abandoned Alley, if abandoned pursuant to the Abaldonment resolution, shall be abandoned in its "AS 11S" condition and the City makes nv warranty yr representation regarding the title to the Abandoned Alley and makes no representation or warranty either expressed yr implied regarding the condition, operability, safety, fitness for intended purpose, use, governmental requirements, development potential, utility a~~ailability, legal access, economic feasibility or any other matters whatsoever with respect to the Abandoned Alley. The Uevelaper specifically acknowledges and agrees that the City shall abandon the Abandoned Alley an arI "AS IS, WHERE IS, AND WITH 1,LL FAI]LTS" basis and that, except for the City's represelrtations and warranties specifically set forth in this Agreement, the Developer is not relying vn any representations or warranties of any kind whatsoever, express ar impIied, by the City or its respective agents, officers, or employees as to any matters concerning the Abandoned Alley, including, without limitation, any matters relating tv: (I] the quality, nature, adequacy, Qr physical condition of the Abandoned Alley, (?] the quality. nature, adequacy or physical cvlyditiori of sails, fill, geology, or any groundwater, (3] the existence, quality, nature, adequacy ox physical condition of utilities seaving the Abandoned Alley, (4} the development potential, income potential, expenses of the Abandoned Alley, {5} the Abandoned Alley's value, use, habitability, ar merchantability, (6] the fitness, suitability, yr adequacy of the Abandoned Alley far any particular use or purpose, (7} the zoning or other legal status of the Abandoned Alley, (8} the colzrpliance of the Abandoned Alley ar its operation with any applicable codes, IAWS, rules, xcgulatians, statutes, ordinances, covenants, judgments, orders, directives, decisions, guidelines, conditions, yr restrictions of any governmental or quasi-goven7mental entity ar of any other person or entity, including, without lilnitativfr, elrvirorunental person yr entity, including without limitation, environmental laws, (9} the presence of Hazardous Materials (as defined 1-Iereitr) yr any other lrazardvus ox toxic matter 3 777811989P-D] 1 Gurrentl]3554904~3 Q2113~2[]49 D7;44 PM on, under, or about the Abandoned Alley, or adjoining ar neighboring property, {1D} the freedom of tl~e Abandoned Alley from latent ar apparent defects, {I1} pea~eabie possession of the 1lbazzdoned Alley, {I2} environmental matters of any kind or nature whatsoever relating to the Abandoned Alley, { 13} any development order or agreement, or (14) any other matter or matters Q#~ any nature or kind whatsoever relating to the Abandoned Alley or any improvements located thereon. 4. Cit 's Maintenance Qbli atioa3s. Tlae City slzall not have any obligation to repair, replace, or remediate the Abandoned Alley or any portion thereof as a function of vacating the Abandoned Alley irz the sense that the Developer is accepting the Abandoned Alley in its "A5 1S Where is Condition"; provided, however, the City shall be responsible far maintenance, repairs and restoration to the Abandoned Ailey until such time as the Abandoned Alley Agreement is tcrrrzinatcd. It is the parties' intention that until suci~ time as the Abandoned Ailey Agreement is terminated, that the Abandoned Alley shall continue to operate in all zespects as a public riglrt- af-way En accordance with the terms and provisions of the Abandoned Alley Agreement and, as such, the City shall continue to nperate the Abandoned Alley in all respects, including, without limitation, repair, restoration, replacement, maintenance, and traffic enforcement thereof and thereon until such time as the Abandoned Alley Agreement is terminated. If the Developer damages the Abandoned Alley, the Developer shall be responsible to repair and restore the Abandoned Alley as a result of such damage. 5. Risk of Lass. Prior to the termination of the Abandoned Alley Agreement., the City shall bear the risk of loss or damage from casualty of the Abandoned Alley, except such ions that has been caused by the Developer. The Developer shall bear the risk of lass or damage from casualty of the Abandoned Alley as stated irz the Abandoned Alley Agreement, b_ Costs. All documentary stamp taxes, title evidence, and recording charges shall be paid by the Dei~elaper and such charges shall be paid to the City prior to such costs being incurred by the City. In the event such casts arc not necessary ar in excess of the amounts required, the City shall reiz~burse the Developer far the above described prepaid charges. 7. Re resentations of Develo er. The Developer represents and warrants to the City, to the best of Developer's kriawledge, as (allows, which representations and warranties shall be deemed made by the Developer to the City as of the Effective Date and as or the recording of the Abandoned Alley Agreement, and they shall survive recording: A. There are no patries in possession of any portion of easements described in the Abandoned Alley Agreez-uez~t other than Developer. B. There is no pending or threatened litigation or other proceeding or assessment against the Developer which if adversely determined in a final non-appealable judgment will have an adverse irtzpact on the transactions contemplated by this Agreement or any 4 771fil19692-D1€ CurrenU135fi480{h~,i 021t312Q09 D1:A4 PM o£ tl~e agreements to be executed and delivered in connection with this Agreement nr the abandonment contemplated by the Abanda]a]nent Resolu[ion. C. The Developer has carnplied with alI applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the land described in the Abandoned Alley Agree]~]ieiit or any part thereof the failure of which would have a material adverse affect on the transactions contemplated by this Agreement. D. Developer is authorized to enter into this transaction and has full authority to convey the easements described in the Abandoned Alley Agreement to the City without viol~-ting any rule, law, statute, agreement or other condition. E. The Developer is not a party to any unrecorded contracts, restrictions, easements, leases, option contracts, or rights of first refusal with respect to the lands described in the Abandoned Alley Agreement, the fail]are of which would have a material adverse affect on the transactions contemplated by this Agreerr~ent. F. The Developer warrants that it will not, between the Effective Date and the date of recording of the Executed Agreements, without the City's prior written consent, create l}y the Developer's consent, any encumbrance, lien ar claim against title to the lands described in the Abandoned Alley Agreement. 8. General Provisions. 8.l AmeEid]r]ent. This Agreement may be amended or modified only by a written instrument signed by both parties or their respective successors and assigns. 8.2 Entire A rg eernent. This Agreement 5~ts foi~li the entire agreement between the Developer and the City with respect to the conditions precedent to the City's abandonment of the Abandoned Alley. This Agree]x]ent supersedes all prior and contemporaneous negotiations, understandings and agreements, written ar oral, between the parties. 8.3 Governing . This Agreement vti~ill be interpreted and enforced in accordance with Florida law_ 8.4 Successors and Assig-]~s. The covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon floe successors and assigns of the Developer and the City. 8.5 Authority to Execute: R~presentatinns. The Developer and the City each wan ant and repxeseaat to the ether that the individuals signing this Agreement on laeltalf of the 5 Ti7Bl1969~-4] 1 CurrenG']3564°OO+fa Q2J]3f20~9 01:G4 PA+f Developer and the City, respectively, have full power and authority to execute and deliver the Agreement and to biixd tl~e respective parties hereto. 8.6 Counterparts. This Agreement may be signed in two or more counterparts, each of which canstit~rtes the Agreement of the parties and each of which shall be treated as an original. 8.7 Severability. if any term yr provisian of this Agreement or application thereof to any person ar circumstance shall, to any extent, be found by a court of competent jurisdiction to be invalid ax rrnenfarceable, the remainder of this Agreement, or the application of Such term or provision to persons or circumstances other than these as to which it is held invalid ar unenforceable, shall not be affected thereby and each temp or provision of this Agreement shall be valid and enforceable to the fullest extent peixxritted by law. $_8 Nnn-Waiver. Na waiver af, ar failure to assert, any claim, right, benefit ar rerrxedy of any party pursuant to this A~eement shall operate as a waiver of any other claim, right or benefit. The failure of any party at any lime or times Co require performance of any provisian hereof shall in no manner affect such party's right at a later time to require such performance or to enforce the same fully. No waiver ar modification of the terms hereof shall be valid unless in writing and sued by the party to be charged, and then only to the extent therein set forth. 8.9 Hea~„ dom. The headings of the articles of this Agreement are for gnidanoe and convenience of reference only and shall not limit or atlrer~vise affect any of the terms ar provisions of this Agreement. 8.10 Delav. If any party to this Agreement is delayed, hindered in, or prevented from the performance of arry apt required to be performed by that party by reason of acts of Gad, strikes; lockouts, unavailability of materials, failure of power, prolril~itive governmental laws ar regulations eat imposed by the City, riots, insurrections, the act yr failure to act of any other party to this Agreement, adverse weather conditions preventing the perforraaance of work as certified to by an architect, war, act of terrorism, or other reason beyond that party's reasonable control and for which, in each of the aforesaid circumstances, the party is diligently and in good faith and with reasonable dispatch scckurg to abate and remove the circumstances causing the delay ar hindrance ar prevention from performance of the act required to be performed by that party, then the time far performance of the got shall be extended for a period equivalent to the period of the delay. Lack of adequate funds or financial inai}ility to perform or financial nr ecorromic lasses or hardship resulting frori~ perforrrrance shall not be deemed to be a cause beyond the reasonable central of such party. 8.11 Joint Pre oration. The preparation of this Agreement has been a joint effort of the City and the 1eveloper and the resulting docurxrent shall eat, solely as a matter of judicial carrsta~uctiorr, he wnstr-ued more severely against one party than the other. 6 7n~1i96sz-os i Currentlt35s49oc7r3 o21ts1zaos oi:44 PA6 8.12 Notice. Any Halite, demand or request which may he pezmitted, required or desired to be giveaa iia co~uaectiou 1.herewith sha[1 be given in writing and directed to the City and the owner as Follows: As to City: City of Delray Beach 14Q N.W. 1St Avenue Dclray Beach, Florida 33444 Attn: City Manager Facsimile: {561 } {Sd 1} 278-4755 ~'Vith a copy ta: 20Q N.V~. 1`` Avenue Dclray Beach, Florida 33444 Attn: City Attorney Facsimile: (561) 278-4755 As to Develvpel: Feec~rr Investments, Inc. clo CDS Intemational Holdings, It~c. 3299 l~I.VV, 2°St Avenue Baca Raton, Florida 33431 Attn: President Facsimile: (5f 1) 278-693Q With a copy to: Steve Daniels, Esq. Arnstein & Lehr LLP 51 ~ North Flagler 17rive Sixth Floor West Palma Beach, Florida 33441-4323 Facsimile: (5bI} 655-5551. Atlantic Center, Ltd. c!o CDS International Holdings, lnc. 3299 N.W. 2"d Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561} 27S-f]93C1 CDS ASJ Building, Irac. clo CDS International Holdings, Inc. 3299 N.W. 2"a Avenue Baca Ratnn, Florida 33431 Attn: President Facsimile: {5G1) 27$-693Q 7 7TT5J19692-U11 GurrenV1a5fi49~+f~ 07J]3I200901:44Ph+f CDS 45, LLC c!o CDS International Holdings, Inc. 3299 N.W. 2"d Avenue Boca Ratan, Florida 33431 Attn: President Facsimile: (5Gl) 27$-59301 CDS Gas Station LLC clo CDS International Holdings, Inc. 3299 N.W. 2"`' Avenue Seca Raton, Florida 33431 Attn: President Facsimile: (5~1) 278-6930 Notices shall be deemed properly delivered and received when and if either (i} personally delivered; ox (ii} one (1) business day after deposits with United 1'arcei Service or other overnight courier; or (iii} the same day whorl scant by confirmed facsimile before 5:~0 p.m. (Eastern time}. 8.13 Attorneys ,Fees. In connection with any litigation, ar dispute arising out of this Agreement, each party shall bear its own attorneys' fees and casts. 8.14 Further Assurances. The parties agree to execute all future instruments and take all further action that xnay be reasonably required b}~ any party to fully effectuate the terms and provisions of this Agreement and the transactions contemplated herein, including without limitation, executing and delivering all Executed Agreements and all other documents referenced ua the Executed Agreements. 8.15 Venue. Any dispute relatuig tv this Agret~rrrent shall only be filed in a court of competent jurisdiction in Palm Beach County, Florida, and each of the parties to this A~ een~ent submits itself to th,e jurisdiction of such court. Remedies and Default. 9.1 Default. The failure of the Deve[aper ar ~c City to observe ar perform arty of their respective obligations under this Agreement (the "Defaultinn Part "} within thirty (34} days after receipt of written notice from the other party specifying the nature of the failure (the "Alon- Defaultiir~ Party"}, shall constitute a default and breach of this Agreement; provided, however, if such failure is of a nature that it cannot reasonably be cured within such thirty (30) day period, then the Defaulting Party shall not be in default so long as the Defaulting Party canunences such cure proxnptly after receiving such written notice, and is diligently pursuing such cure to completion. This Section 9.1 is net applicable to any provision contained in Section 2 or subsections of Section 2 of this Agreement. 8 7TI6~'19692-01 t Gurr~nu'1"649oa+~ o7J13J2ou9 x1;44 PNf 9.? Remedies. The terms and provisions of this Agreerrrent are enforceable with all remedies at law and in equity, including, but not limited to, bringing an action far actual damages, an action for specific performance, an action far temporary restraitri~ig orders, preliminary ar permanent injunctions, declaratory judgments or ether similar orders far relief; provided; however, that. suspension or termination of this Agreement on account of a breach shall oat be an availal}le remedy unless otherwise provided for herein. 't`he parties further agree that neither party shall have the right tv recover any consequential, punitive, special, extraordinary or speculative damages as a result of the breach of this Agreement. Tlae parties to this Agreement hereby acknowledge and stipulate the inadequacy of legal xemedies and the irreparable harm that would be caused by a material breach of any obligation under this Agreement by a party to this Agreement. This Agreement may not be suspended or terminated except by an instrument in writing signed 6y City and Developer and recorded in the real property records of Palm Beach County, Florida. ld. Nn Third Party Beneficiaries. No third parties other than the City shall have the right to bring a cause of action against the Developer under this Agreerryent. 11. Governmental Functions. Notwithstanding anything to the cvzxtxary contained in this Agreement: a. Even though the City has certain contractual al~ligations under this Agreement such oblibatio~xs shall net relieve any Berson subject to this Agreement from complying with all applicable governmental regulations, rules, laws, and ordinances; b. To the extent approval or permission must lae obtained from the City, such approval or pcrrnissian shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested rights; c. The City has not waived its sovereign immunity and the tort limits of liability set foxth in Fla. Stat. 7b8.28 which are currently $10,4(]0 per person and $2~D,~~~ per occurrence are applicable; and d. Any action by City shall be without prejudice to, and shall not cflnstitute a limit on, impairment or waiver ot, or otherv-rise affect the City's right to exercise its discretion in. connection with its govemmental yr quasi-governmental functions. EXECUTION PAGES TD FGLLOVLT 9 777G,'19fi92.011 CurrenG'7355490Urr3 07113J20U9 x7;44 FM IN WITI~IESS WI~1tEQF, the parties to this Agreement set their hands and seals the day and year first above written. ATTEST: By: City Clerk Approved as to Farrrr: B y: City Attorney CITY OF DELRAY BEACH, FLORIDA Sy:_ Name Its: Date: STATE OF CQUNTY ^F The foregoing instniment was acknowledged before me this day of , 20Q~, by the _._. ____ of the CITY ^F DELRAY BEACH, FLORIDA. He1She is pex~svazally known to me or has produced _ __ [type of identification} as identification. Signature of Person Taking Acknowledgment 7776,`19fi92•p31 Currentl33554~r~3 07113J20U9 at:44 FNl ~'VITNESSES: Print Marne: Print Name: STATE DP } 5S: cauNTY of ~ The foregoing instrument was acknowledged l2efore me this ,.,,~ day of , 20~, hY ,the of FREECOR INVESTMENTS, INC., a Florida corporation, on behalf of the corporation. He1She is {check one} personally known to me or has produced as identification. Notary Pu6lie Signature {SEAL} DEVELOPER FREECflR INVESTIV.ECNTS, ING, a Florida corporation Pri~~t Name: Title: Print Name State o.f Commission Na.: My Commission Expires: at Large 7776~'i9592-D1 t GtxrenUl&5649~U~ fl?J13I20D9 D1:44 PM Print Name: Print Name: STATE OF } } ss: COL TNTY DF } B v: Print Itilame: Title: The foregoing instrument was acknowlcdgad before me this _ day of , 2Q._._, by ,the of :4tlantic Center, Inc., a Florida corporation, the general partner of A'I'LAN'I'IC CENTER, LTD., a Florida Limited partnership, on behalf of the partnership. He15he is {check one) _ __ __ personally l~nown tome or has prad~ccd as identification. SEAL} ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner Notary Public Signatlau•e Print Name State of Comrrlission 1Vo.: My Commission Expires_ at Large ~7T6,'1969P•011 CurrenG'135fi49U~r~3 a?J13d20~9(11:44 FA+~ CllS AS,I RUILllING, INC-, a Florida corporation By: Print Name: Print Name: "Title: Print Name: STATE OF COUNTY OF } } ss: The foregoing instrument was acknowledged befv~-e me this ~ day of , 20_, by ,the of CDS AS] BUiLDINC, INC., a Florida cazPoration, on behalf of the corporation. He1She is (check one} personally known to me ar has produced as identification. Notary Public Signature (SEAL) Print Name State of Commission No.: My Commission Expires: 7776,'19592.011 Gurren['i35fi490[t+I,i 02113J2049fl1:44 PM at Large Cl)S A5, I,I,L', a Florida limited liability company Print Name: Print Name: STATE ~F COUNTY OF } ss: By: Print Name- Title: The foregoing instrument was acknowledged la~fvrc me this _.,.. day of , 20_, by ,the of CDS 45, LLC, a Florida limited liability company, an behalf of the Company. He15he is [check one) personally known to me or has produced. as identification. [SEAL) Notary Public Signature Prurt Narrre State of Commission No.: My Commission Expires: at Large 7776119fi92•Di1 GurrenVt356490L1~ ~~J13l2~a901:44 P~1 Print AIame: Print Name: By: Print Name; Title: STATE DF } } ss: CQCJNTY DF } The foregoing instrument was acknowledged before me this ._..._ day of , 2t3_, by ,the of CDS ltzternational Realty, LLC, a Florida limited liability company, the manager of CDS GAS STATION, LLC, a Florida limited liability company, an behalf of the company. He15he is (check one} personally known to me or has produced as identification. SEAL} C135 GAS STATION, LLC, a Florida limited liability company By: CI]S International Realty, LLC, a Florida limited liability company, its manager Notary Public Signature Print Name State of Commission Na.: My Commission Expires: at Large 777Fz%9692.011 CurrenV13564940+~ ~7J13I2U0901:44 PNf Exhibit `cA~} 'To A regiment far the Abandonment of the Axle wa s Le al Descri tion of the U~erall Parcel 7TIfi,%9692-Jii Curren6'135fi49t10v3 d2l1312D~90i55 AM DESCRa~rION of PROTECT srrE: LOT 1, I.FSS THAT PORTION DEEDED TD THE STATE QF FLORIDA FOR ROAD RIGHT OF WAY , AS DESCRTREQ IN OFFICIAL RECORDS BOOK 511,, PAGE 5Id. LOTS 2 THROUGH I1, INCLUSIVE, LESS THE WESST S.[7 F1-;h"1' THEREOF FOR ROAD RIGHT of WAY, LOTS I2 THROUGH 19, INCLUSIVE, LOT 2D, LESS THAT PORTION FOR THE RIGHT QF WAY FQR EAST ATLANTIC A'SrENUE AND U.S. HIGHWAY NQ, 1, LOTS 21 THROUGH 24, INCLUSIVE, LESS TI-IE SOUTH 7.I} FEET THEREOF FQR ROAI] RIGHT of WAY, ALL THE EAST-WEST ALLEY LYING SOUTH OF AND ADJACENT Tn SAID LQT I1, LESS THE WEST 5.~ FEET THEREOF FQR ROAD RIGHT of WAY, ALL OF THE NORTH-SOUTH ALLEY RIGHT OF WAY LYWG EAST OF AND ADJACENT To LQTS 1. THROUGH 11, INCLUSIVE AND LOT 22, LESS THE SOUTH 7.6 FEET TI~REOF FaR ROAD RIGHT OF WAY, ALL LYING IN BLOCK l Ib, TOWAI QF LINTON (NOW L3ELRAY BEACH},.ACCORDING TO THE PLAT' THEREOF AS RECORDED IN PLAT BoDI{ I, PAGE 3, PUBLIC RECORI]S DF PALM BEACH COUNTY, FLORIDA. TOGETHER VL'ITI-I: ALL OF THE PLAT Or ATLANTIC PLAZA, ACCORDING TG THE PLAT THEREOF AS RECORDED IN PLAT SODIC 5d, PAGE 129, PUBLIC RECORDS GF PALM gF,ACH COUNTY, FLORIDA. AND TOGETHER WITH: THAT PORTIOI+I flF THE EAST HALF 4F THE 54 FOOT ROAD RIGHT of VVAY FaR N.E. 7~ AVENI IE LYWG WEST aF AND ADJACENT To THE S1tID PLAT ^F ATLANTIC PLAZA, AND THA'I' PORTION OF THE WEST HALF OF THE 5B FOOT ROAD RIGHT OF WAY FGR N.E. 7~ AVENUE LYING EAST OF AND ADJACENF To SAID BLQCI~ 1 Id, LESS THE SOUTH 7.a FEET THEREOF. Exhibit "B" To A reement for the Abandonment of the Alle wa s Leal Description of the Ahandnned Alley 771firi9fi92-011 CurrenN13564900~ 62113J200961:55 PA+f SI'CETCH CE DESCRIPTION EYI~'B1T "A" s1-,~rr~r a ~, ~r.~: rsr srr~T U - - ~ g a ° ' `~~ N.89 584T E ' ~~. ~~' NDrE~ M7R71-1 LINE BLQCiC 116 7}1515 NDT A S[~?VEY ~ ~ = CENTERLINE ' ' ' .-~ ~ ~ y., ~.--, ~ ~ ~ 774E NQR77 -J L11~ OF BLOG 1C 116 15 ASS[~441E0 TD BEAR N89 5847' ~ ~~ J~ ~ 0 ~ ~~ as 7 ~ ~ ~ ~ w r~ y ~~1' f~ Cx ~ y-~ ~ L ~ O ~ O ~ Q O ~ ~' h ~ ~ to ~ ~ ~ ~ ' ® ~~~ ~ ~ ~ ~ ~~ ~ ~ ~~ U "~o ~~ m NJRTN RIGHT OF WAY LINE ~ A[9p UOIX7E 0 50UTH L111E o ~' BLDC1~ 116 ~ EAST ~ TLANTIC ;~ u~uvE ^FSCR~Pr~aly ALL THAT PQR77C7N OF' TF1F IVOR7H SOUTH 16 FQQT ALLEY PAUL D. EIVGLE RIGHT QF WA Y L YING IN BLOCK 116, TDYYN aF LINTDN SNOW SURVEYpR & MAPPEFs' ~f `57D8 DELR7i Y BEACH , ACCDRpING rD THE PL.A T 7~REOF A5 RECORDED !N A T 800 ~ PAGE .3z PL~L1C RECORDS DF PALM CIJEACH COUNTY, FL DR,DR, LESS Tf-+E SpUTH 7.0 FEET DA TE:• JULY 9, 2008 THEREOF. p'BRlEN, SLHTER & D'BRlEN, INC CERTIF7CAT[" DF AU~'hlDRIZATIQI+1 1.8.353 SURVEYOR AND MAPPER 1IV RESP IV5IBLE CNARGE.• PAUL. L7. ENGL.e 955 N. W. 17TH AVENUE, SUITE K1 ORDER NQ. Q~-164 PARCEL 5 ABAIJDOI~YIENT DELRAY BEAGN FLORIDA 33445 (561j 27fi-4501 {561 732-3279 a~ ~` d; ~? ~; ~: ~, ~~ o• ~~ ~i ~; ~, ~~ ~: fl; DESCRIPT7ON.• ALL THAT Pa4T]C]N QF TI-~ EAST--WEST ~ FQOr ALLEY RIGY-IT OF WAY L YI1VG SG'CJTH ~ AlID ADJACFM TO LOT 11, BLOCK 1~6, TOWN QF LIIVTON (NOW GLZRAY BEACH), ACCaRDlNG TQ ThE PLAT TI-JE•RFOF AS RECORDED IN PLAT BQQFC 1, PAGE 3, PLL]UC RECOi4D5 OF PALM 9EA~W CQ[~9'VTY, FLORIDA, LESS ThE WEST 5.0 FEET ThLREUF FOR ADDITrUNAL l~OAD RJGHT OF WAY FUR U. 5 1-,~'GHWA Y ND. 1. PAUL D. ENGLE SURVEYOR & MAPPER ~57~8 QA T~• JULY 9, X008 8; ~, n, a; d~ n~ $: i w Si ~; ~~ ~}' C: ~• U. ~~ ~; ^q• U; ~~ C9 . ~~ 0~ ORDER IUQ 0~-~4 PAf~GEC• 4 ALLEY ABAl+~+]OMl~1VT Exhibit "~" To Agreement for the Abandonment of,,,the AlleYwa~s Farm .~ban~aned Alley A~reemenC 7776,'#9G9~-D## Current`#356Q9D0~3 D21i31PD09D1:55 AM This instrument was prepared by and should lie returned tn: Brian Shutt, Fsq. City Attorney's Office 2a~ N.W. 1st A~enzze Delray Beach, Florida 33444 EASEMENT AGREEMENT {Abandoned Alley} THI5 EASEME1rIT AGREEMENT (this "Agreement") made as of Februaxy l7, ?0~9 {the "EfCecti~e Date"}, arrzang the CITY QF DELRAY BEACH, FLORIDA (the "Ci~t rr"}, with a zrzailing address of 1~0 N.W. 1st Avenue, Delray SeacU, Florida 33444, a Florida municipal corporation in Palm Beach County, State of Florida, and FREECDR INVESTMENTS, INC., a Florida caxpoxation ("Freeco~'}, ATLANTIC CENTER, LTD., a Florida limited partnership ("Atlantic Center"}, CDS A5J BUILDING, Il1iC., a Florida corporation t"CD5"}, CDS 4S, LLC, a Florida limited liability company ("CDS 45"} and CD5 GAS STATIUN, LLC, a Florida limited liability company ["Gas Station"; and together with Freecor, Atlantic Center, CDS and CDS 45, collectively referred to herein as the "Owner"}. RECITALS: A. Pursuant ro a Resolution {tlze "Abazidoiunerit Resvlutiorz"), the City has agreed to VACate and abandon all right, title and interest the City holds in and to the alleyways mare particularly described as follows (collectively, the "Abandoned Alley"}: See Exhibit "A" attached hereto and made a part hereof. The Abandonment Resolution has been retarded in the Public Records of Palm Beach County, Florida. B. As a result of the approval by the City of the Abandonment Resolution, each Owner became the awnex and holder ^f fee simple title of and to a portion of the Abandoned Alley and the Ovrner together own fee simple title in and to the property constituting the entixe Abandoned Alley. C. The Owner, with respect to the portion of the Abandoned Alley which such Owner owns, desires to b ant to the City: {i} a perpetual exclusive roadway easement for the unobstructed and unirttpeded vehicular and pedestrian traffic for ingress and egress, and aver, upon, and. across the Abandoned Alley, and for the City to exercise its ga~~ernmental and quasi- gavemmental functions with respect to the Abandoned Alley, including without limitation, traffic 777fi+i9fi92-0ifi Current~13552898v8 02113+200903:38PA9 regulation, and other uses and purposes as may >7e permitted by the City's Cade of Ordinances or by resolutions adopted by the City Commission with respect tv public rights-of--ways located widuit floe City and Far all purposes for which the City has all power under hams rule authority, including but not limited to those expressed in Florida Statutes yr City Ordinances, and this Agreerraent shall not in any way limit those powers including but not limited to access, ingress and egress, maintenance, control, closing, or other use of the Abandoned Alley by members of the public, and City officers, agents, employees or contractors, and {ii} a perpetual non-exclusive subsurface utility easement a~~er and under the Abandoned Ailey, each for the uses and purposes and upon the terms and conditions herein contained. D. This Agreement shall remain in full force and effect until such tinne as set forth herein. 1tiiOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other goad and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the City and the Owners agree as follo«+s: I . Recitals. The fvregoi~~g Recitals are true and cvr-rect and are incorporated herein by this reference, as if set Earth in their entirety. ~. Roadway Easement. 2.1 Grant of Roadway Easement. Subject to the terms of Section 10 of this Agreement, the Qwner, as grantor, hereby grants and conveys to City, its successors and assigns and the general public {collectively hereinafter referred to as the "Roadway Grantees"}, commencing upon the date of recording of this AgrGGrrlcnt and perpetually thereafter, an exclusive unimpeded and unobstructed easement far the use and benefit of the Roadway Grantees {"Roadway Easement"} over, upon, anal across Abandoned Alley for the following purposes: a. Tlie unobstructed and unimpeded use far pedestrian and vehicular parking and traffic, including sidewalks, access, ingress and egress, as a through roadway, and for the proper installation, maintenance, repair and replacement of a paved roadway and its subsurface components; b. Far any public purpose permitted by the City's Code of Ordinances which relate to or concern the use or regulation of public rights of way located within the City; c. For any public purpose approved by the City Conunission which the City Commission could approve with respect tv public rights of way located within the City in the exercise of its governxental and quasi-governmental functions; and d. Far all purposes far which the City has all power under Home Rule Authority, including but not limited to those expressed in Florida Statutes ar City Ordinances, and this Agreezx~enrt shall not in any way limit these powers including but net limited tv access, ingress and egress, maintenance, control, closing, ar ether use of the Abandoned Alley by 2 7776119692-0tfi Curren;ri355P899v6 U21't3r2a09 p]:3S PIN members of the public, and City officers, agents, employees or contractors, including, without limitation, closing the Abandoned Alley for street fairs, festivals or other events approved by the City withi~t the exercise of its governmental ar gtFasi-gavemmental functions similar to any other City public right of way. e. Notwithstanding the foregoing, the grant of an exclusivc pcrpctual easement, as set forth herein, shall not preclude the owner from exercising its rights ox performing its obligations hereunder with respect to Abandoned Alley, as specifically set forth in this Agreement. ~.2 Maintenance. Cxcept as otherwise provided ur the Agreement, the City hereby shall and does adept sale responsibility for the maintenance, repair and xeplacement of the Roadway Easerzaent and a1i related improvements, including without limitation, sewers, drainage, landscaping, traffic control devices, street lights, median requirements, stxiping, sidewalks, paving, and curbing, in good condition and repair, and in compliance with all applicable governmental rules, laws, regulations and ordinances as they pertain Co public rights of ways. 2.3 Alterations. The dwner shall not make any alterations to the roadway design, location or improvements thereon unless the City consents to same in the exercise of its governmental or quasi-governmental fiinctians. 2.4 Rights of the Roadway Grantees. The Roadway Grantees shall have the right to use the Roadway Easement in an unobstructed and unimpeded maru~tex seven {7} days a week, twenty-four {24} hours per day, except as otherwise authorized by the City in the exercise of its governmental ar quasi-gnvemmental functions. Na fee ar other expense shall be charged by the owner to the City nr the Roadway Grantees for use of the Roadway Easement. 2.5 Towing Vehicles. The Owner shall riot be allowed to taw ar otherwise relocate vehicles located in the Roadway Easement; provided the Owner shall retain the right to taw vehicles located an private property in accordance with all applicable law. 2.6 Obstruction. Na obstruction of the free flow of pedestrian and vehicular traffic or use of the Roadway Easement for parking shall be permitted or caused by the Owner. ~.7 Taxes. The Owner shall pay or cause to be paid before delinquency all ad valorem real property taxes, general and special assessments and other governmental charges assessed against the fee parcel, subject to the Roadway Easexrtent and improvexx~ents on the Roadway Easement and provide evidence of the same to the City. If those amounts are not timely paid by the Owner, the City may (but shall not be obligated to) pay alI nr part of those amounts and the Dwner shall immediately reimburse the City those amounts upon demand, together with interest at the rate of eighteen percent [lS.a%) per annum on the amounts so paid by the City, from the date of advance until reimbursed. The City shall also have a lien against the fee simple interest subject to the Roadway Easement to secure repayment of taxes paid and the manner of filing a lien, its priority, and its enforcement shall be the same as set forth in Section ~.9 of this 3 TTIfir~9692~]6 CUrre~t'13552899vfi 4?J33f200901:38Ph3 Agreement. This Roadway Easement shall be an ingxesslegress easement within the meaning of Florida Statutes Chapter 197.572. 2.8 Intentionally Omitted. ~.9 The Cit 's Remedies U on a Default. In the event the Owner causes damage or destruction tQ the Roadway Easement or any improvements thereon (the "Owner D_ amaze"), or a5 a z'esult of the neg]igence or misuse of the retained servient estate rights of the Qwnex, then the Owner, at its sole cast and expense shall, as expeditiously as possible after becoming aware of such damage, repair' axed restore Abandoned Alley andlor the damaged utilities installed by the City in the Utility Easement {defined below} to the condition the sarzze were in immediately prior to such damage, except in the event such damage was caused by the City, its employees, agents, contractors, representatives or the Roadway Grantees, in which event the City shall be responsible for the costs ^f repair and restoration of the Roadway Easement and the improvements thereon if such damage shall create a dangerous condition, as determined by the City. Any restaratiora arrd repair work undertaken shall be performed in accordance with alI applicable laws by licensed contractoxs and in a good, parr-negligent, and workmanlike and lien- free manner or ley City personnel, if pcrfoxrncd by the City. Should the Owner fail to promptly restore the Roadway Easement or any improvements located thereon, as a result of any Owner I]amage, and as a consequence, the City's easement rights created by this Agreement become impaixed ar City is unable to utili2e the Roadway Easement as intended by this Agreement, in addition to any remedy the City may have, City, after not less than thirty [3U} days prior written notice to the Qwner to cure the default (except no notice shall be required in the event of an emergency}, may, but it is not obligated to, enter onto any portion of the Roadway Easement to perfornrz all necessary construction, repair, maintcnan,cc, replacement and operating work and may assess Owner for the reasonable cost of said work. Owner shall pay the cast of said work within thirty {30} days after the City delivers to the Owner ("Payment Date"): [i} a written statement setting Earth the amount of the costs and expenses expended by the Ciry; and (ii} back up information and detail evidence supporting such expenses. including without limitation paid invoices fox alI such work, if any. The Payxxrent Date stroll oat commence until such time as the City has delivered to the Owner all of the information set forth in items {i} arzd {ii} above. If the foregoing amount is not paid on ar before the Payment Bate, then said arnaunt stroll bear interest at simple interest rate of eiglrteen percent {18.O~1o} per annum, Frorn and after the Payment Datc until paid and after the Payment Date the City shall have the right to retard a lien against the fee simple interest subject to the Roadway Easement. The lien shall be in a farm substantially in the form of a Construction Lien prescribed under Florida Statutes Chapter 7i3 and shall attach to the to the fee simple interest subject to the Roadway Easement acrd shall be effective upon recording of a notice thereof in the Public Records of Palm Beach County, Florida. The lien rig}its granted herein will oat affect the easements and other rights granted lrerein to dac City, and such rights shall continue in full farce and effect. Such lien may be foreclosed in the same manner as a mortgage and in accordance with law. Reimbursement of such work oasts and interest shall also be the obligation of Owner at the time the costs are incurred, and may be collected by the City accordingly in an action against the Owner. 4 rr~a+tsssz~ats c~,~~vla~szassUs 0~113~'2C~090t:38PM 2.1D SindingtiFffect. "1'he Roadway Easement is an easement appurtenant to the City's public right-v~ ways and shall run in favor of the City, and shall be binding upon the Owner and its successors and assig~rs of the Dwner balding the servient estate. 2.I 1 Contractors. All work performed by the Dwner in the Roadway Iasement shall be performed only lay properly licensed contractors and in compliance with al] applicable laws, rules and cedes. Each contractor performing work for Dwner shall be reasonably insured, without cost to the City and the City will be indemnified and held hanmless for any Claims (defiuxed below} that rr:ay arise out of the performance of the work. The foregoing insurance coverage requirements are not intended to require insurance coverage against any defects in the work, except to the extent that such defective work causes bodily injury or persona] property damage as a result Qf such defective work {but not including the repair or correction of any defective work}. Far purposes of this Agreement, "Claim" shall mean any obligation, liability, clairrr (including, but not limited to, any claim far damage to property or injury to or death of any persons}, lien yr encumbrance, lass, damage, cost, or expense. 2.12 Warranty. The Qwner warrants that, {i} the Owner is seized of fee simple title tv Abandoned Alley and has the right tv convey the Roadway Easement to the City, free and clear of all liens anti encumbrances other than those acceptable tv the City; and (ii} the City shall have quiet enjoyment of the Roadway Easement, and the Owner does hereby fully warrant the title to said laud axed will defend the same against the lawful claims of all persons whomsoever, subject to any permitted exceptions permitted by the City. 2.13 Traffic Enforcement,,,,A~reement. The Qwner agrees that the City shall ,,, __ have jurisdiction over the Roadway Easement to enforce all applicable traffic regulations and the Qwner shall, simuitaneausly herewith, execute the Traffic Enforcement Agreement, the fvnr~a of which is attached hereto as Exhibit "S". 3. Utility Easement. 3.I Grant of Easement. Subject to the terms of 5ectinn lfl, the Owner, as grantor, l~.ereby grants and conveys to the City, its successors and assigns, commencing upon the Effective Date and continuing perpetually thereafter for the use and benefit of the City, a non- exclusive easement {the "Unlit Easement"} under and below Abandoned Alley, for the purpose of installing, maintaining, repairing, replacing and restoring normal municipal utilities such as pipes, cables, electrical wires, cable television wires, conduit, plumbing, andlor appurtenances relative tv such facilities in the manner and location which same exists as the of Effective Date {collectively, the "Utilities"}. The right to grant any further easement rights in favor of private lltillCieS 1S expressly r~5~rV~d tC1 the ^Hti'ner. 3.2 The Owner warrants that: (i) the Dwner is seized of fee simple title to Abandoned Alley and has the right to convey the Utility Easement to the City, free and clear of all liens and encumbrances, ether than thane acceptable to the City; and (ii} the City shall have quiet enjoyment of the Utility Easement, and Owner does hereby fully warrant the title tv said land and will defend the same against the lawful claims of all persons whomsoever, subject tv any permitted exceptions pern~itted by the City. S 77'16119692018 Cu~ren1113552899vB Q2113~'2IX1801:38PM 4. Use of Abandoned Alley by Owner. The Owner shall have the right, from time to time, to temporarily close lavrtions of Abandoned Alley to access and construct improvements in the Roadway Easezncnt or the Utility Easement, and for other matters reasonably necessary to maintain, repair and replace the Roadway Easement, the Utility Easement, or any components of ar improvements within the foregoing, the adjacent properties in the Owner'S reasonable discretion (the "Roadway„ Closure"}, In perFarming any Roadway Closure, the Cwner agrees to: (i] use good faith efforts ro minimize the impact of such road closure an vehicular and pedestrian traffic, FTlciuding, but not limited to, consideration as to the date and time of the Roadway Closure and to comply with the City's requirements far temporary road Closures on City public right of ways. Notwithstanding anything to the contrary in the foregoing, in no event shall there be Roadway Closure far a period in excess of one hundred and twenty (12(1} days, in aggregate, during the term of this Agreement. 5. 5igna~. The City, at its sale cast and expense, may install, maintain and operate signage on AbaF~daned Alley, in such locations and in such capacities as the City may approve in the City's exercise of its governmental oz quasi-governmental fuFlGtioIlS. 6. Default and Remedies. 6.1 Default. The failure of the C3wner nr the City to observe ar perforxr~ any of their respective obligations under this Agreement ~rhe "Defaulting Party"} within thirty (30) days after receipt of written notice froFal the other party specifying the nature of the failure (the "Non- Defaultintr Party"), shall constitute a default and breach of this Agreement; provided, however, if such failure is of a nature that it cannot reasonably be cured within such thirty {3~} day period, then the Defaulting Party shall not 6e in default so long as the Defaulting Party commences such cure promptly after receiving such written notice, and is diligently puxsu.ing such cure tv completion. This Section d.l is not applicable to any provision contained in Section 2.9 of this Agreement. 6.2 Remedies. The terms and provisions of this Agreement are enforceable with all remedies at law and in equity, including, but not limited to, bringing an action For actual damages, an action, for specific performance, an action for temporary restraining orders, preliminary or permanent in~unetions, declaratory jiFdgments or pthex similar orders far relief; provided, however, that suspension or termination of this Agreement an account of a breach shall not be an available a~emedy unless otherwise provided for herein. The parties further agxee that neither party shall have the right to recover any consequential, punitive, special, extraordinary ar speculative damages as a result of the breach of this Agreement. The parties to this Agreement hereby acknowledge and stipulate the inadequacy of legal remedies and the irreparable harm that would be caused by a material breach of any obligation under this Agreement by a party to this Agreement. This Agreement may not be suspended ar terminated except by an instrument in writing signed by the City and the ^wner and recorded in the real property records of Yalm Beach County, Florida. d ~'!&'1p692-Difi ~wrenUT3552899vfi U7J13'20~901:38 PM 7. Notice. Any notice, demand nr request which may he per]xiitted, required or desired to be given in connection therewith shall be given in writing and directed to the City and the Owner as follows: As to City: City of Delray Seach lOQ N.W. 15` Avenue Delray Beach, Florida 33444 Attic: City Manager Facsimile: {56I} 27$-4755 With a Dopy to: 2QQ N.W. 1" Avenue Delray 13eachr, Florida 33444 Attn: City Attorney FdG5i111118: {561} 278-4755 E1s to owner: FCCCgr Invcstmcrfts, Inc. c!a CDS Interriatianal Holdings, Inc, 3299 N.W. 2"`' Avenue Boca Raton, Florida 33431 Attn: President Facsimile: {561) 2.78-6g3Q With a copy to: Steve Daniels, Esq. Amstein $~ Lehr LLP S 1 S North Flagler Drive Sixth Floor Weft Palm Beach, Florida 334Q1-4323 Facsimile: {5fi1} 555-5551. Atlantic Center, Ltd. Glo CDS International Holdings, Inc. 3299 N.W_ 2nd Avenue Boca Raton, Florida 33431. Attn: President Facsimile: {561) 278-G93Q CDS ASJ Buildixag, Inc. c!a CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Baca Ratan, Florida 33431 Attic: President Facsimile: {561.} 278-G93Q 7 7718'i9fi92-01fi CurrenG'1&552899v6 ~~J]3f~009g1:38Pi~ CD5 45, LLC cla CDS International Holdings, Inc. 3299 N.W. 2°d Avenue Boca Ratan, Florida 3331 Attn: President Facsimile: {561} 278-6934 CDS Gas Station LLC clo CDS International Holdings, Ina. 3299 N.'9V. 2°~ Avenue Boca Ratan, Florida 33431 Attn: President Facsimile: [561} 278-6930 Notices Shall be deemed properly delivered and received when and if either {i} personally delivered; ar {ii) one [1) business day after deposits with United Parcel Service ar other nverr-ight courier; ar {iii} the same day when sent lay confirmed facsimile before 5:00 p.m. {Eastern time). S. General Provisions. 8.1 Amendment. This Agreement znay be amended ar modified only by a written instrument signed by both parties ^r their respective SuCCe55dr5 and assigns, which instrument must be retarded in the Public Records of Palm Heath County, Florida. $.2 Entire A eement. This Agreement 5et5 Earth the entire agreez~nent i~etween the ^wner and the City with respect to the easement granted in this Agreement. This Agreement supersedes all prier and cantemparaneoi~s negotiations, understandings and agreements, written ar oral, between the parties. $.3 Governinn Law. This Agreement will be interpreted and enforced in accordance with Florida law. 8.4 Successors and Assigns. The covenants, cflnditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigns of the Owner and the City. S.S Authorit to Execute- Re resentatians. The Owner and the City each warrant and represent to the other that the individuals signing this Agreement on behalf of tlae Dwner and the City, respectively, have full power and authority to execute and deliver the Agxeeznent and to hind the respective parties here#o. $.6 Counteruarts. This Agreement Fnay be sided in two or more caunterpar[s, each of which constitutes the Agreement of the parties and each of which shall he treated as an original. 8.7 Nnn-Public. The Owner and the City specifically acknowledge and agree that this Agreement and the rights and obligations granted hereunder are not intended to be, and 8 T~!&'19fi92~D16 Garrentl13552899v6 02113J2D0941:3BPM shall not constitute in any respect ar manner, a pnhlic dedication. of any right or intexest of the Owner in Abandoned Alley whatsoever, but rather are private rights for the sole use and benefit of the parties hereto, their respective successors anal assigns. 8.8 Breach Shall Not Permit Termination. It is expressly agreed that no breach of this Agreement shall entitle either the Owner or the City to terminate this Agreement, but such limitation shall oat affect in any manner any ether rights ar remedies which either the Owner ar the City may have hereunder by reason of any breach of this Agreement_ 8.9 Several7ility. Xf any term or provision of this Agreement or application thereof to any person or circumstance shall, to any extent, be found by a court of competent jurisdiction to he invalid or iinenfarceahle, the remainder of this Agreement, ar the application of such term ar provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shaft not be affected thereby and each term or provision of this Agreement shall be valid and enforceable to the fullest extea~t permitted by law. 8.1f) Non-Waiver. Nn waiver af, or failure to assert, any claim, right, benefit or remedy of any party pursuant to this Agreement shall operate as a waiver of any other claim, right or benefit. Tlae failure of ar7y party at any time or times to require performance of any provision hereof shall in no rrzazrner affect such party's right at a later time to require such perforrance Ur to enforce the same fully. loo waiver or modification of the terms hereof shall be valid unless in writing and signed by the party to be charged, and then only to the extent therein set forth. $.1I Headizz~s. The headings of the articles of this Agreement are far guidance and convenience of reference only and shall not limit or otherwise affect any of the terms or provisions of this Agreement. 8.12 Covenant Running with the Land. This Agreement and the easements granted herein, and all of the rights, duties arYd obligations of the parties with respect thereto, shall be construed as covenants running with the land, binding arzd inuring to the benefit of the City or the Dwner, as the case maybe, their respective successors, assib s andlor granges. 8.13 Force Majeure. if any party to this Agreement is delayed, hindered in, ar prevented from the performance of azay act required iv be performed by that party by reason of acts of God, strikes, lockouts, eznavailability of materials, failure of power, prohibitive governmental laws or regulations oat imposed by the City, riots, insurrections, the act or failure to act of any other party to this Agreement, adverse weather conditions preventing the performance of work as certified to by an architect, war, act of terrorism, or other reason beyond that party's reasonable control and for which, in each of the aforesaid circuunstances, the party is diligently and in goad faith and with reasonable dispatch seeking to abate and remove the circumstances causing the delay or hindrance or preventiozr from performance of the act required to be performed by that party, then the time for performance of the act shall be extended for a period equivalent to the period of the delay. Lack of adequate funds ar financial inability to perform or financial or economic losses or hardship resulting from performance shall not be deemed to be a cause beyond the reasonable control of such party. 9 7778119692-0]6 GurrenE"1355~899v8 021i3r~0a901:38PA4 8.14 .binder by Mortgagees- Ry its joinder in this Agreement, all mortgages holding a lien against the Roadway Easement, if any, have consented and do hereby consent to this Agreement, and the liens and security interests held by such lienholders are hereby made subject and subordinate to the #erzns of this Agreement without the necessity of the execution of any other document. Any future deeds of trust or mortgages shall automatically, without the necessity of any additional instrument, be subject and subordinate to the terzxzs and conditions of this Agreement and shall he bound lay the terms of this Agreement. Any party foxeclosing any such deed of trust or mortgage, or acquiring title by deed in lieu of foreclosure or tnzstees sale shall acquire title subject tv all the terms and provisions of this Agreement. 8.15 Right to Pledge. The Owner shall have the right to mortgage, pledge yr collaterally assign its interest in tlrTis 1~greement and to assign or pledge the carne as security for any debt and alI rights acquired by such secured party under any such security. From and after the date any deed of trust beneficiary, mortgagee or secured party comes into possession of the Owner's rights under this Agreement, such deed of trust beneficiary, mortgagee ar secured party shall possess all rights of the Owner under this Agreement and alI tibiigatians of the Qwner shall thereafter be the obligation of such deed of trust beneficiary, znartgagee yr secured party. In no event shall such transfer of possession cause a release, satisfaction, ar waiver of any obligation of Owner which occurs prior to the date of such transfer, including without limitation, City's right under this Agreement to record and foreclose a lien. 8.16 Nam. It is expressly understood and agreed that the parties do not intend that there be, and Ihere shall in rzo event be, a merger of the dominant arzd servient tencxncnts in Abandoned Alley by virtue of the present or future ownership of azzy portion of said tenements being vested in the same person{s} or entity, but instead intend that the easement servitudes shall oat be extinguished thereby and that said dominant and servient tenements be kept separate- 8.17 ,Point Preparation. The preparation of this Agreement has been a joint effort of the City and the Qwner aizd the resultuig document shall not, solely as a matter of judicial construction, be construed more severely against one party than the other. 8.18 Attarney~ s Fees. In connection with any litigation or dispute arising out of this Agreement, each party shall bear its own attorneys' fees and casts. 8.I9 Further ASSUranCeS. The parties agree to execute all future instruments and take all further action that may be reasonably required by any party to fully effectuate the terms and provisions of this Agreement and the transactions contemplated herein. 8.2~ Venue. Any dispute relating to this Agreement shall only be filed in a court of competent jurisdiction in Palm Beach County, Florida, and each of the parties to this Agreement subrriits itself to the jurisdiction of such court. 8,21 Hazardous Substances. Neither the Qwner oar the City shall pause or permit at any time during the terms of this Agreement, any hazardous substances to be disposed 10 777~'1°fi92.Ot$ Gurren111355P899v6 07J13J200901:38 PAd of ox otherwise released on, tv ar under the roadway Easement. Neither the Owner nor the City shall engage in operations aver, upon or under the Roadway Easement that involve the generation, manufacture, refuting, transpvrtatiotl, treatment, handling or disposal of "Hacardaus Substances" or "hazardous wastes" as such terms are defined under any environmental laws. The Owner acl~rtowledges however, that the Roadway Easement will be utilized far parking and driving vehicles which may leak oil, gasoline, or other fluids onto the ground, and the City shall oat be responsible for rerrtnval of such waste or have any liability far it under this Agreement_ 8.22 Irttenlianally Omitted. $.23 No Third Part Beneficiaries. AIo private parties other than the City shall have the right to bring; a cause of action against the owner under this Agreement. 9. Governmental Functions: Notwithstanding anything to the contrary contained in this Agreement: a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agreement from complying with all applicable governmental regulations, rules, laws, and ordinances; b. To the extent approval c]r permission must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no Berson shall have any vested rights; c. The City has not waived its sovez~eign immunity and the fart limits of liability set forth in Fla. Stat. 758.2$ which are currently $Ifl0,~0a per person and $24~,~ta~ per accutxence are applicable; and d. Any action by City shall be without prejudice to, and shall not constitute a limit an, impairment ax waiver of, ar otherwise affect City's right to exercise its discretion ux cotuxectiota with its governmental ar quasi-governmental functions. 10. Texznirtation. I~. ]. Roadway Easement., a. The Roadway Easement shall terminate at such time as CDS International Holdings, as the Owner representative [the "Owner Representative"} executes and delivers to die City a certificate (the "Owner Certificate") in the form attached hereto as Exhibit "C", which the owner Representative shall record in the Public Records of Paitxt Beach County, Florida, stating that the tenants and owner of the "Freecor Building," located at 75 NE tip' Ave., Delray Beach, Florida 33483, have reasonable and equivalent access to and from the Freecor Building via the publicly dedicated roadways ar over lands awned in fee simple by the Qwner, including formerly the Abandoned Alley after the abandonment. 11 7~T~'19892-0i8 Curren6'33552899v8 0?Jt3~2Q4901:38PA9 b. Upon recordation of the Owners Certificate, the Roadway Easement shall be terminated of record and shall be of no further force and effect and all rights, obligations and easements grazited hereunder shall be of na further force and effect. If the Qwner requests, the City shall execute any further dacmxments evidencing the termination of the Roadway Easement to be recorded in the Public Records of Palm Bcach County, Florida. Notwithstanding anything to the contrary contained izx this Section, the termination of the Roadway Easement shall nQt constitute the release or satisfaction of any claim that arose prior to termination, and such claim shall suzvive termination of this Agreement. 10.2 Utilit Easement. a, This Utility Easement shall terminate at such time as the engineer from the City (the "City En ig n~~i"} executes and delivers to lh~ City and the Dwner Representative a relocation ccrtificatc [the "Utilit Relocation Certificate"} in the form attached hereto as Exhibit "D", which the City shall retard in the Public Records of Palm Beach County, Florida. b. The City Enguieer shall execute az~d deliver the Utility Relocation Certificate to the Qwner Representative at such time as the Utilities have been discarmnected, relocated and reconnected and approved by the Palrn Beach County Health Department, as to any such Utilities requiring such approval, through an alterzmative right-af--way andlar easement so that the Abandoned Alley is no longer needed to operate the Utilities, as determined by the City Engineer, in the City Engineer's discretion. 10.3 Uptin the terms of Section 1Q.1 and 10.2 being satisfied, this Agreement shall he terminated of record and shall he of na £rirther force and effect and alI rights, obligations and easements granted hereunder shall 6e of no further force and effect. [f the Owner requests, the City shall execute any further documents evidencing the termination of this Agreement tQ be recoz~ied in the Public Records of Palm Beaclm Couzzty, Florida. NalwitYzstandirzg anything to the contrary oontaincd in this Section, the termination of this Agreement shall not constitute the release ar satisfaction of any claim that arose prior to termination, and Such claim shall survive tcrzxzinatzon of this Agreement. Furthermore, provided this Agreement has xmot been terminated, if the City exercises any recanveyance right of property described in this Ag~•eeznent which shall result in a terzrzirzation in any applicable easement rights, such easement rights shall not terminate until such time as the City is vested with fee simple title to the property subject to the easement rights {subject to permitted encumbrances being appxoved by the City}. I0.4 Notwithstanding the foregoing, even if the Roadway Easernexzt and the Utility Easement are terminated in accordance with the terms and conditions of Section I4.1 and Section 10.2 above, the City shall still the rigl-t to exercise its Recnnveyance Right in accardarmce with the terms and conditions of the Declaration of Reserved Rights and Agreement Not to Em~mcuznber dte Abandoned Alley [tlme "Declaration"7, between the City and the Developer [as defined in the Declaration). I2 7176'19692-016 Gsrren[r13552899v6 Q?J13l2409 U1:38 PM 10.5 The City and the Owner shall record a certificate in the Public Records of Paliri Beach County, Florida, at such time as the termination rights pursuant to Sections 10.1 and 1D,2 above are terminated and thereafter dais Agceeinent shall be ^.f no further force and effect. 11. Qwner Execution. Each Dwner shall execute this Agrcczx~cnrt on behalf of such portion of the Abandoned Alley that such Dwner owns as a result of the Abandarunent Resolution. EXECUTION PAGE TQ FOLLOW 1.3 7TJ6u'19fi92-Oifi CurrenL'f3552899vB 0?JT3"200903:38Ph1 IN WETNESS WHEREdF, the parties to this Aa Bement set their hands and seals the day and year first above written. ATTEST: CITY QF DELItAY BEACH, FLURIDA By: $y:_ city Clerk Name: Irs: Approved as to Foam: Sy: City Attoririey STATE aF COUNTY DF The foregoing instrument was acknowledged before me this ..._ _ ____ day of , 2~~9, l}y the of the CITY aF DELRAY BEACH, FLaRIDA. HelShe I5 personally known to me or has produced {type of identification} as identification. Signature of Person Taking Acknowledgment 7776119692-416 Currernlf 3552$946 02113/2449 4f :38 PM FttEECUA 11~E5TMENTS, n1TC., a Florida corporation Print Name: sy: Print Narne: Title: Prilzt Narne: STATE nF } } ss: couNT~ of } The faregairlg instrument was acknowledged before me this day of , 2~_, by itie Uf FAEECCR IN~IESTMENTS, INC., a Florida corporation, on behalf of the corporation. He1She is {cheek one} persoIlally known to Ine ax has produced as identificatioxl. (SEAL) Notary Public Signature Print Name State of Commission No.: My Cornxxrission Expires: at Large 7776119692-~1G ~ur~cnd13552899v6 0211312Q09fl1:38PM Print Name: Print Name: S y: Print Name; Title: STATE OF ss: COUNTY OF ) The foregoing instrument was acknowledged before me this ^ day of , 2~_, by ,the of Atlantic Center, Inc., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership, on behalf of the partnership. He15he is tcheck one} pexsonally known to me or liar produced A5 iCl~ritl~lCatipxl. (SEAL) ATLANTIG CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner Notary Public Signature Print Name State of Comrriission No.: My Coxrixnission Expires: at Large 777dli9&92-016 Cuxend135S2899~G p211312044 01:38 PM C17S ASJ BC3>ILD~NG,1[h1C., a Florida coiporatial~ By: Print Name- Print Name: Title: Prurt Name: STATE GF CaUNT'Y~ OF ss: } The foregoing instalment was acknowledged l7efore me this _ day of , 2Q_, 17y ,the of CD5 A5J SUII.DING, INC., a Florida corporation, on behalf of the corporation. He1She is [check one} personally known to me or has pzoduced as identification. Notary Public Signature (SEAL} Print Name State of Corrunissioza No.: My Commission Expires: at Large 7776119692-Q1fi ~urrendt3552$99vfi 421I31240901:38PM CDS 45, LLC, a Florida limited liability company Print Name: Print Name: STATE ~F Cd[]NTY DF } 55: } 13y: Print Name: Title: The foregoing instrument was acknowledged before me this _ day of , 2Q,_„_, by ,the of CDS 45, LLC, a Florida limited liability company, on behalf of the cvlnpairy. HelShe is (check one] personalty luivwn to me or has produced as identificatiaat. [SEAL} Notary Public Signature Print Name State of Commission Na.: My Commission Expires: at Large 7776119692-41fi Currcndl355289h+6 0211312pp901:38 PM s` Print Name: Print Name: STATE OF COUNTY ~[~ } } ss: B y: Print Name: Title: The forcgaing instrument was acknowledged before me this ^ day of , 2a.~,.,,,, by ,the of CDS International Realty, LLC, a Florida limited liability company, the ]manager of CDS GAS STATIGN, LLC, a Florida limited liability company, on behalf of the company. He1She is (check one) personally known to me or has produced ___ as identification. Notary Public Signature {SEAL} CDS GAS STATInN, LLC, a Florida limited liability company Sy: CDS Irltcrl-lational Realty, LLC, a Florida limited liability company, its 171anager Print Name State of Cammis5iarl I~Ia.: My Colnlnissivll Expires: at Large 777b119fi92-416 CurrcnJ13552899~6 02I1312t]i)94]:38 P1vI Exhibit "A" Lcgal Dcscrip~ion of Abandoned Altey 7776u']9692-016 ~urrenU1355289°v6 02113~20a9 Q1:38 AM S~CET~H ~F DES~RIPTIUN Fxr-uarr .a " SfaEFT 1 OF ! ~ N.E: 1ST ST]QFFT ~ a Q lrI89°58'47''E `~ s aa~ ,,,~~5. NoRrH LIr~ 8L{7CK 11F 77-A'S 15 NDT A SGQYEY Q ~ ~ = CCIVTERLINE ~ ~ j ~ ~ ~ ~ rI~ nraRTH LI11~ DF aLOCx 116 IS A55UMED Td 6FAR N.89°58'47'E ~~ L7 ~~ LL ~~~~~ I`a ~ o Q~ ~~ ~~ ~ ~ ~~ ~~~ t~~m ~F1 ~~ ~ ~~ W ~ UJ ~~ ~ ~~ m NORTH RIGHT of IHAY unr~• ~` r~9o ao~~ a 5O[ITH LI11~ ~ v '~ ~.ocx ors EAST A TLANTlC A 1/F]'V[JE DESCR~PTIanr.• ALL THAT PORTION OF ThE ND~'~T"H SOUTH T6 FDnT ALLEY RIGHT QF iNA Y LYING IIV BLnCiC 1~6, TDLi~N QF LWT4N ~NDIN PAUL !J. EIVGI.E SURVEYOR & MAPPER ~57Q8 DELRA Y BEACH, ACCORDING Ta TI# PLAT TT~'REOF AS RECDRD~1 IN P AT 9DOIf f, PAGF 3, P[JBLIC RECnRDS OF PALM BEACH CD2~'VTY, FL~4i'DA, LESS TF~ SOUTH 7.D FEET DATF• JULY 9, 2008 THEREaF o BwEnr, sWTER & o aRr~rv, mrc CEr2TIFlCATF QF AUTHQRrZATrD1V ~`LB35,~ S B E ' YCl7 AND MAPPER IN RESP N r L SC1RV~ GHARGE• PAUL Q. ENGLE 955 N. LY. 17TH RYFIY[JE; SUITE 1C] DELr2Ar sEACH FLa~r~.a 33445 ORDER N0. D~-164 PARCEL 5 ABANDOI~IVT {56r} 276-45Q1 {561) 732--3279 8c m; ~: ;; '• s: 8; ~: ~~ ~'• u; ~: ~: U Z q Z ~~ ~ 5• ~~ ~ IIfF ~ ~ ~ ~ 1 Z~ ~ !~ ~ ~~ ~~ ~ ~ ~ ~ 5' C~.7 11 j LOT Il, BLOCK 115 16' PLATTED ALLEY RIGHT QF' WA Y ' ~ ARFA = 2,D81 SQUARE ~y FEET MORE OR LE55 13~ gyp' L07' 2Q LOT 21 9LaCIC 116 HLOCfC 1!5 ~~ ~ ~a Q ~ ~ ~o ~ ~ ~, ~ ~ ~ LOT 22 BLDCfC I!5 R q} a NORTI-I RIGHT dF WA Y LJNE E~sr a r~anrr~c a v~ruuF DESC~?i'PTIUN.• ALL THAT PQR7?DIV OF THE EAST-WEST 16 FDOT ALLEY RIGHT DF WAY L YING SOUTH OF AND ADJAC~"NT TD LQT 11, BLOCK 116, TOWN DF LlNTDN (NOW DELRA Y BEAN}, ACL'QRC~YVG TD TF~ PLAT THEFrEQF A5 RECORDID JN PLAT 800K ], PAGE 3, PUBLIC RECORflS OF PALM BEACH G~9'VTY, FLQRlDA, LESS 7NE WEST 5.D FEE!' Tl-~REDF FDR ADDITIONAL ROAD F~lGHT Or WAY FDR US h1GHWAY 1~. t ORL]ER NQ 04-154 PARCEL 4 ALLEY ABANDDN~LlENT PAUL D. ENGLE SUR uEYDR & MAPPER #5708 OA ]"~:• JULY 9, 2a~8 ~' F ~1 s ~~ ~; ~~ U. ~• ~: ~~ e. [~; ~: ~: ~: Exhibit "B" Traffic Enfnrecrnent„Ahreerr~ent ra~~+ssss~-ors c~~~t`~a~~~assvs ozrra~~oas o~:~s P~ TRAFFIC EI~IFDRCEMEhIT AGREEMENT (Abandoned Alley} WHEREAS, the CITY aF DELRAY BEACH, FLORIDA, (hereinafter referred to as "CITY"} through its Police lJepartrrzent, wishes to make its Camrrzurzity Policing efforts in Atlantic Plaaa, as effective as possible; and WHEREAS, ATLANTIC CENTER, LTD., a Florida limited partnership, FREECOR WVESTMENTS, INC., a Florida corporation, CDS BUILDING, INC., a Florida corporation, CDS 45, LLC, a Florida limited liability company and CD5 GAS STATIaN, LLC, a Florida limited liability company (hereinafter collectively referred to as "Owner") is desirous of the enforcement of state and municipal traffic laws an its property; and WHEREAS, both the CITY and the Owner feel that such enforcement will xx:ake the Community Policing effort a more positive influence an the community; and WHEREAS, F.S. 3I5.04fi(2},(b},(1} allows for such ezzfarcemeztt on private roads pursuant to a written agreement approved by the City Commission which provides for reimbursement far actual costs of traffic control and enforcement liability insurance and indemnification and other terms as are mutually agreeable by the parties. Naw, therefore, for the mutual consideration, covenants, az~d z~zatters set forth herein, as of the date set Earth below, the parties hereto do hereby agrcc as follows: 1. The Cl'I'Y does hereby agree to enforce all state and municipal traffic laws an the Abandoned Alley, which is described on Exhibit "1" attached hereto. 2. The en#'orcezxzent of the traffic laws by the CITY will occur ~.4 hours a day, 7 days a week. 3. The Owner shall hereby pay to the CITY X1.04 per month to cover the actual costs of the traffic control and ezifvrceznezrt incurred by the CITY. 4. The speed limit shall be that set by Florida Statute 316.183{2} and 315.189(1} of 3 D mph. 5. Signs pasting the speed limit must comply wish the Manual ref Uniform Traffic Control Devices used by the United Statcs Dcpartmcnt of Transportation ("Manual")and F.S. 316.189(3}. G. Stop signs must conform to the ll'Iantzal and speciFicatians of the United States Departz7ieizt of Trazzsportatioir as stated in Florida Statute 316.006(2){b){3}. 7. The Owner shall defend, indemnify and hold harmless the CITY, its agents, 8422f19fi92~01fi CurrenV135720a5~2 02f13d2fi0911:44 AA+~ 1 officers, officials azid employees frprrc any and alt claims, suits, causes of actions or any claims whatsoever xnadc arising from any and all acts by Owner of traffic control and traffic enforcement that occur on the Abandoned Alley following the date of this 1-Lgreernent. l~Iothing herein shall be deenned a waiver of the privileges and imuExxunities granted to the CITY under F.S. 768.28. This indemnification shall survive the cancellation of this Agreement. $. The Qwner shall provide liability insurance to cover the indemnification in the annount of $1,6a0,OQp,C]Q and Warne the CITY as an additional insured. 9. This Agreement shall take effect upon execution and approval by the Delray Beach City Commission ant the execution of the Qwner and shall continue in full force and effect for as long as the certain Abandoned Alley Easement between City and Qwner, which is recorded in the Public Records of Palrn Beach County, Florida, is in effect. t~. The ^wner by signing below, affirms that it has read and understand this Agreement and that it has been Given the opportunity to have its attorney of ICS choice review this Agreement. [SIGNATURE PAGES F~LL~W] 64219692-016 CurrenV1357~da5w1 Q~I13f20fl911:44 AM 2 This Agreement is made and entered izzty air this day of , 2009. ATTEST: C)[TY QF DELRAY BEACH, FLORIDA City Clerk B y: Rita Ellis, Mayer Approved as to forirr and legal sufficiency: Catherine M. Kozal, A55t, Clty Attorney 6427119fi9P-018 Currenf1135720~5v2 ~?J13I2~0911:4A AIN owNER ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner By: Print Narne_ ItS: $4~+1969P-016 Current~13512005v2 02133!2009 31:44 AM FREECQR INVESTMENTS, ll~fC., a Florida corporation R y: Print Name: Its: 8422'19fi92-0]$ Current'i3572G05~ 07J13f2[}49 11:44 AID CDS ASJ BCIILDING, INC., a Florida cozporation P Y= Print Name: Its: 8422f f 9692-affi CurrenVf 3572UU5v2 ~2Ji312~D9 i 1:44 AM CDS 45, LLC, a Flc~ritia ]zrx:.ated liability company B y: Print Name: its: 842219692-016 Currenl~1357~005~2 Q?Ji3I2008 i 1:44 AN3 CDS GA5 STATION, LLC, a Florida linnitcd liability company Hy: C1aS l.~terr-ational Realty, LLC, a Florida limited liability company, its ~rtanager B y: Print Name: lts: 84~~'19692-03fi CurrenUi357P005r~ fl?J]3I2~a91 i:44 AM EXHIBIT "~" Abandoned Alley 8422~39fi92-0i6 Currenfli3572~5v2 021i3I2fl~J 1 i:44 AM w N.E. 1ST STREET ,_ ~ p `~'~ N.89°58'47'E 16 ~~' NpRTN L11vE BLOCK 716 ~'1 ~~ ~- ~ ~'~ ~~ ~ ~ ~ ~ L7 ~~ ~~ ~~ ~ ~ ~ ~ '-: A Q e~ a ~ lC] o ~ f~ ~ II ~ ~J~ ~~ V [ I NpR771 RlGNT OF WA Y UNE a W~SpUTH LINE ___. a `~" BLQCK 116 ~ EA5_ T ATLANTIC A 1IENUE DESC,?41P~'pN.- ALL Fl-!AT POR7IDN ~ THE NORTH-SpUTH 16 FQQT ALLFY RIGHT OF WAY LYING IN BL4Clf 116, TpWN C]F LIIV7C)N NOW DFLI4A Y QEACH), ACCpRIJING 7"O 771E PLAT TNEREpF 5 RECnRDFD 1N PLR T BQOK 1, PAGE 3, PUBLIC RECORC7S pF PALM EEACH CQ[~'VrY, FLQRIDA, LESS THE 50UTN 7.D FEFT THERCOF. NQ7"E5• 77~'S1S NpT A SLA4UEY CENLERUNE 77~ IVCP4]7~' LINE DF BLOCK 176 I5 A55C,~I~D TD BEAR N.89°5847'E PAUL D. FNGLE SURVEYOR & MAPPER ~`57p8 2 i a '`1 ~ ~ ~ 15' ^~ 1 ~W o t-~ ~~~ ~~~~ ~~ ~ ~? ~ 5 ~? DESC~rPr~one LDT 91, BLOCK 116 ~'~ ' °p 13n n~ ~~ PLATTED ~aLLEr RrGNr OF wAr .~, AREA = 2,D81 SC7UARE ~~~ FEET -V,QI4E O~4 LESS ~a.~o~ LOT 20 BLOCfc r1~ LDT ZJ eLacx 11fi ° ~ ~. ~~ ~~ o ~ ~ ~. ~ ~ T LDT 22 BLDG'If 116 NQRTN ,41Gflr of w~a r LINE EAST A TLANTI~ AVENUE ALL THAT PDR170N OF 7NE EAST-WEST 1E FDDT ALLEY RIG`IT OF W,~ Y L YI,'VG SOUTH DF AND AU~IACENT TD LDT' 11, BLOC~C 115, TOWN OF L!lVTOJY (IYOW DELRAY BEACN~, ACCORDING TQ TIC PLAT Tf-IEREDF AS RECOIR[3~? IN PLAT BDD1C ~ PAGE 3, PClBLIC RECORDS OF PALM BEACH CD[.d'VT'Y, FLOi41DA, LESS THE WEST 5.0 FEFI THEREOF FOR ADDI T7ON.4L ROAD RIGHT OF WAY FQI? US hUGNWAY N4. 1. PAUL a. ENGLE SURVEYOR & MAPPER x`5708 aA rF- Luc. r s, Zoos Qwner Certificate 777fi+19fi92~416 C~rrr~ntl13552899v6 42'13I20Q901:38PM prepared by and upon Recording Return to: Stuart T. Kapp, Esq- Proskauer Rase LLP 2255 GIades Road Suite 340 West Soca Raton, Florida 3343I OWNER CERTIFICATE THIS aWNER CERTIFICATE {this "Certificate"} is issued as of the day of 2a_ by CDS INTERNATIONAL HOLDINGS, INC., a Florida corporation, as the appointed representative {the "owner Representative") of FREECOR INVEdS'1 M1t,NTS, INC., a Florida corporation ("Freecar"}, ATLANTIC CE1rITER, LTII., a Florida limited partnership ("Atlantic Ccntcr"}, CDS AS,~ 13UII1DING, INC., a Florida corporation ("CDS"}, CDS 45, LLG, a Florida limited liability company ("CDS 45"}, and CDS GA5 STATIQI~I, LLC, a Florida limited liability company ("Gas Station"; and together with Freecar, Atlantic Center, CD5 and CDS 45, collectively referred to herein as the "Owner"). Vi7ITIgESSETH: WI-IEREAS, this Ct~tificate is issued pursuant to Section 10.1 of that certain Easement Agreement, dated as of , 20[19, between the City of Delray Beach, Florida {the "C~it ++") and the Owner, recorded in Gfficial Records Bflok ,Page of the Public Records of Palra Reach County, Florida [the "Easement Agreement"~_ Pur5uant td the terms and conditions of the Easement Agreement, the Owner granted the City a rnadwa}~ easement [the "Roadway, Easement"} over, upon acrd across that certain alleyway more particularly described as follows (the "Abandoned Allc~~"}: See Exhibit "A" attached hereto and made a part hereof. NSW, THEREFORE, in accordance with the Easement Agreement and in consideration of the sum of Ten lJollars (~; I U.UU}, and other pond arzd valuable consideration the receipt whereof is hereby acknowledged, the Owner Representative hereby states the fallowing: 1- The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. This Certificate satisfies that certain requirement set forth in Section 10.1(a} of the Easement Agxeement which provides in pertinent part as Follows: The Roadway Easement shall terrt~inate at such tune as the Owner Representative executes and delivers to the City the Cwncr Certificate stating that the tenants and owner of the "Freecar Building" have reasonable and equivalent access to and from the Freecnr Building via the 1 a~a7rzs~sz~is c~~~~t~i~s~~s~1 ozna~aaos t i:4s aM publicly dedicated roadways andlor parking areas without the use of the Abandoned Alley. Upon recordation of the Qwner Certificate, the Roadway Easement shall be tern~iated of record and shall be of no further force and effect. 3. All terms not defined herein shall have the meanings set forth in the Easement Agrc~ment. [SIGNATURE PAGE FQLLD'L~Sj 2 8547!19692-015 Current'13555462v1 Q?113~'2~0911:46 AM IN WITNESS 'WHEREOF, the Qwner Representative hereby executes and delivers this Certificate as of the day and year first above written. WITNESSES: CDS INTERNATIQNAL HULDINGS, INC., a Florida corporativn Print Name: By: Print Name: Title: Print N STATE 4F CUUNTY dF The foregoing instrument was aclaiowledged before me this day of 2~,~, by the of CDS INTERNATIONAL HOLDINGS, INC., a Florida corporation. He1She is personally known to 1.ne or has produced (type of identification} as identification. Signature of Person Taking Acknor~vledgment 854TI19fi82-016 C~rrentr13555462v~ 0?J13'~U~911:~6AM E~HIS IT "A" to ttie Owner Certificate Abandoned A~lev 8547f19692•Di6 Current/#3555462v1 OZ'13124a9 #1:46 AM i • i n ^V J U Q N.89°58 47'E `~ ~c+ r~r» NORTH L1NE BLQCff 1]6 "~ ~- ~ -~ C7 ~ ~ L~ ~~ ~~ Q~ W~~~, ~~ Mme], ~w~ry~ ~~ ~ ~ °~ ~ ~ ~ ii ^~ ~ ~~ W o~ ~~ o~ ND7"ES• TFd515 NOT A 5[JR~EY = GEIV7 Els'LINE rHE Na~TH LIn~ DF eLacx rrs 1S ASSi~L1ED TO BEAR N.89°5847'E m I I m NORTH R1GHT DF WAY L1NE ~n~~o~oow~'~ o SOUTH LINE °o• d' BLOCK 116 ~ ~asT a r~~aNr~c a v~ruuE ~SCRIPTION.• ALL THA L PCJ12T10N OF THE IVni47N-SB[ITf-I ]fi FDJ7" ALtFY f~rGHT DF WA Y L YlAFG 1N BLOCK 11E, TQWN OF L1NrQ1V ~NQW DFIRAY BEACH}, ACCORDING TO ?7-~ PLAT ThEREOF A5 RECOR~EI7 IN PLAT BOOK 1, P,4GE 3, P[~3L1C RECORDS QF PALM BEACH COC~'IrTY, FLORIDA, LESS TJ-!E SDUTI-1 7.0 FFET 7NEREOF. PA[JL D. ENGLE SURVEYOR & MAPPER ~57n8 D4DER ND Q4-154 PA+4CEL 5 ABANDONMENT Lu V Z IVOTES• ThPS !S IVC)T A 5[~441/EY ~I ~0 5' ~~ ~ ~w ~ ~~ ~ ~~ ~ z c ~~ ~ ~~ ~ ~ ~ S' I ~~ ~~ ~y L4T 17, BLOCYC 116 r~~,oo° 7fi' PLA TTEfl ALLEY R1GHT GF WA Y AREA ._ ~C81 SCKJARE FEET MnRE OR LFSS ~aao= LQT ~D BL.~G'JC 116 LOT 21 BLDCK 116 T6.D' ~~ ~~ ~ w,~ ~~ ~,~~ ~ 8 0 ~. ~- ~~ pT ~2 BLdCFC 116 -NnRTH RIGHT pF WAY LrNE EAST A TLAIIrTIC A VENUE OESC~i'i'PTIDN ALL THAT PpRTIQN CF TIC EAST-WEST 1B FOpT ALLEY RIGHT OF WAY L YIIVG 50CITH ~ AII~ ADJACENT TD L4T 11, P~LOCI[ 116, TpWJV DF LINTQIV (NpW LJELRA Y BEACf-!), ACCnRDING TD 77-x' PLAT THEF?EDF AS RECpRDID IIV PLAT BCOfC 7, PAGE 3, PL~3LIC RECOR05 QF PACM BEACH CQCINTY, FLpI~'C~A, LESS THE WEST 5.Q FAT 77-E~REOF F0~4 ADDITJDNAL J~AD RIGFIT OF WAY Fpli' U.S 1-~'GNWAY lVn, 1 PAUL D. EIYGLE SUR I~EYpR & 14rfAPPER #5708 DATE.• J[1L Y 9, 2Qa8 CRflER IVq. D4.164 PARCEL ¢ ALLEY ABANDDI~"NT Exhibit "D" Utility Relacatian Certificate 777&+19fi92-0iB CurrenY1s552899u8 0?J1312vo9 oi:38 PM Prepared by and upon Recording Return tp: Stuart T. Kapp, Fsy_ Praskauer Rose LLP 2255 Glades Road Suite 340 West Baca Raton, Florida 33431 UTILITY RELOCATION CERTIFICATE THIS UTII-.ITY RELOCATION CERTIFICATE {this "Certificate"} is issued as of the day of 20x9, by ,City Engineer for the City of Delray Beach, wllose address is (the "City En zg neex"}. WITNESSETH: WI-IEREAS, this Certificate is issued pursuant to Section Ia.2 of that certain Easement Agreement, dated as of 20Q9, afnarzg the City of Delray Reach, Florida {the "C~"}, and Freecar Investments, Inc., a Florida corporation ("Freecor"}, Atlantic Center, Ltd., a Florida limited partnership ("Atlantic Center"}, CDS ASJ Building, Inc., a Florida corporation ("COS"), CDS 45, LLC, a Iylorida limited liability company ("CDS 45"}, and CDS Gas Station, LLC, a Florida limited liability company ("Gas Station"; and together wit1T Freecar, Atlantic Center, CDS and CDS 45, collectively referred to herein as the "Owner"}, recorded in Official Records Book ,Page , of the Public Retards of Palm Beach County, Florida (the "Easement Agreement"}. Fursuant to the terms and conditions of the Easement Agreement, the Owner granted the City a utility easement {the "Utility Easement"} over and under that certain alleyway mare particularly described as follows (the "Abandoned Allev"): See Exhibit "A" attached hereto arzd made a part hereof. NOW, THEREFQRE, in accordance with the Easement Agreement and in consideration of the sum of Ten Dollaxs ($Ia.00}, and other goad and valuable consideration the receipt whereof is hereby acknowledged, the City Engineer hereby states the following: 1. The foregoing Recitals are true and correct aild az-e iricarporated herein by this reference, as if set forth in their entirety. 2. This Certificate satisfies that certain requirement set forth in Section 10.2(a} of the Easement Agreement which provides in pertinent part as follows: The Utility Easement shall terminate at such time as the City Engineer executes and delivers to the City and the Owner Representative the Utility Relocation Certificate stating that the Utilities have been disconnected, relocated and reconnected tl>u:ouglt an alternative right-of-way andlor easement so that the Abandoned Allay is no longer needed to operate the Utilities. Upon retardation of the Utility Relocation 85471i9692.01B CurrenUT3SS5854v1 Q?IT312{l49 UT:38 PA4 Certificate, the Utility Easement shall be ntrli and void and of rya further farce or effeet and shall be terminated and cancelled of record. 3. All terms not defined herein shall have the meanings set Earth in the Easerr~ent Agreement. [SIGI~IATURE PAGE FGI.Xr~WS] 2 8547li9692-a16 Current1~3555854vt Q2!]3l2049U1,38PM IN WITNESS 1'VHERECF, the City Engineer hereby executes and delivers this Certificate as of the day axed year first above written. WITNE55E5: CITY ENGINEER: {Print Name} City Engineer, City of Delray Beach (Print Name) STATE OF CQUNTY aF The foregoing instrument was acknowledged before me this day of Z~ , try ,the City Engineer for the City of Delray Beach. He1She is personally known to me yr has produced [type of identification} as identification. Signature flf Person Taking Acknowledgment 8547f~9692•~1fi CarreMli3555854v1 U211 3120 0 9 Ut:38 PM RXHISIT "A" to the []tiility I2elacation„Certificate Abandoned A]Iey B547h969P~~fi Curten1113555854vt 02113J20Q9 U1:38 PM BLDCK~116 Th95 !5 NQT A S[JRI~EY 0 ~" = CEIVTERLII~ 7~ N,dDRTH LIA~• OF BLOCK 716 ~ E j ~ ~ ~ IS A55[JMt~ Tp BEAR N.$9°5$'~7'~ ~~ ~~ ~U O~ ~ ~~ ~ ~~ ~c] W ~ ~ W ~D ~ ~`~ R ~~ti ~~ p`s ~ ~ ~~ ~ °~rn°~ Ism ~ ~ ~~ ~" ~~ ~~ ~~ ~~ o~,. -- a I ~ m NORTH RIGHT OF l~,~A Y LI1~• ncso a~'~'~ SDUTH LINE v BLOCK 116 ~ Fasr ~ rL,~Nrrc A ~IF?V[JF' DFSCRiPncN• ALL THAT POR77DIV OF T!-~ NORTH SOUTH ~6 FDDT ALLEY PAUL D. FNGLE RIGHT OF WAY LYING 1N BLOCyf 116, TQWN OF LINTAN (NOW SURVEYOR & MAPPER ~57Q8 DELRA Y BEACH}, AGCQRl11NG TQ T1-~' PLAT n-IEREOF A5 REGORDFD IN PLA L BDOfC 1, PAGE 3, PUBLIC RECDf2D5 QF PALM BEACH CnLd++ITY, FLQRIDr4, LE55 TIC' SOU7"H 7.0 FEET DATE• JULY 9, 2Q~8 TI-~REOF. 0 6filE'N SUITEf~ & ~ BRIEN INC 8 a ~, a ~• ~: ~~ ~: g; ~: u~ ~: ~~ ~~ ~~ ~', ~• ~; o: C~4DFR N0, p4-ffi4 PARCEL 5 ABANppNM~IVT SfCETGH ~F DESCRIPTIC]N ~r ,~ ~, 5h~r ] OF ] W ~ ~~~ U ~ ThYS IS NOT A SURVEY g LoT ~~ eLacK 11E ~ p' ~ ~ ~' I " ]6' PLA TIED ALLEY RIGHT OF b'YA Y ~ ~ ~ AREA = ~ 081 SD[1Af2F ~ ~ ~ o Z ~ oh FEET MORE QR J.ESS a,~,~ ~ ~ ~~ ~ ~~ ~~ ~ ~3aoa~ ~~ ~~ ~~~ LOT 2a LOT 2] LaT 22 BLOCK 116 BLQCIC 116 BLnCIC 11fi U3 ~ a NORTH RIGHT OF WAY LJ1~' EAST ATLANTIC A 1IEN[JE DESCRIPTIGW~ ALL TNA7' PORTION OF ThE EAST WEST ]6 FOOT ALLEY RIGHT PACJL D. EIYGLE OF WAY LYING SOUTH OF Alm ADJACENT TD LOT 11, BLOCyC SURVEYOR & MAPPER ~57D8 116, TOFYN OF" LINTON ~NQW DELRAY 8F'ACN), ACCORalNG 7x7 THE PLAT' 7l'-~'REOF A5 RECORDED IN PLAT BDOIf ~ PAGE 3, PC~LlC RECORDS OF° PALM 9EAC1-~+ GOLk'VTY, FLORIDA, DATF• JCILY 9 2p08 LESS Tom' WEST 5 O FEET T]~'RFDF FOR ADDITIONAL RQAD p ERIEN, SUI FER & 0 BRfEN, INC RIGFIT GF WAY FOR U.5 FNGN~+YAY IVQ. Z CERTIFICATE QF AU~Hpl41~'ATIQIY ~LB353 SUi?YEYDR ANp A~lAPPER !N RESP N518LE CHARGE.• PA(JI. Q. ENGLE 955 N.W. 177 F! AVEN[!~; SUITE ICI QE!!?AY 6EACN FLORl~A 33445 ORDER IV~1. 04-154 PARCEL 4 ALLEY ABAI~DNh~NT (5s1} 278--45x1 {58r) X32-3279 ~; ~: ~: 4 S` ~; ~; 4: ~~ t~ ; ~; ~: 4~ Exhibit "D" To Agreement for the Abandonment of the Alle_ywaYs Form Financial guarantee & A reement 7776119692.011 CurrenUi356490~sI3 ff211 312009 0 3 5 5 PM FI1tiIANCIAL GUARANTEE 8~. AGREEMENT {Abandoned Alley re: Letter of Credit} THIS FINANCIAL GU_~4R.ANTEE & AGREEMENT (this "A~reement"} is entered into as of the February 17, 2Q09 {the "Effective Date"), between the CITY DF DELRAY BEACH, a Florida municipal corporation (the "City') and ATLANTIC CENTER, LTD., a Florida limited partnership (the "Developer"} far the purpose of assuxing the City that the Developer shall relocate the "Utilities" (as defined below} in accordance with the terms and conditions of this Agreement. RECITALS: A. The Developer intends to construct and develop amixed-use project {the "Proiect"} an that certain real property described as follows {the `50vera1l Parcel"}: See Exhibit "A" attached hereto and made a part hereof. B. Pursuant to a Resolution (the "Abandoruxxent Resolution"}, the City, at the ^eveloper's request, shall consider vacating and abandoning all right, title and interest the City holds in and to the alleyways more particularly described as follows {"Abandoned Alley"}: See Exhibit "~" attached hereto and made a part hereof. C. As a result of the approval by the City of the Abandonment Resolution, the Developer became the owner and holder of fee simple title of and to a portion of the Abandoned Alley, and pursuant tv that certain proposed easement agreement tp be recorded in the Public Itecards of Palrn Beach County, Florida (the "Abandoned Alley Agreement"}, the Developer has agreed to grant the City: (i} a perpetual exclusive roadway easement for unobstructed and unimpeded vehicular and pedestrian traffic for ingress and egress, and over, upon, and across the Abandoned Alley, and for the City to exercise its gQVernrriental and quasi-gover]]rr-ental functions with respect to the Abandoned Alley {the "Roadway Easement"); and {ii} a perpetual non-exclusive subsurface utility easement within the Abandoned Alley (the "Utlty_Easeanent"; together with the Roadway Easement, the "Abandoned Alley Easement"}. The praposcd Abandoned Alley Agreement farm is attached hereto as Exhil3it "C". D. The Abandoned Alley Agreement provides, in part, that: (i} the Roadway Easement shall terminate and be of no further force and effect upon the recordation of the Gwner Certificate (as defined in Section 1.0.1 of Abandoned Alley Agreement}, {ii} the Utility Easement shall terminate and be of na further force and effect upon recordation of the "Utility Relocation Certificate" (as defined in Section 10.2 of Abandoned Alley Agreement), and (iii) at such time as {i} and {ii} above have been completed, the City and the Qwner (as defined in the Abandoned Ailey Agreement} shall record a termination agreement in the Fublzc Records of Palm Beach County, Florida, and thereafter the Abandoned Alley Agreement shall be of no further farce and effect. 1 777fiI]9692-Q]8 CurrenU]3555T23v5 02113rPOQ91 ]:53 AM E. Phis Agreement sets forth the Developer's obligations regarding the disconnection, relocation arkd reconnection of the Utilities, subject to and in accordance with the terms and conditions hereinafter set forth, and the Developer aclcnvwledges that this Agreement is not a substitute far or satisfaction of the requirement imposed by the City Land Development Regulations which require the execution and delivery to City of a Subdivision Improvement Agreerrkent and Guarantee far the other iznprovernents far the Project. NOW, THEREFORE, ikz Gazrsiderativn of the mutual cavenakats contained herein and other goad and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Developer hereby agree as follows; 1. Incarparation of Recitals. The above recitals are true and correct and are incorporated herein as if set forth in full. 2. Relocation of Utilities and Restoration. a. Generally. If the Developer elects to remove any Utilities within the Al~aridoz~ed Alley or causes airy damage to the Abandoned Alley and the Developer is obligated to return any of the removed Utilities to the Abandoned Alley or the Developer is otherwise required to repair and restore the condition of the Abandoned Alley because, irk either case, the Ahandazaed Alley is returned to the L'ity or the City requires such repair and restoration, and the Developer fails to timely perform such obligations, then the City is authorized to complete such obligativkrs (the "City Construction"}. b. Permits. Prior to the commencement of any work involving the Abandoned Alley, the l]evelopex shall apply for all necessary permits, licenses or ether authorizations in cvnnectian wish such work as required 1}y the City [collectively, the "Permits"}. The City shall promptly execute any dvcuknents reasa~ral~ly necessary far the Developer to obtaikk the Permits, provided such execution lay City is required far it to comply with the exercise of its gvvenunental or quasi- governmental functions. e. Cooperation. The City shall c^vperate with the Developer and use its best efforts in furtherance of and in connection with the perfvrkxkanve of all vl6ligativrks under this Agreement, including, without limitation, reviewing the progress of construction and all construction related materials in an expeditious manner and executing any and all applications of the Developer reasonably necessary and related to such construction, provided the City is obligated to execute such applications in the exercise of its govemmental ar quasi governmental functions. 3. Taking Indemnification. The Developer shall save and hold harmless the City from, and shall indemnify the City against any loss, liability, claim,, damage, expense, attorney's fees, casts, penalty, or fine arising out any claims by the owner of the building located at 75 NE fi'f' Ave., Delray Beach, Florida 33#83 (the "Freecor Building") and the occupants thereof [the "Freecor Tenants"} from any claims by the owner of the Freecar Building ar the Freecor Tenants against the City pertaining to their loss andlor denial of access, taking yr inverse condennrkation 2 Trre~i~sz-oi6 c~~~via~~7~~s oa~t~oas t t:~a w,+i pertaining to the abandonment ^f the Abandoned Alley and their loss of access from and to the Preecor Building to and from publicly dedicated roadways (the "Takii~~ Lrderruaificatian"}. 4. Reimbursexnent. Generally. i. If the City completes the City Construction or the Developer fails to indemnify the City under the Taking Indemnification, the City shall be reimbursed far the casts and expenses ir~ctirred by the City by making a demand on the "Letter of Credit" (as defined in Section 5}. ii. Following demand on the Letter of Credit, if the amount remaining under the Letter of Credit is insufficient to reimburse the City for the oasts and expenses described in 5ecticn 2 above, then the City shall submit evidence of payment of suoh costs and expenses and the Developer shall pay to the City the additional funds necessary to pay such costs a]xd expenses. Payment shall be made by the Developer within ten (14} days after City submits an invoice{s} to the Developer. 4. Intentionally ^mittad. 5. Letter of Credit. Prior to the earliest of the date on which the Developer procures a pernnit from the City to commence work in the Abandoned Alley ar otherwise commences any work in the Abandoned Alley pertaining to the Utilities or terminates access over the Abandoned Ailey by the ^wner of the Preecor Building yr the Free~or Tenants, the Developer shall furnish the City with an irrevocable letter of credit in the amount of Seventy Five Thousand Dollars and Nnll~d ($75,fl00) {the "Letter of Credit"}, naming the City as the beneficiary, as security for the faithful performance and observance by the Developer of the terms, provisions and conditions of this Agxeernent. The Letter of Credit shall be substantially in the form of Exhibit "D" attached hereto. G. Reduction and Tem~ination of the Letter of Credit. Upon payment and performance of the City Construction and removal of Preecor Tenants from the Preecor Building {or otherwise assuring the City Attorney that the Dwner of the Preecor Building andlar the Preecor Tenants do not have any taking type claims against the City}, the Developer, upon written approval from the City Attorney, may terminate the Letter of Credit. Additionally, the Developer may request a reduction of the better of Credit, at anytime, and the City, in their sole, but reasonable discretion, znay authorize a reduction of the amount of the Letter of Credit. 7. ether Matters Related to the Letter of Credit. If upon presentment, the Letter of Credit is dishonored, then the Developer shall be liable to the City for the full amount which. may be due under the Letter of Credit to pay for the City Construction or the Taking Indemnification. Ir] addition, if the City must take steps to collect under the Letter of Credit from the Developer because of dishonor of the Letter of Credit, then the Developer shall pay all reasonable attorneys fees, collection costs, court costs and other expenses incurred by the City in its efforts to collect the amount due. ~7761]969[•U1fi CurrenV135857~3v5 421t3120~91 t:53 AM S. Notice. Arry notice, derrrarrd car request which may be permitted, xequired or desired to be given in connection therewith shall be given in writing and directed to the City and the Developer as follows: As to City: City of Delray Beach 1 QQ N.W. 1 s` Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimule: {56I} {561} 278-4755 With a copy ta: 2QQ N.W. 1~` Avenue Delray Beach, Florida 334~F4 Attn: City Attorney Facsilnile: {561} 278-4755 As to Developer: Atlantic Center, Ltd. clo CDS International Holdings, Inc. 32~g N.W. 2°~ Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561} 278-693Q With a copy to: Proskauer Rose LLP 2255 Glades Road, Suite 34DW Soca Ratan, FL 33431 Attn: Stuart T. Kapp, Esq. Facsirrrile: {561} 241-7145 Notices shall be deemed properly delivered and received when and if either {i} personally delivered; ar (ii} one {I} business day after deposits with United Parcel Service or other overnight courier; ar (iii} the same day when sent 17y confirmed facsimile before S:QQ p.m. {Eastern time}. 9. Miscellaneous. a. Governin Law. This Agreenrrent shall be governed by alyd construed ur accordance with the Iaws of the State of Florida and venue shall be in Palm Beach County, Florida. b. Amendment. This Agreement may be amended ar modified only by a written instrument signed by both parties or their respective successflrs and assigns, c. Entire A reement. This Agreement sets Earth the entire agreement between the Developer and the City with respect to the terrr~s and conditions set forth in this 4 7778'19892-618 Current~135B5723v5 Q2113J20fl811:53 A,NI Agreement. This Agreement supersedes all prior and contemporaneous negotiations, understandings and agreements, written yr oral, between the parties. d. Successors and Assiens. The covenants, conditions and agreements contained in this Agreement will inure to the benefit ^f and be binding upon the successors and assigns of the Developer and the City. e. Authority. The Developer and the City each warrant and represent to the other that the individuals signing this Agreement an behalf of the leveloper and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto. f. C'otrnterparts_ Phis Agreement. may be signed in twD or more counterparts, each of which constitutes the Agreement of the parries and each of which shall be treated as a<x original. g. l+lo Recordation. This Agreement shall not be recorded, however, it may be referenced in other agreements involving the Project. which may be recorded. h. Headings. The headuigs of various Sectiorrs in this Agreement are for convcni~ncc ozaly, and arc oat to be utilized in construing the content or meaning of the 5U1J5t8r1tiVe pr4V15tpr1S hereof. i. Severability. The provisions hereof shall be deemed independent and severable, and the invalidity ar partial invalidity ^r enforceability of any one provision shall oat affect the validity of enforceability of any other prevision hereof. j. Sin filar. Whenever required by the context, the singular shalt include the plural and the masculine shall include the feminine and vice versa. Tfris Agreement shall not be construed as if prepared by one of the parties, but rather according to its fair meaning as a whole, as if both parties had prepared it. All Exhibits attached hereto are incorporated in this Agreement by reference thereto. k. Prevailing Party. In the event of litigation between the parties with respect to this Agreement, the each party shall bear its awn costs and expexases incurred by the party in connection with such litigation, including, but not limited to, xeasonable attorneys' fees of counsel selected by the party. I. Force Maieure. If any party to this Agreement is delayed, hindered in, nr prevented from the performance of any act required to be performed by that party by reason of acts of God, strikes, lockouts, unavailability of materials, failure oi' power, prohibitive governmental laws or regulations not imposed by the City, riots, insurrections, the act or failure to act of any other party to this Agreement, adverse weather conditions preventing the performance of work as certified to 17y an architect, war, act of terrorism, or other reason beyond that party's reasonable control and for which, in each of the aforesaid circumstances, the party is diligently and in good faith and with reasonable dispatch seeking to abate and remove the ~78119892.OiB CurrenV33565723v5 02l~3f2U09 t 1:53 Alin circumstances causing the delay or hindrance or prevention from performance of the act required to be performed by that party, then the lime for performance of the act shall be extended far a period equivalent to the period of the delay. Lack of adequate fluids ox financial iiiability to perform ar financial or ecvxxoznic losses or hardship resulting from pcrforxiaance shall not be deemed to be a cause beyond the reasonable control of such party. m. Waivers. No delay or omission by any party in exez-cisiirg any right or power accruing upon any default, non-compliance or failure of pcrforxxiaxxce of any of the provisions of this Agreement shall be constructed to be a waiver thereof. A waiver by any party of any of the obligations of the other party shall oat he construed to be a wavier of any subsequent breach of such obligations or a waiver of any breach of any othex terms, covenants or conditions aft this Agreement. n. Interpretation. i. If any provision of this Agreement, or portion thereof, or the application thexeof to any person or circumstances, shall, to any extent be held invalid, inoperative ox unenforceable, the remainder of this Agrccmcnt, or the application of such provision or portion thereof to any other persons or cixcumstances, shall not be affected thereby; and each provision ^f this Agreement shall be valid and enforceable to the fullest extent permitted by law. ii. Nothing in this Agreement shall be construed to make the parties hereto partners or joint venturers nr render any of said parties liable for the debts or obligations of the ether. iii. The captions contained in this Agreement are for the purposes of convenience of reference only, and in no way define, limit or described the scope or intent of this Agreement or in any way affect this Agreement. All references in this Agreement to the terms "herein," "hexeunder," and wards of similar ilnpvrt 51ia11 leferrecl to this Agreement, as distinguished from the section within which such term is located. The use of the ward "shall" is oat a synonym for "xnay" in that "shall" describes mandatory actions, oat permissive actions. All pronouns and any variations thereof shall he deemed to the masculine, feminine, neuter, singular or plural as the identity of the person, entity ar thing may require. o. Na Third Party Benef,~iciaries. Nothing ixi this Agreement shall confer upon any entity, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement; provided, however, that a mortgagee shall be a third party beneficiary hereunder to the extent such mortgagee is granted rights hereunder. p. Remedies. The terms and provisions of this Agreement are enforceable with all remedies at law and in equity, including, but not limited to, bringing an action for actual damages, aza action for specific performance, ail action fox temporary restraining orders, preliminary or permanent injunctions, declaratory judgments or other similar orders for relief; provided, however, that suspension or termination of this Agreement on account of a breach shall not be an available remedy unless otherwise expressly provided far herein. The parties further d 777firt9fi9~-076 Currenf1135fi5723v5 Oti13I2~911:53AA+i agree that neither party shall have the right to recover any consequential, punitive, special, extraordinary or speculative damages as a result of the breach of this Agreement. The parties tv this Agreement hcrel3y acknowledge and stipulate the inadequacy of legal remedies alyd the irreparable harm that would be caused by a material breach of any obligation under this Agreement by a party to this Agreerr-ent_ This Agreement may not be suspended or terminated except by an instrument in writing signed by the City and the Owner and recorded in the real propexty records of Falm Seach County, Florida. lU. Gaverrlmental Functions: Notwithstanding anything to the coxrtrary contained in this Agreement. a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agxeement from complying with a[l applicable governmental regulations, rules, laws, and ordinances; b. To the extent approval or permission must be obtained front the City, such approval or permission shall be granted or denied in accordance with applicabIc governmental regulations, rules, laws, and grdinances, and no person shall have any vested rights; c. The City has not waived its sovereign immunity and the tflrt limits of Iiability set forth in Fla. Stat. 768.28 which are currently $ l QQ,OQQ per person and ~2QD,Q00 per occurrence are applicable; and d. Any action by City shall be without prejudice to, and shall not constitute a limit on, impairment or waiver of, or otherwise affect City's right to exercise its discretion in connection with its gavernxnental or quasi-governmental functions. [EXECCITION PAGE TO FOLLOW.] 7TIS~~19692-p16 Gurn:n6'13565723v5 ~ QZl13f20[?91 t:53 AM IN wTI'NESS wxlri~I;or, the parties hereto have entered into this Agreement as of the Effective Date. ATTEST City Clerk Approved as to legal form: City Attorney CITY CITY of DELRAY BEACH By: City Manager 13EVEL~PER ATLANTIC CENTER, LTD., a Florida limited partnership By: Attantic Center, Inc., a Florida corporation, its general partner B y: Print Name: Its: 7f7~d19fi92~01fi Cu~~U135557~3v5 Q~'1312Ua9 i1:53 AM Exlti6it "A" Overall Parcel 7716Jrt9692-a36 Currertl135657~3v5 Q2I131Z00911~3AM DISCRIPTION OF PRarECT SITE: LOT I, LESS THAT PORTION DEEDED TQ THE STATE OF FLORIDA FOR RaAD R1GHT OF WAY , A5 DESCRIBED IN C]FFICIAL RECORI]5 BdQK 511, PAGE Slfi, LdTS 2 THROUGH 11, INCLUSIVE, LESS THE WEST SA FEET THEREOF FdR ROAD RIGHT OF WAY, LOTS 12 THROUGH 19, INCLUSI~TE, LdT 2D, LESS THAT PORTION FOR THE RIGHT OF WAY FOR EAST ATLAN'T'IC AVENUE AND U.S. HIGHWAY NO. I, LOTS 2I THROUGH 24, INCLUSIVE, LESS THE SOUTH 7.^ FEET THEREOF FOR ROAD RIGHT QF WAY, ALL THE EAST-WEST ALLEY LYING SGUTH OF AND AD7ACENT T4 SAID LdT 11, LESS THE WEST 5.fl FEET THEREOF FOR ROAD RIGHT OF WAY, ALL OF THE NORTH-SOUTI-I ALLEY RIGHT OF WA'Y LYING EAST 4F AND ADJACENT TO LdTS 1 THROUGH 11, INCLUSIVE AND LOT 22, LESS THE SOUTH 7.Tf FEET THEREOF FC3R RC7AI] RIGHT OF WAY, AI_ T, T. Y~TVG IN BIACI~ 115, TOWN OF LINTON [i~IOW DELRAY BEACH}, ACCORDING TO THE PLAT THEREOF AS RECORDED IIV PLAT BOOK I, PAGE 3, PUBLIC RECORDS OF PALM T3EACH COUNTY, FLORIDA. TOGETHER WI`s H: ALL 4F THE PLAT CF ATLANTIC PLAZA, ACCGRDWG TO TI-IE PLAT THEREOF AS RECORIJEI~ IN PLAT BOOK 5~, FAGE 129, PUBLIC RECORDS DF PALM SEAC[I COUNTY, FLdRIT]A. AND TOGETI~R WITH: THAT PORTION OF THE EAST HALF GF THE 5~ FGGT ROAD RIGHT GF WAY FOR N.E. 7~ AVENUE LYING WEST DF AND AD.IACENT TG THE SAID PLAT OF ATLANTIC PLAZA, AND THAT PORTTOI~I GF THE WEST HALF OF THE 5d FGGT ROAD RIGHT GF WAY FOR N.E. 7~ AVENUE LYING EAST 4F AND ADrACENT TO SAID BIACK 116, LESS THE SOUTH 7.~ FEET THEREOF. Exhibit "B" Legal Description of Abandaz~cd Allcy 777fil19fi9P-016 CLrrentr135S5723v5 0113'200911:53 M1 s~cFrcy a~ oFSC~i~r~arv Exl~err 'A" SF~E7' 1 OF 7 w N~ rsr s~~r ~ O q Nb9°5$'47'E `~ rs a~~ NOR7N LINE" F3LOCfC Ir6 ~ ~ D~ ~ ~~ J~ ~~ ~I~ ~ Q ~~u ~ ~ ~ ~ ^ ~] W~trW ~ ~ I•~ O] a~~a ~ ~] I fl II ``{ ~ ~ a _ Q m ~ I IvO~r>-I f~rGHT OF YYAY LA4E ~~ SOUTH LINE BLOCf~ 1J6 F,asr ~ rL~a~rrrc ~ ~~ oES~RrPrron~• ALL 7NAT PORTION OF TI-~ NOR~SOUTFI ~6 FCOT ALLEY RIGHT OF fNAY LYING IN BLOCi[ IT6, TOVYN OF LINTON ~NQW DELRAY 9EACN}, ACCORDING T4 77-x' PLAT T1~RE~ A5 RECORDED IN PLAT BpOfC ~ PAGE 3, P[~LIC RECORDS OF PALA~! aEac~-I co+~vrr FL oRloa, LESS ~ sou~H ~ a ~T NarES- TI~6'S 1S IVQ7' A SLRUFY ~ = C~rvT~RLIn~ rxE NORrx Lrly~ O~ eLOCrc na IS ASSCA~EC7 FO BEAR N.S9°58'47'E PAUL D. ENGLE SURVEYOR & MAPPER ~`5~O$ oA rF- ~uL r s, zoos ~; a~ ~~ ~; ~; ~~ ~• 9: ~; ~; ~: G~ ~~ ~: QRDER NQ. p4-16~ PARCEL 5 ABAI~QYI~fdT b I - -..~.,.,,- ~ IvaTES~ U ~ F]'-~'S 1S NOT ,4 5[JRVEY Z m LOT I1, BLOCH 1f6 f6.a' ~ w ~ 5' ~a, l '~ i ; a'i Iy ~ ~ ~ ~~aoo ~,. ti ~ ~ ~ " ffi' PLATTED ALLEY RIGHT OF WAY Q '~ ,,~; AREA -- 2,DSf SQCJARE ~ a ~ o ~ ~ o~o~s~' FEFT MORE OR LESS -~~ ~ ~- ~~ ~~ ~ 93naD' ~~ ~ ~ ~ 5' LDT 2C1 LOS' 2f LOT 22 BLOCK 1fG BLOCK 1f6 BLOCK ff6 L-j '~ nloRrl-I RIGI-rT oF' wA Y uNE EAST A 7 L~411rTIC A I~ENUF DE5G4JPTIC~'V.• ALL THAT POR77ON OF TIC EA57--WEST f6 FOOT ALLEY RIGHT OF WA Y L YING 50UTN ~ AID ADJACENT TO LOT ff, BLC[~C f16, TOWN QF Ll~VTQN NOW DELRAY 8E'AGY), ACCORL'NG 7"O 77-~ PLA 7~ 71-~REDF A5 RECORDED IN PLAT BDOfC ?, PAGE 3, PL®L1C RECO4DS OF PALM BEACH CCG~VTY, FLORIDA, LESS TIC' WEST 5.4 FEET T!-~RFOF' FOR ADflI77ONAL ROAD RIGHT ~ WAY FOR U.S h4'GHYYAY IIfO. I ORDER IVO. 04-1fi~ PARCEL 4 ALLEY ABAI~OI+6~M PAUL D. EIYGLE SURVEYOR & MAPPER x'5708 ~R rF• rur. r ~ 2aos a; ~. g ti: ~; ~: q: ~: 1 5. ~~ a. U: ~' ~. D: d c i Exhibit "C" Abandoned Alley Agreement l?76'19692A16 CurrenV13565723v5 Q2113F2~0911;53 FINS This instrument was prepared by and should be ret€rrxzed to: Brian Shutt, Esq. City Attorney's Office ~QD N.Vd. Ist Avenue Delray Beach, FIorida 33444 EASE_VIENT AGREEMENT {Abandoned Alley THIS EASEMENT AGREEII~NT (this "Agreement") made as of February 17, Z~D9 (the "Effective Date"}, among the CITY OF DELRAY BEACH, FLpRIDA (the "City"], with a znailiz~g address of lea N.W. 1st Avenue, Delray Beach, Florida 33444, a Florida municipal corporation in Palrrz Beach County, State of Florida, and FREECaR INVEST]VICNTS, INC., a Florida corporation t"Freecor"}, ATLANTIC CENTER, LTD., a Florida limited partnership ("Atlantic Center"], CDS ASS BUILDING, INC., a Florida corporation ("CDS"], CDS 45, LLC, a Florida limited liability company ("CDS 45"} and CDS GAS STATION, LLC, a Florida limited liability company {"Gas Station"; and together with Freecor, Atlantic Center, CDS and CDS 45, collectively referred to herein as the "Owner"). u~rrTer c• A. Pursuant to a Resolution (the "Abandonment Resolution"), the City has agreed to vacate and abandon all right, title and interest the City holds in and to the alleyways more particularly described as follows {coliectivcly, the "Abandoned Allcy"]: See Exhibit "A" attached heretfl and made a part hereof. The Alandonment Resolution has been recorded in the Public Records of Palm Beach Cauzzty, Florida. S. As a result of the approval by the City of the Abandonment Resolution, each Owncr became the owner and holder of fee simple title of and to a portion of the Abandoned Alley and the Owner together awn fee sirnple title in and to the property constituting the entire Abandoned Alley. C. The Owner, with respect to the portion of the Abandoned Alley which such Owner owns, desires ro grant to the City: {i} a perpetual exclusive roadway easement far the unobstructed and unimpeded vehicular and pedestrian traffic for ingress and egress, and over, upon, and acxoss the Abandoned Alley, and far the City to exexcise its go~vernrrzental and quasi- governlnental functions with resflect to the Abandoned Ailey, including without limitation, traffic T770'1969~-01B Current'13552889vfi 02113~'24Q9 01:38 PM regulation, and other uses and purposes as znay be permitted by the City's Code of Ordinances or by resolutions adopted by the Ciry Commission with respect to public rights-af-ways located within the City and far all purposes for which the City has all power vender home rule authority, including but not limited to those expressed in Florida Statutes or City OrdiA~a~;<ces, ai;d this Agreement shall not in any way limit those powers including but not limited to access, ingress and egress, maintenance, control, closing, ar other use of the Abandoned Alley by members of the public, and City officers, agents, employees or contractors, and [ii} a perpetual non_exclusive subsurface utility easement aver and under the Abandoned Alley, each fnr the uses and purposes and upon the terms and conditions herein contained. D. This Agreement shall remain in full force and effect until such time as set forth herein. NOW, THEREFORE, in consideration. of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the City and the Owners agree as follows; 1. Recitals. Tl~e foregaiiig Recitals are true and corzec[ and are inctlrparated herein by this reference, as if set forth in their entirety. 2_ Roadway Easement. 2.1 Grrant of Roadway Easement. Subject to the terms of Section Id of this Agreenrzent, the Owner, as grantor, hereby grants and conveys to City, its successors and assigns and the general public [collectively hereinafter referred to as the "Roadway Grantees"}, commencing upon the date of recording of this Agreement and perpetually thereafter, an exclusive unimpeded and unobstructed easement for the use and benefit of the Roadway Grantees ("Roadway Easement") over, upon, and across Abandoned Alley for the following purposes: a. The uraabstructed and unimpeded use for pedestrian and vehicular parking anal traffic, including sidewalks, access, ingress and egress, as a through roadway, and for the proper installation, maintenance, repair and replacement of a paved roadway and its subsurface components; b. For any public purpose permitted by the City's Code flf Ordinances which relate tv or concern the use or regulation of public rigkits of way located within the City; c. For any public purpose approved by the City Commission which the City Commission could approve with respect to public rights of way located within the City in the exercise of its povernnnental and quasi-governmental functions; and d. For all purposes for which the City has all power under Hame Rule Authority, including but not limited to thane expressed in Florida Statutes or City Ordinances, and this Agreenrxent shall not in any way Iimit thane powers uicludutg but x>.ot limited to access, irxgress and egress, maintenance, control, closing, or other use of the Abandoned Alley by 2 Tl7fi+t9592-01fi C~:rrent'1355~898v6 021t3+E0(}901:38Ph1 members of the public, and City officers, agents, employees or contractors, including, without limitation, closing the Abandoned Alley for street fairs, festivals or other events approved by the City within the exercise of its govenu~~ental or quasi-gaveriameiital functions similar to any other City public right a£ way. e. ltiatwithstandi[ng the foregoing, the grant of an exclusive perpetual easement, as set forth herein, shall not preclude the Gwner from exercising its rights or performing its obligations hereunder with respect to Abandoned Alley, as specifically set forth in this Agreement. 2.~ Maintenance. Exccpt as otherwise provided in the Agreement, the City hereby shall and does accept sale responsibility far the maintenance, repair and replacement of the Roadway Easement and all related improvements, including without limitation, sewers, drainage, landscaping, traffic control devices, street lights, median requirerxzents, striping, sidewalks, paving, and ct?rbing, in good condition and repair, and in compliance with all applicable goven~nental zules, laws, regulations and ars~inances as Ihey pertain to public rights of ways. 2.3 Alterations. The ^wner shall oat nr-ake any alterations to the roadway design, location or improvements thereon Finless the City consents to same in the exercise of its governmental ar quasi-governmental functions. 2.4 Rights of the Roadway Grantees. The Roadway Grantees shall have the right to use the Roadway Easement in an unobstructed and unimpeded manner seven [7} days a vueek, twenty-four (~4} hours per day, except as otherwise authorized by the City in the exexcise of its govemmental or quasi-governmental functions. No fee or other expense shall he charged by the ^wner to the City ar the Roadway Grantees for use of the Roadway Easement. 2.S Tawixk~ ~ehiclcs. The Owner shall not lie allowed to tow ar otherwise relocate vehicles located in the Roadway Easement; provided the Gwner shall xetain the right to taw vehicles located Qn private property in accordance with all applicable law. 2.d Gbstructian. Na obstruction of the free flow of pedestrian and vehicular tra€fic or use of ~e Roadway Easement for parking shall be permitted ar caused by the owner. 2.7 Taxes. The Gwner shall pay ar cause to be paid before delinquency all ad valorem real property taxes, general and special assessments and other govemmental charges assessed against the fee parcel, subject to the Roadway Easement and improvements on the Roadway Easement and provide evidence of the same to the City. if those amounts are not timely paid by the Owner, the City may (but shall oat be obligated to} pay all ar part of those amounts and the Gwt~er shall itrunediately reimburse the City thUSe amounts upon demand, together with interest at the rate of eighteen percent { X 8.~%n} per annum on the amounts so paid by the City, from the date of advance until reimbursed. The City shall also have a lien against the fee simple interest subject to the roadway Easement to secure repayment of taxes paid and the mazu~.er of filing a lien, its priority, and its enforcement shall be the same as set foz~th in Section 2.9 of this i 3 ~ T77'B+t 9892-0i8 Cu~ren6'13552899v8 p211 ~2G09 Oi:38 P~1 { I Agreement. This Roadway Easement shall be an ingresslegress easerr]er~t within the meaning of Florida Statutes Chapter I~7.S72. 2.8 Intentionally omitted. 2.9 The City's Remedies Upon a Default. In the event the Owner causes damage ar d~strnctinn to the Roadway Easement ar any improvements thereon {the "owner Damage"), or as a result of the negligence or misuse of the retained servient estate rights of the Owner, then the owner, at its sole cast and expense shall, as expeditiously as possible after becoming aware of such damage, repair and restore Abandoned Alley andlar ttie damaged utilities installed by the City in the Utility Eascmcnt {defined below) to the condition the same were in i]xzmediately prior to such damage, except in the event such damage was caused by the City, its employees, agents, contractors, representatives or the Roadway Grantees, in which event the City shall be responsible for the casts of repair and restoration of the Roadway Easement and the improvements thereon if such damage shall create a dangerous condition, as determined by the City. Any restoration and repair work undertaken shall be performed in accordance with all applicable laws by licensed contractors and in a good, noz~-negligent, and workmanlike and Iiez~- free manner or by City personnel, if performed by the City. Should the owner fail to promptly restore the Roadway Easement or arty improvements located thereon, as a result of any Owner Damage, and as a canseclnence, the City's easernen.t rights created by this Agreement become impaired or City is unable to utilize the Roadway Easement as intended by this Agreement, in addition to any remedy the City may have, City, after not less than thirty [30) days prior written notice to the Owner to cure the default {except no notice shall be required in the event of an emeracncy], zx]ay, but it is not obligated to, enter onto any portion of the Roadway Easement to perform all necessary constzuction, repair, maintenance, replacezxzent and operating work and may assess owner for the reasonable cost of said work. Owner shall pay the cost of said work within thirty (36) days after the City delivers to the Owner {"Payment Date"}: {i} a written statement setting forth the amount of the Casts and expenses expended by the City; and (ii] back up information and detail evidence supporting such expenses, including without limitation paid invoices far all such work, if any. Tile Payment Date shall not cvtrunezzce until such time as the City has delivered to the owner all of the information set forth in items (i} and (ii} above. If the foregoing amount is not paid on ar before the Payment Date, then said amount shall bear interest at simple interest rate of eighteen percent (I8.Qalo} per annum,, from and after the Payment Date until paid and after the Payment llate the City shall have the right to retard a Iien against the fee simple interest subject to the Roadway Easement. The lien shall be in a form sul3staxztially in the faru-z of a Cozzstzuctian Liezz prescribed under Florida Statutes Chapter 7I3 and shall attach to the to the fee simple interest subject to the Roadway Easement and shall be effective upon recordzixg of a notice thereof in the Public Records of Palm Seach County, Florida. The lien rights granted herein will not affect the easements and other rights granted herein to the City, and such rights shall continue in full force and effect. Such lien may be foreclosed in the same manxzer as a mortgage and in accordance with law. Reimbursement of such work costs and interest shall also be the vl~ligation of Owner at the time the costs are incurred, and rr]ay be collected by the City accordingly in an action agaizast doe Owzrer. 4 ~d']989E-01fi Currenh'13552889v5 02113J2D09D1:39PM 2.1 [] Binding, Effect. Tile Roadway Easement is an easement appurtenant to the City's public right-of ways and shall run in favor of the Ciry, and shall be binding upon the owner acid its successors and assigns of the Qwner holding the servient estate. 2.11 Contraetflrs. All warlc performed by the Owner in the Roadway Easement shall be performed only by properly licensed contractors and in compliance with all applicable laws, nlles and codes. Each contractor perfazming work for Qwner shall be reasonably insured, without cost to the City and the City will be indemnified and held harmless for any Claims [defined below) chat may arise out of the performance of the work. The foregoing insurance coverage requireznezzts az-e zxot izz.tezzded to requiz~e iizsuraaace coverage against any defe.~:ts in the work, except to the extent that such defective work causes bodily injury or personal property damage as a result of such defective work [but not including the repair or correction of any defective warlc}, Fox purposes of this Agreement, "Claim" shall mean any obligation, liability, claim (including, but not limited to, any claim Far damage to property or injury to ar death of any persons}, lien ar encumbrance, loss, damage, cost, or expense. 2.1~ Warrant. The Qwner warrants that; [i} the Owner is seized of fee simple title to Abandoned Alley and has the right to convey the Roadway Easement to the City, free and clear of all liens and encumbrances other than those acceptable to the City; and [ii} the City shall have quiet enjoyment of the Roadway Easement, and the Owner does hereby fully warrant the title to said land and will defend the same against the lawful claims of ail persons whomsoever, subject to any permitted exceptions permitted by the City. 2.13 Traffic Enforcerx~ent Agreement. The Owner agrees that the City shall have jurisdiction over the Roadway Easement to enforce all applicable traffic regulations and the Owner shall, simultaneously herewith, execute the Traffic Enforcement Agreement, the form of which is attached hereto as Exhibit "S". 3. Utility l;asement~ 3.1 Grant of Easement. Subject to the terms of Section lt}, the ^wner, as grantor, hereby grants and conveys to the City, its successors and assigns, commencing upon the Effective Date atkd cocxtitzuizzg perpetually thez-eafter far the use and benefit ^f the City, a non- exclusive easement (the "Utility Easement"} under and below Abandoned Alley, far the purpose of installing, maintaining, repairing, replacing and restoring normal municipal utilities such as pipes, cables, electrical wires, cable television wires, conduit, plumbing, andlor appurtenances relative to such facilities in the manner and location which same exists as the of Effective Date (collectively, the "Utilities"}. The right to grant any further easement rights in favor of private utilities is expressly reserved to the owner. 3.Z The Qwncx wazxants that: [i} the Qwner is seized of fee simple title to Abandoned Ailey and has the right to convey the Utility Easement to the City, free and clear of all liens and encumbrances, other than thane acceptable to the City; and [ii} the City shall have gniet enjoyment of the C]tility Easement, and Uwner does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever, subject to any permitted exceptions permitted by the Cily. S TT76'19692-016 Current'13552899v6 a2113l2Q09Ui:3S PA4 4_ Use ^f Abandoned Ailey by owner. The owner shall have the right, from time to time, to temporarily close portions of Abandoned Alley to access and construct improvements in the Roadway Easement or the Utility Easement, artd far other matters reasonably necessary to maintain, repair and replace the Roadway Easement, the Utility Easement, or any components of or improvements within the foregoing, the adjacent propcrtics in the Qwncr's reasonable discxetion (the "Roadway Closure"}. In performing any Roadway Closure, the Qwner agrees to: {i} use goad faith efforts to minimize the impact of such road closure on vehicular and pedestrian traffic, including, but oat limited to, consideration as to the date and tirr-e of the Anadway Closure and to comply with the City's requirements for temporaty road closures on City public right of ways. Notwithstanding anything to the contrary in the foregoing, in na event shall there be Roadway Closure for a period in excess of one hundred and twenty { l2Q} days, in aggregate, during the term of this Agreezx~ent. 5. 5ig_r~ag~. The Cits~, at its sole cost and expense, may install, maintain and operate signage an Abandoned Alley, in such locations and in such capacities as the City may approve in the City's exercise of its governmental or quasi-governmental functions. fi. Default and Remedies. 6.1 I]efault. The failure of the owner ox the City to observe or perform any of their respective obligations under this Agreement {the "Defaulting Party"} within thirty (3Q} days after receipt of written notice from the other parry specifying the nature of the failure [the "Nvn- Defauitin ;Party"}, shall constitute a default and breach of this Agreement; provided, however, if such failure is of a nature that it cannot reasonably be cured within such thirty {3d} day period, then the Defaulting Party shall not be in default so long as the Defaulting Party commences such Cure pratnptly after receiving Such written notice, and is diligently pursuing Such Cure tC completion. This SeCtiorr f.l is not applicable to any provision contained in Section 29 of this Agreement. fi.2 l:~exnedzes. The terms acid provisiar~s of this Agreement are enforceable with all remedies at law anrd in equity, including, but not limited to, bringing an action for actual damages, an action for specific performance, an action for temporary restraining orders, preliminary or permanent injunctions, declaratory judgments or other similar orders for relief; provided, however, that suspension or termination of this Agreement on account of a l}reach shall not be an available remedy unless otherwise provided for herein. The parties further agree that neither parry shall have the right to recover any consequential, punitive, special, extraordinary or speculative damages as a result of the l?reach of this Agreeaneut. Tl~e paa~ties to this Agreement hereby acknowledge and stipulate the inadequacy of legal remedies and the irreparable harm that would be caused by a material breach of any obligation under this ~Lgreement by a party to this AgreenEaent. This Agreement xrxay xaot be suspended or terminated except by an instrument in writing signed by the City and the Qwner and recorded in the real property records of Palm Beach County, Florida. 6 777E+19fi92-[3ifi Curren~ft3552899v6 0?~'13I29o901:38PM 7. Nance. Any notice, demand or request which rrfay be permitted, required or desired to be given in connection therewith shall be given in writing and directed to the City and the Owner as follows: As to City: City of Delray Beach 1 DD N.W. 1'` Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561} 278-4755 With a cagy to: 2QD N.W. 15L Avenue Delray Beach, Florida 33444 Attn: City Attorney Facsimile: {5bI}2,78-47SS As to nwzrez~: Feecor Investmerats, In.c. clo CDS International Holdings, Inc. 3299 N.W. 2°~ Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278-6930 With a copy tv: Steve Daniels, Esq. Amstein & Lehr LLP S I S North Flogler Drive Sixth Floor West Falm Beach, Florida 334Q1-4323 Facsimile: (5d 1} 555-5551 Atlantic Center, Ltd. ela CDS International Holdings, lnc. 3299 N.W. 2i° Avenue Baca Ratan, Florida 33431 Attn: President Facsimile: [561} 278-6g3D CDS ASJ Building, lnc. clo CDS International Holdings, lnc. 3299 N.W. 2Rd Avenue Baca Raton, Florida 33431 Attn: President Facsimile: [561} 278-693D F 1176+19692-016 CurrenN13552899v6 Q?Jt3120~901:38PM CDS 45, LLC clo CD5 International Holdings, lnc. 3299 N.W. 2"d Avenue Eoca Ratan, Florida 33431 Attic: President Facsimile: [551} 278-593 CDS Gas Station LLC cJo CD5 Intemationai Holdings, Tnc. 3249 N.W. 2"~ Avenue Seca Raton, Florida 33431 Attn: President Facsimile: {551} x.78-693 Notices shall be deemed properly delivered and received when and if either {i} personally delivered; or [ii) one [I) business day after deposits with United Parcel Service or other overnight couzier; or (iii) the same day when sent by confirmed facsimile before S:4a p.m. (Eastern tune}. 8. General Provisions. 8.1 Amendment. This Agreement may be amended or modified only by a written instrument signed by both parties or their respective successors and assigns; which instrument must be recorded in the Fublic Records of Palm Beach County, Florida. 8.2 Entire A Bement. This Agreement sets Earth the entire agreement between the ^wner and the City with respect to the easement granted in this Agreement. This Agreement supersedes all prier and contemporaneous negotiations, understandings and agreements, written or oral, between the parties. 8.3 Governing mow. This Agreement will be interpreted and enforced in accordance with Florida law. 8.4 Successors and Assigns. The Covenants, conditions and agreements contained in this Agreement will inure to the benefit of and be binding upon the successors and assigns of the Owner and the City. 8.5 Authority tc Execute: Representations. The Dwzzex azzd the City each warrant and represent to the other that the individuals signing this Agreement on behalf of the Dwner and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto. 8.G Counterparts. This Agreement may be signed in two ar more counterparts, each of which constitutes the Agreement of the parties and each pf which shall be treated as an original. F E 'l?7£Jt96B2~i$ CurranYi3552$99v6 0~'13IZ[}OBOt:$$PIA 8.7 Non-Public. The Owner and the City specifically acknowledge and agree that this Agreement and the rights and obligations granted hereunder are not intended to be, and shall not constitute in any respect ar manner, a public dedication of any right or interest of the Owirer in Abandarred Alley whatsoever, but rather are private rights far the sole use and benefit of the parties hereto, their respective successors and assigns. $.S Breach Shall Not Permit Termination. It is expressly agreed that no breach of this Agreement shall entitle either the Owner or the City to terminate this Agreement, but such limitation shall not affect in any manner any other rights ar remedies which either the ^wnex or the City may have hereunder by reason of any breach of this Agreement. 8.9 Severability. If any term or provision of this Agreerent or application thereof to any person or circumstance shall, to any extent, 6e found by a court of competent jurisdiction to be invalid ax unenforceable, the remainder of this Agreement, or the application of such term or provision to persflns or circumstances ether than these as to which it is held invalid or unenforceable, shall not be affected thereby and each, term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 5.10 I~[on-Waiver. Na waiver af, or failure to assert, any claim, right, benefit ar remedy of any party pursuant to this Agreerrrent shall operate as a waiver of any ether claim, right or benefit. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect such party's right at a later time to require such performance ar to enforce the same fully. Na waiver or modification of the terms hereof shall be valid unless in writing and signed by the party to be charged, and then only to the extent therein set forth. $.1I Headin s. The headings of the articles of this Agrccrxtent arc far guidance and convenience of reference only and shall not limit or otherwise affect any of the terms ar provisions of this Agreement. 8.12 Covenant Ruruaing with the Land. This Agreetxl,ent and the easements granted herein, and all of the rights, duties and obligations of the parties with respect thereto, shall be construed as covenants running with the land, binding and inuring to the benefit of the City or the Owner, as the case xnay be, their respective successors, assigns andlor grantees. $.13 Force Majeure. if any party to this Agreement is delayed, hindered in, or prevented from. the pcrforrnance of any act required tQ be performed by that party by reason of acts of God, strikes, lockouts, unavailahility of materials, failure of power, prohibitive governmental laws ar regulations not imposed by the City, riots, insurrections, the act or failure to act of any other party to this Agreement, adverse weather conditions preventing the performance of work as certified to by an architect, war, act of terrorism, or other reason beyond that party's reasonable control and for which, in each of the aforesaid circumstances, the party is diligently and in good faith and with reasonable dispatch seeking to abate and remove the circumstances causing the delay ar hindrance ar prevention from performance of the aet required to be performed by that party, then the time for performance of the act shall be extended far a period equivalent to the period of the delay. Lack of adequate funds or financial inability to 9 Tl7fiJt9692~16 CUffefIV13552899vfi 02~t3J2o09 Qt:38 PEA perform or financial or ecanom]c losses ar hardship resulting from performance shall not be deemed to be a cause beyond the reasonable control of such party. $.14 ]oinder 1Jy Mott aP.~ By its joinder ]n this Agreerent, all mortgages holding a lien against the Roadway Easement, if any, have consented and do hereby consent to this Agreement, and the liens and security interests held by such lienholders are hereby made subject and subordinate to the terms of this Agreement without the necessity of the execution of any other dact]ment. Any future deeds of trust ar rnnrtgages shall autnn~]atically, without the necessity of any additional instrument, be subject and subordinate to the terms and conditions of this Agreement and shall be bound by the terrns of this Agreement. Any party foreclosing any such deed of trust or mortgage, or acquiring title by deed in lieu of foreclosure or trustees sale shall acquire title subject to all the tcrrns and provisions of this Agreement. B.IS Ri ht to Pled e. The Owner shall have the right to nnortgage, pledge ar collaterally assign its interest in this Agreement and to assign ar pledge the same as security far any debt and al] rights acquired by such secured party under any such security. From and after the date any deed of trust beneficiary, ]n~rtgagee or secured party comes into possession of the Owner's rights under this Agreement, such deed of trust beneficiary, ]mortgagee or secured party shall possess all rights of the Owner under this Agreement and all obligations of the Owner shall thereafter be the obligation of s~zcl] deed of trust beneficiary, mortgagee or secured party. In na event shall such transfer of possession cause a release, satisfaction, ar waiver of any obligation of Owner which occurs prior to the date of such transfer, including without limitation, City's right under this Agreement to record and foreclose a lien. $.16 lea Mertrer. It is expressly understood and agreed that the parties do not intend that there be, and there shall in no event be, a mez~ger of the dominant and servient tenements in Abandoned Alley by virtue of the present or future ownership of any portion of said tenements being vested in the sane pezson{s) ar entity, but instead intend that the easement servitudes shall oat be extinguished thereby and that said dominant and servient tenements be kept separate. 8.17 joint Preparation. The preparation of this Agreerrtent has been a joint effort of the City and the owner and the resulting document shall not, solely as a matter of judicial construction, he construed mare severely against one party than the other. 8.18 Attorney's Fees. In connection with any litigation or dispute arising out of this Agreement, each party shall bear its own attorneys' fees and casts. 8.19 Further Assurances. The parties agree to execute all future instruments and take all further action that may be reasonably required by any party to fully effectuate the terms and provisions of this Agreement and the transactions contemplated herein. 8.2~ Venue. Any dispute relating to this Agreement shall only be filed in a court of competent jurisdiction in Pal]x~ Beach County, Florida, and each of the parties to this Agreement submits itself to the jurisdiction of such court. la TllfiJt9fi92~1fi CuftznV13552899vfi ~a']3I20Q9 U1:38 Pl~i $.21 Hazardous Substances. Neither the dwner nor the City shall cause or permit at any time during the terzxxs of this Agreement, any hazardous substances tv be disposed of or otherwise released an, to ar under the Roadway EascnrAGnt. Neither the Owner nor the City shall engage in operations aver, upon or under the Roadway Easement that involve the generation, manufacture, refining, transportation, treatment, handling or disposal of "Hazardous Substances" ar "hazardous wastes" as such terms are defined under any envir[mmental laws. The Qwner acknowledges however, that the Rfladway Easement will be utilized for parking and driviiag vehicles whiclx inay leak oil, gasaluie, or other fluids onto the ground, and the City shall not be responsible far removal of such waste or have any liability far it under this Agreement. 8.22 Intentionally Omitted. 8.23 No Third Party Beneficiaries. No private parties other than the City shall have the right to bring a cause of action against the owner under this Agreement. 9. Govcrxarncntal Functions: Notwithstanding anything to the contrary contained in this Agreement: a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agreement from complying with all applicable governmental regulations, rules, laws, and ordinances; b. Ta the extent approval or permission must be obtained from the City, such approval or permission shall he granted ar denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested rights; c. The City has not waived its sovereign immunity and the tart limits of liability set forth fn Fla. Stat. 768.28 which are currently $lOD,~00 per person and $2{ll},{ltytl pei occurrence are applicable; and d. Any action ley City shall be without prejudice to, and shall not constitute a limit on, impairment or waiver of, or otherwise affect City's right to exercise its discretion in connection with its governmental ar quasi-govercunental functions. l ~. Tez~~nitzatian. I [3.l Roadway F..asexnent. a. The Roadway Easement shall terminate at such time as CDS International Holdings, as the owner representative the "owner Representative"} executes and delivers to the City a certificate [the "Owner Certificate") in the farm attached hereto as Exhibit "~.", which the ^wner Representative shall record in the 1'iiblic Records of Palm Beach County, Florida, stating that the tenants and owner of the "Freecor Building," located at 75 NE b~ Ave., Delray Beach, Florida 3383, have reasonable and equivalent access to and from the Freecor I] 77iB~19B92~DfB CunenV~3552899vfi 02113+2009 Qi:38 PM 3 Building via the publicly dedicated roadways or over lands awned in fee simple by the owner, includiFag formerly the Abandoned Alley after the abandanrxzent. h. Upon recordation of the owners Certificate, the Roadway Easement shall be terminated of record and shall he of na further force anal e££ect and all rights, obligations and easements granted hereunder shall be of no further force and effect. fiF the Owner reque5t5, the City shall execute any further documents evidencing the ternainatian of the Roadway Easement to be recorded in the Public Records a£ Palm Beach County, Florida. Notwithstanding anything to the contrary contained in this Section, the termination of the Roadway Easement shall not constitute the release or satisfaction of any claim that arose prior to termination, and such claim shall suzvive ternainatian of this Agreement. 10.2 Utility,Easernent. a, This Utility Easement shall terminate at such time as the engineer from the City (the "City En ig Weer"} executes and delivers to the City and the Owner Representative a relocation certificate (the "Utility Relocation Certificate"} u~ die form attached hereto as Exhibit "D", which the City shall record in the Public Records of Palm Beach County, Florida. b. The City Engineer shall execute and deliver the Utility Relocation Certificate to the owner Representative at such time as the Utilities have been discoru~ected, relocated and reconnected and approved by the Palm Beach County Health Department, as to any such Utilities requiring such approval, through an alternative right-of--way andlor easement so that the Abandoned Alley is no longer needed to operate the Utilities, as determined by the City Engineer, in the City Engineer's discretion. 10.3 Upon the terms of Section la.l and 10.2 being satisfied, this Agreement shall be terminated of record and shall be of no further force and effect and all rights, obligations and easements granted hereunder shall be of na further force and effect. If the owner requests, the City shall execute any further documents evidencing the termination of this Agreerrtent to be recorded in the Public Records of Palm Beach County, Florida. Notwithstanding anything to the coiita~ary oo3itauzed in this Section, the terrrunation of this Agreement shall riot constitute the release or satisfaction o£ any claim that arose prior to termination, and such claim shall survive termination of this Agreement. Furthermore, provided this Agreement has not been temunated, if the City exercises any recanveyance right of property described in this Agreement which shall result in a tenmination in any applicable easement rights, such easement rights shalt not tern~inate until such time as the City is vested with fee simple title to the property subject to the easement rights {subject to permitted encumbrances being approved by the Ciry}. 10.4 Notwithstanding the foregoing, even i£ the Roadway Easement and the Utility Easement are terminated in accordance with the terms and conditions of Section 10.1 and Section 10.2 above, the City shall still the right to exercise its Reconveyanoe Right in accordance with the terms and conditions of the 1]eclaratian of Deserved Rights and Agreement Nat to Encumber the Abandoned Alley (the "Declaration"}, between the City and the Developer (as defused in the Declaration). 12 777fi+19fi9P-0ifi CurrenVf3552899v6 02113120090i:38PM Id.S The City aricl the Owner shall record a certificate in the Public Recozds of Palm Beach County, Florida, at such time as the terzxainatian rights pursuant to Sections 10.1 and 10.E above are terminated and thereafter this Agreement shall be of no further farce and effect. 11. Owner Execution. Each Owner shall execute this Agreement on behalf of such portion of the Abandoned Alley that such Owner awns as a result of the Abandonment Resolution. E~CUTION PAGE TO FOLLOW I~ 7TIF119632~495 CurrenV13552899vG 421S312D0901:38PM IlV WITi~IESS WHEREOF, the panics to this Aa Bement set their hands aaad seals ttie day and year first above written. ATTEST: CITY OF DELRAY BEACH, FLORIDA B y' 13 y=- City Clerk Name; ~t5: Approved as to Farm: ~y: City Attvmey STATE DF COUNTY DF The foregoing instrEZment was acknowledged before me this day of , 2009, by ,the of the CITY DF DELRAY BEACH, FLORIDA. He1She is personally known to me or has prflduced (type of identification} as identification. Signature of Person Taking Acknowledgment 777GI14G42-aId CurrcnU13552899vG 02JI312IX1901:38 PM FREECUR INVEST_V~NTS, INC., a Florida corporation Print Name: Print Name: STATE of couNT~ of } } ss: ray: Print Name: Title: The foregoing instrument was acknowledged before me this ~ day of , ZO_, by ,the of FREECOR INVESTMENTS, INC., a Florida corporation, on behalf of the corporation. He1She is (check one) personally known to me ar has produced as identification. (SEAL) Notaxy Public Signature Print Name State of Commission Na.: My Commission Expires: at Large 77761[9692-pI6 Current1I3552&99vfi D2J1312pD~J 01:38 PM Print Name: Print Name: By: Pri><it Name: Titic: STATE DF } } 5S: CaUNTY DF } The foregviFt.g instrument was acknowledged before me this day of , ~Q,_._, by ,the of Atlai-:tiG Center, Inc., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership, on Uel><alf of the partnership. He1She is {check cne) personally known to rlne or has produced as identification. Notary Public Signature [SEAL} ATLANTXC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner Print Nanne State of Colnmissian No.: My Commission Expires: at Large 7776119692-pf 5 CurrenU13552899v6 D211312Qp9 01:38 Phi CDS A5J BUILDING, INC., a Florida cor~ol:atioll B y: Print Name: Print Name: Title: Print Name: STATE OF COUNTY ~P } ss: The faregfling instrulrlent was aeknnwledged before me this _ day of , 20_, 13y .._-- ,the ~f Cus A5J RiJILDING, AiC., a Florida curparatiol-1, ol~ behalf of the co3:poratian. He1She is (check one] personally known to me ^r has produced as identification. Notary Public Signature tS~) Print Name State of Commission No_: My Commission Expires: at Large 777G139G92-Olb Currend13SS2$99vG 6211312.00901:38Ph1 CDS 45, LLC, a Florida limited liability company Print Name: Print Name: STATE of couNTY of 7 ss: By: Print Name: Title: The foregoing instrument was acknowledged before me this _ day of , 2~_, by ,the cf CDS 4S, LLC, a Florida limited liability company, on behalf of the company. He1She is check one) personally known to me or has produced as identification. Notary Public Signature {SEAL) Print hIame State of Commission No.: My Commission Expires: at Large 7775119692-U1d Current113552899v6 02l1312D0901:38 PM CDS GAS STATI[dN, LLC, a Florida limited liability company Print Name: Print Name: S y; Print Itiiame: Title: STATE QF CoUNT~ of } } ss: The foregoing instrument was acknowledged before me this ~ day of , 2Q..._, by ,the of CDS lntcrnational Realty, LLC, a Florida limited liability company, the manager of CD5 GAS STATION, LLC, a Florida limited liability company, on behalf ol= the company. He15he is (check one} personally known to me or has produced ~, as identification. Notary Public Signature (SEAL} By: CDS IntcrxlationaI fealty, LLC, a Florida limited liability company, its manager Print Name State of Commission No.: My Commission Expires: at Large 777&119692-fl1b Currcns11 3 55 2899v6 0211312Q09Qi:38 PM Exhibit "A" Legal Dcscriptian,af Abandoned Ailey 7776119692-0#8 CuTenV13552899u8 Q?J€312(1090~:38PM IVaRTH LINE BLOCK rr6 Z Z~ ~ ~ o ~' ~ ~ ~~ ~ ~~ ~`] w~~w ~ ~~ o ~ ~ ;~ ~ o ~, ~ ~ ~ ~ ~; ~ Q ~~ ~W o~ ~~ D ~~ ~ W ~~ fl~ ~, ~0. °m ~~ ~~ J o~ nIORT~r Rlcxr o~ wA r un~ ----~-sourv u!~ sLOar rrs EAST A TLAIV77C A I~EN~JE' oESCRrPrlonr ~ THar ~naN ~ TIC NoRr~so~TK ~ Foor ,aLLEr RIGHT OF WA Y L 7'1MG !N BLOCYC TT6, TO~'!Y OF LHVrON (I~QW BECRR Y BEACI~}, ACCORDING T"C ThE P[.A T Tf~RE'~F AS RECORDED IN T 800K 1, PRGE 3, P[.~LIC RECORDS QF PALM BFACH CO~AVT'Y, FLORIDA, LE55 77-~ SOUTH 7.0 FEET 77$l~"C~: IVOTES• TD`S IS NO7 A SDfi'I~EY ~' = CEIVTE14LI11~ THE Na~rx un~ of BLOCx rr~ IS A55t~D ro eEAR N89°58'47'E PAUL D. EIVGLE S[lRVEYDR & MAPPER ~'S7Q8 ~,a rE• dUL r s, Laos ORDER n,~ O~-~~ PARCEL s ABAn~Nr s~c~rcH a~ ~~sc~~Pr~a~r E.~n-,r~r .R.' Sh~T' ] 0'~ 1 W IVnTFS.- ~ TI-kS IS NOT A SL~I~FY 0 L~r 1r aLOC1c 1rs rsa~ z ~ ~ ~ 7,3~.~n ~ ~ ~ ~~ PLATTED ALLFr f~IGFiT DF wA r p ¢ ~ ~a ARER = 2,481$Q[IARE ~.s~h d ~ D ~ FEET MORE QR LESS r ^ ~ I o~ `3r. ~L! ' ~ ~~ ~~~ , LDT 2D LOT 21 LOT 22 BLDCK 116 9LOGYC 116 ELdGYC 115 {!} ~ O NORTH WGI.17" GF WAY LII~,E ~~sr ~ rc~~vnc ,~ v~u~ ~~~~nQ~~ ALL THAT PC7RT10N OF T]#' EAST WEST 16 FODr ALLEY 1?IG~-!T OF INAY LYf1YG S'Gl'17N CF AIIO ADJACENT TO LQT 1~ BLQC~C 11E'y TOWN QF LIIVTON (NOW DELRAY BEACY-1}, ACCQRpING TO T!-~ PLAT 77-~7?EOF AS RECOI?~27 IIV PLAT' BCOiC ~ PAGE 3, PUBLIC RECORDS OF PALM BEACH CO~JlYTY, FLQRIDA, LE55' TI-,E WEST 5.0 FFET 77$REQh~ FDR AD~'770NRL ROAD RIGHT OF WA Y FC14 U.S -'-+~'GHWR Y ~7. f. PAUL ~. EIVGLE 5UF2VEYQJ4 & MAPPER ,,5748 DATE JULY 9. ~~~8 DRDER 1UQ d4-164 PARCEL ~ ALLEY ABAIuDOl44~IVT Exhibit `B" Tra€fic EnforGeznent A eexn.ent 7776!19692-Ois Gurcent113552899vs Q2113~'2009 x1;38 PM TRAFFIC ENFORCEMENT AGREEMENT {Abandoned Alley} Vi+HEREAS, the CITY OF DELRAY BEACH, FLORIDA, {hereinafter referred to as "CITY") through its Police Department, wishes to make its Community Policing efforts in Atlantic Plaza, as effective as passible; and WHEREAS, ATLANTIC CENTER, LTD., a Florida limited partnership, FREECOR INVESTMENTS, INC., a Florida corporation, CDS BUILDING, INC., a Florida corporation, CDS 45, LLC, a Florida limited liability company and L'D5 GAS STATION, LLC, a Florida limited liability company (hereinafter collectively referred to as "Owner"} is desirous of the enforcement ^f state and municipal traffic laws on its property; and WHEREAS, Loth the CITY and the Owner feel that such enforcement will make the Community Policing effort a more positive influence on the community; and WHEREAS, P.S. 3I6.4Q6{~},{b},{I} allows for such ezaf~rcezrzent on private roads pursuant to a written agreement approved by the City Commission which provides far reimbursement fax actual casts of traffic control and enforcement liability insurance and indemnification and other terms as are mutually agreeable 6y the parties. Now, therefore, for the mutual consideration, covezxazrts, and matters set forth herein, as of the date set forth below, the parties hereto do hereby agree as fellows: 1. The CITY does hereby agree to enforce all state and municipal traffic laws on the Aharz~lorzed Alley, which is described on Exhibit "I" attached hereto. 2. The enforcement of the traffic laws by the CITY will occur Z4 hours a day, ?days a week. 3. The Owner shall hereby pay to the CITY $1.04 per month to cover the actual costs of the traffic control and enforcement incurz-ed by the CITY. 4. The speed limit shall be that set by Florida Statute 316.183{2} and 316.189(1) of 34 mph. 5. Signs posting the speed linut must comply with the Manual of Uniform Traffic Control Devices used lay the United States Dcpartrrtcnt of Transportation ("Manual")and F.S. 316.189(3}. b. Stop signs must conform to the Manual arzd specifications of the United States Department of Transportation as stated in Florida Statute 316A(76(2}{b}{3}. 7. The owner shall defend, indemnify and hold harmless the CITY, its agents, 84~21i 969-616 Current~135720U5r2 021i3I20D9 i 1:44 AM 1 ofl"xcers, officials and employees h-om any azid all claims, suits, causes of actions or any claims whatsoever made arising from any and all acts by Owner of traffic control and traffic enforcement that occur an the Abandoned Alley following the date of this Agxeernent. Nothing herein shall be deemed a waiver of the privileges and immunities gxanted to the CITY under F.S. 78.28. This indemnification shall survive the cancellation of this Agreement. 8. The Owner shall provide liability insurance to cover the indeAxuaification in the amount of $1,QUa,OQQ.OQ and narrke the C1T'i' as an additional insured. 9. This Agreement shall take effect upon execution and approval by the Defray Beach City Commission and the execution of the Cwnen and shall continue in full force and effect far as long as the certain Abandoned Alley Easement between City and Qwner, which is recorded in the Pu$lic Records of Palm Beach County, Florida, is in effect. IQ. The Dwner by signing below, affirms that it has read and understand this Agreement and that it has l~eeii given the oppoartunity to have its attamey of its choice review this Agreement. [SiG1VATURE PAGES FQLL4W) 842?119fi92.018 Currenti33572G05va ^211312CU91 i:44 AM 2 This Agrcerncnt is made and entered into on this day of , 2~d9. ATTEST: CITY OF DELRAY BEACH, FLORIDA L'ity Clerk A~~rovcd as to form and legal sufficiency: B y: Rita Ellis, Mayor Catherine M. Kozol, Asst. City Attorney s~aa11 ~s2•a1 s currenUl a~~~o5~ oy~~rzcos ~ 1:44 AI,6 QWNER ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its gezieral partner B y: Print Name: Its: 842PJ19592•U18 Currenui3572D65v2 fl~I]3l2Q09 i 1;44 AM FREECQR I~VESTMEI~TTS, INC., a Florida corporation BY~_....... Print N Its: .............. 8422119682-016 C~rrrentl13572005>~ 02J13l2~911:44 AA+f CDS AS,i II~]ILDING, INC., a Florida corporation By: Print 1tilame: Its: 8427J#a692•D#fi Currertt'1357~945~ 021#?d2Cp91 #:44 AM CDS 45, LLC, a Florida limited iiahility eam~any S y: Print Name: Its: $4'19692-~18 CurrerrG'13572Up5v2 a2113l200911:44 Abu! CD5 GAS STATIUN, LL(:, a Florida limited liability company By: CDS International Realty, LLC, a Florida Iimitod liability company, its manager By: Print Namc: Its: 84~'15E92-~18 CurrenV135720a5~ ~21f312Q0911:44 AM EXHIBIT "1" ~lbandaned Alley 8422!19692-016 CurrenN135T2~D5~1 42l1312QD911:~4 k~A f ~.+. ~,.r U I Y V TL J. NDRTN LINE 77~'S 15 IGOT A SURREY BLCGIC 716 ~' =CENTERLINE 0 o ThfE n1oRTr~r uNE of BL oCr~ lrs ~ ~ ~ ~ ~' j IS A55fJA~D TD BEAR N.89°58'47'E ~~ ~~ ~~ o~ ~~ o~ w . ~ w Q *,+J o ~,n ~ 0 ~~ ~~E ~~ ~~ ~~ ~4 a.1 ~ ^ L. NORTH RIGHT CF WA Y LINE ~~ ID.VU - ,,,,,L ~9o°~~D~ ~ ~50UT7Y LINE t ~ BLDCff 116 EAST A TLANTIG A 1/EN[JE DESCt21PT7'~N.• ALL THAT PQR770N OF' 77YE NORTH-SdUrI-I 15 FpQT ALLEY RIGHT OF WAY L YIA~G IN BLQCfC 176, TDWN OF LINTON (NQW pELRAY BEACH, A000,4DING TO THE PLAT 77~ERE4F A5 1~CORDED IN PLAT eODif 1, PAGE 3, PUE3C.IC RECQ14D5 OF PALM BEACH COCrWTY, FLORIDA, LE55 THE SOUTH 7O FEET TI-IEREOF: PAUL D. ENGLE SURVEYaF & MAPPER ,~57OS DATF• JULY 9, 2~aS a AC~ ~~5 ~~ ~ t` ~J ~ 4 f+7E _4iE C ~~~~ ~I ~~ ~~ ~5' .g~ ~' ~~ ~3a.aa~ ~r PLATrm ALLEY RIGHT of wAr AREA -- ~,0815[Ji.JARE FEET hAORE OR LE55 13a.oa~ LDT ~O BLOCK 11fi LDT 2i 9LOCK 1Tfi ~~ ~ ~~ w a w ~~ °• ~ ~ ~. ~ ~~ ~~ LDT 22 BLGvfC 1~6 IVO4TH RlGNT' OF WA Y LINE ~asr ~ rc.,anrnc ,a vFnruF DESCRIPTIdN~ AtL THAT PORTION nF Tf-~' EAST WEST 16 FDDT ALL~"Y RIGHT OF WAY LY1NG 5DU]7-1 DF AND ADJACENT rD LOr ~], BLOCK ]~6, T'OWN CF LJNTON (NOW DELRAY BEACH}, ACCORDING TO THE PLAT THEREOF AS RECOR~7ID 1N PLAT 8C101C ~ PAGE 3, PCIQLIC RECORDS DF PACIr1 k3EACH COC+9'VTY, FLORIDA, LESS THE WEST 5.0 FEET' TNEREDr~ FDR ADDITIOIJAL ROAD R1GNT Of' WA Y FOR L1.5~ HIGNWA Y ND. 1 PAUL D. ENGLE SURVEYOR & MAPPER X5708 pA rE• uu~ r s ann~ 3 ~~ JN~ i ~7 ~ ORDER ND. 04-J~4 PARCEL 4 ALLEY ABRI~IJiL~IVT Exhibit "C" Dwner Certificate 7776"19692-0]fi Current113552899vb U21]3~2009 Q]:38 ?i~1 Prepared by and upon Re~ardirtg Return to: Stuart T. If app, Esq. Proskauer Rase LLP 2255 Glades Road Suite 340 West Baca Ratan, Florida 33431 OWNER CERTIFICATE THIS OWNER CERTIFICATE (this "Certificate"} is issued as a£ the day of 2Q by CDS 111~I'TERNATIQNAL HULDINGS, INC., a Florida corporation, as the appointed representative (the "owner Representative"} of FREEGOR I<NVEST1GiENTS, INC., a Florida corporation ["Freecor"}, ATLANTiIC CENTER, LTG., a Florida limited partnership {"Atlantic Cezrter"}, CDS ASJ gIJ11LDING, INC., a Florida corporation ["CDS"), CDS 45, LLC, a Florida limited liability company ("CDS 45"}, and CDS GA5 STATIaN, LLC, a Florida limited liability company ~"Gas Station"; and together with Freecor, Atlantic Center, C:DS and CI75 45, collectively referred to herein as the "Owner"}, WITNESSETH: V4'FIEREAS, this Certificate is issued pursuant to Section la.l of that certain Easement Agreement, dated as of , 2QQ9, between the City of Delray Beach, Florida [the "C~"} and the Owner, recorded in Official lZccords Soak ,Page , of the I?ublic Records of Palm Beach County, Florida (the "Easement Agreement"}. Pursuant to the terms and conditions of the Easement Agreement, the Owrter granted the City a roadway easement {the "Roadway Easement"} aver, upon and across that certain alleyway more particularly described as follows {the "Abandoned Alley"}: See Exhibit "A" attached hereto and made a part hereof. NOW, THEREFORE, in accordance with the Easement Ab eement and in consideration of the sum of Ten l7allars ($ lO.QQ}, and other goad and valuable consideration the receipt whereof is hereby acknowledged, the Owner Representative hereby states the following: 1. The foregoing Recitals are true and correct and arc incorporated herein by this reference, as if set forth in their entirety. 2. This Certificate satisfies that certain requireaneizt set forth ira 5ectian IO.I(a} of the Easement Agt~eement which provides in pertinent part as follows: The Roadway Easement shall terminate at serch time as the Owner Representative executes and delivers to the City the Owner Certificate stating that the tenants and owner of the "Frcccor Building" have reasonable and equivalent access to and from the Freecar Building via the 8547119592916 GurFenV1355548Pv1 0~'i3f2a(]911:ABANf publicly dedicated roadways andlar parking areas without the use of the Abandoned Alley. LTpnn recordation of the Owner Certificate, the Roadway Easement shall be terminated 4f reeard and shaft be of no further force and effect. 3. All terms not defined herein shall have the rneat~ings set forth in the Easement Agreement. [SIGIrIATURE PAGE FC7LLOV~S] 2 8547f19B92~016 CdrrenV13555462vi aZ'13l20t}91f:4fiAM IN WITNESS WHEREOF, the Owner Representative hereby execrates and delivers this Cer[ificate as of the day and year first above written. V-IITNESSES: CD5 Il\ TERNATIpNAL HULI])(N'~S, )[NC., a Florida corporation Print Narrre: B y: Print Name: '1 itle: Print Name: STATE aF CUUNTY OF The foregoing instrument was acknowledged before me this day of 20_, by the of CDS INTERN~ITI4NAL HQLDINGS, INC., a Florida corporation. He~She is personally known to me or has produced (type of identification] as identification. Signa[~rre ^f Person Taking Ackngwledgment 8547139fi92-016 Currenf113555462v1 021131200911:46 AF13 EXHfEIT "A" to the Qwner Certificate Abandoned Alie 8547119692.OT6 Curr~n~J13555462v1 02~13f20(]911:46AA+f sf~fFTCH OF DESGRIPTI~IV Fx1~BIT .~ Shr~ET 1 OF 1 NOTES.' TF115 IS NOT A S[~941~EY '`1 LOT il, BLOCK 1J6 16.0' ~ ~ ~ ~ 5' ~° ~ ' ~?a ~ °~ ~~ Q~ ~ o ~ w W ~~ ~ ~ l ~s~ PLATTEa ~Ll~r R~cyr ~ ~ ~ wAr p ~ ~ ~ " ,~' AREA ~ 2,481 S[JiJARE ~ ~ ~s FEET AAO,RE OR LE55 ~ ~ ( ~' ~ ~ tp ~ ~` , ~ ~ ~ ' _ ~ ~ TJn. ~~ ~ ~ ~ ~ 5' ~ ( ~' LOT ZO LOT Z1 LOT 22 9LdC1C 11fi BLOCK 11fi 6LDCK 116 U'l 3 NORTH RIGHT" OF WAY LINE ~~asr .a r~~aNr~c ,a v~rvUF DESCRIPT7OIIt ALL THAT' PORTION OF 77-LE" EAST--WEST 16 FOOT ALLEY RlC~YT PAUL D. ENGLE OF WAY LYING SOIlT1-! OF RNa Af~IACENT TO LO]" 11, BLnC,C SIIRVEYnf2 & MAPPER x`5708 116, TOWN OF Ll1VrO1V (NpW DELRA Y BEACH) ACCORDII+lG TO THE PLAT TI-~REG~" AS f2ECORDELJ IN PLAT BOOff ]PAGE 3, P[l6LIC RECORDS OF PALM BEACH COL.WTY, FLORIDA, DATE- ~luLr s, 2008 LESS Th1F WEST 5.O FEET TNEREUF F'OR ADD177ONAL ROAD p~gRlL'1+I, SUlTER & p'BR1EN, INc RIGHT OF WA Y FOR U.S h7GNWA Y N4. 1. CE'RTIFICR TE OF AUTNORI,~ATION ~`LB353 SURVE'1'pR AND MAPPER IN RESP NS19LE CHARGE- PAUL ^. ENGLc 955 Il~t W. 17TH AVENUE, SUIT, If ORDER IVQ Q4--164 PARCEL ~F ALLEY ABAIYD4NA~ENT FFLRA Y BEACH FL pRIDA 33445 (5fi1} 276-~sa1 {5sr) 73.E-3a7s Ni ~; ~; h, ~~ ~; ~, ~: q9 L5 ~~ ~~ Q~ r 's Exhibit "D" Utility Relocation,Certificate n~~tsss~~is currenv135s28sevs a2r~~r2oog a~:~s ~~ Prepared by and upon Recording Return ta: Stuart T. Kapp, Esq. Fraskauer Rose LLP 2255 Glades Aoad Suite 34~ 'VG'est Boca Raton, Florida 33431 UTILITY RELOCATION CERTIFICATE THIS UTILITY RELOCATION CERTIFICATE [this "Certificate"] is issued as of the day of Z~~9, by ,City Engineer for the City of Delray Beach, whose address is (the "City Engineer"}. WITNESSETH: WI->EREAS, this Certificate is issued pursuant to Section ].Q,~ of that certain Easement Agreement, dated as of . 20D9, among the City ^f I]elray Beach, Florida (the "C~"), acrd Freecar Investments. hrG., a Flflrida corporation ("Freecor"}, Atlantic Center, Ltd., a Florida limited partnership ~"Atlantic Center"}, CDS AS7 Building, Inc., a Florida corporation ("CDS"), CDS 45, LLC, a Florida limited liability company ("CDS 45"}, and CD5 Gas Station, LLC, a Florida limited liability company ("Gas Station"; and together with Freecor, Atlantic Center, CDS and CDS 45, collectively referred to herein as the "~]wner"}, recorded in CJfficial Records Back ,Page of the Public Records of Palm Beach County, Florida (the "Easement Agreement"}. Pursuant to the terms and conditions of the Easement Agreement, the Owner granted the City a utility easement (the "C3tility Easement") over and under that certain alleyway mare. particularly described as follows {the "Abandoned Allen"}: See Exhibit "A" attached lrereta and made a part lrereof. NOW, THEREFORE, in accordance with the Easement Agreement and in consideration of the sure of Ten Dollars [$1D.a0}, and other goad and valuable consideration the receipt whcreflf is hereby acknowledged, the City Engineer hereby states the following: 1. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set fortlr ix~ ureic etrtirety. 2- This Certificate satisfies that certain requirement set forth in Section 1D.2(a) of the Easement Agreement which prar~ides in pertinent part as follows: The Utility Easement shall terminate at such time as the City Engineer executes acrd delivers to the City and the ^wner Representative the Utility Relocation Certificate stating that the Utilities have been disconnected, relocated and reconnected through our alterzrati~e riglrt-of-way andlor easement so that the Abandoned Alley is na longer needed to operate the Utilities, Upon recordation of the Utility Relocation 1 8547119692-018 Curreni113555854u1 n21t312no9 x1:38 RM Certificate, the Utility Easement shall be null and paid and of no further force or effect and shall be terminated and cancelled of record. 3. All #erms not defined herein shall have the meanings set forth in the Easement Agreement. [SIGI~IATC]RE PAGE FCLLC7WS] 8547I~9692.016 Currentl13555854vi d~~ 3120x9 01 ~B PEA IN WITNESS WHEREOF, the City Engineer hereby executes and delivers this Certificate as of the day and year first above written. WITNESSES: {Print I~ianrie} {Print Narnc} CITY ENGINEER: City Engineer, City of Delray Seach STATE OF COUNTY OF The foregoing instrument was acknowledged before zx~e this day of 2t7 by ,the City Engineer for the City of Delray Seach. He1She is personally known to me or has produced (type of idea~tificatioir} as identification. Signature of Person Taking Acknowledgment 8 5 4711 9 6 92-0i6 Current143555854v3 82J13f2009 Oi:38 PN! EXH~ IT "A" to the Utility Relocation Certificate Abandoned Allen 8547I~9fi92~i6 Currend13555854v1 Uy13I2009ai:38PA+~ t f yo~, ELI ~ ~~ ~j~ ~ P, ~p9?~ •V ~ ~~ ~~ x; ~: is ti. ~; ~; ~~ ~~ ~~ ~~ ~~ o i F` ~ 15, ~~ zw ~ t1 ~ ~-L.I ~ ti C ~~ ~ ~ ~ ~~ ~~ ~ Z ~ 5' V'1 DESCRIPTIQN.• NORTH RIGHT ~ WAY Llll~' ~• PLA rTED ALLEY RIGHT of wA r ~,~~' A~r~~ aR~ESS~ ~~~. 13C~ 4C]' LOT 20 BLOCK ]16 t0T 2~ BLOCIf TTfi LOT 22 BLOCfC l16 ~~ ~~ Q EAST' ATLAIV77G A 1~EN[JE ALL THAT PnR7701V OF" 7~ EAST WEST 16 FOOT ALLEY RIGJ-!7' OF WA Y L PING SOUTH nF AND ADJACENT TD L DT rl, BLOCK 11E TOWN OF LINTQN (NQW DELRAY Q~"ACN}, ACCa,4DAVG TQ 7F~ PLAT TJ$REOF A5 REC014DED IN PLAT B~If 1, PAGE 3, PCIdLIC FECORDS OF PALM BEACH CaUNTY, FLORIDA, LESS THE WEST 5.0 FEE7• THEREOF FOR ADDITIGWAL ROAD F~IGNr OF Vl~A Y FOR U5. h4'GNWA Y NQ t PAUL ^. ENGLE SURVEYOR & MAPPER #5708 ap rE• ~u~ r s .zoos ~; ~~ N• 8~ J 3 i ~: r 8' ORDER NO 44--I~4 PARCEL 4 ALLEY ABAI~DIJ~NT t•7oy ~~~'-g•~~" {.~ar~ r,s~-~~r~ Exhibit "ll" Letter of Credit In form and from ata institution acceptable to the City. 7776119692-aT6 Curren~135657~3v5 02~'13f2U09 T7:53Al~ Exhibit "E" To Agreement for the Abandonment of the A~ieyways Harm lleclaratian of ReseF-ved Rights, 7776119692-Q11 Currenl1135649~u3 ~?J13120a9 X1:55 PA6 This ir-strument was prepared by and should be returned ta: Brian Shutt, Esq. City Attorri.ey's dffice X00 N.W. 1st Avenue Delray Beach, Florida 33444 DECLARATION OF RESERVEr3 RIGHT'S A11I1) AGREEMI~:NT \TQT TO ENCUMBER THE ASAi~1DQNED .ALLEY This Declaration of Reserved Rights and Agreement Nat to Encumber the Abandoned Alley (this "A~reement"} is entered into as of February I7, 2~~9 (the "Effective Date"}, a~nang the CITY ^F DELRAY BEACH, a FIc~ri[Ia Municipal C:orparatian (the "C. 1ty"), and FREECQR INVESTMENTS, INC., a Florida corporation ["Freecvr"], ATLANTIC CENTER, LTD., a Florida limited partnership {"Atlantic Centex"), CDS ASJ BUILDING, INC., a Florida corporation [`5CD5"}, CDS ~#5, LLC, a Florida limited liability company {"CDS 45"} and CDS GAS STATIgN, LLC, a Florida limited liability company {"Gas Station"; and together with Freecvr, Atlantic Center, Cll5 and L'DS 45, collectively referred to herein as the "Developer"}, far the purpose of setting forth the Developer's contingent Obligation tv reconvey the Abandoned Alley (as defined laelvw}, which the City abandoned. RECITALS: A. The Developer intends to constnzct and develop a mixed-use project (the "Project"} on that certaiix zeal property described as faliows (ihe "Gverall Parcel"}: See Exhibit "A" attached hereto and made a part hereof. S. qn February I7, 2QL]9, the City Commission passed a l~esvlution {the "Abaazdaiunetit Resolutions"], pursuaa7t to which the City abandoned its interest in and to those certain alleyways mare particularly described as follows {collectively, the "Abandoned Alley"}: See Exhibit "B" attached hereto and made a part hereof. The Abandoiul~eixt Resolution shall be recorded in the Public Records of Palm Beach County, Florida. C. As a result of the approval by the City of the Abandonment Resolution., each Developer became the owner and holder of fee simple title of and tv a portion of the Abandoned z 85471t969P•016 Currenl11356500$+I3 0?J~31200912:04 PNf Alley and the Developer together own fee simple title in and to the property constituting the entiz~ Abazidazied Alley and, pursuant to that certain proposed easerrtent agreement to be rccordcd in the Public Records of Palm Beach County, Florida [the "Abandoned Ailev Easement Agreement"}, the Developer, with respect to the portion of the Abandoned Alley which such Developer owns, desires to grant to the City: [i} a perpetual exclusive roadway easement for the unobstructed and unimpeded vehicular and pedestrian traffic far ingress and egress, and Qver, upon, and across the Abandoned Alley, and fox the City to exercise its governmental and quasi- gavcrnmental functions with respect to the Abandoned Alley {the "Roadway )laserrzent"}; and {ii} a perpetual non-exclusive subsurface utility easement over and under the Abandoned Alley (the "Utility Easement"; and together with the Roadway Easexrzent, collectively referred to herein as the "Abandoned Alley Easement"). D. The Abandoned Alley Easement Agreement provides, in part, that: {i] the Roadway Easement shall terminate and be of no further force and effect upon recordation of the "Owrzez' Certificate" (as defined in the Abandoned Alley Easement Agreement}, evidencing that the tenants and the owner of the "Freecor Building," located at 75 N.E_ 5'~' Avenue, Delray Beach, Florida 33483, have reasonable and equivalent access to and from the Freecor Building via the publicly dedicated roadways ar over lands owned in fee simple by the Developer, including formerly the Abandoned Alley after the abandonment; {ii} that the Utility Easement shall terminate and be of no further farce and effect upon recordation of the "Utility Relocation Certificate" (as defined in the Abandoned Alley Easement Aa eement), evidencing that the Utilities have been disconnected, relocated and recpnnected and approved by the Palm Beach County Health Department, as to any such Ctilities requiring such appz•oval, through an alternative rigYz#-of way andlor easement sa that the Abandoned Alley is no longer needed to operate the Utilities, as determined by the City Engineer, in the City Engineer's discretion; and (iii at such time as {i} and {ii} above have been completed, the City and the Developer shall record a termination agreement in the Public Records of Palm Seach County, Florida, and. ttiereaftEr the Abandoned Alley Agreerrzerzt shall be of no further farce and effect. E. This Agreement sets forth the obligations of Developer to reconvey the Abandoned Alley to the City in the event the City exercises its right of recanveyance as described in the Financial Guarantee Agreement and as set forth herein. N4W, TfIEREFDRE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Developer hereby agree as follows: 1. Recitals. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set Earth in their entirety. 2_ Reserved Rights. 2 8 5 4711 96 92•U16 CurrenV135554DBw3 a2l13+2~49 12:Q4 Pik a. Back r~ cond. In connection with the der~elnprnent of the Project, the Developer may construct a relocated 7a' Avenue, between N.E. Is` Street and East Atlantic Avenue {"Relocated 7th Avenue"}, including the installation of imprvveinents lQCated d~ereoir, including, without limitation, streetlights, pedestrian and vehicular traffic signs and markings, sidewalks, planters, trees landscaping and other related appurtenances. Relocated 7`h Avenue is legally described as follows: See Exliibit "C" attached hex~eta and made a part hereof. b. Development Conditions. The Developer has certain obligations relating to the construction of Relocated 7`h Avenue, The Developer shall {collectively, the "Develo ment Conditions'°}: {i} obtain approval of the Dcvclopcr's site plan by the City's Site Plan Review and Appearance Board no later than December 1, 2~~9 {the "SPRAB Approval Deadline"} {the "SPRAB Appravai,,,,Condition"} (The date an which the Developer obtains the SPRAB approval (the "SPRAB A~praval"} shall hereinafter be defined as the "SPRAB Approval Date"}; {ii} obtain sate plan certification for the Project from. the City within five hundred and forty eight {54~} days hallowing the SPRAB Approval Date (the "Site Plan Certification Deadline") (the "site Plan Certification Candataon"}. {The date an which the Developer obtains the site plan ccrtification of the site plan shall hereinafter be defined as the "Site Plan Certification Date"}; provided nothing herein shall be deemed an approval of extension for site plan approval; and (iii} construct Relocated 7`h Avenue to the "Na Turning Back Point" (defined bclow} within one thousand ninety five (1,1795} days after the Site Plan Certification Date {the "No Turning Back Deadline"} {the "No Turnan~ Back Condition."}. The "No Turning Back Point" shall be the point at which the Developer has constructed a tunnel under Relocated 7'''' Aveniie in accordance with its site plait as the completion of such is determined in the sale, but reasonable discretion, of the "City Engineer" {as defined below}; provided nothing herein shall be deemed an approval of extension far site plan approval. c. Right of Reconveyance. If the Developer fails to timely satisfy the Dcvclopinent Conditions set Earth in (a} above, then the City shall have the right to cause the Developer to reconvey the Abandoned 1111ey to the City, at the City's option, in the City's sale and absalrzte discretion. The Developer's obligation to reconvey the Abandoned Alley to the 3 B5A7f19fi92~Otfi Gurrent~i35fi5408v3 D?113f20U9 t2:04 PSI City in each of the three (3) cireumstances set forth in (a) above is hereinafter collectively referred to as the "City's Reconveyance Right". d. Evidence of Satisfaction of the Devela ment Conditions. The Developer shall evidence that the Developer has satisfied the Uevelflpment Conditions set forth in {a) above by recording izi the Public Records of Paim Beach County, Florida certain certificates to be issued by the City as follows: i. issuance of a letter Exam the City's Planning and Zoning Department evidencing SPRAS Approval {which the Develnper may record by attaching it to an affidavit); ii, a certificate issued ty the City's Director of Planning and Zoning confirming that the Developer has procured site plan certification by the Site Plan Certification Deadline, in the farm attached hereto as Exhibit "D"; and iii, a certificate issued ty the City Engineer confirming that the Developer has reached the Na Turning Back Point ty the l~To Turning Back Date, in the form attached hereto as Exhibit "F". The City )Jngineer and the City's Director of Plaruiirig aril Zoning shall 155ue the above mentioned certificates upon the Developer's timely completion of each Development Condition, respectively. e. Right to Exercise the City's Reconveyance Ri ht. The City may exercise the City's Reconveyance bight if: i. the Developer has oat attained the SPRAS Approval by the SPRAB Approval Deadline; ii. the Developer has oat satisfied the Silo Plan Certification Condition by the Site Plan Cci~tification Deadline; ar iii. the Develnper has not reached the Na Turning Back Point by the lwo Turning Sack Deadline, f. Method to Exercise the Cit 's Reconve ante Ri t. To exercise the City's Recanveyance Right, the City shall notify Escrow Agent {as identified in Section 3 of this Agreerrrent) and the Developer in writing of such exercise within sixty {6q} days after the City is entitled to exercise the City's Recanveyance Right because the leveloper has failed to timely satisfy one of the Developraaerrt Conditions. The City's failure tv timely exercise the City's 4 8547119892-076 Currentrt3585008~fS 02173I2Q0972:04 PM Recanvcyance Right with xespect to one of the Development Cvirditiai7s sloe!! not be deemed a waiver of the City's right to exercise the City's Recanveyancc Right as to the failure of the Developer t4 timely satisfy any of the other Development Conditions. g. Recanveyance Fallowing Exercise, of the City's Recnn~eyance Right. If the City cxcrcises the City's Recanveyance Right, then the Developer shall reconvey the Abandoned Alley to the City, free and clear of all encumbrances, liens and taxes, and title shall be good, insurable and marketable, subject only to matters of record as ^f February l~, 2009. Evidence of the Developer's compliance nr nnnconnpliance with the title requirements of this Agreement shall be by the issuance of a title insurance commitment and owners' marketability title insurance policy ley a Florida licensed title by Fidelity National Title Company, yr another national title ins-rrer reasonably acceptable to the City and the Developer, or by the opinion of a real estate attorney licensed in the State of Florida selected by the City. h. Termination of the City's Recanveyance Right. If the City is entitled to, but does not timely exercise the City's Reconveyaf--ce Right within sixty (60) days after the Site Plan Certification Deadline, the No Turning Back Deadline or the SPRAB Approval Deadline, as applicable (the "Recanveyance Ri h~dline"], then the City shall forever waive and release the right to exercise the City's Recanveyance Right with respect to the applicable Development Condition, as the case may be. The Developer shall provide written notice of the Recanveyance Right Deadline to the City five {5} days prior to the expiration ^f the Recanveyance Right Deadline (the "Reconve ante Ri ht Ex iration ltioticc"}. The failure of the Developer tv timely deliver the Recanveyance Right Expiration Notice to the City shall cause the Recanveyance Right Deadline to extend until the date which is five (5} days following the delivery of the Recanveyance Right Expiration Notice by the Developer to the City; provided, hnwever, the City shall still be able to exercise its Recaiar~eyance Right, as set forth in this Agreement. ff' the City fails to exercise the City's Rcconvcyance Right for all of the Development Conditions sucl~ that the City is no ianger entitled to exercise the City's Recanveyance Right {and provided that the City has not in fact exercised the City's Re~onveyar-ce Right}, upon the request of the Developer, the City R7anager shall execute and record in the Public Records ^f Palm Reach County, Florida, a "Certification of Teraa~iiaation and Release" evidencing the terrninatian and release of this !Agreement and a termination and release of the City's Recanveyance Right set forth in this Agreement, which Certification of Termination and Release shall be in the form attached to this Agreement as Exhibit "F". The Certification of Termination and Release shall confirm that all terms and provisions of this Agreement have been satisfied and this Agreement and the City's RecoiYVeyan~e Right is waived, released and of na fttrther fgrce and effect confirming that the Developer shall no longer have any obligation to recorivey Vacated 7'h Avenue to the City. i. Time of Essence. Time is of the essence with respect to the provisions of Section 2. 5 85471196°2-fl16 ~urrenl113565fl08~ 02!1 312009 1 204 FM 3. Escrow of Reconyeyance Deed. To secure the City's Reconveyance Right, the Developer has> an even date herewith, executed and delivered to City's counsel, Steven D. Rubin, Esquire, as Escrow Agent, a fully executed Special Warranty Deed [the "Warranty Deed"}, the fozxn of which is attached hereto and made a part hereof as Exhibit "G". If the Developer fails to timely satisfy the Development Conditions and the City properly and timely exercises the City's Recanveyance Right, then upon the City's written notice (together with an executed "Relocated 7`'' Avenue Termination Certificate"} to Escrow Agent and the Developer stating that City has properly and timely exercised the City's Reconveyance Right, the Escrow Agent shall be authorized to and shall promptly recoxd ui the Public Records cnf Palm Beach County, Florida: [i} the Warranty Deed to effectuate the reconveyanec of the Abandoned Alley; and [ii} a "Relocated 7`t' Avenue Termination Certificate" evidencing the texminatian and release of the City's Relocated 7`~' Avenue Easements. '1'lae form of the Escrow Agzeexnent is attached hereto as Exhibit "H" and the form of the Relocated 7r" Avenue Termination Certificate is attached hereto as Exhibit "l". 4. A~reexnent Nat to Encumber. During the term of this Agreement, except as xnay be reasonably necessary in connection with the development of the Project, the Developer shall not: {i) encumber the title ro the Abandoned Alley; (ii} lien, sell, convey, transfer, pledge, mortgage, or hypothecate the Abandoned Alley; acid [iii} permit any person ar entity to acquire any right, title, ar interest in the Abandoned Alley (collectively referred to as an "Encumbrance"}. Any Encumbrance which is permitted under this Agreement must expressly acknowledge that it is subordinate and subject to the City's Reconveyance Right set Earth in this Agreement and that any such Encumbrance shall be extinguished and terminated if the City exercises the City's Reconveyance Right set forth in This Agreement. Prior to creating any such Encumbrance, the Developer shall provide the City with written notice thereof together with satisfaction of such other requirements of the City and an acknowledgement from the beneficiary of such Encumbrance of the extinguishment of such Encumbrance upon the City's exercise of the City's Reconveyance Right and any other related matters the City shall reasonably require, including without liinnitation, can assurnptian ^f the Declaration, and a replacement Warranty Deed from the new owner of the Abandoned Alley to be placed in escrow with the Escrow Agent, provided fee simple title to the Abandoned Alley is transferred. Any Encumbrance not obtained in accordance with the terms and provisions set forth in this section shall be void and have no farce or effect with respect to the Abandoned Alley, and shall at all times be subject and inferior to the City's Ret:anveyance Right. The City shall be entitled to obtain a judgment against any person or entity who may hold an Encumbrance declaring that the Encumbxance is void and of no force and effect and it is extinguished from the Public Records of Palm Beach County, Florida with respect to the Abandoned Alley. The City's remedies include, but are not limited ta, injunction, specific performance, quiet title, and declaratory relief. 5. Default and Remedies. 6 8547I19692~iFi Currentl335fi5008d3 021331200912:04 PM 5.I Default The failure of the Qwner or the City to observe or perform any of their respective obligations under this Agreement (the ">~efaultin~ Party''} within thirty {3D) days aL'ter receipt of written notice from the other parley specifying the nature of the failure (the "lyon- Defaulting Party"), shall constitute a default and bxeach of this Agreement; provided, txvwever, if such failure is of a nature that it cannot reasonably be oared within such thirty (3a} day period, then the L7efaulting Party shall not be in default so long as the Defaulting Party commences such cure promptly after receiving such written notice, and is diligently pursuing such cure to completion. The foregoing shall not apply to the Developer's failure to satisfy any of the Development Conditions. 5.2 Remedies. The terms and provisions of #his Agreement are enforceable with ail remedies at law and in equity, including, but not lizxtited to, bringing an action far actual damages, an action far specific performance, an action For temporary restraining orders, preliminary yr permanent injunctions, declaratory judgznezats yr other similar orders for relief; provided, however, that suspension or tcrminatiozt of this Agreement on account of a breach shall not be an available remedy unless otherwise expressly provided far herein. The parties further agree that neither party shall have the right to recover any cflnsequential, punitive, special, extraordinary ar speculative damages as a result of the breach of this Agreement. The parties to this Agreerzxent hereby acknowledge and stipulate the izzadequacy of legal remedies and the irreparable harm that would be caused by a material bxeach of any obligation under this Agreement by a party to this Agreement. This Agreement may not be suspended ar terminated except by an instrument in writing signed 12y the City and the Developer and recorded in the real property records of Palm Beach County, Florida. 5.3 Additional Rcmedv. If the City exercises the City's Reconveyance Right but the Abandoned Alley is not effectively reconveyed to the City in compliance with the terms and conditions of this Agreement, or if reconveyed, there is a breach of the Developer's obligation not to encumber the Abandoned Alley, or the City does not obtain good, insurable, and marketable title to the Al~andvzaed Alley, subject ozd.y to the matters of records as of February lfi, z4Qg, in that event, in addition to any other available remedy to the City, the City may declare a violation of attdlor withhold, deny, abate, or revoke appror•al of any then pending or existing permit, site plan, development order, variance, ar other governmental or quasi-governmental consent which relates to or carzcerns the overall Parcel, until the Developer causes the reconveyance of the Abandoned Alley t~ the City in compliance with this Agreement. 6. Notice. Any notice, demand or request which may be permitted, required or desired to be given in connection therewith shall be given in writing and directed to the City and the owner as follows: As to City: City of Delray Beach IOd N.W. 1St Avenue Delray Seach, Florida 33.4 7 85b7l19692.016 CurrenU13565008w3 021i3120a912:Ud AM Attn: City Manager Facsimile: (561 }-278-4755 With a copy tv: 200 N.W. 1 S` Avexiue Delray Reach, Florida 33444 Attn: City Attorney Facsimile: (56 ] }-278-4755 As to Developer: Freecor Iiivestrrrents, Inc. clo CDS International Holdings, Inc. 3299 N.W. ?"`~ Avenue Roca Ratan, Florida 33431 Attn: President Facsiixule: {5b1} 27$-G930 With a copy ta: Steve Daniels, Esq. Arrxstein ~ Lehr LLP 5IS North Flagler Drive Sixth Floor Wcst Palin Beach, Florida 33401-4323 Facsimile: (561) 555-5551 Atlantic Center, Ltd. r,:lo CDS International Holdings, Inc. 3299 N.W. 2>td Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (551} 278-6930 CDS AS3 Building, Inc. clo CDS International Holdings, Inc. 3299 N,W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: {561} 278-6934 CDS 45, LLC c!o CDS Ii7ternatinnal Holdings, Inc. 3299 N.W. 2"`~ Avenue Daca Raton, Florida 33431 Attn: President FaC5iil7ile: (561} 27$-4930 g 55471t969~-0]6 Curreni~135B5008~ C2J3312D09 i2:o4 PM CDS Gas Station LLC cla CDS Intematianal Holdings, Inc. 3299 N.W. 2°d Avenue Roca Ratan, Florida 33431 Attn: President Facsimile: (5Gl} 278-693 As to Escrow Agent: Steven D. Rubin, Esquire 38~N. Federal Highway Suite 434 Boca Raton, Florida 33432 Attn: Steven D. Rubin Facsimile: 55 i-347-x$28 Nptioes shall be deemed properly delivered and received when and if either (i} personally delivered; or (ii) one [I) business day after depflsits with L]nited Parcel Service ar ether overnight courier for next day delivery; or (iii} the same day when sent by conftamed facsimile before S,OU p.rri. (Eastern time}, 7. General Provisions. 7.1 Amendment. This Agreement may be amended ar rnadifed only by a written instz-urnent signed by both parties or their respective SuCCe55oI5 and assigns, which instrument must be recorded in the Public Records of Palm Bcach County, Florida. 7.~ Entire A eement. 'T'his Agreerrtent sets 4~orth the entire agreement between the Developer and the City and supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oxal, between the parties. 7.3 Governing-, Law. This Agreement will be intezpreted and enforced in accordance with Florida Taw. 7.4 5uccessors,,,,,and Assig~~. The cavenanfs, Gandltlon5 and agreements contained in this Agreement will inure to the benefit of and be bindzng upon the successors anal assigns of the Developer and the City. 7,5 Authority to Execute: Representations. The Developer and the City each warrant and xepresent to the other that the iEtdividuals signing this Agreement on behalf of the Developer and the City, respectively, have full power and authority to execute and deliver the Agreement and to bind the respective parties hereto. 9 $547139692-a16 Currend]3585408~ a2113f2[}~9 i2~04 PM 7.5 Counterparts. This Agreement may be signed in hvo or nraore counterparts, each of which constitutes the Agreement of the parties and each of which shall tae treated as an original. 7.7 Non-Puhlic. The Developer and the City specifically acknowledge and agree that this Agreement and the rights and obligations granted hereunder are not intended to be, and shall not constitute in any respect or manner, a public dedication of any right nr interest of the Developer- in the Abandoned Ailey whatsoever, but rather are private rights for the sole use and benefit of the parties hereto, their respective successors and assigns. 7.8 Breach Shall Not Ferm~it Termination. It is expressly agreed that no breach of this Agreement shall entitle either the l7evelnper ^r the City to terminate this Agree~nent, but such lirraitation shall not affect in any manner any other rights ar remedies which either the Developer or the City may have hereunder by reason of any Ureach of this Agreement. 7.9 Severability. If any term or provision of this Agreement or application thereof to any person or circumstance shall, to any extent, be found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such tcnn or provision to persons or circumstances other than tltase as to which it is held invalid ar unenforceable, shall not be affected thereby and each term or provision of this Agreement shall be valid and enf'arceable to the fullest extent permitted by taw. 7.I0 Non-Waiver. No waiver of, ar failure to assert, any claim, right, benefit or remedy of any party pursuant to this Agreenent shall operate as a waiver of any other claim, right or benefit. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect such. party's right at a later time to require such performance or to enforce the same fully. No waiver or mnditicatiorr of the terms hereof shall be r~~alid unless in writing and signed by the party to be charged, and then only to the extent therein set forth. 7.1I Headings. The headings of the articles of this Agreement are for guidance and convenience of reference only and shall riot limit or otherwise affect any of the terms or provisions of this Agreement. 7.12 Covexxaz~t Ruiuuirg ,with the Land. This Agreement and ail of the rights, duties and obligations of the parties with respect thereto, shall be construed as covenants r~nnir~g with the land, binding and inuring to the benefit of the City or the Developer, as the case may be, their respective successors, assigns andlor grantees. 7.13 Joinder by Mort~,a~ees. By its joinder in this Agreement, all mortgagees holding a Lien against the Abandoned Alley, if any, have consented and do hereby consent to this Agreement, and the liens and security interests held by such lienholders are hereby made subject and subordinate to the terms of this Agreement without the necessity of the execution of any ld 8547119692-016 CurrenL'135fi5U0$v$ 0~11312~91~~4 PM other document. Any future deeds ^f h•ust or mortgages shall automatically, without the necessity of any additional instnnnent, be subject and subordinate to the terms and conditions of this Agreement and shall be bound by the terms of this Agreement. Any party foreclosing any such deed of trust ar mortgage, or acquiring title by deed iti lieu of foreclosure ar trustees sale shall acquire title subject to ail the terms and provisions ^f this Agreement. 7.I~1 taint Yreparatian. The preparation of this Agreement has been a joint effort of the City and the Developer and the resulting document shall not, solely as a matter of judicial construction, be construed mare severely agaitzst one party than the other. 7.15 Attameys„Fees. In cartxtection with any litigation, ar dispute arising out of this Agreement, each party shall hear etc o~vn attotxaeys' fees and casts. 7.I6 Further Assurances. The pau~.ies agree to execute all future instruments and take all further action that may be reasonably r~quircd by any party to fully effectuate the terms and provisions of this Agreement and the transactions contemplated herein. 7.17 Venue. Any dispute relating to this Agreement shall only de filed in a court of competent jurisdiction in Palm Beach County, Florida, and each of the parties to this Agreement 5Li17mitS Itself to the]url5diction of Such CDUI't. 7.18 Hazardous Substances. Neither the Developer nor the City shall cause ar pemut at any time during the term of this Agreement, any hazardous substances to 6e disposed of ar otherwise released an, to or under the Abandoned Alley or Relocated 7th Avenue. Neither the Developer nor the City shall engage in aperatiat~s over, upon or under the Abandoned Alley yr Relocated 7'a Avenue that involve the generation, manufacture, refining, transportation, treatment, handling or disposal of "Hazardous Substances" ar "hazardous wastes" as such terms are defined under any environmental laws. Developer acknowledges however, that the Abandoned Alley will be utilized far paa~lcittg at;d drivuig vehicles which rrtay leak oil, gasoline, or other fluids onto the ground, and City shall not be responsible for removal of such waste or have arty liability for it under this Agreement. 7.14 No Third P rty Beneficiaries. No private parties other than the City shall leave the right to bring a cause of action against the Developer under this Agreement. 7.2A Farce i1llajeure. If any party to this Agreement is delayed, hindered in, ar prevented frotn the performance of any act required to be performed by that party by reason of acts of God, strikes, lockouts, unavailability of materials, failure of power, prohibitive governmental laws or regulations not imposed by the City, riots, insurrections, the act ar failure to act of any other party to this Agreement, adverse weather conditions preventing the performance of work as certified to by an architect, war, oat of terrorism, ar other reason beyond that party's reasonable control and far which, in each of the aforesaid circumstances, the party is I1 8547'!19692-016 C~rrenV135E50D8v3 ~71]31200912:d4 PM diligently and in good faith and with reasonable dispatch seeking to abate and remove the circumstances causing the delay or hindrance yr prevention from performance of the act required to be performed by that party, then the time for performance of the act shall be extended fqr a period equivalent to the period of the delay. Lack of adequate fonds or financial inability tv perform or financial or economic losses or hardship resulting fronn performance shall not be deemed to be a cause beyond the reasonable control of such party. $. Na Penalty. The Developer acknowledges that construction of improvements vn the Overall Parcel is subject to the City's Reconveyanee Right. Therefore, such construction is at flat Developer's nisk and that the loss of such improvements resulting from the City's exercise of the City's Recanveyance Right shall not be deemed a penalty ar forfeiture. g. City Approvals. The City reserves its authority to approve the architectural design and site plan of the Project and the issuance of building permits iua accordance with its govemmcntal and gt]asi-gavenunental functions. The foregoing provisxan shall not impose any additional requirements or obligations vn the Developer or the Project other than as set forth in the City's code of ordinances and all other applicable laws and codes ar in addition to atay and all approvals far the Project granted and approved as of the Effective Date. 1 a. Gaverxrmental Functions. Notwithstanding anything to the contrary contained in Chic Agreement: a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agreement from conlplyIng with all applicable governmental regulations, rules, laws, and ordinances; b. To the extent approval car laermissi4ra zrat~st be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordmances, and iro persona s1aaI1 have oily vested rights; c. The City has not waived its sovereign immunity and the tart limits of liability set forth in l~la. 5tat. 7b~.2~3 which are currently $ ] [}[3,[][]i7 per person and $2QQ,Q4a per occurrence are applicable; and d. Any action by City shall be without prejudice to, and shall not constitute a limit on, impairment or waiver of: or otherwise affect City's right to exercise its discretion in connection with its governmental or quasi-governmental functions. 11. Termination. Notwithstanding anything contained in this Agreement to the contrary. if the City exercises the City's Reconveyance Right, the City's easement rights in "~Iacated 7`~ Avenue" {as defined in that certain Declaration of Reserved Rights and Agreement Nat to Enctunber the Abandoned Alley, dated February 17, 2aQ9, between the City and the Developer} shall not temainate until sucks time that the City is vested with marketable and insurable tine to the 12 8547r19692~1fi Curr~nN135fi5608w3 0~J1312~D912:(kF PM fee of Vacated 7'~' Avenue and the Abandoned Alley subject to matters at record against Vacated 7il' AveiYUe anti the Abandoned Alley which existed as of February I6, 2d09. E~fECUTTON PAGES Td h~~L.L.C7W Z3 8547~`1869~-016 Curre~t'135fi5(108v3 0~113I2~912:04 PM IN iNTTNESS ^VHERECF, the parties to this Agreement set their hands and seals the day and year first above writtea~. ATTEST: Sy: City Clerk CITY pF DELRAY BEACH, FLORIDA Appxv~ed as to Form: Sy; City Attorney STATE OF CQI)N`1'Y OF Name: Its: Date: T1ae faregaing insttumecrt was ackc~towledged before me this day cf , 2~Q9, by the of the CITY OF DELRAY BEACH, FLORIDA. HelShe is personally known to me or has produced. {type of identification} a~ identification. Signatuxc of Pcrsan Taking Acknove~Iedgment 8547119692.635 Currenf173565~3w3 a2'13l240912:04 PEA l g: I WITNESSES: Print Name: Print Name: STATE OF __ ) } ss: COUNTY OF } DEVELOPER FREECOR TNYESTMErITS,1ENC., a Florida corporation B y: Print Name: Title: The foregoing instruFnent was acknowledged before me this _ day of , 20_, by ,the of FREECOR INVESTMENTS, INC., a Florida coz-poration, an behalf of the corporation. He15he is {check one} personally known to me yr has produced as identification. {SEAL} Notary Public Signature Print Name State of Commission Na.: My Commission Expires: at Large 857119692-016 Current,'135fi5d08v3 021i3J200S 12:x4 PM 3 i Print Name: Print Name: STATE 4F } } ss: CC'C.I~1TY nF } ATLAI~ITIC CENTER, LTO., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, i!s general partner B y: Print Name: Title: The foregoing instrument was acknowledged before me this day of 20_, by ,the ^f Atlantic Center, Inc., a Florida wrporatit~n, the general partner of ATLANTIC CENTER, LTD., a Florida lizxutGd partnership, on behalf of the partnership. He1She is check one} personally known to zne ar has produced as identitic:atian. SEAL} Notary Public Signature Print Narne State ^f Commission Na.: My Camzxaission Expires: at Large S547J19692-016 Current~13565608~ 0211~+2~0912:04PM 'r Print Name: Print N arlle: CD5 ASJ' $UILD~NG, INC., a Florida corporation s y: Prillt Naane: Title: STATE Ql~ } } 55: COUNTY QF } The foregoing instrument was acknowledged hefnre me this _ day of , ~~_, by ,the of CDS ASJ BUILDING, INC., a Florida corporation, on behalf of the corporation. He1She is ~clleck ol~e} personally ICIlOWII to me or has produced as identification. SEAL} Notary Public Signature Print Narne State of Commission No.: Ivly Coznn115$l0ll E7CI]Ir~S: at Large 8547~19592•~16 Gurrent~13565flb8~3 02J13J2409 i2:U4 PM CD5 45, LLC, a Florida limited liability company Print Name: Print Name: STATE DF ) } ss: CCCTNTY flF ) sy: Print Narne: Title: The foregoing instrument was acknowledged before me this _ day of , 2U_,,, by ,the ^f CDS ~5, LLC, a FIflrida limited liability company, on behalf of the company. HclShc is (check one} personally known to me ar has produced as identification. SEAL} Notary Public Signature Print Name State of Commission No.: N~}~ Commission Cxpires; at Large 854T,'t9fi92-a16 Current~~3S65008W3 U21]3J2~09 f2:04 FN3 C'DS G,~5 STATY4N, LLC, a Florida limited liability company Print Name: Print Name: STATE DF couNTY of 55: By: - Print Name: Title: The foregoing instrument was acknowledged before me this _ day of , 20_, by ,the of CllS International Realty, LLC, a Florida limited liability company, the manager of CDS GAS STATION, LLC, a Florida limited liability company, on behalf of the company. He1She is check one} personally known to me or has produced as identification. ~Sl/AL) By: CD5 international Realty, LLC, a Florida limited liability ccmgarfy, its managcr Notary Public Signature Frint Name State of Commission No.: My Commission Expires: at Large $547119692-0i6 CurrenV13565U[18v3 02113/2009 12:04 PlJi E~~IT "A" Legal Description ofthe Overall Parcel 85~71i9692-0io Currenll13565008~ o2113I200912:04 ~!N DESCRIl'TION DF PROJECT SITE: LOT I, LESS THAT PORTION DEEDED TO THE STATE OF FLORIDA FQR ROAD RIGHT OF WAY , AS DESCRIBED IN OFFICIAL RECORDS BOOK 51 I, PAGE 516, LOTS 2 THROUGH 11, IlVCLUSI`LIE, LESS THE WEST 5.0 FEET THEREOF FOR ROAD RIGHT OF WAY, LOTS 12 THROUGH 19, INCLUSIVE, LOT 24, LESS THAT PORTION FDR THE RIGHT DF WAY FOR EA5`I' ATLANTIC AVENUE AND U.S. HIGHWAY N'O. I, LOTS 2I THROUGH 24, INCLUSIVE, LESS THE SOUTH 7.0 FEET THEREOF FOR ROAD RIGHT OF WAY, ALL THE EAST-WEST ALLEY LYING SOUTH 4F AND ADJACENT TD SAID LOT 11, LESS THE WESST 5A FEET' THEREOF FOR ROAD RIGHT OF WAY, ALL OF THE NORTH-SOUTH ALLEY RIGHT DF WAY LYING EAST DF AND AI]1ACEIVT TO LOTS I TIIROUGH 11, INCLUSIVE AND LOT 22, LESS THE SOUTH 7.d FEET THEREOF FQR ROAD RIGHT OF WAY, ALL LYING IN BLOCT~ I I6, TOVG'N OF LINTON (NOW DELRAY BEACH}, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT S DOK I , PAGE 3, PI Tg LIC RECQRIJS OF PALM B EACH CQUNTY, FLC7RIDA. TOGETHER WITH: ALL DF THE PLAT OF ATLAN'T'IC PLAZA, ACCORDNG TO THE PLAT T'HEREGF AS RECORDED IN PLAT BOGR 5d, PAGE 129, YC)B]_,IC: RECORDS GF PALM BEACH COU1~I'I'Y, FLORIDA. ANT] TOGETHER WITH: THAT PORTIQI~I OF THE EAST HAIrF GF THE 5U FOOT ROAD RIGHT OF WAY FOR N.E. 7~ AVENUE LYING WEST QF AND ADJACENT TG THE SAID PLAT DF ATLANTIC PLAZA, AND THAT PORTION OF TI-IE WEST HALF GF THE 50 FOOT ROAD RIGHT OF WAY FOR N.E. 7~ AVENUE LYING EAST OF AND ADJACENT TG SAID SLDCK 115, LESS THE SOUTH 7.D FEET THEREOF. E~HISIT "B„ Legal Description of the Abandoned, Alley 854719692-6ifi Current~i3555008v3 a21i3I2~9 i2:a4 RNA SI~CETC1~ pF pESCR1PTI~IV Fxr-err a" SKEET 1 OF 1 I~.~. 9ST S7"REET U ~ O Q ^ ~} lij ~ "~ N89°5847'E `~ ~~ NDTES• NORTH UNE 77-5 !5 NQT A S[JRVEY BLOGYf 116 =CENTERLINE ~-~ ~. ~.-1 THE NORTH LI1~ OF BLOCK 1T6 ~ E"7 ~ ~ ~''~ f5 A55[~IED TO BEAR N.$9~8 ~7'E ~~ Q~ J~ ^~ ~~ Q~ ~ ~ ~ tea"',--~~ ~Q ~" ~ ~' `~ m p ti~ ~Q ~~ w ~~ ~~ Q~ m ~U NORTH RIGHT qr= WAY LINE ~ r~~roe~ta7E o SG[JTH LIFE __.__ o d' 6LOCK 1Tt5 '~ EAST A TLAN77C ~ vErv~F ~ESCR~Pr~Or~ ALL TNA T PORTIGN QF THE NORTh'-SOUTH ~ FOQT ALLEY PACIL Q_ ENGLE RIGHT OF WAY L YGVG IN BLOCK 116, TOYI~N OF L1NTQlV (NQW SURVEYOR & MAPPER #57Q8 ^EL.RAY BEAC~Y~, ACCORDING TO TIDE PLAT T!-~REOF A5 ~•CORDEO IN PLAT BOOk ~ PAGE 3, P[18LlG RECORDS OF PALM BEACH COC~PVTY, FLORIDA, LESS TF,E SDUTN 7.D FEET L7ATE.• JULY 9, 20D8 Th,ERE~: O 6RlEN, 5U1TER & a 6RIEN, 1tYC CERTIFICATE OF AUTHO!?1ZATIQN ,~L8353 SURVEYOR AND MAPPER 11V RESPONSIBLE CHARGF~ PAUL D. ENGLE 955 N W. l7TN AVENUE, 5UITE K1 DELRA Y 6EA CN FL QR1DA 33445 ORDER NO. 04-164 PARCEL 5 A,9Al~1DONIv~NT (581) 276-45x1 {581J 732-3279 ~: ~; ~; ~; a: U, ~: ~, a; W U E~HIS 1T "C" Leal Description of Relncatcd 7~' Avenue 8547f1a692-016 Currentf13565468~ fl2li3120Q912't14 P~,1 8~ ~: ~; ~; ~; ti. m. ~; ~~ W. W• fl ; W~ 4; R' d: ~; ~; s: 8• V v~ ~4; ~~ ~~ Q~ SKETCH OF DESCRIPTICIV EXHIBIT ':4" SHEET 2 pF 2 DESCRlP77'QIV FAR N.E. 7TH A YFM,E 14E ALfGN1l~lYr A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO ThL PLRT T]~REQF A5 RECORDFU IN PLAT BOOK 5Q PAGE T29, PL19LIG F2ECORDS DF PALM BEACH COUNTY, FLORIDA AM7 THAT PORTION OF Th+E 4Q FOOT ROAD RIGHT 09~" WAY FOR 11(E 7TH AVENUE LY1NG WEST OF AND ADJACENT TQ SRID ATLANTIC PLAZFi A5 SFIOWN ON TM_`" PLA ]" OF THE TOWN nF UNTDN {NOW DELF~A Y BEACH) ACCORDING TO THE PLAT THEREOF A5 RECORDED IN PLAT B~O1C 1 PAGF 3, PUBUC RECORCIS OF PALM 6EACH COUNTY, 12OR1DA, eErNG ~4D FEET WEST pF A110 ADJACENT TO TfE FOLLOWING oESewam Lrfv~ G'aMlr1E1VC'NG AT THE NORTHEA,57' Cp!?iVER pF SAAID PLAT QF ATLAIVrIC PLAZA; THENCE 589°5875"W., ALdIYG THE NORTH LINE QE SAID PLAT QF ATLANTIC PLAZA, A DISTANCE QF' 22T T8 FEET T4 THE PAINT OF BEGIM~NG,• THENCE 5.D°4Q'OO`~, A D15TANCE nF 359.01 FEET TQ R PAINT OF' CG9`~YA TLRE CpNCA IrE Td THE NORTHWEST HA PING A CE7VTRAL ANGLE OF 3~6°3325" AII~D A 14AD1U5 OF 205.00 FEET.• TJ-ENCE Sa'1THWES7ERLY ALONG T~ ARC OF 5A1D CLA'~VE; A DISTANCE OF T3Q 80 FEET TO A POHVT' OF REVERSE C(.64VA TUf2~' COIVCA YE TO THE SOUTHEAST HA 1~lNG A CENTRAL ANGLE aF 35°33'25" AND A RAD1U5' aF TS5.On FEET; THENCE SQUTHWESTFRLY, ALONG THE ARC C~ SAID C[~4YE, A DISTANCE ~ 105.28 FEE7;• TINGE SO°OD'Op`~:, A D15TANCE pF 25QO FEET TO A PRINT pN TIC SOUTH LINE OF 5AlD ATLAIVT7C PLAZA AND A POINT ON THE NORTH LIFE pF EAST ATLANTIC A 1~EIVLE A5 fVOW LAID ^UI~ AND IIV USE A14D TJ-E 7ERh~'IVIJS PAINT OF SAID EASEMEM. T}tE SIDE LINES OF SKID EASEMENT T4 BE ExTENOED DR SFiDF?TEI~D TD MEF!- AT ALL ANGLE POINTS AND TO TERM4'NATE AT THE NORTH AND SOUTH LIKES pF SA1D PLAT OF ATLANTIC PLA~4 AND 7 f~E WESTERL Y PROJECTION pF 71~ SOUTH LINE OF SAJp PLAT OF A TLANTIC F'LA,ZA. PAUL D. EIYGLF SURUEYOf2 & MAPPER #57D8 DATE.• JAN. 23, 2tl09 D'BRIEN, SUITER & n6RlEN INC CERTIFICATE OF Al1THORI~A TION #LB353 SURVEYOR AND MAPPER IN RE5PdN51BLF CNARGE~ PAUL Q_ ENGLE 955 N.W. 17T'H AVENUL. 5YJ17'E 1C1 DELRA Y 6EACH FLORIaA 33445 ORDFR N0. d4=T64 7TH A I/E' RE-ALIGM~44~7VT C58J~ 276-45D1 {55]) 732-3279 EXHIEIT "D" Certificate a#~ 5ite Plan Certification 8547139692-Qifi CurrenV135fi5008v3 02Ji31260912:b4 FM Prepared by and upon Recording Return to. Stuart `1'. Kapp, Esq. Proslcauez- Rase LLP 2255 Glades Road Suite 34~ West Hoca Ratan, Florida 33431 CERTIFICATE QF SITE PLAN CERTIFICATION THIS CERTIFICATE OF SITE PLAN CERTIFICATION (this "Certificate") is issued as of the day of , ?t]09, by , Director of the City of Delray Beach Planning and Zonitag Department, whose address is (the "Planning and Zoning ]~epartnaent"}, WI'1'NE55ETH: 1~VHEREAS, this Certificate is issued pursuant to Section 2 of that ccrtaizx Declaration of Reserved Rights and Agreement Nat to Encumber the Abandoned Alley, dated as of 2~D9, between the City of I]elray Beach, Florida (the "Ci~t +"}, Freecar In~estmerzts, Inc., a Florida corporation, Atlantic Center, Ltd., a Florida limited partnership, CDS ASI Building, Inc., a Florida corporation, CDS ~5, LLC, a Florida luniteti liability company and CDS Gas Station, LLC, a Florida limited liability company [collectively, the "Developer"}, recorded in Official Records 13aolc ,Page of the Public Records of Palm Beach County, Florida [the "Declaration of Reserved Rini"}. The Declaration of Reserved Rights encumbers that certain alleyway more particularly described as follows ("Abandoned Allev"): See Exhil}it "A" attached hereto and made a part hereof. NQW, THEREFORE, in accordance with the Declaration of Reserved Rights and in consideration of the sum of Ten Dollars [~1~.~4}, and other good and valuable consideration the receipt whereof is hereby acknowledged, the Planning and Zoning Department hereby states the following: I. The foregoinb Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. The undersigned is the director of the Planning and Zoning Department far the City of Delray Beach and has z~eviewed the Developer's site plan. 3. This Certificate satisfies that certain requirement set forth in Section 2[c)[iii) of the Declaration of Reserved Rights which provides, in part: The Developer shall evidence that the Developer has satisfied the Site Plan Certification Condition by recording in the Public 1 854717969P-476 ~urrenb'13F~32fi4v7 Q21T3~~OO90i:Q2 PM Records of Palm Seach County, Florida a certificate issued by the Planning and honing Department confirming that the Developer has obtained certification of the Developer's site plan by the Site Plan Certification Deadline. 4. AlI terms not defined herein shall have the meanings set forth in tlTe Declaration of Reserved Rights. [SIGI~IATC]RE PAGE F4LLa~~S.] 8547fi9592-016 Currentr13fi032fi9v~ U?J13~20090t:02PIN 1N WETNESS WHEREOF, the Planning and Zoning Department hereby executes aid deli~~ers this Certificate as of the day and year first above written. WITNESSES: PLANNING AND BONING DEPARTMENT: (Print Name) (Print Name) STATE QF COUNTY QF Sy: ,Director The foregoing instrument was acknowledged before me this day of 2DD9, by ,the Director ^f the City of Delray Beach Planning and Zoning Department. He15he is personally known to me or has prflduced (type of identification} as identification. Sia afore of Pezson Taking Aclmawledgm~nt 5547,"]9692-Di6 CLrrent+13fi032GDv1 U2J13+2UD941:U2PM EXHIS I.T "A" to llic: C~yrtifiaata of Site Plaar CertificatiUn Al3andaned AIlev 8547f19fi92.41fi GurrenV13fi032bOv1 02l13r2D09 Q1:42 Pfd SKETCH 4F DES~RIPTI~N ~XI~lE1T ,:~ .. SHEET 1 OF 1 ~ NQTES• TIC'S 15 NDT A 5[Il4vEY '`~ LDT 11, BLACK 1~6 1&0' ~ ~ 5' ~°~ r3o.a~y ~~- w a~ ~ ~ m 16' PLATTED ALLEY RIGHT nf' WAY ~ Q AR~"A = 2,081 SDUARE ~ ~ p ~ ~ E~ ~~ FEET h~QRE OR LESS ~'~,~; ~ ~ ~ ~ ~ ~ 5' (~+~ LDT 20 LQT 21 LOT 22 BL4CfC 11fi 9LOCK 1~ ELDG'fC 116 o IvoRm RI~Hr of wAY Lm~ F>gsr a r~,anmc a vFNUF flESCRiprlon~ ALL THAT PORTION OF THE EAST WEST 16 FnOT ALLEY RIGHT PAUL D. ENGLE QF WAY LYGVG SDU7N DF AH,D ADJACENT TD LDT 11 BLOGYC SURVEYQR & MAPPER 5708 11fi, TOWN OF L1IVTDIV NOW DELRAY BEACH}, ACCORpING Tn T1-IE PLAT TI-lEREDF A5 RECORDED IN PLAT 8o0If 1, PAGE .~ PUBLIC RECORDS Or PALM BEACH COLWTY, FLORJDA, D.arF• JULY 9, 2QOS LESS 7NE WEST 5.D FEET 77-IEREOF FDR ADD1170NAL RQAD 06RIEN, SLATER & D'9RIEN, INC RrcHr of wA r ~oR us r~~HwA r NQ ~ CERTIFlCATF pF' AUTHURI2ATION Ls~~~ SLH4VEYL]R AND MAPP~'R IN RFSP~NSI9LE CHARGE.• PAUL C?. ENGLE 955 N, W. 17TH AVENUE, SUf TE KI DELI~AY BEACH FLORIDA 33445 QF2DER NQ 04-~64 PARCEL 4 ALLEY ABANDQIId+~ENT (561) 276--45C1 (56]) 732-3279 p. ~, n. o: ~~ N. K. ~~ ~~ a ~, ^~ LAS ~; x~ ~: 51~ETGH OF DES~R~PTI~N EXhY81T 'A" SKEET ~ OF ~ W N.E:~ SST STREET U ~ a irs o u-i `~ N.89°58'~7'E ~~. ~~r NOTES• IVORTN ~~ BLOCfC 116 ThCS JS NOT A SURYEY o ~ ~ = cENrERL1NE ~ ~ j ~ ~ ~ j TIC NoRTFi Lrn~' Df eLacK 116 15 A55L.6~1~'D TO BERR N89°58'47`E ~ ~~ J~ ~ aQ ~~ o~ ~o a ~o~;a~ ao p Q ~I] p •~ `,,~ a ~ ~ ~ V 7 h II ~ ~ D~ ~~ D~ m IVOR~J RIGHT of wA r un,~ ~ us~oa aa'~ o SOUTH LINE ~ a ~ BLDCff r16 ~- EAST A TL~4NT1C a vENUE oESCRrra~rdly ALL THAT POR77C)N OF Th1E 11+ORTN 50UTH 16 FOOT ALLEY PAUL D. FNGLE RIGHT OF WA?` LYING IN BLOGif 116, TOWN OF u1VTO1V SNOW SURVEYOR & MtiPPER X5708 DELRA r BEACH}, ACCnRD1NG TO THE PLAT THEREOF RS RECORDED HV LA ]" BOOK 1, PAGE 3, P[~49L1G' RECORDS OF PALM BEACH COLWTY, FZOWDA, LE55 Tf-~ SOUTH 7.O FEET DATE- JULY 9, 2a0S Tl-~REOF: 09f?J~'N, SUITER & 4'BRIEN, IIYC CERTIFICATE OF' AUTHORIZATION ~LB353 SURVEYOR ANp MAPPER IN RESP NSIBLE ChG4RGE.• PAUL 0. FNGLE 955 Ik W. 17TH AVENUE; SU1TE K7 ORDiR N4 0~-16~ PARCEL 5 A6AII~OIIdL1FNT ^ELRAY 6EACH FLQ121C)A 3345 {561 276-4501 {SS]) 732--32'9 E~HIB iT "E" Ce~ti~cate of Construction to the "No Tumin Back Pnint" 8547!19692-Q3fi CurrenN13565U08~ a2I13l20a9 #2:nk PM Prepared 1}y and upon Recording Return to: Stuart T. i~app, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 3343 l CPR`1'1FiCA'1'~: C7F CF3NSTRI3CTlC3N Tt7 THE "ND TURNING BACK POINT" THIS CERTIFICATE OF CGNSTRUCTION TD THE "NO TURNIl+TG {this "Certificate"} is issued as of the day of 2QQ9, by City Fngizleer fQr the City ^t Delray Beach, whose address is "City En i~ Weer"}. VdITNESSETH: [the WHEREAS, this Certificate is issued pursuant to Section 2 of that certain Declarationx of Reserved Rights and Agreement Not to Encumber the Abandoned Alley, dated as of 2Qa9, between the City of Delray Beach, Florida (the "City"), Freecor Investments, Inc., a 1~lorida corporation, Atlantic Center, Ltd., a Florida limited partnership, CDS AS] Building, Inc., a Florida corporation, CDS ~5, LLC, a Florida limited liability company and CI75 Gas Station, LLC, a Florida limited liability company [collectively, the "Developer"}, recorded in Official Records Bank ,Page of the Public Recaxds of Palm Beach County, Flaxida (the "Declaration of Reserved Rights"}, The Declaration of Reserved Rights encumbers that certain alleyway more particularly described as follows {"Abandoned Allev"}: See Exhibit "A" attached hereto and made a part hereof. NOW, THEREFORE, in accordance with the Declaration of Reserved Rights anti in consideration of the sutra of Ten Dollars ($IO.OQ}, and other goad and valuable consideration the receipt whereof is hereby acknowledged, the City Engineer hereby states the following: 1. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. The undersigned is an engineer for the City of Delray Beach and has reviewed the construction of Relocated 7''' Avenue. 3. This Certificate satisfies that certain requirement set forth in Section Z(c}[iv} of the Declaration of Reserved Rights whicll provides, in part: The Developer shall evidence that the Developer has satisfied the Na Turning Back Coxidition by recording in the Public Records of Palm Beach County, Florida a certificate issued by the City BACK POIItiIT" 854TI19692•D16 Currer~1136fl2877vi 02113l2U0901:OZPM Engineer confirming that Relocated 7`'' Avenue has been constructed to the hfv Turziizzg Back Poizit by the 1Vu Tumirzg Sack Deadline. 4. Alf teams not defined herein chaff have the meanings set forth in the Declaration of Reserved Rights. ~SIGN'ATURE PAGE FOLLOWS.] 2 8547l1969Z-016 CurrenV13802877v1 42r13r200901:p~PM 1N WITNESS WHEREGF, the City Engineer hereby executes and delivers this Certificate as of the day and ycar first abo~c written. WITNESSES: {Print I~Iame] (Print l~Tame) STATE OF C:[~UNTY [~F CITY ENGINEER: City Engineer, City of Delray Beach Tl~e foregourg instrument was acknowledged before me this day ^f ZO~g, by ,the City Engineer for the City of Delray Beach. HelShe is personally known to me ar has produced (type of identification} as identification. Signature of Person Taking Ackno~vledgrnent 8547119692.4}5 Currentli35G2877v1 02J13'2U090t:Q2Ph1 EXHIB I'I' `'A" to the Certificate of Construction to the "Na Taming Back Paint" Abandoned Alley 8547f39692-07fi CurrenVt3642877v1 42l13r2d4941:42A~1 S~ETGH ~F DFSCRIPTION EXhNBI F 'A" SHEE7" 1 aF 1 NDR7N LINE BLOCK 115 ~.~ ~sT srr~T U ~ a `~`' 11L89°58'47'E 16.00' NOYES- ThGS 1S NOT A SURI/EY ~,L711TFRLINE THE NORrH LINE nF BLOClf 116 15 A55[.6h~D TD BE,4R N89°58'47' ~: $, ~~ ~1 ~~ ~'; ~: a ~, o; v. J~ ~' ~; a; ~ ~ ~~ ~ ~ ~ 1'C~7 ~~ J~ Oo ~ ~ ~e ~ ~D ~ ~ q'`? a ~ ~~ ~ ~~ w U4 ~~ U~ ^~ D~ r~rx Rrcl-!r aF WA Y LINE `soUrH uJ~ BLOCK !!s EAST ATLANTIC A 1lEIV(JE DESCR1P17~N.- ALL THAT PGV4T10N OF ThE NQ4TH-SOUTH 16 FQQT ALLFY R1GHT qF WAY LYING IN BLOGYC 118, TOWN ~ LINTCIV IYCW DELRAY BEACH, ACG~RDIIYG TO THE PLAT 17-~REOF S RECOR~EO 1N A 1" 80p1f 1 PAGE 3, PUELIC REC0141?S QF PALM BEACH CO2JNTY, FLORIDA, LESS rJ-~ Sn(IrH 70 FEET THERECF_ PAUL D. EIVGLE .SURVEYOJ? & A4APPER 5708 DATE;• JULY 9, 2408 .7JJ rv, ~r, r~rr+ nr~rrVG, ~Vr~c Ilr DEFRAY BEACH FLQRI A 33~4~5 ORDFR 1V0. 04-184 PARCL'L 5 ABANDO1~i+l~iENr (561) 2T6--450] {561 732-3279 W ~ NOTS's- ~' T1~s 1s naoT A suRVEY -~ Z Lor r~ eLOac ~~ r~.o• ~' 13~ ~4 W W ~ ~- ~ ~~ ~ ~ ~' rfi' PLA 1'TED ALLEY R1GNT OF WAY ~ ~'~ AREA ~ 2,D8~ SChJARE ~ ~ ~ ~o J ~~ FEET MORE OR LESS ~' ~ ~ ~ Q ~ ~ 13q.~Q' ~ ~ ~Z ~$' ~ Lor ~o LoT ~~ Lor .~z aLOa~c ~~ eLOCIf ~~s BLOCK r~s ~i NoRrH R1cxr of WAY uNE E'AST' ATLANTIS A VENUE ^ESC>~1Pr~an~ ALL THA r 1=oRrrDnr of THE EAST-wESr ~s Foor AL~.EY Rrr~r OF WAY LYING SdfJTH OF Alm ~IDJACFNT l4 LDr 11, BLOCK X15, TOWN CF LIIVTOIV (7VOW DELRA Y BEACH, ACL'ORDING TO THE PLAT ThE'REOF A5 RECORDED 1N PLAT BQOfC ]PAGE 3, P{lBC1C RECORDS OF PALM BEACH CC7C~lTY, FLQRIDA, LESS THE WEST 5.0 FEET THEREOF FOR ADDITIOIUAL ROAD RIGHT OF WA Y FOR U.S h4'CNWA Y ND. 7. PAUL D. ENGLE 5[JRI/EYQR & MAPPER ~`5TO8 oA rF~ ~u~ Y s, 2ooa EXHISI7' "F" Certification of Termination and Release 8547,'19682.016 Current't3565008rf3 07113J244912:04 PM Prepared by and upon Recording Return ta: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 34o West Boca Raton, Florida 33431 CERTIFICATIChI CF TERMINATIGN AND RELEASE TH1S CERTIFICATION QF TERMINATIQN AND RELEASE {this "Certification"} is made as of the day of 2d,.r (the "Effective Date"}, among the CITY GF DELRAY BEACH, FLaRIDA (the "City"}, and FREECCR INVESTMENTS, INC., a Florida corporation, ATLANTIC CENTER, LTD., a Florida limited partnership, CDS AS]' BUILDING, INC., a Florida corporation, CDS 45, LLC, a Florida Iirraited liability company and CDS GAS STATION, LLC, a Florida limited liability company (collectively, the "Developer"}. WITNESSETH: WHEREAS, this Certification is issued puxsuaxat to Section ~[h) of that certain l7eclaxation of Reserved Rights and Agreement Not to F..ncumber the Abandoned Alley, dated as of ___ , 209, between the City and the Developer, recorded in Official Records Baak ,Page of the Public Records of Palm Beaclr County, Florida ~tlre "Declaration of Reserved Rights"). The Declaration of Reserved Rights encumbers that certain alleyway moxc particularly described as follows [the Abandoned Alley"}: See Exhibit "A" attached hereto and made a Bart liereaf. lll[3VN, "l'HI~1ZEl~~QRF, in accordance r~~ith the 17eclaratinn of Reserved Rights and in consideration of the sum of Ten Dollars [~ 1 a.0~}, and other goad and valuable consideration the receipt whereof is hereby acknowledged, the City and the Developer hereby agree as follows: 1. "1'he foregoing Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. 2. The City and the Developer hereby terminate the Declaration of Reserved Rights as ^f the Effective Date [the "~1'ermination llate"}- The City and the Developer confirm that all terms and pror~•isions of the Declaration of Reserved Rights have been satisfied and that as of the Termination Date, the Declaration of Reserved Rights shall be null and void and of no further farce or effect and shall l7e cancelled of record. 3. As a result of the termination of the Declaration of Reserved Rights, the City's Reconveyance Right is hereby texxninated, released and of na further force and effect and the Developer shall no Longer have any obligation to xeconvey the Abandoned Alley to the City. 1 6547f19692.Ot6 CurrenUi3602558v1 07J1~0941:02PM 4. All terms nat defined herein shall have the meanings set faith in the Declaration of Reserved Rights. [SIGN'ATURE PAGES FQLLQW] 7 8547199692.096 Currendi36~255Bv1 Q?1f3I2D09 ~9:U~ P!~ IN WITNESS WHEREOF, the panics hereby execute and deliver this Certification as of the Effecti~~e Date. ATTEST: Sy: City Clerk CITY QF DELRAY BEACH, FLORIDA Approved as to Foi7n: By: City Attorney STATE 4F C~LIN~i'Y C]F By:_ Name; ItS: The foregoing instrument was acknowledged before me this day of , ~~_, by ,the of the CITY ~F DELRAY BEACH, FLORIDA. HeJShe is personally known to me ox has produced (type of identification) as identification. Signatuxe of Person Taking tLcknowledgment 85G7119692•~16 Currenf1136~P558v1 02113I2at190]:fl2PA+f W]T'NESSFS: Print Name: Print Name: STATE OF } } ss: COUNTY OF } FI2EE(:UR INVESTMENTS, INC., a Flarida corporation S y: Print Name: Title: The foregoing instiurx;<ent was acknowledged before me this ,~ day of , 2a,_,,, by ,the of FREEC~R INVESTMENTS, INC., a Flarida corporation, on behalf of the ci,rparation. He1She is [check one} personally known to me or has produced as identification. {SEAL) Nratary Public Signature Print Name State of Commission Nc.: My Cflmmission Expires: at Large 854P,'1989~-~1fi Curren6'13fiU2558vi OP113~2Ufl90€:~2 PA4 ATLANTIC CENTER, LTD., a Florida limited paz-tx>.ership Print N axne: Print Naxne: STATE 4F ] } 55: cauNT~ ~F } B y: Print Narrte: Title: The foregoing instrument was acknowledged before me this _ clay of , 2~~, Uy ,the of Atlantic Center, Inc., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Flaricla limited partnexship, an behalf of the partnership. He1She is (check ones personally known to me or has produced as identifieatiQn. (SEAL} By: Atlantic Center, Inc., a Florida corporation, its general partner Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8541119692.416 Cureenf1135Q2558ui Q2l1312009 U1:Q2 PA+i GDS AS.I Bi]ILDIl\~G, II~IC., a Florida corporation Print Name: Print Name: STATE aF ~ } ss: COUNTY GF } ay: Print l~lanae: Title: The foregoing instrument was acknowledged before me this day of , ~0_, ley ,the of CD5 AS] BUILDING, INC., a Florida corporation, on behalf of the corporation. He1She is {check ane} personally known to me or h.as produced as identii=lcation. Notary Public Signature {SEAL) Print Narne State of C~II]I1t155I~I1 NO.: My Commission Expires: at Large 8547,'1592-916 Currentl13fiU2558v1 U2J13+2U09 d1:d2 PA9 CD5 45, LLC, a Florida limited liability Gnmpany Print Name: B y:_ Print N Title: Print Name: STATE QF } S5: COUNTY QF ) The foregou~tg i~isti~t~~ea~t was aclviowle~lged before me this _ day of , 20_, by ,,,,,,,.,. ,the of CDS 45, LLC, a Florida limited liability eampaxxy, on behalf of the company. He1She is (check one} personally known to nne or has produced as identification. Notary Pu61ic Signature SEAL} Print Name State of Commission No.: My Commission Expires: at Large 85471f9592-016 Currenfl~3642558v1 02J13fP0090t:42PA1 CD5 GAS STATIQIV, LLC, a Florida linuted liability company Print Name: Print Name: STATE DF COUNTY ~F } } ss: } B y: Print Name: Title: The foregoing instrument was acknowledged before me Ibis _ day of 2a_, by ,the of CDS International Realty, LLC, a FIorida lizxaited liability company, the manager of CDS GAS STATION, LLC, a Florida limited liability company, nn behalf of the company. He1She is {check one) personally known to me or has produced _______ as identification. 14otary PuhliG Signature SEAL) S y: CD5 International Realty, LLC, a Florida limited liability company, its manager Print Name State of Commission No.: My Commission Expires: 3 at Large 854711969-aifi CurrenG'~3802558v1 Q211~'2009 Di:02 PSI EXHTS IT "A" to the Certification of Tcrnnination and Release Abandoned Alley 8547~`f9E92-Q16 CUrrentl13fi0~550v1 0?113'2f109 (73:02 PA4 ._._._.__._.________._.__......................_.._.______._._._____.._.______._.___.__ .......................________._____________................_._._.... ____. _. _. :I S I.. N.E. SST STREET' ~ ~~~~~~~~~~~._ w ~, U ~ ~ O 1~ ~~~ NdTES• NDR7N LINE 77-5' IS 11~)T A SURVEY BL~CfC 11F ~ -- CENTERLfNE rr~ NoRr~r LrIVF ~F ~oelc ~1s ~ ~ ~ ~ ~` j 15 A55[~CJ TD BEAR N.89°58'47'x: ~~ ~~ ~~ ~~ w ~W~~~Ww ~~ ~~~~~ ~~ o~ ~~~~~ ~--0 if .~~ ~ ~}~ ~~ ~~ ~,~ O ~. o i. m NORTH RIGHT dF WAY LINE ~~-SOUTH LINE a BLDCff 716 `~ EAST ATLANTIC A VENUE oESCR~PrIOrv~ ALL THAT PQR770IV aF 77~E Md~4TN-SQIJTN f5 FOpT ALLFY RIGHT' OF WR Y L Y1NG IN BLOCk 116, TOWN DF UNTaNI (II~W DEL,4AY BEACH ACCORDING TO THE" PLA7~ 7]`~REQF A5 RECORDED IN PLAT BDO{C 1, PAGE 3, PL~LIC RECORDS OF PALM BEACI-f COUNTY, FLUR-DQ, LESS TJ~ 5O{JTH 7.C FEET THEREOF. PAUL D. ENGLE' SURVEYOR & MAPPER ~`57Q8 OA TF.• JULY 9, ,20Q8 { 8. ~; ~; ~; ~~ ~: ~~ ~! 1 ~: ~; ~, ~; ~; w~ w: C7 ~; 3 s ~n r~r~www~ W U NDTES- ~ ThPS IS 1VD~' A S[A41IEY 0 LOT 17, BLOCK r16 pf;.p~ aA T3~ QQ '~ ~. ~ ~ ~' I " 76' PLATTED ALLEY RIGf•IT DF WAY ~ ~ AREA = .~p81 SQCI,4RE ~ ^ ~ a ~ I ~~`~ FEET ~E oR LESS gay ~ ~ ~o ! ~' ~ ~ ~ ~ 13~.~D' ~ ~ ~~ e i LoT ~o LoT ~r Lnr ~z eL~cx 1rs aLOCx ~~ BLpcx 11fi ~i ~' Q Ivpr~rN ~ICNT of WA r Lrn~ Fair ~ r~~aNric ~ ~~ oESCRrPTronr. ALL THA F PpR7rpIV pF THE EAST-WEST 16 FOOT ALLEY +4rGHT OF WA Y L PING SpUTH OF ANO ADJACENT TD L DT 1 ~ BLOCrC 116, TOYJN OF LINTDN (NOW DELRA Y BEACH}, ACCORDING TO THE PLAT 77~'REOF AS RECORDED IIJ PLAT Bpprf 1, PAGE .3, PUBLIC RECORDS OF PALM BEACH CD[XVTY, FLDRrDA, LESS THE WEST 5.p FEET Th+EREG~ FpR ADD1770NAL ROAD RIGHT pF WAY FpR U.5 1-A'GNWA Y N0. T. PA(!L D. ENGLE SURVEYOR & MAPPER #5708 DAT~• JULY 9 2008 z :+ i a N• ~; N, ~; qi ~i i u a. ^qq~ J~ ~~ ~: ~: ~: ~~ E { 3 i i ORDER NQ 04--•r6~ PARCEL 4 ALLEY ABA(UDONA~IVT EXHIS IT "G" S1~ecial Warr~ty Deed SS47119692-016 Currenlf135650[lBw3 02J#3120912:04 PM This instrurnentPrepared by and when recorded return to BRIAN ~]IIt.ITT, ESQ. CITY ATTURI~F~Y' S OFFICE ZC]Q N.W. 1 ~ AVE1Vi1E DELttAY f3~:AGH, FLUHIUA 33444 SPECIAL WARRANTY DEED THIS SPECIAL WARRANTY DEED is executed uy FREECGR INVESTMENTS, INC., a Florida corporation, ATLANTIC CENTER, LTD., a Florida Izrraitcd partnership, CDS AS7 BUILDING, I~l'C., a Florida corporation, CD5 45, LLC, a Florida limited liability company and CIJS GA5 S"1'A'1~101V, LLC, a Florida limited liability company (collectively, "Grantor"} whose address is clo CDS International Holdings, Inc., 3299 N'.W. 2°d Avenue, Soca Raton, Florida 33431, and is delivered to CITY OF DELRAY BEACH, a Florida Municipal Corporation ("Grantee"), whose address is l0a N.W. IS` Avenue, Delray Beach, Florida 334.44. [Irantar, for and in consideration of the si~rrr of TEN & 1VGI1Q0 DGLLARS {$IQ.OQ) and other good and valuable consideration, paid to Grantor by Grantee, the receipt and sufficiency of which are hereby acknowledged, grants, Bargains, Sells, quid conveys to Grantee and Grantee's successors and assigns forerrer, that certain parcel of land., situate, lying and being in Palm Beach County, Florida, described in Exhibit "A" attached hereto and made a part hereof {the "Property"); Together With all easernerrts, tenements, lrereditaments, and apprrrtenances belonging to the Property; and Toge#her With all buildings and other impra~exnents now ar in the future located on the Property; and Together With ail of Grantor's right, title, and interest, if arty, in and to the streets, aUenues, roads, ways, alleys, waterways, and canals, Open and proposed, in front of or adjoining the Property; To Have Arid Tv Hvld the same ill fee simple forever. This conveyance is made subject ta: [a) Taxes for the year 209 and subsequent years that are not yet drte and payable; {b} Applicable zoning ordinances and restrictions; and {c} Conditions, restrictions, reservations, limitations, and easements of record, which are not reimposed by this deed. 55471]9f92.47fi GurfenVT3564E25v1 021]3d2U09 I2:17 Ph+i Grantor covenants that at the time of delivery of this deed, except as described above, the Property is free of arty encumbrances made by Grantor, and Grantor specially warrants the title to the Property, and will defend it against the lawful claims and demands vt all }~ersvns claiming hy, thxvuth or under Grantor, but against nano vthcr, SIGNATURE PAGES FOLLOWS] 2 85471T9692.Oi6 Currer~V13564225v1 fl21i3f20U91~:17 PSI 2~ Grantor has caused this instrument to be duly executed an , Signed, sealed and deli~~ered in the presence af: FREEC4R INVESTMENTS, INC., a Florida corporation Print Name: Print Name: STATE C]F cauNT~r of 5S: gY= Print Itif ame: Title: ^ . The foregoing instrument was acknowledged before 1ne this _ day of , 2I1_, Fey ,the of FREECaR INVESTMENTS, INC., a Florida corporation, an 6eha1€ of floe corporation. HelSiie is (check ozze} persai;ally kaiowii to me ar has produced as identification. lKotary Public Signature {SEAL} Print Name State of Commission No.: My Camnaission Expires: at I.,arge 8 5 4 711 96 92.416 C~rrranY13564225v1 Q?~'731200512:17 PM Print Name: Print Nance: STATE CF } } ss: COUNTY OF ~,_ } B y: Print Name: Title: The foregoing instrument was acknowledged before me this ,,,~ day of , 2~„_,, by ,the of Atlantic Center, Inc., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership, on behalf of the partnership. He1She is {check vne} personally luiowii to me ax has produced -.. as idcntificatinn. Notary Public Signatr,~re (SEAL} ATLANTIC CENTER, LTD., a Florida limited pdrlnexship 8y: Atlantic Center, Inc., a Florida corporation, its general partner Print Name State of Commission Na.: My Carrunissian Expires; at Large 8547119692-~ifi CurrenE~13564225v1 021i312~9 12;17 PIN CDS AS.r SCRLTlING, INC., a Florida car~oratiozz By: Print Name: Print Name: Title; Print Name: STATE 4F ) } ss: CQUN"1`Y OF } The foregoing instrument was acknowledged before me this ,, day of , 2~_, by ,the of CDS AS7 BUILDING, INC., a Florida corporation, on behalf ^f the cnzParatic~n. He1She is (check one} personally known. to me or tzas produced. __,_ as identification. (SEAL} Notary Public Signature Print Narrze State of Commission No.: My CpIilin155zoSA Explre5: at Large 85471i9fi92.036 Cur~en1f43564225v1 821]3l20~9 X2;17 PM CDS 45, LLC, a Florida limited liability carripany Print Name: gY= Print Name: Title: Print Name: STATE ~F ) ss: CQUNTY DF T ~ ) The foregoing instrument was acknowledged before me this ~ day of , 2D_, by ,the of CI]S 45, LI_C, a Florida limited lialility company, an behalf of the company. He1She is (check one) ~_ personally known to me or has produced as identification. Notary Public Signature {SEAL) Print Name State of Carnmission Na.: My Commission Expires: at Large 8547119892-018 Gurreril113584225v1 a~'13J20Q912:1 T Pfd CDS GAS STATIOhT, LLC, a Florida linnited liability company Print Nazx-e: Print Name: STATEt7F cauNTY of ) ss: BY= Print Name: Title: The forcgaing instrument was acknowledged before me this ^ day of , 24_, by ,the of CDS International Realty, LLC, a Florida limited liability company, the manager of CDS GAS STATIGN, LLC, a Florida limited Iiability company, on behalf of the company. He1She is {check one) personally known to me ^r has produced as identification. Notary Public Signature {SEAL} By: CDS International Realty, LLC, a Florida limited liability company, its manager Print Name State of Comrnissian Na.: My Commission Expires: at Largc 8547119692-016 Curren1~13564225v1 0T113r2UD91P:T7 PM EX~IIBIT "A., The Fraperty 8547!19692-416 CurranVi3584225v1 02l13+2D0912:#7P~A i s ~ ~ q~~ ry~ ~i ~! ~~ N; ~; !. ~~ ti ~~ ~~ a ~~ ~; a. ~: a ~~ i ~; ~, ~? v; ~t W` r~V; rV^ '-' ~ ~ 5' ~~ ~~~ ~~~~ ~~ ~~~ >` ~ ~ 5' DESCRIPTIOl1~• LoTlI,eLOCx116 ~~' 73~ Cpl]' ~~ l6' PLATTED ALLEY RIGHT OF WAY AREA - .x,081 SQ2IARE ~~ FEET -~JQRE OR LESS ~. r3~ ao° LOT 20 ~ LOT ~1 ~ LOT ~~ BLOG]C lr~ BLOCx l16 BLQCx r16 ~~ 0 ~ nroRr~r R>cr-rr of wa r Lmr~ FAST aT~An~ric A vF~vuF ALL THAT PORTION DF THE EAST WEST T6 FOOT ALLEY R1GNr QF WAY L YING SOUTH OF AND AaJACENT TO LQT 11, 6LDCIC 1f6, TOWN OF" LJNT'ON (NOW DEL4A Y BEAGW}, ACC4R!]lNG TO THE PLAT THEREOF A5 RECORDED !N PLAT 800x f, PAGE 3, PUBLIC RECORDS OF PALM ~ACN COL9'VrY, FLORIDA, LE55 ThE WEST 5.0 FEET THEJ4EDF FOR A[3D1170NAL ROAD R1GNT OF WAY FOR U.S 1~4"GHt~~A Y I~lQ 1. w~ J ~~ ~~ ~~ .~ PAUL D. FNGLE SURVEYOR do MAPPER 5708 QATF.• JULY 9, 2Q08 ORDER NO. 04-164 PARCEL 4 ALLEY A9AI16~pl~lr,EIV7' (55]) 276~45p]• (56]}}•732--3279 F,XHIB IT "H" Escrow A~c~eemeait 8547!19692-016 CurrenV13565U08~I3 Li2113r2pQ812:fl4 PA+f ESCRpW AGREEMENT TffiS ESCROW AGREEMENT (this "Agr'eement") is ;Wade and entered into as of this day of February, 2009, by and betvti~een the CITY OF DELRAY D1ACI-I, a Piarida Municipal Corporation (the "Ci r"), ATLANTIC CENTER, LTD., a Florida ]united partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership (collectively, the "Developer"} and STEVEN D. RU131N, ESQ. ["Escrow A eg_nt"). (The City, Developer and Escrow Agent are sometimes referred to herein individually as a "Par1Y," and collectively as the "Parties.") RECITALS: A. The City and the Developer axe parties to that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7'~' Avenue dated as of February 17, 2009 (the "Declaration of Reserved Ri hts . Pursuant to the terms of the Declaration of Reserved Rights, 1~ the Developer fai1S td timely Satisfy the Development Conditions (a5 5t1Ch terrxz rs defined In the Declaration of Reserved Rights}, the City has the right to cause the Dcvclapcr to recanvey Vacated 7"` Avenue and the Abandoned Alleys to the City (the "City's Reconveyance l~g~t"}. B. To secure the City's Rewnveyance Right, the Developer has caused to be executed and delivered to the Escra~v Agent: (i} a fully cxccutcd special warranty deed for Vacated 7'a' Avenue; and (ii} a fully executed special warranty deed far the Abandoned Alleys, both to be held in escrow with Escrow Agent [collectively, the "Deeds"}. C. Escrow Agent is willing to hold the Deeds in cscrow in accordance with the terms and conditions set Earth in this Agreement. NUW, THEREFORE, in evnsideration of the nnutual covenants set Earth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby aclcnawledged, the City, Developer and the Escrow Agent hereby agree as follows: 1. Recitals and Ca>citalized Terzus, The foregoing Recitals are #rue and correct and are incorporated herein by this reference, as if sct forth in their entirety. All initial capitalized terms used, but nflt defined, in this Agreement shall have the meaning set forth in the Declaration of Reserved Rights. 2. Receipt and Degasit of Dccds. By its execution and delivery of this Agreement to the City, the Escrow Agent hereby acknowledges that it has received the Deeds from the Developer. 3. Recordation of Deeds. If the Developer fails to timely satisfy the Development Conditions and the City properly and tizuely exercises the City's Reconveyance Right, then upon the City`s written x3otice to Escrow Agent and the Developer stating that the City has prapexly and timely exercised the City's Reconveyance Right, the Escrow Agent shall prarnptly record the Deeds in the Public Records of Palm Beach County, Florida. Escrow Agent shall promptly deliver a copy of the recorded Deeds to the City and the Developer. Following delivery of the 8547199692-096 Currentl935ti6918v2 D2J13f2009 42:47 Ph7 recorded Deeds tv the City and the Developer, the Escrow Agent shall thereupon be xeleased and discharged from. any f~-irther duty ar ah[igation hereunder. 4. Casts and Expenses. The Developer agrees to reimburse the Escrow Agent for all casts grid expanses incurred by the Escrow Agent in serving as Escrow Agent hereunder, including, but not limited, reimbursement for a[1 fees in cannectian with recording the Deeds. 5. Compliance with Court Drders. Escrow Agent is acting as a staltieholdex only with xcspect to the Deeds. If there is any dispute as to whether Escrow Agent is obligated to record the Deeds, Escxaw Agent may refuse to crake any retardation and may continue to hold the heeds until receipt by Escrow Agent of an authorization in writing, signed by the City and the Developer, directing the disposition ^f the Deeds. In the absezxce of such written auihoricatian, Escrow Agent may hold the Deeds until a final determination of the rights of the parties in on appropriate proceeding yr may bring an appropriate action or proceeding fax leave tv deposit the Deeds in a court of competent jurisdiction pending such determination. Escrow Agent shall be reimbursed far all posts and expenses of such action yr proceeding, including, without limitation, reasonable attorneys' fees and disbursements, by the party deternained not to be entitled to the Deeds. 6. p:xculpation of Escrow Agent. It is agreed that the duties of Escrow Agent are herein specif tally provided and are purely ministerial in nature, arxd that Escrow Agent shall incur no liability whatsoever except for its willful misconduct or gross negligence, sa long as Escrow Agent is acting in goad faith. The City and the Developer da each hereby release Escrow Agent from any liability for any error of judgment or for any act done ar omitted to be done by Escrow Agent in the good faith perf'armanGe of his duties hereunder and do each hereby indemnify Escrow Agent against, and agree tv hold, save, and defend Escrow Agent 1-ra3m~less from, any costs, liabilities, and expenses incurred by Escrow Agent in serving as Esero~~ Agent hereunder and in faithfully discharging its duties and obligations hereunder. 7. Relationship of Parties. The City and the Developer acknowledge and agree that Escrow Agent is actizrg solely as a stakeholder at their request, anal that Escxaw Agent shall oat be deemed to be the agent of either the City or the Developer. $. I~I4t1Ge. Any notice, demand flr rer~uest which may be permitted, required or desired la be given in Goc~crection therewith shall he given in v~~riting and directed to the Gity acrd the Dwncr as follows: As to City: City of Delray Beach 1 ~~ N.W. 1 s~ Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (56l} 278-4755 With a copy to: 2DD N.'~'V. 15` Avcnuc Delray Beach, l?lvrida 33444 Attn: City Attorney 2 85471t9892~18 Currenf11354fi918v2 D2~'1?12008 fl2:47 PPA Facsimile: (561} 278-4755 As to Owner: Atlantic Center, Ltd. clv CDS International Holdings, Inv. 329 N.W. 2'~d Avenue Boca Ratan, Florida 33431 Attn: President Facsimile: (5dI} 278-G930 CDR Atlantic Plaza, Ltd. clo CDS International Holdings, Inc. 329 N.W. 2"d Avenue Boca Raton, Florida 33431 Atari: President Facsimile: 1561} 27$-b930 As to Escrow Agent: Steven D. Rubin, Esq. 98~ Nnrth Federal Highway, Suite 434 Baca Ratan, Florida 33432 Facsimile: (5GI} 347-0$2$ Notices shall be deemed properly delivered and received when and if either (i} personally delivered; or (ii} one ~l) busines<~ day after deposits with United Parcel Service or other overnight courier far next day delivery; or (iii) the same day when sent by canfirnrxed facsimile before S:QQ p.m. (Eastern time}. 9. Successors and Assicns; Third Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the Parties and their respevtive successors and assigns under the Declaration ^f Reserved Rights. This Agreement shall not confer any rights yr remedies upon any person yr entity other than the 1'aaties and their respective successors and assigns under the Declaration of Reserved Rights. I~. Conflict witk- Declaration of Reserved Ri~his. With respect to the subject matter of this Agreement only, if airy of tl~e terms or previsions of this Agreement conflict with, or axe inconsistent with, any terms ar provisions of the Declaration of Reserved Rights, the terms and provisions ofthis Agreement shall control. 11. Gyvernin~ Law; Severabili This Agreement shall be governed by the laws of the State of Florida. If any tcrna or provision of this Agreement is held to be ar rendered invalid or unenforceable at any time in any jurisdiction, such term ar provision shall not affect the validity or enforceability of any other terms ar provisions of this Agreement, or the validity ^r enforceability oI'such affected terms or provisions at any other time or in any other jurisdiction. 12. Waiver oi' Trial by Jury. Each Party hereby waives its right to a trial by jury in any litigation or other court proceeding ]~y any Party against any other Party with respect t4 any matter arising from yr in connection with this Agreement. 8547;79692-076 C-rrentf13546978~1 42l73f2~09 a~:47 Ph4 s I3. Attorney's Pees. Zn connection with any litigation ar dispute arising Out of this Agreement, each party shall hear its awn attorneys' fees and casts_ ~' I4. Cntire Agreement; Amendments #a Agreement. With respcct to the suhjcct rnattcr of this Agreement only, this Agreement sets forth the entire understanding and agxeeznent of the Parties hereto, and shall supersede any other agreerr~ents and understandings (written ar oral} bet<~veen ar among the Parties an or prior to the date of this Agreement. No amendment yr modification to any terms of this Agreement, ar cancellation of this Agreeineirt, shall lie valid unless in writing and executed and delivered by all of the Parties. 15. Facsimile: Counterparts. A Party may deliver executed signature pages tv this Agreement by facsimile transmission to any viper Parties, which facsimile copy shall be deemed to be an original executed signature page; pro~~ided, howe~cr, that such Party shall dclivcr an original signature page to the other Parties promptly therea>:~er. This Agreement may be executed in any number of counterparts, each of which shall 17e deemed an original and all of which counterparts together shall constitute one agreement with the same effect as if the Parties had signed the same signature page. Signatures appear on the fallowing page] 4 8547;19692-016 Curren~I13546918v2 62113f200902:41PM :~ s 1 IN WITNESS WHEREOF, floe City, Developer and Escrow Agent have caused this Agrccment to be executed and delivered in their names by their respective duly authorized o£f cers ar representatives as of the day and year first above written. CITY CITY aF DELRAY BEACH, FLORIDA By:~ Name: Its: DEVELOPER ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc.., a Florida cvrparativra, its General Partaaer By: Print Name: ItS; CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: Delaay Historic, laic.., a Florida corporation, its General Partner By: Punt Name: Its: ESCROW AGENT Steven D_ Rubin, Escl. 8547li9fi92-01fi Current11354fi9'f8v2 42113,~20~9 X2:47 PA4 .roINDER The u~xdecsigned, as the Owners of Vacated 7~' Avenue and the Ahandaned Alleys, hereby exeGUte this ~igreement for the sole puzpose of canf"irming the Escrow Agent's authorization to release and record the Deeds in the event the Gity's Reconveyanee Right is properly exercised. FREECUI~ INVESTMENTS, INC., a Florida corporation Sy: Print Nanne- Title: CDS ASJ BUILDING, INC., a Florida corporation By: Print Nartte: Title: CDS ~5, LLC, a Florida limited liability company By: Print Name: Title: 854719692-0t6 Current~1354fi9~8v2 07J13l2fl4S 42:47 PiN ATLANTIC CENTER, LTD., a Florida limited partnership I3y: Atlantic Center, Inc., a Florida corporation, its general partner By:~ Naane: Title: CD5 GAS STATION, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager By:^ Name: 't'itle: 85471i96S2.016 Currer~fIS354B918~ Q7173l2009QZ:GT PM Exx~rr °~r° Uc~eted 7`~' Avenue Termination Certificate 8547l19B92-016 Cut[enV135$50Q$1~ 02!13+2009 12:04 PSI Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rase LLP 2255 Glades Road Suite 34a Vi~est Boca Ra[an, Florida 33431 RELOCATED 7 "' AVENUE EASEMENT TERMINATION CERTIFICATE THIS RELOCATED 7`~` AVE1~1LiE EASEMENT TERMINATION CERTIFICATE (this "Certificate"} is issued as of the day of 2Q_ {the "Effective Date"}, by the CITY DF DELRAY BEACH, FLORIDA, a Florida municipal corporation in Palm Beach County, State of Florida {the "C1tY"}. RECITALS' A. CDR Atlantic Playa, Ltd., a Florida limited partnership and Atlantic Center, Ltd., a Florida limited partnership (collectively, the "Developer"} is the current owner of fee simple title to Relocated 7`'' Avenue which is legally described as follows: See Exhibit "A" attached hereto and made a part hereof. B. The ^eveloper, as grantor, granted the City, as grantee, certain easements set forth ire that certau[ Easemea~t Agreement, dated , 20x9, and recorded in Official Records 134ok ,Page , of the Pu61ic Records of Palm Beach County, Florida {the "Easement Agreement"}. C. The City desires to terminate the Easement Agreement as set forth in this Certificate. 1~OVY, THEREFORE, in cansideratian of the sum of Ten Dollars ($10.0U), and other good aizd valuable cansideratian the receipt whereof is hereby acknowledged, the City herei?y states as follflws: 1. The foregfling Recitals are true and correct and are incorporated herein by [his reference, as if set forth in their entirety. 2. The City hereby terminates the Easement Agreement as of the Effective Date (rhe "Termination Date"}. The City confirms that as of the Termination Date, the Easement Agreement shall be null and void and of no further force or effect and shall be terminated of record and that all rights granted to the City under the Easement Agreement axe hereby terminated, 1 8547I79fi92.Oifi CurrenV1354330ovt 07113+2fla9 t2,22 PM Agreement. All terms not defined herein shall have the meanings set 1•orth in the Easement SIGNATURE PAGE FGLLGWSj 2 8547119892.018 Currerd113543300v1 02rt31200912:22 PNf IN W1T1~1E55 Wl-fEREOF, the City hereby executes and deliver this Certificate as of the Effective Date. ATTEST: CITY 4F DELRAY BEACH, FLORIDA H y: City Clerk Appra~ed as t4 Form: S y: City Attvxney 5TATE ~F COUNTY ~F The foregoing instrument was acknowledged bcfarc me this day of , 20_, by ,the of the C1TY gF DELRAY BEACH, FLORIDA. He1She is personally known to me ar has produced (type of identification] as identification. Signature of Person Taking Acknowledgment 13y:_ Name: lts: 8547119692.Otfi CurrenVi3543300v1 02+i3I20Q312:22 PM E~IIS IT ' `A" tc the RGIoGatGd 7 Avenue Termination Certificate ReloeaCed T`~ Avenue 8547!19692.416 Cs~rrenJ1354330Dv1 82113120fl912:22 PM z w a U z NaRTN LrIVE BL DCIC 11fi d ~~ J~ Q~ ~~ 00 ~~ U~ Q~ _N.E. SST 5'Tf?EET _ ~~w ~~~ Qa~ ~'' o ~~m °~ ~. D NcRTH LIrvE P.B. 5D, PAGE 1~9 .a zzr.r8' 5.89°58'15 "W. ° ~ N.E. CORNER P 8 " ~ 129 z PO1Nr q ~ COMMENCEMENT ~w ~~ wi W o ,,°o ~~ v; o ~Q ~O ~ ATLANTIC PLAZA ~PLA T Book ~~, PAGE 1,29) ARC = 13o.ao' ~ CA. = 36°33'5" RADIUS -- zQ5.Qa' C.& = S 18°16'43"W. NDTES• ARC = 1D5~28' TM'S IS I+IdT A 5U-4l~EY RADIUS = 165 DD' ~ =CENTERLINE C8 = 518°T6'43"W. lJbRTN RfG~ JT dF WA Y LINE SOUTH LIiVE- BLOCfC ]T5 ~; THE IVQRTN LII~ DF 50UTH LINE PLAT BLOCK 11615 ASSUIL>ED ° ' 58 47 E BDO1C 5D, PAGE 129 TO SEAR NS9 ° o ° ``~ ° NORTH RIGHT OF WAY LINE P.B. =PLAT BDDfC 0. "' ~i 0 O 5 W. G'DRNER ~ DA TE• JAN. 23, 2009 P.B 5D, PAGE J29 Mi EAST A TLr_A~NTIC _ _ ~ CERTIFICATE OF AUTN A VENVG 5[IRVEYQR ANQ MAAPE e 1 I Sf~ETCH OF DESCf?IPTInN Ex1-rr81T ';~'. SHEET 2 OF 2 DESCRIPTION FOR N.L: 7T1-!AVENUE R~ ALIGNME-I1T. A 4D FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO TIDE PLAT TI-~REOF A5 RECORDED !N PLAT BDOIf 50, PAGE 129, P[JBL1C RECnRDS DF PALM BEACH COLWTY, FL0121DA ANU THAT P04TIDN QF THE 4D FOOT ROAD RIC~-1T OF WAY FOR NE. 7TH A VENUE L PING WEST GF AhD ADJACENT TO SAID A TLAIVTIC PLAZA A5 Sh'owN ON THE PLAT DF THE TOWN DF UNTON ~NDw DEL-4AY aEACH} ACCDI~DlNC To ThE PLAT THEREOF AS RECORDED 1N PLAT BQOIf 1 PAGE 3, PfJBLIC f2ECORDS OF PALM BEACH COLWTY, FLORIDA, BEING ~D FEET WEST OF AND ADJACENT TD Thf~" FOLLOWING DESCRIBED LINE. CQh~NCING A T THE NORTHEAST CORNER OF SA1D PLAT DF A TLANTIC PLAZA; THENCE 589°58'J5"W., ALONG THE NORTH LINE OF SAID PLAT DF ATLANTIC PLAZA, A D15TANCE OF .22] 18 FEET TD THE POINT OF BEGINNING,• THENCE S D°DD'Da'~, A D15TANCE DF 359. D7 FEET TO A POINT OF CtJRVA TUBE CONCAVE TO THE NOI2THWCST HAVING A CENTRAL ANGLE OF 36°33'25" AND A RADIUS QF 2Q5.DU FEET,' TF'rE7VCE SDUTH'NE5LE1iL Y ALQNG TIC ARG OF SAIQ CG04VE, A DISTANCE DF 13Q8D FEET TD A PD1NT OF REVERSE CL44VATURE CONCAVE TO THE SOUTHEAST HAVING A CENTRAL ANGLE OF 36°33~5f' AM7 A RA,pIUS DF 1fi5.QD FEET, THEI1ICE 50UTNWESTERLY. ALQIVG THE ARC OF SAID GURVE A DISTANCE OF 1[1528 FEET THENCE 50°OOOO'~, A DISTANCE DF 25Da FEET TO A POINT ON THE SOUTH LI1~ OF SAID ATLANTIC PLAZA AND A POINT ON THE NOf2TH LINE DF EAST ATLANTIC AVENUE AS ND~Y LAID ^UT AID IN USE AND THE TERMINUS POINT OF SAID EASEMENT THE 51DE LIA~ES DF SAID EASEMENT TD BE EXTENDED DR SFfORTENEQ TO SET AT ALL ANGLE PO1NT5 AND TO TERA~l1NA TE A T THE NORTH AND SOUTH I_l1VES OF' SAJD PLAT OF A TLANTIC PLAZA AND THE WESTERL Y PROJECTION DF 7NE 5D[ITH LINE OF SAID PLAT OF ATLAN77C PLAZA. PAUL D. EIVGLE SURVEYOR Bc IAAPPER #5708 as TE• JAN z3 zaa9 DRflER ArO. D4•-1B4 7TH AUE RE-AL1GN'I~ItNT MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: SCOTT R. ZUBEK, SENIOR PLANNER PAUL DORLING, AICP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER DATE: FEBRUARY 13, 2009 SUBJECT: REGULAR MEETING OF FEBRUARY 17, 2009 WAIVER REQUEST AND RIGHT OF WAY ABANDONMENT ATLANTIC PLAZA II ITEM BEFORE COMMISSION The item before the Commission is consideration of an abandonment of the right-of-way for N.E. 7th Avenue, lying between East Atlantic Avenue and N.E. 1St Street; the 16' east-west alleyway lying within Block 116, located east of N.E. 6th Avenue, approximately 100' north of East Atlantic Avenue; the 16' north-south alleyway lying within Block 116, located between East Atlantic Avenue and N.E. 1St Street; and consideration of a waiver to the minimum street-jog offset distance as specified in LDR Section 6.1.2(C)(2)(d), all in conjunction with a proposed mix-used residential, retail and commercial development named Atlantic Plaza II. The entirety of the project is located between East Atlantic Avenue and N.E. 1St Street, east of N.E. 6th Avenue (Northbound Federal Highway) and west of Veterans Park. This right-of-way abandonment is being processed pursuant to LDR Section 2.4.6(M), "Abandonment of Rights-of-Way." The waiver request is being processed pursuant to LDR Section 2.4.7 (B)(5), required findings for the granting of waivers. BACKGROUND At its meeting of October 20, 2008, the Planning and Zoning Board reviewed a conditional use application for Atlantic Plaza II, a proposed mixed-use development containing residential, commercial, and retail components consisting of 89,126 square feet of retail space; 29,709 square feet of restaurant; 111,628 square feet of office space; and 197 townhome and condominium residential units. The development proposal also included the construction of 1,077 parking spaces provided in a subterranean and surface parking garage plus on-street parking and townhouse unit garages. As a critical design component for the conditional use and subsequent site plan, the portion of N.E. 7th Avenue between N.E. 1St Street and East Atlantic Avenue is proposed for abandonment and will be relocated approximately 85' east (from street centerline-to-centerline) of its current location. Also, the above mentioned north-south and east- west alleyways is to be abandoned and incorporated into the development area. City Commission Documentation, Meeting of February 17, 2009 Abandonment of Rights-of-Way and Waiver -Atlantic Plaza I I The rights-of-way abandonment and waiver to LDR Section 6.1.2(C)(2)(d) (street-jog offset distance at the intersection of N.E. 7th Avenue and N.E. 1St Street) is now before the City Commission for final approval. LDR Section 2.4.7(8)(2) (Required Findings for the Granting of Waivers) The applicant has submitted a waiver request from LDR Section 6.1.2(C)(2)(d) to reduce the minimum centerline street-jog offset distance at the intersection of N.E. 1St Street and N.E. 7tn Avenue from the required 125' minimum to approximately 85' (reduction of 40'). Pursuant to LDR Section 2.4.7(B)(2), the applicant has submitted the following justifications, which are included verbatim in italics below. a) Shall not adversely affect the neighboring area. "The realignment of NE 7th Avenue at NE 1St Street will not adversely affect the surrounding neighborhood. The realignment occurs within the boundaries of the proposed project and will not require any properties to be relocated. The realignment will also help reduce the amount of pass through traffic along NE 7th Avenue and serve as a traffic calming measure thereby reducing vehicles speeds as vehicles travel along NE 7th Avenue." - The street-jog offset created by the relocation of N.E. 7th Avenue does not prevent the north- south flow of traffic along N.E. 7th Avenue nor does it disrupt the east-west traffic patterns along N.E. 1St Street. "The orientation of the proposed project site and the existing travel patterns through the intersection contribute to two overlapping non-conflicting movements: north to west and east to south... These movements nest together to minimize any potential conflicts." - Traffic traveling northbound through the intersection of N.E. 7th Avenue and N.E. 1St Street will in effect make a "left jog" that will conjoin with the westbound traffic along N.E. 1St Street. Southbound traffic along the stretch of N.E. 7th Avenue (outside of the project boundaries) would also make a "left jog" at the intersection of N.E. 1St Street and nest with the eastbound traffic. Therefore to continue northbound or southbound along N.E. 7th Avenue through this intersection it would require only aleft-jog, which, as demonstrated by other offsetting intersections throughout the City, has a minimal effect for traffic flow through a neighboring area. The right-hand turn to go either northbound or southbound on N.E. 7th Avenue traveling from eastbound or westbound N.E. 1St Street would not be affected. It should be also noted that with respect to utilities, the City utilities located within N.E. 7tn Avenue (particularly sewer services) will be rerouted along N.E. 1St Street and connect with a new lift station that will be constructed near the northeast corner of the Atlantic Plaza I I property. The internal water and sewer system of Atlantic Plaza II will be privately maintained, but will eventually be reconnected with the City's public utility system and thus will maintain the level of service standard. b) Shall not significantly diminish the provision of public facilities. "The realignment will not diminish the provision of public facilities. The realignment of NE 7rn Avenue will change the existing east/west stop control to two north/south stop controlled T- 2 City Commission Documentation, Meeting of February 17, 2009 Abandonment of Rights-of-Way and Waiver -Atlantic Plaza I I intersections... To determine whether the new intersection geometry diminishes the roadway and intersection level of service, an operational analysis was performed using Synchro and SimTraffic... The results of the analysis show that there is no significant change in the roadway or intersection level of service as a result of the proposed realignment. Further, the proposed T- intersections are projected to operate at excellent levels of service through the build-out year of 2012. " With the exception of Veterans Park, there are minimal public facilities located within the vicinity of the subject intersection and access to Veterans Park will not be affected by the relocation of N.E. 7th Avenue. Also, as noted in the applicant's justification statement above, the projected level of service in terms of traffic volume contained by these roads will remain well within the capacity parameters for service through at least 2012. The abandonment areas contain public utilities (water, sewer, electric, etc.) which will be rerouted along N.E. 1St Street or replaced as shown on the preliminary engineering plans. The Fire-Rescue Department has reviewed the initial proposal for abandonment and has no objections. It should be noted that the Fire-Rescue and Police Departments will again review the abandonment and offsetting intersection in context of the site plan and subdivision plat once these items have been submitted for approval. c) Shall not create an unsafe situation. "The realignment will not create an unsafe situation. As shown in the Synchro and SimTraffic operational analyses, the proposed realignment is not expected to diminish the roadway or intersection level of service. The offset does not create conflicting left-turn movements that are usually associated with offset intersections... Further, the geometry of each T-intersection will be designed in accordance with the City's engineering design guidelines such that clear zone and site distance requirements, etc. are met. " - The street-jog offset is not a unique pattern in this part of the downtown area. The intersection of N.E. 4th Avenue and S.E. 2nd Street would be considered astreet-jog offset of approximately 50'. The N.E. 4th Avenue and S.E. 2nd Street offset intersection at +/- 50' has no problems with functionality or safety. It should also be noted that this intersection was part of the City's older, platted street system which was designed prior to the more stringent standards required by the current code. This requirement as specified in LDR Section 6.1.2(C)(2)(d) is a minimum centerline-to-centerline distance of 125' and the proposed offset distance at N.E. 7th Avenue and N.E. 1St Street is 85' (reduction by 40'). The new intersection would be required to meet the all other aspects of the City's current design standards as noted in the applicant's statement above. d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. "The granting of this waiver will not convey any special privilege in that other applicants or owners under similar circumstances should also be granted the waiver. The requested waiver is necessary to provide an adequate building depth along NE 6th Avenue to create a meaningful and sustainable development. The realignment occurs within the boundaries of the proposed project, which does not require properties to be relocated as they are part of the proposed redevelopment plan." 3 City Commission Documentation, Meeting of February 17, 2009 Abandonment of Rights-of-Way and Waiver -Atlantic Plaza I I The City realizes the need to maintain the integrity of the downtown grid-pattern street system. If another applicant or owner were to petition the City for abandonment of a downtown City Street, a suitable replacement that maintains the prevailing right-of-way width and functionality of a major intersection would be required. The Atlantic Plaza II mixed-use development proposes a 40' wide privately maintained access road subordinated by a 40' wide ingress-egress easement ensuring full public access. The major intersection at East Atlantic Avenue and N.E. / S.E. 7tn Avenue will not be offset and traffic patterns through the neighborhood will not be significantly impacted by the offsetting intersection along the relocated N.E. 7th Avenue and N.E. 1St Street. REVIEW BY OTHERS Environmental Services Department: The City Engineer has asked that utility easements be retained over the areas proposed for abandonment in favor of the City until all utilities within the abandonment areas are relocated. A phasing plan, showing the replacement stages of defunct utilities with replacement utilities, will be forthcoming as part of the final engineering plan and plat review process. Utility provider companies FPL (Florida Power and Light), FPU (Florida Public Utilities) and Comcast Cable have reviewed the abandonment request, and have identified the need for relocation of facilities and dedication of replacement easements. AT&T Telephone service has not responded to the notifications at the time this report was written. These issues will be accommodated on the final plat for the project. Fire-Rescue Department: The Fire-Rescue Department has reviewed the request and has no objection to the abandonment. Community Redevelopment Agency (CRA): On July 24, 2008, the CRA reviewed the conditional use request and recommended approval along with the suggestion that N.E. 7tn Avenue be realigned and thus eliminate the offsetting intersection at Atlantic Avenue. On January 8, 2009, the CRA reviewed the revised alignment for N.E. 7th Avenue and recommended approval. Downtown Development Authority (DDA): On September 23, 2008, the DDA reviewed the conditional use request and recommended approval. On January 12, 2009, the DDA again reviewed the abandonment request along with the realignment of N.E. 7th Avenue and recommended approval. Florida Department of Transportation (FDOT): Pre-application approval letters from FDOT (for driveway permits) were received by the City for the realignment of the N.E. 7th Avenue access point along East Atlantic Avenue and the proposed dedicated access along N.E. 6tn Avenue (Northbound Federal Highway). Planning and Zoning Board: On January 26, 2009 the Planning and Zoning Board reviewed the abandonment request and associated waiver to LDR Section 6.1.2(C)(2)(d) (street-jog offset distance) and unanimously recommended approval to the City Commission. 4 City Commission Documentation, Meeting of February 17, 2009 Abandonment of Rights-of-Way and Waiver -Atlantic Plaza I I RECOMMENDATION By Separate Motions: Waiver: Approve the waiver to LDR Section 6.1.2(C)(2)(d) to accommodate a reduction of the minimum street offset requirement from 125' to 85' at the intersection of N.E. 7th Avenue and N.E. 1St Street. Abandonment: Approve the abandonment of the right-of-way for N.E. 7th Avenue, lying between East Atlantic Avenue and N.E. 1St Street; the 16' east-west alleyway lying within Block 116, located east of N.E. 6th Avenue, approximately 100' north of East Atlantic Avenue and the 16' north-south alleyway lying within Block 116, located between East Atlantic Avenue and N.E. 1St Street, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.6(M)(5) of the LDR's with the following conditions: That the Resolution abandoning the subject rights-of-way includes language which establishes general utility/access easements over the entirety of each abandonment area and provides special language to allow the developer cross-access rights to disconnect and relocate existing utilities, commence with construction, etc., per direction from the City Engineer. These easements are to be retained by the City until such time when it is necessary and appropriate for the developer to abandon these easements in favor of their replacements. 2. That all documents pertaining to the abandonment of rights-of-way be finalized per direction of the City Attorney. 3. That the developer enters into ahold-harmless agreement with the City for any work done within the above cited easements retained by the City. 4. That a final subdivision plat application is submitted which incorporates the abandonment areas within the balance of the property and establishes the permanent replacement easements and access tracts. 5. That final site plan approval for the overall mixed-use project is obtained from the Site Plan Review and Appearance Board (SPRAB). Attachments: Abandonment Resolution #08-09 P&Z Report, January 26, 2009 Location Map LMA-237 Replacement Easement Exhibit (Map #LMA-237A) Conceptual Site Plan Exhibit Surveys of the Abandonment Areas Waiver Justifications via the Applicant (Original Copy) Correspondence from the Public 5 RESOLUTION NO. 08-09 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH FLORIDA VACATING AND ABANDONING A 40' WIDE SECTION OF N.E. 7TH AVENUE, LYING BETWEEN EAST ATLANTIC AVENUE AND N.E. 1sT STREET; THE 16' EAST-WEST ALLEYWAY LYING WITHIN BLOCK 116, LOCATED EAST OF N.E. 6TH AVENUE, APPROXIMATELY 100' NORTH OF EAST ATLANTIC AVENUE; AND THE 16' NORTH-SOUTH ALLEYWAY LYING WITHIN BLOCK 116, LOCATED BETWEEN EAST ATLANTIC AVENUE AND N.E. 1sT STREET AS MORE PARTICULARLY DESCRIBED HEREIN, SUBJECT TO RECEIPT OF SUBSTITUTE EASEMENTS, RECONVEYANCE AND OTHER TERMS AS SET FORTH IN RECORDED DOCUMENTS AND EASEMENTS. WHEREAS the City of Delray Beach, Florida, received an abandonment application for a portions of the N.E. 7th Avenue right-of--way and two 16' alleyways located within Block 116, Plat of the Town of Linton, as more particularly described herein; and WHEREAS said application for abandonment of a general public right-of--way was processed pursuant to Section 2.4.6(M), "Abandonment of Rights-Of-Way", of the Land Development Regulations of the City of Delray Beach; and WHEREAS pursuant to LDR Section 2.4.6(M)(3)(e), the Planning and Zoning Board, as Local Planning Agency, formally reviewed the matter at a public hearing on January 26, 2009 and voted 6 to 0 to recommend approval of the abandonment, based upon positive findings with respect to LDR Section 2.4.6(M)(5), and has determined that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Plan; and WHEREAS the City Commission of the City of Delray Beach, Florida, finds that its interest in the described property is no longer needed for the public good and deems it to be in the best interest of the City of Delray Beach to vacate and abandon said right-of--way based upon positive findings pursuant to LDR Section 2.4.6(M)(5), and reserves certain easement and access rights in the abandoned areas pursuant to separate agreements. WHEREAS, this Resolution shall become effective on the date this Resolution is recorded by the City, as provided for in separate agreements. NOW THEREFORE BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH FLORIDA AS FOLLOWS: Section 1. That pursuant to Chapter 177.101(5) and Chapter 166 of the Florida Statutes, it is hereby determined by the Delray Beach City Commission to vacate and abandon all right and interest it holds to the following real property for right-of--way purposes only, and reserves certain easement and access rights in the abandoned areas pursuant to separate agreements more particularly described as follows: - EXHIBIT "A" CONTAINING 12,632 SQUARE-FEET, MORE OR LESS. - EXHIBIT `B" CONTAINING 9,557 SQUARE FEET, MORE OR LESS. - EXHIBIT "C" CONTAINING 23,896 SQUARE-FEET, MORE OR LESS. Section 2. This Resolution shall become effective on the date this Resolution is recorded by the City. PASSSED AND ADOPTED in regular session on this the day of , 2009. ATTEST: City Clerk MAYOR 2 RES. NO.08-09 WEINER & ASSOCIATES, P.A. ATTORNEYS AT LAW 10 S.E. 15t Avenue, Suite C Delray Beach, Florida 33444 Telephone: (561) 265-2666 Telecopier: {5B1) 272-6831 E-mail: jmankoffCc~zonelaw.com MICHAEL S. WEINER LEE E. LEVENSON JASON S. MANKOFF February 10, 2009 1-'L~i`~~li~G & ~'CJI'~IIVC~ KERRY D. SAFIER STEPHEN B. GEBELOFF Mayor Rita Ellis & City Commissioners (via a-mail) Susan Ruby, Esquire (via hand delivery) City of Delray Beach City Attorney 100 NW 1St Avenue ~ 200 NW 1st Avenue Delray Beach, Florida 33444 Delray Beach, Florida 33444 Mr. David Harden (via hand delivery} City Manager 100 NW 1St Avenue Delray Beach, Florida 33444 Mr. Randal Krejcarek (via, hand delivery) City Engineer 434 S. Swinton Avenue Delray Beach, Florida 33444 Mr. Paul Dorling {via hand delivery} Director of Planning and Zoning 100 NW 1St Avenue Delray Beach, Florida 33444 Re: NE 7tr, Avenue Our File No.. CDRA007 Dear Mayor, Ladies and Gentlemen: Mr. Richard Hasko (via hand delivery) Director of Environmental Services 100 NW 1St Avenue Delray Beach, Florida 33444 It has come to our attention that there is a lack of clarity as to why we are requesting that the relocated NE 7~h Avenue ("New 7~h") be a private street in ownership which will function as a public street instead of just making New 7th a new public street. The purpose of this letter is to clarify the reasons why New 7th is being proposed in the manner that it is and to explain why our proposal benefits all parties, including the City, the utility providers and the public. One of the first significant meetings we had with City ~ Staff, attended by various departments of the City and professionals of the Atlantic Plaza team, was to ,determine the best process for addressing procedural and technical issues that may arise from the proposed relocation of the existing NE 7th Avenue. There were numerous factors, which led to the current proposal for New 7th. At the initial meetings, the Direc#or of Environmental Services and City Engineer along with our professionals agreed that while the process (abandonment, platting, easements, etc.) may be complicated, it was in the City's best interest, as well as the project's, for New 7th to be a private street with a public easement conveyed back to the City for numerous reasons, as follows: O:1CpRA0l771tetter to City re 7th Avenue.Feb 40 2009.doc February 10, 2009 Page 2 of 3 1. New 7th as a private street with a public easement avoids potential conflicts between the subterranean tunnels and City-owned utilities. The two subterranean tunnels which connect the below-grade parking garages are critical. Due to possible conflicts with City-owned utilities, including possible damage to the tunnels by future contractors of the City or visa-a-versa, the Director of Environmental Services recommended that ;New 7th be a private street. 2. Franchised utilities will not locate in a public street. Utilities such as FP&L and the phone company demand to be in an easement on private property and will not locate in a public street as a matter of policy. In the rare instances where they agree to do so, they require a relocation agreement, which shifts the cost of any future relocation that may be needed as: a liability of the CitylCounty/State. We have met with the franchise utilities and coordinated their infrastructure in the "private" tractleasement of New 7th, as we are required to ;do under City procedures: These franchise utilities, along with cable service (Comcast), and gas will be underground and located within the New 7th tractleasement. 3. New 7th as a private street with a public easement avoids conflicts and clearly identifies maintenance responsibilitieslcosts. The combination of utilities required for the City and by the Project cannot all be contained within the tract of New 7th. The proposed plan calls for all public utilities to be located around the perimeter of the property, which is .preferred by the City. Please see the Public Utilities Relocation attached as Exhibit "A". All utilities specifically servicing the Project and the franchise utilities that need to be on private property are to be located under the Idew 7th. This approach also provides mutual benefit of eliminating duplication of irrigation systems, roadway drainage, water meters, street lights, etc., along with the requisite maintenances these systems require. 4. streetscapes and; public spaces are vastly improved with New 7th as a private street. Keeping New 7th as a public street would require expanded easements on the perimeter of the private property for the franchise utilities. This would be detrimental to the streetscapes and public spaces, and dictate a more suburban arrangement of sidewalks, landscape, easements, etc., inconsistent with the current character of downtown. Please see the Alternative Streetscape attached as Exhibit "B". With New 7th as a private street, these streetscapes and outdoor areas are not diminished by the location of infrastructure. Please see the Proposed Streetscape attached as Exhibit "C". If infrastructure location, rather than good design was to drive these crucial components, it would cause irreconcilable problems, which would hamper the overall quality and success of the Project and take away from the critical and vast public areas. Only with New 7th as a private street with a public easement can the streetscapes and outdoor public spaces be worthwhile and provide for the connectivity to Veterans Park and E. Atlantic Avenue to "Downtown Atlantic Avenue", reinvigorate northbound US1 and provide for the long-term viable infrastructure and future redevelopment within the area. 5. New 7th as a private street with a public easement relieves the City of the maintenance burden and eliminates costly duplication. Maintenance of the street, landscaping, irrigation system, streetlights, drainage systems and all utilities is shifted from the City to a responsible, perpetual entity, inclusive of requisite safeguards. Further, the private street arrangement eliminates duplication of initial installation and of maintenance, i.e. (sewage lift station) water meters, reading, collection and maintenance for domestic and irrigation water, O:ICDRA0071r.etter to City re 7th Aven[~e.Feb 10 2009.dac February 10, 2009 Page 3 of 3 and street cleaning, and the duplication of site drainage and separate roadway drainage, maintenance, etc. 6. New 7th as a privy#e street with a public easement equates to ad-valorem taxes being paid by the master association. There would be no taxes paid on a public street. For all these reasons, we hope this now clarifies why treating New 7~h as a private street, which will function as a public street, is the best option for all. If you should have any further questions concerning this, please let us know and we will be happy to respond to them. Very truly yours, ason S. Mankoff b, JSM:ek enclosure cc: Atlantic Plaza Design Team O:ICpRAfl071tetter to City re 7th Avenue.Feb 10 2009.dac II I I I I` 1 t ~1. ~~ f j ~e ~~ I ~ ~ J~ ~ I I w i I I I'k ~ I I ~ I fl Z I I~.r. t sE sT _ . ~~I_~^ 4 Es ®® ~~ 1 ~ 7 ~ wiH s~n°s~l~'P£0~~caio~. J r BIJILDI~IG ~1 I T ARk TFptEE STORY MI%E°LSE °t-G. I ~ } 1 ~ f tMITM BASEMEhFT PpRKIHG J`f^JIIF' ~ ~ - I _ _ 1 - .. .: 1 1 J 1 - _.. _. ....... - , ... _ _~_ _... _ ---.. -~ ^ o 0 0 [[~~ ~ ~' 4~-- ~--~J~Lti 11 I ~y~ ALL OF T11E PUBLfC UTILITIES 5f1ALL BE RELOCATED AROUND TI1E PPP.IMETPR WfTI~IN TI1E i'UBLIC RIGhT-0F-WAY ® PUBLIC UTILITIES RELOCATION SCALE: 1" = IUO'-0" // (~4 II 1 u Z . 4. ~ I ~~ - t:~~ .: ~ n .. 1 LLI I ` ~ ~ ~ J I- t 8• IDEWALI ~ ~~ s ~, tl~ ~ a ~ w °~ o O w ~~ t .7 z0 ~~ _ ~ ~~ ~ ~ 1 1 1 1 r , ;. ' / J ~ ~ ~ ! ~ ~ ~ ~ -~ -: ,e ..~ f '" ~ 1~, i / YY _ ~~ ~ ~~ ~ 3 z z ~ ~ ' a , _ ~ ~ ~ z ~ v l) I Ow ~ ~ 2~ z ~ ~ ~ W ~ ui U ~ ~ ~ ~i ~ i / L ~ a ~ U ~ 3 n ~ ~ ~ ~ I ~ ~. ~ ~ F 1 ~ 1 1 1 1 0' RICH ^F~ A ~ T=e.~r ~ ~ _ ~GI PING ~ ~- ~ _ ;. T RU-LANE TL1RL1-LA E IC71=WA ' f_ ~ ~ ~' Pw W ~ ul~ ~~ ~ ~~ ~ 1 ~ ,. i / ~ i ~; ~ ~ I `:: I2"-CONC.6AND ~ ' ~ . BRICK ~ ~ PAVERS ' 1 i _ ._~-- 1 E 1. ~ ~ 1 .. t • : 8 Ff. CR S5 WALK ~ ~~``~~_ ~ `\ ~' ,'' ~ i ~\ :\ `\ ~ _ ~ 1 ~~ , \ ~ ,, /,./.t1~ \ ~. \ -=" -' -: ~ - ~ ~,% ~ . _ _- ` . At~arltic Co~lrt ~ r j AN 8 FT. MINIMUM SIDEWALK PROVIDED WITH UT[LITIES LOCATED WITHIN THE NEW 7TH AVE. AND THE ! 0 FT. UTILI"Il' EASEMENTS. TH15 OPTION DOES NOT ALLOW FOR STREET TREES. ® ALTERNATIVE STREETSCAPE SCALE: 1/16" = 1'-0" ~~u ~ !I ~' I l~~ ~I I I z z~ U du ~ ~.i U K z r O ~ H /" U O ~ ~ Q LLI , u3 !.? ~_ ~1 Z ' 4 w ~} ~..~s'' .. ~ ~ i ~ ri ~ s- ~ I ~ ~ ~ I ~ - I* - ~ ~ ~ ~- ~~ ~ , ~' ~ , ,. , , ' ~ ' ~ ~: l ~H €]F AY rR ~~ ~ 1G; TEI~IG I- ~ . NL TY1RU-LA ~ E'AI~KIN -- ~IL~P'JA LAND C I I / ~ ~ ~ ~ ~ l\. a.~ Z r ; ~ ~ 1. ;~ ~ 1 ~ ~ ~ ~~~ ~ '~ ' ...... . Q ~, z ~+ ~, ~ ~ i >L r ~ ~~: ~ 12"GONG BAND (' 't'; BRICK 3 PAVLI25 1 1 CR 55 WALK ~~ . ~ \ \. .,~ ~ ~ ~ ~ ~. ,i -~. ~~ , ` ~ ~~~:. ti 1~ Il I ~" PULIC EASMENT TO PROVIDI= LANSDCAPE, LIGf1TiNG, SEATING, AND AN ~ FT. MINIMUM 51DEWALK, WITH ALL UTILITIES BEING PRIVATELY OWNED. STREET TREES PROVIDED, ® PROPOSEDSTREETSCAPE SCALE: 1116" = 1'-©" PLANNING AND ZONING BOARD CITY OF DELRAY BEACH ---STAFF REPORT--- MEETING DATE: January 26, 2009 AGENDA ITEM: III. A. ITEM: Abandonment of the right-of--way for N.E. 7th Avenue, lying between East Atlantic Avenue and N.E. 1S' Street; khe 16' east-west alleyway lying within Block 116, located east of N.E. 6th Avenue, approximately 10D' north of East Atlantic Avenue; the 16' north-south alleyway lying within Block 116, located between East Atlantic Avenue and N.E. 15t Street; and consideration of a waiver to LDR Section 6.1.2{C)(2)(d) (street jog offset distance), all in conjunction with the Atlantic Plaza II mixed-use developmenk, located between East Atlantic Avenue and N.E. 1St Street, east of N.E. 6th Avenue (Northbound Federal Highway) and west of Veterans Park (Quasi~ludiciai Hearing). GENERAL DATA: Applicant ............................................. CDS International Holdings, Inc. Agent .............................. .............. Weiner, Aronson, and Mankoff, P.A. Location ................................ .............. Located between East Atlantic Avenue and N.E. 1St Street, east of N.E. 6th Avenue (Northbound Federal Highway) and west of Veterans Park. Property Size ........................ .............. 0.82 Acres {Total). Existing FLUM Designation .. .............. CC (Commercial Core). Current Zoning ................................... CBD (Central Business ^15trICt). Adjacent Zonings .................. ....North: RM {Mulkiple Family Residential -Medium Density) and CF (Community Facilities). East: OSR (Open Space & Recreation) South: CBD (Central Business District). West: CBD (Central Business District). Existing Land Use ................ ............... improved rights-of--way and a former parking area. Proposed Land Use .............. .............. Abandonment of rights-of-way to be incorporated into a proposed mixed-use development known as Atlantic Plaza II. Water Service ....................... .............. Abandonment areas contain a 12" water main located within N.E. 7th Avenue and a 6" water main located within the narth- south alleyway. Sewer Service ...................... ............... Abandonment areas contain 36" and 24" force mains located within N.E. 7th Avenue and a 15" sewer main located within the north-south alleyway. 111. A. -_ _ ---- - ITEi1tI :BEFORE THE B©ARD The item before the Board is that of making a recommendation to the City Commission on the proposed abandonment of the right-of--way far N.E, 7f" Avenue, lying between East Atlantic Avenue and N.E. 1St Street; the 16' east-west alleyway lying within Block 116, located east of N.E. 6t" Avenue, approximately 100' north of East Atlantic Avenue; the 16' north-south alleyway lying within Block 116, located between East Atlantic Avenue and N.E. 1St Street; and consideration of a waiver to the minimum street-jog offset distance as specified in LDR Section 6.1.2(C)(2){d), all in conjunction with a proposed mix-used residential, retail and commercial development named Atlantic Plaza II. The entirety of the project is located between East Atlantic Avenue and N.E. 1St Street, east of N.E. 6t" Avenue (Northbound Federal Highway) and west of Veterans Park. This right-af-way abandonment is being processed pursuant to LDR Section 2.4.6{M}, "Abandonment of Rights-of-Way." The waiver request is being processed pursuant to LDR Section 2.4.7 (B}(5), required findings far the granting of waivers. BACKGROUND The subject portion of N.E. 7t" Avenue exists as a continuous 40' wide stretch of right-of- way, originally dedicated by the Town of Linton plat {Plat Book 1, Page 3), which extends north-south between N.E. 1St Street and East Atlantic Avenue. The 16' wide north-south and east-west alleyways were also created via the Town of Linton plat within Block 116. The subject portion of N.E. 7t" Avenue continues to function as one of the City's downtown "grid-pattern" local streets. The north-south alleyway that runs between N.E. 1St Street and East Atlantic Avenue functions primarily as a service alley for the existing commercial buildings. The east-west alleyway that runs between N.E. 6t" Avenue {Northbound Federal Highway} and the above mentioned north-south alleyway was utilized as a parking and service area for a gas station that has been demolished. In 1984, a site plan was approved fora 6.51 acre mixed-use development named Atlantic Plaza, which contained approximately 80,000 square feet of retail and office space. In 1986 the site plan was modified to reduce the total building area to 78,248 square feet and a parking agreement was arranged with the City to provide the required in an off-site parking lot at the corner of N.E. 1St Street and N.E. 7t" Avenue. At its meeting of October 17, 2005, the Planning and Zoning Board considered a conditional use request for the redevelopment of Atlantic Plaza and severs! surrounding properties. The mixed-use project consisted of 57,137 square feet of retail space, 44,204 square feet of office, and 8,811 square feet of restaurant, along with 306 residential un{t5. On December 6, 2005, the City Commission postponed consideration of the conditional use request due to concerns regarding the project's mass and scale within the vicinity of Veterans Park. Subsequently, the applicant requested indefinite postponement for City Commission consideration. The project was never rescheduled for a hearing before the City Commission and the City's file was closed. At its meeting of October 20, 2008, the Planning and Zoning Board reviewed a conditional use application for Atlantic Plaza II, a proposed mixed-use development containing residential, commercial, and retail components consisting of 89,126 square feet of retail space; 29,709 square feet of restaurant; 111,628 square feet of office space; and 197 townhame and condominium residential units. The development Planning and Zoning Board Staff Report: January 2f, 2009 Portion of N.E. 71t' Avenue and Block 116 Alleyways -Abandonment of Right-of--Way {Atlantic Plaza ll) Paae Z proposal also included the construction of 1,077 parking spaces provided via a subterranean and surface parking garage plus on-street parking and townhouse unit garages. As a critical design component for the conditional use and subsequent site plan, the portion of N.E. 7th Avenue between N.E. 1St Street and East Atlantic Avenue must be abandoned and relocated approximately 85' east (from street centerline-to- centerline) of its current location. Alsa, the above mentioned north-south and east-west alleyways must be abandoned and incorporated into the development area. ABAN DQNMENT, ©ESCRIPTI~N The abandonment request was submitted by the applicant, CDS ]nternatianal Holdings, Inc. Their intention is to have all claims to the abandonment areas released; rededicate N.E. 7th Avenue as a private road with access rights for the public; dedicate appropriate easements for all existinglrelocated utilities; and then aggregate the proposed abandonment areas with the balance of the Atlantic Plaza II property. • N.E. 7t" Avenue The subject portion of N.E. 7tn Avenue is a 597.40' x 40.00` rectangular shaped parcel, containing 23,896 square-feet (0.55 acres) which extends from N.E. 1St Street to East Atlantic Avenue. The section of right-of-way contains approximately 25' of pavement with both northbound and southbound lanes. Also contained within the road are City sidewalks, on-street parking, City utilities {36" and 24" force mains and a 12" water main} and other franchise utilities. The development proposal to abandon this section of N.E. 7th Avenue includes relocation of the road via a 40' wide replacement ingress-egress easement ~B) for N.E. 7th Avenue located approximately 85' to the east at the north end. At the south end, the replacement ingress-egress easement transitions back to its origin, so that it aligns with the S.E. 7th Avenue right-of- way, south of East ~- ., Atlantic Avenue. The proposal also includes dedication ~ _ ;` of a new 40' wide access tract (A) between N.E. 6th =' e ~~Ra~s Avenue and the relocated N.E. 7th Avenue (see 4. A. - ( anaNn~ ''aR~ exhibit). ~ P~aza z • Norfh-South A1le a of Block 7 96 The subject area is arectangular-shaped 16' x 597.35' A 7 ` A " ~ ~ ~ A ~ E " parcel which also extends from N.E. 1St Street to East Atlantic Avenue, containing 9,557 square-feet (0.22 acres}. This 16' alleyway has been used primarily as a service aisle for the existing buildings and storage units within Atlantic Piaza. I-ocated within the alleyway are overhead FPL lines, water meters, a 6" water main and a 15" sewer main. The conceptual site plan for the Atlantic Plaza I1 development contains mixed-use buildings, above ground parking, underground parking and public utilities that will occupy the current location of this alleyway. • East-West Alleyway of Block 19G The subject area is arectangular-shaped 16' x 130.00' parcel (0.05 acre) which is located approximately 100' north of East Atlantic Avenue and extends from N.E. 6th Avenue {Northbound Federal Highway} to the above described 16` north-south alleyway in Block 116. This 16' section of alleyway has been used as a paved parking and service area for a gas station which has been demolished. There are minimal utilities located Planning and Zoning Board Staff Report: January 26, 2009 Portion of ~.B. 7`~' Avenue and Block 116 Alleyways -Abandonment of Right-of--Way (Atlantic Plaza II) Page 3 within this section of alleyway (water meters} and while it was originally platted as public right-of-way, it was most likely never used for public access. -- - -- - ABANDQNMENT ANALYSIS Pursuant to LDR Section 2.4.6(M}{1}, public right-of--way may be abandoned (returned) to the adjacent property to the same degree in which it was originally obtained {i.e. property dedicated exclusively from a single parcel shall be returned to that parcel; property dedicated through subdivision shall be divided at the center line and returned equally to abutting parcels). Accordingly, the Applicant is entitled to the entire abandonment area. Utility Services The City's Environmental Services Department has identified a 12" water main and a 36" and 24" Farce main within the N.E. 7th Avenue right-of-way. The north-south alleyway of Block 116 contains a 6" water main and a 15" force main. No City utilities other than a water meter exist within the east-west alleyway of Block 116. The City Engineer has asked that utility easements be retained aver each area in favor of the City until all utilities are relocated. A phasing plan, showing the replacement stages of defunct utilities with replacement utilities, will be forthcoming as part of the final engineering plan and plat review process. The City's Fire-Rescue Department has reviewed the request and has no objection to the abandonment. it should be noted that the Fire-Rescue Department will review the replacement easement for N.E. 7th Avenue once it has been submitted via separate instrument with exact geometric dimensions. Utility provider companies FPL (Florida Power and Light}, FPU (Florida Public Utilities) and Comcast Cable have reviewed the abandonment request, and have identified the need for relocation of facilities and dedication of replacement easements. AT&T Telephone service has not responded to the notifications at the time this report was written. - - REQUIRE~ FININGS' • LDR Section 2.4.611M]~5} -Required Findincls for aRight-of--Way Abandonment: A] That there is not, nor will there be a need for the use of the right-of--way for any public purpose. As mentioned above, the east-west alleyway of Block 116 was originally platted as public right-of way via the City's original Town of Linton plat, but was most likely never used as public right-of-way or for any other public purpose. This abandonment area was a paved surface for parking and service associated with a gas station that has been demolished. The north-south alleyway of Block 116 has minimal use as public right of way, essentially serving only the commercial buildings within the block. Once the existing buildings are demolished and the utilities relocated, as construction for Atlantic Plaza Il commences, this alleyway will serve no public purpose. The FPL service located within this alleyway will be rerouted through the site and contained within easements for the new lines that will be placed underground. Planning and Zoning Board Staff Report: January 26, 2009 Portion of N.E. 71h Avenue and Block '! 16 Alleyways -Abandonment of Right-of-Way (Atlantic Plaza Il) Paae 4 The portion of N.E. 7t" Avenue proposed for abandonment is a fully functional "grid- pattern" local street that contains northbound and southbound travel lanes, concrete walks, parking, and City utilities. The City has been diligent in its efforts to obtain from the developer a suitable relocation plan for N.E. 7tn Avenue that will allow the relocated road to both accommodate the proposed development and retain its critical functionality as part of the City's grid pattern of streets. As mentioned previously, the plan proposes a 40' wide replacement ingress-egress easement for NE 7th Avenue located approximately 85 feet to the east at the north end and a meandering transition back to its origin point at the south end along East Atlantic Avenue. This transition will keep the 4- way intersection of East Atlantic Avenue and N.E. 1 S.E. 7t" Avenue relatively undisturbed. Ultimately N.E. 7tn Avenue will be dedicated via instrument {plat) as a private road, but easements for public access and maintenance of public utilities within the road will be permanently retained. A newly dedicated access tract noted as "Atlantic Court" on the conceptual site plan exhibit will provide east-west access from N.E. Stn Avenue (Northbound Federal Highway) to the new road. It should be noted that the driveway configurations for bath the proposed access from N.E. 6t" Avenue (Northbound Federal Highway} and the intersection of East Atlantic Avenue and N.E. 7t" Avenue have been preliminarily approved by FDOT, as both N.E. 6t" Avenue and this stretch East Atlantic Avenue are under state jurisdiction. B) That the abandonment does not, nor will not, prevent access to a lot of record. As the subject rights-of-way only abut the Atlantic Plaza -- II property, this abandonment will not prevent access to any adjacent lot of record. The relocation of N.E. 7tr' Avenue includes a 40' replacement ingress-egress easement located approximately $5` to the east at the north end which transitions back to its origin paint along East Atlantic Avenue at the south end. Therefore, this replacement easement creates only minimal disruption of existing traffic flow. As noted above, the buildings serviced by the north-south alleyway of bock 116 will be demolished in favor of a new site layout and the east-west alleyway was never used for public access. C] That the abandonment will not result in a detriment to the provision of access andlor utility services to adjacent properties or the general area. There is a significant number of City and franchise utilities located within the abandonment areas. As previously stated, utility easements in favor of the City will be retained aver each abandonment area until construction has commenced and replacement utilities are functioning. As part of the platting process, replacement easements and tracts will be dedicated within the property to accommodate all new and relocated utilities. • LDR Section 2.4.7 iB1[2} -Required Findings for the Granting of Waivers: The applicant has submitted a waiver request involving the granting of relief from LDR Section 6.1.2(C)(2)(d} to reduce the minimum centerline street-jog offset distance at the intersection of N.E. 1St Street and N.E. 7tn Avenue to approximately 85' from the requirement of 125' (reduction of 40'}. Pursuant to LDR Section 2.4.7(B)(2}, the applicant must provide written justification for the granting of a waiver. The applicant has submitted these justifications, which are included verbatim in italics below. Pursuant to LDR Section 2.4.7(6}(5}, prior to the Planning and Zoning Board Staff Report: January 26, 20D9 Portion of N.E. 7'h Avenue and Block 116 Alleyways -Abandonment of Right-of-Way (Atlantic Plaza II} Paae 5 granting of a waiver, the approving body must make a positive finding with respect to the following: a) Shall not adversely affect the neighboring area. "The realignment of NE 7ft' Avenue at NE 95r Street will not adversely affect the surrounding neighborhood. The realignment occurs within the boundaries of the proposed project and will not require any properties to be relocated. The realignmenf will also help reduce the amount of pass through traffic along NE ~h Avenue and serve as a traffic calming measure thereby reducing vehicles speeds as vehicles travel along NE ~h Avenue." - The street-jog offset created by the relocation of N.E. fit" Avenue does not prevent the north-south flow of traffic along N.E. 7tn Avenue nor does it disrupt the east-west traffic patterns along N.E. 1st Street. "The orientation of the proposed project site and the existing travel patterns through the intersection contribute to two overlapping non-conflicting movements: north to west and easf to south... These movements nest together to minimize any potential conflicts." - Traffic traveling northbound through the intersection of N.E. 7t" Avenue and N.E. 15t Street will in effect make a "left jog" that will nest with the westbound traffic along N.E. 15t Street. Southbound traffic along the stretch of N.E. 7t" Avenue (outside of the project boundaries} would also make a "left jog" at the intersection of N.E. 1St Street and nest with the eastbound traffic. Therefore to continue northbound or southbound along N.E. 7t" Avenue through this intersection it would require only alert-jog, which, as demonstrated by other offsetting intersections throughout the City, has a minimal effect for traffic flow through a neighboring area. The right-hand turn to go either northbound or southbound on N.E. 7t" Avenue traveling from eastbound or westbound N.E. 1St Street would not be affected. - It should be also noted that with respect to utilities, the City utilities located within N.E, 7t" Avenue (particularly sewer services) will be rerouted along N,E. 1St Street and connect with a new lift station that will be constructed near the northeast corner of the Atlantic Plaza 11 property. The internal water and sewer system of Atlantic Plaza II will be privately maintained, but will eventually be reconnected with the City's public utility system and thus will maintain the level of service standard. b) Shall not significantly diminish the provision of public facili#ies. "The realignment will not diminish the provision of public facilities. The realignment of NE 7"' Avenue will change the existing east/west stop control fo two north/south stop controlled T-intersections... To determine whether the new intersection geometry diminishes the roadway and intersection level of service, an operational analysis was performed using Synchro and Sim Traffic... The results of the analysis show that there is na significant change in the roadway or intersection level of service as a resulf of the proposed realignment. Further, the proposed T intersections are projected to operate at excellent levels of service through the build-ouf year of 2092." - With the exception of Veterans Park, there are minima! public facilities located within the vicinity of the subject intersection and access to Veterans Park will not be affected by the relocation of N.E. 7~" Avenue. Also, as noted in the applicant's Planning and Zoning Board Staff Report: January 26, 2009 Portion of N.E. 7`h Auenue and Bloclc 116 Alleyways -Abandonment of Right-of-Way (Atlantic Plaza II} justification statement above, the projected level of service in terms of traffic volume contained by these roads will remain well within the capacity parameters for service through at least 2012. The abandonment areas contain public utilities (water, sewer, electric, etc.) which wi[I be rerouted along N.E. 1ST Street or replaced as shown on the preliminary engineering plans. The Fire-Rescue Department has reviewed the initial proposal for abandonment and has stated no objections. It should be noted that the Fire-Rescue and Police Departments will again review the abandonment and offsetting intersection in context of the site plan and subdivision plat once these items have bean submitted for approval. c} Shail not create an unsafe situation. "The realignment will not create an unsafe situation. As shown in the Synchro and 5im7raffic operafional analyses, the proposed realignment is not expected to diminish the roadway or intersection level of service. The offset does not create conflicting left- turn movements that are usually associated with offset infersections... Further, fhe geometry of each T-intersection will be designed in accordance with the City's engineering design guidelines such that clear zone and site distance requirements, etc. are met." - The street jog offset is Hat a unique pattern in this part of the downtown area. The intersection of N.E. 4th Avenue and S.E. 2"d Street would be considered astreet-jog offset of approximately 50'. The N.E. 4th Avenue and S.E. 2"d Street offset intersection at +1- 50' has no problems with functionality or safety. It should also be Hated that this intersection was part of the City's older, platted street system which was designed prior to the more stringent standards required by the current code. This requirement as specified in LDR Section 6.1.2(C}(2)(d) is a minimum centerline- to-centerline distance of 125' and the proposed offset distance at N.E. 7~' Avenue and N.E. 1St Street is 85' (reduction by 40'). The new intersection would be required to meet the all other aspects of the City's current design standards as noted in the applicant's statement above. d} Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another appNcant or owner. "The granting of Phis wavier will not convey any special privilege in that ofher applicants or owners under similar circumstances should also be granted fhe waiver. The requesfed wavier is necessary to provide an adequate building depth along NE 6f" Avenue to create a meaningful and sustainable development. The realignment occurs within the boundaries of fhe proposed project, which does not require properties to be relocated as they are part of the proposed redevelopment plan." The City realizes the need to maintain the integrity of the downtown grid-pattern street system. If another applicant or owner were to petition the City for abandonment of a downtown City Street, a suitable replacement that maintains the prevailing right-of--way width and functionality of a major intersection would have to be provided, or the project would not be recommended for approval. The Atlantic Plaza 11 mixed-use development proposes a 40' wide privately maintained access road subordinated by a 40' wide ingress-egress easement ensuring full public access. The major intersection at East Atlantic Avenue and N.E. I S.E. nth Avenue Planning and Zoning Board Staff Report: January 26, 2D09 Portion of N.E. 7~' Avenue and Block 116 Alleyways -Abandonment of Right-of-Way (Atlantic Plaza II) Paae 7 will not be offset and traffic patterns through the neighborhood will not be significantly impacted by the offsetting intersection along the relocated N.E. 7~' Avenue and N.E. 1 s~ Street. Given the above, positive findings can be made pursuant to LDR Section 2.4.7.(6)(5} for a reduction below the minimum requirement of 125' of separation for acenterline-to- centerline street-jog offset at the intersection of N.E. 15~ Street and the relocated N.E. 7t" Avenue. ~__ REVIEW BY OTHERS Community Redevelopment Agency (CRA1: On July 24, 200$, the CRA reviewed the conditional use request and recommended approval along with the suggestion that N.E. 7t" Avenue be realigned and thus eliminate the offsetting intersection at Atlantic Avenue. On January 8, 2009, the CRA reviewed the revised relocation plan for N.E. 7t" which eliminated the offsetting intersection at Atlantic Avenue and recommended approval. Downtown Development Authority D( DA}: On September 23, 2008, the DDA reviewed the conditional use request and recommended approval. On January 12, 2009, the DDA again reviewed the abandonment request along with the revised relocation plan for N.E. 7t" Avenue and recommended approval. Florida Department of Transportation {FD~T}: Pre-application approval setters from FDOT (for driveway permits) were received by the City for the replacement configuration of the N.E. 7t" Avenue access point along East Atlantic Avenue and the proposed dedicated access along N.E. 6t" Avenue (Northbound Federal Highway). Courtesy Notices: Courtesy notices have been provided to the following: • Alliance of Delray (Robert Shulbaum) • Barr Harbor (Harry Bird) • Barr Terrace (John Eaton) • Beach Property Owners Association (Bob Victorin) • Casa La Brisa (Bill Ott} • Delray Beach Chamber of Commerce • Delray Summit (Ann Spedale) • Manor House (Buzz Lindner) • Neighborhood Advisory Council • Palm Trail (Cory Cassidy} • Progressive Residents of Delray (PROD) (Bunny Elrod) • Seagate Towers Condominium, Inc. (Rita Conyers) • Via Marina (Kevin Warner) Planning and Zoning Board Staff Report: January 26, 2009 Portion of N.E. 7~" Avenue and Block 116 Alleyways -~ Abandonment of Right-of--Way (Atlantic Plaza II} Page 8 Public~Notice: Formal public notice has been provided to property owners within a 500' radius of the subject property. Letters of objection or support, if any, will be provided at the Planning and Zoning Board meeting, --_ - - -- - ASSESSMENT The City has asked the developer of the property to provide a suitable replacement road for the proposed abandonment of existing N.E. 7t" Avenue that does not significantly take away from the functionality of the City's downtown "grid pattern" street layout, nor take away from the character of the downtown at large. The conceptual site plan has been redesigned so that the replacement road does not disrupt the intersection of N.E. / S.E. 7t" Avenue and East Atlantic Avenue. The 85' offset created at the relocated intersection of N.E. 7t" Avenue and N.E. 1St Street is not unique in the downtown area and does not create an unsafe or detrimental situation for the surrounding neighborhood. The abandonment and relocation of public utilities with respect to the platted 16' alleyways in the downtown area is not uncommon in redevelopment projects. Also, citywide abandonment of alleyways that do not serve a crucial public purpose is one of the City's long range development goals. --- - ALTERNATIVE ACTION„„S 1. Continue with direction. 2. Move approval of the request for the abandonment of the right-of--way far N.E. 7t" Avenue, lying between East Atlantic Avenue and N.E. 15t Street; the 16' east-west alleyway lying within Block 116, located east of N.E. 6f" Avenue, approximately 100' north of East Atlantic Avenue; the 16' north-south alleyway lying within Block 116, located between East Atlantic Avenue and N.E. 1St Street; and waiver to the minimum street jog offset distance as specified in LDR Section 6.1.2{C}(2)(d), by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.6(M}{5) and 2.4.7{B)(5) of the LDR's with conditions. 3. Move denial of the request for abandonment and associated waiver by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is not consistent with the Comprehensive Plan and does not meet criteria set forth in Section 2.4.6(M)(5) and 2.4.7{B)(5} of the LDR's. --_ RECOMMENDED ACTION _i By Separate Motions: Waiver: Recommend to the City Commission that the granting of a waiver to the following LDR Section is necessary and appropriate, based upon positive findings with respect to LDR Section 2.4.7{B}(5}. LDR Sec#ion 6.1.2(C)(2}(d) Reduction of the minimum requirement of 125' to 85' for a street jog offset at the intersection of N.E. 7t" Avenue and N.E. 1St Street. Planning and Zoning Board Staff Report: January 2fi, 2009 Portion of N.E. 7t" Avenue and Block 116 Alleyways -Abandonment of Right-of--Way (Atlantic Plaza II) Page 9 Abandonment: Move approval of the request for the abandonment of the right-of-way for N.E. 7~" Avenue, lying between East Atlantic Avenue and N.E. 1St Street; the 16' east-wesf alleyway lying within Block 116, located east of N.E. 6th Avenue, approximately 1DD' north of East Atlantic Avenue and the 16' north-south alleyway lying within Block 116, located between East Atlantic Avenue and N.E. 1$f Street, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.6(M)(5} of the LDR's with the following conditions: 1. That the Resolution abandoning the subject rights-of-way includes language which establishes general utility/access easements over the entirety of each abandonment area and provides special language to allow the developer cross-access rights to disconnect and relocate existing utilities, commence with construction, etc., per direction from the City Engineer. These easements are to be retained by the City until such time when it is necessary and appropriate for the developer to abandon these easements in favor of their replacements. 2. That all documents pertaining to the abandonment of rights-of-way be finalized per direction of the City Attorney (Please see a draft version of the documents contained in attachment package #2}. 3. That the developer enters into ahold-harmless agreement with the City for any work done within the above cited easements retained by the City. 4. That a final subdivision plat application is submitted which incorporates the abandonment areas within the balance of the property and establishes the permanent replacement easements and access tracts. 5. That final site plan approval far the overall mixed-use project is obtained from the Site Plan Review and Appearance Board (SPRAB). Attachment Package #1: Location Map LMA-237 Replacement Easement Exhibit {Map #LMA-237A) Gonceptual Site Plan Exhibif Surveys of the Abandonment Areas Waiver Justifications via the Applicant {Original Copy} Correspondences from the Public Attachment Package_#2_ Abandonment Resolution #08-09 Easement Agreement for Relocated N.E. 7'" Avenue Easement Agreement for the Vacated N.E. T" Avenue Easement Agreement for Alleyway Utilities Easement Agreement for Alleyway Access ~ ~-~~ City Of Delray Beach ,- ~~ PLANNING AND 70NING DEPARTMENT ~`` MEMORANDl1M TO: Planning and Zoning Board PROM: Scott R. Zubek, Senior Planner DATE; 01/26/2009 SUBJECT Attachment Package #1 ACTION: Abandonment of Rights-of-Way -Atlantic Plaza II Please see the following attachments (Package #'I) as noted in the Planning and Zoning Board staff report: • Location Map LMA-237 • Replacement Easement Exhibit (Map #LMA-237A) • Conceptual Site Plan Exhibit • Surveys of the Abandonment Areas • Waiver Justifications via the Applicant (Original Copy) • Correspondences from the Public Lei Q L11 Q N.E. 15T CT. _ ~ t- ~ z w ~~~i'~~ ~.~~~^~1ST ST. ~~ ~ ~^ 2. Q ~ ~ ~ ~ O vETERANS ~ Q o ~ PARK Q ~ ~~ ATLANTIC ° ~ ~^ PLAZA ~' w z~ Q ti o^ ~ Q m~ ~ ~ ~~ z o^ z~ 1. ..... ..... A T L A N T I C A V E N U E W LLl ~ ~- w Q a ~ ~ Q ~ _ _ ~ ~ ~ ~ Iii ~ N w ~ vi N rUJECT LIMI, ATLANTIC PLAZA - II L ~ . ~ 1O. ABANDONMENT OF EAST-WEST RLLEYWAY IN BLOCK 116 SUBJECT AREAS O ABANDONMENT OFNORTH-SOUTH ALLEYWAY IN BLOCK 116 CITY OF QELRAY BEACH, FL PLANNING & ZONING vEPARTmIENT ~ O ABANDONMENT OF A PORTION OF N.E. 7TH AVENUE - plGITAL RASE" hfAP SYSTEM -- MAP REF: LMA237 w ~; z w a N.E. ~~ I I z 1ST CT. 5 T. ~^ _~ J i Q a j A. LL . o^ z~ ~~~~~^ A T L A N T I C LLj Q F-- W 0 W Z 0 z a a m 0 F 0 a W z L~ Q n L~l (n A V E N U E W Q O' (!1 J Q Q !~ ~ ~ ~ Q ~ o ~ U w Q ~ ~ Q ti ~ z N ATLANTIC PLAZA - 11 PROJECT UMITS ACCESS PLAN r ,,,,,,, ,,,~, „~ ~ ^ ~ ~ O ® PROPDSED DEDICATED ACCESS FROM N.E. 6TH AVENUE CITY OF ~ELRAY BEACH, FL PLANNING & ZON€NG GEPARTMENT OB. REPLACEMENT INGRESS-EGRESS EASEMENT TO BE DEDICATED FOR N.E. 7TH AVENUE - plGITAL $45E MAP SYSTEM --- MAP REF: LMA237A VETERANS PARK ATLANTIC PLAZA k~. ) ~,. ~- 03 iii !I I ~~. 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CORNER .B. 50, PAGE 129 NORTH RIGHT OF WAY LINE ALL THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FDR N_E_ 7TH AVENUE BOUNDED AS FOLLOWS.• ON THE NORTH BY THE EASTERL Y EXTENSION OF THE NORTH LINE OF BLOCK 116, TOWN OF LINTON (NOW DELRAY BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND ON THE 50UTH BY THE EASTERL Y EXTENSION OF THE NORTH RIGHT OF WAY LINE FOR EAST ATLANTIC AVENUE, SAID NORTH RIGHT OF WAY LINE BEING A LINE 7 FEET NORTH OF AND PARALLEL TO THE SOUTH LINE OF SAID BLOCK 116. NDTES:• THIS IS NOT A SURVEY =CENTERLINE THE NORTH LINE OF BLOCK 116 IS ASSUMED TO BEAR N.89°58'47'E P.B. =PLAT BOOK j~ ~ ~ ~ ~ f :, °~ ~yf f 4f '~ I~ t~, A(;`; ~ ~ 20Dg I~ i ~ •, f ~v ~~a, ~.~tiv~~J~r'~'Ca ~ ~C)~!IlN~ FjA UL D. ENGL E SURVEYOR & MA 7i' #5708 DA TF• JULY 9, 2D08 0 0 0 N m ORDER ND. 04-164 PARCEL 8 ABANDONMENT SKETCH OF DESCRIPTION ~~ jj ,, EXHIBIT 'A" EXf7~BIT;' SHEET 1 OF 1 w N.E. 1ST STREET J U ~ O O N N.89°58'47"E. `~~' 16.00' NOTES.• NORTH LINE THIS 15 NOT A SURVEY BLOCK 116 ~ ~ ~ =CENTERLINE O O THE NORTH LINE OF BLOCK 116 ~ t j ~ ~ ~ I j IS ASS(1MED TO BEAR N.89°58'47"E. ~O ow ~O O~ ~~ O~ W~j4.i" °m ``~ ° o ~ ° "' °m ~~ ~~~ ~~ Qw U~ ~~ U~ O~ O~ m NORTH RIGHT OF WAY LINE a ~ SOUTH LINE o ~' BLOCK 116 ~ EAST A TCANTIC A t/EIVUE DESCRIPTIDN.• ALL THAT PORTION OF THE NORTH-SOUTH 16 FOOT ALLEY PAUL D. ENGLE~ RIGHT OF WAY LYING IN BLOCK 116, TOWN OF LINTON (NOW SURVEYOR & M PER ~f5708 DELRAY BEACH}, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK ~ PAGE 3, PUBLIC RECORDS OF pATE.• JULY 9, 2008 PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 7.0 FEET THEREOF: o BR~EN, SUI TER & 0 BRIEN INC CERTIFICATE OF AUTHORIZATION #L6353 SURVEYOR AND MAPPER !N RESPONSIBLE CHARGE.• PAUL D. ENGL E 955 N. W. 17TH AVENUE, SUITE K1 DELRAY BEACH FLORIDA 33445 ORDER N0. 04-T64 PARCEL 5 ABANDONMENT (561) 275--4501 (561) 732-3279 SKETCH OF DESCRIPTION ~[ ~ j ,r , SHEET 1 OF 1 NOTES- THIS IS NOT A SURVEY ~ Z ~ LOT 11, BLOCK 110 16.0' ` ~ ~ ~ ~ 130. oo' ~° J ~''~ W ~ ~ 16' PLATTED ALLEY RIGHT OF WAY ~ ~ ~ o ~ ~ Z 4 ~ ~.vo 05 AREA = 2,081 SQUARE ~o~ ~ FEET MORE OR LESS ~ ~ Ep ~ ~{ Q -~ c.~ ~- . ~ 130.00 ~~ ~~ ~~' LOT ZO LoT 21 LoT z2 BLOCK 116 BLOCK 116 BLOCK 116 (rj -~ o NORTH RIGHT OF WAY LINE EAST ATLANTIC AVENUE DESCRIPTIDN.- ALL THAT PORTIDN OF THE EAST-WEST 16 FOOT ALLEY RIGHT OF WAY L PING SOUTH OF AND ADJACENT TO LOT 11 BLOCK 116, TOWN OF LINTON (NOW DELRAY BEACH), ACCORDWG TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE WEST 5.0 FEET THEREOF FOR ADDITIONAL ROAD RIGHT OF WAY FOR U.S HIGHWAY N0. 1 PAUL D. ENGLE SURVEYOR & MA DATE: JULY 9 2DD8 X5708 ORDER NO. 04---164 PARCEL ~4 ALLEY ABANDONMENT ~~~ ~~~Qb ~~a ~ ~~~~a~~ ~~ ~ ~ ~~~~5 u ~~~ ~~~ ~ ~ 7 ~~ $~a a ~~ ~ ~ 0~4 ~~ ~ ~~~~~~ ~= o~~ ~~y~~ ~~ ~~~~Q ~~ x ~ .. ~~~ ~ Z~ m ~ ~°~ ~a~~..- ~~~~ ~ ~~~~~~ y~~ a ~~~ ~o~Sla 4 ~~ ~ ~ ,~ a $ ~ ~ ~ ~ ~ :Z i j--- ~r ~ ~ ~g ~ ~~ ~~ ~~~~~a ~~ ~~~~ ~~~~ `~.{( 2131 V ~$( 7 N.1 S VYD ~ d b 1 N! _~___ ~~ ~~~ ~~ ~s~~ ~a~~ ~ -~ ~~ z~ ~~ ~~~ ~~e~s ~a 8 yu{ a ~ b a p~~ < ~~~ ~~G m ~ iK3 Y~~~ q~ ~`d o~ b e °a ~ g~ a ggg v ~~~ ~~?~ ~ ~~ ~~~~_ ~3~ ~~~ ~~~e ~ ~~~~ ~~~~~~ a~~ ~~~ ~~~ b ~ ~.~~ ~~„ ~ ~ ~ ~~~~~ ~ ~b~~~~ H ~~ w ~~ ~ Wi ti :c~ ~ y~ ~~ ~~ ~c ~ [fp,,yp~ pp ~ ~ ~ s~ ~ 1-.~ba~ a Y~R k~b ~.Y° O ~ ~~ W ~~e ~a a ~a~ ~~~~ ~ ~~~ ~ o ~~ b~ ~~ ~ ~~ o ~' o~y~~ ~ °3a ~ Y~~S ,., ~~ ~~~ e ~ ~ ~~ ~ ~~ ~~ n~ Q ~x ~~~ ~ ~ ~~ ~~ ~ ~ ~~ ~~ P~ Q~tl 2r- £w £g Qh ~~- Py P Q~ ~~~ ~~~ ~~ ~a ~~ ~~ ~ ~~ ~ ~~ M1 ~~ ~ ~ ~ ~ '~ElNER, ARU~VSOf~ ~ I~A1~KC?FF, P.~-. ATTORNEYS AT LAW 10 5,~. 1stAver~ue ©eiray Beach, FL 33444 Telephone: (561) 265-2666 Telecopier: (561.}.272-6831 E-maiE: jtnankoff@zonefaw.com MICHAEL S. WEINER CAR(7L1* J. ARONSOAI JASON S, MANKO~F December 11, 20:08 Mr. Paul Dorliiig Director of Planhirlg and ,honing City of Defray Beach. ~ 00 N.W. 1st Avenue Delray Beach, Florida 33444 Re: Street Offset Waiver Request Our File No.: CDRAU06 fC~RRY D. SAF'f~R S'rEPkIEN B. GI=81=L,t3~'F' Via Hand~DeliVery (-, 1::- a, t ~~ ' i ~~~ i ._..._ ~. ~ ~. i ; ; . . ~~ ~ ;~~ Dear Paul: This letter is a waiver .request Beach Land Development: Regulations LDR Section fi.1.2(C}{2){d) to reduce Avenue to approximately 85'. pursuant to Section- 2.4.7{B)(2), of the Defray ("LDRs") involving the grar~king of relief from the center llne street. jog .offset along NE 7th To support a waiver, LDR Section 2.4,7{B)(5) requires that the .governing body make a finding that granting a waiver: (~) Shall rrot adversely a~feet the neigt~horing area;. 7'he realignment of NE 7th Avenue at NE 1st Street wilt not adversely affect the. surrounding neighborhood. The realignment occurs within the boundaries of the proposed project and will not require any properties to be relocated. The realignment will also help reduce the amount of pass through traffic along NB 7th .Avenue and serve as a traffic calmin measure thereby reducing vehicles speeds as vehicles travel along NE 7t Avenue. The orientation of the proposed project site:: and the existing travel patterns through the. intersection contribute to two overlapping non-conflicting movements. north to west and- east to south, as shown in the figure to O:1C1]RA011 iLetler to Dorling re offset. l7ec t 1. 2~08.cfoc 1'~ ~ireat ,~ r December 11,.2008 Page 2 0# 3 (~) ~~~ the right. These movements nest together to minimize any potential conflicts. Shall not significantly diminish fhe provision of public facilities; The realignment will riot diminish the prnvisinn of public facilities, The realignment of NE 7f~' Avenue will change the existing eastlwest stop control to two nortYifsouth stop controlled T~intersections as shown in the figure to the right. Tv determine whether fhe new intersection geometry diminishes fhe roadway and intersection level of service an operational analysis was performed using Synchro and SimTraffiic. A copy of this Intersection Offset Justification Analysis prepared by Kimley-Horn and Associates, Inc. is attached as Exhiiaif "A". The results iaf-the analysis show that there is no significant change in the roadway ar intersection level of service as a r~suft of the proposed realignment. Further, the proposed T~intersections are projected to operate at excellent levels of service through the buildout year of 2Q12. The table below provides a summary of the existing and proposed aperatiortal conditions for the AIUI and PM peak hour scenario obtained from Synehra. AM Peak Hour PM Peak Hour Level of Service LOS t,evet or Service L05 CondltionlA roach X13 Wi3 N8 5ia Ee W8 NB SS Existin Geom~i B B A A t3 C A A North L A A N!A t3. A A NIA i3 Proposed Geomet South t A A B NIA A A l3 iV1A Shall not create an crnsaiFe situation; and, The realignment will not create- an unsafe situation. As shown in the Synehro and SimTraffic operational analyses, the proposed reallgrimerit is not expected: to diminish the roadway or intersection ieve# of service. The offset does not create conflicting left-turn movements that are R:ICORAO'[ 11Letter to C3oriing ra ofrset. ()ec 91.2008.doc cross Roatl his design creates a ioR tam lock-upon the sross:raad.ltalsa pe~r€iits aa5h prone tratiic movements be4waen drives December ~ 7, 20©8 Page3of3 usually associated with ofFset intersections; as shown in the figure on the right. l;urther, the geometry of each T-intersection will be designed in accardanco vtiiith the City's engineering. design guidelines- such that clear zone and site distance requirements, etc. are met. {t?) aces net result in thg grant of a speeia! privilege in tfiat the same waiver enrould be granted under similar circumstances on other property for another applicant or owner. The granting of this wavier will not convey any special privilege in that other applicants or owners under similar circumstances should also be granted the waiver. The requested wavier is necessary to provide an adequate building depth along NE 6th~Avenue to create a meaningful and sustainable development. The realignrrierit occurs within the bauridaries of the proposed project, which does na# require properties to be relocated as they are part of the proposed redevelopment plan. This project meets or exceeds- the requirements of I~DR Section 2.4.7{B}{b} for this waiver request. By granting this waiver, a superior product will be achieved. The waiver will not .adversely affect the neighboeing area, significantly diminish tl~e provision of public facilities, create an unsafe situation andlor result in the grant of a special privilege in that the-same waiver would be granted under similar circumstances on other property far another applicant or owner. Thus, this waiver request should be approved. Consequently; a positive. finding with respect to i-DR Section 2.4.7{B){5} Waiver Findings, can be made. Therefore, for the reasons enumerated above, we respectfully request that this waiver be approved. As .requested by the City;. enclosed is a full and reduced size copy of the latest site plan proposal. Very truly y©urs, Jason S. Mankoff JSM:aiv Enclosure Cc: Mr. David Harden,. City Manager {via hand delivery w/ enclosure) Mr. 13111 Miimoe (wl enclosure} Mr. Derek VanderPloeg (wI enclosure} Mr. Mike Coveifi (wl enclosure} Mr. Fred Schwartz {w/ enclosure) Michael S. Weiner, Esquire (w/ enclosure) fJ:ICl7RF1Q1111.etter fo Dorling re affsei. oec 11. 2008.dDc We, the residents of the Delray Summit, are committed to ensuring that our "village by the sea", continues to serve its citizen's with its unique, small city charm. The downtown Delray Beach Master Plan once afforded us this assurance by stating that the city would develop with the "dreams and aspirations of the community", including beautification and traff c calming. The current slated project of Atlantic Plaza II goes against the Master Plan by adding a very dense modern building complex along with a huge influx of people and traffic. This complex, added to many other new buildings in the city, will serve to fatally destroy the small "village by the sea "concept that once served its citizens and businesses well. Public Notice # 2008-209 is the notice of abandonment of three rights-off way associated with the current slated plan of Atlantic Plaza II. We would request that the Planning and Zoning Department and Board, deny the request of the developer to alter these streets as doing so fiirther adds to traffic congestion and slowing and does not conform to the city's Master Plan. November S, 2008 y ~. ~o , ~t-<-~ & -~~ 3~- Qft-e d'-`~~-a-c,Y~ 3 '- F ~~ ~. w.~~ // ~~ J` e +s 1z. ~~ ~',~~ I't,S~ V T y~{ • r ~ ~. ~~ ~~~ Lc / ~ ~. ~~I-.r~~ .~~ r~ `~ _e, l~~c o ~ zags t'~.~tl~~lift';~ & ~~~i'sPd~~ We, the residents of the Delray Summit, are committed to ensuring that our "village by the sea", continues to serve its citizen's with its unique, small city charm. The downtown Delray Beach Master Plan once afforded us this assurance by stating that the city would develop with the "dreams and aspirations of the community", including beautif cation and traffic calming. The current slated project of Atlantic Plaza II goes against the Master Plan by adding a very dense modern building complex along with a huge influx of people and traffic. This complex, added to many other new buildings in the city, will serve to fatally destroy the small "village by the sea "concept that once served its citizens and businesses well. Public Notice # 2008-209 is the notice of abandonment of three rights-of way associated with the current slated plan of Atlantic Plaza II. We would request that the Planning and Zoning Department and Board, deny the request of the developer to alter these streets as doing so fixrther adds to traffic congestion and slowing and does not conform to the city's Master Plan. ' November 8, 2008 ]~]- J7V~M ¢ Fi2r=,l~ C~f~E~"re i~~+~ IE~ ~ S~""~- r ~ . G~~.~~ ~ tom. ~--~~ ~ ~ ~~~~ ~ '~ ~~ ~~ ~. ~ ~~ ~ T ._ ~ ,-~ ~ i~ ~ ~= .~.. ~~~~ ~~ r( ~lLt/ti, rr t~v- t o-tents 1 M G f YM Bf'T PMHGMP 3@24298$62 P. 01 Aage 1 of 1 5ubj; I~W~ Anna, pta t'orward Ito ^It rastdanta and teak them Eo !ax back to w by 1111 Date; 1 t/1312008 4:04;07 AM Eastern Standard Time From; delraysumrralt~.t}~11.5outh.net .,--~-, ~ ~ Ann Spedale, tCAM .~_.~ Property Manager Delray Summit, Inc. 581-278-2050 ~-_~..~.-- Forwarded Message: -----.------ From; oktaye~bellsouth.rtst To; delraysummitt~bellsouth.rret (t]alray Summit} Subjsei: Anne, pis forward to all residents Arid ssk them to fax back to us by 11115 Date, Thu, 13 Nov 2006 13;x8;28 +0000 We, the residents of the Delray Summit, are committed to ensuring that our "village by the sea", continues to serve its citizen's with its unique, small city charm. The downtown peiray Seach Master Plan once afiforded us this assurance by stating that the city would develop with the "dreams and aspirations of the community", including beautification and traffic calming. The current slated project of Atlantic Plaza It goes against the Mas#er Plan by adding a very dense modern building complex alortg with a huge influx of people and traffic. This complex, added to many -other new buildings in the city, will serve to fatally destroy the email "village by the sea "concept that once served its citizens and businesses well. Public Notice # 2~D6-2D9 is the notice of abandonment of three rights-cf- way associated with the current slated plan of Atlantic Plaza II. We would request that th® Planning and zoning Department and Board, deny the request of the developer to aster these streets as doing so further adds to traffic congestion and slowing and does not conform to the city`s Master Plan, November 8, 2008 ~~~ ~~,:, r rdra~, ~o~~ ~ ,5=r Thiir~~i~.. ~-.._.__..T.. ... ...,,,.. ...r_,. 11.~1;MO~ T~ARTRf)AR1NC7 11/13/2068 14:16 ~~~ 9147371467 ' f~ Ann Spedaie. t,GAM Property Manager i]elray Summit. Inc. 561-278 2050 VALERIA PAGE 01/01 r n~,v .~ vl ~ Forwarded M~essege: -~------~- From: aktays~bellsouth.net To: deiraysummit(~bellsvuth.net (©elray Summit) Subject: Anne, pls forws~rd to all residents and ask them to fax back W us by 11 J15 Date: Thu, 13 Nov 200$13:58:28 +40fl~ Wa, the residents of the gsiray Summit, are committed to ensuring that our "village I with its unique, small city chafm. ' The downtown Delray Beach Masher Pian once affnrcted us thks assurance by stating and aspirations of the cammuniry", including beautification and tratric calming. The current slated project of Atlantic plax~a II goes against the Master flan by addlnc with a huge influx of people and traffic This complex, added ko many other new built small "village by the sea "concept that once served its citizens and businesses well. Public Notice ~ 2008-208 iS the notice of abandonment of three rights-of~uuay associ~ Plazas 11. We would request that khe Planning and Zoning ©epartrnent end Board, de- streets as doing so further adds to trati'ic congestion and slowing end does not confo Novemkaer 9, 2008 Ann Sped2le, LCAM Property Manager Delray Summit, Inc. 581-z76 20$0 Forwarded Message: ---------- From: aktays~bellsvuth.net Tv: delraysummit~betlsouth.net (Delray Summit) Subject: Anne, pis forward to all residents and asl< them tv fax back to ug by 11115 Date: Thu, 18 Nov 20D813;58:28 +40b0 We, the residents of the Delray Summit, are committed to the sea", continues to serve its citizen's with its unique, smF The downtown Delray Beach Mauer Plan once afforded uC that the city would de~elap wi#h the "dreams and aspiration including beautification and traffic calming. 1~rips:/lwebmail.optirnusn.netlmsg i~s lr.html7&securityTfalse&iang~en&po~upLevel=un.,. 11/1312b08 We, the residents of the Delray Summit, are committed to ensuring that our "village by the sea", continues to serve its citizen's with its unique, small city charm. The downtown Delray Beach Master Plan once afforded us this assuxance by stating that the city would develop with the "dreams and aspirations of the community", including beautification and traffic calming. The current slated project of Atlantic Plaza Ii goes against the Master Plan by adding a very dense modern building complex along with a huge influx of people and tra~f c. This complex, added to many other now buildings. in.._ the city, will serve to fatally destroy the small "village by the sea "concept that once served its citizens and businesses well. Public Notice # 200&209 is the notice of abandonment of three rights-of- way associated with the current slated plan of Atlantic Plaza II. We would request that the Planning and Zoning Department and Board, deny the request of the devclopcr to alter these streets as doing so further adds to traffic congestion and slowing and doss not conform to the city's Master Plan. November S, 2008 _ Irv / - /i //v~ ~~~ l . .... .... .... .._..sr ~wuci~ ivi. vrnciVa~ „3. CIL-/34-ytS4~ p,l Vie, the residents of tl~e Delray Summit, are committed to ensuring that our "village by the sea", continues to serve its citizen's with its un.iq~ae, small city charm. The downtown Delray $each Master Plan once afforded us this assurance by stating that the city would devetop with the "dreams and aspirations of the community", including beautification and traffic calming. The current slated project ofAtlantic Plaza IT goes against the Master Plan by adding a very dense modern building complex along vc~ith a huge influx of people and traffic. This complex, added to many other new buildings in the city, will serve to fatally destroy the small "village by the sea "concept that once served its citizens and businesses well. Public Notice # 2008-2Q9 is the notice of abandonment of three rights-af- way associated with the current slated plan of Atlantic Plaza II. We would request that the Planning and Zoning Department and Board, deny the request of the developer to alter these streets as doing so further adds to traffic congestion and slowing and does not conform to the city's Master Plan. l~lovember $, 20Q8 ~l~v d~~- ~c,,,,,, Yom; -~- s 1~ ~~~ 11/d9/108 03:06 7i 83176032 PAGE 01/91 We, the residents of the Delray Summit, are co~nnmitted to ensuing that our "village by the sea", continues to serve its citizen's with its unique, sma11 city charm. 'l he downtown Defray Beach Master Flan once afforded us this assurance by stating that the city would develop with the "dreart-s and aspit'ations of the community", n.cluding beautification and traffic calming. '1'l~e current slated project of Atlantic Flaza II goes against the Masten Plan by adding a very dense moder~t~ building complex along with. a huge influx of people and, traffic. This complex, added to many other new buildings in the city, will serve to fatally destxoy the small "village by the sea "concept that once served its citizens and businesses well. Public Notice # 2008-209 is the notice of abandonment of three rights-of- way associated with the current slated plan of ,F1,,tl.antic Plaza 'II. We would request that the Planning and Zoning Uepart~n.ex~t and Board, deny the xequest of the developer to alter these streets as doing so further adds to tra~?fic congestion and slowing and does not conform to the city's Master flan. ~ November S, 2008 ~ ~ _, ~~~y 1~~.~~~s ~~r ~~ . F~~orra: David Fieldhouse ~~ °' From; David Fieldhouse <rospniusa@yahop.com> 7o: Ann Spedale <delraysummit@bellsputh.net~ Subject: Petition Date: Saturday, November 8, 2008 6;11:02 PM Attached, hope you can print z.t out OK. David ~,~'e, the residents of the Tke3ray Su~~nrnlt, are committed to easing that our "village b}~ ct~e seas', ca~ti.r~~zes tea serve its city`s ~~it~ its uni~ae, small city elutr~n. The du~~-~ntpwn I?elray=Beach master P~~-n once a;f~'tror~ied us this ttss~ance by stating that the city ~°~u1d der~Yelop ~r.ith the ~'dre,~~s aid ~,s~~rata~ns ~i:' the cotnrnunit}=", ineludiralg la~xt~catart send traffic ~3rning. The e~u-rent slated prca~~;ct of Atlantic 1~3a~a 1I fines ~tgaia~sr the lasEer F1 by adding a very r3cnse rn~dc~rt building crat~pl~c Tong with a huge influx ctf ]~ecr}~].e atad traffic. `his con~ple~., added to m.}r other ~r hui3dings in the city, wi.l.l serve t:~ fat<lily destroy the s~nal3. "village by the sea "concept that nnrae served its citizens anti businesses X31, Pul.~]ic ~latice # ~fi1011-2Q3 is t~~e nvl~~ice of abandonment ~f three rights~af- E~~a}, associated =ith the current slated lslan of ~4tlantie Playa f. ~Vc mould regx~est that the Plaanirlg and ~oni.ng De~artrnent ~tnd Board, dory the request of the developer to alter these streets tis doing so further aaitis ts~ traffic cangcstion and s]o~vi.ng and dt~cs nit confarrn to the eity'.s moister flan. :~]ave~nixer i3, 2~Q8 C7avid Fieldhouse 1~~t7 Lawr~F~t, 7E 3~4B~ Page 1 of 1 [Print] [Close] httpalwebmail.att.netlwmc/v/wm14918360B0003 CEF200002BDB22230d47029B0A02D20$9B9... 11/10/2008 Arlen D. Dominek 5D East Road, No. 2G Delray Beach, Florida 33483 To the Planning and Zoning Department of the City of Delray Beach: 1. As a citizen of Delray Beach, I vociferously object to the abandonment of the right- of-way of NE 7th Avenue. 2. Living in east Delray, I often use NE 7th Avenue as undoubtedly do the many residents of the area. a. Our streets provide accessibility for all of our residents and visitors, whether they be pedestrians, bicyclists, or operators of motorized vehicles. b. Abandonment of this road would simply result in more inconvenience for the residents of the Palm Trail area, increased congestion, and occupancy densities that are simply inappropriate for our community at this time. 3. Delray Beach has slowly moved towards restoring a grid of streets within our downtown area and providing for mixed use residential areas that are hospitable to pedestrians. a. There were compelling reasons for West Palm Beach to develop City Place using the existing city streets. It allows for a more livable, enjoyable environment that draws people in. b. Accordingly, we shouldn't be encouraging the creation of canyon-like monolithic developments that consume large footprints. 4. Clearly, the proposed abandonment is not consistent with the efforts that our City has undertaken in encouraging new development. a. Development needs to occur without excessive concessions to developers, concessions that are made presumably in response to the developers' cry that such concessions are necessary to justify development because of the high cost of real estate, The price of that real estate only escalates in response to the ability of developers to build even greater densities. b. We simply don't need to provide more housing that sits empty or in foreclosure because speculators cannot sell their acquisitions. 5. I urge the Planning and Zoning Department to NOT approve this request for abandonment. Best regards, Arlen D. Dominek Peter Loosen, MD 1000 Lowry Street #SE Delray Beach, FL 33483 ~'el. 551 255 1166 fax: 551 X78 5560 P[oosenta?gmail.cor~ 11 November 2008 Delray Planning and Zoning Board City Hall 100 NW 15~ Avenue Delray Beach, FL 33444 Re: Atlantic Plaza II Development Dear Board Members: I would Tike to take this opportunity to present my concerns about the current proposal of Atlantic Plaza Il, its lack of meeting the requirements of our community, and its obvious disregard of Delray Beach's "master plan". Several years ago, the city drafted a "master plan" to assure that all future developments East of I-95 adhere to clearly defined standards, that the city's charm and uniqueness is preserved, and that traffic remains calm and traffic congestion is avoided. The proposed development does not seem to fit into the described "master plan." First, the building is set to crowd even more people and cars into space that is already limited. Second, there is an exemption in regard to building height (from 48 to 60 feet), that is likely to serve as precedent for future buildings, leading Delray Beach down the path of other cities (like Boca Raton and West Palm Beach), where the land close to the ocean is literally littered with high rise buildings. Third, the proposal to abandon three alleyways, but most importantly part of 7fn Avenue, is likely to make traffic flow more burdensome and difficult. Lastly, how can the often cited image of Delray Beach as the "village by the sea" be maintained, if the city supports such density of buildings, cars, and people in such limited space? Here it is worth noting that Atlantic Avenue East of the Intracoastal has already seen an enormous population increase in the last few years. We have witnessed a major enlargement of the Marriott Inn, and we are now witnessing the building of a large new hotel and wellness center across the Bank of America Building. Many of us have chosen to live in Delray Beach, because it did not fall into the traps of overheated development, was not characterized by high rise buildings, and kept its vllage charm, so to speak. I am aware that many citizens raised their concerns about the building's height exemption at last month's public hearing. However, !have been informed that after last month's public hearing only one (1} Planning and Zoning Board member actually voted against the developer's request for an exemption on the building height requirement. Although the town's citizens spoke and the majority of us gave good reasons for NOT wanting our officials to approve this request, we were not heard. The developer is also asking the city to approve parking lot loaders (which would electrically stack cars), and to give approval to abandon three rights-of-way to accommodate this development. Electric parking loaders are usually used in areas where space is extremely limited (i.e., they are common in Manhattan); this again nicely shows that too many people and too many cars are planned for this limited space - in stark contrast to the "village by the sea" advertising. recently received Public Notice #2008-209, which is a notice of abandonment of three rights- of-way. I urge our city officials to deny the request of alley abandonment as described in Public Notice #2008-209, to re-consider the approval to extend the height of the building from 48 to 60 feet, and to bring the proposed building in line with the existing "master plan." I also noticed in Public Notice #2008-209 that the date of the next public meeting had been changed from Tuesday to Monday evening. Have all citizens received this note, or only those who live, like I do, closely to the Atlantic Plaza? If the latter is the case, only a reduced number of citizens will have the opportunity to voice approval of or concern about the proposed changes. Thank you for your time and consideration of this important matter. Sincerely, ~~ From: aktays@bellsouth.net [mailto:oktays@bellsouth.net] Sent: Saturday, November O8, 2008 4:52 PM To: Dorling, Paul Subject: Atlantic Plaza II Susan Oktay 1000 Lowry St., Apt. SD Delray Beach, FL 33483 Delray Beach City Officials November 0$, 2008 I would like to take this opportunity to address the current proposal of Atlantic Plaza II and how it does not meet the requirements of our community and is not aligned with our city's "master plan". In year's past, the city drafted a master plan to ensure all future development of Delray Beach, East of I-95, would be held to strict standards to ensure it's preservation of charm, quaintness, and uniqueness while maintaining traffic calmness. After last month's public hearing on the building height exemption, (from 48 to b0 feet), I have become painfully aware that this city, the "village by the sea", is on track to become like any other city in the U.S.- over populated, lots of high concrete walls and unbearable traffic congestion; this does not align itself to the master plan. I was dumbfounded to learn that the outcome of last month's public hearing resulted in only one Planning and Zoning member voting to deny the developer's request for an exemption on the building height requirement. The town's citizen's spoke and the majority of us gave good reasons for NOT wanting our officials to approve this request, and yet they did. Currently, the developer is asking the city to approve a parking lot loader (which would electrically stack cars), and to also give approval to abandon three right-of--ways to accommodate this development. I do not understand how this project fits into the village by the sea" nor do I understand how the addition of even more condos and business space adds to the livability of the city. The population of the city is already too crowded and the traffic congestion is already in gridlock. I recently received Public Notice #2008-209, which is a notice of abaiadonxnent of several right-of--ways. Here we go again, our city officials taking from its citizens and giving into big business! I am imploring city officials to consider the negative impact to its citizens and current businesses and not alter N.E. 7th Ave. to accommodate this development. Thank you for your time and consideration of this important matter. Sincerely Concerned, Susan ~ktay IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST FOR ATLANTIC PLAZA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This waiver request to reduce the minimum centerline street jog offset distance at the intersection of N.E. 1St Street and N.E. 7t" Avenue from the required 125' minimum to approximately 85' has come before the City Commission on January 6, 2009. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver request for Atlantic Plaza. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVER: Pursuant to LDR Section 6.1.2(C)(2)(d) the minimum centerline street-jog offset distance is 125'. The applicant is requesting a waiver to this LDR Section. Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. Would a waiver to Section 6.1.2(C)(2)(d), waiving the minimum centerline street jog offset distance from 125' to 85', comply with the requirements of 2.4.7(8)(5)? Yes No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original application was submitted and finds 1 that its determinations set forth in this Order are consistent with the Comprehensive Plan and Land Development Regulations. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves denies the waiver request as set forth above. 6. Based on the entire record before it, the City Commission hereby adopts this Order this 17t" day of February, 2009, by a vote of in favor and opposed. ATTEST: Rita Ellis, Mayor Chevelle Nubin, City Clerk 2 MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, Assistant City Attorney THROUGH: City Attorney DATE: February 12, 2009 SUBJECT: AGENDA ITEM 9.E. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 BID PROTEST/WESTWAY TOWING INC. ITEM BEFORE COMMISSION Determination regarding the bid protest filed by WestWay Towing Inc. in regards to RFP No. 2009-06. BACKGROUND The City recently requested responses to RFP No. 2009-06, the towing service bid. The City received responses to the RFP and a selection committee ranked the proposers in accordance with the evaluation criteria listed in the RFP. Out of the 5 responses received, the selection committee determined that only 2 responses met the minimum requirements as required by RFP 2009-06. WestWay Towing did not meet the minimum requirements in that they were not conducting a towing business in Palm Beach County during the previous 2 years. WestWay Towing filed a bid protest and in accordance with the City's Bid Protest Procedure, attached as Exhibit "A", the City responded to the allegations of WestWay Towing, see attachment `B". WestWay Towing has been informed of the City's response and in accordance with the bid protest procedures, this item is before you for your determination. RECOMMENDATION Staff recommends denial of the bid protest. SECTION XV BID PROTEST PROCEDURE The following is the procedure which shall be followed for all protests of formal, sealed bids or proposals. (Z) In order to be considered, protests concerning the bid or RFP solicitation or award must be filed in writing with the Purchasing ^vrrrecr Manager, and may only be filed by bidders who may be aggrieved by the solicitation or award. Protests. shall be addressed to: Purchasing ~Qr Mangy 1Q0 N. iR. First Avenue Delray Beach, FI. 33444 (2? The time limit for filing a protest is five {5) calendar days from the date bierrea~~.i<s beeeme-}~r~h3i~ i~r€~•r-ma~-ice the bid or rfp recommendation is made. Such. recommendation shall be osted in Cit Hall and the 5 da s shall Gn[nmence from the date of ostin . (3) No action to award a bid under protest will be taken until either the protestor withdraws the protest, or the City Commission determines the protest i.s without merit, and approves the bid award. (4) Upon receipt of a timely protest. the Purchasing n~o~e~ Manager will review the protest., consult with appropriate City staff, and issue a written finding (Approved by the City Manager and City Attorney) within twenty (2 D) working days of receipt of the protest. .A protest will only be considered to have merit if it can be proven that an action, or lack of a.ctinn, by the Gity gave a bidder an unfair competitive advantage. If the protest is found to have merit, appropriate action to correct the situation will be taken. (5) The written finding of the. Purchasing ^O=tee= Manager steal], be sent by United States mail to the address of the protestor as set forth in his bid documents, and receipt of this notice shall be deemed to occur within five {5) calendar days from the mailing of the notice. (6) If the City Manager finds no merit in the protest, and does not direct alternative action by staff, the recommendation of staff in the written findings of the Purchasing ^O~r Manager shall be placed, along with the recommended bid award, on a City. Commission agenda fo.r Commission action. The protestor may appear at the Commission meeting and state his protest; however, the City Commission shall be free to award the bid and enter into an agreement. [li4 OF DELRp4 BQI[H dELRAY BEACH F ~ ~, All-America Cityy I ~~ ~ ~g3 Janua 27 2009 2001 ~ ~ WestWay Towing Inc. Attn. Craig Goldstein 9701 W. Atlantic Ave. Delray Beach, FL 3344fi ~'. -„ = . f~. c~ c.`r _, ~ ~ i- _ `?;! ~ .•_ 1. - . ... WRITER'S DIRECT LINE: 569!243-7169 Re: Res once to the Bid Protest filed Re ardin the WreclcerlTowin Service for Police Department, RFP No. 2009-Ofi Dear Mr. Goldstein: Pursuant to the Gity's bid protest procedures, this letter is in response to the bid protest fled by WestWay Towing Inc. regarding RFP No. 2009-Ofi. WestWay Towing was not deemed a responsive bidder by the Selection Committee as they failed to meet the requirements under Section A (5) of the Bid Specifications. WestWay has alleged that they did meet the specifications by conducting a towing business in Palm Beach County during the previous 2 years. In furtherance of your position, WestWay has submitted a letter, .ianuary 20, 2009, and certain documents to support your bid protest. The City's response to these statements is in bold type. 1. Company Profile from the sealed bid submitted by WestWay Towing, Inc. The company profile asserts that WestWay has been providing similar services in Palm Beach County for the past 4 years, however, when the Palm Beach County Consumer Affairs Division was contacted, they only had records of WestWay Towing providing similar services in Palm Beach County starting in January 2008. 2. Gopies of the Contract with regard to Open Road Responders, LLC and the State of Florida Department of Transportation for the fiscal years 2005-2006, 2006-2007, 2007-2008 and 2008-2009. The attached contract is with Open Road Responders not WestWay Towing. WestWay Towing responded to our bid, not Open Road Responders, as such, WestWay is the "Contractor" that must have the experience 2 years experience in Palm Beach County, not Open Road Responders. SERVICE r~ E~t~-DRMANCE ~NTEGRTTY ~ESPDNSI~3LE= IE~1hdDVATTVE ~E'AMWORK 3. A copy of the Florida Turnpike Highway Map showing that the jurisdiction for the contract extends from US 27 in Dade County, Florida to the Lantana Toll Plana in Paim Beach County, Florida. See Response to No. 2 above. 4. A copy of the Occupational License Information from the Tax Collector of Palm Beach County, Florida showing the continuance Occupational Licenses for WestWay Tawing, Inc. from September 2003 to the present. This document shows that WestWay provided "Towing Information Serr-ices Internet" this does not support WestWay's position. that they were providing actual towing services at that time. The earliest documented information that was provided or received by the City shows WestWay starting their actual towing business in Palm Beach County in January 2Q0$, which only gives them approximately one year of prior towing experience in Palm Beach County 5. A copy of the Report from Florida Department of State, Division of Corporations showing WestWay Towing, Inc. as the Manager of Open Road Responders, LLC and Craig Goldstein as the Registered Agent. See Response to No. 2 above. 6. A copy of the City Memorandum showing that the score of WestWay Towing, Inc. was not presented. They were not scored as they did not meet the minimum specifications, 7. A copy of the "Experience Requirement" 'rn the RFP of #2004-0~. 8. A copy of the Addendum to that same "Experience Requirement" for that same RFP #2004-05. 9. A copy of the "Experience Requirement" for RFP #2008-02. '10. A copy of the "Experience Requirement" far RFP #2009-06 (replacing RFP #2008-02). This is a response to #7-1 Q, listed above; there have been numerous bids where specifications have changed from one bid cycle to the next and for many different reasons. The City's latest change on this particular bid specification concerning experience was an attempt to allow a broader pool of bidders for this work. 11. Response of Ms. Catherine Warner, Florida Turnpike Representative. According to the document, Ms. Warner has information pertainiing to Open Road Responders. Open Road Responders did not submit a bid under this invitation to bid. As you know, this is the second time the wreckerltowing service contract has came before the City. RFP #2008-02 was replaced with RFP #2009-06. While there were few changes to the substance of the bid, one of the changes was to the Experience Requirement. This follows a pattern with respect to wreckerltowing services because this is the fourth time this particular requirement has been modified in two (2) bid cycles. In any event, as a result of the re-bidding process, 7 companies attended the pre-bid conference and according to the City Memorandum, 5 bids were received and reviewed. only two (2} were presented. See the response for #7 -- 74 above. The Experience Requirement started as having five (5) years of experience in the pas# six (6) without geographic limitation. It then became three {3) years of experience in the past six (6) years. It then became two {2} years of experience with one (~) year within the "boundaries of the contract." This was the first time there was a geographic limita#ion. It then became two (2} years of experience in Palm Beach County. We do not understand why these changes were made. There does not seem to be any goad reason for changing the I~ngth and geographical area four (4) times in two (2} bid cycles. A bid should attempt to encourage as many responses as possible. This attitude maximizes the profit for the City. See the response for #T -10 above. Regardless of this issue, WestWay Towing, Inc. is qualified. The Committee reviewing the proposal was asked to calf Ms. Catherine Warner from Turnpike Enterprises and was given her telephone number in the bid. No telephone call was made to her. It is obvious from the information submitted that WestWay Towing, Inc. was an owner of Open Road Responders, LLC and that Craig Goldstein had direct involvement with this wreckerltowing service, company. The bid as submitted was sufi•ICient evidence but since there was a failure by the Committee to corroborate this evidence, we have submitted additional documents. See Response to No, 2 above. Performing the Roadway Incidence, Scene Clearance Contract with the Florida Turnpike Enterprise, State of Florida, and Department of Transportation requires delivery of similar services tv the wreckerltowing services required under the RFP. Further, the exhibits to the contract demonstrate that this is being done in Palm Beach County. Accordingly, WestWay Towing, Inc. should have been properly scared and placed in competition with the other bidders. WestWay Towing, Inc. meets the Experience Requirement. See Response to No. 2 above. WestWay has alsa alleged that Beck's Towing did not provide the City with the appropriate documents. This is incorrect; Beck's Towing did indeed provide all of the required documents and copies to the City, WestWay has further alleged that they were not properly scored. I assume this is in reference to the email from Officer Finley (attached hereto} and his response to some of the allegations of WestWay Towing. Offcer Finley stated that assuming WestWay got the maximum points from all of the selection committee members then they still would not have enough to receive the recommendation of the selection committee. This is based on the fact that they are 3 points short on the franchise fee, which is a numerical calculation and will not change. They are also 5 points short on the response #ime in that Beck's time listed to respond to an accident was shorter than the time listed by WestWay and pursuant to the guidelines, they must be scored lower. Officer Finley made the assump#ion that they would be second but that may or may not be the case and if they are not second (they cannot be first as their submitted response time was greater than that submitted by at least one other bidder} in aH of the selection committee members scores then they would fall even further behind on the point totals. Based upon the responses listed above, it is my position that you were not a responsive bidder; therefore, your bid was and still should be excluded from consideration for RFP No. 2409-46. Sincerely, CITY OF DELRAY BEACH, FLORIDA B: P y Nadal, Purchasing Manager cc: Joseph Safford,"Fifiance Director Michael Weiner, Esq. Approved by G~ -''~'~ as required by the City's Bid Protest Procedure. ~'~y Manag~ ~ Approved by fired by the City's Bid Protest Procedure. City A WEINER, ARONSON & MANKOFF, P.A. ATTORNEYS AT LAW 10 S.E. 1fi' Avenue, Suite C Delray Beach, Florida 33444 Telephone: (561) 265-2666 Telecopier: (561) 272-6831 E-mail: mweinerCa~zonelaw.com MECHAEL S. WEINER CAROLEJ.ARONSON JASON S. MANKOFF January 20, 2009 Ms. Chevelle Nubin City Cleric The City of Delray Beach 100 N.W. 1 st Avenue Defray Beach, FL 33444 KERRY D. SAFIER STEPHEN B. GEBELOFF ~a Hand Deliverer Re: Request for Proposal; WreckerlTowing Service for Police Department; RFP No.: 2009-06 Our File No.: WAMC002 Dear Chevelle: Piease consider this letter a request to remove from the consent agenda, Item No. 8.P.3., that is, the matter concerning the contract award for wrecker/towing services for the Police Department for the City of Delray Beach, Florida ("City") and to postpone the matter. We have reviewed the Memorandum from Mr. Joseph M. Safford, Finance pirector, and Ms. Patsy Nadal, Purchasing Manager dated, January 14, 2009 (the "City Memorandum"). 1# fails to review the bid of Westway Towing, Inc. based upon the statement that it did not meet the bid requirements of being a business established in Pafm Beach County conducting towing services continuously for the past two (2) years. This is not correct. Attached to this iet#er are the fallowing: 1. Company Profile from the sealed bid submitted by Westvay Towing, Inc. 2. Copies of the Contract with regard to Open Road Responders., LLC and the State of Florida Department at Transportation for the fiscal years 2005-2006, 2006-2007, 2007-2008 and 2008-2009. 3. A copy of the Florida Turnpike Highway Map showing that the jurisdiction for the contract extends from US 27 in Dade County, Fiol7da to the Lantana Toil Plaza in Palm Beach County, Florida. 4. A copy of the Occupational License Information from the Tax Collector of Palm Beach County, Florida shaving the continuance Occupational Licenses for Westway Towing, inc. from September 2003 to the present. 5. A copy of the Report from Florida Departmen# of State, Division of Corporations showing Westway Towing, Inc. as the Manager of Open Road Responders, LLC and Craig Goldstein as the Registered Agent. O:IWAMCa021Letter to City Clerk re removal of agenda item.Jan 19 20a9.doe Ms. Chevelle Nubin January 20, 20Q9 Page 2 of 3 fi. A copy of the City Memorandum showing that the score of Westway Towing, lnc. was not presented.. 7. A copy of the "Experience Requirement" in the RFP of #20D4-05. 8. A copy of the Addendum to that same "Experience Requirement" for that same RFP #200405. 9. A copy of the "Experience Requirement"'for RFP #2008-D2. 10. A copy of the "Experience Requirement" far RFP #2008-06 {replacing RFP #2008-02). 19. Response of Ms, Catherine Warner, Florida Turnpike Representative. As you know, this is the second time the wreckeNtowing service contract has came before the City. RFP #2008-02 was replaced with RFP #20D9-Ofi. White there were few changes to the substance of the bid, one of the changes was to the Experience Requirement. This follows a pattern with respect to wreckerltowing services because this is the fourth time this particular requirement has been modified in two (2) bid cycles. In any event, as a result of the re-bidding process, 7 companies attended the pre-bid conference and according to the City Memorandum, 5 bids were received and reviewed. Only two {2}were presented. The Experience Requirement started as having five {5) years of experience in the past six (6) without geographic limitation. ft then became three (3) years of experience in the past six (6) years. It then became two (2} years of experience with one (1) year within the "boundaries of the contract." This was the first time there was a geographic limitation. It then became two {2) years of experience in Palm Beach County. We do not understand why these changes were made. There does not seem to be any good reason for changing the length and geographical area four (4) times in two {2) bid cycles. A bid shaufd attempt to encourage as many responses. as possible. This attitude maximizes the profit for the City. Regardless of this issue, Westway Towing, Inc. is qualified. The Committee reviewing the proposal was asked to call Ms. Catherine Warner from Turnpike Enterprises and was given her telephone number in the bid. No telephone call was made to her. It is obvious from the information submitted that Westway Towing, Inc. was an owner of Open Road Responders; LLC and that Craig Goldstein had direct involvement with this wreckerltowing service company. The bid as submitted was sufficient evidence but since there was a failure by the Committee to corroborate this evidence, we have submitted additional documents. Performing the Roadway Incidence, Scene Clearance Contract with the Florida Turnpike Enterprise, State of Florida, Department of Transportafion requires delivery of similar services to the wrecker!#owing services required under the RFP. Further, the exhibits to the contract demonstrate that this is being done in Paim Beach County. Accordingly, Westway Towing, Inc. should have been ~roperiy scored and placed in competition with the other bidders. Westway Towing, Inc. meets the Experience Requirement. O:IwAMC0021Letter to City Clerk re removal of agenda item.Jan 19 24D9.doc Ms. Chevelle Nubin January 20, 2009 Page 3 of 3 Under the circumstances, where the Experience Requirement has continued to change, and where there was substantial proof that Westway Towing, Inc, was qualified, there should be a postponement of this particular bid selection and these matters should be reviewed. If you do not postponed tonight, you will be eliminating unfairly a towing company which has the largest amount of equipment of all of the bidders, the most public contracts in the most cities and which overwhelmingly meets the specifications of your bid. We urge you to postpone the selection. We would like you to review the policy as to the Experience Requirement, We would have all qualified bidders scored and placed before you for your review. We believe this is important to the City in the safeguarding of the bidding process and receivin the highest and best bid. Very` I urs, ~ ~ ,~ ~ ~` ~ ~ Mich 1 S. Weiner ~\ MSW:ek:vf Enclosures cc: Mayor Rita Ellis (via hand delivery wlenclosures) Commissioner Woodie McDuffie (via hand delivery wlenclosures) Commissioner Mack Bernard (via hand delivery wlenclosures} Commissioner Fred Fetzer (via hand delivery wlenclosures) Commissioner Gary Eliopaulos (via hand delivery wlenclosures) Mr. David Harden, City Manager (via hand delivery wlenclosures} Susan Ruby, Esquire (via hand delivery wlenclosures) Ms. Patsy Nadal, Purchasing Manager (via hand delivery wlenclosures) Mr. Craig Goldstein (via regular mail w/o enclosures) ~~(; ~ j'E/~i~ ~1TY A~'T~~NEY O'IWAMCOO21Letter to City Clerk re removal of agenda itern.Jan 99 20.Q9.doc Table of Contents 1. Company Profile from the sealed bid submitted by Westway Towing, Inc. 2. Copies of the Contract with regard to Open Road Responders, LLC and the State of Florida Department of Transportation for the fiscal years 2005-2006, 2406-2007, 2007-2008 and 2008-2009. 3. A copy of the Florida Turnpike Highway Map showing that the jurisdiction for the contract extends from US 27 in Dade County, Florida to the Lantana Toll Plaza in Palm Beach County, Florida. 4. A copy of the Occupational License Information from the Tax Collector of Palm Beach County, Florida showing the continuance Occupational Licenses for WestwayTowing, Inc. from September 2003 to the present. 5. A copy of the Report from Florida Department of State, Division of Corporations showing 1Nestway Towing, inc. as the Manager of Open Road Responders, LLC and Craig Goldstein as the Registered Agent. 6. A copy of the City Memorandum showing that the score of Westway Towing, inc. was not presented. 7. A copy of the "Experience Requirement" in the RFP of #2004-05. 8. A copy of the Addendum to that same "Experience Requirement" for that same RFP #2004-05. 9. A copy of the "Experience Requirement" for RFP #2008-02. 10. A copy ofi the "Experience Requirement" for RFP #2009-Ofi (replacing RFP #2008-02). 11. Response of Ms. Catherine Warner, Florida Turnpike Representative. COMPANY PROFILE ,.gal Name: WestWay Towing Incorporated Locations: Company Headquarters Main Office 3681 West Oakland Park Blvd. Lauderdale Lakes, FL 3331 l Delray Location 9701 West Atlantic Ave Delray, Florida 33446 Fort Lauderdale Location 629 N.W. 7`~ Ave Fort Lauderdale, 333 ! 1 Davie Location 4701 S.W.45st Davie, Florida 33311 Telephone Number: 954-731-1115 Fax Number; 954-58.3-9347 Email Address cgoldtow@aol.com Westway Towing financials are available upon request by the City. WestWay Towing is a local Florida Corporation in business since 1990, WestWay Towing operates twenty- four fours a day, seven days a week, year round with all licenses in current standing. WestWay Towing is 100% owned by Craig Goldstein. Phone Number 954-444-4771. Address: 7204 Mandarin Dr., Boca Raton, Florida 33433 In response :;; page 17, "A" #! 5, WestWay Towing has been providing similar services continuously for the past 4 years in Palm Beacla C°unt3'• We hactdle the Turnpike Risc Progrann under the guidance of the Florida Highway Patrol from the Golden Glades Interchange to the Boynton Beach toll plaza. This police work is on a response #ime valuation 1'or every call we do, because bonus dollars are paid for timely service. This contract requires Certt~ed :owing Operators to the highest degree, Mot Certif cations, and Hazmat Certifications as well. T~ work i~tvolves the smallest cars to the rolled over gasoline tanker. We have always received our bonus. T~~ ~ 24 hours a day, seven days a week. Yau can verify this with Catherine Warner Pram Turnpike ~en~rprises. Her number is {954} 914-©092. ;~ . .:. ' .~ ~' ~1 .r' a~~ ~ { L ~ ~~ . ~,, : rr ~..t .z. f~a eush September 21, 2005 Governor fTUnE~, JJT s~~ ela ' ~ Opera Road Responders LLC r y n TransGarfairan , 3681 West Oakland Park Blvd JRMES L. ELY . Lauderdale Lakes, Florida 33311 .Executive Director Turnpike HeaOquarters: Attn: Cra Goldst J4iie Pmst 263, Bldg. ,531 m ein 5 Turkey Lake Service Plaz a Ocoee, FL 3476.1 RE: lTN-DOT-03104-8004 Msi!ing bddre:s: ~0 Box 6i3pfi9 Roadwa Incident Scene Clearance Y Ocoee, FL 3476.5 Tel: A.07,532.3999 Dearlvlr. Goldstein: www,tlor4dasturnptke.comEnclosed is afull executed co Y py of Agreement for the above-referenced prof ect for your files. We look forward to working with your company. If I can be of any assistance in ttae future, l can be reached at the phone number or email address below. Sincerely . _._.._~ Denise Roberts Procurement Specialist 407-264-3147 denise.roberts@dot.state. f].us cc: FDOT Office of the Comptroller (2 capzes) Project Manager File Flbrroa's Turnpike Syste..m' FIUrFda's TurrpikE IJ~amunE B.ee!~ne West ~iomesiez.d Fxt Palk Pkwy, 5awgrass Expvey. 5emirto!e Et!pxy. Southern Connecta~ Ezl Sunenast Fkviy IretE•~a': Expv;y. 3751144.19 PttocuR~ME?.T OGC-11.'x3 STATE OF FL4Ri~A b€PARTME?~T 4F TRAASP0RTAT1~pN Florida's Turnpike Eneergyse STANI)ARI3 WRITTEN AGREEMENT Agreement No. Financial Project 416416-]-72-01 Vendor No. Procure .meat Nv. ITN-DOT-03!04-8004 D.1vLS. Catalog C1assNo. 991-920 BY THIS AGREEMENT, made and entered into this ~~ day of , 2005, by and between the STATE OF FLOR]DA DEPARTMENT OF TRANSPORTATION, herein fifer called "Department" and OPEN 1t0AD RESPONDIrRS. LLC 35.8.1 West Oakland Park Blvd., Lauderdale Lakes Florida 33311, duly authorized to conduct business in the Stare of Florida; hereinafter called "Vendor," hereby agree as follows: S)vRVICES AND PERFORMANCE A. In connection with granting to a towing and recovery company (hereinafter called "Contractor"} a nonexclusive privilege to provide Roadway Incident Scene Clearance Services, for those events, crashes or traffic incidents described in Attachment "B", on that portion of Florida's Turnpike System, as referenced by the selection of the contractor in Exhibit 'C'. B. Before making arty additions or deletions to the work described zn this Agreement, and before undertaking any changes or revisions to such work, the parties she]] negotiate any necessary cost changes and shall tinter into an Agreement covering such work and compensation. Reference herein to this Agreement shall include any Amendment{s). C. All tracings, plans, specificatioris, maps, computer files and reports prepared or obtained under this Agreement, as weI] as all data collected, together with summaries and charts derived therefrom, shall be considered wanks made for hire and shall become the property of the Department upon completion or termination without restriction or limitation on their use and shall be made available, upon request, ~tv the Department at any time during the performance of such services andlor upon completion or termination of [his Agreement. Upon delivery to the Department of said document{s), the Department shall become the custodian thereof in accordance with Chapter 119, Florida Statutes. The Vendor shall not copyright any material and products or patent any invention developed under this Agreement. The Department shall have the right to visit the site for inspection. of the work and the .products of the Vendor at any time. D. All final plans, documents, reports, studies and other data.. prepared by the Vendor shall bear the professional's seal/signature, in accordance with the applicable Florida Statutes AdrnirtistrativeRu!es promulgated by the Department of Business and Pro€essiona] Regulation, and guidelines published by the Department, in effect at the time of execution of this Agreement. In the eveztt that changes in the Statute or Rules create a conflict with the requirements. of the published guidelines,. requirements of the Statute and Rules shall take precedence. E. The Vendor agrees to provide project schedule progress reports in a format. acceptable to the Department and at intervals established by the Department. The Department shall be entitled at all times to be advised,. at its request, as to the status of work being done by the Vendor and of the details thereof. The Vendor shall maintain coordination with representatives of the Department, or of other agencies interested in the project on behalf of the Department. Either parry to the Agreement may request and be granted a conference. F. All services shall be performed by the Vendor to the satisfaction of the Director who shall decide all questions, difficulties and disputes of any nature whatsoever that may arise under or by reason of the Agreement, the prosecution and fulfillment of the services hereunder and the character, quality, amount of value thereof; and the decision upon all claims, questions and disputes shall be final and binding upon all parties hereto. Adjustments of compensation and contract time because of any major changes in the work that may become necessary or desirable as the work progresses shall be subject to mutual agreement of the parties, and Agreement(s) shall be entered into by the parties in accordance herewith. Reference herein to the Director shall mean the Department's Executive Director, Florida's Turnpike Enterprise. Page 1 of 7 375-0x0.19 i'ROCUREMt?:T UG.C• ! i wz TEIL'y A. lnstial Term. This Agreement shall begin on date of .execution and shall remain in full force and effect through completion of al] services required or as noted in the o tion set forth below, whichever occurs first. Subsequent to the execution of this Agreement by both parties, the services to be.rendered by the Vendor shall continence and be completed in accordance with the option selected below. (Select box and indicate date(s) as appropriate): [ ] Services shall commence anal shall be completed by nr date of termination whichever occurs first. [ ] Services shall eornmence upon written notice from the Depattment and shall be completed within one_17) near or date of termination, whichever occurs first. [ X ] Other: See Exhibit "A" Section 12,0 B. RENEWALS {Check appropriate box}: This Agreement may not be renewed [X] This Agreement may be renewed for a period that may not exceed three (3) years or the term of the original contract, whichever period is longer. Renewals shall be contingent upon satisfactory perfom?ance evaluations by the Deparhnent and subject to the availability of funds, Any renewal or extension shall be in writing and executed by both parties, and shall be subject to the same terms anal conditions set forth ir; this Agreement. C. EXTENSIONS. In the event that circumstances arise which make performance by the Vendor impracticable or impossible within the time allowed or which prevent a new contract from being executed, the Department,. at its discretion, may grant an extension of this Agreement. Extension of this Agreement shall be in writing far a period not to exceed six {5) months and shall be subject to the same terms and conditions set forth in this.Agreement; provided the Department may, at its discretion,. grant a proportional increase in the total dollar amount based on the method and rate established herein. There shall be only one extension of this Agreement unless the failure to meet the criteria set forth in this Agreement for completion of this Agreement is due to events beyond the control of the Vendor, Tt shall be the responsibility of the Vendor to ensure at all times that sufficient time remains in the Project Schedule within which to complete services on the project. In the event there have been delays that would affect the project completion date, the Vendor shall submit a written request to the.Department that identifies the reason(s) for the delay and the amount of time. related to each reason. The Department will review the request and make a determination as to granting al] or pari of the requested extension. COMPENSATION AND PAYMENT A. Payment shall be made only after receipt and approval of goods and services unless advance payments are authorized by the State Comptroller under Section 235:422(14), Florida Statutes. B. if this:Agreement involves units of deliverables, then such units must be received and accepted in writing by the Contract Manager prior to payments. C, Billsfor fees or other compensation for services or expenses shall be submitted in detail sufficient for a proper preaudit and postaudit thereof. D. Eills for.ariy travel expenses, when authorized by ter-rrts of this Agreement and by the Department's Project Manager, shall be submutted in accnrdance with Section 112.061, Florida Statutes, and Chapter 3 -Travel, Department's Disbursement Operations Manual, 35i}-03:0-400. 1;. Vendors providing goods and services to the Department should be aware of the fo.Ilowing time frames. Upon receipt, the Department has five (S) working days to inspect and approve the goods and services, unless otherwise specified herein. The Department has twenty (20) days to deliver a request for payment {voucher) to the Department of Banking and Finance. The twenty (20) days are measured from the latter of the date thesnvoicets received o.r the goads or services are received, inspected and approved. Page 2 of 7 ?75-04U-] Q AROCURI:M~N"! O~GC-1 7 Kit F. If a payment is not .available within forty (40) days, a separate interest. penalty as established pursuant to Section 2I5.422, Florida Statutes, shall be due and payable, in addition to the invoice amount, to the Vendor. lnterest penalties of less than one (1) dollar shall not be enforced unless the Vendor requests payment. Invoices returned to a Vendor because of Vendor preparation errors steal] result in delay of payment. The invoice payment requirernents do not start until a properly completed invoice is provided to the Department. G. A Vendor Ombudsmanhas been established within the DepartrnentofBanking and Finance. The dunes ofthis individual include acting assn advocate for vendors who. may be experiencing problems in obtaining timely payment{s) from a state agency. Tate Vendor Ombudsman may be contacted at (850) 410-9'724 or by calling the State Comptroller's Hotline; 1-800-848-3792. H. Records of costs incurred under tem~ts of this Agreement shall be maintained and made available upon request to the Department at all times during the period of this Agreement and fnr three (3) years after final payment for the work pursuant to bias Agreement is made. Copies of these documents and records shall be furnished to the Department upon request. Records of casts incurred shall include the Vendor's general accounting retards and the project records, together with supporting documents and records, ofthe Vendor and all subcontractors perfaz~ning work on the project, and all other records of the Vendor and subcontractors considered necessary. by the Lepartment far a proper audit of project casts. Tile Department, during any f seal year, shall not expend money, incur any laabili.ty, or enter into any contract which, by its terms, involves the expenditure ofmoney in excess of the amounts budgeted as available far expenditure during such fasca] year, Any contract, verbal .or written, made in violation of this subsection is null and void, and no money maybe paid an such contract. The Department shall require a statement from the Comptroller of the Department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding one { I) year,,but any contract so made shall be executory only fox the value of the services to be rendered or agreed to be paid for in succeeding fists] years. Accordingly, the Department's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature. 4. INDEMNITY AND PAYMENT FOR CLAIMS A. Il\rDEMNITY: The Vendor .shall indemnify and hold harmless, the Department, its officers and. employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by negligence, recklessness, or intentional wrongful misconduct of the Vendor and persons employed or utilized by the vendor in the performance of this Agreement. It is specifically agreed between the parties executing this Agreement that it is not intended by any of the provisions of any part of the Agreement to create in the public or any member thereof, a third parry beneficiary hereunder, or to authorize anyone not a party to this Agreement to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Agreement. PAYMENT FQR CLAIMS: The Vendarguaranties the payment of all just clairris for materials, supplies, tools, or labor and other just claims against the Vendor or any subcontractor, in connection with. the Agreement. The Department's final acceptance and payment.does-not release the Vendor's. bond until al] such claims are paid or released. B. LIABILITY INSURANCE. (Check and complete as appropriate): ~ ] No genera] liability insurance required. E X~ The Vendor shall .carry and keep in force during the period of this Agreement a general liabilitysnsurance policy or policies with a company ar companies authorized to do business in Florida, affording public liability insurance with combined bodily injury linvts of at.lesst 300 000 per person and $300;000 each occurrence, artd property damage insurance of at least $150.000. each occtu'renee, for the services to be rendered in accordance with this Agreement. ( ~ The Vendor shall have and maintain during the period of this Agreement, a professional liability insurance policy os policies or an irrevocable letter of credit established pursuant to Chapter 675 and Section 337.105, Florida Statutes, with a company or companies authorized to do business in the State of Florida, affording liability coverage for the professional services to be rendered in accordance with this Agreement in the amount of Page 3 of 7 375-040-19 PROCL' REM EN? UGC-1 I /Q2 C. WQRKER'S COMPENSATION. The Vendor shall also carry and keep in force Worker`s Compensation insurance as required for the State of Florida under the Worker's Compensation Law. D. PERFORMANCE AND PAYMENT BAND. (Check as appropriate): [X] No Bond required. [ .] Prior to convnencement of any .services pursuant to this Agreement and at all times during the term hereof, including renewals and extensions, the Vendor shall supply to the Department and keep in farce a band provided by a surety authorized to do business in the State of Florida, payable. to the Department and conditioned for the prompt, faithful, and efficient performance of this Agreement according to the terms and conditions hereof and within the time periods specified herein, and for the prompt payment of al] persons furnishing labor, materials, equipment and supplies therefore. The bond shall be provided annually in the amounts set forth in Exhibit "$", Method of Compensation. E. CERTIFICATIQN. With respect to any insurance policy required pursuant to this Agreement, all such policies shall be issued by companies licensed to do business in the State of Florida. The Vendor shall provide to the Department certificates showing the required coverage to be in effect and showing the Department to be an arlditianal certificate holder. Such policies shall provide that the insurance is not cancelable except upon thirty.1:30) days prior written notice to the Department, CO1vIPLIANCE WITH LAWS A. The Vendor shall allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 319, Florida Statutes, and made or received by the Vendor in conjunction with this .Agreement. Failure by the Vendor to grant such public. access shall be grounds far immediate unilateral cancellation of this Agreement by the .Department. $. The Vendor agrees that it shall make no statements, press releases or publicity releases concerning this Agreement or its subject matter or otherwise disclose or permit to be disclosed any of the data pr other information obtained ar furnished in compliance with this Agreement, or any particulars thereof, during the period of the Agreement, without first.natifying the Department's Contract Manager and securing.prior written consent. The Vendor also agrees that it shall not publish, copyright or patent any of the data developed under this Agreement, it being understood that such data or information are works made far hire and the property of the Department. C. The Vendor sha]I:comply with all federal, state-and local laws and ordinances applicable to the work or payment for work thereof, and shall not discriminate on the grounds of race, color, religion, sex, national origin, age; or disability in the performance of work under this Agreement. D. If the Vendor is licensed by the Department of $usiness and Professional Regulation to perform the services herein contracted, then Section 337.] 52, Florida Statutes, applies as follows: ( l.) If the Department has knowledge or reason to believe that any person has violated the provisions. of state professional licensing laws or rules, it shall submit. a complaint regardm. g the violations to the Department of Business and Professional Regulation. The complaint shall be confidential. {2) Any person who is employed by the Department and who is licensed by the Department of Business and Professional Regulation and who, through the cpurse of the person's employment, has knowledge to believe that any person has violated the provisions of state professional licensing laws or rules shall submit a complaint regarding the violations to the Department of Business and Professional Regulation. Failure to submit a complaint about the violations maybe grounds for disciplinary action pursuant to Chapter 45S,.Florida Statutes, and the state licensing law applicable to that licensee. The complaint shall be confidential, (3) Any complaints submitted to the Department of $usiness and Professional Regulation are confidential and exempt from Section 1.19,07{ l ), Florida Statutes, pursuant to Chapter 455, Florida Statutes, and applicable state law, Page 4. o.f 7 37g-040-19 PROCtJREMEA'T OGC-1 1lQ2 1;. -The Vendor covenants and agrees that it and its employees shall be bound by the standards of conduct provided in applicable Florida Statutes and applicable rules of the Board of Business and Professional Regulation as they relate to work performed under this Agreement. The Vendor further covenants and agrees that when a former state employee is employed by the Vendor, the Vendor will require that strict adherence. by the former state employee to Florida Statutes ] 12.313 and 1 ] 2.3185 is .a condition of employment for said former state employee. These statutes will by reference be made a part of this Agreement as though set forth in full. The Vendor agrees to incorporate the provisions of this paragraph in any subcontract into which it Wright enter with reference to the work performed pursuant to this Agreement. F. A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not suhnut a bid, prapos.a] or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal ar reply on a contract with a public entity for the canstnactian or repair ofa public building or public work, may not submit bids., proposals or replies on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATRGORY TVJO for a period of thirty-six (3.6} months following. the date of being placed on the convicted vendor list. G. An.entiry or affiliate who has been placed on the discriminatory vendor list may not submit a bid on a contract to provide any goods ar services to a public entity, may not submit a bid, proposal or reply on a contract with a public entity for the construction or repair of a public building ar public work, may not submit bids, proposals or replies on ]eases of real property to a public entity, may..not be awarded or perfbtml work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and tray not transact business with any pubic entity. H. The Department shaI] consider the employment by any vendor of unauthorized aliens a violation of Section 274A(e} of the Immigration and Nationality Act. If the vendor knowingly employs unauthorized aliens, such violation shall be cause for unilateral .cancellation of this Agreement. TERMINATION AND DEFAULT A. This Agreement may be canceled by the Department in whole or in part at any time thetritertst of the Department requires such termination. The Department further reserves the right to terminate or cancel this Agreement in the event an assignment be made far the benefit of creditors. B. If the Department determines that tle perfornriance of'the Vendor is not satisfactory, the Department shall have the option of (a) immediately terminating the Agreement, or (b.) notifying the Vendor of the deficiency with a requirement that the deficiency be corrected within a specified time, otherwise the Agreement will be terminated at the end ofsuch time, or (c) take whatever action is deemed appropriate by the Department. C. If the Department requires termination of the Agreement for reasons other t}ian unsatisfactory performance of the Vendor, the Department shall notify the Vendor of such termination, with instructions as to the effective date of termination or specify the stage of work at which the Agreement is to be terminated, D. If the Agreement is terminated before performance is completed, the Vender steal) be paid only fpr that work satisfactorily performed for which costs can be substantiated. Such payment, however, may not exceed an amount that is the same percentage of the agreement price as the amount of work satisfactorily completed is a percentage of the total work called for by this Agreement. All work in progress will become the property of the Department and will be turned over promptly by the Vendor. ASSIGNMENT AND SUBCQNTRACTS A. The Vendor shad] maintain an adequate and competent staff so as to enable th.e Vendor to timely perform under this. Agreement and may associate with it such subcontractors, for the purpose of its services hereunder, without additional cost to the Departinent, other than those costs within the ]izrvts grid terms of this Agreement. The Vendor is fully responsible for satisfactory completion of all subcontracted work. The Vendor, however, shall not sublet, assign or transfer any work under this Agreement to other than subcontractors specified in the proposal, bid and/or Agreement without consent of the Department. i'aSe 5 bf 7 375,UdF5-19 P3tOCUR~.M~'v'T OGC-1 I i03 H. Select the appropriate box: [ X ] The following provisions are not applicable to this Agreement. [ ] Tate following provision is hereby incorporated in and made a part of this Agreement: It is .expressly understood and agreed that any articles that are the subject of, or required to carry out -this Agreement shall be purchased from a nonproftt agency for -the blind or for the severely handicapped that is qualified pursuant to Chapter 43 3, Florida Statutes, in the same manner and under the same procedures set forth in Section 413..036(1) and. (2), Florida Statutes; and for purposes of this Agreement,. the person, firm, or other business entity (Vendor) carrying out the provisions of this Agreement shall be deemed to be substituted far the State Agency (Department) insofar as dealings with such qualified nonprofit agency are concerned. [ ] The fallowing provision is hereby incorporated in and made a-part of this Agreement: It is expressly.understoad and agreed that any articles that are the subject of, or required to carry out this. Agreement shall be purchased from the corporation identified under Chapter 446,. Florida Statutes, in the same manner and under the procedures set forth in Section 946._515(2) and (4}, Florida Statutes; and for purposes of this Agreement the person, firm, or other business entity (Vendor).carryngoutth~ provisions of this Agreement shall be deemed to be substituted for this Agency (Department) insofar as dealings with such corporation. The "corporation identified" is Prison Rehabilitative Industries and Diversified Interprises, inc. (PRIDE). Available pricing, products,. and delivery scltedu}es may be obtained by contacting: PRIDE Enterprises (Attn: Bid Adn~nistrator) 12425 28th Street North St. Petersburg, Florida 33716-1826 Telephone:{$00)643-8459 j ] This Agreement involves the expenditure of Federal funds and hence, Section 94b.51 S, Florida. Statutes, as noted above, does not apply. However, Appendix I is applicable to all parties and is hereof made a part of this Agreement. MTSCEI.LANEOLTS A. The Vendor and the Department agree that the Vendor, its employees, and subcontractors are not agents of the Department as a result afthis: Agreement for purposes other than those set out in Section 337.274, Florida Statutes. $. All words used herein in the singular form shall extend to and include the plural. All words used in the plural farm shall extend to and include the singular. Afl words used in any gender shall extend to and include all genders. C, This Agreement embodies the whole agreement of the parties. There are na promises, terms, conditions, or obligations other than those contained herein, and this. Agreement shall supersede all previous communications, representations, ar agreements,. either verbal ar written, between the parties hereto. D. It is understood and agreed by the parties hereto that if any part, term or provision of this Agreement is kty the courts held to be illegal or in conflict with any law of the State of Florida, the validity of the remaining portions or provisions shall no.t be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term .ar provision held to be invalid. E. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida I'. In any legal action related to this Agreement, instituted by either party, the Vendor hereby waives any and all privileges and rights it may have under Chapter 47 and Section 337.19, Florida Statutes, relating to venue, as it now exists or may hereafter be amended, and .any and all such privileges and rights it may have under any other statute, rule, ar case law, including, but not. limited to those grounded an convenience. Any such legal action maybe brought in the appropriate Lauri in any county chosen by the Department and in the event that any such legal action is filed by the Vendor, the Vendor hereby consents to the transfer of venue to the county chosen by the Department upon the Department filing a motion requesting the same. Page 6 of 7 ! lS~14U• l 9 PROCL'REM EuT occ-r i w~ G. If this Agreement involves the purehase of maintenance of machines or computer hardware/software or licensed programs, Appendix II maybe applicable; and is made a part of this Agreement if attached. H. Time is of the essence as to each and every obligation under this Agreement. Attachments: Exhibit "A" and it's Ariaehment,A, B, C, D, Exhibit ")3", Exhibit "C", Exhibit "D" are made a part of this .Agreement. IN VWI1'NESS WHEREOF, the parties have executed this Agreement by their duly awthorized officers on the clay, month and year set forth above. STATE OF FLORIDA OPEN ROAD,RESPONDERS. LLC DEPARTMENT OF TRANSPORTATION T`'arne of Ven _~ ~ By: ~~ (Authorized Sig~e) ,,, ~~ ~ ~ ChX15t0 her L: Warren Name) ~ (Print/Tyge Name) Title: (.President /Owner) Title: Depu#y Executive Director and COO )FOR DEPARTMENT USE QNL~' APPROVED: LEGAL APPROVAL: Procurement Office r ~~ Page 7 of 7 ITl`-DOT-03104-8004 FPI Na. 4164}5-1-72-D1 ~+1Ai.1Li~~ J, u~~~ ~~.~~~SE~~s ~.~~~ of ~~v~~.~~ FAGIk,TY SEGI~'IEI`~T' CHECK YEJUR CQVERACE ARE,~S *HEFT MP 0 to MP 10 ^ HEFT MP 10 to MP 20 ^ HEFT MP 20 to MP 30 ^ HEFT MP 30 to MP 40 ~ HEFT and Florida's Turnpike and SPUR MP 40 to MP 46.5 MP 46.5 to MP SO OX - 3:42X X Florida's Turnpike MP 50 to MP 60 )C Florida's Turnpike MP b0 to MP 70 ~ Florida's Turnpike MP 70 to MP SD X Sawgrass Expressway Entire Length ~ Florida"s Turnpike MP $0 to MP 90 ?C Florida.'s Turnpike MP 90 to 1vIP 100 ^ Florida's Turnpike. MP 100 to MP 1 l 0 ^ Florida's Turnpike MP 110 to MP 120 ^ Florida's Turnpike MP 120 to MP 130 ^ *Homestead Extension of Florida's Turnpike C-t ,t s E., C.~f~'~~~~'~, c 4~ < ~'~::~ ~. ;~ ~ L \~ l"' 7 C ' " ~ r' _r._~_s- r_r~~' .; F'i.'F! NiF c.. Alar' ^er: :.f .rr r.~r.. G° ~FJ. efIC Ff. ,' n.' r"r. '.,, ~Ic',. lEB 8'USli Govera'or pENVER !, STUTLER,fR. Secretary of Transpurtafma IAMES l ELY Executive DuecfoF Turnpike Headquarters: Mile Past 26.3, 81dg. 53]5 Turkey lake Service Pl.aia O~aea,Fl 34751 Mailing Address: P 0. Bar 613059 Ocoee. FL 3di61 Tel 407.532,3999 www.tlaridasiurnpike,tom 3uly 28, 2006 Open Road Responders, LLC 3681 West Oakland Park Bivd. Lauderdale Lakes, FIorida 33311 Atrn: Mr. Craig Goldstein RE: ITN-DOT-03f04-8004 Roadway Incident Scene Clearance Dear Mr. Goldstein: r - p~ Enclosed is the Amendment to our Agreement for the above-referenced project. Please execute both (2) copies and return the complete package to me vwithin ten (10) days'. Please leave the date of the contract blank so that it can be filled in ai the time the amendment is executed by the Department. Sincerely, ~~/ Denise Roberts, CPPB Procurement Specialist 407-264-3147 d enise.robertsnd at. state. fl . us„ Florida's lurnpi:;e S; stern: Flondz's la!npike td,a~ni~ne Beeline Vilest i#omestead Ext. Polk Pkwy. 5awgrass Ezpwy 5eminale Ezaxy, Suuihern Gonnettol Exi Suncpast Pkwy. Veterans Ezpwy. 1TlV-DOT-03104-8004 1=Pi N4.4io""416-1-~2-01 E[~~JlTATl01~ Td NEGCTl~iTE FLC3RlD~'S T(~R~tPlKE ENTERPRISE EXHIB[T "k" SCOPE aF SER1~lGES RO~~O,D~-~Y lt~ClDENT SCENE CLEA,R~thECE FLORiD~ TI~RNF~lKE, ENTERPRISE iiVIQE ExFai~it ",~,~ iT"N-flOT-03f04-.80434 fiPI No. 4I6416-I••72-p1 ~'4~,G~.~~..Ck®A~7A~~1~ 7 1rLi`i-7 1~C~D~~~A~1' >iNC~gE1~T SCENE CLE.~AN~1~ i.Q PROJECT OBJECT1iVE . ! .~ 7,. -•- ', F:~.f r~ t:...;ir~~ ~'~ ."•`.'.~~p..~nb ~::.1•.lia, of+u i+:,iaLe Oi Florida & w"at ~f4C.iiwG, iifgll yua]iiy, :1n11'rJf:.L::..:: infrastructure, the Florida .Department of Transportation {hereinafter "Department") has implemented the "open Roads Policy" attached hereto as Attachment "A" for Quick Clearance for Safety and Mobility to make travel in Florida safer and -more efficient. Consistent with the Qpen Roads Policy, Florida's 't'urnpike Enterprise (hereinafter "Turnpike"), has adopted an innovative clearance strategy by implementing the Roadway Incident Scene Clearance Program in order to significantly reduce the time it takes to clear major accidents and incidents. 1.2 Towing regulations for heavy-duty wreckers currently used in Florida were developed decades. ago. Heavy trucks hauling larger Ioads now require specialized equipment and skilled operators to quickly remove them after an incident. This contract provides an incentive to clear wreckage and open roads as Quickly as possible. This contract does not eliminate the current .Class "C" (Heavy duty} wrecker class that will continue to be utilized to remove trucks and busses that are disabled. 1.3 Florida's Turnpike system includes: Homestead Extension Florida's Turnpike, Milepost (MP) 0.0 to 45.5; Florida's Turnpike Mainline MP 46.5 to 3.12,0 and OX TO 3.342X, and Sawgrass Expressway, MP ()A to 22.5, Beeline Expressway, 8.4 m1]es, bast-West Expressway, 1.7 miles, Southern Connector Extension,. entire length of 6.2 Miles, Seminole Expressway, entire length of 17.6 miles, Polls Parkway entire length of 24.5 miles, Veterans Expressway 13.5 miles, Veterans Spur entire length of 3 Miles, Suncoast Parkway 41.4A rniles and all interchanges, ramps, feeder, and connector roads. iA GEllTERAL DESCRIPTIf,~N 2. ] The Turnpike shall grant to a towing and recovery company (hereinafter "Contractor"} a nonexclusive privilege to provide Roadway Incident Scene Clearance Services, for those events, crashes or traffic incidents described in Attachment "B"; on that portion of Florida's. Turnpike System selected by the Contractor. 2.2 The Contractor agrees to provide the professional incident clearance and vehicle recovery services in accordance with the terms and conditions described herein and in compliance with all Florida Highway Petro] {hereinafter "FHP") local city and county police officers, and Florida Department of Transportation Rules, Regulations, all local city and county Rules and Regulations, and applicable provisions of the Florida Administrative Code and Motor Vehicle Statutes. The Contractor's relationship to the Turnpike is that of an independen# contractor authorized to perform incident scene clearance and vehicle recovery services on Florida's Turnpike System in strict compliance with the terms and conditions contained herein. 2.3 Should the Turnpike determine that the Contractor under this agreement is unable to assist, perform, or provide adequate services or equiprrient, the Turnpike reserves the right to utilize additional services or equipment from any available source. T~Se Turnpike also reserves the right to modify the designated 3imits of responsibility of the Contractor at any time. 2.4 The Contractor and all their operators, employees and subcontractors shat] cooperate and comply with the guidance of the Florida Highway Petro] (FHP} or Ttzmpike authorized representatives pertaining to scene safety and traff c control. 3.U GENERAL REQUTREII~ENTS 3.1 The Contractor shall perform all work in accordance with Department Specifications (including al] Supplemental Specifications and Special Provisions in the Specifrcatian Workbook), 'Design Standards, MUTCD, and Manuals, which can be retrieved through the Internet at: htt ://wwwl.l.rrlvfSorida.com/s eci#icationsoffce/ A-] ITN-DOT-()31U4-sUU4 FPI No, 4Ib41.6-~-72-OI 3.2 Proper health and safety measures will be taken to insure safety for the traveling public; Department employees, Contractor employees, and Subcontractoremployees. 3.3 The Contractor shall comply with the ~['urnpike's Lane Closure Policy. ~.0 INCII3ENT RESPONSE REQi3)~EMENTS ,~ ,? ?''L C:nntractor shall resnr.^,d tc Tumps,-e rpnnFc+c fnr -rp:;Cle ''r _vF~ ~ ~„rl ..~.._"''^~ £:",':~?"5u':: ~:.'::: ..,, -) - possible but na later than fifteen (15} minutes from the 1r HP or the Department's authorized representative initial .contact with Contractor. The Contractor aclmawledges that tune is of the essence and shall arrive vt+ith the two Recovery Wreckers and the Recovery Support Vehicle with required equipment, and materials as specified in Attachment "C", and with all necessary traffic control devices at the incident site within one hour from the Department's initial contact with Contractor , The need for additional trucks and heavy equipment shall be jointly determined at the incident scene by the Department authorized representative, FHP, and the Contractor's representatives. The need for the additional trucks and heavy equipment described herein shall, not increase the time required by the contractor to perform services. 4.2 The Contractor shall be available to provide these services on a twenty-four (Z4) boars a day, seven (7}days a week. The Contractor shall provide the Turnpike with a telephone number at which the Contractor can be contacted at all times. 4.3 TIlVIE I.S OF T)FiE ESSENCE IN THIS CONTRACT. Upon Turnpike's request for roadway incident scene clearance services, the contractor shall provide the Turnpike an estimated arrival time. The Cantractor will not transfer calls for recovery sezviees to another Contractor. 7.he response time specified herein shall be strictly enforced. Failure. to respond to a call for recovery services or arrive at the incident site, within the time xequired and with all necessary materials- and equipment as specified herein, shall be considered a breach of this Contract and shall warrant suspension of xecavery services until the breach is cured to the satisfaction of the Department andlor declaration of contract default. S.C 'PERtdIINATiON 5.1 The Turnpike reserves the right in its sole discretion to terminate this agreement for breach of a terrn of this agreement, upon thirty {30) days written notice to the Contractor by certified mail.. 5.2 The Turnpike reserves the right to terminate this agreement at any time, far any reason, upon sixty (64} days prior written notice by certified mail. 5.3 Change of ownership or termination of the Contractor's business shall be grounds for immediate termination of this agreement. 6.0 ENDE31'INITY AND INSURANCE 6.1 The Contractor shall maintain all insurance coverage in compliance with the Florida Highway Patrol's Authorized Wrecker Program (refer to Florida Administra#ive Code Rule Chapter 15B-9}. in addition, the contractor shall indemnify and hold harmless the Turnpike, the Florida Highway Patrol, their officials, officers, employees, consultants and agents from and against any and all liabilities, claims, injuries, damages, penalties, actions, suits, losses, costs expenses and attorneys' fees resulting from or arising out of Turnpike requests far vehicle recovery services or incident scene clearance on Florida's Turnpike System. 7.0 1ViISCELI.ANEOT~S 7.1 This is anon-exclusive agreement. The Turnpike intends to allow other companies to }perform vehicle recovery and incident scene clearance on a rotation basis within the area being. serviced by the Contractor. initially, assignment within a rotation shall be based on contract execution date with the contractor having the earlier contract execution date given the first roadway incident scene clearance. Once a contractor performs roadway scene clearance services, the contractor will be placed at the bottom of the rotation. New ~contractars added to the rotation will always be added to the bottom of the rotation even though another contractor may have already perforrned services as the rotation existed at the tune of contract execution. A-2 1T1~-D U'1'-U 3/U4-~UU4 1=P1 No. 416416-1-7~-01 7.2 If the Coratractar is contacted by a patty other-than FHP or the Turnpike to provide the services described herein on the Turnpike, the Contractor shall notify the Turnpike of the request priox to responding. Failure to do so will automatically cause the Contractor to forfeit the performance payments- contained in Exhibit `B" Compensation. Hawe~er, the contractor would be eligible for the performance payments if the contractor was a# the top of the rotation list and authorized by FIdP or Turnpike prior to responding. 7.3 ,The Contractor or any of its operators nr employees utill not iv:o~.ride ?nv ;rani*i°c, commissia'1s. kick-bac?:s or complimentary services of any kind to any Turnpike or i•~Il' officials, officers, employees, consultants or agents. S.a RECOVEF~Y ARE~-S 8.1 The Turnpike may review the recovery area boundaries periodically to ensure that level of service in each area is consistent with the quick cearance goals stated in the Open Roads Policy. 8.2 Recovery wrecker companies need not be located within the area boundaries, but they must mobilize and respond to calls within the indicated response time. 8.3 This agreement covers Wehicle Recovery and Incident Scene Clearance by the Contractor for those portions of the following roads of the mainline roadway, interchanges, ramps and approaches to or wiiliin soli plazas under the junisdictian and operational control of Florida's Turnpike Enterprise and selected by the Contactor. BESCRIPTIOItT COUNTY Homestead Extension Florida's Turnpike iami-Dade 0-40 MP U - 46.a Broward 40.46.5 Save rasa Ex resswa Broward 22.5 miles in len Miami-Dade SPUR - OX - 3,342X Broward 46.5 - 73 alm Beach 73 -117.75 'n 117.75 - 138. Fiorida's'Furn ike St: Lucie 138-173 p Indian River 173 - i 81 Okeechobee. 18.1- 190.5 Osceola 190.5 - 249.5 Oran a (ivlP 249.5 - 274.3 Lake 274.3 - 297.9 East-West Ex resswa Sumter 297.9 - 312 Oran a from Turret i;ke to 1.7 miles east Beeline Ex ressway Oran a from I-4 to 8.4 miles east Southern Connector Extension Oran a and Osceola 6.2 miles in len h 5err~inole Ex resswa . Seminole 17.b miles in len Polk Pn~kwa olk 24.5 Miles in len h Veterans Ex resswz HiIlsborou. h .13.5 Miles in Ien Veterans Ex resswav S tsr illsborou h 3 miles in len illsborou h ( 13.5-18 Suncoast )Parkn~ay aseo (MP 18-37 emanda 37-54 8.4 From the roadway described in 8.3, the Contractor has selected to provide services for those areas described in Exhibit `'C". A-3 111~-}.'V A'V~.V. VVV. FPl ?~?o. d ] 64 l b- ] -72-41 g,0 CQli'TRAC'I'OI3 REQ>;iIItEI~IENTS ANIZ QUALIFICATIaNS 9.1 The ultimate equitable owner/owners of the wrecker company shall be required to submit documentary proof showing previous experience and extensive knowledge in working Heavy Duty Towing and Recovery business. The Project description, dates, photos and locatiens of successfully completed projects shall be submitted with tie vv±~~...v.vfJ pr. Yvv . +•e..~-a ~~ ILA a•.e,aa~..~uvi +raai vv _va1~11i,~+ait Vn lilt, u:.iuvil3~iated experieri~;,, u1V N'1L11~'G and quality of work. 9.2 When applicable, the Company must be registered with the State of Florida Departrrsent of Agriculture and Consumer Services and maintain registration for the term of the Agreement. 4.3 If the Contractor`s primary place of business is located within a county or municipality that requires by local ordinance, an occupational license, said license must be maintained for the term of the Agreement. 9.4 The Contractor must comply with all Rules and Statutes and provide evidence of current and valid insurance coverage required by the State of Florida and by the Florida Highway Patrol Authorized Wrecker Program. 9.5 The Contractor must maintain current and up to date CDL driving records, employment records and training records on al] Operators and make them available for inspection by the Florida Highway Patrol and Florida Department of Transportation or their authorized representatives. 9.6 The Contractor shall be proficient -and able to demonstrate "Bxpeditcd Roadway Clearance Practices" and "incident Scene Safety" including: Single lane uprighting of loaded txactor trailers E Relocation of loaded, overturned, tractox trailers from travel lanes The Contractor shall be or become proficient and able to demonstrate such proficiency in the following areas within the time frames specified in 10.1. Setting up incident scene Traffic Control in accordance with the Manual on i3niform Traffic. Control Devices (MUTCD} The mitigation of accidental discharges of motor vehicle fluids, per the Florida Guidelines I0.0 QUALIFICATIONS, TRAINING AND CERTIFICATION OF CaNTRACTOIt'S OPERATORS 1~.1 Within sixty (60) days of the execution of this agreement ar sixty days of their hiring date, all Recovery Wrecker Operators must: A. Meet the State of Florida Wrecker Operator Certification Program requirements for experience and training and wear their approved Certification card whene«r working an the Turnpike. B. Complete Basic and Intermediate Maintenance of Traffic training from a certified Department approved training agency. C. Receive instruction, training and if applicable, examination in each of the following specialized recovery wrecker operator services: This training shall be conducted by recognized and approved instructors. Heavy Duty V1Wrecker Operations Ultra Heavy Wrecker and Recovery Practices Hazardous 1Vlaterials Awareness • Traffic Incident Management Practices. including: 1. Incident Scene Traffic Safety 2. The Florida "Open Roads" policy 3. The Florida "Guidelines for the Mitigation of'Accidental I~ischartres of Motor Vehicle Fluids(Non-Cargo} d. Incident Scene Traffic Control in accordance with the Manual of Uniform Traffic CAn~rol Devices tMU~'CD} A-4 ITN-DOT-03/Oa-8004 1~I'1 No. 416416-1-72-01 s l.a .~RRI/~~ ~Tx rla .~v,~.l~>~.~ >~aa~~va,~ ~1vcIDEN~' sCEn~ CLEt~r1cE CONT~,,C~'oRs 1 ] .1 It is anticipated that there may be areas in which the Department does not have under contract a Roadway Incident Scene Clearance contractor ar tune when a contractor or contractors. for an area are unavailable to respond to a request for services. In such situations the Department reserves the right to contact any available roadway incident scene clearance contractor. The Department will attempt to call that contractor whose `:c:l:ties ar.-~ear to ]~e clos:t f~ the a~,c=:d~t. Such c~n+xactor s?~~11 be eligible fer performane~ payrrPr.+, ur_der paragraphs 2.2 and 2.3 of Exhibit `B"provided the contractor is able to respond immediately with the two required recovery wreckers and recover support vehicles regardless of whether or not the contractor arrives on the scene within the required 60 minutes provided all travel lanes are open within 90 minutes after the notice to proceed is given by FHF and/or the Department authorized representative. The Contractor's should also be. eligible .to receive any additional performance payments provided the contract times are met, l 1.2 The Contractor may be contracted to provide services in accordance with paragraph 11. l above. i2.0 CQNTRACT T]ER112 The term of the agreement will be from the date of contract execution through December 31 of the calendar year of contract execution ar December 31 of the fallowing calendar year if the original contract term would be less than six months. 13.0 CONTRACTQR PERFORiKANCE 13.1 The Department will evaluate the Contractor's performance following each incident and will maintain such evaluations for use in administering this contract and in future contract awards. 14.0 PAYMENT OF TOLLS 14.1 The Contractor's attention is directed to the fact that the Contractor will be required to pay tolls, as applicable to the genera] public. 1 S.0 ~YFI;~DRIDAiviARK.ETF~,ACE TR,4.R'SACTI~N FEE This procurement is subject to the MyFloridaMaketI'lace transaction fee, pursuant to Rule 60A-1.031. A-5 1TN-DQT-03104-8004 FPS Na. 416418-1-72-01 ~h'~IT~TIQ[~ TQ 1~E~C~Tl/~TE FL~RED~'S TI~F~t`lPIECE E[tITE~PF~ISE ~TTpeC!-6 f-~E~TS F~C~Cf~i~.Y lF~Cl~Ei~T SCEf~E CLE~,RAl~CE FLOR!!~~ TU6~t~PI6GE, El~TERPRISE SIDE AT~'~iCHhIcE E~35 t 7-t.~-17or-o3 ia4-sao4 FP1D No.: 416416-1-72-a 1 fl`T'TAC]KNLEI~T 'A' Mate of Florida •`OPl/]-I READS POIvICY" ~ir~dck ~leararue for Safety are d 1~'obility This agreement by and between 'the Florida Highway Patrol (FHP) and the Florida Department of Transportation (FOOT) establishes a policy for FHP and FUOT personnel to expedite the removal of vehicles, cargo, and debris from roadways on the State Highway System to restore, in an URGENT :IvIANNER the safe and orderly flow of traffc following a motor vehicle crash ar incident on Florida's roadways. Whereas: Public safety is the highest priority and must be maintained. especially when injuries ar hazardous materials are involved. The quality of life in the State of Florida is heavily dependent upon the free movement of people, vehicles, and commerce. The FHP and FOOT share the responsibility for achieving and maintaining the degree of order necessary to make this free movement possible. Agencies have the responsibility to do whatever is reasonable to tedu~ce the risk to responders, secondary crashes, and delays. associated with incidents,. crashes, roadway maintenance, construction, and enforcement activities. The following operating standards are based on the philosophy that the State Highway System wil! not be closed or restricted any longer than is absolutely necessary. Be it resolved: Roadways will be cleared of damaged vehicles, spilled cargo, and debris as soon as it is safe to do so. It is understood that damage to vehicles or cargo may occur as a result ofclearing the roadway on an urgent basis. While reasonable attempts to avoid such damage shall be taken, the highest priority is restarifig traffic to normal conditions. lncident caused congestion has an enormous cost to society. Florida Hi,~ h way 1'atral Responsih~ity Members of FHP who respond to the scene of traffic incidents will make clearing the travel portion of the roadway a high priority. When an investigation is required, it will be conducted in as ~.xpedient a manner as possible considering the severity of the collision. Nan-critical portions of the' investigation may be delayed until lighter traffic conditions allow completion of those tasks. The Fl-i~' will close only those lanes absolutely necessary to safely conduct the investigation. The FHP will coordinafi~ with FOOT representatives to set up appropriate traffic control, Establish alternate routes, expedite the safe movement of tfai'~f is at the scene, and restore the roadway to normal vonditions as soon as possible. Page 1 Whenever practical, damaged vehicles on access controlled roadways will be removed to off ramps, accident. investigation sites, or ether safe areas for r~om~lPttion r.f investigations to redwee the delays associated with motorists slowing to "gawk". Tow trucks will be requested as soon as it is evident that they will be needed to clear the roadway. FHP will assure that aI] authorized tow operators have met established competency levels and that the equipment is of appropriate size, capacity, and design to meet. al I standards of the State of Florida. The FHP will not unnecessari]y cause anydelay in reopening all or part ofa roadway to allow a company to dispatch its own equipment to offload cargo or recover a vehicle or load that is impacting traffic during peak traffic hours or creating a hazard to the public. The FHP and FDOT will cooperate in planning and implementing clearance operations in the most safe and expeditious manner. Florida Department ofTranspartation Responsibilities When requested by FHF or other emergency agency, FDOT will respond and deploy resources to major traffic incidents 24 hours a day, 7 days per week. £ach 1~DOT District wi!] develop and implement response procedures to meet the goal of providing initial traffic control within 30 minutes of natifcation during the assigned working hours of each maintenance yard, and 60 minutes after hours. The FDOT, in coordination with FHF, will upgrade traffic controls, determine detour routes, and discuss clearance strategies. When requested, l~i70T will provide temporary traffc controls to ensure a safe work zone for al] responders and the motoring public. The FDOT, in cooperation with the FHl', will determine and deploy the necessary heavy equipment and manpower to reopen the roadway if there is a delay in clearing tfie travel lanes, ar if the task is beyond the capabilities of the wrecker service on scene. if cargo or spilled loads (non-hazardous) are involved, FDOT will matte every ef#'ort to assist in the relocation of the materials in the shortest possible time, using whatever equipment necessary. All such materials or any vehicles relocated by FDOT will be moved the minimum possible distance to eliminate traf~i~c hazards. FDOT personnel will document all hours anti equipment used #"or tralr~c control, roadway clearance, and debris clean up. FDOT will place traffic control devices at t}ae scene should any damaged vehicles or~cargo remain on the shoulder adjacent to the travel }apes for removal at a later time. The FDOT and PHP will continually work together to ensure that the needs of motorists on state roadways are being met in the most professional,,safe, and efl=lcient manner. 1?age 2 'T'SorefnrP, ... w~rE; 1 ~ c~r:l;nwT 7"he I=HP and the PDOT will evaluate and continually update and modify tlaeit operating policies, procedures, rules, and standards to assort they art~consis~ent with this "flPEI~ ROADS POLICY" agreement. ; l~P, together with P'DDT, w13 research, evaluate; at~d conduct training in the mast advancer! tcchnoiogies, equipm~cnt, and approved methods for the documentation and investigation ofcrash or incident scenes. ~, using these terluuquas, will prioritize the investigative tasks and rcoper- trove! lanes upon completion of tasks that must be conducted, without tht impediment of ts~a#i~sc flowing. ' Roadways will be~cleared as soon as posSiblc.'it is the goal of al! agencies that tell lnciclents be cleared horn the roadiray withirs 90 minutes of the nrrivo) o! the first responding officer. This Baal being made with the understanding that more complex s.ccnarios may rcc{uire adcJitional time for eom{skte cl~a.rancc. It is furlhrr agrerJ lhcf: FI•I.P a.nd i=DOT will actively solicit and znlist other state,eauaty, and local ag~cncica, polllicai 5ubdaY151Dn5, it~~ustry groups, and prolcss'tonal associations to ersdorsc end become party to this "OPEN •RO~.BS ~1-CILOSOPF~Y" 1'or the Spa#e of Florida. In witness whereof, Each parry hereto hag caused this document to be executed in its name and ors its behalf by its duly authoritcd Chief ~~cccutivt B 8y: ma F. B , lr. P.E. O I. Chri opher t ecre flirector Florida Dcp rrst of Transportation ~orlda Highway Patfol Date: _ ~ ~:~ ~~ ,. Reviewed ~y: jrr~.~..;..1.~ - -stn. ~~.r~-:.~--- !~r~o Agency's'Gcnera Counsel Office Ag y's General osuuel 0!~fice Pagc•3 iT1~? -DOT-0 3104 - 8404 '1 No. 41641-1-72-01 A'FTACI<ili'!Ei'~T' "$" EVENTS, CRA~1:~E8 OR TRAFFIC INCIDENTS CTl<LIZ;:1~lC TIDE SERVICES OF' TEE RECOVERY CONTRACTOR ,.~.~, V t\ ROADVdA.7.';NCTBENT SCENE CLEARANCE A. Tractor Trailer Combinations (DOT Class 8) p Rollover on/off the travel lanes ^ Mnltiple truck crash ^ Lost Load on ar affecting the travel lanes ^ Load Shifted on or affecting. a travel lane ^ Lost tandems or slit trailer an ar affecting a travel lane ^ Truck fire with tires burned off or cargo spilled ^ 1Vlajor impact with or an tap of a barrier wall, guard rail or with a bridge support or any Toll Plaza structure B. Trucks over 1.6,000 lbs. (DOT Class S, 6 & 7} ^ Rollover on/off travel lanes ^ Lost load on or affecting the travel lanes ^ Load shifted on ar affecting a travel lane ^ Truck fire with tires burned aff or cargo spilled q 1Vliajor impact with or on top of a barrier wall, guard ra€i ctr with a bridge support or any Tail Plaza structure C. Motor Homes and Motor Coaches (U03" Class 5 and 6) ^ Rollover on the travel lanes ^ Fire with tires burned off ^ Major impact with or on tap of a harrier wall, guard raid or with a bridge support or any Toll Plaza structure D. Busses alb passenger or more, iJOT Class- 6, 7 & $) ^ Rollover on o:r off travel lanes ^ Fire with tires burned off or burned luggage on the roadway a 1Vlajor impact with or on top of a barrier wall, guard rail or with a bridge supgart ar any Toll Plaza structure E. Aircraft ^ Any incident involving an aircraft Dote: In addition, any complex or extended incident where vehicles cannot be easily towed from the scene or are creating a hazard to traffc may be candidates far using the " Contractor" as directed by the 3'urnpilce. Attachrner~t "B" -Page 1 ITS-DOT-03104-8QQ4 Complete this farm for each garage or tow ard: ~ ~~ FPl No, 4164..16-1-72.OX ~~ Address: ~ , ~ Tf' ~.~"x' City: ~ stare: /~~ ~° Zip:,, Phone: } r4 Fax : (~) .~-"' Does the applica`nt/own .or 1 the business buildings and/or adjoining land ~t •each of these sites? Please explain:- yam' .w ~F_ ~ ~aw~~ ..,. - -- - - - df leased, provide the owners name and address and term of the lease: Owner's Name: Term of ieasa(s}: Address: City: State' Zip: Phone: (~_ Fax: ( } Indicate dates .leases expire. Is there an option t4 renew? How long has the garage or tow yard been operating at this lac~tian? 0 Size of garage ~~ ~' .List hours of Operation for the; /ej+,((,~~cyS` p~~~yf ~~/ f~`UV~~ C'arage tO ~~ Tow Yard office to ~~ Name of business if the garage is used as a vehicle repair business. Number of mechanics _ Size of secure storage yard ~ '~' ~YI~E Is it fenced7~~/~ List the types of additional security arrangements ar elements- utilized a~cC.i'~~J` ~CFc~il~ ~d Indicate the closest access point and entrance to the Florida's Turnpike system and route ~m ,,,,... ~ata~e: :~ ~r7 B•2 Ltstance trorn garage to this Turnpike access point e~ Miles ~p ~'~~ - ~f°E~ ~~ Trave! time for a Rcco~ery Truck to the access point: Day Q /~ Night ~'` 1TN DOT-03104-8004 FPI No. 4 1 641 6-1-7 2-0I ~~IIB~'~' «~» ~~.~>~a~~~~s A~~.s a~ c~~~~.~~ FA~C~LTY S~GMEI'dT CHECK YQUR CQ~JERAGE AREAS *HEFT MP 0 to MP l0 ^ HEFT' Ivl~P 10 to MP 2.0 ^ HEFT MP 2Q to MP 30 ^ HEFT MP 30 to MP 40 ?~ HEFT and Florida's Turnpike and SPUR MP 40 to MP 46.5 MP 45.5 to MP ~0 OX - 3.42X 7C Florida's Turnpike MP 50 to MP 50 !C Florida's Turnpike MP 60 to MP 70 ?C Florida's Turnpike. MP 70 to MP 80 ~ Sawgrass Expressway Entire Length ~ Florida's Turnpike MP 80 to MP 90 ~ k'larida's Turnpike MP 90 to MP 100 ^ Florida's Turnpike MP 100 to MP 110 ^ Florida's Turnpike MP 110 to MP 120 ^ Florida's Turnpike MP 120 to MP 130 ^ *Homestead Extension of Florida's Turnpike C-1 ~I\4/~+VI\LI~~{-~~~ u iu4 STATE "LQRIdA DEPARTINENT OF TRANSFpR7A7kpN ~~~,i~DARD 1~R1~'TEN AGREEfUIEN~ 110®IFICATION #~ 2 Contraet No. MA1117'l F.P.1. No. 4'164.16-1-72-01 Vendor No. F342058417 Procurement No. 1TN-DOT-43!04-8044 DMS Catalog Class No. 991-920 Amend Went No.2 p This Agreement, made and entered into this D ~ day of ~ Lc.~ , 2048, by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter called epartment" and Open Road Responders, LLC, 3681 West Qakland Park Blvd. Lauderdale Lakes, FL 33331, duly authorized to conduct business in the State of Florida, hereinafter called the "Vendor". WtTPiES$ETH: WHEREAS, the Department and the Vendor heretgfore on Se tember 13 2045 entered into an Agreement whereby the Department retained the Vendor to perform maintenance, Roadway Incident Scene Clearance Services; and, WHEREAS, the Department has determined it necessary to amend the Agreement to reflect the change in Exhibit C "Praposer's Areas of Coverage". NDW, THEREFORE, this Agreement witnesseth the following amendment is made: Exhibit C, page C1 has been modified to add MP 34 to MP40 and MP4Q to MP46.5, MP4G.5 to MP50, OX - 3.42X of the HEFT to the coverage area responsibilities. Repiacemeht page C3 is attached hereto and made part 4f. Except as hereby modified, amended, or changed, all of the terms and conditions of said original Agreement and any amendments thereto will remain in full force and effect. IN WITNESS W HEREOF, the parties have executed this Agreement bytheir dufyauthor'kzed officers on the day, month ,nd year set forth above.. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION O en Road Res and LC Name of _~ _ ^~~~~ ~"°~ By: yr (A ized Signature) a , r ~ .~ ~ _ ~~ Christy her L. 1lVerren P.E {Print/T ~) r {Print/Type Name) Title: `~~ Title: beauty Executive Director & C.O.O. President 1 Owner FOR pEPARTMENT USE ONLY PPROVED: ~~ Procurement Office t_1=CAL APP VAL: '(//~ ~ Page 1 of 1 ~' r~~~.W.r a~ i~~~ i :x' ~ yr' ~ L S ~`^r~~ ~ ;yC 't..,. S - ~i.'v . y ~~ : C bperares the sla.tex+se rurgprre System as December 5, 2006 par! al 111e F!°rrda Departmenr at PranS(.01latrpr Open Road Responders, LLC ,EB BusK 368 ] West Oakland Park Blvd. c°ver°°r Lauderdale-Lakes, Florida 3:311 oE~EVER i. sTUT1Ee, JR Secretary al Transportatrarl Attn: Craig Goldstein JAMES L. E1Y Exec°f+ve Orreetpr ~: 1TN-DOT-03104-8Q04 Turnalke Heaaqua:l.er:: Roadway Incident Scene Clearance Mile Posf 26'3, Bldg. 5315 Turkey Lathe Service Plana Ocoee, FL 34761 Dear Mr. Goldstein: MaEiing Address: P.O. Boy 5131563 Dcoee. FL 3A?61 1/nclosed is a fully executed copy of Renewal #f 1 for the above-referenced project Tel k07.532.3999 far yqur files. We look forward to working with your company. l fI call be of any assistance in the future, 1 can be reached at the phone number or email address www.floridastur°pike.C°m belOW. Sincerely . _._ -) ._,` Denise Roberts, CPPB Procurement Specialist 407-264-3 ] 47 denise.roberts@do.tatate.fl.us cc: Comptroller Project Manager File 'Inrid<'s turnpi::~ Syster~: Florida's Turnpike f~iamlrr~e • Beeline 1+?est • Homestead Ext. • Pplk Pi;wy. • 5awgrass Expvry. ~ Seminafe Ezpwy. • 5outisern Connector i:xt. • Suncoast Rkwg. ~ veterans Expv~. 1'rcUi.UKtrv~tiv i i iruJ STATE ~-LORIpA DEPRRTMENT OF TRANSPORTATION STANDARD WRITTEN AGREEMENT MQDIF1CATlON NO. 3 Contract No. M;4i i i 71 F.P.I. No. 416416-1-72-01 Vendor No. ~'34205fi4i7 Procurement No. ITN-DOT-03!04-8 04 DMS Catalog Class No. 991-920 Renewal Agreement No. 1 This Agreement, made and entered info this `-1= ~ day of .~_ _ t~P~' , 2D06, by and between the STATE OF FLORIDA DEPARTMENT OF TRAN5PORTATION, hereinafter called the "Department" and O en Road Res Anders LLC 3681 West Oakland Park E34vd. Lauderdale Lakes FL 33311, duty authorized to conduct business in the State of Florida, hereinafter called the "Vendor." WITNESSETH: WHEREAS, the Department and the Vendor heretofore on Ser~tember 13, 20,05 en#ered into an Agreement, hereinafter called the "Original Agreement", whereby the Department retained the Vendor to furntsh certain services in connection with RoadwaD Incident Scene Clearance Services on the Florida Turnpike 5ystem; and, WHEREAS, said Original Agreement has a renewal option that provides for a renewal if mutually agreed to by both parties and subject to the same Terms and conditions of the Original Agreement; NOW, THEREFORE, this Agreement witnesseth that for and inconsideration of the mutual. benefits to flow each to the other, the parties agree as follows: 1. Said Original Agreement is renewed for a period beginning January 1, 20.07and ending December 31,,2002. Except as hereby modified, amended, or changed, all of the terms and conditions of said Agreement and any amendments thereto will remain in full farce and effect. IN W ITNES5 W HEREOF, the parties leave executed this Agreement by their dulyauthorized officers on the day, month and year set forth ab ve. ~L C- STATE OF L I F •R ~A / Owner} DEPARTMENT OF TRANSPORTATION By: Christo her L. Warren (PrintlType Name} Title: De ut Executive Director C.O.O. FOR DEPARTMENT USE ONLY PROVED: LEGAL R£VIEW: ~~ ,ry .!'L i~~~ Procurement Office ~V Page 1 of 1 Name of Vend B: ~i ~~` rte.' .~ - ~ ~ ~ C~F:are~ rl1L Si ElEn;9r h;rty~ir Syrrrrr a: 'rfl G~ 1r:( rlylidc ~~rra7rntr:t r.r January 4, 2008 ~r~nscslr nr~r. c+;nBEt~ cRisT Open Road Responders, LLC Governor 3681 West pakland Park Blvd, ~TEPHANIF C KOPELOUSOS Secretary o! Lauderdale Lakes, Florida 33331 Transparlalfan rnMes i Fi.r Attn: Craig Goldstein frer'ulrve Duertor TurnpiKE HeaG~uarters, Miiepust 1fi3, Bldg. 5315 RE: ITN-DOT-03,04-$004 Turkey tai,e Service Plara. F 3A 76 O Roadwa InCIdent SCene Clearance ~' coee, L 1 Mailing Address. P.0 BoM ~13os~ Dear Nlr. GoI.dstein: pcoae, Fl 34T61 lei 4p1.532.3999 Enclosed is a fully executed copy of Time Extension.# 1 for the above-referenced project for your f les. If I can be of any assistance in the future, I can be reached at ~W~,iur~dasturnpike,enm the phone number or email address below. Sincerely ~ ~ ~t ~ Denise Roberts, CPPB Proeurem.ent Specialist 447-264-3147 denise.roberts@dot. state. fl. us cc: Comptroller Project Manager File Florida's Turnpike fJiainlme • 6eachiirie Wes# • Hpmestea~ Ext ~ Palk Pryry. ~ 5av~grass Expwy. 5emir}ale Ekpr!ry. • Sauthem Gonneetar Ext. Suncoast Pkv~~. 'Western Beltway Veterzns Wzp~y PA(]Ct'REU€'tiF 01 ~l5? STA! E pF FLORIdA ~ERARTMENT QF TRANSPORTATIpN ST~-NDARD ViIRfTTEN AG~tEEMEI~T I-~ODIFICATIOI~ PLO. 4 Contract No. MA11171 F.P.I. N:p. 41fi416-1-72-01 Vendor No. F342QSS417 Procurement No. ITN-DOT 03!04-8Q04 I}M5 Catalog Glass No. 951-920 Time Extension Na. ~ This Agreement, made and entered into this ~~ ~ day of ~~+-~~'1 ~ , 2407, by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter called "Department" and Open Road Responders. LLC., 3E81 West Oakland Park Blvd. Lauderdale Lakes. Florida 3.3311, duly authorized to conduct business in the State of Florida, hereinafter called the "Vendor". WITNESSETH: W ~iEREAS, the Department and the Vendor heretofore on September 13, 2005 entered into an Agreement whereby the Department retained the Vendor to furnish certain services in connection with Roadway Incident Scene Clearance_5ervices on the Florida Turnpike System; and, W HEREAS, said Agreement has an extension provision which provides for an extension fora period not to exceed six (fi) months if mutually agreed to by both parties and subject to the same terms and conditions pf the original Agreement. NOW ,THEREFORE, this Agreement witnesseth that for and in consideration of the mutual benefits to flow each tp the other, the parties agree to an extension of said original Agreement dated September 13.20.05 , for a period beginning .fanuary 1., 2008 and ending .fuse 30, 2008. Except as hereby modified, amended, or changed, alt terms and conditions of said original Agreement and any amendments thereto will remain in full force and effect. IN W ITNESS W HEREOF, the parties have executed this Agreement by their dulyauthorized officers on the day, month and year set forth above. Open Road Responders, LLC __ Name of r -- (Authd Signature) ~~ {PrintlType STATE OF FLORIDA DEPARTMENT OFT StaORTATION By: Christo her L. Warren (PrinUType Name} Title: Title: De ut Executive Director & C.0.0. FDR DEPARTMENT USE ONLY PROVED: (_ t s-L. 12--t.~.~ Procurement Office ~~~. ~~ LEGAL REVIEW: ~..! Page 1 of 1 P-RC1C1kftl~,V,ti~'I tlU4? 51 OF FLpRIDk DE€~,4RTMEM7 aF TRANSPORTATION STl~I~A3~RD lr-IRITTEN AGREEMENT f~iC3®OFICATION l~O. a Contract Na. MA11171 F.P.I. No. 416416-1-72-t31 V.endar No. F342056417 Procurement No. ITN-GOT-03104-8004 DM5 Catalog Glass No. 991-.920 Time Extension No. 1 This Agreement, made and entered- into this day of , 2007, by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION; hereinafter called "Department" grid Open Road Responders. LLC.. 3681 West Oakland Park t3lvd.,_ LauderdaleLakes, Florida_33311, duly authorized to conduct business in the State of Florida, hereinafter called the "C/endar". WITNI=SSETFi: WHEREAS, the Department and the Vendor heretofore on September 13, 2065 entered into an.Ag.reementwhereby the Dspartrr7ent retained the Vendor to furnish certain services in connection with Raadway Incident Scene Clearance Services an the Rorida Turn ike S stem; and, WHEREAS, said Agreement has an extension provi&ian which provides#or an extension for a period not to exceed six (6) months if mutually agreed #o by both parties. and subject to the same terms and conditions of the original Agreement. NOW, THEREFORE, this Agreement witnesseth #hat far and in cansider2ltion of the mutual benefits to flow each #othe other, the parties agree to an extension of said original Agreement dated Se tember 13 2005 , far a period beginning January 1, 20Q8 and ending June 30, 2008. Except as hereby modified, amended, or changed, all terms. and conditians of said o.riginai Agreement and any amendments thereto wiii remain in full force and effec#. 1N W [TNESS W HErRi=QF, the parties have executed this Agreement by their duly authorized officers on the day, month and year set forth above. STATE OF FLORIDA Name of ~endoi C_l~. DEPARTMENT OF TRANSPORTATION By: Christopher L. Warren (PrintlType Name) ~~~ Titles De ut Executive Director & C.0.4. FOR DEPARTIJtEf~ET U5E OR~I_Y APPROVED: LEGAL REVIEW: Proc~lrement Office Page 1 of 1 O en Road Res onders LLC N. ~. ..... ~.__ t ... ~ ~ ~~ . i` t r ~~ ~ ~ ~ .~ ~ ~~` ~ G "l".~. ~ • ~ 1 "'~ • 1 ~~: `~~~~~ ~r r ~' ;~~~h __ [;,air ~:.~:'. ~ ~~.~-_ July s, zoos Sre~Ftes ;r,t ~tatev,er ~u,r~rFE s~~,f~ ~. ,~arr :,, ;}e =,r; ~r~~ ~ en Road p Responders LLC ~~NF'r""nr ~~ , 3681 W O kl ~•a~~{~•l~r.:.~ . a and Park Blvd. Lauderdale Lakes, Florida 33311 cK~kuE chls' G Attn: Craig Goldstein ¢vernG.r STEPHANIE C K6FEtOL+S05 Secretary al rransporta7rnn Re: I~'l~?-D®T_07~4g-$~~~-Ij~ lAME51 ~LX fxecutrve drreclor 1urrGike Naad~uarters, M~leoost 283. 61dg 5315 ~pID IN~)~~E1VT SCENE CLEARANCE SERVI Turkey Lake Service Pia2a CES Ocoee Fi 3d7fi1 ~~ Ma~l~ng kauress Dear Mr. Goldstein: PC 6Gx E13CE9 Qtaee, f1 3d7Ei rE! <p7 532 3s~s. Enclosed is a fully executed copy of the Agreement for the abave- referenced project far your files. We look forward to working with wow llnridaslurnprke rGm your company, if 1 Can be of any assistance in the: future, I can be reached at file phone number or email address below. Sincerely, ~ Denise Roberts CPFB Purchasing Specialist III (407) 264-3147 denise.roberts@dot. state.fl.us cc: Ademala Adelekan Comptroller File Fiond~s iur~pike I~+airl,n8. Beschline 4rti~ES; • ri„^~estezd Er, ~ ~G{k Pkrry.. Sawgress Expvey • SeminolE Expm~~. 5ovthern C~~necm~ Er.;. Sen~aast Psvry° <Ueter2ri~ Expti;•~~. •',yestE~r E»lt~i,z;~ 37S•Q4G-19 PROCUREMENT occ, I ~ ros STg78 OF FLOR1nA DEPARTMEIV7 OF TRMSPa1t7ATION nrT~, ~ ~ nFlo~r~id~agsyrTUrnrp~i-l~tt~En~erprtse ~'>'L~;..~LA.)rcB c7~TiG1~ A\S~G1~J~1Pu1~T Agreement 1Vo. /~' D 5 LQ Financial Project 4 1 541 6-1-72-0 1 Vendor No. F342056417 Procurement N.o. ITN-DbT-07/08-8002-DR D,M.S. Catalog Class No. 991-920 B.Y THIS AGREEMENT, made and entered into this ~~ dayaf , 2008, by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,. hereinafter called " t" and en Road Re onders I.I.C. 3581 W. Oakland Park Blvd., Lauderdale La~Ces FL. 3331 i, duly authorized to conduct.busin in the State of Florida, hereinafter called "Vendor," hereby agree as follows: SERVICES AND PERFpRMANCE A. in connection with granting to a towing and recovery company (hereinafter called "Contractor") a nonexclusive priviltge to provide Rapid Incident Scene Clearance Services, for those events, crashes or traffic incidents described in Attachment "B", on that portion of Florida's Turnpike System, as referenced by the selection of the contractor in Exhibit 'C'. B. Before making any additions or deletions to the work iescribed in this Agreement, and before undertakartg any changes or revisions to such work, the parties shall negotiate any necessary cast changes and shalt enter into an Agreement covering such work and compensation. Reference herein to this Agreement shall include any Amendment(s). C. All tracings, plarts, specifications, maps, computer files and.reports prepared or obtained under this Agreement, as welt as all data collected, together with summaries and charts derives therefrom, -shall be considered works. made for hire and shall become the property of the Iepartment upon completion or termination without restriczian or limitation on their use and shall be made available; upon request, to the Department at any time during the performance of such services andiar upon completion ar termination of this Agreement. Upon delivery to the Department of said documents}, the Department shall become the custodian thereof in accordance with Chapter 119, Florida Statutes. The Vendor shall not copyright any rrtatetiai and products or patent any invention developed under this Agreement. The.Department shall have the sight to visit the site far inspection of the wank and the products of the Vendor at any time.. D. All final plans, docun:rents, reports, studies and other data prepared by the Vendor shall hear the professional's seallsignature, in accordance with the applicable Florida Statutes Administrative Rules promulgated by the Department of Business and Professional Regulation, and guidelines published by the Department, in effect at the time of execution of this Agreement. In the event that changes is the Statute or Rules create a conflict vvifh the requirements of the published guidelines, requirements of the Statute and Rules shall take precedence. E. The Vendor agrees to pravideprojcct-schedule progress reports in a format acceptable to the Department and at intervals established by the Department. The Department shall be entitled at all times to be advised, at its: request, as to the status of work being done by the Vendor and of the details thereof. The Vendor shall maintain coordination with representatives of the Department, or of other agencies interested in the project on behalf of the Department. Eitherparty to the Agreement may request and be granted a conference. ~'. All services shall be performed by the Vendor to the satisfaction of the Director who shall decide all questions, difficulties and disputes of any nature whatsoever that may arise under or by reason of the Agreement, the prosecution and fulfillment of'the services hereunder and the character, quality, amount of value thereof; and the decision upon alt claims, questions and disputes shall be final and binding upon all parties hereto. Adjustments of compensation and contract time because of any major changes in the work that may become necessary or desirable as she work progresses shall be subject to mutual agreement of the parties, and Agreement(s) shall be entered into by the parties in accordance herewith. Reference herein to the Director shall mean the Deparnnent's Executive Director, Florida's Turnpike Enterprise. Page 1 of 7 ~ r ~ V•..V-~ y PROCIiREMEN"i` OGC-I 1102 TER1yi A. Initial Term. This Agreement shall begin on date of execution and shall remain in full force and effect through. completion of all services required or as noted in the o tiara set forth below, whichever occurs first. Subsequent Eo the execution of this Agreement by both parties, the services to be rendered by the Vendor shall commence and be completed in accordance with the option selected below. (Select box and indicate date{s) as appropriate): [ X ] Services shall commence contract execution and shall be completed by one~l year ar date of termination whichever occurs first. [ ] Services steal] commence upon written notice from the Department and shall be completed within or date of termination, whichever occurs first. [ ] Other: B. RENEVtWAIS (check appropriate box): [ ] This Agreement may not be renewed [X] This Agreement may be renewed for a period that may not exceed two (2) years or the term of the .original caatract, whichever period is longer. Renewals shall be contingent upon satisfactory perforrnanee evaluations by the Department and subject to the availability of funds. Any renewal or extension shall be in writing and executed by both parties, and shall be subject to the same terms and conditions set forth in this Agreement. C. EXTENSIONS. In the event that circumstances arise which make performance by the Vendor irnpracticab.le or impossible within the time allowed or which prevent a new wntract from being executed, the Department, at its discretion, may grant an extension ofthis Agreement. Extension ofthisAgreement shall be in writing for a period not to exceed six (6) months. and shall be subject to the same terms and conditions. set forth in this Agreement; provided the Department may, at its discretion, grant a proportional increase in the total dollar amount based on the method and rate established herein. There shall be only one extension of this Agreement unless the failure to meet the criteria set forth in this Agreement for completion of this Agreement is due to events beyond the control of the Vendor, 1t steal! be the responsibility of the Vendor to ensure at all times that sufficient time remains in the Project Schedule within which to complete services an the project. In the event there have been delays that would affect the project completion dale, the Vendor shall subnut a written request to the Department that identifies the reason(s) for the delay and the amount of time related to each reason. The Department will review the request and make a. determination as to granting all or part of the requested extension. 3. COMPENSATION AND PAYMENT A. Payment shalt be made only after receipt and approval of goods and services unless advance payments are authorized by the State Corrtptroller under Section 215.422{14), Florida Statutes. B. if this Agreement involves units of deliverables, then such units must be received and accepted in writing by the Contract lvlanager prior to payments. C. Bills for fees or other compensation for services or expenses shall be submitted ~ detail sufficient for a proper preaudit and postaudit thereof. D. Bills for any travel expenses; when authorized by terms of this Agreement and by the Department's Project Manager, shall be submitted in accordance with Section 112.061, Florida Statutes, and Chapter 3 -Travel, Department's Disbursement Operations Manual, 350-030-400. E. Vendors providing goods and services to the Department should be aware of the following tithe frames. Upon receipt, the Department has five {5) working days to inspect and approve the goods and services, unless otherwise specified herein. The Department has twenty {20) days to deliver a request for payment (voucher) to the Department of Banking and Finance. The twenty (20) days are measured from the latter of the date the invoice is received or the goods or services are received, inspected and approved. Page 2 of 7 a ~ rvey-: y PROCUREIN Ei<'T occ-i tro2 r. If a payment is not available within forty (4D} days, a separate interest penalty as establtshed pursuant to Section 215.42, Florida Statutes, shall be due and payable, in addition to the invoice amount, to the Vendor. Interest penalties ofless than one (1) dollar shall not be enforced unless the Vendor requests payment. Invoices returned to a Vendor because of Vendor preparation errors shall result in delay of payment. The invoice payment requirements do not start until a properly completed invoice is provided to the Department. G. A Vendor Ombudsman has been established within the Department of Banking and Finance. The duties of this ittdividua] include acting as an advocate far vendors who may be experiencing problems in obtaining timely payment(s) from a state agency. The Vendor Ombudsmar- maybe contacted at (854) 410-9724 or by calling the State Comptroller's Hotline, ] -800--848-3792. H. Records of costs incurred under terms of thin. Agreement shall be maintained and made available upon. request to the Department at ail times during the period of this Agreement .and for three (3) years after final payment for the work pursuant to this Agreement is made. Copies of these documents and records shall be famished to the Department upon request. Records of costs incurred shall include the Vendor's general accounting records and the project records, together with supporting documents and records, of the Vendor and all subcontractors performing work on the project,. and all other records of the Vendor and subcontractors considered necessary by the Department for a proper audit of project costs. The Department, during any fzscal year, shall not expend nrzaney, incur any liability, or enter into any contract vuhich, by its terms, involves-the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and nq money maybe paid on such contract. The Department shall require a statement from the Corrtptzoller of the Department that funds are available prior to entering alto any such contract or other binding commitment of funds. Nothing herein contained shalt prevent the making of contracts for periods exceeding one (1 }year, but any contract so. made shall be executory only fat the value of the services to be rendered ar agreed to be paid for in succeeding fiscal years. Accordingly; the Department's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature. INDEMNITY AND PAYMENT FOR CLAIMS A. INDEMNITY: The Vendor shall inderrutify and hold Harmless, the Departmment, its officers and employees, :from liabilities, damages, losses and costs,. including, but not lirrtited to, reasonable attorney's fees, to the extent caused by negligence, recklessness, or intentional wrongful misconduct of the Vendor and persons etrtployed or utilized by the Vendor in the performance of this Agreement. It is specifically agreed between the parties executing this Agreement that it is not intended by any of the provisions of any .part of the Agreemen# to create in the public or any member thereof, a third party beneficiary hereunder, or to authorize anyone not a party to this Agreement to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Agreement. PAYMENT FOR CLAIMS: The Vendor guaranties the payment of al] just claims. for materials, supplies, tools, or labor and other just claims against the Vendor or any subcontractor, in connection with the Agreement. The Department's final acceptance and payment does not release the Vendor's bond until all such claims are paid or released. B. LIABILITY .INSI.]R.ANCE. (Check and complete as appragriate): ~ ] No genera] liability insurance required. [ X] 'The Vendor shall carry and keep in force during the period of this Agreement a general liability insurance policy or policies with a company or companies authorized to do business in Florida, affording public liability insurance with combined bodily injury limits of at least 30~, 0 00~ per person and ~3D4.000 each occurrence, and property damage insurance of at least $ ] S_ U 000 each occurrence, far the services to be rendered in accordance with this Agreement. [ ~ The Vendor shall have and maintain during the period of this Agreement, a professional liability insurance policy or policies or an irrevocable letter of credit established pursuant to Chapter 675 and Sect7on 33'x.106, Florida Statutes, witH a company or companies autHorized to do business in the State of Florida, affording liability coverage for the professional services to be rendered in accordance with this Agreement in the amount of $ . Page 3 of 7 • J V'yV-~ 7 PROCi;REMI:h'T OGC-1 l/fl2 C. WORKER'S COMPENSATION. The Vendor shall also carry and keep in force Worker`s Compensation insurance as rewired for the State of Florida under the Worker's Compensation Law. D. PERFORMANCE AND PAYMETIT BOND, (Check as appropriate): jX] Na Bond required. ~ j Prior to commencement of any services pursuant to this Agreement and at. all times during the term hereof, including renewals and extenSipns, the Vendor shall supply to the Department and keep. in force a bond provided by a surety authorized to do business in the State of FIorida, payable to tize Department and conditioned for the prompt, faithful, and efficient performance of this Agreement according to the terms and conditions hereof and within the time periods specified herein, and for the prompt payment of all persons fwnishing labor, materials, equipment and supplies therefore. The bond shall be provided annually in the amounts set forth in Exhibit `B", Method of Compensation. E. CERTIFICATION. With respect to any insurance policy required pursuant to this Agreement, al] such policies shall be issued by companies licensed to do business in the State of Florida. The Vendor shall provide to .the Department certificates showing the required coverage to be in effect and showing the Department to be an additional certificate bolder. Svch policies shall provide that the insurance is not cancelable except upon tharty (30) days pridr written notice to the Department. C011R4PLIANCE WITH LAW5 A. The Vendor shall allow public access to aIl documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the Vendor in conjunction with this Agreement. Failure by the Vendor to grant such public access shall be grounds for immediate tinilaterai cancellation of this Agreement by the Department. S. The Vendor agrees that it shall make no statements, press releases or publicity releases concernirig this Agreement or its subject matter or otherwise disclose or permit to be disclosed any of the data ar other information obtained or furnished incompliance with this Agreement, or any particulars thereof, during the period of the Agreement, without first notifying the Department's Contract Manager and securingprior written consent. The Vendoralso agrees that it shall not pubfish, copyright or patent any of the data developed under this Agreement, it being: understood that such data'or information are works made for hire and the property of the Department. C. The Vendor shall comply withal] federal, state and Iocal Iaws and. ordinances. applicable to the work or payment for work thereof, and shall not discriminate on the grounds of r8ce, color; religion, sex, national origin, age, or disability in the performance of work under this Agreement. D. If the Vendor is licensed by the Department of Business and Professional Regulation to perform the services herein contracted, then Section 337, l 6Z, Florida Statutes, applies as follows: (1) if the Department has lc-sowledge or reason to believe that any person has violated the provisions of state professional licensing laws or rules, it shall submit a complaint regarding the violations to the Department of Business and Professional Regulation, The complaint shall be confidential. (2) Any person who is employed by the Department and who is licensed by the Department of Business and Professiana! Regulation and who, through the course of the person`s employment, has knowledge to believe that any person has violated the provisions of state profe.ssianal licensing laws or zules shall submit a complaint regarding the violations to the Department of Business and Professional Regulation. Failure tv submit a complaint about the violations may be grounds for disciplinary action pursuant to Chapter 455., Florida Statutes, and the state licensing law applicable to that licensee. The complaint shall 6e confidential. (3} Any complaints submitted to the Department of Business and Professional Regulation are confidential and exempt from Section 119.07.(1), Florida Statutes, pursuant to Chapter 455, Fl.arida. Statutes, and applicable state faw. Page 4 of a ravtiv-, y PROCUFtEMt"sNT OGC-I 1 X02 E. The Vendor covenants and agrees that it and its employees shall be bound by the standards pf conduct provided in applicable Florida Statutes and applicable rules of the Board of Business and Professional Regulation as they relate to wark performed under this Agreement. The Vendor further covenants and agrees that when a former state employee is employed by the Vendor, the Vendor will require that strict adherence by the former state employee to Florida Statutes 112.313 and 112.3185 is a condition of employment for said fatzrter state employee. These statutes will by reference be made a part of this Agreement as though set forth in fuCl. The Vendor agrees to incorporate the provisions. of this paragraph in any subcontract into which irmight enter with reference to the work performed pursuant to this Agreement. A person or off liate who has been placed on the convicted vendor list following a conviction fora .public entity crime may not submit a bid, proposal or reply on a contract to provide any goods or services to a public entity, may not submit a bid; proposal or reply on a contract with a public entity for the construction or repair of a public building ar public work, may not submit bids, proposals or replies on leases- of real property to a public entity, may not .be awarded ar perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.4 i 7, Florida Statutes, for CATEGORY TWQfar aperiod ofthirty-six (3ti) months following the date ofbeing placed on the convicted vendor list. G_ An entity oz affiliate who has been placed on the discriminatory vendor list may not submit a bid an a contractto provide any goods or services to a public entity, may not subrruit a bid, proposal or reply on a contract with a public entity for the construction or repair of a public building or public wark, may not submit bids, proposals or replies on ]eases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and tray not transact business with any pubic entity. H. The Department shall consider the employment by any vendor of unauthorized aliens a violation of Section 2.74A(e) of the lmrxtigratinn and Nationality Act. If the vendor lenowingly employs unauthprized aliens, such violation shall be cause for unilateral cancellation of this Agreement. TERMINATION AND DEFAULT A. This Agreement may be canceled by the Department in. whole or in part at any time the interest of the Department requires such termination. The Departtent further reserves the night to terminate ar cancel this Agreement th the event an assigrrrnent be made for the benefit of creditors. $. If the Department determines that tyre performance of the Vendor is not satisfactory, the Department shall have the option of (a} immediately terminating the Agreement; or (b) notifying the Vendor of the def ciency with a requirement that the deficiency be corrected within a specified time, otherwise the Agreement will be terminated at the end of such time, or (c) take whatever action i.s deemed appropriate by the Department. C. If the Deparnnent requires tertniztation of the Agreement for reasons other thanunsatisfactory performance of the Vendor, the Department shaiI notify the Vendor of such termination, with instructions as to the effective date of termination or specify the stage of work at which the Agreement is to be ternunated. D. If the Agreement is terminated before performance is completed, the Vendor shall- be paid only 'for that work satisfactorily performed for which costs can be substantiated. Such payment, however, may not exceed an amount that is the same percentage of the agreement price as the amount of work satisfactorily completed is a percentage of the fatal work called for by this Agreement. Al] work in progress will become the property ofthe Department and will be tamed over promptly by fire Vendor. ASSIGNMENT AND SUBCONTRACTS A. The Vendor shall maintain an adequate and contpetent staff so as to enable the Vendor to timely perform under this Agreement and may associate with it such subcontractors, for the purpose of its services hereunder, without additional cost to the Department, other than those costs within the limits and terms of this Agreement. 'The Vendor is fully responsible far satisfactory completion of all subcontracted work. The Vender, however, shall not sublet, assign or transfer any work under this Agreement to ot}rer than subcontractors specified in the proposal, b.id and/or Agreement without c.ansent of the Department. Page 5 0#' 7. PROCtiREMEN7 OG('-! 1107 B. Select the sppropt~ate box: [ X ] The following provisions are not applicable to this Agreement. [ ] The fallowing provision, is hereby incorporated in and made a part of this Agreement: It is expressly understood and agreed that any articles that are the subject af, ar required to carry out this Agreement shall be purchased from a nonprofit agency-far the blind or for the severely handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in Section 413.036(1}.and (2j, Florida Statutes; and for purposes of this Agreement, the person, firm, or other business entity{Vendor} carrying out the provisions of this Agreement shall be deemed to be substituted for the State Agency (Department) insofar as dealings with such qualified nonprofit agency are concerned. f ] The following pravis.ian is hereby incorporated in and made a part of this Agreement; It is expressly understood and agreed that any amcles that are the subject of, or required to carry out this Agreement shall be purchased from the corporation identified under Chapter 946, Florida Statutes, in the same manner and under the procedures set forth in Section 94b:515{2) and (4},Florida Statutes; and for purposes of this Agreement the person, firm, or other business entity {Vendor) carrying. out the provisions ofthis Agreement shall be deemed to be substituted for this Agency (Department} insofar as dealings with such corporation. The "corporation identified" is Prison Rehabilitative Tndustries and Diversified Enterprises, Inc. (PRIDE}, Available pricing; products, and delivery schedules maybe obtained by contacting: PRIDE Enterprises (Attn: Bid Administrator) 12425.28th Street North St. Petersburg, Florida 337]6-1826 Telephone: (800) 643-8459 [ ] This Agreement involves the expenditure afFederal funds and hence, Section 94.b.515, Florida Statutes, as noted above, does not apply. However, Appendix I is applicable to all parties and is hereof made a pail of this Agreement. 8, MISCELLANEOUS P.. The Vendor and the Department agree that the Vendor, its employees, and subcontractors are not agents of the Department as a result of this Agreement for purposes other than those set out in Section 3.37..2.74, Florida Statutes. B. Al! words used herein in. the singular form. shall extend to and include. the plural. All words used ixt the plural farm shall extend to and include the singular. All words used in any gender shall extend to and include all genders. C. This .Agreement embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than [hose contained herein, and this Agreement shall supersede al] previous communications, representations, or agreements,. either verbal ar written, between the parties hereto. D. It is understood and agreed by the parties: hereto that if any part, term or provision of this Agreement is by the courts held to be illegal ar in conflict with any law of the State of Florida, the validity. of the remaining. portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be invalid. E. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. F. In any legal action related to this Agreement, instituted by either parry, the Vendor hereby waives any and all privileges and rights it tray have under Chapter 47 and Section 337.19, Florida Statutes, relating to venue, as it now exists or may hereafter be amended, and any and al] such privileges and rights it may have under any other statute, rule, or case law, including, but no.t limited to those grounded on convenience. Arty such legal action may be brought in the appropriate Court in any county chosen by the Department and th the event that any such legal action is filed by the Vendor, the Vendor hereby consents to the transfer of venue to the county chosen by the Department upon the Department filing a motion requesting the same. Page ti of 7 PROCUFt£fNENT OGC-t 1102 G. If ttsis Agreement involves the purchase of maintenance of machines or computer hardwarelsoftware of licensed programs, Appendix II may ioe applieab.le, and is. made a part of this Agreement if attached. H. Time is ofthe essence as to each and every obligation iuider this Agreement. I. Attachments: Exhibit "A" and ;t's Attachment A, B; C, D, Exhibit "H", Exhibit "C", Exhibit "D" are made a part of this Agreement. IiV WITNESS WHEREOF, the parties hive executed this Agreement by their duly authorized officers on the day, month and year set forth above. O en Road Re onders LLO Name of Vend ~~ {Authorize/d 5i~ ~e)~~~ STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION sy: (~~e Name} Title: ~~~~•?. --- ~- (President /Owner) P ' tlType Name} ~epu~x~~E~~ ~~~~~a~ Title: It~OR )I'~E)~A;~TI~EIY7C U51i<~ O~1`IL'Y APPROVED: ,, ~~ Procurement Oftxce LEGAL APPROVAL: ~~ ~ ~ a A ~~~ k r~ lJ Page 7 of 7 - Bpi t:o atnaiba-~~~! ~~Tr)<IJ~)i'F ~:A~~ S~~im)/ ®F SERVICES PID Il~t'~,10+)I'~dT SC`~1'rlE+ CI/E~l~.~,.i'r~CE L.C DRO.IEC.'F G~CTI°~ l .l In an effort` to provide the traveling public of the State of Florida a cost effective, high quality, transportation infrastructure, the Florida Department of Transportation (hereinafter "Department") has implemented the "Open Roads Folicy" attached hereto as Attachment '`A" for Quick Clearance for Safety and Mobility to make travel in Florida safer and more effcient. Consistent with the Open Roads Policy, Florida's Turnpike Enterprise (hereinafter '`Turnpike"), has adopted an innovative clearance strategy by implementing the Rapid Incident Scene Clearance Program in order to signiftcantly reduce the tune it takes to clear major accidents and incidents, 1.2 This contract provides an incentive to clear wreckage and open roads as quickly as possible. This contract does not eliminate the current Class "C" (Heavy duty} wrecker class that will continue to be utilized to remove trucks and busses that are disabled. 1.3 Florida's Turnpike system inc]udes: Homestead Extension Florida°s Turnpike, Milepost {NfP) 0.0 to 4b.5, OX to 3.34X; Florida's Turnpike Mainline MP 4:6.5 to 30$.9, and Sawgrass Expressway, MP Q.0 to 21.835, B.eachline Expressway, $.4 miles, East-West Expressway, 1.4. miles, Southern Connector Extension, 5.8 Mi}es, .Seminole Expressway, 17.6 miles, Polk Parkway, 24.3$ miles, Veterans Expressway 16.05 miles, Suncoast Parkway 41.44 miles, Western Beltway 9,$53 miles and all interchanges, ramps, feeder, and connector roads. 2.~ ~EIeLR~.L DESCI~T~DI~d 2.I The Tumpike shall grant to a towing and recovery company (hereinafter "Vendor") a nonexclusive privilege to provide Rapid Incident-Scene Clearance Services, for those events, crashes or traffic incidents. described in Attachment `B", on that portion of Florida's Turnpike System selected by the Vendor. 2.2 The Vendor agrees to provide the professional incident clearance and vehicle recovery services in accordance with the terms and conditions described herein and in compliance with all Florida Highway Patna] {hereinafter "FHP") local city and county police officers, and Florida Department of Transportation Rules, Regulations, all local city and county Rules and Regulations, and applicable provisions of the Florida Administrative Code and Motor Vehicle Statutes. 2.3 The Vendor's relationship to the Tumpike is that of an independent `Vendor authorized to perform incident scene clearance and vehicle recovery services an Florida's Turnpike System in strict compliance with the terms and conditions contained herein. 2.4 Should the Turnpike determine that the Vendor under this agreement is unable to assist, perform, or provide adequate timely services or equipment the Tumpike reserves the right to utilize additional services or equipment from any available source. The Turnpike also reserves the right to modify the designated limits of responsibility of the Vendor at any time. 2.5 The Vendor and all their operators, etnployees and subcontractors shall cooperate and comply with the guidance of the Florida Highway Patrol (FHP) ox Turnpike authorized representatives pertaining to scene safety and traffic control. A-I rri;~o. ~ioNrb-i-~~c{ri 3.L~ CEIlTER~. RE~,TI.i>RE1F~£EI~ i S 3.1 The Vendor shall perform al] work in accordance with Department Speciftcations (including all Supplemental Specifications and Special Provisions in the Specification. Workbook), .Design Standards, MUTCD, and Manuals, which can be retrieved through the Internet at: oltt :Ilwwwl i.m flarida.com/s eci#icstionsoff:cel 3.2 Proper health and safety measures will betaken to insure safety for the traveling public,. Department and Turnpike employees, Vendor employees, and Subcontractor employees. 3.3 The Vendor shaII comply with the Turnpike's. Lane Closure Policy, (refer to Attachment D), 1?Itone numbers listed under Item 9 an Page ~,a~tlae Florida's Turngilce En~ternrise Lane Closure Policv are replaced by the follawina numbers: 'Fl~v>! C }aom ono Besch 954934-T370 and 'FIVIC Orlando, 407-264-3395. 4.G ;<1VCIDENT RESP~RSE .REt~tTFR;El1~iEIl~'S 4. } The Turnpike and/or FHP will make three attempts to contact the Vendor. The Vendor shall respond to Turnpike requests far vehicle recovery and clearance services as scan as possible but no later than ten (I0) minutes from the FHP or the Turnpike's authorized representative first contact attempt with Vendor, after that time the Department has the discretion to contact another Vendor. The Vendor acloaowledges that time is of the essence and shall arrive with the two Recovery Wreckers and the Recovery Support Vehicle with required equipment and materials as specified in Attachment "C" and with. all necessary traffic control devices at the incident site within 60 ufintrtes froth the Turnpike's initial contact with Vendor. However, one Recovery Wrecker shall be on site within 45 n>4nntes of the Turnpike's initial contact with the Vendor. The need for additional trucks and heavy equipment shall be jointly determined by the Turnpike authorized representative, FHP, and the Vendor's representatives. The need for the additional trucks and heavy equipment described herein shall not increase the time .required by the Vendor to perform services. 4.2 The Vendor shall be available to provide these services on a twenty-l"anr (24) Itpttrs a day, seven (7) days a week. The Vendor shall provide the Turnpike with ak least two telephone numbers at which the Vendor can be contacted at all times. 4.3 Tf1~IE IS OF TTrIE F.SSEIrTC;v IR Tl~ CONTRACT. -Upon Turnpike's request for Rapid Incident Scene Clearance services, the Vendor shall provide the Turnpike an estimated arrival time. The Vendor will not transfer calls for recovery services to another Vendor. Tate respnnse time sgrecit eed iteFein (45160 minutes) shall be strictly etsriorced. Failure to respond to a cal] for recovery services or arrive at the incident site, within the time required and with all necessary materials and equipment as specified herein, maybe considered a breach of this Contract and may warrant suspension of recovery. services until the breach is cured to the satisfaction of the Department and/or declaration of contract default. 5.0 TEI~i7iINATIQN 5. } The Turnpike reserves the right in its sole discretion to terminate this agreement for breach of a term of this agreement, upon thirty (30) days written notice to the Vendor by certified mail. 5.2 The Turnpike reserves the right to terrrEnate this agreement at any tithe, for any reason, upon sixty (60) days prior written notice by certified mail. 5.3 Termination of the Vendor's business shall be grounds far immediate termination of this agreement. ~--2 FPl'!a A15416-I.72-01 5.4 The Turnpike shall be notified 30 days in advance of any change of ownership. Moreover, any change of ownership will terr.~tinafe this agreement and. shall require re-submittal and review of the Vendor's qualifications: ~.G IlITDEli~'~~'I' AI~'f? LI~5~J11~RCE 6.1 The Vendor shall maintain all insurance coverage in compliance with the Florida Highway Patro}'s Authorized Wrecker Program (refer to Florida Administrative Code Rule Chapter 1SB-9}. Fn addition, the Vendor shall indemnify and ho.id harmless the 'turnpike, the Florida Highway Patrol., their officials, officers, employees, consultants and agents from and against any and all liabilities, claims, injuries, damages, penalties, actions, suits, }os5es, casts expenses and attorneys' fees resulting frasn or arising out of Turnpike requests for vehicle recovery services ar incident scene clearance on Florida's Turnpike System. 7.~ lV.[);'SCELIti,~-NEQl~7 s Z.1 Should any dispute develop in regard to the requirements of this contract, the District ]Maintenance Engineer (DME) will render a final decision. 7.2 This is anon-.exclusive agreement. The Turnpike intends to allow other companies to perform vehicle recovery and incident scene clearance an a rotation basis within the area being serviced by the Vendor. Initially, assigrame>:tt v~itltil~ ~. rotation shall be based on contract execution date with the Vendor hzviing the earlier contract execution date given the first Rapid incident scene clearance. Qnce a Vendor pec->"orms roadway scene clearance services, the Vendor wilt be placed a# the bottom of the rotation. Flew Vendors-added td the rotatima will always be added to the bottom of the rotation eve;4 though another Vendor rreay ltzve already performed services as the rotation existed at the time of contract execution. 7.3 if the Vendor is contacted by a party other than FHP Troop K or the Turnpike to provide the services described herein on the Turnpike, tl•~e Vendor shall notify the Turnpike of the request prior to responding. Failure to da so will automatically cause the Vendor to forfeit the performance payments contained in Exhibit `B" Compensation. However, the Vendor would be eligible for the performance payments if the Vendor was at the tap of the rotation list and authorized. by FHP or Turnpike prior td responding. 7.4 The Vender or any of its operators ar employees will not provide any gratuities., commissions, kick-backs ar complimentary services of any kind to any Turnpike or FI~P officials, officers, employees,. consultants or agents. 8.~ I~EC'OVEiI$~' A.REA~ 8.i The Turnpike may review the recovery segments periodically to ensure that level of service in each area is consistent with the quick clearance goals stated in the Open Roads Policy. 8.2 Recovery wrecker companies need not be located within the area recovery segments, but they must mobilize and respond to callswithin the indicated response time. A-3 r Y l Ih o. 4164 I U- I- i Z-{I I $.3 This agreement covers ~ehicie Recovery and Incident Scene Clearance by the Vendor for those portions of the following roads of the mainline roadway, interchanges, ramps and approaches to or within tall plazas under the 3urisdiction and operational contra] of Florida's Turnpike Enterprise and selected by the Contactor. ;>~scl~Il~T.QI~ e~UI`r~~ Horn.estead F.xtensior. F'lo-iaa'F : ~rrpilce iami-Dade MP 0~0 ~F `~ - 46.5. raward 40-46.5 Szw rass E`xaresswa . Broward 22.5 miles in len Miami-Dade {SFUR - OX - 3.34X roward . 46.5 - 73 Fa1m Beach (MP 73 - 117,75 artin 117.75 - 138 1?r,orssla's T'u>ix,pil~ce St. Lucie MF 138 - l73 amain %br:e; Indian River (1VIF 173 - 181 Okeechobee ivlF 181 - 190,5 Osceola (MP 190.5 - 249.5 Oran a 249.5 - 274.3 Lake MF 274.3 - 297.9 Sumter 297.9 - 308.9 East-west Ex resswa . Aran a frorry Tum ike to 1 4 miles east Beachline Ex resswaj' . Oran a from I=4 to 8.4 miles east Southern Connector 1~'xtension Oran a and Osceola 5.8 miles in len Seminole Ex resswa Seminole 17.b. miles in len h oolk )Parkwa olk 24.38 Miles in len Veterans Ex resswa Hillsborou 13.05 Miles in Ien h Veterans Ex resswav ~ ter illsbarou h 3 miles in len illsborou h 13.5-18 ~uacoast parkway asco (MP 18-37 ernando (MP 37-54 JVestern Belriva 1vx r~ss olk 9.853 Miles in len h 8.4 From the roadway described in $.3, the Vendor has selected to provide services for those areas described in Exhibit "C„ 9.C f+'EN>IOR RE UEREI~ItT"x'S i1.~.T~IFkCATIO.NS TRAINING ARTI~ CERTLFICAT`1QNS S.1 The Ultimate equitable ownerfowners of the wrecker company shall be re4uired to submit documentary proof showing previous experience and extensive knowledge in working. Heavy Duty Towing and Recovery business. The Froject description, dates, photos and locations ofsuccessfully completed projects shall be submitted with the Wendors proposal. Award of the contract will be contingent on the demonstrated experience, knowledge and quality of work. 9.2 When appiieable, the Company must be registered with. the State of Florida Department of Agriculture and Consumer Services and maintain registration for the term of the Agreement. 9.3 If the Vendor's primary place of business is located within a county or municipality that requires by }ocal ordinance, an occupational license, said license must be maintained for the term of the Agreement. Q-4 ~.~ The Vendor must co.*npiy witl- Rules and Statutes and provide evidence c went and val d~insuranee ~ ,z~i coverage required by the Mate ~~ Florida and 17y-the Florida Highway Patrol Authorized Wreaker Program: 9.5 The Vendor must maintain current and up to date CDL driving records, employment records, drug testing records, and training records on all C?perators and make them available for inspection by the Florida Highway Patrai and Florida Department of Transportation or their authorized representatives. 9.6 The Vendor shall be proficient and able to demonstrate "Expedited Roadway Clearance practices" and "Incident Scene Safety" including: 4 Single lane uprighting of loaded tractor trailers ~ Relocation of loaded, overturned, tractor trailers from travel lanes The Vendor shall be or become proficient and able to demonstrate such proficiency in the following areas within the time frames specified in 10,1, w Setting up incident scene Traffic Control in accordance with the Manual on Uniform Traffc Control Devices {MUTCD) +~ The mitigation of accidental discharges of motor vehicle fluids, per the Florida Gufdelines 9.7 Within thirty (3.0) days of their hiring date, all Recovery Wrecker Operators must: A. Meet the State of Florida Wrecker Operator Certification program. requirements for experience anal training and wear their approved Certification card whenever working on the Turnpike. B. Complete-Basic and Intermediate Maintenance of Traffc training from a certified Department approved training agency. C. Receive instruction, ;training and if applicable, examination in each of the following specialized recovery wrecker operator services: This training shall be conducted by recognized .and approved instructors. ' Heavy Duty Wrecker Operations '- I.Tltra Heavy Wrecker and Recovery Practices Hazardous Materials Awareness Traffic Incident Management practices including: 1. Incident Scene Traffic Safety 2. The Florida "Open Roads" policy 3. The Florida "Guidelines for the Mitigation of Accidental Discharges of Motor Vehicle Fluids (Non-Cargo) 4. Incident Scene Traffc Control in accordance with the Manual of Uniform Traffc Control Devices (MUTCD) =0.0 SAS V+'.ITffi l01®AVAI~ABDE R.~'ID 11NC)[I3Elri'lr SCEP+TE C1~ ~AR.AI~TCE VEll~BORS 10.1 It is anticipated that there may be areas in which the Turnpike does not have under contract a Rapid Incident Scene Clearance Vendor or tune when a Vendor or Vendors for an area are unavailable to respond to a request far services, In such situations the Turnpike reserves the right to contact any available roadway incident scene clearance Vendor. The Turnpike will attempt to call that Vendor whose facilities appear to be closet to the accident. Such Vendor shall be .eligible for performance payment under paragraphs 2,2 and 2.3 of Exhibit "B" provided the Vendor is able to respond immediately with the two required recovery wreckers and recovery support vehicles regardless of whether or not the Vendor azrives on the scene within-the required b0 minutes provided al] Havel lanes are open within 90 minutes after the notice to proceed is given by FHp and/or the Turnpike authorized representative. The Vendor's should also be eligible to receive any additional performance payments provided the contract times-are met. l 0.2 The Vendor may be contracted to provide .services in accordance with paragraph ] 0.1 above. A-5 F44TJfl 41541G-S-1~-01 i S .~ ;~:~'I~.Wr~.. 4PTI~1~ This Agreement has a renewal option. The Agreement maybe renewed for a period (s} that may not exceed two years or the term of the original contract; whichever period is longer. The Agreement will have two E2j. renewal periods of twelve (12) months each. The renewal will be subject to the carne terms and conditions set forth in the original Agreement. Renewals will be rzsade at the sole discretion and option of the Department and must be agreed tc in writing by both parties. Renewal i.s contingent upon the availability of funds and the satisfactory performance of'the Vendor as determined by the Department. ' Z.(l VEIe>D®Fe PFR>k'~3R11~r.~:~t~E 12.1 The Department will evaluate the Vendor's performance following each incident through debriefings, Vendor Performance Tracking Systern in i~iyFlorida Market Place and will maintain such evaluations for use in administering this contract and in future contract awards. 12.i Vendor's repeated poor performance will result in termination of the Agreement. :3.0 P~1.1'1V1CEI'~T OF ~'~f,l!.S 13.1 The Vendor's attention is directed to the fact that the Vendor will be required to pay tolls,. as applicable to the general public. 1~.0 MYFLOI~IIlA1ViARKET'FI.~iClr+ TRA1~15ACTI0]~ FEE This procurement is subject t© the IvfyFloridaMaketPlace transaction fee, pursuant co Rule 60A-1.031, ~..b ! ! I~'lJV ! -V flUO-OVl1F'Uf~ FPI Nn. 41641.6-I -72-0 I 1/~)~~~~T ccB~: T~E~HC)3 ~~' C®I'e'1flm~l~ISATI~1~ 'VI~.~ICI`.E ~~~~i/Rl' ,~,RT)~ ~I~CI~IEl°dT SCE1~iE C~,EARANCE I.0 ~1".~ IrI?~~ '~~C? R ~~RS The Vendor agrees is seek compensation far actual vehicle recovery and towing services performed pursuant to this agreement solely from the owner of the vehicle or their insurance provider. The Vendor agrees that no claim for compensation will be-made against the Turnpike or the Florida I-iighway Patrol or its employees or agents far any recovery or towing services. ~.dl PI/I~~D.I~CIr : ~~I~TS The Vendor slialI be eligible for payment under paragraph 2.1 or 2.2, but not both, provided certain requirements are met, Payment under paragraph 2.3 shall only be made if performance payment is made under paragraph 2.2 and the additianaI trucks and heavy equipment were mobilized at the request of the Department. 2.1 In the event the Vendor mobilizes and arrives at the crash scene at the Turnpike's request with the traffic control devices and recovery equipment, as specified in Attachment "B", within sixty (60) minutes and recovery services are not necessary or another towing and recovery f rxn hired or engaged by the vehicle owner is allowed by F1E3P and the Turnpike incident managers to complete the clearance of the incident and towing. of the vehicles, the Turnpike agrees to pay a Flat Rate Service payment of ~ b0U.00. Once a "notice to proceed" is given to the Vendor to commence actual perforxance of removal and clearance services, the Vendor is not eligible for payment under this paragraph 2.1, Z.2 The Department agrees: to pay the Vendor a Flat Rate Emergency Response and 1't'lobillration payment of ~~.500 when services were authorized by the .Department and/or FHP. To qualify for the Ernergeney Response and Mobilization payment the Vendor must: ~ Have responded to the incident scene with one Recovery Wrecker within forty-live (45) minutes and with all requested recovery, clearance and traffic control equipment and necessary persanneI within sixty (b0) minutes from the initial contact by the Department and/or Fl'iP. AND r Piave completed the removal and clearance of all crash scene vehicles, cargo, debris and non- hazardousvehicle fluids from all travel lanes and opened to traffic r+vithizt 90 minutes after the notice to proceed by FHP and/or Department authorized representative. I®1ote: The documented "notice to proceed" and "all lanes open" times recorded at the Turnpike Traffic Management Center (TMC) will be used to verify the request for emergencyresponseond mobilization payment. If needed, the final clean up and removal of wreckage and debris shall be coordinated with the Turnpike and FHl? and may be postponed until the operation will have a minimal impact on traffc. ~.3 Upon approval of the Engineer, the Turnpike agrees to pay for a Flat Rate Additional T'rvcks and F~eavy Equipaue>st Response and 1Wlobiliration payanettt, of $ I,000 for the additional Trucks and Heavy Equipment listed in Attachment "B". B-1 FPII~O. a1bA]5-1-72.0i ?.0 rDl~'Ez~'l•`]1~ ~)K f'E~`®RIr~~lVCE 1?AYI~ENT~ No. perform2nce payment shall be made to the Vendor under paragraph ~.2 and 2.s of this Exhibit '`B" if the Vendor has not completed their work and all travel lanes are not open to traffic ttirtety (9a3} [nnutes after the notice to proceed. if the Vendor was ordered to stop their roadway clearance activity by 1~ ire Rescue, FHP or the Department authorized representative the Vendor wall not be penalized for the time they were delayed. This extended time must be documented by the authorized representative of the Turnpike at the incident scene. ~.0 L1:Q~~TLD D~~.~~5 If the Vendor has not completed the removal and clearance of the vehicles, non-)~iazardous cargo, debris and vehicle fluids after one hundred and fifty (l50) minutes from the Notice to Proceed, and all travel ]ones are not open to traffic as a result, a f]ai rate. of ~ -600 can be assessed against the Vendor at the discretion. of the authorized representative of the Turnpike. An additional $600 will be assessed for each additional hour or $10 per minute it takes-the Vendor to completely open the roadway to traffic. The Department and the Vendor agree that the actual damages that the Department anal the traveling public may sustain if the removal and clearance of vehicles, non-hazardous cargo, debris and vehicle fluids is-not timely performed by the Vendor within the time limited herein is difficult or impossible to estimate within a reasonable degree of certainty at the time of the letting of this contract. fiat the foregoing reason. the parties mutually agree upon the following provision, not as a penalty, but as liquidated damages, for the failure to timely perform this contract. Exemptions to the Liquidated Darriages Provisions: Incidents involving trucks hauling a Hazardous Material cargo that by direction of the Department authorized representative. require special precautions. Incidents involving damage to the roadway infrastructure that prohibit reopening the travel lanes 5.0 B~,L1~lGS The Vendor shall bill the Department far services rendered only upon receipt of a Confirming Purchase Order issued by the Department following. completion of services. The Department's Aurcltase Order shale] identify the location where services. were authorized to be performed, the services to be compensated, and the rate to be paid as set forth in this agreement. The Vendor's invoice shall reference the services being. billed and the purchase order number. B-2 i 1 n-LlU i -U.1'Ga-~(J{Sl•JH F.°E'~o. X16416.1-i~-(11 ~j ~L~~~ L iE~55 F~CILT~' SEGMENT CHECIi£ ~'~l~J~ CG~TE£~s.GE ~E,4S °nt~~-1 HEFT HEFT HEFT HEFT and Florida's Turnpike and SPUR Florida's Turnpike Florida's Turnpike Florida's Turnpike MF 0 to MF 10 MP 10 to IviP 20 1viP 20 to MP 30 MP 30 to MP 40 MF 40 to MP 46.5 MP 46.5 to MP SO OX - 3.42X MF 50 to MP 60 1vIP 60 to MF 70 MF 70 to MP 80 ^ ^ ^ ^ Sawgrass Expressway Entire Length 21.835 males Florida's Turnpike MP SO to MP 90 Florida's Turnpike MP 90 to MP 100 ^ Florida's Turnpike MP 100 to MF 110 ^ Florida's Turnpike MP 110 to MP 120 ^ Florida's Turnpike MP 120 to MP 130 ^ ~ *Homestead Extension of Florida's Turnpike c_t i;AT No. 41641.6-1-72-01 ;Florida's Turnpike MP 1'30 to MP 140 ^ ~ I ~ Florida's TurnpiKe MP 140 to MP 150 ^ ~Flor-ida's Turnpike IvIP I50 to MP 160 ^ Florida's Turnpike MP 160 to MP 170 ^ ._. 'Florida's Turnpike _ MP 170 to MP 184 ~ ^ Florida's Turnpike MP 180 to MP 190 ^ Florida's Turnpike MP 190 to MP 200 ^ Florida's Turnpike MP 200 to MP 210 ^ Florida's Turnpike MP 210 to MP -224 ^ FIorida's MP 23.4 to MP 240 Florida's Turnpike Florida's Turnpike Eeeline Expressway Florida's Turnpike East West Expressway Florida's Turnpike Florida's Turnpike Florida's Turnpike Florida's Turnpike Southern Connector Extension Western Beltwa MF 240 to MP 250 MP 250 fo 260 I-4 to 8.4 miles east MP 264 to MP 270 from Turnpike to 1.7 miles east iVIP 270 to MP 2$0 MP 2$0 to MP 290 MP 290 to MP 300 MP 300 to i-75. Entire Iength 5.$ miles Entire length 9.83 miles e-a „ ~-v~~, -u~ros-Boaz-~R Fpi ~o. af6a~6-~-,~-ai Seminole Expressway Entire length 17.6 miles ^ Palk Parkway Entire length 24,3$ miles ^ Veterans Expressway SR 60 to 1~P 10 (16.05 miles) ^ Veterans Expressway 1VlP 10 to MP 13.56 ^ Svncoast Parkway MP 13.56 to MP 20 ^ Veterans SPUR 3~P 0 to MP 3 ^ Svncoast Parkway MP 13.56 to MP 25 ^ Suncoast Parkway NiP 25 to MP 35 ^ Suncoast Parkway NP 35 to MP 45 ^ Svncoast Parkway NP 45 to MP SS ^ C-3 t E ~ ~ :~ i N ~ > ~! -tj e ~ .J ~ ~ R. ~ ~ . ,-. C!1 ... CC3 ~ "r" ~--~ Q > z ~, U a~ ~. ~ oo~ 04 ~ Q ~ ry - ~ ~~ Y s ~ ~ ;~ - ~, p ~ - _ -~_:~ ~ 1 ~ ~"' O ~' '" , CCU p ~ ~ .'~ 1 4~ ~ '.ti ~ ~ ~ ~ ..r 4~ ~ ~~ a ~ N ~ j Q i cG ~ ~ ~" Q` ~ ~ 'C ~ '~' ,'~.+ V'1 CJ r'y ~ U ~ ~ ~ ~ i I .~~., ~ N ~' I 0 ~ ~ ~ .-~ rte" ~ ~ r - ~ M , ~ ~ r ~ 4 , v f , e ' i -~ ~ ~ '. I, ~ ~ 1 ~ ~, -- ~ ~ ~'"` W ~ ~ ~~ ~ ~ ~ U ~ T ~ ~ ~ v ~ c ~sld>~ ~e~ch Co~l~~ ~~~ CDl~ect®d• 1l1s12oos z:0"r:1s Pn~ Business Tax Receipt ACCOUnt Year : 2D44 P.ccnunt Dumber : 4378 Fee Class : DS012 Status : bCTIVE Business laame : IME$T'VI~AY TDYdING dPlC Owner Name : GOLDSTEIf~ RICHARD Business C~fsiE Address :5140 FI_ORIA 1NAY #A kddress :8140 FLORIA VI~AY #A City : SOYI~TC?T~I BEACH City : BDY~lTON BI<14CH State : FL State : Ft ZIP: 334378231 ZIP: 334375231 Phone : (561j737-65°1 lahane : (561)737-6591 City I~imits : NO State Cert : Fee Periari :One ants Half Year Orig Issue : t?g124l2003 Exp pate : 08!3012009 L]e4q Pers Prop : Plumber Df : 1 Type Of Business : TOYJliJG INFORMATIOPI SERV iMTERPdET http :1/www. rbcgov,cam/eTax/eTaxlbusincsstax/li c_deiai l~rit~t. aspx?l yy-200481 l i ena=4 3 78 1119!2409 ~~~~ ~~~c~ ~~tkni: ~~,~; ~Q6~~G~O!' ti1i912809 2:87:40 PTA Business Taz Fceceipt Accoun# Year :2808 Aceoun# Number : 41685 E=ee Class :088 9 ~ 5tatus :ACTIVE Business Flame :WEST Wl:~' TOlNING ff~C pvener Name : GQLDSTEIN CRAIG Business Aaidress : 970 r 4N ATLAf~IT.IC ASE City : DELRA~' BEACi•I State : FL. ZIP : 33€489738 Phone : {5fi1 X638-7085 Bail -4ddress ~ 9701 N~ ATL,4PITIC AVE City : DELRAY BEACFE State : i=L ZIP :334469738 Phone : {581)838 7095 City Limits : NO Fee Period :One Year Orig Issue :011441.2008 Dela Pecs Prop i ype Qf Business : TO!-~+I#~G SERaICE State Cent Exp Date :0913012009 Number Of : 3 http:llwww.pbcgo~v.camleTaxleTaxil~usinesstaxJlic detail~rint.aspx?lyy=2008&.licno=ll... 1119!2009 Ar1T~T. ~. ~A~hit)N ' f $ TAi~ COLLLCrG15, a0.LM Lt:ACN L^OVarr!' Nome f 6u:ck NQIp $ S,kc Map ~ Ernpbymenlf En Esp6npl~ An RreyCl SeB~rch Site;. _ ~ ` r:.r o•( S•~•ct~ Cee,e, Pe^R~r,, Cer.'-~ Lnm C-nlr ~.Aeui U. 5r'•~•kc: Locauo rc LNeun Prer~e Rer.m Ca nlrG Us Highlight and cllek on record to view ¢et8ils Year•Number Nam? Address Gify StaEUS Renewal 20"04-4378 WEST WAY TUWING INC 5iA0 FLURlAWAY ~A BOYNTON BEACH. ACTIVE RENEW 2~D06.11865 WFST WAY igWING INC 9701 W ATLANTIC AVE bEi:RAY BEACW ACTIVE RENEW t,i~ tuMr.,d ti" }n0: 1a• C.nOr•ga, ~ralm Peatl+ Lmmlx I Disclaimer http:llwww.pbcgov.comleTax/eTaxlbusinesstaxlocc_search_resuIt.aspx?&s~lag=BN&Lic... 1/i 912009 -- ------ Homa Contact Ua E-Filtnp Services ~revioua on_L~ Next on List Return To Llat Vo Events Na Name Hlatory ~F;~[~ ~7j~! ~11~f~ F~I~R'1e riorida Limited Liability Cnmpan OPEN ftOAO RESPONDERS, LLG Filing Information Document Number L05DDOD33865 FEl NumGar 342056417 Dats t=iled 04l0612DD5 State FL $tstua AGTIVE Princiaal Address 3681 WEST OAKLANp PARK BLVD. LAUOERDALE LAKES FL 33311 Mailing Address 3581 WEST OAKLAND PARK BLVD. LAUDERDALE LAKES FL 33311 Re istered A ent Name ~ Address GOLDSTEIN, CRAIG 3681 WEST OAKLAND PARK 6LVD. LAUDERDALE LAKES Ft 33311 fYiana erlMember Qetail Name ~ Address Title MGRM WEST WAY TOWING, INC. 3681 WEST OAKLAND PARK BLVD. LAUDERDALE LAKES FL 33311 Title MGRM J ~ J TDWING, ENC. 5613 N.W. 8TH STREET MARGATE FL 33D63 Title MGRM MIDTOWN TOWING DF M1AMI, INC. 551 NW 72 ST MIAMI FL 33150 Annual Re orts Report Yesr Filed late sao~ Darosr2oo6 1007 DBl28120D7 Za08 051D112D0$ Document Images 0510912D08 -- ANNUAL REPORT 08~2812D07 -- AlVNUAL_~2EPORT 05!09~2D06 -- ANNUAL REPORT View image in PDF format View Image in PDF format View image in PDF format Documenn Searches forms Heip Entity Name Search http :f l sunbiz.orglscriptslcordet.exe?action=DETIr IL&incLcioc_number=L0500003 3 865 & i... 1/19/2009 9al~l~r20ti5 -• f4or~ga i_imite~ Liab~Gtes View image in PDF format Note: This is not official record. See documents If question or conflict. Previ u n List won Lis Return To Lls_! No Events Plc Hama History Entity Neme.Search ritirne C:nntac[ us Do~u~nanr SearGres E~Fiienn Services f-orrn: Hclu Copvnplil and f4iV,asy RG~IL,ES Cc,t+'lnr~h4 •.. 7(:(77 5tatc of f:orida, 3eriArtment o• StdM'~ http:ll sunbiz.orglscriptslcordet.exe?action=DE'TAIL&inq_doc_number=L050000338b5 &i... Ill 9I2fl49 ~C3~8 ~IIIIIITE~ ~(~~IL~'F'1! Ct~(Vi~~-oVV A1V[~U~-L RE~'OK I DocUMENT# ~D500003386~ En#ity Name: OPEN ROAD RESPONDERS, LLD Current Principal Piace of Business: 3681 WEST OAKLAND PARK BLVD:. LAUDERDALE LAKES, FL 33311 Current f+fiaiiing Address: 3681 WEST QAKLANQ PARK BLVQ. LAUDERDALE LAKES, FL 33311 r~~~i~ ~;~a 0'I , 2008 ~~=re>~ary ®t Mate New Principal Place of Business: New Mailing Address: FEI Number: 34-21)56417 FEk Number Applied Far (i FEI Number Not Applicable () CartiScate of Status Desired ( y In accordance with s. 607.193(2)(b), F.S., the limited liability company did not receive tMe prior notice. Name and Address of Current Registered Agent: Name and.AddresS of New Registered Agent: GOLDSTEiN, GRA4G 3681 WEST OAKLAND PARK BLVD. LAUDERD,4LE LAtCES, FL 33311 US The atsove named entity submits this statement for the purpose of changing its registered office or registered agent, or both, In the State of Florida. SIGNATURE: Electronic Signature of Registered Agent Date MANAGING MEMBERSIMANAGERS; ADOtTfON51CHANGES: Title: MGRM O Delete Title: OChange O Addition Name: WEST WAY TOWING, iNC, . Name: Address: 3881 WEST OAKLAND PARK BLVD. Address: City-St-Zip: I.AUi7ERDALE LAKES, FL 33311 City-St-zip: Ttle: MGRM O' Delete Title; OChange (' )Addition Name: J 8 J TOWING, INC., Name: Address: 5613 N.W. 8TH STREET Address: City-St-Zip: MAi~iGATE, FL 33063 Gity-St-Zip: Title: MGRM (}Delete Title: (}Change O Add$ion Name: MIDTOWN TOWING OF M7, AMI, INC. Name: Address: 561 MN 72 ST Address: City-St-Zip: MIAMI, Ft. 33150 City-SA-ZIp: I hereby certify that the information supplied with this filing does not qualify for the exemption stated in Chapter i 15., Florida Statutes. I further certify that the information Indicated on this report IS true and accurate and that my electrariic signature shall !lave the same legal effect as if made under oath; that I am a managing member or manager of the limited kiabtlsty company or the receiver or trustee empowered to execute this report as required by Chapter 608, Florida Statutes. SIGNATURE: CRAIG G01_DSTEW MGRM 05101!2008 Electronic Signature of Signing Managing Member, Manager, ar Authorized. Representative f Date ~~~~~~~ TG: lvlayor and City Commissioners FROIvI: Joseph M. Safford, Finance .Director Patsy Nadal, Purchasing Manager THROUGH: David Harden; City lvlanager DATE: January l4, 2009 SllBJECT: .~~E1~P_k I~'Eh'f Sf'.3 -_R~G~L~t ekQI1!f1VI~5S1~N ME~~'~TI~; O~ 3ANUARY ~0, 21109 C~n.'TRACT.~WA~RD/B~CK':S, TOWING AND REC¢VERY, TNC; I~>ur~ 1~>~~a~ cal~ss~al~ City Commission is requested to approve award of cozitract for Wrecked?owing Services for the Police Department to Beck's Towing 8& Recovery, Inc. 1~~.CKGIt~d]]~g Request for Proposal X2009-Q.6 far Wrecker/Towing Services was advertised on November l6, 2008 in The Palm Beach Posl newspaper and an DemandStar.Cam. Amandatory pre-bid conference was held on December OI ; 2008 wish seven (7) vendor attendees. Responses were received from f ve {5) vendors on December l5, 2008. 7'he Police Department made site visits to each. vendor's location to check the facilities, location, equipment, drivers; office staff, etc. On 3anuary 13, 2004, a five member committee .consisting of representatives from Fleet Maintenance. Code Enforcement and the Police Department reviewed the proposals received. Three of the five towing companies that submitted bids on this RFP, did not meet the minimum requirements based upon the review of the proposal and/or site/equipment inspections. Charly's Towing did not have a Storage .site within the required area {Broward/Palm Beach County line to the south, 441 to the west,. Hypoluxa Boulevard to the north, and the Atlantic Ocean to the east} at the time of bid. Charly's also did not meet the tow vehicle requirement for a Class "B" tow truck. Palm Beach Gardens Towing did not meet the Class "B" taw truck requirement and did not have a storage site within the required area at the time of bid. Westv~+ay `towing did not meet the bid requirement of being a business established in Palm $each County conducting towing services continuously for the past two years. The evaluation method for this bid process is based on a point system; points are given far the faIiowing categories: 1) )" ranc>mise fee g) Ctnstomer Service 3} Response 'Eime 4) Experience http://www.mydelraybeach.cam/Agendas/Bluesheet.aspx?1temlD=l 841 &MeetinglD=l 6 ] ] 119/Z009 The follo~~vin~ is the points break down far the iwo (~} towing companies that met all of the requirements: Beck's ';;'flwiu ~` Dint ljcclSata Tawen -Dints ranchise Fee: $16~ X0(1.00 50 ranchise Fee: SISO,000.O~ ~$ Customer Service: 2.0 Customer Service: 12 inlet'-4 Battiloro- 4 Tyson-4 Glass-4 inlet'-3 Battiloro- 3 Tyson-2 Glass-2 ume]l-4 _~ ~ ~ Rumell-2 esponse `Time: 20 Response Time: ~ 5 Finley-4 Battiloro- 4 Tyson-~ Glass-4 inlet'-3 Barii}oro_3 Tyson-3 Glass-3 Rumel]-4 Rumell-3 Experience: 10 Experience: 1~ iniey-2 Battiloro-2 Tyson-2 Glass-Z inlet'-2 Battiloro- 2 Tyson-2 Glass-2 Rumel]-2 RurnelI-2 otal Points: T00 Total Faints i~5 AECOI~s~dlW1EN1~A_Tl: G}~ Staff recommends award of the contract to Beck's Towing & Recovery based on the Total Foints received by the review committee. The annual franchise fee payal,}e to the City of Delray Beach is $1(2,4DO.OQ annually in four (4) quarterly payments of $4a,b00.OQ. http://www,myde]raybeach.com/AgendaslBluesheet.aspx`?liemID=l $~] &MeetingID-161 1119/2009 Evaluation method -proposals will be evaluated in accordance with the criteria listed below: a) Franchise fee ~0 moints The highest franchise fee provided from a responsible bidder shall receive 50 points. For each $S,Q04.00 or less increment franchise fee amount below the highest franchise fee, 1 point will be deducted for each increment. For example if the highest franchise fee bid received is $75,g00.0~, then someone suhn~itting a fee amount of $SO,OOOAO would receive 45 points. In the event that two or more bidders. list the same. amount as a franchise fee, the same number of points will he given to each. b} Customer ServicelTeannwork {during last 5 years). 2Q pouts I) Cooperative attitude (must give examples and documentation from customers) 2) willingness to go out of your way to provide excellent customer service {must give examples and documentation from customers}; must also provide references 3} community involvement -list the prog~ams and community events that you have participated in. 4) consumer complaints aS recorded by any governmental or commercial entity. Must give contact names and numbers for alI commercial and governmental customers. Must also provide written documentation of how customer complaints are handled. c) Response Time ZO poin#s The lowest response tune submitted by all bidders shall receive the mast points. The bidders must provide reliable support and documentation within the last year that indicates the feasibility of the response time listed. The City, in its sale discretion, is the sole judge of the accuracy and competence of response time .documentation. The City may determine that due to the actual location of the storage yard the response time submitted is not feasible and may award points the City determines in its sale and absolute discretion is mare appropriate. d) Experience t0 points The owner of the towing company shall have five consecutive yeazs of experience during the -past six year period. The owner must submit documentation showing the experience asserted in the bid. The Seieetaon Committee may take into account the past performance (irt the Pa:St 5 years} of the Bidder as it relates towing for the City or other governmental entities. `l"OTA~ The scoring of points shall be as follows: 100 points Subsection (a) -Each member of the Selection Committee shall rate each Bidder from 0 (worst} to 10 (best). E 27 '' ~~ ~ ~~ DE1.8Ar ANCM ~ ~ ~i:~ i ~ AV1 P,~~~F L''+~1n'r f'.f +f:k F: ,:NfUR.Ci4~A {F7:• 4-7 t ~ ~ A~I~EN~~'~f N4. i :,. ~l<TY ~~' DEFRAY BEA~~ ~`P #2044-05 s~y~~ ~, `'V~$E~KER 1 '£~R'L~~ SER~'~CES -'`~ ~ ~ FG~R '~'~E F{3L~CE ;r3EFA.R~'MF~T'T` 'f`~t~h'f ~~~d'i'RACT Addendum >~o. ] dared Qccober 28, 24U3,. tra the Spceificatians and Contract ,l?ocumer.~s for the above rcfet-enced prnjcct, xs hereby declared a part of the ongir~ai $p.cifii~ations and Contract Dackunents, and incase of conflict, the following ~.ddendum shall go~em. Bidders are advised that the information containod in this Addendum is abbreviatod and gen~raJ in nature. It is th¢ Bidders responsibility to inc]udc all items necessary for the prapeg execution, coordination aitd completion of all aork/service directly affiected b~~ this Rdderxdun~. CHA~tGES A.RE AS FULLQ~'S: Page ~7 of the Propose! package, sectio d "Experience" - to y ead as follows: "Tl'e os~ner cf the towviaf; compRay shall have 3 e of eYperieact duriag the past six yestr ~ae~iod, The ®wner a'rrust submit afocumentatton shawiag the c~tperiencc esser'tet3 iu the bid. ~ Tae Sel$ct~on Commfttee may take iu,to account the pasf performance (lu the last three years) af' fist Bidder zs it !re3ates touring-for the L"tty or other governmental eutit7ies. Bidders shall acknowledge receipt of this Addendum by completing Lhe appropriate ssctioxt below and submitting with your bid proposal package. 3 yn R ono}' ~~ Purchasing Menagcr Z, ~, •~ Authorized Signature: yarns ~ Titke: Company Name. C~ ~y f~ ~ 3 y3 .~ Phone; DEND M #~] K 5 ~~,Jlrt1 G - Address: l~ ~ T++F EFFORT A,-ways N~AT7trR~S [,~,j prw•Ytlq G~ Rctvi:k:U C~K~~r~ AWL 1 .. P• ~~~ ~~ ~E~~Y ~~.~v ~~~5~ FAR PROPaSA~-S ~g THE p~LIC~ ~~PAR~'~F~T ~g~~~~~~I~G SE~v~$ # 008-Q~ TS OF ~~CKE~OVVING SERVIeES ~J~~M~N lia,nce with all ~~3 ;'i~S AN~3 ~~ the City onsibility of any contractor to assure Conti established by in this proposal 1 _ It will be the respeq provisions and uirements set forth Commission. financial interest in submit names aril addresses of all persons having individual owners, Contractor must but is not limited ,ndebted to the towing 2• p financial interest includes, and stockholders, his business. ers, officers, directors, partners, limited paw? ro osal is 'submitted. company in excess of 52,00 at the time the P p elra Beach Florida. The , e City Occupational License within ten {10) or must be a licensed businesstrt? the City of ~ , Contract Contractor must also submit. a 'copy o .days aftex the notice of award. eat the time the proposal is ontractor must provide with their proposal packag 4. The C submitted: the City. ui rnent for review by roviding towing service. A complete list of eq p erience for p a' ualifications and e~P Statement of q lated references. References sub been P~ feed. i All b 4 business re c. List of four ( ) whom services similar to those dQ~~ ed herein ave for verified by City pe references will be ularly engaged in the the Contractor shall be reg roduce Beach County and shall be able to p ast {2} ~, To be eligible to re ~ fiyl-time basis~n Palm ices continuously for the p towing business on erience in providing similar 5erv ' ch must have been within the boundaries of the contract . evidence or prior eXP years {one year of whi ~' ~~~INIT~O~'s the following definitions shall apply: For the purposes of this Request for proposal, the fee that is charged for title anal lien search. ~~ shall mean weer of the vehicle. 1 '~pdrninistrative Fee dvertising costs, and notification to the lien holder an ° a Beach, Florida. a o f Delr y « mission" shall mean the City Commission of the City 2, Com Ib C[TY OF DfLRAY 1BEAC1-l REQUEST FOR PROPOSALS WRECKERrI'OWIl~1G SERVICE'FOR THE POLICE DEPARTMENT- RE-S1D )1tFP #2009-06 SPECIFICATIONS A. DEITIES AND REQUIREMENTS OF WRECKERPI'OWING SERVICES !. It will be the responsibility of any contractor to assure continued compliance with all provisions anal requirements set forth irr this proposal established by the City Commission. 2. Contractor must .submit names and addresses of al! persons having financial interest in his business. A financial interest includes, but is not limited to, individual owners, partners, limited partners, officers, directors, and stockholders, indebted to the towing company in excess of $2,00(}. at the time the proposal is submitted. 3. Cdntractor shall have 1D business days after notification of the award to obtain a City Occupational Licc~7se. 4, The Contractor must provide with their proposal package at the time the. proposal is submitted: a. A complete list of equipment fo.r review by the Gity. b. S1.aternent of.quali~cations and experience far providing towing service. c. List of four (4} business related references. References submitted should be firms- for whom services similar to those described herein have been performed. Al] references will be verified by City personnel. Tv be eligible to respond to this RFP, the Contractor ,rl~all be regularly engaged in the towing business on a full-time basis in Palm. Beach County (which means the contractor lzas an established business in Palm Beach County) and shall be able to produce evidence of prior experience in providing similar services continuously for the past (2) years in Palm Beach County. B. DEFINITIONS For the purposes .of this Request for Proposal, the following defnitions shall apply: "Administrative Fee" shall mean the fee that is charged for title and lien search, advertising costs, and notification to the Lien h~ldcr and owner of the vehicle. 2. "Carnmission"-shall mean the City Commission of the City of Defray Beach, Florida. "Department" shall mean the City of Delray Beach Police Department, which is the agency designated to implement, enforce, and monitor this contract. 17 Krc~ znoy-are rz~.ttir~ . K~v .,. . Michael Weinec >Frorn: Werner, Catherine [Catherine.Werner@dot.state.fl.usl Sent: Tuesday, January 2D, 2009 10:39 AM 70: Open Roads RESPONSE Goldstein (CGOLDTOW@AOL.COIVi} Craig - To my knowledge l have not heard from Delray Beach in reference to West Way Towing. If Delray Beach needs anything please give them my phone numbers. ~irrR~criree 4~s ernNr '44i1c Pc~,t ii;~, 1"`lcn•icia'~ `L'w7rpikc "1'strnl~il:e C)pc:ratiatt C'cutcr l'i~rrrFr~irc> 13eac•li, 1a13~3Ufi.c) O!Tice: S),i~1~-~)~•i~1-11 Z2 F~naiI: t•atl~et~isic.«~r~~rrcr~clc~t.statc:.ll.us 1 L2012009 Page 1 of 2 Shutt, Brian From: Finley, James K. Sent: Tuesday, January 20, 2009 11:22 AM To: Shutt, Brian Cc: Ruby, Susan; Battilflro, Jahn; Finley, James K. Subject: FW: Attachments: FINLEY.pdf The following is in reference to Westway Towing.: 1. The RFP calls for the contractor to have an established business and continuously been towing in Palm Beach County for the past two (2} years. Attachment #1 will show that Westway Towing has only been in business in Palm Beach County since 1114108. Attachment #2 will show when Westway Towing registered their tow trucks to Palm Beach County consumer affairs 1118108. Although Westway towing has the required amount of trucks to meet the requirements of the contract (for some reason} they only have four trucks registered in Palm Beach County. Our Bid calls for six trucks. This morning a hypothetical point scale was completed on the basis if Westway Towing was eligible to bid. The following are the maximum allowed points they could have received: Franchise fee: 47 points Customer Service: 20 points Response time: 15 points Experience: 10 points Total Points: 92 points By the point system outlined in the RFP, Westway Towing would have fallen short by 8 points to the highest other company. Furthermore, this is a business that requires the possession of a valid driver license. Since 12/01/08 Mr. Goldstein, the owner of Westway Towing has not possessed a valid driver license in the state of Florida. It was suspended on this date for failing to pay traffic fines and as of 1119109 it was still suspended. z~~~2o0~ Page 2 of 2 From: Kearney, Stephanie Sent: Tuesday, January 20, 2009 10:2$ AM To. Finley, ]amen K. Subject: 2/3/2009 + olyv • Va a West Way Yawing, ~i~c. is~sinass Nam• @5t wa TOwi .Int. drew 9701 w Atlanac Ave, Delra Beach FL 3346 ehldes A~ailabla Class A -Total i, Class 8 -Total ]., Cuss C - Totat I, CI855 D -Tots! 1 otarl; 4 Webaite AddrasuE Mat available Eglabll~ed Peer Canted Hsma aldsteln Cra a Presider~# ~ Phone Numbar (954} 731-1115 Coretaet Extansian Licaenae Number !87 Year 200$ Average Abe of Feet aar~s 1.25 E.icer~ Statue L1Cer~~d License Expiration 12/31/2008 Date ~ ~~~~~ ~~~ ~1 ~F~~' http:/fwuvw.pbcgov.cowlpubr~ec~-lcansumer/aspsri~omparynC3'ailaasp?wf'Agencyseq~7ao3i~2... 12n9rzaos Palm Beach County Tex Collector 91f~r~0o9 3o:5~:is kM f3~sirsrss Tax Receipt Accou~tt Year : 2pp$ Account Numf~r : 11S6fs Fes Class : GS012 Status : AGTNE Business E~amt :WEST WAY TOWMG iNC Qvtimer Name ; GOf;_dSTE1N CRNG Business ~ Mai1 Asldr=ss : 97f}# W ATfJWTIC AVE g Address : 970 W ATLANTIC AVE City : DELRAY BEACH Stair : PL Zif7 ~ 33446'9738 Phase : (SS4)638-7485 City : DELf~2hY f3FAGH State : FL ZIP :3344&973$ r'hon~ . ~~a61)638-7895 cry f_imits : i+10 f=ee Period :One Year Ong fasue : f11f`14l288$ f3afq Pecs Prop ~'ype ©F Business :TOWING SfE#~CE State Cert Exp Dace : 491301ZOQ9 N~mbsr C1f c 3 I of 1 l?6 ~E1t]9 14:9 r1M IN THE. CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA BID PROTEST BY WESTWAY TOWING INC. ORDER. OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This bid protest has come before the City Commission on February 17, 2009 where the applicant is requesting that the Commission uphold its bid protest to RFP 2009-06. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the bid protest by WestWay Towing Inc.. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. BID AWARD The City will select the bid that, in the City's judgment, will best serve the City's interest. Would approving the bid protest best serve the City's interest. Yes No 3. The City Commission has applied the Comprehensive Plan and City Ordinance requirements in existence at the time of bid award and finds that its determinations set forth in this Order are consistent with the Comprehensive Pian. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these I:Indings. 5. Based on the entire record before it, the City Commission approves denies the bid protest. 1 6. Based on the entire record before it, the City Commission hereby adop#s this Order this 17~' day of February, 2009, by a vote of in favor and apposed.. ATTEST: Rita Ellis, Mayor Cheveile Nubin, City Clerk 2 MEMORANDUM TO: Mayor and City Commissioners FROM: Doug Smith, Assistant City Manager Richard J. Reade, Interim Public Information Officer THROUGH: David T. Harden, City Manager DATE: February 12, 2009 SUBJECT: AGENDA ITEM 9.F. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 2009 STATE LEGISLATIVE PRIORITIES ITEM BEFORE COMMISSION The item before the City Commisison is consideration of the proposed 2009 State Legislative Priorities for the City of Delray Beach. BACKGROUND Recently, the Florida League of Cities, in conjunction with its municipal members around the State, developed their 2009 Legislative Action Agenda, which supports legislation that strengthens municipal self-governing powers. In an effort to ensure that the City of Delray Beach not only maintains its ability to govern itself ("Home Rule"), the City must ensure that legislation is not created that may harm the delivery of services that our Citizens receive. Thus, the City has developed a proposed list of "Key Issues" for the upcoming 2009 State Legislative session that could potentially affect the City (and support many of the FLC's priorities) for the Commission's review. These "Key Issues" include: LEGISLATIVE ISSUES: UNFUNDED MANDATES TO LOCAL GOVERNMENT GROWTH MANAGEMENT ISSUES: Impact Fees -Three (3) Year Moratorium on Imposition or Collection Comprehensive Plan Text Amendments -Submittal Options Development Permitting Approval -Three (3) Year Extension TAX REFORM, FINANCE & OTHER REVENUE RELATED ISSUES: Revenue & Expenditure Caps Develop Fair and Equitable Tax Structure Special Assessments to Fund Law Enforcement Services Public Works/Utilities/Transportation & Road Activities -Preemption Eliminate Utility Surcharge for "Outside" Customers Municipal Pension Plans Worker's Compensation EDUCATION ISSUES: Encourage Civics in Florida's K-12 Education TRANSPORTATION: Dedicated Transportation Funding Source ENVIRONMENTAL ISSUES: Beach Renourishment Funding Source Reclaimed Water Regulations VOTING & PUBLIC INFORMATION: Provide Additional "Early Voting" Sites APPROPRIATION ISSUES: Judicial System Funding EMS Grants Parks and Recreation Funding Additional information related to these "Key Issues," as well as other City and FLC related issues, is available in the attached 2009 State Legislative Issues -City Commission Summary document. RECOMMENDATION Staff requests direction from the City Commission regarding the list of State Legislative Priorities. 2009 KEY STATE LEGISLATIVE ISSUES CITY COMMISSION SUMMARY LEGISLATIVE ISSUES Unfunded Mandates to Local Governments: The City of Delray Beach SUPPORTS legislation that strengthens the prohibition on unfunded mandates, improves identification and quantification procedures, eliminates loopholes and requires full funding of new state mandates to municipalities. Proposed legislation should provide meaningful enhancements to the existing unfunded mandates provision including, but not limited to: Eliminates exemptions from unfunded mandate scrutiny Provides greater public notice, legislative scrutiny and fiscal information Enhances accountability and transparency Preserves self-determination and local fiscal stewardship Provides a process to resolve conflicts and disputes Requires legislative support through the development of implementing legislation Other PositionL) on this Legislative Issue: The Florida Association of Counties, the Florida League of Cities (FLC) and the Florida School Boards Association jointly SUPPORT legislation that provides meaningful enhancements to the existing unfunded mandates provision. GROWTH MANAGEMENT ISSUES: Impact Fees/Moratorium on Imposition or Collection SB 630 (Bennett) proposes a three (3) year moratorium on the imposition or collection of impact fees by a county or municipality. The City is OPPOSED to this bill and feels that growth and its impacts should not be funded by our current taxpaying citizens. Creating a moratorium on the collection of impact fees may also affect (i.e., default) municipal bond covenants that require these funds to support annual debt service. Comprehensive Plan Text Amendments SB 360 (Bennett) proposes to limit Comprehensive Plan Text Amendments to once per year. The City is OPPOSED to this proposed legislation as it would not allow local governments to adequately respond to economic development opportunities. The City does SUPPORT removing the twice yearly limitation on submitting plan amendments to better respond to develop needs and spur economic development/redevelopment & growth opportunities. In addition, the City of Delray Beach SUPPORTS expedited state review of local government comprehensive plan amendments (i.e., small & large scale) with assurance that local governments maintain the ~~fairly debatable" legal standard of review in challenges to plan amendments. Development Permitting Approval -Three (3) Year Extension The City of Delray Beach is OPPOSED to any proposed legislation that extends all state and/or local permits and/or approvals for three (3) years for all developments. This removes a municipality's Home Rule powers. Further, each project should be considered on a ~~case by case" basis and should be analyzed with respect to its compliance with any recent municipal land development regulation changes that represent the needs of the community and were approved by the community's elected officials. TAX REFORM, FINANCE & OTHER REVENUE RELATED ISSUES: Revenue & Expenditure Caps The City of Delray Beach OPPOSES legislation and/or Constitutional restrictions on the City's authority to determine local tax burden and/or financial commitments to services or quality of life. Other PositionL) on this Legislative Issue: The Florida Association of Counties, the Florida League of Cities (FLC) and the Florida School Boards Association jointly OPPOSE this type of legislation. Develop Fair and Equitable Tax Structure The City of Delray Beach SUPPORTS legislation that provides a fair and equitable tax structure and allows municipalities the flexibility to provide the level of services desired by their citizens. Legislation should be developed that SUPPORTS simplifying and stabilizing Florida's state and local tax revenue structure in a manner that provides fairness for both citizens and businesses of our state, while addressing the realities that the current statewide constitutional taxing structure imposes on all levels of government. Arbitrary caps on property assessments, municipal expenditures or municipal revenues should be OPPOSED. Page 2 The state and all other taxing entities within the state, including municipalities, counties, school districts and special districts, must agree to comprehensive tax reform addressing all categories of taxation, including: taxes based on value, taxes based on consumption, and taxes based on wealth. The state and all other taxing entities within the state must be included and share in the benefits and burdens of comprehensive tax reform. Until there is a comprehensive tax reform package addressing all taxpayers and taxing entities in an equitable manner, focusing ~~tax relief" efforts to specified categories of taxpayers or at specified taxing entities will only serve to make an inequitable taxing system more inequitable. A comprehensive tax reform package must address, at a minimum, the state's property tax and sales tax systems. Property tax system reforms must address: Inequities created by Save Our Homes, which unfairly discriminates against certain taxpayers Inequitable property assessment criteria Opportunities for municipalities to replace property taxes with other forms of taxation in an initial revenue-neutral manner to the taxing entity Opportunities for municipalities to replace property taxes with other revenue sources, such as special or non-ad valorem assessments to fund law enforcement services, in an initial revenue-neutral manner to the taxing entity Simplifying the millage-setting process Permitting municipalities to lower millage rates in one year without restricting their ability to increase millage rates in future years, such as requiring them to meet extraordinary statutory requirements for such an increase Sales tax system reforms must address: Items subject to sales tax, including a sales tax on services Exemptions from sales taxes, with any exemption to be based on provision of an essential item or service, such as food or medicine Opportunities for municipalities to adopt local sales taxes to replace other revenues in an initial revenue-neutral manner Special Assessments to Fund Law Enforcement Services The City of Delray Beach SUPPORTS legislation that permits municipalities to impose special assessments, or a similar funding method, for the provision of law enforcement services in an initial revenue-neutral manner to payers of property taxes and also allows municipalities to use this funding source to replace municipal service taxing units (MSTU) created within municipalities for law enforcement services. Public Works/Utilities/Transportation & Road Activities -Preemption Page 3 SB 616 (Haridopolos) and HB 611 (Hukill) have proposed legislation that will substantially alter the manner by which local governments perform public construction works and transportation projects. The bills amend Section 255.20, Florida Statutes, to restrict the use of City employees and/or City owned equipment for, and to broaden the circumstances when local governments are required to competitively award, public construction works. The bills will restrict the use of city employees/equipment and subject a substantial amount of city transportation activities to mandatory bidding requirements. Under the proposed legislation, the local governments' decision to perform the work in house is subject to judicial challenge. The City is OPPOSED to these bills. Utility Surcharge The City is OPPOSED to any legislation that removes/eliminates a local government utility's rate-setting authority to its customers - ~~inside" and ~~outside" its corporate boundaries. Currently, utility (i.e., water & wastewater) entities maintain the ability to charge a surcharge, which is permitted pursuant to Section 180.191, Florida Statutes, of up to twenty-five percent (25%) to its utility customers living outside the City's boundaries without a cost study and up to a fifty percent (50%) surcharge if deemed appropriate by a cost survey. This surcharge, which has been historically available to municipalities, recognizes and justifiably offsets the capital costs and burden carried by the local government's tax paying citizens to enable the acquisition, maintenance and operation of our Water & Wastewater utilities and, therefore, provides quality Water & Wastewater services for non- residents and non-municipal taxpayers. Removing this option could negatively affect a local government's ability to support its required annual debt service and may ultimately affect the delivery of Water and the collection of Wastewater to its customers. Municipal Pension Plans The City of Delray Beach OPPOSES legislation that diminishes municipal control over municipal employee pension plan management and funding or increases municipal funding liabilities. Also, the City generally SUPPORTS HB 673 (Domino), however, the City is requesting that this Bill be revised to ensure that local governments continue to receive all state premium taxes (i.e., homeowners & auto) to support existing and/or new public safety pension benefits -either within the FRS and/or pension plans permitted under Florida Statutes 175 & 185. Currently, this bill only recommends that the receipt of state premium taxes be continued to be received by local governments to support ~~active" plans developed pursuant to the Florida Statutes 175 & 185 and/or to support funding requirements (until it is ~~fully funded") after a ~~175"and/or ~~185" plan is ~~closed." Worker's Compensation Page 4 The City of Delray Beach SUPPORTS legislation that provides for reasonable controls and limitations on legal fees and rates regarding Worker's Compensation litigation. Other PositionL) on this Legislative Issue: The Florida Association of Counties, the Florida League of Cities (FLC) and the Florida School Boards Association jointly SUPPORT this type of issue. EDUCATION ISSUES: Civics in Florida's K-12 Education The City of Delray Beach SUPPORTS current K-12 social studies curriculum provides for a form of assessment. legislation that includes civics in the as a unit of class instruction and TRANSPORTATION: Dedicated Transportation Funding Source The City of Delray Beach SUPPORTS legislation that establishes dedicated funding sources for multi-modal municipal transportation and transit projects. ENVIRONMENTAL ISSUES: Beach Renourishment The City of Delray Beach SUPPORTS legislation preserving funding within the Ecosystem Management and Restoration Trust Fund, pursuant to Florida Statute section 201.15(11), which is utilized to support beach restoration projects throughout the State -normally contributing $30 million or 2.12% each year (whichever is less) for projects statewide. Funding for this Trust Fund is derived from the documentary (~~doc") stamp tax. This funding is important to the City of Delray Beach due to the ongoing renourishment project for our 2.65 mile beach. Both State & Federal Funding for this project are critical to this important, ongoing project. Page 5 Reclaimed Water Regulation The City of Delray Beach SUPPORTS legislation clarifying that reclaimed water is an integral component of the City's water supply plan and permitted discharge strategy that should not be subject to additional regulatory actions by the water management districts. Furthermore the City of Delray Beach SUPPORTS legislation that provides any quantities of currently permitted sources of water replaced by reclaimed water should be transferred back to the City of Delray Beach. Total Maximum Daily Loads -Florida Department of Environmental Protection Allocation Methodology The City of Delray Beach SUPPORTS legislation that strengthens existing law to require that water quality pollution reduction standards be based on the best available valid data applicable to the specific impaired water body. This legislation should require that the Florida Department of Environmental Protection (FDEP) formally integrate the considerations required by Section 403.067(6)(b), Florida Statutes, into its process when establishing total maximum daily loads (TMDLs), and incorporate this information into the written record whenever it proposes and or adopts a TMDL. Water Management District Governance The City of Delray Beach SUPPORTS legislation restructuring the governance of the water management districts to provide for increased accountability, efficiency and cooperation in water supply planning and permitting among the state, local governments and water users. The water management districts must be required to: Quantify and regulate groundwater used by domestic self suppliers. Provide notice to and allow participation as requested by local governments in all permitting processes. Issue consumptive use permits only when they are compatible with the local government comprehensive plan. VOTING & PUBLIC INFORMATION: Early Voting Sites The City of Delray Beach strongly SUPPORTS HB 475 (Williams) which proposes to permit the Supervisor of Elections with the option to designate any permanent public facility as an early voting site. Page 6 Public Participation at Public Meetings The City of Delray Beach OPPOSES legislation that interferes with municipal autonomy in determining the conduct of public meetings. Release of Social Security Numbers The City of Delray Beach SUPPORTS legislation repealing the provisions of current law that authorizes the release of social security numbers to commercial entities. APPROPRIATION ISSUES Judicial System Funding The City of Delray Beach strongly SUPPORTS the full funding of the State Attorney and Public Defender offices and the Judiciary. The Legislature does not want local governments to reduce public safety funding. However, reduced court funding has a significant impact on public safety due to the inability to complete the processing of cases. The City makes arrests, but the court system is so overwhelmed due to reductions in funding that cases are ~~nolle prossed," lost due to speedy trial requirements, or are not getting filed. Full funding of the court system to include the Juvenile Assessment Centers statewide is critical to public safety. EMS Grants The City of Delray Beach SUPPORTS continued funding of the Florida Emergency Medical Services' (EMS) matching grant programs provided by the Florida Department of Health -Bureau of Emergency Medical Services. The programs are authorized to improve and expand EMS statewide. Parks and Recreation Funding The City of Delray Beach SUPPORTS continued funding for the Florida Recreation Development Assistance Program (FRDAP) -Florida Department of Environmental Protection (FDEP). This program provides important financial assistance to local governments for development and/or acquisition of land for public outdoor recreational purposes. 2009 Key Dates February 2-6 House/Senate Interim Committee Meetings 9-13 House/Senate Appropriations Meetings 16-20 House/Senate Interim Committee Meetings 24-26 Florida League of Cities Federal Action Strike Team (FAST) Fly-In -Washington, D.C. March 3 Opening Day of the 2009 Regular Legislative Session 4 "Palm Beach County Day" -Tallahassee 5 Florida League of Mayors Fly-In -Tallahassee 14-18 National League of Cities Congressional City Conference -Marriott Wardman Park Hotel, Washington, D.C. 25 Florida League of Cities Legislative Action Day -Tallahassee-Leon County Civic Center, Tallahassee 25 Florida League of Mayors Roundtable Meeting -Tallahassee April 29 Florida League of Mayors Fly-In -Tallahassee May 1 Last Day of 2009 Regular Legislative Session August 13-15 Florida League of Cities Annual Conference -Orlando World Center Marriott November 19-20 Florida League of Cities Legislative Conference -Hyatt Regency Orlando International Airport Hotel MEMORANDUM TO: Mayor and City Commissioners FROM: Susan Ruby, City Attorney DATE: February 6, 2009 SUBJECT: AGENDA ITEM 9.G. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 HOFFERT V. CITY OF DELRAY BEACH/OFFER OF PAYMENT OF COURT COSTS ITEM BEFORE COMMISSION Approval of payment of costs in the amount of $15,000.00. BACKGROUND The trial of this case occurred in August, 2008. The City, as a result of the Trial Court's verdict, paid $23,400.00 to the plaintiff. As the prevailing party, the plaintiff is entitled to the payment of costs from the City. The plaintiff subsequently filed an appeal of this case. Our appellate lawyer has indicated that $15,000.00 for costs and final resolution is a reasonable assessment of the costs, and would also save the City additional money in defending the appeal. FUNDING SOURCE 551-1575-591-45.51 RECOMMENDATION Our office recommends the City pay $15,000.00 for the costs and final resolution of the case, upon the conditions of dismissal of the appeal and the receipt of appropriate releases. (We may also need to reissue the check tendered previously in the amount of $23,400.00 as it had not been cashed and is over 90 days old. This will be done predicated on a return of the uncashed check). MEMORANDUM TO: Mayor and City Commissioners FROM: Catherine M. Kozol, Asst. City Attorney THROUGH: City Attorney DATE: February 12, 2009 SUBJECT: AGENDA ITEM 9.H. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 PROPOSAL FOR SETTLEMENT IN HEATHER LEITCH V. CITY OF DELRAY BEACH ITEM BEFORE COMMISSION This is a settlement proposal by the plaintiff Heather Leitch in the sum of $35,000.00. BACKGROUND This is a case for personal injuries sustained by the plaintiff, Heather Leitch, arising from a stray gun shot would to her chest which she sustained shortly before midnight on December 31, 2005, while she was in downtown Delray Beach. First Night Delray Beach 2006 was being held in Downtown Delray Beach at the time of the incident. The medical expenses to date, which includes a claim for a Cesarean section which the plaintiff claims was necessitated by the incident, total approximately $43,183.00. RECOMMENDATION The City Attorney's Office recommends denial inasmuch as this case concerns several sovereign immunity issues. n: ~1 2 ~ •~ Y n ~ a x !!„ ~ - a•~W e: are ~ _ ~~~~1~~ ti, ~ .. a~u a~ ~ re MEMORANDUM TO: Mayor and City Commissioners FROM: SUSAN RUBY, CITY ATTORNEY DATE: February 12, 2009 SUBJECT: AGENDA ITEM 9.I. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 NOTICE OF CLAIM FILED/DORIS NYDELL V. CITY OF DELRAY BEACH ITEM BEFORE COMMISSION We have been put on notice of a claim filed by Doris Nydell against the City and the Florida East Coast Railway. FEC has asked that we contribute $50,000.00 toward the payment of this claim. BACKGROUND We believe the facts indicate that on October 2, 2008 Ms. Nydell attended an art fair in the City. She allegedly tripped and fell on the edge of the pavement on the FEC right-of-way causing injury requiring surgery, a hospital stay, two months of rehabilitation at a center, and a month of at-home therapy. Medicare picked up the costs in the amount of approximately $33,000 and thus there is a Medicare lien filed. The FEC believes we share in the liability as indicated in the letter from them which is attached. I have also included photos of the area believed to be the area where she tripped and fell. While this is an unfortunate event, our office does not feel the City or FEC is liable. Nonetheless, we are presenting this matter to you as urged by the FEC. RECOMMENDATION Our office recommends denial of the claim. We would like authorization, however, to work with the FEC. While we have no liability for the crossing area, we would like to see if we can partner with FEC in a manner that might result in the installation of sidewalks on NE 2nd Avenue and Atlantic Avenue. ^. ;~;.: ;!z i ^ b V a r~ I N I to I ~. RailAlmelr~ca, I>~c Corporate Headquarters 711 Ft~llerton Street, Suite 300 Jacksonville, FL 32256 February 12, 2009 VIA FACSIMILE 561-278-4755 Susan A. Ruby, Esquire City Attorney The City afDelray Beach 200 NW 1 ~ .Avenue Delray Beach, FL 33444-2598 RE: Doris Nydell Date of Lass: January 24, 2007 Accident Site; Near Second Avenue and Second Street, Delray Beach, Palm Beach County, Florida Dear Ms. Ruby: To fallow up on your request for additional information related to this incident, we are hopeful that the City of Delray Beach will contribute $50,000 toward settlement of this incident. Based on the fact that you have decided to handle this matter in a public forum, I am unable to provide additional details. However, I understand that Gene Monfort of Gallagher Bassett Services, Inc. has previously presented information to the City for consideration, I remain hopeful that we can resolve this without the need for litigation. I have to believe that once this information becomes known to Mrs. Nydell's attorney, suit will likely be filed naming both FEC and the City. Therefore, I am hopeful that we can resolve this matter through cooperation rather than litigation. I look forward to hearing from you following the City's review of this mattex. Very truly yours, .m~ ~w_ Leean.ll7. Greenwald Vice President -- Litigation O.n Behalf of Florida East Coast Railway, L,L.C. n ~ ^ ti ~ H MEMORANDUM TO: Mayor and City Commissioners FROM: Trade M. Lutchmansingh, P.E., Assit. City Engineer Richard C. Hasko, P.E., Environmental Services Director THROUGH: David T. Harden, City Manager DATE: February 12, 2009 SUBJECT: AGENDA ITEM 9.J. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 REQUEST FOR SIDEWALK DEFERRAL/200 MARINE WAY ITEM BEFORE COMMISSION Request for sidewalk deferral along SE 2nd Street and Marine Way for the property located at 200 Marine Way. BACKGROUND 200 Marine Way is a single family residence located at the southeast corner of Marine Way and SE 2nd Street. There are currently no plans to install sidewalks along SE 2nd Street or Marine Way. RECOMMENDATION Staff recommends approval. Prepared By: RETURN I"O: R. Brian Shutt, Esci. City Attorney's Office 200 N.W. 1st Avenue Delray 13eacl~, I~ lorida 33444 AGRE>l{;I~ENT FO12 SI>[3EV~ALK ~1t~IPEPOVE~EI~TS THIS AGREEMENT entered into this ~~' day of ~~,,~.,,~,~~~ _ 200 Setween the City of Delray Beach (hereinafter the City) and ~~ .~°~~-~.~.~~ ..~'~.~ ~mm- (l~creinafter tl~e Ownersj, for tl~c purpose of waiving the requirement of the installation of a sidewalk along ~ ~. ~~ ~~,~, ,until such dine as the City requests the construction of the sidewalk by the Owner. WHEREAS, Land Development Regulation Section ~i.I.3(C} requires the installation of a sielewallc; within the ~ ~~ ~ _._ right-of way inazrtediately abutting the s~~bject property, by the Owner I7rior to the issuance of a cet~tificate of occupancy; and, WHEREAS, tl~e Owners have requested a waiver from the requirement of the installation of a sidewalk pursuant to Land Developme7~t Regtation. Section C.1.3(D)(1){l7); and, WHEREAS, in order to pxovide confoxt~~ity along the street the City Conaznission voted to waive the requirement for the installation of a sidewalk. until such time as the City requests t11e Owner construct the sidewalk. C.': ~~,Doeursients curd :Settings`~,C.'r°a~ig';tf4j~ Doeunaents''~L?owriloc~c~sisi~'ewcallc deferral a,;nal.doc WITNBSSETtd NOW, T-IERI~,I'ORE, ire witness o~the ~thove and in consideration of the City agrc~i~lg to waive the rcquireinent for the installation of a sidewalk, at this time, for the property located at: c ~a ~ , 1. T11e Owner agrees to construct a sidewalk, at its sole cost and expense, along the ~~ __ right-oi=way abutting the subject property, within a time period that is acceptable to the City, after being reduested to do so by the City. The sidewalk, when constructed, shall meet all of the cLU-i°ent ordinances of tl~e City of Delray Beach. Z. It is the ia~tent of the parties that this Agreen7ent shall run with the land. This Agree~x~ent shall be recorded in the public records of Palm Beach County, Florida and shall be binding on the parties legal represe~~tatives, heirs, successors and assigns. IN WIT'~ESS WHERI/O~, the parties to this agreement set their hands and seals this day of ~ , 200 A"1"TEST: City Clerl: CI'~I'Y OF DELRAY BEACH, ~L,ORIDA By: Approved as to form and sufficiency: City Attorney Mayor C: Lf3r~ctt3~aeraLs c~~zd S'ellfngslCrcr~zg'1,~i~Iy Docrr~rnet7ta•41Jo~vnloacis`isic~ewalic __defei-ral_ pgnal.t~oc WITNESSIsS: ~,,~~ ~ ~'` (Please type or print na~r~e) ~, , (Please type or print nan~c STA'l"E OE ~ ~ ~ /" ~7 ~ OOU1~'TY OF ~,~ '~'~ ~ ~~ OWNER. ;~ ,..w-~' ,~%~ 13y: :~ ,~_... ~,,,w,.~--..~--~3-E.1~E personally appeared ~'. ~c`rf '~ ~~- ~ ~~`~f who his] a~:e] personally known to me r [ilas] [have] produced [and ,respectively] as identification, and who executed tl~e foregoing instrument, and aclc~~owled~ed before me that the] she] [they] executed said instrument for tl~e ptiuposes expressed therein. WITNESS my band. and official seal this ~~ day of-~./~l~G~~~~ 2~~ My comn~:ission expires: ~~~ ~~~ tary Public ~naseaxmur~sxmuseaps Nn~emae4~~~yeCn ~~a Po~rtnrt ng®®e ~ottea»~~ "` w~ ~°,., `~, ~..~ ~x~ir~~ ~f 1'~ ~GFi:~` tAUfpti~i~Ft deb ~Ot$1~/ ly ~~~a m,+,:e~mv~:,r:,;r~,.,w~•aunwxaaezm®aw eaaaersama~e~ r tlnm~ agc~sidewallc deferral agreeines2t {Seal) G' ~~hociu~~ents a~i~cl b`ettingsiG•rtig;l~2y I~oc:4r~ients!Downloacls•sir~eN~alle de~err-ctl_agrnt. dnc a a Z O H Q U O J ~!+ .~ .-. N W =a a° ~= ~ M r' Y° _ OHO ~~ ~- oLL .~ a. ~_ C~ U (~ N m N rn 0 0 N M r N MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: February 10, 2009 SUBJECT: AGENDA ITEM 9.K. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 APPOINTMENT TO THE CODE ENFORCEMENT BOARD ITEM BEFORE COMMISSION This item is before City Commission for an appointment to the Code Enforcement Board. BACKGROUND On January 20, 2009, Mr. Albert Richwagen was appointed as a regular member on the Code Enforcement Board. This created a vacancy for an alternate member to serve an unexpired term ending on January 14, 2010. All members of the Code Enforcement Board must be residents of the City. Appointments to both regular and alternate member positions shall be on the basis of experience or interest in the fields of zoning and building control. The regular and alternate membership of the Board shall, whenever possible, include an architect, a business person, an engineer, a general contractor, a subcontractor and a realtor. The following individuals have submitted applications and would like to be considered for appointment: (See Exhibit "A" attached) A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and all are registered. Based on the rotation system, the appointment will be made by Commissioner Bernard (Seat #4) for one (1) alternate member to serve on the Code Enforcement Board for an unexpired term ending on January 14, 2010. RECOMMENDATION Recommend appointment of one (1) alternate member to serve on the Code Enforcement Board for an unexpired term ending January 14, 2010. CODE ENFORCEMENT BOARD EXHIBIT "A" Name Background Parnel Auguste Real Estate Attorney Rosalie Blood Vice President/General Manager-Retail David Boone Semi-retired Attorney/Educator Gerald Franciosa Retired-Law Enforcement (also applying for the Neighborhood Advisory Council) Pearl Markfield Elrod Realtor (also applying for the Neighborhood Advisory Council) Mel Pollack Director of Security Stanley Scharf Director-Child Care/Public Relations Harvey Starin Real Estate Broker Stephanie Sugar Regional Director CODE ENFORCEMENT BOARD 01/09 TERM EXPIRES REGULAR MEMBERS OCCUPATION POSITION FILLING 01/14/2010 George Thacker Accounts Layperson Unexp Alt Appt 03/20/07 Manager Unexp Reg 06/03/08 01 /14 /2010 Stanley Srodka Financial Services Layperson tmexp Appt 09/05/06 Re t 01/02/07 Re 01 /14 /2011 Kelli Freeman Staffing Manager Business Person Appt 01/03/08 reg Unexp Appt 10/2/07 alt 01 /14 /2010 David Hawke, Qiair Architect Architect Unexp Alt Appt 01/07/03 Unexp Regular Appt 04/15/03 Reappt 01/06/04 Re t 01/02/07 01 /14/2012 Robert Marks Construction General Contractor Unexp Alt Appt 01/07/03 Unexp RegAppt 04/15/03 Reappt 02/07/06 Re t 01/06/09 01/14/2012 Albert Richwagen Business Owner Layperson Unexp Appt 06/17/08 Appt 01/20/09 reg 01 /14/2012 Mark Behar, Vice Qiair Property Mgmt. Layperson Appt. 09/09/03 alt Unexp Appt 10/05/04 Reappt 02/07/06 Reappt 01/06/09 01 /14 /2010 Shannon Dawson Real E state Real E state Unexp Appt 06/17/08 01 /14/2010 Unexp Appt Vacant Contact: Danise Cleckley 243-7213 S/City Clerk/Board 09/Code Enforcement Board MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: February 10, 2009 SUBJECT: AGENDA ITEM 9.L. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 APPOINTMENT TO THE AFFORDABLE HOUSING ADVISORY COMMITTEE ITEM BEFORE COMMISSION This item is before the City Commission for an appointment to the Affordable Housing Advisory Committee. BACKGROUND On April 1, 2008, the Delray Beach City Commission adopted Resolution No. 12-08 establishing the Affordable Housing Advisory Committee for the purpose of recommending incentives for affordable housing to the City Commission. The Affordable Housing Advisory Committee shall consist of eleven (11) members that meet the following criteria: (a) One citizen who is actively engaged in the residential home building industry in connection with affordable housing. (b) One citizen who is actively engaged in the banking or mortgage banking industry in connection with affordable housing. (c) One citizen who is a representative of those areas of labor actively engaged in home building in connection with affordable housing. (d) One citizen who is actively engaged as an advocate for low-income persons in connection with affordable housing. (e) One citizen who is actively engaged as afor-profit provider of affordable housing. (f) One citizen who is actively engaged as anot-for-profit provider of affordable housing. (g) One citizen who is actively engaged as a real estate professional in connection with affordable housing. (h) One citizen who actively serves on the local planning agency pursuant to Section 163.3174. (i) One citizen who resides within the jurisdiction of the local governing body making the appointments. (j) One citizen who represents employers within the jurisdiction. (k) One citizen who represents essential services personnel, as defined in the local housing assistance plan. The following individual has submitted an application and would like to be considered for appointment: Actively engaged in the residential home building industry in connection with affordable housing: Perry Rohan A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and he is registered. Based on the rotation system, the appointment will be made by Commissioner Eliopoulos (Seat #1) for one (1) regular member to serve a partial term ending on July 31, 2009. The appointment should be made for a term ending on July 31, 2009 to comply with the expiration date required in the City Code. RECOMMENDATION Recommend an appointment of one (1) regular member to the Affordable Housing Advisory Committee to serve a partial term ending July 31, 2009. 06/08 AFFORDABLE HOUSING ADVISORY COMMITTEE TERM EXPIRES REGULAR MEMBERS OCCUPATION CATEGORY FILLING 06/17/2009 Vacant Residential home ~t building 06/17/2009 DorothyEllington Executive Advocate for low Appt 06/17/08 D1Y', /HOUSing 1rLCOme persons 06/17/2009 Wanda Gadson Finance-Executive Banking or Amt 06/17/08 Director mortgage banking 06/17/2010 Charles Halberg VP of Serves on local Amt 06/17/08 Construction/Susiness planning agency Owner 06/17/2010 GeraldCrocilla Educator Represents essential Amt o7/01/08 services rsonnel 06/17/2009 William Hatcher General Contractor Areas of labor Amt 06/17/08 actively engaged in home buildin 06 /17/2010 Alberta McCarthy Real Estate/Senate Real E state Amt 06/17/08 Legislation Assistant Professional 06/17/2010 Cannelita Smith Programrning Citizen who resides Amt 06/17/10 Manager/Housing within the Coordinator 'urisdiction 06/17/2009 Connie Staundinger Director of For-profit provider Amt 06/17/08 Development of affordable Housing 06/17/2010 Sandra Weatherspoon Assistant Principal Represents Amt 06/17/08 employers within the ' urisdiction 06/17/2010 Evelyn Dobson Interim Executive Engaged as a not- A~t o7/01/08 Director - CLT for-profit provider of affordable hoes' Contact: Elizabeth Alpert 243-7282 S/City Clerk/Board 09/Affordable Housing Advisory Committee MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: February 10, 2009 SUBJECT: AGENDA ITEM 9.M. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 APPOINTMENT TO THE DELRAY BEACH HOUSING AUTHORITY ITEM BEFORE COMMISSION This item is before City Commission for an appointment to the Delray Beach Housing Authority. BACKGROUND Mr. Russell Yeager, regular member on the Delray Beach Housing Authority, submitted his resignation effective January 14, 2009. This created a vacancy for one (1) regular member to serve an unexpired term ending on July 14, 2010. Per Florida Statute, Chapter 421, an appointee may not be an officer or employee of the City. The following individuals have submitted applications and would like to be considered for appointment: (See Exhibit "A" attached) A check for code violations and/or municipal liens was conducted. None were found. Voter registration verification was completed and all are registered. According to Florida Statutes, members are appointed by the Mayor and ratified by the Commission. However, at the City Commission meeting of June 5, 1991, a consensus was reached whereby each Commissioner would, on an informal basis and according to the rotation procedure, make a recommendation to the Mayor as to the Housing Authority appointees. Based on this system, the recommendation/appointment will be made by Commissioner Bernard (Seat #4) for one (1) regular member to serve on the Delray Beach Housing Authority for an unexpired term ending on July 14, 2010. RECOMMENDATION Recommend appointment of one (1) regular member to the Delray Beach Housing Authority to serve an unexpired term ending July 14, 2010. DELRAY BEACH HOUSING AUTHORITY 4 YEAR TERM 600 N. Congress Avenue, Suite 3105 Delray Beach, FL 33445 01/09 TERM REGULAR MEMBERS EXPIRES 07/14/2012 Joseph Hepp Unexpired Appt 10/21/08 07/14/2010 Unexp Appt Vacant 07/14/2010 Sylvia Morris Unexp Appt 07/10/07 07/14/2009 Angela D. Randolph, QZair Appt 07/24/01 Reappt 06/21/05 10/27/2011 QZristel Silver Appt 11/6/07 03 /06 /2010 Morris L. Weinman, Vice Qiair Unexpired Term 03/06/01 Reappt 02/05/02 Re t 02/21/06 07/14/2010 ThuyShutt (Twee) Appt 07/11/06 Director: Dorothy E llington Contact: Nina Levina/Jaclde 272-6766 X-18 nlevine@ dblla.org Housing Authority 278-4937 Fax 272-7352 S/City Clerk/Board 09 /Defray Beach Housing DELRAY BEACH HOUSING AUTHORITY EXHIBIT "A" Edward Desmond (currently serving on the Public Employees Relations Commission) Joe Farkas Jason Feldman Gerald Franciosa Philip Friedman (currently serving on the Nuisance Abatement Board) Irene Frazier Pearl Markfield-Elrod George Maso Alexia Rouquette Jeff Staley Alan Weitz MEMORANDUM TO: Mayor and City Commissioners FROM: Amy E. Alvarez, Historic Preservation Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH: City Manager DATE: February 11, 2009 SUBJECT: AGENDA ITEM 10.A. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 ORDINANCE N0.06-09 (FIRST READING/FIRST PUBLIC HEARINGI ITEM BEFORE COMMISSION The item before Commission is consideration of Ordinance 06-09 which reclassifies 20 properties within the Marina Historic District, as recommended by the Marina Historic District resurvey. BACKGROUND The City hired GAI Consultants, Inc. to conduct a survey from April -June 2008 following concerns by property owners regarding the Marina Historic District's integrity within the 300 block of SE 7th Avenue. The objective was to survey all properties within the Marina Historic District containing both contributing and non-contributing buildings and structures. The final survey report and its recommendations were accepted by the City Commission at the December 9, 2008 meeting. The adopted Resolution provided for the expansion of the Period of Significance (POS) to 1960, which would reclassify 19 properties from non-contributing to contributing and one from contributing to non- contributing. The current POS spans from 1922-1943. The Resolution also supported the reclassification of the property of 238 SE 7th Avenue from contributing to non-contributing. The attached Ordinance refers to Attachment A, which lists all properties within the Marina Historic District, and notes their dates of construction, architectural styles, and classifications. REVIEW BY OTHERS The Historic Preservation Board (HPB) reviewed Ordinance 06-09 at its February 10, 2009 meeting where a recommendation of approval was made, on a vote of 5-0, with the revision that the property located at 238 SE 7th Avenue not be reclassified to non-contributing. This condition is provided for in an alternate version (Version 2) of the subject Ordinance. The DDA reviewed Ordinance 06-09 at its February 9, 2009 meeting where a recommendation of approval of Version 1 was made by a vote of 4-1 (Chairperson Listick abstained). The CRA reviewed Ordinance 06-09 at its February 12, 2009 meeting, and recommended will approval of version RECOMMENDATION Approve Ordinance 06-09, Version 1, for the reclassification of 20 properties within the Marina Historic District. ORDINANCE NO 06-09 Version 1 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PROVIDING FOR THE RECLASSIFICATION OF 20 PROPERTIES IN THE MARINA HISTORIC DISTRICT, PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the Marina Historic District was originally designated and placed on the Delray Beach Local Register of Historic Places in 1988 with a Period of Significance spanning from 1922 - 1943, and, WHEREAS, the City retained GAI Consultants, Inc. to resurvey the Marina Historic District and those properties originally classified as contributing for continued significance and maintenance of historic integrity; and, WHEREAS, GAI Consultants, Inc. recommended that the property at 238 SE 7t" Avenue be reclassified as non-contributing "due to inappropriate new construction on the property", as the "new construction both dominates and almost completely obscures the original one-story historic structure."; and, WHEREAS, GAI Consultants, Inc. resurveyed the Marina Historic District and those properties originally classified as non-contributing for current significance and recommended that an additional Period of Significance be provided which spans 1946-1960; and, WHEREAS, the final report by GAI Consultants, Inc., was accepted by the City Commission at its meeting of December 9, 2008, with the amendment that the Period of Significance which begins in 1922 be extended through 1960, and supported the reclassification of 238 SE 7t" Avenue; and, WHEREAS, the Marina Historic District was originally significant for its collection of architecture representative of the period from 1922-1943, and is currently significant for its collection of architecture representative of the period from 1944 - 1960. WHEREAS, 19 structures now meet the eligibility criteria for contributing status, attributed mainly to the Post World War II buildings in the Masonry and Frame Vernacular, Ranch, Moderne, and Minimal Traditional styles built from 1947 - 1960, as these buildings have had minimal alterations or their alterations were completed in an appropriate and compatible manner consistent with the Secretary of the Interior's Standards for Rehabilitation; and, WHEREAS, the Marina Historic District was originally and is currently significant under the Secretary of the Interiors Criterion A for significance due to associations with events that have made a significant contribution to the broad pattern of the City's history such as the development of early neighborhoods in Delray Beach, and representation of two periods of rapid settlement during the Land Boom of the 1920s and the post World War II growth from the 1940s through the 1950s; and, WHEREAS, the Marina Historic District was originally and is currently significant under the Secretary of the Interiors Criterion B for significance due to associations with people significant to the City, as several buildings within the district as associated with important individuals in the City's history such as those of the pioneering Blank family, and the Fontaine Fox cottages, associated with the famous cartoonist; and, WHEREAS, the Marina Historic District was originally and is currently significant under the Secretary of the Interiors Criterion C for significance as it embodies one or more distinctive architectural styles or types such as Vernacular, Frame Vernacular, Masonry Vernacular, Minimal Traditional, Ranch, Craftsman, Mission, Mediterranean Revival, Colonial Revival, Monterey, and Art Moderne, many of which can be attributed to known architects or master craftsmen such as Addison Mizner, Sam Ogren, Sr., John Volk, and Gustav Maas; and, WHEREAS, Section 4.5.1 of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach provides for the change of historic classification of historic sites and districts; and WHEREAS, the Historic Preservation Board held a duly noticed public hearing in regard to the adoption of an additional Period of Significance and change of historic classification for those specified properties on February 4, 2009 and voted 5 - 0 to recommend approval subject to 238 SE 7t" Avenue maintaining the contributing classification, and not being reclassified per the adopted Resolution 56-08; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Historic Preservation Board Staff Report; and WHEREAS the City Commission of the City of Delray Beach has conducted a duly noticed public hearing in regard to the historic district designation. NOW THEREFORE BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH FLORIDA AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2 That the properties listed in Attachment A are hereby reclassified as set forth on Attachment A and in accordance with and under the provisions of Section 4.5.1 of the Land Development Regulations of the City of Delray Beach, Florida Section 3 That all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed Section 4 That should any section or provision of this ordinance or any portion thereof any paragraph, sentence or word be declared by a court of competent jurisdiction to be invalid such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid Section 5 That this ordinance shall become effective immediately upon passage on second and final reading PASSED AND ADOPTED in regular session on second and final reading on this the day of , 200_ ATTEST: MAYO R City Clerk First Readin Second Read Ordinance 06-09 Attachment A Marina Historic District Property Classification List Address Classification Year Built Style 700-708 East Atlantic Avenue Contributin 1940 Art Moderne 770 East Atlantic Avenue Non-Contributin 1996 Modern Mediterranean 802-804 East Atlantic Avenue Contributing 1951 Masonry Vernacular 812-814 East Atlantic Avenue Contributin 1931 Mission 816-840 East Atlantic Avenue Contributin 1939 Art Moderne 24-26 Marine Wa Contributin 1960 Frame Vernacular 30 Marine Wa Contributin 1925 Mediterranean Revival 46 Marine Wa Contributin 1926 Mediterranean Revival 48 Marine Wa Contributin 1925 Mediterranean Revival 54 Marine Wa Contributin 1940 Minimal Traditional 60 Marine Wa Contributin 1941 Montere 110 Marine Wa Contributin 1937 Mediterranean Revival 116 Marine Wa Non-Contributin 1975 Modern Frame Vernacular 126-140 Marine Wa Non-Contributin 2002 Modern Mason Vernacular 150 Marine Wa Non-Contributin 1996 Modern Frame Vernacular 160 Marine Wa Contributin 1940 Minimal Traditional 200 Marine Wa Contributin 1948 Mason Vernacular 29 Palm Square Contributin 1938 Minimal Traditional 33 Palm Square Contributin 1938 Minimal Traditional 36 Palm Square Contributin 1937 Mason Vernacular 42 Palm S uare Contributin 1938 Minimal Traditional 49 Palm Square Contributin 1940 Minimal Traditional 50 Palm Square Contributin 1939 Mason Vernacular 57 Palm Square Contributin 1940 Minimal Traditional 60 Palm Square Contributin 1928 Mediterranean Revival 65 Palm S uare Contributin 1940 Minimal Traditional 701 SE 1St Street Contributin 1925 Frame Vernacular 707 SE 1St Street Contributin 1925 Frame Vernacular 705-711 SE 2n Street Contributin 1953 Mason Vernacular 706 SE 2n Street Contributin --- Demolished 2005 708 SE 3r Street Contributin 1925 Mission 711 SE 3rd Street Non-Contributin 1989 Modern Mason Vernacular 603 SE 4t Street/350 SE 7t Avenue Non-Contributin 1938 Minimal Traditional 9 SE 7t Avenue Contributin 1925 Craftsman Bun slow 55 SE 7t Avenue Contributin 1939 Ranch 101 SE 7t" Avenue Contributin 1950 Mason Vernacular 102 SE 7t" Avenue Contributin 1937 Mason Vernacular 106 SE 7t Avenue Contributin 1925 Mission 111 SE 7t Avenue Non-Contributin 1968 Mason Vernacular 114 SE 7t Avenue 40 Non-Contributin 1996 Modern Frame Vernacular 118 SE 7t" Avenue Contributin 1935 Frame Vernacular 118'/2 SE 7t Avenue Contributin 1935 Frame Vernacular 122 SE 7t Avenue Contributin 1935 Frame Vernacular 122'/2 SE 7t Avenue Non-Contributin 1989 Modern Frame Vernacular 123 SE 7t Avenue Contributin 1953 Ranch 1/2 Ordinance 06-09 Attachment A Marina Historic District Property Classification List Address Classification Year Built Style 126 SE 7t Avenue Contributin 1949 Moderne 127 SE 7t Avenue Contributin 1951 Mason Vernacular 129 SE 7t Avenue Contributin 1925 Mediterranean Revival 130 SE 7t" Avenue Contributing 1939 Minimal Traditional 131 SE 7t" Avenue Contributin 1925 Craftsman Bun slow 134 SE 7t Avenue Contributin 1947 Minimal Traditional 138 SE 7t Avenue Contributin 1947 Frame Vernacular 139 SE 7t Avenue Contributin 1925 Mission 139 SE 7t" Avenue Contributin 1960 Frame Vernacular 142 SE 7t Avenue Non-Contributin 2004 Modern Masonr Vernacular 143 SE 7t Avenue Contributin 1928 Mason Vernacular 143 SE 7t Avenue Non-Contributin 1967 Mason Vernacular 146 SE 7t Avenue Non-Contributin N/A Church Parkin Lot 200 SE 7t" Avenue Contributin 1945 Colonial Revival 203 SE 7t Avenue Contributin 1954 Mason Vernacular 209 SE 7t Avenue Contributin 1948 Mason Vernacular 213 SE 7t Avenue Contributin 1951 Moderne 214 SE 7t Avenue Contributin 1922 Minimal Traditional 218 SE 7t" Avenue Contributin 1959 Minimal Traditional 219 SE 7t Avenue Contributin 1935 Montere 222 SE 7t Avenue Contributin 1937 Frame Vernacular 228 SE 7t Avenue Contributin 1937 Minimal Traditional 229 SE 7t" Avenue Non-Contributin 1991 Modern Masonr Vernacular 232 SE 7t Avenue Contributin 1938 Frame Vernacular 237 SE 7t Avenue Non-Contributin 1989 Modern Masonr Vernacular 238 SE 7t Avenue Non-Contributin 1937 Frame Vernacular 242 SE 7t Avenue Non-Contributin 1970 Mason Vernacular 244 SE 7t" Avenue Non-Contributin 1972 Mason Vernacular 300 SE 7t Avenue Contributin 1957 Mason Vernacular 303 SE 7t Avenue Contributin 1954 Ranch 305 SE 7t Avenue Contributin 1947 Frame Vernacular 310 SE 7t Avenue Non-Contributin 1992 Modern Frame Vernacular 314-318 SE 7t" Avenue Non-Contributin 1977 Mason Vernacular 315 SE 7t Avenue Non-Contributin 2005 Modern Mediterranean Revival 319 SE 7t Avenue Non-Contributin 2004 Modern Mediterranean Revival 321 SE 7t Avenue Non-Contributin 1992 Modern Masonr Vernacular 325 SE 7t" Avenue Non-Contributin 2004 Modern Mediterranean Revival 330 SE 7t" Avenue Non-Contributin 1956 Mason Vernacular 332 SE 7t Avenue Non-Contributin 1962 Minimal Traditional 335 SE 7t Avenue Non-Contributin 1999 Modern Mediterranean Revival 340 SE 7t Avenue Non-Contributin 1953 Mason Vernacular 345 SE 7t" Avenue Non-Contributin 1996 Modern Masonr Vernacular 2/2 ORDINANCE NO 06-09 Version 2 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PROVIDING FOR THE RECLASSIFICATION OF 19 PROPERTIES IN THE MARINA HISTORIC DISTRICT, PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the Marina Historic District was originally designated and placed on the Delray Beach Local Register of Historic Places in 1988 with a Period of Significance spanning from 1922 - 1943, and, WHEREAS, the City retained GAI Consultants, Inc. to resurvey the Marina Historic District and those properties originally classified as contributing for continued significance and maintenance of historic integrity; and, WHEREAS, GAI Consultants, Inc. recommended that the property at 238 SE 7t" Avenue be reclassified as non-contributing "due to inappropriate new construction on the property", as the "new construction both dominates and almost completely obscures the original one-story historic structure."; and, WHEREAS, GAI Consultants, Inc. resurveyed the Marina Historic District and those properties originally classified as non-contributing for current significance and recommends that an additional Period of Significance be provided which spans 1946-1960; and, WHEREAS, the final report by GAI Consultants, Inc., with the amendment that the Period of Significance be extended through 1960, was reviewed by the Historic Preservation Board at its meeting of November 19, 2008, and the public hearing of February 4, 2009, and HPB did not support the reclassification of 238 SE 7t" Avenue; and, WHEREAS, the final report by GAI Consultants, Inc., was accepted by the City Commission at its meeting of December 9, 2008, with the amendment that the Period of Significance be extended through 1960, and supported the reclassification of 238 SE 7tn Avenue; and, WHEREAS, the Marina Historic District was originally significant for its collection of architecture representative of the period from 1922-1943, and is currently significant for its collection of architecture representative of the period from 1944 - 1960. WHEREAS, 19 structures now meet the eligibility criteria for contributing status, attributed mainly to the Post World War II buildings in the Masonry and Frame Vernacular, Ranch, Moderne, and Minimal Traditional styles built from 1947 - 1960, as these buildings have had minimal alterations or their alterations were completed in an appropriate and compatible manner consistent with the Secretary of the Interior's Standards for Rehabilitation; and, WHEREAS, the Marina Historic District was originally and is currently significant under the Secretary of the Interiors Criterion A for significance due to associations with events that have made a significant contribution to the broad pattern of the City's history such as the development of early neighborhoods in Delray Beach, and representation of two periods of rapid settlement during the Land Boom of the 1920s and the post World War II growth from the 1940s through the 1950s; and, WHEREAS, the Marina Historic District was originally and is currently significant under the Secretary of the Interiors Criterion B for significance due to associations with people significant to the City, as several buildings within the district as associated with important individuals in the city's history such as those of the pioneering Blank family, and the Fontaine Fox cottages, associated with the famous cartoonist; and, WHEREAS, the Marina Historic District was originally and is currently significant under the Secretary of the Interiors Criterion C for significance as it embodies one or more distinctive architectural styles or types such as Vernacular, Frame Vernacular, Masonry Vernacular, Minimal Traditional, Ranch, Craftsman, Mission, Mediterranean Revival, Colonial Revival, Monterey, and Art Moderne, many of which can be attributed to known architects or master craftsmen such as Addison Mizner, Sam Ogren, Sr., John Volk, and Gustav Maas; and, WHEREAS, Section 4.5.1 of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach provides for the change of historic classification of historic sites and districts; and WHEREAS, the Historic Preservation Board held a duly noticed public hearing in regard to the adoption of an additional Period of Significance and change of historic classification for those specified properties on February 4, 2009 and voted 5 - 0 to recommend approval subject to 238 SE 7t" Avenue maintaining the contributing classification, and not being reclassified per the adopted Resolution 56-08; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Historic Preservation Board Staff Report; and WHEREAS the City Commission of the City of Delray Beach has conducted a duly noticed public hearing in regard to the historic district designation. NOW THEREFORE BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH FLORIDA AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2 That the properties listed in Attachment A are hereby reclassified as set forth on Attachment A and in accordance with and under the provisions of Section 4.5.1 of the Land Development Regulations of the City of Delray Beach, Florida Section 3 That all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed Section 4 That should any section or provision of this ordinance or any portion thereof any paragraph, sentence or word be declared by a court of competent jurisdiction to be invalid such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid Section 5 That this ordinance shall become effective immediately upon passage on second and final reading PASSED AND ADOPTED in regular session on second and final reading on this the day of , 200_ ATTEST: MAYO R City Clerk First Readin Second Read Ordinance 06-09 Attachment A Marina Historic District Property Classification List Address Classification Year Built Style 700-708 East Atlantic Avenue Contributin 1940 Art Moderne 770 East Atlantic Avenue Non-Contributin 1996 Modern Mediterranean 802-804 East Atlantic Avenue Contributing 1951 Masonry Vernacular 812-814 East Atlantic Avenue Contributin 1931 Mission 816-840 East Atlantic Avenue Contributin 1939 Art Moderne 24-26 Marine Wa Contributin 1960 Frame Vernacular 30 Marine Wa Contributin 1925 Mediterranean Revival 46 Marine Wa Contributin 1926 Mediterranean Revival 48 Marine Wa Contributin 1925 Mediterranean Revival 54 Marine Wa Contributin 1940 Minimal Traditional 60 Marine Wa Contributin 1941 Montere 110 Marine Wa Contributin 1937 Mediterranean Revival 116 Marine Wa Non-Contributin 1975 Modern Frame Vernacular 126-140 Marine Wa Non-Contributin 2002 Modern Mason Vernacular 150 Marine Wa Non-Contributin 1996 Modern Frame Vernacular 160 Marine Wa Contributin 1940 Minimal Traditional 200 Marine Wa Contributin 1948 Mason Vernacular 29 Palm Square Contributin 1938 Minimal Traditional 33 Palm Square Contributin 1938 Minimal Traditional 36 Palm Square Contributin 1937 Mason Vernacular 42 Palm S uare Contributin 1938 Minimal Traditional 49 Palm Square Contributin 1940 Minimal Traditional 50 Palm Square Contributin 1939 Mason Vernacular 57 Palm Square Contributin 1940 Minimal Traditional 60 Palm Square Contributin 1928 Mediterranean Revival 65 Palm S uare Contributin 1940 Minimal Traditional 701 SE 1St Street Contributin 1925 Frame Vernacular 707 SE 1St Street Contributin 1925 Frame Vernacular 705-711 SE 2n Street Contributin 1953 Mason Vernacular 706 SE 2n Street Contributin --- Demolished 2005 708 SE 3r Street Contributin 1925 Mission 711 SE 3rd Street Non-Contributin 1989 Modern Mason Vernacular 603 SE 4t Street/350 SE 7t Avenue Non-Contributin 1938 Minimal Traditional 9 SE 7t Avenue Contributin 1925 Craftsman Bun slow 55 SE 7t Avenue Contributin 1939 Ranch 101 SE 7t" Avenue Contributin 1950 Mason Vernacular 102 SE 7t" Avenue Contributin 1937 Mason Vernacular 106 SE 7t Avenue Contributin 1925 Mission 111 SE 7t Avenue Non-Contributin 1968 Mason Vernacular 114 SE 7t Avenue 40 Non-Contributin 1996 Modern Frame Vernacular 118 SE 7t" Avenue Contributin 1935 Frame Vernacular 118'/2 SE 7t Avenue Contributin 1935 Frame Vernacular 122 SE 7t Avenue Contributin 1935 Frame Vernacular 122'/2 SE 7t Avenue Non-Contributin 1989 Modern Frame Vernacular 123 SE 7t Avenue Contributin 1953 Ranch 1/2 Ordinance 06-09 Attachment A Marina Historic District Property Classification List Address Classification Year Built Style 126 SE 7t Avenue Contributin 1949 Moderne 127 SE 7t Avenue Contributin 1951 Mason Vernacular 129 SE 7t Avenue Contributin 1925 Mediterranean Revival 130 SE 7t" Avenue Contributing 1939 Minimal Traditional 131 SE 7t" Avenue Contributin 1925 Craftsman Bun slow 134 SE 7t Avenue Contributin 1947 Minimal Traditional 138 SE 7t Avenue Contributin 1947 Frame Vernacular 139 SE 7t Avenue Contributin 1925 Mission 139 SE 7t" Avenue Contributin 1960 Frame Vernacular 142 SE 7t Avenue Non-Contributin 2004 Modern Masonr Vernacular 143 SE 7t Avenue Contributin 1928 Mason Vernacular 143 SE 7t Avenue Non-Contributin 1967 Mason Vernacular 146 SE 7t Avenue Non-Contributin N/A Church Parkin Lot 200 SE 7t" Avenue Contributin 1945 Colonial Revival 203 SE 7t Avenue Contributin 1954 Mason Vernacular 209 SE 7t Avenue Contributin 1948 Mason Vernacular 213 SE 7t Avenue Contributin 1951 Moderne 214 SE 7t Avenue Contributin 1922 Minimal Traditional 218 SE 7t" Avenue Contributin 1959 Minimal Traditional 219 SE 7t Avenue Contributin 1935 Montere 222 SE 7t Avenue Contributin 1937 Frame Vernacular 228 SE 7t Avenue Contributin 1937 Minimal Traditional 229 SE 7t" Avenue Non-Contributin 1991 Modern Masonr Vernacular 232 SE 7t Avenue Contributin 1938 Frame Vernacular 237 SE 7t Avenue Non-Contributin 1989 Modern Masonr Vernacular 238 SE 7t Avenue Contributin 1937 Frame Vernacular 242 SE 7t Avenue Non-Contributin 1970 Mason Vernacular 244 SE 7t" Avenue Non-Contributin 1972 Mason Vernacular 300 SE 7t Avenue Contributin 1957 Mason Vernacular 303 SE 7t Avenue Contributin 1954 Ranch 305 SE 7t Avenue Contributin 1947 Frame Vernacular 310 SE 7t Avenue Non-Contributin 1992 Modern Frame Vernacular 314-318 SE 7t" Avenue Non-Contributin 1977 Mason Vernacular 315 SE 7t Avenue Non-Contributin 2005 Modern Mediterranean Revival 319 SE 7t Avenue Non-Contributin 2004 Modern Mediterranean Revival 321 SE 7t Avenue Non-Contributin 1992 Modern Masonr Vernacular 325 SE 7t" Avenue Non-Contributin 2004 Modern Mediterranean Revival 330 SE 7t" Avenue Non-Contributin 1956 Mason Vernacular 332 SE 7t Avenue Non-Contributin 1962 Minimal Traditional 335 SE 7t Avenue Non-Contributin 1999 Modern Mediterranean Revival 340 SE 7t Avenue Non-Contributin 1953 Mason Vernacular 345 SE 7t" Avenue Non-Contributin 1996 Modern Masonr Vernacular 2/2 HISTORIC PRESERVATION BOARD MEMORANDUM STAFF REPORT MEETING OF: FEBRUARY 4, 2009 ITEM: CONSIDERATION OF ORDINANCE 06-09 PROVIDING FOR THE RECLASSIFICATION OF 22 PROPERTIES IN THE MARINA HISTORIC DISTRICT. ITEM BEFORE THE BOARD The item before the Board is that of making a recommendation to the City Commission regarding Ordinance 06-09 to provide for the reclassification of 22 properties within the Marina Historic District (MHD), pursuant to Land Development Regulations (LDR) Section 4.5.1(N), Criteria for Change of Historic Classification and 4.5.1(0), Procedures for Change of Historic Classification. BACKGROUND The City hired GAI Consultants, Inc. to conduct a survey from April -June 2008 of the MHD. The objective was to survey all properties developed at least thirty-five years ago within the MHD which contain both contributing and non-contributing buildings and structures. A historical overview of the area was provided in the final report. The final survey report recommends that a second Period of Significance'" (POS) be adopted to span 1947-1960, which would reclassify the following properties from non-contributing to contributing: Property Address Date Style 800-804 East Atlantic Avenue, The Blue Anchor 24-26 Marine Way 200 Marine Wa~, First Church of Christ Scientist 705-711 SE 2" Street 101 SE 7~"Avenue 123 SE 7~"Avenue 126 SE 7t" Avenue 127 SE 7t"Avenue 134 SE ~"Avenue 138 SE 7f"Avenue 139 SE ~"Avenue 200 SE ~"Avenue 203 SE 7'r"Avenue 209 SE ~"Avenue 213 SE ~"Avenue 218 SE ~"Avenue 300 SE 7~"Avenue 303 SE ~"Avenue 305 SE 7~"Avenue 330 SE ~"Avenue 340 SE ~"Avenue 1951 Masonry Vernacular 1960 Frame Vernacular 1948 Masonry Vernacular 1953 Masonry Vernacular 1950 Masonry Vernacular 1953 Ranch 1949 Moderne 1951 Masonry Vernacular 1947 Minimal Traditional 1947 Frame Vernacular 1960 Frame Vernacular 1945 Colonial Revival 1954 Masonry Vernacular 1948 Masonry Vernacular 1951 Moderne 1959 Minimal Traditional 1957 Masonry Vernacular 1954 Ranch 1947 Frame Vernacular 1956 Masonry Vernacular 1953 Masonry Vernacular * The current Period of Significance spans from 1922 to 1943. Ordinance 06-09; Marina Historic District Change of Historic Classifications HPB Meeting February 4, 2009; Page 2 of 4 The survey also recommends that a portion of the 300 block of SE 7th Avenue be removed from the MHD which includes 330 and 340 SE 7th Avenue (see Exhibit A). The survey report justifies the removal of this area (which includes the aforementioned properties) as they "are not contiguous with the historic district,...and,...it is not appropriate to use the discontiguous district format to include isolated resources or small groups of resources." An application for the removal of these properties has been submitted and is anticipated to be reviewed at the HPB meeting of February 18, 2009. In addition to the expansion of the POS, the resurvey also recommends that the property at 238 SE 7th Avenue be reclassified from contributing to non-contributing "due to inappropriate new construction on the property." The report also notes that the "new construction both dominates and almost completely obscures the original one-story historic structure." The attached Exhibit A illustrates the following: • Existing Marina Historic District Boundary • Proposed Marina Historic District Boundary (to be amended under separate application) • Contributing properties per the 1988 Marina Historic District Designation • Contributing properties per the 2008 resurvey recommendations • 238 SE 7th Avenue illustrated as non-contributing At its meeting of November 19, 2008, the Board considered Resolution 55-08, to accept the subject survey report and its recommendations. The Board's recommendation was to support the survey's findings, with the exception of the change of historic classification for 238 SE 7th Avenue. However, upon review of Resolution 55-08, the City Commission supported the survey's recommended change of historic classification, and Resolution 55-08 was adopted as such (see attachment). Ordinance 06-09 refers to Attachment A which notes each property and dates of construction, historic classification, and style. Consideration of the recommendations for reclassification are now before the Board. ANALYSIS Pursuant to LDR Section 2.2.6(A), a Historic Preservation Board for the City of Delray Beach is hereby created, The up rpose of this Board is to foster and promote the recognition, protection, enhancement and use of historic resources in the City of Delray Beach and to have a lay body which shall have authority to act on mafters pertaining to historic preservation. Pursuant to LDR Section 2.2.6(D)(1), Duties, Powers, and Responsibilities, the Historic Preservation Board shall develop, maintain, and update a survey of archaeological sites, properties, buildings, structures, and districts of special historic, aesthetic, architectural, cultural, or social value or interest. The Board will endeavor to improve, expand, and make more accurate the survey as additional documents, information, oral histories, and other such materials may become available, and it will periodically reevaluate the survey. The Board will work with the Cify Historical Society, the State Bureau of Historic Preservation, and other appropriate public and nonprofit organizations in maintaining this survey. Pursuant to LDR Section 2.2.6(D)(2), Duties, Powers, and Responsibilities, the Historic Preservation Board shall nominate properties for designation, and regulate such properties, structures, buildings, sites, districts, and the like so designated as historic sites and/or historic districts. Ordinance 06-09; Marina Histaric District Grange of Historic Classiticatians HPB Meeting February 4, 200J; Wage 3 of 4 STAFF COMMENT: The LDRs specify that as part of the HPB duties, the Board shall protect historic resources, and update surveys of historic resources. The resurvey of the Marina Historic District complies with this requirement. LDR Section 4.5.1(N), Criteria for Change of Historic Classification (1) A survey of all historic districts may be conducted by the City every five (5) years. The survey report may recommend changes to the historic designation and/or classification of properties located within or immediately adjacent to a designated historic district. (b) Criteria for Change of Historic Classification: If aCity-initiated survey conducted within the last five (5) years reveals that a property within a historic district should be reclassified as either contributing or non-contributing, then the classification may be revised in accordance with LDR Section 4.5.1(0) and shall be determined as follows: 1. The survey recommends the inclusion of an additional "Period of Significance'; which would reclassify properties from non-contributing to contributing, or; 2. The survey recommends that a property or properties have been so significantly altered that the changes are irreversible and have compromised the structures historic integrity of the structure, which would reclassify the structure from contributing to non-contributing. STAFF COMMENT: The subject survey meets the criteria for change of historic classification as it was conducted within the last 5 years (complete June 2008), and the survey recommends that an additional Period of Significance be adopted which would reclassify approximately 21 properties from non-contributing to contributing, in addition to the reclassification of the property located 238 SE 7`h Avenue from contributing to non-contributing. Therefore, the reclassifications of the aforelisted properties may be reviewed. LDR Section 4.5.1(0), Procedures for Change of Historic Designation and/or Classification (3) The Planning and Zoning Director or his/her designee shall conduct a preliminary evaluation of the information provided on each application to determine if it generally conforms with criteria in LDR Section 4.5.1(N)(1). The Planning and Zoning Director or his/her designee shall then prepare a report which shall contain the following: (b) Change of Historic Classification: 1. Analysis of the properties to be reclassified; and 2. A staff recommendation as to whether or not the properties should be reclassified due to either. a. loss of historic integrity as a result of irreversible alterations to a contributing property; or b, inclusion of an additional "Period of Significance" per the survey recommendations. Ordinance 06-09; Marina Historic District Change of Historic Classificatians NPB Meeting February 4, 2009; Page 4 of 4 STAFF COMMENT: It has been determined that the subject request conforms with Section 4.5.1(N)(1), and the recommendations have been justified within the report with respect to the additional POS and the reclassification of 238 SE 7th Avenue. The survey recommends that a second POS spanning 1947-1960 be recognized. The POS for the Marina Historic District presently spans 1922 - 1943, and has not been altered since the initial district was designated in 1988. The recommended POS does not include years 1944-1946, as there are no buildings remaining that were built during this time. It is recommended that the new POS include these years so that a time gap is not created. It is important to note that the "Period of Significance" identifies the growth periods of a historic district and places the POS within its historical context. Further, varying styles of architecture would be recognized to illustrate the historic district's evolution through its development during these periods. The architectural styles currently recognized include Art Moderne, Mission, Mediterranean Revival, Minimal Traditional, Monterey, Masonry and Frame Vernacular, Craftsman Bungalow, and Ranch. Coincidentally, recognition of the development from 1944-1960 would not include any additional architectural styles. However, it is important to note that the more recent examples of these styles differ from those recognized in the current POS as the styles evolved and the detailing varies. As a general note, it is important to consider that while these styles may exist in large numbers within the City as a whole, there is not a large concentration of any single style within any of the City's five historic districts. Therefore, the protection of any of the eligible resources is important in maintaining the historic environment of each district. The Marina Historic District map (as referenced above), Ordinance 06-09, Resolution 55-08, and the resurvey report are attached for reference while considering the subject Ordinance. RECOMMENDATION Recommend approval to the City Commission of Ordinance 06-09 for the reclassification of 22 properties as identified in the GAI Consultants, Inc., final survey report. Prepared by: Amy E. Alvarez, Historic Preservation Planner Attachments: • Marina Historic District Map • Ordinance 06-09 and Attachment A • Resolution 55-08 • Resurvey Report ~~~~~ A T L A N T I C ~ ~Q~Q~ a V/ V/ S.E. 1ST ST. 3 3 S S -,~ J J Q Q 4' ~' iiw~ft~i;~t W W L~ L~ S.E. 2ND ST. ~,`77Y.,~~r~~~~Z i;yi'L~1 O ...,I sr; d z z __ r } _ _ vi ~ .E. 3RD ST. .n. ~~';. ~. ~ ~ Z Z ~ ~ O m F r. m = ,:w~i^ 4i H f"" vi ~ ~ O ~ ~ Z .yr.. S,E. 4TH D ~~ ~ I1J11~ ~ ~ ~~ -__ J :._ a __.,__ _~ ~__ _. __. J Q F- Q O U Q F- z E N Q W Q F w z ~' aev CONTRIBUTING NONCONTRIBUTING EXHIBIT-A ~ ~ ~ MARINA HISTORIC DISTRICT -- - RECLASSIFIED FROM RECLASSIFIED FROM pry Oi DEIRAY BEAGI R CHANGE OF HISTORIC CLASSIFICATION CONTRIBUTING TO NONCONTRIBUTING NONCONTRIBUTING TO CONTRIBUTING , ~~~_~~ DEPARTMENT AS RECOMMENDED BY 2008 RESURVEY ® P .J~ 'I -- D/CITAL &iSE MAP SYSTEM -- MAP REF: MARINA CONTRIBUTING 2 RESOLUTION NO.55-08 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING THE RESURVEY OF THE MARINA HISTORIC DISTRICT CONDUCTED BY GAI CONSULTANTS, INC. AND ACCEPTING THE FINDINGS AND RECOMMENDATIONS MADE IN THE FINAL REPORT ON FILE IN THE PLANNING AND ZONING DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, GAI Consultants, Inc. surveyed the Marina Historic District from April 15, 2008 to June 15, 2008; and WHEREAS, the survey included all properties containing both contributing and non- contributing buildings and structures within the Marina Historic District boundaries; and WHEREAS, the survey report recommends that the southern boundary be amended to remove those properties south of 300 and 305 SE 7''' Avenue from the Marina Historic District; and WHEREAS, the survey report recommends that a second Period of Significance be adopted to span 1947-1960~however the Commission wishes to modify this recommendation and provide that the span shall extend from 1943 to 1960; and WHEREAS, the survey report recommends that the amended district be nominated for listing on the National Register of Historic Places; and WHEREAS, the survey report 'recommends that the property owners of the three (3) identified properties seek individual listing on the National Register of Historic Places, should the National designation of the district not be supported; and WHEREAS, the survey report recommends that the property owners of those properties identified as contributing and within the boundary to be removed from the Marina Historic District seek individual listing on the Local Register of Historic Places; and WHEREAS, the survey report identifies a change of classification from contributing to non- contributing for the property located at 238 SE 7~' Avenue "due to inappropriate new construction on the property"; and NOW, THEREFORE, BE 'IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1. The foregoing recitals are hereby accepted by the City Commission of the City of Delray Beach, Florida, and incorporated herein. Section 2. Pursuant to the 2008 Marina Historic District survey conducted by GAI Consultants, Inc., the ~ report recommends that the following properties be removed from the Marina Historic District:: • 310 SE T" Avenue • 315 SE 7`" Avenue • 318 SE 7`" Avenue • 319 SE 7`" Avenue • 321 SE 7`" Avenue • 325 SE 7`" Avenue • 330 SE 7'" Avenue • 332 SE 7`" Avenue • 335 SE 7`" Avenue • 340 SE 7'" Avenue • 345 SE 7`" Avenue • 350 SE 7`'' Avenue Section 3. Pursuant to the 2008 Marina Historic District survey conducted by GAI Consultants, Inc., the report recommends that a second Period of Significance be adopted to span 1947-1960, however, the Commission wishes to modify this recommendation and t~rovide that the span shall extend from 1943 to 1960, and reclassify the following properties as contributing to the historic building stock of the Marina Historic District: Address Date Style 804-804 East Atlantic Avenue, The Blue Anchor 1951 Masonry Vernacular 24-26 Marine Way 1960 Frame Vernacular 200 Marine Way, First Church of Christ Scientist 1948 Masonry Vernacular 705-711 SE 2ND Street 1953 Masonry Vernacular 101 SE 7`" Avenue 1950 Masonry Vernacular 123 SE 7`" Avenue 1953 Ranch 126 SE 7`" Avenue 1949 Moderne 127 SE 7'" Avenue 1951 Masonry Vernacular 134 SE 7`" Avenue ~ 1947 Minimal Traditional 138 SE 7`" Avenue 1947 Frame Vernacular 139 SE 7`" Avenue 1960 Frame Vernacular 200 SE 7`" Avenue ~ 1945 Colonial Revival 203 SE 7`" Avenue 1954 Masonry Vernacular 209 SE 7`" Avenue 1948 Masonry Vernacular 213 SE 7`'' Avenue 1951 Moderne 218 SE 7`" Avenue 1959 Minimal Traditional 300 SE 7`" Avenue 1957 Masonry Vernacular 303 SE 7`" Avenue 1954 Ranch 305 SE 7`" Avenue 1947 Frame Vernacular 2 RES. NO. 55-08 Section 4. Pursuant to the 2008 Marina Historic District survey conducted by GAI Consultants, Inc., the report recommends that the amended district be nominated for listing on the National Register of Historic Places. Section 5. Pursuant to the 2008 Marina Historic District survey conducted by GAI Consultants, Inc., the report recommends that the property owners of the following properties, as identified in the survey report, seek individual listing on the National Register of Historic Places, should the National designation of the district not be supported: • 60 Marine Way, The Anchorage • 110 Marine Way, Marine Villas • 200 SE 7s' Avenue, First Church of Christ Scientist Section 6. Pursuant. to the 2008 Marina Historic District survey conducted by GAI Consultants, Inc., the report recommends that the property owners of the following properties removed from the Marina Historic District, as identified in the survey report, seek individual listing on the Local Register of Historic Places: • 330 SE 7`h Avenue • 340 SE 7''' Avenue Section 7. Pursuant to the 2008 Marina Historic District survey conducted by GAI Consultants, Inc., the report changed the classification from contributing to non-contributing for the property located at 238 SE 7~' Avenue "due to inappropriate new construction on the property." Section 8. This Resolution shall become effective imme ~ tely upon its passage. PASSED AND ADOPTED in regular session on this the ` day of December, 2008. ATTEST: CJ. `~'~ City Clerk ~~ ~~ MAYOR RES. NO.55-08 MEMORANDUM TO: Mayor and City Commissioners FROM: Ronald Hoggard, AICP, Principal Planner Paul Dorling, AICP, Director Planning and Zoning THROUGH: City Manager DATE: February 10, 2009 SUBJECT: AGENDA ITEM 10.B. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 ORDINANCE N0.07-09 (FIRST READING/FIRST PUBLIC HEARINGI ITEM BEFORE COMMISSION Consideration of a City initiated amendment to the Land Development Regulations dealing with the parking requirements for business and professional office development along the Federal Highway corridor. BACKGROUND On October 10, 2008, the City received a memo from Francisco Perez-Azua, Architect and Vice Chair of the Chamber of Commerce Economic Development Committee. The memo outlined recommendations to incentivize office building development in Delray Beach. The recommendations presented in the memo build on the basic notion that a reduction in parking requirements for office development, and the allowance of various forms of automated parking systems, will provide incentives to promote office development. The Planning and Zoning Director reviewed the memo and noted that, while some of the proposals would require more in depth analysis, others could be reviewed more quickly and adopted immediately. Several of the recommendations were included in an LDR text amendment adopted by the City Commission on January 20, 2009. The current ordinance, which implements another of the Committee's recommendations, represents the next phase of the process. The remaining proposals will be reviewed and brought forth at a later date. The purpose of the proposed amendment is to expand the area between the Federal Highway one-way pairs (5th and 6th Avenues) where the parking requirement for business and professional offices is 1 space per 300 square feet of net floor area. The area has been expanded to include the area from N.E. 2nd Street to George Bush Boulevard on the north, and from S.E. 2nd Street to S.E. 10th Street on the south. The parking requirement for business and professional offices within this expansion area is currently 4 spaces per 1,000 sq. ft. of net floor area up to 3,000 sq. ft. and then 3.5 spaces per 1,000 square feet of net floor area over the initial 3,000 square feet. It is anticipated that the decreased costs associated with the reduced parking requirements will help to encourage additional office development in this area. As an example, the parking requirement of a 10,000 sq. ft. office building will be reduced by 4 spaces (from 37 to 33 spaces) with the proposed amendment. Although this change will result in a reduction in the total parking requirements for business and professional offices of all sizes, the highest percentage reductions will occur for buildings under 3,000 square feet. It is also noted that small additions to existing buildings may be possible without the requirement for any additional parking with the adoption of this amendment. REVIEW BY OTHERS The text amendment was considered by the Planning and Zoning Board on January 26, 2009. The Board unanimously recommended approval on a 5 to 0 vote (Miller absent and Pike stepped down), by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. The Community Redevelopment Agency (CRA) and the Downtown Development Authority (DDA) have unanimously recommended approval of the proposed text amendment. The Parking Management Advisory Board (PMAB) meeting will not meet until February 24, 2009. The Board's recommendation will be reported to the City Commission at second reading of the ordinance. RECOMMENDATION By motion, approve on first reading Ordinance No. 07-09 for aCity-initiated amendment to the LDR as reflected in the attached ordinance, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the LDR. ORDINANCE NO. 07-09 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SECTION 4.4.9, "GENERAL COMMERCIAL (GC) DISTRICT", SUBSECTION (G), "SUPPLEMENTAL DISTRICT REGULATIONS", AND SECTION 4.4.13, "CENTRAL BUSINESS (CSD) DISTRICT", SUBSECTION (G), "SUPPLEMENTAL DISTRICT REGULATIONS", SUS-SUBSECTION (1) "CENTRAL CORE AND BEACH AREA SUPPLEMENTAL REGULATIONS", TO CHANGE THE PARKING REQUIREMENTS FOR BUSINESS AND PROFESSIONAL OFFICES WITHIN CERTAIN PORTIONS OF THESE ZONING DISTRICTS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on January 26, 2009 and voted 5 to 0 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, siding as the Local Planning Agency, has deten-nined that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Plary and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the goals, policies, and objectives of the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein Section 2. That Section 4.4.9, "General Commercial (GC) District", Subsection (G), "Supplemental District Regulations", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follow: (G) Supplemental District Regulations: In addition to the supplemental district regulations set forth in Article 4.6, the following supplemental district regulations shall apply in the GC District. net floor area (~ 2)North Federal Highway Overlay District: The following supplemental district regulations apply to the North Federal Highway Overlay District, as defined in Section 4.5.7. (a) In addition to the uses listed in 4.4.9(D), the following light industrial uses are allowed as conditional uses: Fabrication and/or assembly of manufactured materials or parts for distribution or sale, such as sheet metal, sign shops, glass shops, electronics, cabinet and furniture malting. 2. The wholesaling, storage and distribution of products and materials; 3. Self service storage facilities that complywith subsection (c) below (b) All uses listed under subsection (a) above must: Operate in conjunction with a permitted service or retail use that is located on the premises; 2. Maintain a commercial facade along North Federal Highway, with the light industrial aspect of the business oriented toward Dixie Highway; 3. Operate within an enclosed building, with no outside storage; 4. Orient overhead doors away from adjacent rights-of-way, except where existing, or where the approving body determines that it is not feasible to comply; and, 5. Along the property line adjacent to Dixie Highway, provide a landscape buffer consisting of a 4' high hedge, and trees planted 25 feet on center to form a solid tree line. (c) In addition to subsection (b) above, any self service storage facility shall comply with the following The following regulations supersede Section 4.3.3(A). Lot Area: The minimum lot area is 1.5 acres and the maximum lot area is 3 acres. 2 ORD. NO. 07-09 2. Facilities and Requirements: a Outdoor bay type access to individual self-storage units that face a street is prohibited The exterior loading access points shall be designed in such a wayto rrrinirrri~~ sight lines from adjacent roads. b. No building shall exceed forty-eight feet (48') in height. c. Parking shall be provided at the rates set forth in Section 4.6.9 for the perrrntted service, office and retail uses and for self-storage uses, parking shall be at a rate of one (1) parking space per 100 storage units or portion thereof, including. (a) a minimum of three (3) loading spaces for the self- service storage facility that must be striped and signed to limit the time for loading and unloading to one (1) hour; and in addition (b) three and one-half (3.5) spaces for each 1,000 square feet of accessory office use associated with the self-storage use. Notwithstanding the above, a minimum of five (5) parking spaces other than loading spaces shall be provided in connection with the self-storage use. d At least 2,500 square feet of ground floor area shall be devoted to at least one additional principal retail or service use without limiting the foregoing The additional principal uses maybe eating and drinking establishments, retail or personal service. 3. Limitation of Uses: a Activities not related to the rental or lease of self-storage units shall not be conducted within the self service storage facility area, unless specifically permitted through the conditional use process. b. Except as otherwise provided in subsection (c), no business or activity other than self storage shall be conducted from any self-storage unit in the facility. Examples of prohibited uses include, but are not limited to the following. the servicing, repair and/or restoration of automobiles, boats, recreational vehicles, and/or restoration of automobiles, boats, recreational vehicles, lawnmotiers and the like; moving and self-storage companies; cabinet malting and wood working (whether personal or professional); personal hobbies and arts and crafts; and any other activity unless specifically permitted through the conditional use process. c. Except as otherwise provided in this subsection (c), there shall be no ORD. NO. 07-09 electrical pov\er provided to, or accessible from any individual self-storage units. This includes the provision of lighting fixtures to the interior of a self- storage unit, unless specifically addressed in the conditional use approval. The use of portable generators is also prohibited d The use or storage of any hazardous materials is prohibited e. the temps and conditions of this section shall be clearly expressed in all self- storage rental or leasing contracts, as well as conspicuously displayed in plain view on a sign no smaller than one foot (1') by two feet (2') in the leasing office at the facility. 4. On-Site Manager: An on site manager shall be employed at the facility during all hours of operation 5. Hours of Operation: Customers of the self service storage facility may not access individual self-storage units before 5:00 am. or any later than 9:00 p.m. Hours of operation maybe further restricted when it is deemed that morning and evening traffic into and out of the facility may negatively impact the character of an adjacent residential area. In no circumstance shall customers of any self service storage facility have 24 hour access to their self-storage unit(s). 6. Landscape Requirements: In addition to all applicable landscape requirements and other special provisions pursuant to the individual zone district, a minimum ten foot (10') landscape buffer shall be required adjacent to Federal Highway and Dixie Highway and a minimum five foot (5') landscape buffer shall be required along all property lines that do not abut a roadway. 7. Outdoor Storage of vehicles, Boats & Truck Rental: Outdoor storage of boats and vehicles and truck rental is prohibited 8. Architecture: All self service storage facility buildings must comply with the following architectural standards. a Building facades visible from the public right-of-way shall have the appearance of a service and/or retail building through the use of doors, window, awnings, and other appropriate building elements. b. Exterior building material shall be stucco or a similar material. c. Buildings that can accommodate two or more stories shall be designed where facing a street to have the appearance of a multi story building through the use of window, doors, awnings, canopies or other appropriate building 4 ORD. NO. 07-09 elements. d Building facades facing a public right-of-way must Dave a 15% minimum transparency consisting of windows that provide visibility from the public right-of-way from the interior. e. Detailed building elevations shall be submitted prior to the Conditional Use public hearing. 9. Location: A self service storage facility shall not be located within a radius of 1,000 feet of another existing self service storage facility. (~ 3)Four Corners Overlay District: The following supplemental district regulations apply to the Four Corners Overlay District, as defined in Section 4.5.14. (a) The permitted uses shall be those uses listed in Sections 4.4.9(5)(1,2,4,5). (b) The accessory uses shall be those uses listed in Section (C). (c) The conditional uses shall be those uses listed in Sections (D)(1,3,4,10,12,15, 20). (d) Standards Pertaining to Allocation of Uses: 1. Office uses can encompass up to one hundred percent (100%) of the total building square footage within a Four Corners Overlay master development plan. 2. Retail uses shall not encompass more than one hundred percent (100%) of the total building area square footage of the Four Corners Overlay master development plan. 3. Hotels, motels, and residential all suite lodging shall not encompass more than 20% of the total building area square footage of the Four Corners Overlay master development plan. Notwithstanding the above, hotels, motels and residential all suite lodging can comprise 100% of the floor area of an individual building within a MDP containing multiple buildings. 4. Multi-family Dwelling Units: Multi-family uses excluding duplexes subject to (a)(b)(c)(d)(e) below, ranging in density not to exceed 30 units per acre subject to the following. a Residential units may comprise 75% of the total floor area of the development master plan at a maximum density of (30) units per acre and only when proposed as part of a mixed use development containing office ORD. NO. 07-09 and/or commercial uses. b. Residential developments must include a minimum of 20% ~rkforce units consisting of moderate income ~rkforce units as defined by Article 4.7 Family/Workforce Housing. c. Workforce units shall be subject to general provisions of Article 4.7.6, 4.7.7, 4.7.8, 4.7.9, and 4.7.10. d For mixed use developments, the shared parking provisions of LDR Section 4.6.9. (C)(8) shall be allowed e. All residential developments shall be subject to the Performance Standards of 4.4.13(1)(2) (e) Standards Unique to the Four Corners Overlay District: Where standards unique to the Four Corners Overlay District conflict with standards contained elsewhere in the zoning, subdivision, and landscape codes, the standards of this Subsection shall apply. Lot Coverage & Open Space: a Land area equal to at least 25% of the individual Four Corners Overlay District Master Development Plan (NIDP) including the perimeter landscaped bounclary, shall be in open space. Landscape areas required to meet internal parking lot design requirements, water bodies and paved areas shall not be included in the meeting of this 25% open space requirement. 2. Minimum Structure Size: Any free-standing non residential principal structure shall have a minimum floor area of 4,000 square feet; shall be architecturally consistent with other structures in the master development plan; and shall have direct access to and from other portions of the Four Corners Overlay development. 3. Office and Commercial Floor Heights shall be a minimum of helve feet (12') floor to floor on the first floor and ten (10') floor to floor on all floors above. Residential uses shall have a minimum nine feet (9') floor to floor on all floors. Hotel, motel and residential all suite lodging shall have a minimum of eight feet six inches (8' 6")floor to floor on all floors. Auxiliary and service rooms, such as, garages, restrooms, closets, laundry rooms, dressing rooms, storage rooms, mechanical, electrical, and plumbing equipment rooms are exempted from the floor height regulations. 6 ORD. NO. 07-09 Section 3. That Section 4.4.13, "Central Business (CSD) District", Subsection (G), "Supplemental District Regulations", Sub-Subsection (1), "Central Core and Beach Area Supplemental Regulations", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follow: (G) Supplemental District Regulations: In addition to the supplemental district regulations as set forth in Article 4.6, except as modified below, the following shall also apply. (1) Central Core and Beach Area Supplemental Regulations: (a) Within that portion of the CSD bounded by Swinton Avenue on the west, N.E. 2nd Street on the north, the Intracoastal Waterway on the east and S.E. 2nd Street on the south, the parking requirements for all non residential uses, except restaurants, hotels and motels, and business and professional offices, shall be one space for each 300 square feet of gross floor area or fraction thereof. The parking required for the creation of new floor area, shall also include the replacement of any previously required parking which may be eliminated Within all other geographic areas of the Central Core and Beach Area within the CSD Zone District, the provisions of Section 4.6.9(C) shall apply, as further modified within this Subsection (G)(1). (b) When the parking requirements are applied to either new development, expansion of an existing use or a change in use, which results in the requirement of only one new parking space, a one space exemption shall be allowed This exemption may only occur once per property. (c) If it is impossible or inappropriate to provide required parking on site or off-site, pursuant to Subsection 4.6.9(E)(4), the in lieu fee option provided in Section 4.6.9(E)(3) maybe applied (d) The parking requirement for restaurants is established at six (6) spaces per 1,000 square feet of gross floor area (e) The parking requirement for hotels and motels within that portion of the CSD bounded by Swinton Avenue on the west, N.E. 2nd Street on the north, the Intracoastal Waterway on the east and S.E. 2nd Street on the south is established at 0.7 of a space for each guest room plus one (1) space per 300 sq. ft. of floor area devoted to ballrooms, rr~eeting rooms, and shops and six (6) spaces per 1,000 sq. ft. of floor area devoted to restaurants and lounges within the hotel or motel. (f) The parking requirements for residential units in multi family structures and mixed use buildings shall be as follows: ORD. NO. 07-09 • Efficien dw~ ' twit 1.0 space/twit • One bedroom dw~ ' twit 1.25 spaces/twit • Two or more bedroom dw~ ' twit 1.75 spaces/twit • Guest shall be rovided cumulativel as follows: - for the first 20 units 0.50 s ces/unit - for units 21-50 0.30 s ces/unit - for units 51 and above 0.20 s ces/unit Within Townhouse and Townhouse type developments, parking maybe provided in front of garage units provided that such parking does not result in the space for one unit impeding access to a space of the other unit. Location of Guest Parking Spaces: Guest parking spaces must be accessible to all visitors and guests and maybe centralized or located near recreational features within a development project. (g) The parking requirement for business and professional offices within the following portions of the CSD . . ''„~' c',-~~'- ~„'-'~~ ~~~~-'~ is established at one (1) space per 300 sq. ft. of net floor area 1. The portion of the CSD bounded by Swinton Avenue on the west, N.E. 2nd Street on the north, the Intracoastal Waterway on the east and S.E. 2nd Street on the soot 2. The portion of the CSD bounded by N.E. 5th Avenue on the west, N.E. 6th Avenue on the east, N.E. 2nd Street on the south and George Sush Slvd on the port • and 3. The portion of the CSD bounded by S.E. 5th Avenue on the west, S.E. 6th Avenue on the east, S.E. 2nd Street on the north and S.E. 4~ Street on the south Section 4. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or ~prd be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed ORD. NO. 07-09 Section 6. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 2009. ATTEST City Clerk First Reading Second Reading MAYOR ORD. NO. 07-09 PLANNING AND ZONING BOARD MEMORANDUM STAFF REPORT MEETING DATE: JANUARY 26, 2009 AGENDA NO: III.B. AGENDA ITEM: CONSIDERATION OF A CITY INITIATED AMENDMENT TO LAND DEVELOPMENT REGULATIONS SECTION 4.4.9, "GENERAL COMMERCIAL (GC) DISTRICT", SUBSECTION (G), "SUPPLEMENTAL DISTRICT REGULATIONS", AND SECTION 4.4.13, "CENTRAL BUSINESS (CBD) DISTRICT", SUBSECTION (G), "SUPPLEMENTAL DISTRICT REGULATIONS", SUB-SUBSECTION (1) "CENTRAL CORE AND BEACH AREA SUPPLEMENTAL REGULATIONS", TO CHANGE THE PARKING REQUIREMENTS FOR BUSINESS AND PROFESSIONAL OFFICES WITHIN CERTAIN PORTIONS OF THESE ZONING DISTRICTS. ITEM BEFORE THE BOARD The item before the Board is that of making a recommendation to the City Commission regarding aCity-initiated amendment to the Land Development Regulations dealing with the parking requirements for business and professional office development along the Federal Highway corridor. Pursuant to Section 1.1.6, an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. BACKGROUND /ANALYSIS On October 10, 2008, the City received a memo from Francisco Perez-Azua, Architect and Vice Chair of the Chamber of Commerce Economic Development Committee. The memo outlined recommendations to incentivize office building development in Delray Beach. The recommendations presented in the memo build on the basic notion that a reduction in parking requirements for office development, and the allowance of various forms of automated parking systems, will provide the necessary incentives to promote office development. The Planning and Zoning Director reviewed the memo and noted that, while some of the proposals would require more in depth analysis, others could be reviewed more quickly and adopted immediately. As the first phase of the process, several of the recommendations were included in an LDR text amendment that was adopted by the City Commission on January 20, 2009. The current ordinance, which implements another of the Committee's recommendations, represents the next phase of the process. The remaining proposals will be reviewed and brought forth at a later date. PROPOSED LDR TEXT AMENDMENTS The purpose of the proposed amendment is to expand the area between the Federal Highway one-way pairs (5th and 6th Avenues) where the parking requirement for business and professional offices is 1 space per 300 square feet of net floor area. The area has been expanded to include the area from N.E. 2nd Street to George Bush Boulevard on the north, and from S.E. 2nd Street to S.E. 10th Street on the south. The parking requirement for business and III.B. Planning and Zoning Board Memorandum Staff Report, January 26, 2009 Amendment to LDRs -Federal Highway Office Parking Page 2 professional offices within this expansion area is currently 4 spaces per 1,000 sq. ft. of net floor area up to 3,000 sq. ft. and then 3.5 spaces per 1,000 square feet of net floor area over the initial 3,000 square feet. It is anticipated that the decreased costs associated with the reduced parking requirements will help to encourage additional office development in this area. As an example, the parking requirement of a 10,000 sq. ft. office building will be reduced by 4 spaces (from 37 to 33 spaces) with the proposed amendment. Although this change will result in a reduction in the total parking requirements for business and professional offices of all sizes, the highest percentage reductions will occur for buildings under 3,000 square feet. It is also noted that small additions to existing buildings may be possible without the requirement for any additional parking with the adoption of this amendment. REQUIRED FINDINGS LDR Section 2.4.5(M)(5) (Findings): Pursuant to LDR Section 2.4.5(M)(5) (Findings), in addition to LDR Section 1.1.6(A), the City Commission must make a finding that the text amendment is consistent with and furthers the Goals, Objectives and Policies of the Comprehensive Plan. Comprehensive Plan Policies: The goals, objectives and policies of the Comprehensive Plan were reviewed and the following applicable objective and policies were noted: Future Land Use Element Objective C-4 The Central Business District (CBD) represents the essence of what is Delray Beach i. e. a "village like, community by the sea". The continued revitalization of the CBD is essential to achieving the overall theme of the City's Comprehensive Plan of "A City Set Apart In South Florida". The following policies and activities shall be pursued in the achievement of this objective. Policy C-4.1 The Central Business District (CBD) Zoning District regulations shall facilitate and encourage rehabilitation and revitalization and shall, at a minimum, address the following: O deletion of inappropriate uses ^ incentives for locatin_g retail on the _ground floor with office and residential use on upper floors O accommodatin_g parkin_q needs through innovative actions O incentives for dinner theaters, playhouses, and other family oriented activities O allowing and facilitating outdoor cafes O incentives for mixed use development and rehabilitations O elimination of side yard setback requirements O allow structural overhang encroachments into required yard areas Planning and Zoning Board Memorandum Staff Report, January 26, 2009 Amendment to LDRs -Federal Highway Office Parking Page 3 Policy C-4.2 The "Downtown Delray Beach Master Plan" was adopted by the City Commission on March 19, 2002. Covering the downtown business districts surrounding the Atlantic Avenue corridor between /-95 and A-1-A, it represents the citizens' vision for the growth and unification of Delray Beach, while still retaining the "village like, community by-the-sea" character of the CBD. The Plan addresses a wide range of issues including infill development, neighborhood parks, shared parking, public art, the roadway and alleyway systems, marketing/economic development, and the need to modify the Land Development Regulations to include design guidelines to retain the character of Delray Beach. Future development and redevelopment in this area shall be consistent with the Master Plan. The above objective and policies seek to continue the revitalization of the Central Business District by providing development incentives and accommodating a range of uses. The Downtown Delray Beach Master Plan includes recommendations for the development of a shared parking program aimed at reducing the impact of large areas of parking on the urban fabric. The proposed text amendment is intended to provide an incentive for additional office development within the Federal Highway corridor in the Central Business District and the area immediately south of it. This reduction in the parking requirements for office uses will promote shared parking and use of public transportation. Based on the above, a positive finding can be made that the amendment is consistent with and furthers the Goals, Objectives, and Policies of the Comprehensive Plan. REVIEW BY OTHERS Courtesy Notices: Courtesy notices were provided to the following homeowner and civic associations: ^ Neighborhood Advisory Council Letters of objection and support, if any, will be provided at the Planning and Zoning Board meeting. On January 22, 2009, the Community Redevelopment Agency (CRA) recommended approval of the proposed text amendment. A review of the amendment by the Parking Management Advisory Board (PMAB) and Downtown Development Authority (DDA) will occur after the Planning and Zoning Board Meeting. The recommendations of those agencies will be provided to the City Commission prior to adoption of the amendment. ASSESSMENT AND CONCLUSION The purpose of this text amendment is encourage business and professional office development along the Federal Highway corridor by reducing the costs associated with the provision of off- street parking. Positive findings can be made with respect to LDR Section 2.4.5(M)(5). RECOMMENDED ACTION Move a recommendation of approval to the City Commission for aCity-initiated amendment to Land Development Regulations Section 4.4.9, "General Commercial (GC) District", Subsection (G), "Supplemental District Regulations", and Section 4.4.13, "Central Business (CBD) District", Subsection (G), "Supplemental District Regulations", Sub-Subsection (1) "Central Core and Planning and Zoning Board Memorandum Staff Report, January 26, 2009 Amendment to LDRs -Federal Highway Office Parking Page 4 Beach Area Supplemental Regulations", to change the parking requirements for business and professional offices within certain portions of these zoning districts, by adopting the findings of fact and law contained in the Staff Report and finding that the request is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M)(5). Attachments • Location Map • Proposed Ordinance 07-09 s:\planning & zoning\boards\p&z board\Idrarnendment-federal highway office parking.doc N PLANNING AND ZONING DEPARTMENT i -- D/G/TAL BASE MAP SYSTEM -- LOCATION MAP SUBJECT PROPERTIES PROPOSED AREA SUBJECT TO REVISED PARKING ® REQUESTS FOR OFFICE DEVELOPMENT (1-SPACE PER 300 SQ. FT. OF NET FLOOR AREA) U:\AutoCAD\RON\Area North and South of Atlantic Avenue MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: February 4, 2009 SUBJECT: AGENDA ITEM 10.C. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 ORDINANCE N0.08-09 ITEM BEFORE COMMISSION This ordinance is before Commission for second reading for a City initiated amendment to the Land Development Regulations (LDR) Section 2.4.3(K)(1)(bb), "Single Family Overlay District Site Plan Review", to increase the application processing fee for Single Family Overlay District Site Plan Review Applications and associated renaming to North Beach/Seagate and Ocean Neighborhood Overlay District Review. BACKGROUND At the first reading on February 3, 2009, the Commission passed Ordinance No. 08-09. RECOMMENDATION Recommend approval of Ordinance No. 08-09 on second and final reading. (b) Review of a ADAIDRI $ 3,640 Modification of a DRi $ 1,215 {c) Voluntary Annexation with Zoning $ 1,105 (4} (d} Rezoning of Land $ 2,000 (e) Modification of a SAD Ordinance to add a use or uses $ 2,000 (f) Conditional Uses, New Application $ 1,500 Modification requiring Board Review $ 610 (g) Master Plans $ 1,215 (1) Master Plan Modification (5) (h) Formal review of a Sketch Plan (Section 2.4.1(8)] $ 610 {i} Similarity of Use $ 305 (j} Site Plan Review: Class I {Non-Impacting Modification) $ 110 Class II {Non-Impacting with Board Review} $ 225 Class CII (Minor Modification) $ 550 {1) Class IV (Major Modification} $ 915 (1) Class V {New Submission) $ 1,215 {1} {k} Extension requests for a previous conditional use or site plan approval {12) Class I Site Plan Modification $ 55 Class Il Site Plan Modification $ 115 Class III Site Plan Modification $ 275 Class IV Site Plan Modification $ 430 Class V Site Plan $ 610 Conditional Use $ 750 Conditional Use Modification $ 305 Certificate of Appropriateness for Minor Development $ 30 Certificate of Appropriateness for Major Development $ 280 (I) Plats Minor Subdivision $ 915 {1 } Major Subdivision $ 1,825 (1) Plat Recording Fee {3) 2 ORD. NO. 08-09 any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 6. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and fnal reading on this the day of , 2009. ATTEST City Clerk First Reading Second Reading MAYOR 5 ORD. NO. OS-09 MEMORANDUM TO: Mayor and City Commissioners FROM: CANDI N. JEFFERSON, SENIOR PLANNER PAUL DORLING, AICP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER DATE: January 29, 2009 SUBJECT: AGENDA ITEM 12.A. -REGULAR COMMISSION MEETING OF FEBRUARY 3, 2009 ORDINANCE NO. 08-09 ITEM BEFORE COMMISSION The item before the Board is that of approval of an amendment the Land Development Regulations to provide for a one hundred dollar ($100) increase in the application processing fee for Single Family Overlay District Site Plan Review applications and change the name to North Beach/Seagate and Ocean Neighborhood Overlay District Review. BACKGROUND The proposed amendments are to Section 2.4.3(K)(1)(bb) fee schedule, to note the new fee of one thousand five hundred sixty dollars ($1,560) and modify the fee category to "North Beach/Seagate and Ocean Neighborhood Overlay District Review". This change is necessary in order to maintain consistency with the renewed contract agreement fee charged by Urban Design Kilday Studios while the name change is to maintain consistency with the development application reference. REVIEW BY OTHERS On January 26, 2009, the Planning and Zoning Board unanimously recommended approval and adopted the findings of fact and law contained in the staff report and found that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M)(5) of the Land Development Regulations. RECOMMENDATION By motion, approve on first reading Ordinance No. 08-09, amending Land Development Regulations (LDR) Section 2.43(K)(1)(bb), to increase the application processing fee for Single Family Overlay District Site Plan Review applications and change the name to "North Beach/Seagate and Ocean Neighborhood Overlay District Review", with second reading and adoption to occur on February 17, 2009. PLANNING AND. ZONING BOARD :STAFF REPORT MEETING DATE: JANUARY 26, 2009 AGENDA NO; III. C. AGENDA ITEM: CONSIDERATION OF AN AMENDMENT TO LAND DEVELOPMENT REGULATIONS SECTION 2.4.3(K)(1)(bb) TO INCREASE THE APPLICATION PROCESSING FEE FOR SINGLE FAMILY OVERLAY DISTRICT SITE PLAN REVIEW APPLICATIONS AND ASSOCIATED RENAMING TO NORTH BEACHISEAGATE AND OCEAN NEIGHBORHOOD OVERLAY DISTRICT REVIEW; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. - - - - -- ITEM BEFORE THE BOARD The item before the Board is that of making a recommendation to the City Commission regarding a City-initiated amendment to Land Development Regulations (LDRs} Section 2.4.3{K}(1)(bb). This section references the application processing fee far projects located within the North BeachlSeagate and Ocean Neighborhood Overlay Districts. The proposed changes include increasing the site plan development review fee from $1460 to $1560 to accommodate a $100 increase in the Urban Design Kilday Studios compliance review for compatibility with the Beach Property Owners Design Manual. In addition, the associated LDR text reference will be renamed from "Single Family Overlay District Site Plan Review" to "North BeachlSeagate and Ocean Neighborhood Overlay District Review" far consistency with the development application. Pursuant to Section 1.1.6(A), an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. BACKGROUND"AND ANALYSIS On October 14, 2008, Urban Design Studios {UDS) and Kilday & Associates, both of West Palm Beach, Florida, merged to create Urban Design Kilday Studios (UDKS). The annual renewal of the contract agreement with the new "Urban Design Kilday Studios" includes a $100 increase in their Beach Property Owners Design Manual compliance review which was previously $850. Although the entire $1560 fee is collected by the City, $950 is directly passed through to Urban Design Kilday Studios (UDKS) and the City retains the additional $610 in fees for their internal review ($610 City + $950 UDKS= $1560). The proposed amendments are to Section 2.4.3{K)(1)(bb), fee schedule to note the new fee of $1560 and modify the fee category to "North BeachlSeagate and Ocean Neighborhood Overlay District Review". 'REQUIRED FINDINGS Pursuant to LDR Section 2.4.5(M}{5}, approval of any LDR amendment must be based upon a finding that the amendment is consistent with and furthers the Goals, Objectives, and Policies of the Comprehensive Plan. While the amendment does not specifically further the Goals, Objectives, and Policies of the Comprehensive Plan, it is not inconsistent with them. Planning and Zoning Board Memorandum Staff Report -January 26, 2DD9 . LDR Text Amendment Increasing Beach Overlay District Application Review Pees _ -- _ -- C _ -: - ASSE55MENT AND CONCLUSION The purpose of this City-initiated LDR text amendment is to increase the development review fee associated with projects located within the North BeachlSeagate and Ocean Neighborhood Overlay Districts. This change is necessary in order to maintain consistency with the renewed contract agreement fees changed by Urban Design Kilday Studios. As noted in this staff report, findings are consistent with LDR Section 2,4.5(M)(5) and the Comprehensive Plan. RECOMMENCED ACTION 1 By motion, recommend to the City Commission approval of this amendmen# to the Land Development Regulations Section 2.4.3(K)(1)(bb}, regarding an increase to single family development review fees and reference to the North BeachlSeagate and Ocean Neighborhood Overlay Districts, by adopting the findings of fact and law contained in the staff report and finding that the request is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5{M){5} of the Land Development Regulations. Atfachmenf: Draft Ordinance 2 MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: February 4, 2009 SUBJECT: AGENDA ITEM 10.D. -REGULAR COMMISSION MEETING OF FEBRUARY 17, 2009 ORDINANCE N0.09-09 ITEM BEFORE COMMISSION This ordinance is before Commission for second reading for an ordinance amending Section 96.03, "Establishment of Limits In Which Bulk Storage Of Liquefied Petroleum Gases To Be Restricted", Section 96.05, "Fire Hydrants", Section 96.16, "Certain Codes Adopted By Reference", and Section 96.46, "Above Ground Installation", to update the City's Code of Ordinances in order to reflect recent changes in the Fire Prevention Code Standards. BACKGROUND At the first reading on February 3, 2009, the Commission passed Ordinance No. 09-09. RECOMMENDATION Recommend approval of Ordinance No. 09-09 on second and final reading. ORDINANCE NO. 09-09 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, BY AMENDING SECTIONS 96.03, "ESTABLISHMENT OF LIMITS IN WHICH BULK STORAGE OF LIQUEFIED PETROLEUM GASES TO BE RESTRICTED", 96.05, "FIRE HYDRANTS", 96.16, "CERTAIN CODES ADOPTED BY REFERENCE", AND 96.46, "ABOVE GROUND INSTALLATION" TO UPDATE THE CITY'S CODE OF ORDINANCES IN ORDER TO REFLECT RECENT CHANGES IN THE FIRE PREVENTION CODE STANDARDS; PROVIDING A SAVING CLAUSE, A GENER.AI_. REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the CitS~ Commission has the authority to protect the public health, safety and welfare of its citizens; and WHEREAS, the CitS~ Commission of the CitS~ of Delray Beach, Florida, desires to update its Code of Ordinances to reflect recent changes in the Fire Prevention Code Standards. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA: Section 1. That Section 96.03, "Establishment of Limits in Which Bulk Storage of Liquefied Petroleum Gases to be Restricted" of the Code of Ordinances of the CitS~ of Delray Beach, Florida, is hereby amended to read as follows: Sec. 32.09. ESTABLISHMENT OF LIMITS IN WHICH BULK STORAGE OF LIQUEFIED PETROLEUM GASES TO BE RESTRICTED. The limits referred to in ~~~~~~ ''~.~ Chapter 69 of the Fire Prevention Code, in which bulk storage of liquefied petroleum gas is restricted, shall be in accordance with the zoning ordinances. Section 2. That Section 96.05, "Fire Hydrants" of the Code of Ordinances of the CitS~ of Delray Beach, Florida, is hereby amended to read as follows: (A) All fire hydrants shall be placed in a position so as to be accessible at all times from a paved road no less than twenty-four (24) feet in width. (B) Fire hydrant spacing shall be in accordance with the following: (1) In single-family and duplex residential districts, not more than five hundred (500) feet between hydrants. (2) In multifamily residential districts (townhouses, garden apartments, cluster developments and the like, and similar buildings two (2) stories or less in height), not more than four hundred (400) feet between hydrants. (3) In multifamily residential districts with buildings more than two (2) stories in height, all commercial districts, all business districts, all industrial districts, and special hazard applications, not more than three hundred (300) feet between hydrants. (4) Areas with divided or multilane road systems should have hydrant distribution on both sides of the highway, with curb and median cuts considered, utilizing spacing criteria listed above when existing and proposed parallel mains will support this criteria. (5) Measurement of spacing shall be by way of road travel. > > oo ,~F,.11 ,~1,..~..,,,.,:,~.~.. .. i , L,,.11 l,o ,~. .~~,.;.~0,7 ,.~ ,.11 ,:,~.o.. Section 3. That Section 96.16, "Certain Codes Adopted by Reference" of the Code of Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows: Sec. 96.16. CERTAIN CODES ADOPTED BY REFERENCE. (A) The CitS~ adopts by reference and incorporates into this Code as though fully set out herein, that certain code, as it may from time to time be amended, known as the Florida Fire Prevention Code, ,and the incorporated standards. (B) The City adopts by reference and incorporates into this Code, as though fully set out herein, those specific codes and standards, from the Florida Fire Prevention Code, . In addition to the codes adopted by the Florida Fire Prevention Code, the City of Delray Beach adopts National Fire Protection Association codes listed below and as they may be amended: 2 ORD. NO. 09-09 TABLE INSET: NFPA I I8 2006 I Wetting Agents 3 ORD. NO. 09-09 NFPA 1408 12004 I Aircraft Hand Portable Fire Extinguishers NFPA 1423 12004 I Construction and Protection of Aircraft Engine Test Facilities NFPA 496 2003 Purged and Pressurized Enclosures for Electrical Equipment NFPA 502 2004 Road Tunnels, Bridges, and Limited Access Highwa~~s 2001 NFPA 914 Fire Protection in Historic Structures NFPA 1141 2003 I Planned Building Groups 4 ORD. NO. 09-09 2003 Care, Use and Service Testing of Fire Hose Including Connections NFPA 1962 and Nozzles 2002 NFPA 1961 Fire Hose The CitS~ hereb~~ adopts the following amendments to the Fire Prevention Code of the National Fire Protection Association, N.F.P.A. Pamphlet No. 1, included in the Florida Fire Prevention Code, . adopted in this article: (1) Section ~ 313.3.2 is amended to include the following language: Approved automatic fire sprinkler s~~stems as hereinafter defined shall be installed throughout hereinafter constructed buildings and structures or appropriate sections thereof: (a) The following buildings of an institutional or educational character; all hospitals, ambulatory, surgical or treatment centers, nursing homes, homes for the aged, convalescent centers, rehabilitation facilities, day care centers caring for more than 12 clients under 1 year of age, adult congregate living facilities, and all occupancies and uses of similar nature to those herein stated, without regard to the type of construction or height of the building or structure involved. (b) All wood or partial wood frame buildings or structures which are 2 stories or more than 20 feet in height as measured from finish ground floor grade to the underside of the topmost roof assemble. Single-famil~~ homes, duplexes and townhouses shall be exempt from this requirement except as provided in section (d) below. (c) All buildings or structures regardless of the type of construction which are 3 stories or more in height or all buildings or structures in excess of 30 feet in height as measured from the finish ground floor grade to the underside of the topmost roof assemble. (d) All buildings or structures regardless of the type of construction which are in excess of 12,000 square feet per floor, or an aggregate of 12,000 square feet if there is unprotected communication between floors or intermediate spaces. (e) All portions or sections of buildings or structures which are below grade or which constitute the basement area of a building or structure regardless of square footage of floor area or type of construction. The automatic fire sprinkler s~~stems herein referred to and the installation thereof which is required b~~ this ordinance shall be as contained in and provided for with the 5 ORD. NO. 09-09 applicable standard specified for this section under appendix A of this Fire Prevention Code. (2) Section 13.2.2.2 is amended to include the following language: All hereafter constructed buildings and structures more than 3 stories in height or 36 feet in height or all buildings more than 2 stories in height and more than 30,000 square feet per floor level, shall be equipped with approved Class 1 standpipes to provide reasonable safety to persons and property. For purposes of this section, height is measured from finish ground floor grade to the underside of the topmost roof assembly. (3) Section ~~ 13.2.3 is amended to include the following language: All systems, equipment, tanks, piping, devices, appliances, controls, or storage facilities over which the code contains regulatory provisions, or which are required by any other law, shall be maintained in operative condition at all times to provide the service for which installed. All fire sprinkler, standpipe, and fire pump systems shall be annually inspected, serviced, and maintained under a written service contract with service companies licensed by the State of Florida to provide such services and which possess a current occupational license for the City of Delray Beach providing for regular maintenance and testing of the systems in accordance with the applicable standards specified under Appendix A of this Fire Prevention Code and N.F.P.A. 13A, N.F.P.A. 14A and N.F.P.A. 25. The service company performing the maintenance and tests shall forward a written report to the Fire-Rescue Department indicating the nature of any repairs, modifications, and/or corrections completed by the service company, the date and time of such tests and inspections and any other information which may be required by the fire-rescue services department. In addition, a copy of the service report must be maintained on the premises, and it shall be subject to inspection by the Fire-Rescue Department at anytime. (4) Section ~-~-4-2 13.3.1.7 is amended to include the following language: Valves on connections to water supplies, sectional control and isolation valves, and other valves in supply pipes to sprinklers and other fixed water based fire suppression systems shall be supervised by an approved Central station signaling service. (5) Section ~~ 13.7.1.1 is amended to include the following language: 6 ORD. NO. 09-09 Remote monitoring locations shall not be permitted to verify fire alarm signals prior to reporting them to the Fire-Rescue Department. Section 4. That Section 96.46, "Above Ground Installation" of the Code of Ordinances of the City of Delray Beach, Florida, is hereby amended to read as follows: Sec. 96.46. ABOVEGROUND INSTALLATIONS. All aboveground tank installations shall be of a capacity of wee six hundred (~ 600) gallons or less and shall be in the form of skid tanks. Tanks exceeding twee six hundred (~ 600) gallons capacity shall be installed underground. Aboveground storage tanks in excess of twee six hundred (~ 600) gallons capacity now in use shall not be replaced with aboveground tanks but only with underground tanks. However, a tank exceeding six hundred (~ 600) gallons in capacity may be placed aboveground if it is afire-resistant protected tank listed and tested in accordance with UL 2085, Standard for Protected Aboveground Tanks for Flammable and Combustible Liquids and adequately screened from view. Section 5. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 6. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 7. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this day of .2009. MAYOR ATTEST: City Clerk First Reading Second Reading 7 ORD. NO. 09-09 MEMORANDUM TO: Mayor and City Commissioners FROM: David C. James, Fire-Rescue Chief THROUGH: David T. Harden, City Manager DATE: January 7, 2009 SUBJECT: AGENDA ITEM 12.B. -REGULAR COMMISSION MEETING OF FEBRUARY 3, 2009 ORDINANCE NO. 09-09 ITEM BEFORE COMMISSION City Commission is requested to approve a revsion and update of various sections of Chapter 96 of the City Code of Ordinances. BACKGROUND The Florida Fire Prevention Code is revised and updated by the state every three (3) years. Section 633.025 (4) of the Florida Statutes identifies the procedure a municipality must follow to amend the Florida Fire Prevention Code. This section states that any local amendments sunset every three (3) years and therefore must be re-authorized. RECOMMENDATION Recomend that the City Commission approve the ordinance.