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Res 08-09ralm neacn Uounty, Florida Sharon R. Bock,CLERK & COMPTROLLER Pgs 1366 - 1374; t9pgs7 11TY OF DELRAY BEAM F a CITYCLERK 1, CHEVELLE D. NUBIN, City Clerk of the City of Delray Beach, do hereby certify that the attached document is a true and correct copy of Resolution No. 08 -09, as the same was passed by the Delray Beach City Commission in regular session on the 17th of February 2009. IN WITNESS WHEREOF, I have hereunto set my hand and the official seal of the City of Delray Beach, Florida, on this the 25th day of March, 2009. v� Chevelle D. Nubin, CMC City Clerk City of Delray Beach, Florida 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. 7h 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(1\4), "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 2,081 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 171h day of FEBRUARY, 2009. f t C2.. AYOR ATTEST: Exhibit "A" ------------------------------------------------------------------------------------------------------------------------------------------------------------------------- SKETCH OF DESCRIPTION EXHIBIT SHEET 1 OF 1 N w —� NOTES: v co THIS IS NOT A SURVEY Z J N� U� LOT 11 BLOCK 116 16.0' I , ' 5, V op 130.00' J m " 16' PLATTED ALLEY RIGHT OF WAY o W AREA = 2,081 SQUARE 1& o o a cp FEET MORE OR LESS °s �- W �- F� � 130.00, ; N �W LOT 20 LOT 21 LOT 22 Z BLOCK 116 BLOCK 116 BLOCK 116 00 4� z s b NORTH RIGHT OF WA Y LINE o. 0 U EAST A TLANTIC A VENUE a R DESCRIPTION- ALL THAT PORTION OF THE EAST -WEST 16 FOOT ALLEY RIGHT OF WA Y L YING SOUTH OF AND ADJACENT TO L 0 T 11 BL OCK 116, TOWN OF LINTON (NOW DEL RA Y BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLA T BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE WEST 50 FEET THEREOF FOR ADDITIONAL ROAD RIGHT OF WA Y FOR US. HIGH WA Y NO. 1. PAUL D. ENGLE SURVEYOR & MAPPER 115708 DA TE: JULY 9, 2008 O BRIEN, SUI TER & 0 BRIEN, INC CERTIFICATE OF AUTHORIZ'APON #L B353 ,SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE fJFC, Al IA/ 17TU A UCAl!!l- Cl HIM' i!1 Exhibit "B" ----------------------------- - ------------------------------------------------------------------------- ------------------- ----------------------------------- - - - - -- SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 1 OF 1 w N.E. ST STREET J � O O N.89°58'47E 16.00p NOTES NORTH LINE BLOCK 116 THIS IS NOT A SURVEY 0 OO CENTERLINE 0 a j THE NORTH LINE OF BLOCK 116 IS ASSUMED TO BEAR N.89058'47'E JLLJ �W JLu o� z� Q � 10 W�j WCD �•_^ a OQ Lo o o w ei � m � o� ci � Z c) z NORTH RIGHT U' z OF WA Y LINE N.90000100't. p SOUTH LINE o w d BLOCK 116 `i w EAST A TLANTIC A VENUE A o DESCRIPTION- ALL THAT PORTION OF THE NORTH —SOUTH 16 FOOT ALLEY PAUL D. ENGLE RIGHT OF WAY LYING IN BLOCK 116, TOWN OF LINTON (NOW DEL RAY BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 70 FEET THEREOF. SURVEYOR & MAPPER #5708 DA TE• JULY 9, 2008 0 BRIEN, SUITER & 0 BRIEN, INC CERTIFICATE OF AUTHORIZATION #L B353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE, PAUL D. ENGLE ❑99 Al IAA 17T" d V. All X- CI It 79- I!1 Exhibit "C" ------------------------------------------- * ------------------------------------------------------------------------------------------------------------------------------ SKETCH OF DESCRIPTION EXHIBIT SHEET 1 of 1 N w N.E. 1ST STREET � a Q o N.89 °5847E 40.00 NOTES• NORTH LINE NORTH LINE THIS IS NOT A SURVEY BLOCK 116 P 50, PAGE 129 ° q CENTERLINE THE NORTH LINE OF BLOCK 116 IS ASSUMED TO BEAR N.89058'47'E J W z P.B. PLA T BOOK k Li " W ��j W " Qw ° ^ o o n W= U Q a O O o ��� m � oN (A o� O c) m � 4 ti z SOUTH LINE- S.W. CORNER BLOCK 116 P.B. 50, PAGE 129 NORTH RIGHT ° OF WAY LINE 40.00' N.90 °00'00 E EAST A TLANTIC A VENUE ° o DESCRIPTION.• ALL THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE BOUNDED AS FOLLOWS ON THE NORTH BY PAUL D. ENGLE E 1 TOWN OF LINTON (NOW DELRAY BEACH), ACCORDING TO SURVEYOR &MAPPER #5708 116, THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND ON DATE.- JULY 9, 2008 THE SOUTH BY THE EASTERLY EXTENSION OF THE SOUTH LINE O'B,RIEN, SUI TER & O'BRIEN, INC OF SAID BLOCK 116. CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE AlZdZ Al ?A1 177[J A 11C-All lC Cl HTC 1(1 This instrument was prepared by and should be returned to: Brian Shutt, Esq. City Attorney's Office 200 N.W. 1st Avenue Delray Beach, Florida 33444 CFN 20090116362 OR BK 23166 PG 1375 RECORDED 04/08/2009 10:36:45 Palm Beach County, Florida Sharon R. Bock,CLERK & COMPTROLLER Pgs 1375 - 1446; (72pgs) DECLARATION OF RESERVED RIGHTS AND AGREEMENT NOT TO ENCUMBER N.E. 7th AVENUE (Vacated 7h Avenue) This Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7"' Avenue (this "Agreement ") is entered into as of February 17, 2009 (the "Effective Date "), among the CITY OF DELRAY BEACH, 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 "Developer "), for the purpose of setting forth the Developer's contingent obligation to reconvey Vacated 7th Avenue (as defined below), which the City abandoned. RECITALS: A. The Developer intends to construct and develop a mixed -use project (the " Project ") on that certain real property described as follows (the "Overall Parcel "): See Exhibit "A" attached hereto and made a part hereof. B. On February 17, 2009, the City Commission passed a Resolution (the "Abandonment Resolution "), pursuant to which the City abandoned its interest in and to that certain- publicly dedicated roadway more particularly described as follows ( "Vacated f 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. 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 7t' Avenue and, pursuant to that certain proposed easement agreement to be recorded in the Public Records of Palm Beach 1 County, Florida (the "Vacated 7th Avenue Agreement'), the Developer has agreed to grant the City an exclusive roadway and utility easement over, upon, under and across Vacated 7th Avenue (the "Vacated 7th Avenue Easement "). D. In connection with the development of the Project, the Developer may construct a relocated 7th Avenue, between N.E. lst 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. Relocated 7th Avenue is legally described as follows: 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, to grant to 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 Relocated 7th Avenue, and for the City to exercise its governmental and quasi - governmental functions with respect to Relocated 7th Avenue; and (ii) a perpetual non - exclusive subsurface utility easement within Relocated 7"' Avenue (collectively, the "Relocated 7th Avenue Easements "). F. The Vacated 7th Avenue Agreement provides, in part, that the Vacated 7th Avenue Easement shall terminate and be of no further force and effect upon recordation of the "Substantial Completion Certificate" (as defined in the Vacated 7 Avenue Agreement), evidencing that construction of Relocated 7h Avenue has been substantially completed in accordance with the "Specifications" (as defined in Section 2(a) of that certain Financial Guarantee & Agreement, dated February 17, 2009, between the City and Atlantic Center, Ltd., a Florida limited partnership (the "Financial Guarantee "). G. This Agreement sets forth the obligations of Developer to reconvey Vacated 7th Avenue to the City in the event the City exercises its right of reconveyance as described in the Financial Guarantee and as set forth herein. NOW, THEREFORE, 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 forth in their entirety. 2. Reserved Rights. OA nnnP110AQ0_MR (.i,rmnt /11AQoniRv19 021151200905:15 PM a. Background. The Developer has certain obligations relating to the construction of Relocated 7a` Avenue. The Developer shall (collectively, the "Development Conditions "): {i) obtain approval of the Developer's site plan by the City's Site Plan Review and Appearance Board no later than December 1, 2009 (the "SPRAB Approval Deadline ") (the "SPRAB Approval Condition ") (The date on 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 City within five hundred and forty eight (548) days following 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"' Avenue to the "No Turning Back Point" (defined below) within one thousand ninety five (1,095) days after the Site Plan Certification Date (the "No Turning Back Deadline ") (the "No Turning Back Condition "). The "No Turning Back Point" shall be the point at which the Developer has constructed a tunnel under Relocated 7a' 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 deemed an approval of extension for site plan approval; and (iv) deliver to the City, within one hundred eighty (180) days after the City adopts the Abandonment Resolution (the "Environmental Audit Deadline "), a Phase I environmental audit report (the "Environmental Audit "), prepared at the Developer's expense by a properly licensed environmental engineer and certified to the City, attesting that the portion of Relocated 7'J' Avenue which is not included in the legal description of Vacated 7t' Avenue, does not identify any environmental conditions that warrant further investigation in a Phase II environmental audit or require any remediation or corrective action so that the City is an innocent landowner under applicable environmental laws and regulations (the "Environmental Audit Condition "). 41 b. Right of Reconveyance. if the Developer fails to timely satisfy the Development Conditions set forth in (a) above, then the City shall have the right to cause the Developer to reconvey Vacated 7t` Avenue to the City, at the City's option, in the City's sole and absolute discretion. The Developer's obligation to reconvey Vacated 7ffi Avenue to the City in each of the four (4) circumstances set forth in (a) above is hereinafter collectively referred to as the "City's Reconveyance Right ". C. Evidence of Satisfaction of the Development Conditions. The Developer shall evidence that the Developer has satisfied the Development Conditions set forth in (a) above by recording in the Public Records of 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 Department 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 acceptable Environmental Audit has been delivered to the City by the Environmental Audit Deadline, in the form attached hereto as Exhibit "D "; iii. a certificate issued by 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 form attached hereto as Exhibit "E "; and iv. a certificate issued by the City Engineer confirming that the Developer has reached the No Turning Back Point by the No Turning Back Date, in the form attached hereto as Exhibit "F ". The City Engineer 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. Right to Exercise the City's Reconveyance Right. The City may exercise the City's Reconveyance Right if: i. the Developer has not obtained the SPRAB Approval by the SPRAB Approval Deadline; rd ii. the Developer has not satisfied 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; or iv. the Developer has not delivered the Environmental Audit to the City by the Environmental Audit Deadline. e. Method to Exercise the City's Reconveyance Right. To exercise the City's Reconveyance 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 (60) days after the City is entitled to exercise the City's Reconveyance Right because the Developer has failed to timely satisfy one of the Development Conditions. The City's failure to timely exercise the City's Reconveyance Right with respect to one of the Development Conditions shall not be deemed a waiver of the City's right to exercise the City's Reconveyance Right as to the failure of the Developer to timely satisfy any of the other Development Conditions. f. Reconveyance Following Exercise of the City's Reconveyance Right. If the City exercises the City's Reconveyance Right, then the Developer shall reconvey Vacated 7th Avenue to the City, free and clear of all encumbrances, liens and taxes, and title shall be good, 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 or 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, or another national title insurer 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. g. Termination of the City's Reconveyance Right. If the City is entitled to, but does not timely exercise the City's Reconveyance Right within sixty (60) days after the Environmental Audit Deadline, the Site Plan Certification Deadline, the No Turning Back Deadline or the SPRAB Approval Deadline, as applicable (the "Reconveyance Right Deadline "), then the City shall forever waive and release the right to exercise the City's Reconveyance Right with respect to the applicable Development Condition, as the case may be. The Developer shall provide written notice of the Reconveyance Right Deadline to the City five (S) days prior to the expiration of the Reconveyance Right Deadline (the "Reconveyance Right Expiration Notice "). The failure of the Developer to timely deliver the Reconveyance Right Expiration Notice to the City shall cause the Reconveyance Right Deadline to extend until the date which is five (S) days following the delivery of the Reconveyance Right Expiration Notice by the Developer to the City. The Developer's delivery of the Reconveyance Right Expiration Notice is not a condition S nAOA11QFO9_mF riirrantllRdQQn1Rv19 021151200905:15 PM to the City's right to exercise the City's Reconveyance Right. If the City fails to exercise the City's Reconveyance Right for all of the Development Conditions such that the City is no 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 of 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 Agreement and the City's Reconveyance Right is waived, released and of no further force and effect confirming that the Developer shall no longer have any obligation to reconvey Vacated 7th Avenue to the City. h. Sidewalk Installation. The certified site plan shall include a provision for the installation by Developer, at Developer's sole cost and expense, of sidewalks as part of or contiguous with Relocated 7b Avenue. The sidewalk shall meet the City's minimum sidewalk standards applicable to the Overall Parcel and shall be at least eight feet (S') in width. The location of the sidewalk shall be a part of and contiguous with the east and west boundary lines of Relocated 7"' Avenue and shall be as set forth in the certified site plan, and may also extend beyond the boundaries of Relocated 7t11 Avenue. The Developer shall grant to the City an unimpeded and unobstructed sidewalk easement, which the Developer shall be obligated to maintain and its cost and expense and whereas the City shall have all rights as if it were a public sidewalk, the form 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 attorney. Section 2. i. Time of Essence. Time is of the essence with respect to the provisions of 3. Escrow of Reconveyance Deed. To secure the City's Reconveyance Right, the Developer has, on 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 form of which is attached hereto and made a part hereof as Exhibit "I ". 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 (together with an executed "Relocated 7th 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 reconveyance of Vacated 7th Avenue; and (ii) a "Relocated 7th Avenue Termination Certificate" evidencing the termination and release of the City's Relocated 7th Avenue Easements. The form of the Escrow Agreement is attached 0408119692 -016 Currend1349901602 02/151200A 0.r AS PM hereto as Exhibit "Y' and the form of the Relocated 7a' Avenue Termination Certificate is attached hereto as Exhibit "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 7t' Avenue; (ii) lien, sell, convey, transfer, pledge, mortgage, or hypothecate Vacated 7t` Avenue; and (iii) permit any person or entity to acquire any right, title, or interest in Vacated 7"' Avenue (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 forth 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 limitation, an assumption of the Declaration, and a replacement Warranty Deed from the new owner of the Vacated 7t' Avenue to be placed in escrow with the Escrow Agent, provided fee simple title to the Vacated 7t' Avenue is transferred. Any Encumbrance not obtained in accordance with the terms and provisions set forth in this section shall be void and have no force or effect with respect to Vacated 7t' Avenue, and shall at all times be subject and inferior to the City's Reconveyance 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 effect and it is extinguished from the Public Records of Palm Beach County, Florida with respect to Vacated 7t' Avenue. The City's remedies include, but are not limited to, 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 obligations under this Agreement (the "Defaulting Party ") within thirty (30) days after receipt of written notice from the other party specifying the nature of the failure (the "Non- Defaulting 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 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. This Section 5.1 is not applicable to the provisions contained in Section 2 of this Agreement. 7 0406119692 -016 Current11349901602 02/1512009 nri-15 PM 5.2 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 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 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 be suspended or terminated except by an instrument in writing signed by the City and the Developer and recorded in the real property records of Palm Beach County, Florida. t' 5.3 Additional Remedy. If the City exercises the City's Reconveyance Right but Vacated 7Avenue 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 Vacated 7h Avenue, or the City does not obtain good, insurable, and marketable title to Vacated 7h Avenue, subject only to the Permitted Exceptions, in that event, in addition to any other available remedy to the City, the City may declare a violation of and/or withhold, deny, abate, or revoke approval of any then pending or existing permit, site plan, development order, variance, or other governmental or quasi - governmental consent which relates to or concerns the Overall Parcel, until the Developer causes the reconveyance of Vacated 7,J' Avenue to 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 100 N. W. 1" Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561) -278 -4755 With a copy to: 200 N.W. I" Avenue Delray Beach, Florida 33444 Attn: City Attorney Facsimile: (561)- 278 -4755 0408119692 -016 Currentl1349901602 nP/IS/9NlQ Or, 1FDNA As to Developer: Atlantic Center, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 As to Escrow Agent: CDR Atlantic Plaza, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 3 343 1 Attn: President Facsimile: (561) 278 -6930 Steven D. Rubin, Esquire 980N. 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 for next day delivery; or (iii) the same day when sent by confirmed facsimile before 5:00 p.m. (Eastern time). 7. General Provisions. 7.1 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. 7.2 Entire Agreement. This Agreement sets forth the entire agreement between the Developer and the City and supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parties. 7.3 Governing Law. This Agreement will be interpreted and enforced in accordance with Florida law. VJ 0408119692 -016 Curren0349901602 021151200905:15 PM 7.4 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 Developer and the City. 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 be treated as an original. 7.7 Non - 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 not constitute in any respect or manner, a public dedication of any right or interest of the Developer in Vacated 7'1' Avenue 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 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 or the City may have hereunder by reason of any breach 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 term or provision to persons or 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 by law. 714 Non - 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 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 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. 7.11 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. 10 0408119692 -016 CurrenV13499016v12 02!151200906,15 PM 7.12 Covenant Running with the Land. This Agreement 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 Developer, as the case may be, their respective successors, assigns and/or grantees. 7.13 Joinder by Mortgagees. By its joinder in this Agreement, all mortgagees holding a lien against Vacated 7t` Avenue, 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 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 foreclosure or trustees sale shall acquire title subject to all the terms and provisions of this Agreement. 7.14 Joint 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. 7.15 Attorneys Fees. In connection with any litigation, or dispute arising out of this Agreement, each party shall bear its own attorneys' fees and costs. 7.16 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. 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 of 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 disposed of or otherwise released on, to or under Vacated 7t` Avenue or Relocated 7th Avenue. Neither the Developer nor the City shall engage in operations over, upon or under Vacated 7h Avenue or Relocated 7th 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"' Avenue will be utilized for parking and driving vehicles which may leak oil, gasoline, or other fluids onto the ground, and City shall not be responsible for removal of such waste or have any liability for it under this Agreement. 11 0408119692 -016 CurrenV1349901602 021151200905:16 PM 7.19 No Third Party Beneficiaries. No private parties other than the City shall have the right to bring a cause of action against the Developer under this Agreement. 7.20 Force Majeure. if any party to this Agreement is delayed, hindered in, 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 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 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 or hindrance or 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 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. No Penalty. The Developer acknowledges that construction of improvements on the Overall Parcel is subject to the City's Reconveyance Right. Therefore, such construction is at the Developer's risk and that the loss of such improvements resulting from the City's exercise of the City's Reconveyance Right shall not be deemed a penalty or forfeiture. 9. City Approvals. The City reserves its authority to approve the 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 on the Developer or the Project other than as set forth in the City's code of ordinances and all other applicable laws and codes or in addition to any and all approvals for the Project granted and approved as of the Effective Date. 10. 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 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 tort limits of liability set forth in Fla. Stat. 768.28 which are currently $100,000 per person and $200,000 per occurrence are applicable; and 12 0408119692 -016 GurrenV13499016v12 02/15/2009 05:15 PM 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 Vacated 7t' Avenue shall not terminate until such time that the City is vested with marketable and insurable title to the fee of Vacated 7th Avenue and the "Abandoned Alley" (as defined in that certain Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley, dated February 17, 2009, between the City and the Developer) subject to matters of record against Vacated 7h Avenue and the Abandoned Alley which existed as of February 16, 2009. EXECUTION PAGES TO FOLLOW 13 0408119692 -016 CurrenU1349901602 021151200905:15 PM STATE OF F) or ; t4 � COUNTY OF The foregoing instrument was acknowledged before me this 21tay of FeP-v- qo- , 2004, by +g. C, I d t S , the Q�,4 0 -~ of the CITY OF DELRAY BEACH, FLORIDA. He /She is personally known to me i n. Signature Person Taking A owledgment Catherine IngW4 * Commission # D0565576 inns July 22, 2010 � 6unAS4'f��6ai�•�RWFiNiWlae: !)����+i�t0 0408119692 -016 CurrenV1349901602 021151200905:15 PM WITNESSES: DEVELOPER ATLANTIC CENTER, LTD., a Florida limited partnership UL - By: ATLANTIC CENTER, INC., a Florida Print Nam . corporation its General Partner I�C��,e�, A �s ®r.� Print Print lea e:� Its:,, STATE OF h � �t COUNTY OF k The foregoi, , ins ent was acknowledged before m this day of U the of 2009, by .�1�7 a �. M %I I M -P , as , A l LANTI CENTER, INC., a Florida corporation, the general artner of AT NTIC CENTER, LTD., a Florida limited partnership, on behalf of the limited partnership He/ he is per_s_onally kno� � to me or has produced F (typpe of identif� on) as identification. _ Signa *(Y of Perm Taking ,.,.,, ArCY QIIIGL�Y �} ' MY COMM15S1ff13 # DD 77$546 «; E7(P1RES: ; F �r1 l 'mrulo� rs 0408119692 -016 CutrenV1349901602 021151200905:15 PM STATE OF k COUNTY OF Oal m,h DEVELOPER CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: DELRAY HISTORIC, INC., a Florida corporation, its General Partner Print Name: Z Its: kyfVM5 The fore oing instrument was acknowledged before me this day of 2009, by jtjFjbL R N` MiI Mk� , the — of DE RAY ISTORIC, INC., a Florida corporation, the general partner of CDR ATLANTIC PLAZA, LTD., a Florida limited partnership, on behalf of the limited partnership. He/ he is personally known to me or has produced identification. ` I(ASEY A QUIGLEY ` My COMMISSION # DD 778546 EXPIRES: April 13, 2012 Boded ihruNotgpokUn orWr era (type of identi cation) as 0408119692 -016 CurrenV134990160 2 02/15/2009 05:15 PM EXHIBIT "A" Legal Description of the Overall Parcel 0408119692 -016 CurrerV134990160 2 02/15/2009 05,15 PM DESCRIPTION OF PROJECT SITE: LOT 1, LESS THAT PORTION DEEDED TO THE STATE OF FLORIDA FOR ROAD RIGHT OF WAY, AS DESCRIBED IN OFFICIAL RECORDS BOOK 511, PAGE 516, LOTS 2 THROUGH 11, INCLUSIVE, LESS THE WEST 5.0 FEET THEREOF FOR RGAD RIGHT OF WAY, LOTS 12 THROUGH 19, INCLUSIVE, LOT 20, LESS THAT PORTION FOR THE RIGHT OF WAY FOR EAST ATLANTIC AVENUE AND U.S. HIGHWAY NO. 1, LOTS 21 THROUGH 24, INCLUSIVE, LESS THE SOUTH 7.0 FEET THEREOF FOR ROAD RIGHT OF WAY, ALL THE EAST -WEST ALLEY LYING SOUTH OF AND ADJACENT TO SAID LOT 11, LESS THE WEST 5.0 FEET THEREOF FOR ROAD RIGHT OF WAY, ALL OF THE NORTH -SOUTH ALLEY RIGHT OF WAY LYING EAST OF AND ADJACENT TO LOTS 1 THROUGH 11, INCLUSIVE AND LOT 22, LESS THE SOUTH 7.0 FEET THEREOF FOR ROAD RIGHT OF WAY, ALL LYING IN 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. TOGETHER WITH: ALL OF THE PLAT OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. AND TOGETHER WITH: THAT PORTION OF THE EAST HALF OF THE 50 FOOT ROAD RIGHT OF WAY FOR N.E. 7' AVENUE LYING WEST OF AND ADJACENT TO THE SAID PLAT OF ATLANTIC PLAZA, AND THAT PORTION OF THE WEST HALF OF THE 50 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE LYING EAST OF AND ADJACENT TO SAID BLOCK 116, LESS THE SOUTH 7.0 FEET THEREOF. Legal Des cri tion of Vacated 7"` Avenue 0408119692 -016 CurrerV134990160 2 02/15/2009 05:15 PM SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 1 of 1 b w N.E. IST STREET q n `Ld N.89 °5847'E 40• o0$ NOTES. NORTH LINE NORTH LINE THIS IS NOT A SURVEY BLOCK 116 P.B. 50, PAGE 129 = CENTERLINE THE NORTH LINE OF BLOCK 116 N IS ASSUMED TO BEAR N.89 °5847 "E. ti J w- P.B. = PLAT BOOK Q) SOUTH LINE S. W. CORNER BLOCK 116 %P.B. 50, PAGE 129 / NORTH RIGHT �` OF WAY LINE 40.00 >u90a�oz EAST A TLAN77C , 4 VENUE DESCRIPTION- ALL THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE BOUNDED AS FOLLOWS' ON THE NORTH BY PAUL D. ENGLE THE EASTERL Y EXTENSION OF THE NORTH LINE OF BLOCK SURVEYOR & MAPPER #5708 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 DATE. JULY 9, 2008 THE SOUTH BY THE EASTERLY EXTENSION OF THE SOUTH LINE O'BRIEN, SUITER & O'BRIEN, INC OF SAID BLOCK 116. CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. • PAUL D. ENGLE 955 N. W. 1771H A VENUE SUITE K1 DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 8 ABANDONMENT (561) 276 --4501 (561) 732 -3279 EXHIBIT "C" Le _ a 1 Description of Relocated 7`' Avenue 0408119692.016 CurrenV1349901602 02115/200905:15 PM 8� 8� N� h! N. �1 o. WWl; W� LuW� (0� 0� �i t U. qi 9� V. z� 01 o� SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 2 OF 2 DESCRIPTION FOR NE. 7TH AVENUE RE- ALIGNMENT A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 77H A VENUE LYING WEST OF AND ADJACENT TO SAID ATLANTIC PLAZA AS SHOWN ON THE PLAT OF THE 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, BEING 40 FEE7 WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE S.89 °58'15 "W., ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 22118 FEET TO THE POINT OF BEGINNING, THENCE S. 0 °00 DO'E:, A DISTANCE OF 35901 FEET TO A POINT OF CUR VA TURF CONCAVE TO THE NORTHWEST HAVING A CENTRAL ANGLE OF 36 °3325" AND A RADIUS OF 20500 FEET, • THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CURVATURE CONCAVE TO THE SOUTHEAST HA VING A CENTRAL ANGLE OF 36 °33'25" AND A RADIUS OF 165.00 FEET; THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 10528 FEET;' THENCE S.0 °00'00'E, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ATLANTIC PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT: THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET AT ALL ANGLE POINTS AND TO TERMINA TE A T THE NORTH AND SOUTH LINES OF SAID PLA T OF A TLANTIC PLAZA AND THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE,• JAN. 23, 2009 ORDER NO. 04- 164 7TH AVE RE- ALIGNMENT 8� g< g Immul:illlfil�� Certificate of Delivery of Environmental Audit 0408119692 -016 CurrenV1349901602 021151200905:15 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATE OF DELIVERY OF ENVIRONMENTAL AUDIT THIS CERTIFICATE OF DELIVERY OF ENVIRONMENTAL AUDIT (this "Certificate ") is issued as of the day of , 2009, by , City Engineer for the City of Delray Beach, whose address is (the "City Engineer "). WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section 2 of that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7 1 Avenue, dated as of , 2009, between the City of Delray Beach, Florida (the "C, ity "), Atlantic Center, Ltd., a Florida limited partnership and CDR Atlantic Plaza, Ltd., a Florida limited partnership (collectively, the "Developer "), recorded in Official Records Book , Page , of the Public Records of Palm Beach County, Florida (the "Declaration of Reserved Rights"). The Declaration of Reserved Rights encumbers that certain roadway more particularly described as follows ( "Vacated 7t' 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 ($10.00), and other good 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 Environmental Audit. 3. This Certificate satisfies that certain requirement set forth in Section 2(c)(ii) of the 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 certificate issued by the City 1 8547/19692-016 CurrenV135413341 02/13/2009 02;57 PM Engineer confirming that an acceptable Environmental Audit 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 of Reserved Rights. [SIGNATURE PAGE FOLLOWS.] 2 6547/19592 -016 CurrenV135413340 02il 312009 02:57 PM IN WITNESS WHEREOF, 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 COUNTY OF CITY ENGINEER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me this day of 2009, by , the City Engineer for the City of Delray Beach. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547119692 -016 GurrenV135413340 02/13/2009 02:57 PM EXHIBIT "A" to the Certificate of Delivery of Environmental Audit Vacated 7th Avenue 8547119692 -016 Current/13541334v1 02/131200902 :57 PM SKETCH OF DESCRIPTION EXHIBIT '�4" SHEET 1 OF 1 w N.F 15T STREET � b o N N.89 °5847'E 40.00 NOTES. NORTH LINE NORTH LINE THIS IS NOT A SURVEY BLOCK 116 P.B. 50, PAGE 129 = CENTERLINE THE NORTH LINE OF BLOCK 116 r j N IS ASSUMED TO BEAR N.89 °58471-, !� �4 P.B. =PLAT BOOK 'js W ° Ul °o SOUTH LINE S.W. CORNER BLOCK 116 P.B. 50, PAGE 129 jNORTH RIGHT OF WAY LINE Q) m9ovovot EAST A TLANTIC A VENUE DESCRIPTION ALL THA T PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE BOUNDED AS FOLLOWS ON THE NORTH BY PAUL D. ENGLE E EXTENSION 116, OWN OF LINTON (NOW DELRAY BEACH),I SURVEYOR &MAPPER #5708 AC ORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND ON DATE. JULY 9, 2008 THE SOUTH BY THE EASTERLY EXTENSION OF THE SOUTH LINE O'BRIEN, SUI TER & O'BRIEN, INC OF SAID BLOCK 116 CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE: PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUI TE K1 DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 8 ABANDONMENT (561) 276 -4501 (561) 732 -3279 EXHIB TT "E" Certificate of Site Plan Certification 0408119692.016 CurrenY1349901602 02/151200905,15 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATE OF SITE PLAN CERTIFICATI THIS CERTIFICATE OF SITE PLAN CERTIFICATION (this "Certificate ") is issued as of the day of , 2009, by , Director of the City of Delray Beach Planning and Zoning Department, whose address is (the "Planning and Zoning Department "). WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section 2 of that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7th Avenue, dated as of , 2009, between the City of Delray Beach, Florida, Atlantic Center, Ltd., a Florida limited partnership and CDR Atlantic Plaza, Ltd., a Florida limited partnership (collectively, the "Developer "), recorded in Official Records Book , Page , of the Public Records of Patin. Beach County, Florida (the "Declaration of Reserved Rights "). The Declaration of Reserved Rights encumbers that certain roadway more particularly described as follows ( "Vacated 7th 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 ($10.00), and other good and valuable 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 their 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 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 Records of Palm Beach County, Florida a certificate issued by the 1 8547119692.016 current/135425780 021131200912:07 PM Planning and Zoning Department confirming that the Developer has obtained certification of the Developer's site plan by 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 FOLLOWS.] 2 8547119692 -016 CurrenV135425780 021131200912:07 PM IN WITNESS WHEREOF, the Planning and Zoning Department hereby executes and delivers this Certificate as of the day and year first above written. WITNESSES: (Print Name) (Print Name) STATE OF C�111LQ���,1 By: , Director The foregoing instrument was acknowledged before me this day of 2009, by , the Director of the City of Delray Beach Planning and Zoning Department. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547119692-016 CurrenV135425780 013/2009 12:07 PM EXHIBIT "A" to the Certificate of Site Plan Certification Vacated 7t' Avenue 8547119692 -016 Ccurrend13542578v1 02/13/2009 12:07 PM SKETCH of DESCRIPTION EXHIBIT "A" SHEET 1 4F 1 W N.E. ST STREET o 0 z N N.8905847E `y 4Q 00 NOTES. - NORTH LINE NORTH LINE THIS 1S NOT A SURVEY BLOCK 116 P.B 50 PAGE 129 E = CENTERLINE THE NORTH LINE OF BLOCK 115 t j N IS ASSUMED TO BEAR N.89058'471E w P.B. PLAT BOOK w z � Q L Woo �Zw. C0 00 o a z;� o ��o (j� �cz ��N �ck �0 �O IJm O� z SOUTH LINE s W. CORNER BLOCK 116 P.B. 50, PAGE 129 NORTH RIGHT OFF WA Y LINE 40.00° o N90000vo" EAST A TLAN77C A VENUE DESCRIPTION - ALL THA T PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE BOUNDED AS FOLLOWS' ON THE NORTH BY PAUL D. ENGLE ETOWN OF LINTON (OW DELRAY BEACH), SURVEYOR &MAPPER #5708 ACCORDING TO 116, THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND ON DATE., JULY 9, 2008 THE SOUTH BY THE EASTERL Y EXTENSION OF THE SOUTH LINE OBRIEN, SUITER & O BRIEN, INC OF SAID BLOCK 116. CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. • PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE K1 DELRAY BEACH FLORIDA 33445" ORDER NO. 04 --164 PARCEL 8 ABANDONMENT (561) 276 --4501 (561) 732 -3279 ; o: 8. N o z C U� 2� q o; i ; Imull Certificate of Construction to the "No Turning Back Point" 0408119692 -016 CurrenV1349901602 021151200905:15 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATE OF CONSTRUCTION TO THE "NO TURNING BACK POINT" THIS CERTIFICATE OF CONSTRUCTION TO THE "NO TURNING BACK POINT" (this "Certificate ") is issued as of the day of , 2009, by , City Engineer for the City of Delray Beach, whose address is (the "City Engineer"). WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section 2 of that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7th Avenue, dated as of , 2009, between the City of Delray Beach, Florida (the "City"), Atlantic Center, Ltd., a Florida limited partnership and CDR Atlantic Plaza, Ltd., a Florida limited partnership (collectively, the "Developer "), recorded in Official Records Book , Page , of the Public Records of Palm Beach County, Florida (the "Declaration of Reserved Rights "). The Declaration of Reserved Rights encumbers that certain roadway more particularly described as follows ( "Vacated 7th 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 ($10.00), and other good 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 7th Avenue. 3. This Certificate satisfies that certain requirement set forth in Section 2(c)(iv) of the Declaration of Reserved Rights which provides, in part: The Developer shall evidence that the Developer has satisfied the No Turning Back Condition by recording in the Public Records of Palm Beach County, Florida a certificate issued by the City Engineer confirming that Relocated 7th Avenue has been 8547/19692-016 CurrenV135425520 02/13/2009 12:09 PM constructed to the No Turning Back Point by the No Turning Back Deadline, 4. All terms not defined herein shall have the meanings set forth in the Declaration of Reserved Rights. [SIGNATURE PAGE FOLLOWS.] Z 8547119692 -016 CurrenV135425520 02!1 312009 12M PM IN WITNESS WHEREOF, 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 COUNTY OF CITY ENGINEER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me this day of 2009, by , the City Engineer for the City of Delray Beach. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547119692 -016 Currend135425520 02/131200912:09 PM EXHIBIT "A" to the Certificate of Construction to the "No Turning Back Point" Vacated 7"` Avenue 6547119692 -016 Current113542652v1 021131200912:09 PM SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 1 OF 1 b W V 1ST STREET � 0 0 z N N.89 °5847E 40.00' NO TES. NORTH UNE NORTH LINE THIS IS NOT A SURVEY BLOCK 116 P.B. 50, PAGE 129 e = CENTERLINE THE NORTH LINE OF BLOCK 116 r j N IS ASSUMED TO BEAR N.8905847'E P.B. =PLAT BOOK WW N O W� e. W CC ID SOUTH LINE S W. CORNER BLOCK 116 P.B. 50, PAGE 129 NORTH IGHT OFF WA RLINE 40.U0' o EAST ATLANTIC A VENUE DESCRIPTION• ALL THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE BOUNDED AS FOLLOWS- ON THE NORTH BY PAUL D. ENGLE THE EASTERL Y EXTENSION OF THE NORTH LINE OF BLOCK SURVEYOR & MAPPER #5708 116, TOWN OF LINTON (NOW DELRA Y BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND ON DATE. JUL Y 9, 2008 THE SOUTH BY THE EASTERLY EXTENSION OF THE SOUTH LINE O'BRIEN, SUI TER & OBRIEN, INC OF SAID BLOCK 116, CERTIFICATE OF AUTHORIZATION fLB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE, PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE K1 DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 8 ABANDONMENT (561) 276 -4501 (561) 732 --3279 EXHIBIT "G„ Permitted Exceptions 0408119692 -016 Currend1349901602 02/151200905:15 PM Restrictions (deleting therefrom any restrictions indicating any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin), covenants, easement(s), setback(s), if any, as may be shown on the Plat recorded in Plat Book 50, 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, easement(s), setback(s), if any, as may be shown on the Plat recorded in 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, 1993, in Official Records Book 7596, Page 63, Public Records of Palm Beach County, Florida. 4. Easement Deed by and between Carteret Savings and Loan Assoc., F.A., and the City of Delray Beach, a Florida municipal corporation, dated May 14, 1984, recorded July 19, 1984, in Official Records Book 4300, Page 1126, Public Records of Palm Beach County, Florida. 5. Easement Deed in favor of the City of Delray Beach, recorded September 3, 1985 in Official Records Book 4640, Page 1168; Public Records of Palm Beach County, Florida 6. Easement in favor of Florida Power & Eight Company dated November 11, 1985, recorded 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 27, 1974, recorded December 5, 1974, in Official Records Book 2372, Page 1687, Public Records of Palm Beach County, Florida. 8. Easement Deed by and between First Federal Savings and Loan Asso. of Delray Beach, and the City of Delray Beach, a Florida municipal corporation, dated March 18, 1977, recorded April 18, 1977, in Official Records-Book 2666, Page 1136, Public Records of Palm Beach County, Florida. 8547/19692 -016 Current/135441120 02/101200910:23 PM Certification of Termination and Release 0408119692 -016 Current/1349901602 021151200905:15 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq, Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATION OF TERMINATION AND RELEASE THIS CERTIFICATION OF TERMINATION AND RELEASE (this "Certification ") is made as of the day of , 20 (the "Effective Date "), among the CITY OF DELRAY BEACH, FLORIDA (the "C, ity "), and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership and ATLANTIC CENTER, LTD., a Florida limited partnership (collectively, the "Developer "). WITNESSETH.- WHEREAS, this Certification is issued pursuant to Section 2(g) of that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7th Avenue, dated as of , 2009, between the City and the Developer, recorded in Official Records Book Page , of the Public Records of Palm Beach County, Florida (the "Declaration of Reserved Rights"). The Declaration of Reserved Rights encumbers that certain roadway more particularly described as follows ( "Vacated 7th 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 sure 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 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 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 Termination Date, the Declaration of Reserved Rights shall be null and void and of no further force or effect and shall be cancelled of record. 3. As a result of the termination of the Declaration of Reserved Rights, the City's Reconveyance Right is hereby terminated, released and of no further force and effect and the Developer shall no longer have any obligation to reconvey Vacated 7th Avenue to the City. 8547119692 -016 Current/13542669v1 021131200912:13 PM 4. All terms not defined herein shall have the meanings set forth in the Declaration of Reserved Rights. [SIGNATURE PAGES FOLLOW] 8547119692 -016 CurrerV135426690 021131200912:13 PM IN WITNESS WHEREOF, the parties hereby execute and deliver this Certification as of the Effective Date. ATTEST: By: City Clerk Approved as to Form: By: City Attorney STATE OF COUNTY OF The foregoing instrument was by , the He /She is personally known identification} as identification. CITY OF DELRAY BEACH, FLORIDA By :_ Name: Its: acknowledged before me this day of , 20_, of the CITY OF DELRAY BEACH, FLORIDA. to me or has produced (type of Signature of Person Taking Acknowledgment 8547/19692-016 Current/ 135426690 021131200912,13 PM WITNESSES: CDR ATLANTIC PLAZA, LTD., a Florida limited partnership Print Name: By: Delray Historic, Inc., a Florida corporation, its general partner Print Name: By: Print Name: Its: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 20, 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 or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547/19692 -016 CurrenV135426690 021131200912:13 PM ATLANTIC CENTER, LTD., a Florida limited partnership Print Name: By: Atlantic Center, Inc., a Florida corporation, its general partner Print Name: By: Print Name: Its: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 20_, by , the of Atlantic Center, Inc., a Florida corporation, the general partner of ATLANTIC CENTER, LTD., a Florida limited partnership. He /She is personally known to me or has produced identification. (type of identification) as Signature of Person Taking Acknowledgment 8547119692 -016 CurrenV135426690 02113/200912,13 PM EXHIBIT "A" to the Certification of Termination and Release Vacated 7a' Avenue 8547119692 -016 CurrerV135426690 021131200912;13 PM ALL THA T PORTION OF THE 40 FOOT ROAD RIGHT OF WA Y FOR N.E. 7TH AVENUE BOUNDED AS FOLLOWS' ON THE NORTH BY THE EASTERLY EXTENSION OF THE NORTH LINE OF BLOCK 116, TOWN OF LINTON (NOW DELRAY BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLA T BOOK 1,, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND ON THE SOUTH BY THE EASTERL Y EXTENSION OF THE SOUTH LINE OF SAID BLOCK 116 ORDER NO 04 -164 PARCEL 8 ABANDONMENT PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE. JUL Y of V, N, m� 4� tl i 0 i t� t\VI U j o. 8; U� 2� �f W. 4� o; EXHIBIT "191 Special Wananty Dee 0408119692 -016 CurrenV1349901602 02/151200905:15 PM This instrument prepared by and when recorded return to: BRIAN SHUTT, ESQ. CITY ATTORNEY'S OFFICE 200 N.W. 11T AVENUE DELRAY BEACH, FLORIDA 33444 SPECIAL WARRANTY DEED THIS SPECIAL WARRANTY DEED is executed by ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership (collectively, "Grantor ") whose address is c/o CDS International Holdings, Inc., 3299 N.W. 2nd Avenue, Boca Raton, Florida 33431, and is delivered to CITY OF DELRAY BEACH, a Florida Municipal Corporation ( "Grantee "), whose address is 100 N.W. I" Avenue, Delray Beach, Florida 33444. Grantor, for and in consideration of the sum of TEN & N0 1100 DOLLARS ($10.00) and other good and valuable consideration, paid to Grantor by Grantee, the receipt and sufficiency of which are hereby acknowledged, grants, bargains, sells, and conveys to Grantee and Grantee's successors and assigns forever, 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 easements, tenements, hereditaments, and appurtenances belonging to the Property; and Together With all buildings and other improvements now or in the future located on 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 Hold the same in fee simple forever. This conveyance is made subject to: (a) Applicable zoning ordinances and restrictions; and (b) Conditions, restrictions, reservations, limitations, and easements of record as of February 16, 2009, which are not reimposed by this deed. Grantor covenants that at the time 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 6422119692-01M ;uri riJi''.: 1 4 y _ 1/16/200 C`:';2- A' to the Property, and will defend it against the lawful claims and demands of all persons claiming by, through or under Grantor, but against none other. [SIGNATURE PAGES FOLLOWS] 2 8422119692 -016 CurrenY135471343 02/15/2009 05:33 PM Grantor has caused this instrument to be duly executed on 20 Signed, sealed and delivered in the presence of: Signature of Witness 1 Print Name of Witness I Signature of Witness 2 Print Name of Witness 2 STATE OF ) SS: COUNTY OF ATLANTIC CENTER, LTD., a Florida limited partnership By: ATLANTIC CENTER, INC., a Florida corporation, its General Partner By: Its: Print Name: The foregoing instrument was acknowledged before me this day of , 2009, by as of ATLANTIC 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. He /She is (check one) personally known to me or has produced as identification. Notary Public Signature Print Name (SEAL) State of at Large Commission No.: My Commission expires: 8422119692 -016 CurrenV135471343 02/15/2009 05:33 PM Grantor has caused this instrument to be duly executed on 2009. Signed, sealed and delivered in the presence of: Signature of Witness 1 Print Name of Witness 1 Signature of Witness 2 Print Name of Witness 2 STATE OF ) SS: COUNTY OF CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: DELRAY HISTORIC, INC., a Florida corporation, its General Partner By: Its: Print Name: The foregoing instrument was acknowledged before me this _ day of , 2009, by as of DELRAY HISTORIC, INC., a Florida corporation, the general partner of CDR ATLANTIC PLAZA, LTD., a Florida limited partnership, on behalf of the corporation and the limited partnership. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of at Large Commission No.: My Commission expires: 8422119692 -016 Currend135471343 02115/2009 05:33 PM EXHIBIT "A" The Property 8422/19692.016 CurrenV13547134v3 02115/200905:33 PM SKETCH OF DESCRIPTION EXHIBIT ';4 " SHEET 1 OF 1 sTREET v N N.8905847'E N 40.00' NO TES., NORTH LINE NORTH LINE THS IS NOT A SURVEY BLOCK 116 P.B. 50, PAGE 129 E = CENTERLINE N THE NORTH LINE OF BLOCK 116 IS ASSUMED TO BEAR N.89058'47'F P.B. w PLAT BOOK O� Wq zZ Q 06 m � SOUTH LINE S. W. CORNER BL OCK 116 P.B. 50, PAGE 129 NORTH RIGHT OF WA Y LINE a 40.Op' EAST A TLANTIC M A I/EIVLJE DESCRIPTION- ALL THA T PORTION OF THE 40 FOOT ROAD RIGHT OF WA Y FOR N. E. 77-H AVENGE BOLnDED AS FOLLOWS ON THE NORTH BY PAUL D. ENGLE THE EASTERL Y EXTENSION OF THE NORTH LINE OF BLOCK SURVEYOR & MAPPER #5708 116, TOWN OF LINTON (NOW DELRA Y BEACH), ACCORDING TO T NE PLA T THEREOF AS RECORDED IN PL T BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND ON DATE.• JULY 9, 2008 PE SOUTH BY THE EASTERL Y EXTENSION OF T -E SOUTH LINE 0 BRIEN, SUITFR & O'BRIEN, INC OF SAID BLOCK 116: CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE KI DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 8 ABANDONMENT (561) 276 --4501 (561) 732 -3279 w:i:11qM� Escrow Agreem ent 0408119692 -016 Current/1349901602 021151200905:15 PM ESCROW AGREEMENT THIS ESCROW AGREEMENT (this "Agreement ") is made and entered into as of February 17, 2009, by and between the CITY OF DELRAY BEACH, a Florida Municipal Corporation (the "City"), ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership (collectively, the "Developer ") and STEVEN D. RUBIN, ESQ. ( "Escrow Agent "). (The City, Developer and Escrow Agent are sometimes referred to herein individually as a "Party," and collectively as the "Parties. ") RF.C"TTAT,C- A. The City and the Developer are parties to that certain Declaration of Reserved Rights and Agreement Not to Encumber N.E. 7a' Avenue dated as of February 17, 2009 (the "Roadway Declaration of Reserved Rights). B. The City and Freecor Investments, Inc., a Florida corporation, Atlantic Center, Ltd., a Florida limited partnership, CDS ASJ Building, LLC, a Florida limited liability company, CDS 45, LLC, a Florida limited liability company and CDS Gas Station, LLC, a Florida limited liability company are parties to that certain Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley dated as of February 17, 2009 (the "Alley Declaration of Reserved Rights; and together with the Roadway Declaration of Reserved Rights, collectively referred to herein as the "Declarations of Reserved Rights"). C. Pursuant to the terms of the Declarations of Reserved Rights, if the Developer fails to timely satisfy the Development Conditions (as such term is defined in the Declarations of Reserved Rights), the City has the right to cause the Developer to reconvey Vacated 7th Avenue and the Abandoned Alleys to the City (the "City's Reconveyance Right "). D. To secure the City's Reconveyance Right, the Developer has caused to be executed and delivered to the Escrow Agent: (i) a fully executed special warranty deed for Vacated 7th Avenue; and (ii) a fully executed special warranty deed for the Abandoned Alleys, both to be held in escrow with Escrow Agent (collectively, the "Deeds "). . E. Escrow 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 8547119692 -016 CurrerV13546918v4 021191200910:23 AM 1. Recitals and Ca italized Terms. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. All initial capitalized terms used, but not defined, in this Agreement shall have the meaning set forth in the Declarations of Reserved Rights. 2. Regei2t and Deposit of Deeds. 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. I Recordation 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 Right, the Escrow Agent shall promptly 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 recorded Deeds to the City and the Developer, the Escrow Agent shall thereupon be released and discharged from any further duty or obligation hereunder. 4. Costs and Expenses. The Developer agrees to reimburse the Escrow Agent for all costs and expenses incurred by the Escrow Agent in serving as Escrow Agent hereunder, including, but not limited, reimbursement for all fees in connection with recording the Deeds. 5. Compliance with Court Orders. 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 to hold 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 or proceeding for leave to deposit the Deeds in a court of competent jurisdiction pending such determination. Escrow Agent shall be reimbursed for all costs and expenses of such action or 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 incur no liability whatsoever except for its willful misconduct or gross negligence, so long as Escrow Agent is acting in good faith. 7. Relationship 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. 8. 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: 2 8547119692 -016 CurrenV13546918v4 021191200910:23 AM As to City: City of Delray Beach 100 N.W. 1" Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561) 278 -4755 With a copy to: 200 N.W. 1st Avenue Delray Beach, Florida 33444 Attn: City Attorney Facsimile: (561) 278 -4755 As to Owner: Atlantic Center, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 CDR Atlantic Plaza, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 As to Escrow Agent: Steven D. Rubin, Esq. 980 North Federal Highway, Suite 434 Boca Raton, Florida 33432 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 for next day delivery; or (iii) the same day when sent by confirmed facsimile before 5:00 p.m. (Eastern time). 9. Successors and Assigns; Third Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns under the Declarations of Reserved Rights. This 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 Declarations of Reserved Rights. 10. Conflict with Declarations of Reserved Rights. With respect to the subject matter of this Agreement only, if any of the terms or provisions of this Agreement conflict with, or are inconsistent with, any terms or provisions of the Declarations of Reserved Rights, the terms and provisions of this Agreement shall control. 3 8547119692 -016 CurrenV13546918v4 02/19/2009 10:23 AM 11. Governing Law; Severabili y. This Agreement shall be governed by the laws of the State of Florida. If any term or provision of this Agreement is held to be or 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 or provisions of this Agreement, or the validity or enforceability of such affected terms or provisions at any other time or in any other jurisdiction. 12. Waiver of Trial by Jury. Each Party hereby waives its right to a trial by jury in any litigation or other court proceeding by any Party against any other Party with respect to any matter arising from or in connection with this Agreement. 13. Attorney's Fees. In connection with any litigation or dispute arising out of this Agreement, each party shall bear its own attorneys' fees and costs. 14. Entire Agreement; Amendments to Agreement. With respect to the subject matter of this Agreement only, this Agreement sets forth 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 on or prior to the date of this Agreement. No amendment or modification to any terms of this Agreement, or cancellation of this Agreement, shall be valid unless in writing and executed and delivered by 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 to be an original executed signature page; provided, however, that such Party shall deliver an t + P other Parties promptly thereafter. This A 'greement may be oA�.SAi.J.a.i signature page ��'i the vu.xv promptly � � 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 8547119692 -016 CurrenV13546918v4 02/19/2069 10:23 AM IN WITNESS WHEREOF, the City, Developer and Escrow. Agent have caused this Agreement to be 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 OF DELRAY BEACH, FLORIDA By:- Name: Its: 103 DUA- 1101 9 -* 7 ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc.., a Florida corporation, its General Partner By: Print Name: Its: CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: Delray Historic, Inc.., a Florida corporation, its General Partner By: Print Name: Its: I_x.Yy ��l +��hlll��il�l Steven D. Rubin, Esq. 8547119692 -016 Current/13546918v4 02!19/200910:23 AM FREECOR INVESTMENTS, INC., a Florida corporation By: Print Name: 8547119692 -016 CurrenV1354691W 021151200905:38 PM Exhibit K Relocated 7`h Avenue Termination Certificate 0408119692 -016 CurrerV13499016v12 021151200905:15 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 RELOCATED 7 AVENUE EASEMENT TERMINATION CERTIFICATE THIS RELOCATED 7" AVENUE EASEMENT TERMINATION CERTIFICATE (this "Certificate ") is issued as of the day of , 20 (the "Effective Date "), by the CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation in Palm Beach County, State of Florida (the "City"). RF,C 1TAT,C• A. CDR Atlantic Plaza, 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`h 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 , 2009, and recorded in Official Records Book , Page , of the Public Records of Palm Beach County, Florida (the "Easement Agreement "). 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 ($10.00), and other good 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 hereby 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 no 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. 1 8547119692 -016 Current1135433000 021131200912;22 PM Agreement. All terms not defined herein shall have the meanings set forth in the Easement [SIGNATURE PAGE FOLLOWS] 6547119692 -016 Currend135433000 02/13/200912:22 PM IN WITNESS WHEREOF, the City hereby executes and deliver this Certificate as of the Effective Date. ATTEST: By: City Clerk Approved as to Farm: By: City Attorney STATE OF COUNTY OF CITY OF DELRAY BEACH, FLORIDA By:_ Name: Its: The foregoing instrument was acknowledged before me this day of , 20�, by , the of the CITY OF DELRAY BEACH, FLORIDA. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 6547119692 -016 Current/135433000 021131200912:22 PM EXHIBIT "A" to the Relocated 7th Avenue Termination Certificate Relocated 7th Avenue 6547/19692 -016 Current113543300v1 02/13/2009 12:22 PM SKETCH OF DESCRIPTION ExI-01T ",a" SHEET 1 of 2 b W N.E. fST STREET U � o b o NORTH LINE � N P.B. 50, PAGE 129 N NORTH LINE 0 22118' BLOCK 116 S89 °58'15 "W. N.E. CORNER cn Z P.B. 50, PAGE 129 POINT OF a COMMENCEMENT �W W� W w 00 O � °o Ls z ATLANTIC PLAZA W q (PLA T BOOK 50, o o PAGE 72 9) � Q W °a ARC = 130.80' C.A. = 36 °3325" OJp RADIUS = 205.00' C.B. = S 18 °16'43 "W. NOTES.• ARC = 10528' THIS IS NOT A SURVEY C.A. = 36 °3325" RADIUS = 165.00' = CENTERLINE NORTH RIGHT C.B. = S 18 °16'43 "W. OF WAY LINE THE NORTH LINE OF SOUTH LINE A o SOUTH LINE PLAT BLOCK 116 IS ASSUMED BLOCK 116 0 o BOOK 50, PAGE 129 TO BEAR N.89°5847'F 0 o NORTH RIGHT 0 N v, OF WAY LINE P.B. = PLAT BOOK 0 �a � S. W. CORNER a DATE. JAN. 23, 2009 P.B, 50, PAGE 129 M M O BRIEN, SUITER & O'BRIEN, INC EAST ATLANTIC _ CERTIFICATE OF AUTHORIZATION #LB353 AVENUE SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE Kl DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 7TH AVENUE RE-ALIGNMENT (561) 276 -4501 (561) 732 -3279 SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 2 OF 2 DESCRIPTION FOR N.E. 77-H AVENUE RE-ALIGNMENT• A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE LYING WEST OF AND ADJACENT TO SAID ATLANTIC PLAZA AS SHOWN ON THE PLA T OF THE TOWN OF LINTON (NOW DELRA Y BEACH ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLA T BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE S89 058'15 "W., ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 221.18 FEET TO THE POINT OF BEGINNING, THENCE S.0000'001-., A DISTANCE OF 359.01 FEET TO A POINT OF CURVATURE CONCAVE TO THE NORTHWEST HAVING A CENTRAL ANGLE OF 36 °3325" AND A RADIUS OF 205.00 FEET, • THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 13080 FEET TO A POINT OF REVERSE CURVATURE CONCAVE TO THE SOUTHEAST HAVING A CENTRAL ANGLE OF 36 °3325" AND A RADIUS OF 165.00 FEET, THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 105.28 FEET,' THENCE S.0 °00'00'E, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ATLANTIC PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET AT ALL ANGLE POINTS AND TO TERMINATE AT THE NORTH AND SOUTH LINES OF SAID PLAT OF ATLANTIC PLAZA AND THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER 115708 DATE• JAN. 23, 2009 O BRIEN, SUITER & 0 BRIEN, INC CERTIFICATE OF AUTHORIZATION #L B353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE.- PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE KI DELRAY BEACH FLORIDA 33445 ORDER NO. 0 4 -164 7TH AVE RE- ALIGNMENT (561) 276 -4501 (561) 732 --3279 This instrument was prepared by and should be returned to: Brian Shutt, Esq. City Attorney's Office 200 N.W. 1st Avenue Delray Beach, Florida 33444 I11I �� III II ill II 111 � III II I{ I III III II � � �� I III `: _ -� f CFN 20090116384 OR BK 33166 PC 1533 RECORDED 04/08/2009 10:36:45 Palm Beach County, Florida Sharon R. Bock, CLERK & CO PTRQLLER Pgs 1533 - 1566; (34pgs) EASEMENT AGREEMENT (Vacated 7th Avenue Easement} THIS EASEMENT AGREEMENT (this "Agreement ") made as of February 17, 2009 (the "Effective Date "), among the CITY OF DELRAY BEACH, FLORIDA (the "Ci ' }, with a mailing address of 100 N.W. 1st Avenue, Delray Beach, Florida 33444, a Florida municipal 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 "). RECITALS: 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 that certain roadway more particularly described as follows ( "Vacated 7th Avenue "): See Exhibit "A" attached hereto and made a part hereof. The Abandonment Resolution has been recorded 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 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 constituting the entire Vacated 7th Avenue. C. The Owner, with respect to the portion of the Vacated 7th Avenue, which such Owner owns, desires to grant to the City: (i) a perpetual exclusive roadway easement for the unobstructed and unimpeded vehicular and pedestrian traffic for ingress and egress, and over, upon, and across Vacated 7 t Avenue, and for the City to exercise its governmental and quasi - governmental functions with respect to Vacated 7th Avenue, including without limitation, traffic regulation, and other uses and purposes as may be permitted by the City's Code of Ordinances or by resolutions adopted by the City Commission with respect to public rights -of -ways located 7776119692 -016 CurrenY13504359A 02/13/2009 12:31 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 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 Vacated 7th Avenue by members of the public, and City officers, agents, employees or contractors, and (ii) a perpetual non - exclusive subsurface utility easement over and under Vacated 7th Avenue, each for the uses and purposes and upon the terms and conditions herein contained. D. In connection with the City approving the Abandonment Resolution, and pursuant to the terms and conditions of that certain Financial Guarantee & Agreement, dated February 17, 2009, between the City and Atlantic Center, Ltd., a Florida limited partnership ( "Atlantic Center'), Atlantic Center may construct a relocated 7th Avenue, between 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. Relocated 7th Avenue is legally described as follows: See Exhibit "B" attached hereto and made a part hereof. E. This Agreement shall remain in full force and effect until Relocated 7th Avenue 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 forth in their entirety. 2. Roadway Easement. 2.1 Grant of Roadway Easement. Subject to the terms of Section 10 of this Agreement, 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 Vacated 7th Avenue for the 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 for the proper installation, maintenance, repair and replacement of a paved roadway and its subsurface components; 2 7776119692 -016 CurrenV1350435M 02/1312009 12:31 PM b. 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. 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 Vacated 7th Avenue by members of the public, and City officers, agents, employees or contractors, including, without limitation, closing Vacated 7th 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. C. Notwithstanding 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 7th Avenue, as specifically set forth 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 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 governmental or 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 week, twenty -four (24) hours per day, except as otherwise authorized by the City in the exercise of its governmental or 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 City may install and maintain, at its expense, public 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 7776/19692 -016 CurrenV1360435M 02/1312009 12:31 PM 2.6 Obstruction. No 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. 2.7 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 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 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 interest at the rate of eighteen percent (18.0 %) 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 2.9 of this Agreement. This Roadway Easement shall be an ingress /egress easement within the meaning of Florida Statutes Chapter 197.572. 2.8 Intentionally Omitted. 2.9 The Ci 's Remedies Upon a Default. In the event the Owner causes damage or destruction to the Roadway Easement or any improvements thereon (the "Owner Damn e "), or as a result of the negligence or misuse of the retained servient 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 and/or 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 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 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 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 emergency), may, but it is not obligated to, enter onto any portion of the Roadway Easement to perform all necessary construction, repair, maintenance, replacement and operating work and may assess Owner for the reasonable cost of said work. Owner shall pay the cost of said work within thirty (30) days after the City delivers to the Owner ( "Payment Date "): (i) a written statement setting forth the amount of the costs and expenses expended by the City; and (ii) back up information and detail evidence supporting such expenses, including without limitation paid invoices for all such work, if any. The Payment Date shall not 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 the foregoing amount is not paid on or before the Payment Date, then said amount shall bear interest M 7776/19692 -016 Current/13504359v6 02/131200912:31 PM 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 record 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 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 Palm 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 force and effect. Such lien may be foreclosed in the same manner as a mortgage and in accordance with law. Reimbursement of such work costs 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. 2.10 Binding Effect. The Roadway Easement is an easement appurtenant to 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 of Owner holding the servient estate. 2.11 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 codes. 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). For purposes of this Agreement, "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 or encumbrance, loss, damage, cost, or expense. 2.12 Warranty. The Owner warrants that: (i) the Owner is seized of fee simple title to Vacated 7ffi 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 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. 2.13 Traffic Enforcement 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 "C ". 3. Utility Easement. 3.1 Grant of Easement. Subject to the terms of Section 10, 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 of the City, a non- 5 7776119692 -016 CurrenV1350435M 02/1312009 12:31 PM exclusive easement (the "Utility Easement ") under and below Vacated 7th Avenue, for the purpose of installing, maintaining, repairing, replacing and restoring normal municipal utilities such as pipes, cables, electrical wires, cable television wires, conduit, plumbing, and/or appurtenances relative to 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 "Utilities" and such term shall not include nor grant any easement rights to or in favor of any privately owned utilities either directly or 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 fiirther easement rights in favor of Private Utilities is expressly reserved to the Owner. 3.2 The Owner warrants that: (i) the Owner is seized of fee simple title to Vacated 7th Avenue and has the right to convey the Utility 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. Use of Vacated 7th Avenue by Owner. The Owner shall have the right, from time to time, to temporarily close portions of Vacated 7th 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 Closure "). In performing 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 to, 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 for a period in excess of one hundred and twenty (120) days, in aggregate, during the term of this Agreement. S. Si ra e. The City, at its sole cost and expense, may install, maintain and operate signage on Vacated 7th 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. 6. Default and Remedies. 6.1 Default. The failure of the Owner or the City to observe or perform any of their respective obligations under this Agreement (the "Defaulting Party") within thirty (30) days after receipt of written notice from the other party specifying the nature of the failure (the "Non- Defaulting 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 commences such cure promptly after receiving such written notice, and is diligently pursuing such cure to 0 7776/19692 -016 CurrenV13504359A 021131200912:31 PM completion. This Section 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 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 breach shall not be an available remedy unless otherwise 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, except as specifically permitted in 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 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. 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 100 N.W. 1St Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561) 278 -4755 With a copy to: 200 N.W. 1St Avenue Delray Beach, Florida 33444 Attn: City Attorney Facsimile: (561) 278 -4755 As to Owner: Atlantic Center, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2 d Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 CDR Atlantic Plaza, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2 °d Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 7 7776119692 -016 Current1135043594 02/131200912:31 PM 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 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 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 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 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 to Execute; Representations. The Owner and the City each warrant and represent to the other that the individuals signing this Agreement on 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. 8.6 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 be treated as an original. 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 or manner, a public dedication of any right or interest of the Owner in Vacated 7"' Avenue whatsoever, but rather are private rights for the sole use and benefit of 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, but such limitation shall not affect in any manner any other rights or remedies which either the Owner or the City may have hereunder 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 n. 7776/19692 -016 CurrenV1350435M 02113/200912:31 PM 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, 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. 8.10 Non - 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 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 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. 8.11 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. 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 or the Owner, as the case may be, their respective successors, assigns and/or grantees. 8.13 Force Majeure. If any party to this Agreement is delayed, hindered in, 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 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 conditions preventing the performance of work as certified to by an architect, war, act of terrorism, or other reason beyond that parry's reasonable control and for which, in each of the aforesaid circumstances, the parry is diligently and in good 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 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 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. 8.14 Joinder 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 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 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. 00 7776119692 -016 Current11350435M 0211 312009 12:31 PM 8.15 Right to Pledge. 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 for any debt and all rights acquired by such secured party under any such security. From and after the date any deed of trust beneficiary, mortgagee or secured parry comes into possession of the Owner's rights under this Agreement, such deed of trust beneficiary, mortgagee or secured parry shall possess all rights of the Owner under this Agreement 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 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 No Merger. It is expressly understood and agreed that the parties do not intend that there be, and there shall in no event be, a merger of the dominant and servient tenements in Vacated 7h 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 Preparation. 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 more 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 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. 8.20 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 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 operations over, upon or under the Roadway Easement 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. The Owner acknowledges however, that the Roadway Easement will be utilized for parking and driving vehicles which may leak oil, gasoline, or 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. 11#1 7776119692 -016 Current1135043594 021131200912:31 PM 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. 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 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 tort limits of liability set forth in Fla. Stat. 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 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. 10. Termination. 10.1 This Agreement shall terminate at such time as the engineer from the City (the "City Engineer") records in the Public Records of Palm Beach County, Florida the Certificate of Substantial Completion (the "Certificate of Substantial Completion ") in the farm attached hereto as Exhibit "D ". 10.2 Intentionally Omitted. 10.3 Upon recordation of the Certificate of Substantial Completion, 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 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 of this Agreement. 10.4 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 10.1 above is terminated and thereafter, this Agreement shall be of no further force and effect. 11 7776119692 -016 Current1135043594 021131200912;31 PM [EXECUTION PAGES TO FOLLOW] 12 7776119692 -016 Current11350435M 02/1312009 12:31 PM IN WITNESS WHEREOF, the parties to this Agreement set their hands and seals the day and year first above written. City Attorney STATE OF COUNTY OF )QA lr-a OCC CITY OF DELRAY BEACH, FLORIDA Bye Name: 1(R C— 11 ; Its: ry) C,q C)�' The foregoing instrument was acknowledged before me this ?, day of Fe- r -uar , 2009, by A i #q 1E 1 l a 4_, the M ca ca r y- of the CITY OF DELRAY BEACH, LORIDA. He /She is personally known to me Signature Person TakirbdAcknowledgrnent Catherine Inglese COMmission # D0565576 ExTres r�- July 22,201C) 8"C'" Troy Fain•IMranee,ine.8tl0.385.7oi9 7776119692 -016 CurrenV135043594 021131200912:31 PM WITNESSES: Prim ame' A s Print STATE OF fi 0 6 A COUNTY OF Tal 1- 111" 1.►� OM CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: Delray Historic, Inc., a Florida corporation, its general partner B���� Print Na e:_ Its:%/ The foregoing instrument was ackqowledged before me this je day of (/ , 200 , by (MAQthe of Delray Historic, Inc., a Florida c ation, the general partner of CDR ATLANTIC PLAZA, LTD., a Florida limited partnership. he is personally_known to me or has produced (type of identification) as identification. - 5 j4I �.. W, KW A. 4UIGM W colulMISSIaH # X13 nays EXPIRES: ApA 13, 2012 7776119692 -016 Current11350435M 02/13/2009 03 :22 PM OWNER ATLANTIC CENTER, LTD., a Florida limited partnership i� By: Atlantic Center, Inc., a Florida corporation, its general partner B –� Print N�a e: Its: 2 G1 STATE OF fi ()�'( ��— COUNTY OF C V- ukk The foregoing instrument was acknowle ged before me this by Will'i a Ik R. Mj I W(the P U& bUA I of Atlantic the general partner of ATLANTIC CENTER, LTD., a Flor personally known to me or has produced identification. 1H Iy f iri KASEYA.QUIGLEY MY COMMISSION # AA 778546 EXPIRES: April 13, 2012 BondedThortSatwPu4bCrindenmiers eday of �� , 200_, Center, Inc., a Florida c tion, ida limited partnership. ZHele is (type of identification) as r AA Si ature Person aking lcn wledgment 7776119692 -016 Currend135043594 02/13/2009 03,22 PM Exhibit "A" Le Vth Avenue ,41 Dese 7776119692 -016 Current113504359v6 02/13/2009 03:22 PM SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 1 OF 1 NE. 1ST STREET � o 0 ` N.89 °5847'E 40.00' NOTES- NORTH LINE NORTH LINE TI #S IS NOT A SURVEY BLOCK 116 P.B. 50, PAGE 129 e = CENTERLINE O THE NORTH LINE OF BLOCK 116 N 15 ASSUMED To BEAR N.8905847'E w �� P.B. =PLAT BOOK 0 O o �,5 C7 m � SOUTH LINE S W, CORNER BLOCK 116 %P.B, 50, PAGE 129 / NORTH RIGHT OF WA Y LINE 40.00' EAST ATLANTIC A VENUE DESCRIPTION: ALL THA T PORTION OF THE 40 FOOT ROAD RIGHT OF WA Y FOR N.E. 77H AVENUE BOUNDED AS FOLLOWS- ON THE NORTH BY PAUL D. ENGLE 116, TOWN OF L VTONN(NIOW DELRA BEACH), ACCORDIN SURVEYOR &MAPPER X5708 G TO THE FLA T THEREOF AS RECORDED IN PLA T BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND ON DATE. • JULY 9, 2008 THE SOUTH BY THE EASTERLY EXTENSION OF THE SOUTH LINE O'BRIEN, SUITER & O'BRIEN, INC OF SAID BLOCK 116. CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE: PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE K1 DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 8 ABANDONMENT (561) 276 -4501 (561) 732 -3279 o; 8. o, 7 i m N; o 4i U� z o? a Exhibit "B" Legal Description of Relocated 7t' Avenue 7776119692 -016 GurrenV1350435M 02!1 312009 12:31 PM ; 8� N. 4; 8N; \ai w� w� �1 U; Q; U. r� �i 0' EAST A TLAN77C A VEWE SKETCH OF DESCRIPTION EXHIBIT ';4" SHEET 2 OF 2 DESCRIPTION FOR NE 77H AVENUE RE ALIGNMENT A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE LYING WEST OF AND ADJACENT TO SAID ATLANTIC PLAZA AS SHOWN ON THE PLA T OF THE TOWN OF LINTON (NOW DELRA Y BEACH) ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 7 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE S89 058'15 "W., ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 221.18 FEET TO THE POINT OF BEGINNING; THENCE S 0°00'00'E, A DISTANCE OF 359.01 FEET TO A POINT OF CURVATURE CONCA VE TO THE NORTHWEST HA VING A CENTRAL ANGLE OF 36 03325" AND A RADIUS OF 205.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CURVATURE CONCAVE TO THE SOUTHEAST HAVING A CENTRAL ANGLE OF 36 03325" AND A RADIUS OF 165.00 FEET, THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 105.28 FEET' THENCE S 0 °00'00'E, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ATLAN77C PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET A T ALL ANGLE POINTS AND TO TERMINA TE A T THE NORTH AND SOUTH LINES OF SAID PLA T OF A TLANTIC PLAZA AND THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE.• JAN. 23, 2009 O'BRIEN, SUITER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION #LBJ5J SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE K1 DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 7TH AVE RE- ALIGNMENT (561) 276 -4501 (561) 732 -3279 Exhibit "C" Traffic Enforcement Agreement 7776119692 -016 Current11350435M 02/13/2009 12:31 PM TRAFFIC ENFORCEMENT AGREEMENT (Vacated 7th Avenue) WHEREAS, 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 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 influence on the community; and WHEREAS, F.S. 316.006(2),(b),(1) allows for such enforcement on private roads + d7 1 the r b ' 1., ,7 � pursuant tV u YV�R1lL4i1 a�'�1c1i111t+11L aiJprVv�+ U?'� LilCi 11LJ' VoJ.Ai11A1ssiV11 w11ECi11 �JrVv11.4�+s 1V1 reimbursement 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 forth below, the parties hereto do hereby agree as follows: I. The CITY does hereby agree to enforce all state and municipal traffic laws on Vacated 7th Avenue, which is described on Exhibit "i" attached hereto. 2. The enforcement of the traffic laws 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 costs of the traffic control and enforcement incurred by the CITY. 4. The speed limit shall be that set by Florida Statute 316.183(2) and 316.189(1) of 30 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. 316.189(3). 6. Stop signs must conform to the Manual and specifications of the United States Department of Transportation as stated in Florida Statute 316.006(2)(b)(3). 7. The Owner shall defend, indemnify and hold harmless the CITY, its agents, officers, officials and employees from any and all claims, suits, causes of actions or any claims whatsoever made arising from any and all acts by Owner of traffic control and traffic 8422/19692 -016 CurrenV13571711v2 02/13/2009 03:12 PM 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 immunities granted to the CITY under F.S. 768.28. This indemnification shall survive the cancellation of this Agreement. 8, The Owner shall provide liability insurance to cover the indemnification in the amount of $1,000,000.00 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 force and effect for as long as the certain Vacated 7 1 Avenue Easement between City and Owner, which is recorded in the Public Records of Palm Beach County, Florida, is in effect. 10. 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. -Tr ` x mr Tr P' GES LSIG AI Jilt.. t'a` G S FOLLO v J 8422/19692 -016 CurrenV13571711v2 02/13/20090112 PM 2 This Agreement is made and entered into on this day of )2009. ATTEST: CITY OF DELRAY BEACH, FLORIDA City Clerk Rita Ellis, Mayor Approved as to form and legal sufficiency: Catherine M. Kozol, asst. City Attorney 8427119692 -016 Currentl13571711v2 02/13/2009 03:12 PM �8 .1► ATLANTIC CENTER, LTD., a Florida Iimited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner By: Print Name: Its: 8422119692 -016 CurrenY13571711v2 02/131200903:12 PM OWNER CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: Delray Historic, Inc., a Florida corporation, its general partner By: Print Name: Its: 8422119692 -016 CurrenV13571711v2 021131200903:12 PM EXHIBIT "I" Vacated 7th Avenue 8422119692.016 CurrenY13871711v2 02113/20090112 PM SKETCH OF DESCRIPTION EXHIBIT "A" SHEET 1 OF 1 N,E IST STREET o N.89 °58'47 "E. 40.00' NORTH LINE-' I `-NORTH LINE BLOCK 116 1 P.B. 50, PAGE 129 O ti �w W ti QW. Eziw m � SOUTH LINE S. W. CORNER BLOCK 116 P.B. 50, PAGE 129 NORTH RIGHT OF WAY LINE EAST ATLANTIC A VENUE DESCRIPTION ALL THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE BOUNDED AS FOLLOWS. ON THE NORTH BY THE EASTERLY 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 SOUTH BY THE EASTERLY EXTENSION OF THE SOUTH LINE OF SAID BLOCK 116. NOTES. THIS IS NOT A SURVEY E = CENTERLINE THE NORTH LINE OF BLOCK 115 IS ASSUMED TO BEAR N.8905847'E P.B. = PLAT BOOK PAUL D. ENGLE SURVEYOR & MAPPER ,5708 DA TE.• JULY 9, 2008 O'BRIEN, SUITER & O'BRIEN, INC CERTIFICATE" OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE- PAUL D. ENGLE 955 N, W. 17TH A VENUE, SUITE K DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 8 ABANDONMENT (561) 276 45D1 {56�) 732 -3279 Exhibit "D" Certificate of Substantial Completion Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATE OF SUBSTANTIAL COMPLETION OF CONSTRUCTION OF RELOCATED 7TH AVENUE THIS CERTIFICATE OF SUBSTANTIAL COMPLETION OF CONSTRUCTION (this "Certificate ") is issued as of the day of , 20 City Engineer for the City of Delray Beach, whose address is "City Engineer "). WITNE S S ETH: 7 (the WHEREAS, this Certificate is issued pursuant to Section 10.1 of that certain Easement Agreement, dated as of , 2009, between the City of Delray Beach, Florida (the CDR Atlantic Plaza, 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 of Palm Beach County, Florida (the "Easement Agreement'); WHEREAS, 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 7th 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 10.1 of the Agreement. NOW, THEREFORE, in accordance with the Agreement 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 Engineer hereby states the following: 7776119692 -016 CurrenV1350435946 021131200912:31 PM 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 and inspected the construction of Relocated 7ffi Avenue. 3. The City Engineer certifies and confirms that the construction of Relocated 7'h Avenue has been substantially completed. 4. All terms not defined herein shall have the meanings set forth in the Easement Agreement. [SIGNATURE PAGE FOLLOWS.] 7776119692 -016 CurrenV1350436M 02/13/2009 12:31 PM IN WITNESS WHEREOF, 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 COUNTY OF CITY ENGINEER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me this day of 20 , by , the City Engineer for the City of Delray Beach. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 7776119692 -016 CurrenV135043594 021131200912:31 PM EXHIBIT "A" to the Certificate of Substantial Completion of Construction of Relocated 7t' Avenue Relocated 7t' Avenue 7776119692 -016 CurrenV1350435M 02113!200912;31 PM 8� 8� S N h � N. A Oi L w+ wj q; v0` Q` a� U. zi E; 01 6' U W� 3� N' 4< 0; i SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 2 OF 2 DESCRIPTION FOR N.E. 77H A VENUE RE-ALIGNMENT A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH A VENUE L YING WEST OF AND ADJACENT TO SAID A TLANTIC PLAZA AS SHOWN ON THE PLAT OF THE 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, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE S 89 °58'15" W., ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 22118 FEET TO THE POINT OF BEGINNING; THENCE S000010017., A DISTANCE OF 359.01 FEET TO A POINT OF CURVATURE CONCAVE TO THE NORTHWEST HAVING A CENTRAL ANGLE OF 36 03325" AND A RADIUS OF 205.00 FEET THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CURVA TUBE CONCAVE TO THE SOUTHEAST HA VING A CENTRAL ANGLE OF 36°33'25" AND A RADIUS OF 165.00 FEET, THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 10528 FEET,• THENCE 5:0 °00'00'E, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ATLANTIC PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT: THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET AT ALL ANGLE POINTS AND TO TERMINATE AT THE NORTH AND SOUTH LINES OF SAID PLAT OF ATLANTIC PLAZA AND THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA. Exhibit "D" To Agreement for the Abandonment and Relocation of N.E. 7" Aven 1,egal Description of Relocated 7th Avenue 0408119692 -016 Gurrertl13490934v11 02/13/200910:56 AM SKETCH OF DESCRIPTION EXH13T '�4" SHEET 1 OF 2 N.E� 1ST STREET � 0 0 o NORTH LINE P.B. 50, PAGE 129 N NORTH LINE 0 BLOCK 116 S89 °58'15 "W. N.E. CORNER 2 vi P.B 50, PAGE 129 o w POINT OF a COMMENCEMENT �W W= W z �o 09 �o t�5o z o w ATLANTIC PLAZA (PLA T BOOK 50, o Q o PA GE 129) � o Zoo 40 o ARC = 130.80' C.A. = 36 3325 RADIUS = 205.00' C.B. = S.18°16'43 "W. NOTES.• ------ ARC = 105.28' THIS IS NOT A SURVEY C.A. = 36 °3325" NORTH RIGHT RADIUS = 165.00' = CENTERLINE OF WAY LINE C.B. = S 18 °16'43 "W. W THE NORTH LINE OF SOUTH LINE o SOUTH LINE PLAT BLOCK 116 IS ASSUMED BLOCK 116 o a BOOK 50, PAGE 129 TO BEAR N.89 °58'47'E o NORTH RIGHT 0 cry ° OF WAY LINE P.B. = PLAT BOOK 0 S.W. CORNER o DATE• JAN, 23, 2009 P.B. 50, PAGE 129 �r O BRIEN, SUITER & O'BRIEN, INC AST VENUE A I -ANTIC CERTIFICATE OF AUTHORIZATION #LB353 A T SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE K DEL RAY BEACH FLORIDA 3'3445 ORDER NO, 04 -164 7TH AVENUEE RE- ALIGNMENT' (561) 276 -4501 (561) 732 -3279 SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 2 OF 2 DESCRIPTION FOR N.E. 7TH A VENUE RE-ALIGNMENT A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BFA04 COUNTY FL OPIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR NF 7TH A VEMJE L PING WEST OF AND ADJACENT TO SAID A TLANPC PLAZA AS SHOWN ON THE PLAT OF THE 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, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE S.89 °58'15 "W., ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 22118 FEET TO THE POINT OF BEGINNING; THENCE S.0000'0017, A DISTANCE OF 359.01 FEET TO A POINT OF CURVATURE CONCAVE TO THE NORTHWEST HAVING A CENTRAL ANGLE OF 36 °33'25" AND A RADIUS OF 205.00 FEET THENCE SOUTHWESTERL Y ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CUR VA TURF CONGA VE TO THE SOUTHEAST HAVING A CENTRAL ANGLE OF 36 033'25" AND A_RADIUS OF 165.00 FEET, THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 105.28 FEET; THENCE S.0000'00'7, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ATLANTIC PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT. THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET AT ALL ANGLE POINTS AND TO TERMINA TE A T THE NORTH AND SOUTH LINES OF SAID PLA T OF A TLANTIC PLAZA AND THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA, PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE; JAN. 23, 2009 O'BRIEN, SUITER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE., PAUL 0. ENGLE 955 N. W. 17TH A VENUE, SUITE K DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 7TH AVE RE- ALIGNMENT (561) 276 -¢501 (561) 732 -3279 This instrument was prepared by and should be returned to: Brian Shutt, Esq. City Attorney's Office 200 N.W. 1 st Avenue Delray Beach, Florida 33444 CFN 20090116385 OR BK 23166 PG 1507 RECORDED 04/08/2009 10:36:45 Palm Beach County, Florida Sharon R. Back, CLERK & COMPTROLLER Pgs 1567 - 1605; (39pgs) EASEMENT AGREEMENT (Relocated 7 Avenue Easement) THIS EASEMENT AGREEMENT (this "Agreement ") made as of February 17, 2009, by and between the CITY OF DELRAY BEACH, FLORIDA, with a mailing address of 100 N.W. 1 st 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 roadway known as N.E. 7t11 Avenue in Delray Beach, Florida (the "Abandonment Resolution ") and, in connection therewith, a relocated 7th Avenue may be constructed, between 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. Relocated 7tn Avenue is legally described as follows: See Exhibit "A" attached hereto and made a part hereof. B. In connection with the construction of Relocated 7a' Avenue, the Owner has agreed, among other things, to grant to 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 Relocated 7th Avenue, and for the Cit� to exercise its governmental and quasi - governmental functions with respect to Relocated 7' Avenue, including without limitation, traffic regulation, and other uses and purposes as may be permitted by the City's Code of Ordinances or by resolutions adopted by the City Commission with respect to public rights-of- ways located 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 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 Relocated 7b 0408119692 -016 Currentl13489609v14 02/1312009 02:12 PM 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). NOW, THEREFORE, for an in consideration of the sum of TEN AND N0 1100 DOLLARS ($10.00) 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 are 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 upon the substantial completion of construction of Relocated 7h Avenue by Owner (as evidenced by the recording of the "Certificate of Substantial Completion" by the City Engineer in the form attached hereto and made part hereof as Exhibit "B ") (the "Effective Date ") and perpetually thereafter, an exclusive unimpeded and unobstructed easement for the use and benefit of the Roadway Grantees (the "Roadway Easement") over, upon, and across Relocated 7ffi Avenue for the 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 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 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. 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 7ch Avenue by members of the public, and City officers, agents, employees or contractors; including, without limitation, closing Relocated 7`h 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. 2 0408119692 -016 CwrenV1348960904 02/13/2009 02:12 PM e. Notwithstanding the foregoing, the grant of an exclusive perpetual easement, as set forth herein, shall not preclude the Owner of fee simple title to the Relocated 7a' Avenue from exercising its rights or performing its obligations hereunder with respect to Relocated 7a' Avenue, as specifically set forth in this Agreement. 2.2 Initial Construction. Except as set forth herein, the initial construction of the Roadway Easement and related improvements thereon (the "Initial Construction ") shall be made by Owner, at Owner's sole cost and expense. Owner shall, in compliance with all applicable governmental rules, 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, 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 improvements to the Roadway Easement beyond those improvements constructed as a part of the Initial Construction; (iii) pay for any City installed holiday or festival lights, banners or decorations; or (iv) pay for the costs of electricity for street lighting not installed by the Owner. 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 governmental or quasi - governmental functions. 2.4 Right's 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 week, twenty -four (24) hour per day, except as otherwise authorized by the City in the exercise of its governmental or 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 not apply to any parking charges or valet fees for parking and/or valet services occurring on private property adjacent to the Roadway Easement.) The City may install and maintain, at its expense, public 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 however, the Owner shall retain the right to tow vehicles located on private property that is not a part of the Roadway Easement in accordance with all applicable law. 2.6 Obstruction. No obstruction of the free flow of pedestrian and/or vehicular traffic or use of the Roadway Easement for parking shall be permitted or caused by the Owner. 2.7 Maintenance. The Owner shall cause any and all maintenance, repairs or replacements to be made to the Roadway Easement, as may be necessary or appropriate from 3 0408119692 -016 CurrenV1348960904 021131200902:12 PM time to time, in a good and workmanlike manner and in accordance with the applicable standards for 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 Owner, striping, markers, directional signs, mowing, weeding, trimming 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, or damage caused by or resulting from the construction or performance of any such work. 2.8 Insurance. a. The Owner shall purchase and maintain "all risk" property damage insurance, (including, to the extent available, at commercially reasonable prices, flood and wind) up to the full replacement cost of the Roadway Easement improvements. b. Intentionally Omitted. C. The Owner shall purchase and maintain General Liability Insurance to cover legal liabilities arising from the Roadway Easement. The combined bodily injury and property damage limits shall not be less that $5,000,000 per occurrence with an annual aggregate of $5,000,000. The Owner may use umbrella/excess liability insurance to meet these requirements. d. Intentionally Omitted. e. All insurance policies required by this Section shall have an A.M. Best rating of at least A -NII and shall provide for a least thirty (30) days written notice by the Owner, or its insurer(s) 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 ISO endorsement, or its equivalent, on the Owner's liability insurance policies required under this Agreement. g. Not 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 Certificates shall be provided to the City at least ten (10) days prior to the expiration of any policy. h. To the extent permitted by law, the Owner and its insurers waive (and will so endorse their insurance policies) all rights of subrogation they may have against the City, its employees, officers, directors, and agents for 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, 0 0408119692 -016 CurrenY1348960904 02/13/2009 0212 PM any matter that is caused in whole or in part by the sole 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 of 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 on 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 be subject to the following provisions: a. The indemnity shall cover the costs and expenses of the indemnities including, without limitation, reasonable attorney's fees, disbursements, and court costs, related to any actions, suits, or judgments incident to any of the matters covered by such indemnity. 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 forty -five (45) days after it has notice of such Claim, but failure to notify the indemnitor shall in no case prejudice the rights of the indemnitee 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 or 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 indemnitor under this Agreement shall be conclusively established by that settlement, the amount of such liability to include both the settlement consideration and the reasonable costs and expenses, including attorney's fees, disbursements and court costs, incurred by the indemnitee in effecting the settlement. C. For purposes of this Agreement, "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 or encumbrance, loss, damage, cost, or 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. 2.10 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 Easement and improvements on the Roadway Easement, and provide evidence of the same to City. If those amounts are not timely paid by the Owner, the City may (but 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 9 0408119692 -016 CurrenV1348960904 021131200902:12 PM interest at the rate of eighteen percent (18.0 %) per annum on the amounts so paid 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 forth in Section 2.13 of this Agreement. The Roadway Easement shall be an ingress /egress easement within the meaning of Florida Statutes Chapter 197.572. 2.11 Casualty. 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 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 representatives, in which event, the City shall be responsible for the costs of repair and restoration of the Roadway 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 on the Roadway Easement by which this Agreement imposes an obligation upon the Owner to maintain, repair and replace, and as a consequence, the City's easement rights created by this Agreement become impaired 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 (30) days prior written notice to Owner 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 perform all necessary construction, repair, maintenance, replacement and operating work and may assess the Owner for the reasonable cost of such work. 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. The Owner shall pay the cost of said work within thirty (30) days after the City delivers to the Owner (the "Payment Date "): (i) a written statement setting forth the amount of the costs and expenses expended by the City; and (ii) back up information and detail evidence supporting such expenses, including without limitation paid invoices for all such work. The Payment Date shall not 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 on or before the Payment Date, then said amount shall bear interest at simple interest rate of eighteen percent (18.0 %) per annum from and after the 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 under 0 0408119692 -016 CurrenY1348960904 02/13/2009 02:12 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 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 may be 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 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 to the City, at the Owner's sole cost and expense, a maintenance bond, a letter of credit, cash collateral, guarantee or other surety (collectively, the "Surety ") at the Owner's election, subject to the consent of the City, not to be unreasonably withheld, conditioned or delayed. The Surety shall provide that if the Owner fails to timely and properly maintain, repair or replace the Roadway Easement in accordance with the terms of this Agreement, the City shall be entitled to payment from the Surety for 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 $100,000 (as adjusted for the cost of living for such ten (10) year period every ten (10) 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 7th Avenue. The form and content of the Surety and the issuing institution, if any, shall be 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 ( "POA "), the City shall evaluate, upon the Owner's written request, whether the creation of the POA provides the City with reasonably equivalent security for the Surety. The City may accept the POA as reasonably equivalent security in its sole discretion. 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 POA 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 POA at anytime the Surety is in place by the Owner or the POA and the City has approved the POA as set forth above. Upon such conveyance of Relocated 7th Avenue and/or assignment/delegation to a POA, the Owner hereunder shall be released from the obligations and liabilities under this Agreement 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 Agreement arising after such transfer, assignment or delegation. Prior to any conveyance or assignment/delegation 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 of Palm Beach County, if so desired. 2.14 Binding Effect. The Roadway Easement is an easement appurtenant to 7 0408119692 -016 CurrenV130960904 021131200902:12 PM the City's public right-of-ways and shall ran in favor of the City, and shall be binding upon the Owner and its successors and assigns holding the servient estate. 2.15 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 codes. Each contractor performing work for Owner shall be reasonably insured, without cost to the City and the City will be indemnified and held harmless for any Claims that may arise out of the performance of the work, solely to the extent and manner set forth in Section 229 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 or personal property damage as a result of such defective work (but not including the repair or correction of any defective work). 2.16 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 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. 2.17 Traffic Enforcement 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 "C ". 3, Utility Easement. 3.1 Grant of Easement. The Owner, as grantor, hereby grants and conveys to 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 "Utility Easement ") within the unimproved subsurface areas under and below Relocated 7th Avenue, excluding the areas under and below any tunnels which are constructed as part of the "Subsurface hnprovements" (as defined in Section_ _3_.3_) (the "Utility Easement 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, and/or 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 or 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 limited by the provisions of Sections 3.2 -3.5 below. M 0408119692 -016 CurrenV1348960904 021131200902;12PM 3.2 Nan - Interference, The City's use of the Utility Easement shall not materially interfere in any manner with any Utilities which have been installed, or may from time to time, be installed under Relocated 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 located under 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 Improvements "). Accordingly, the City's use of the Utility Easement granted pursuant to this Agreement shall not unreasonably interfere with the installation, construction, operation, maintenance, repair, replacement or structural integrity of the Subsurface Improvements, or any above - ground improvements, owned, installed, maintained or operated in the Utility Easement Area. The City shall not cause any penetrations into or through, or alterations, modifications, additions or changes in or to the Subsurface Improvements, owned, installed, maintained or operated in the Utility Easement Area 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 and/or the Utility Easement and the City agrees that such encroachments shall not violate this Agreement and may remain as constructed, provided that such encroachments do not impede or 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 knows will encroach on the Roadway Easement prior to their construction and any such improvements 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 - governmental functions. 3.5 Restoration. a. If the City's misuse of the Utility Easement or the Roadway Easement or negligence causes any damage to the improvements in said easements, then the City, at its sole cost and expense and as expeditiously as possible after becoming aware of such damage, shall repair and restore Relocated 7th Avenue and the improvements thereon and/or the Subsurface Improvements to the condition same were in immediately prior to such damage. Any restoration and repair work undertaken pursuant to this Section 3.5 shall be performed in V& 0408119692 -016 CurrenV1348960904 02113120090212PM accordance with all applicable laws and in a good and workmanlike and lien -free manner. However, nothing construed herein shall constitute the waiver of its sovereign immunity or any limit or defense imposed by 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 or 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 servient 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 Relocated 7th Avenue and/or 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 pursuant to this Section 3,5 shall be performed in accordance with all applicable laws and in a good and workmanlike and lien -free manner. 3.6 The Owner warrants that: (i) the Owner is seized of Relocated 7th Avenue and has the right to convey the Utility 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 Utility Easement; 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 7th Avenue by Owner 4.1 Permitted Uses. The Owner shall have the right, from time to time, to permit and /or operate: (i) sales and promotional kiosks and other income - producing services/businesses on Relocated 7th Avenue and the appurtenances thereto, and (ii) street festivals, fairs, municipal and civic events and other similar events on any portion of 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 Roadwa Closure. The Owner shall have the right, from time to time, to temporarily close portions of Relocated 7th Avenue to access, maintain, improve, repair or replace any improvements in the Roadway Easement or the Utility Easement, including, without limitation, Relocated 7th Avenue and any Subsurface Improvements, and for other matters reasonably necessary 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 Closure "). In performing 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 to, consideration as to the date and time of the Roadway Closure; and (ii) comply with the City's requirements for temporary road closures of City public - right -of -ways. 10 0408119692 -016 CurrenV1348960904 02/1312009 02:12 PM 5. Si Huge. The Owner, at its sole cost and expense, may install, maintain and operate signage on Relocated 7th 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. 6. Default and Remedies. 6.1 Default. The failure of the Owner or the City to observe or perform any of their respective obligations under this Agreement (the "Defaulting Party") within thirty (30) days after receipt of written notice from the other party specifying the nature of the failure (the "Non - Defaulting_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 commences 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 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 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 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 be suspended or terminated 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 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 100 N.W. 1St Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561) 278 -4755 With a copy to: 200 N.W. 1St Avenue Delray Beach, Florida 33444 11 0408119692 -016 CurrenV1348960904 021131200902,12PM Attn: City Attorney Facsimile: (561) 278 -4755 As to Owner: Atlantic Center, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 CDR Atlantic Plaza, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 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 for next day delivery; or (iii) the same day when sent by confirmed facsimile before 5:00 p.m. (Eastern time). 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 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 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 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 to Execute, Representations. The Owner and the City each warrant and represent to the other that the individuals signing this Agreement on behalf of the 12 0408119692 -016 Current11348960904 02/13/2009 02:12 PM Owner and the City, respectively, have fall power and authority to execute and deliver the Agreement and to bind the respective parties hereto. 8.6 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 be treated as an original. 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 or manner, a public dedication of any right or interest of the Owner in Relocated 7t' Avenue whatsoever, but rather are private rights for the sole use and benefit of 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, but such limitation shall not affect in any manner any other rights or remedies which either the Owner or the City may have hereunder 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 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, 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. 8.10 Non - 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 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 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. 8.11 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. 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 or the Owner, as the case may be, their respective successors, assigns and /or grantees. 13 0408119692 -016 CurrenV1348960904 0211312009 02:12 PM 8.13 Force Ma'eure. If any party to this Agreement is delayed, hindered in, 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 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 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 or hindrance or 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 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. 8.14 Joinder by Mortgagees. By its joinder in this Agreement, all mortgagees 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 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 foreclosure or trustees sale shall acquire title subject to all the terms and provisions of this Agreement. 8.15 Right to Pledge. 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 for any debt and all 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 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 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 Owner which occurs prior to the date of such transfer, including without limitation, the City's right under this Agreement to record and foreclose a lien. 8.16 No Merger. It is expressly understood and agreed that the parties do not intend that there be, and there shall in no event be, a merger of the dominant and servient tenements in Relocated 7th 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. 14 0408119692 -016 Currend1348960904 02/13/2009 02:12 PM 8.17 Joint Preparation. 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 more severely against one party than the other. 8.18 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 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. 8.20 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 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 operations over, upon or under the Roadway Easement 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. Owner acknowledges however, that the Roadway Easement will be utilized for parking and driving vehicles which may leak oil, gasoline, or 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 Assignment to Property Owner's Association. The Owner shall have the right to convey fee simple title to Relocated 7a' Avenue to a POA or otherwise transfer, assign and/or delegate the rights and obligations under this Agreement to a POA in accordance with Section 2,13(c). 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. 8.24 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 (1 S) days of notice thereof, an estoppel certificate (the "Certificate ") certifying the Owner's compliance with the terms and provisions of this Agreement, in a form reasonably acceptable to the City. The Owner and such other parties shall have the right to rely on the Certificate. 9 Governmental Functions: Notwithstanding anything to the contrary contained in this Agreement. J 0408119692 -016 Current11348960904 021131200902:12 PM 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 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 tort limits of liability set forth in Fla. Stat. 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 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. 10. Termination. 10.1 This Agreement shall terminate if. (i) the City properly and timely exercises the City's Reconveyance Right (as such term is defined in the Declaration of Reserved Rights and Agreement Not to Encumber ME, 7t11 Avenue between the City and Atlantic Center, Ltd, and CDR Atlantic Plaza Ltd, as the "Developer" (the "Declaration ")); and (ii) the Relocated 7th Avenue Termination Certificate, the form of which is attached to the Declaration, has been recorded in the Public Records of Palm Beach County, Florida. 10.2 Upon recordation of the Relocated 7' 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 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 of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, if the City exercises the City's Reconveyance Right, the City's casement rights hereunder shall not terminate until such time that the City is vested with marketable and insurable title to Vacated 7th Avenue. 10.3 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 10.1 and 10.2 above are terminated and are of no further force and effect and this Agreement is no longer subject to termination pursuant to such provisions. 16 0406119692 -016 CurrentM348960904 021131200902:12 PM M �. � mil I � C� ] � � 7. �� �7.�� l � �] � l� ] ►: � 1 17 0408119692 -016 Gurrent11348960904 02/13/2009 02:12 PM IN WITNESS WHEREOF, the parties to this Agreement set their hands and seals the day and year first above written. ATTEST: By: R- ra�A,., City Attorney STATE OF j::-'j e�,y-i d aL COUNTY OF N1,n j3CC3 Ch CITY OF DELRAY BEACH, FLORIDA B C , �r Name: Its: ct t..! oy"' Date: 2 _ -2,L3 - o q The foregoing instrument was acknowledged before me this n ay of br(4cw 2009, by 9 i + j q I✓ l 1 ; S , the M aM or°' of the CITY OF DELRAY BEACH, FLORIDA. He/She is personally known to me e o Signature O'fVgrson Taking Ac o ledgment ";` �, Catherine Inglese Commission # DD565576 Expires July 22, 2010 q mo,,q Ba ed Nv Fain • InsufaniOi Inc. M-356.1010 0408119692 -016 CurrenV1348960904 02/13/2009 02:12 PM MATAINIMAM STATE OF 1 U `— COUNTY OF � k k OWNER ATLANTIC CENTER, LTD., a Florida limited partnership By: ATLANTIC CENTER, INC., a Florida corporation its General Partner B I'nnt N Its: �i k. The foregoing instrument was acknowledged b ore m this day of Y , 2009, by X11! -e [I; APA 14 - Mj I M6 , as the P of ATLANTIC CENTER, INC., a Florida corporation, the general partner of A NTIC CENTER, LTD., a Florida limited partnership, on behalf of the limited partnership. He he is berso__ nally known to me vr has produced , (type of identification) as identification. of 1, a 1101111 MY GOMMISS10N # DD 778846 :" EXplf £S. April 93,2092 c Bwdadlbru;WpAicUodBm�9tars %$%` 0408119692.016 CurrenV1348960904 02113120Q902:12 PM OWNER CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: DELRAY HISTORIC, INC., a Florida 'Lut, (OU-4�< corporation, its General Partner Print Nam B� Print Name: - Print Name: Its: STATE OF A, COUNTY OF �&JM_ UAU&- The foregoin& instrument was acknowledged before r4c this day of M2009, by W1 1110 V H. M i f mo k the PCi t� �- of DELTORIC, INC., a Florida corporation, the general partner of CDR AT IC PLAZA, LTD., a Florida limited partnership, on behalf of the limited partnership. fieAshe is personal known to me or identification. has produced ,Nlltlllrl {(bC "'�"` IGLU S, vvwwWSSSIia�r'a #Da778W XPIRES: April 13, 2012 '" $ ondedTt+rut�4nryP�CU�clem�3ters (type of identification) as Sri � v I P A ro jjkt1'L1- Si ature o erson T ng A owl gment 0408119692 -016 Curren111348960904 021131200902:12 PM EXHIBIT "A" Legal Descri Lion of Relocated 7`}' Avenue 0408119692 -016 CurrenY1348960904 021131200902:12 PM SKETCH OF DESCRIPTION EXHIBIT ';a" SHEET 1 OF 2 N.E. ST STREET w 0 o N NORTH LINE N P.B. 50, PAGE 129 NORTH LINE , 0 5.89° 118' BLOCK 116 ICE. CORNER cry z P.B. 50, PAGE 129 i z POINT OF a COMMENCEMENT Z OUo ass °o z Q W ATLANTIC PLAZA Q) cj� (PLA T BOOK 50, PAGE 12 9) m Q W° �-' ARC = 130.80' C.A. = 36 °3325" m RADIUS = 205.00' C.B. = S 18 °16'43 "W. NOTES -ARC = 105.28' THIS IS NOT A SURVEY C.A. = 36 °3325" RADIUS = 165.00' = CENTERLINE NORTH RIGHT C.B. = S 18 °16'43 "W. OF WAY LINE ki THE NORTH LINE OF SOUTH LINE X o SOUTH LINE PLAT BLOCK 116 IS ASSUMED TO BEAR N.89058'47t BLOCK 116 0 o BOOK 50, PAGE 129 ►� o ° N NORTH RIGHT OF WAY LINE PB. =PLAT BOOK 0 v°� 0 S. W. CORNER DATE: JAN 23, 2009 P.B. 50, PAGE 129 "� EAST A TLAN77C OBRIEN, SUITER & OBRIEN, INC CERTIFICATE OF AUTHORIZATION AB353 _ A VEVUE _ _ IN RESPONSIBLE CHA GEaPAULDD. ENGLE 955 N. W. 17TH AVENUE, SUITE KI DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 7TH AVENUE RE- ALIGNMENT (561) 276 -4501 (561) 732 -3279 8� o zi z: 4. U. �i o� o� SKETCH OF DESCRIPTION EXHIBIT ';4" SHEET 2 OF 2 DESCRIPTION FOR N.E. 77H AVENUE RE- ALIGNMENT A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH A VENUE L YING WEST OF AND ADJACENT TO SAID A TLANTIC PLAZA AS SHOWN ON THE PLAT OF THE TOWN OF LINTON (NOW DELRAY BEACH) ACCORDING TO THE PLA T THEREOF AS RECORDED IN PLA T BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE 5.89 058115 "W., ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 22118 FEET TO THE POINT OF BEGINNING, THENCE S 0°00'00'E, A DISTANCE OF 35901 FEET TO A POINT OF OUR VA7DRE CONCAVE TO THE NORTHWEST HAVING A CENTRAL ANGLE OF 36 °33'25" AND A RADIUS OF 205,00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CURVATURE CONCAVE TO THE SOUTHEAST HAVING A CENTRAL ANGLE OF 36 °33'25" AND A RADIUS OF 165.00 FEET, THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 105.28 FEET; THENCE S 0°00'00'E, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID A TLANTIC PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLAN77C A VENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT. THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET AT ALL ANGLE POINTS AND TO TERMINATE AT THE NORTH AND SOUTH LINES OF SAID PLAT OF ATLANTIC PLAZA AMC THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE, JAN. 23, 2009 ORDER NO. 04 -164 7TH AVE RE- ALIGNMENT EXHIBIT "B" Certificate of Substantial Completion 0406119692 -016 Current/1348960904 021131200902:12 PSI Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATE OF SUBSTANTIAL COMPLETION Relocated 7th Avenue) THIS CERTIFICATE OF SUBSTANTIAL COMPLETION (this "Certificate ") is issued as of the day of , 20, by , City Engineer for the City of Delray Beach, whose address is (the "City Engineer"). WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section 2.1 of that certain Easement Agreement, dated as of , 2009, between the City of Delray Beach, Florida (the "City "), CDR Atlantic Plaza, 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 of Palm Beach County, Florida (the "Easement Agreement "); WHEREAS, the Easement Agreement provides that the City Engineer shall record this Certificate upon the substantial completion of construction of a relocated 7th Avenue ( "Relocated 7th Avenue "). Relocated 7th 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 2.1 of the Easement Agreement. NOW, THEREFORE, in accordance with the Easement Agreement 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 Engineer hereby states the following: I . 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 and inspected the construction of Relocated 7th Avenue. 3. The City Engineer certifies and confirms that the construction of Relocated 7th Avenue has been substantially completed. 8547119692 -016 CurrenV135441270 02/13/2009 02:16 PM Agreement. All terms not defined herein shall have the meanings set forth in the Easement [SIGNATURE PAGE FOLLOWS.] 8547119692.016 Current/13544127v1 02113120090216PM IN WITNESS WHEREOF, 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 COUNTY OF CITY ENGINEER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me this day of 20 , by , the City Engineer for the City of Delray Beach. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547119692 -016 CurrenY135441270 02/13/2009 0216 PM EXHIBIT "A" to the Certificate of Substantial Completion Relocated 7 I Avenue 8647119692 -016 GurrenV136441270 02/13/2009 02:16 PM 8� w' Lua, 81 v. z; 41 U. l5 . m. 0. D; SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 2 OF 2 DESCRIPTION FOR N.E. 7TH A VENUE RE-ALIGNMENT• A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE LYING WEST OF AND ADJACENT TO SAID ATLANTIC PLAZA AS SHOWN ON THE PLA T OF THE TOWN OF LINTON (NOW DELRA Y BEACH ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE 5.89 058'15 "W., ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 22118 FEET TO THE POINT OF BEGINNING; THENCE S,0000'001., A DISTANCE OF 359.01 FEET TO A POINT OF CURVATURE CONCAVE TO THE NORTHWEST HA VING A CENTRAL ANGLE OF 36 033'25" AND A RADIUS OF 205.00 FEET THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CURVATURE CONCH VE TO THE SOUTHEAST HAVING A CENTRAL ANGLE OF 36 033'25" AND A RADIUS OF 165.00 FEET; THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 105.28 FEET,• THENCE SO °00'00'2, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ATLAN77C PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT. THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET AT ALL ANGLE POINTS AND TO TERMINA TE A T THE NORTH AND SOUTH LINES OF SAID PLA T OF A TLAN77C PLAZA AND THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE.• JAN. 23, 2009 0 BRIEN, SUITER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION fLBJ53 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N.W. 17TH AVENUE, SUITE KI DEL RAY BEACH FLORIDA 33445 ORDER Na 04 -164 7TH AVE RE- ALIGNMENT (551) 276 -4501 (561) 732 -3279 EXHIBIT "C" Traffic Enforcement Agreement 0408119692 -016 CurrenVlW9609v14 02/131200902,12 PM TRAFFIC ENFORCEMENT AGREEMENT (Relocated 7th Avenue) WHEREAS, 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 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 influence on the community; and WHEREAS, F.S. 316.006(2),(b),(1) allows for such enforcement on private roads pursuant to a written agreement approved by the City C�o,m fission which pro aides for reimbursement 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 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 Relocated 7th Avenue, which is described on Exhibit "1" attached hereto. 2. The enforcement of the traffic laws 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 costs of the traffic control and enforcement incurred by the CITY. 4. The speed limit shall be that set by Florida Statute 316.183(2) and 316.189(1) of 3 0 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. 316189(3). 6. Stop signs must conform to the Manual and specifications of the United States Department of Transportation as stated in Florida Statute 316.006(2)(b)(3). 7. The Owner shall defend, indemnify and hold harmless the CITY, its agents, officers, officials and employees from any and all claims, suits, causes of actions or any claims whatsoever made arising from any and all acts by Owner of traffic control and traffic 8422119692 -016 Current/1356630M 02/13/2009 03:12 PM 1 enforcement that occur on Relocated 7`h 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. 768.28. This indemnification shall survive the cancellation of this Agreement. 8. The Owner shall provide liability insurance to cover the indemnification in the amount of $1,000,000.00 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 force and effect for as long as the certain Relocated 7th Avenue Easement between City and Owner, which is recorded in the Public Records of Palm Beach County, Florida, is in effect. 10. 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 FOLLOW] 8422/19692 -016 Current/ 13566306v3 02/13/2009 0112 PM 2 This Agreement is made and entered into on this day of , 2009. ATTEST: CITY OF DELRAY BEACH, FLORIDA City Clerk Rita Ellis, Mayor Approved as to Form and legal sufficiency- Catherine M. Kozol, Asst. City Attorney 8422119692 -016 Current113566306A 021131200903:12 FIM Is AR ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner By: Print Name: Its: 8422119692 -016 CurrenV13566306v3 02/13/2009 03:12 PM OWNER CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: Delray Historic, Inc., a Florida corporation, its general partner By-. Print Name: Its: 8422/19692 -016 Gurrentl1356630M 02/13/2009 03:12 PM EXHIBIT "1" Relocated 7'' Avenue 8422119692 -016 CurrenV1358630M 02J13/2009 03:12 PM SKETCH OF DESCRIPTION ExHiBiT ';a " SHEET 1 OF 2 N.E 1ST STREET o a NORTH LINE N P.B. 50, PAGE 129 N NORTH LINE 0 22118' BLOCK 116 S89 °58'15 "W. N.E CORNER m P.B. POINT OF 9 OF 12 W� o COMMENCEMENT Ww wz w rno z Ls Wj n o ATLANTIC PLAZA z ( PLA T BOOK 50, PAGE 729 c � Q) Zoo 4Q CQ h� �Q W°� o ARC = 130.80' C.A. = 36 3325 „ m RADIUS = 205.00' C.B. = S 18 °16"43 "W. NOTES.• ARC = 105.28' THIS IS NOT A SURVEY C.A. = 36 °3325" RADIUS = 165.00' F = CENTERLINE NORTH RIGHT C.B. = S 18 °16'43 W. OF WA Y LINE W THE NORTH LINE OF SOUTH LINE o SOUTH LINE PLAT BLOCK 116 IS ASSUMED BOOK 50, PAGE 129 BLOCK 116 o TO BEAR N.89°5847'E o ° ° NORTH RIGHT OF WAY LINE P.B. = PLAT BOOK 0. N crf O o \ S.W. CORNER o P.B. 50, PAGE 129 Mj DATE. • JAN. 23, 2009 06RIEN, SUITER & OVR1EN, INC EAST A TL_ANTII� �+ — _ CERTIFICATE OF AUTHORIZATION #LB353 A VENUE CHARGE., AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N.W. 17TH AVENUE, SUITE Kl DELRAY BEACH FLORIDA 33445 ORDER N0, 04 -164 7TH AVENUE RE-ALIGNMENT 1 (561) 276 --4501 (561) 732 -3279 SKETCH OF DESCRIPTION EXHIBIT 'A " SHEET 2 OF 2 DESCRIPTION FOR NE, 7TH AVENUE RE-ALIGNMENT A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE LYING WEST OF AND ADJACENT TO SAID ATLANTIC PLAZA AS SHOWN ON THE PLA T OF THE TOWN OF LINTON (NOW OELRA Y BEACH) ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE, COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE S89 058'15 "W ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 227-18 FEET TO T�-!E POINT OF BEG/NNIN THENCE S.0000'00'HE A DISTANCE OF 359.01 FEET TO A POINT OF CURVA TORE CONCA VT TO THE NORTHWEST HA VING A CENTRAL ANGLE OF 36 °3325" AND A RADIUS OF 205.00 FEET, • THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CURVATURE CONCAVE TO THE SOUTHEAST HAVING A CENTRAL ANGLE OF 36 °33'25" AND A RADIUS OF 165.00 FEET THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 10528 FEET,• THENCE S 0 °00 DO'E, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ATLANTIC PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT. THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET AT ALL ANGLE POINTS AND TO TERMINATE AT THE NORTH AND SOUTH LINES OF SAID PLAT OF ATLANTIC PLAZA AND THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA. ORDER NO. 04 -164 77H A VE RE- ALIGNMENT PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE, JAN. 23, 2009 OBRIEN, SUITER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION ^3353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE: PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE K1 DELRAY BEACH FLORIDA 33445 (561) 276 -4501 (561) 732 -3279 This instrument was prepared by and should be returned to: Brian Shutt, Esq. City Attorney's Office 200 N.W. 1st Avenue Delray Beach, Florida 33444 I llll ll Ill II III II 11111 Ill II III II Ill II III Il III II III I till `' � =? CFI 20090116383 OR BK 23166 PG 1447 RECORDED 04/08/2009 10:36:45 Palm Beach County, Florida Sharon R. Bock,CLERK & COMPTROLLER Pgs 1447 - 1532; (86pgs) DECLARATION OF RESERVED RIGHTS AND AGREEMENT NOT TO ENCUMBER THE ABANDONED ALLEY This Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley (this "Agreement ") is entered into as of February 17, 2009 (the "Effective Date "), among the CITY OF DELRAY BEACH, a Florida Municipal Corporation (the "City "), and FREECOR INVESTMENTS, INC., a Florida corporation ( "Freecor "), ATLANTIC CENTER, LTD., a Florida limited partnership ( "Atlantic Center "), CDS ASJ BUILDING, LLC, a Florida limited liability company ( "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 "Developer "), for the purpose of setting forth the Developer's contingent obligation to reconvey the Abandoned Alley (as defined below), which the City abandoned. RECITALS: A. The Developer intends to construct and develop a mixed -use project (the "Project ") on that certain real property described as follows (the "Overall Parcel "): See Exhibit "A" attached hereto and made a part hereof. B. On February 17, 2009, the City Commission passed a Resolution (the "Abandonment Resolution "), pursuant to which the City abandoned its interest in and to those certain alleyways more particularly described as follows (collectively, the "Abandoned Alley "): 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. 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 to a portion of the Abandoned 8547119692 -016 CurrenV1356500M 02/18/2009 03:47 PM Alley and the Developer together own fee simple title in and to the property constituting the entire 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 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 for ingress 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 subsurface utility easement over and under the Abandoned Alley (the "Utility Easement "; and together with the Roadway Easement, 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 "Owner 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. 6a' Avenue, Delray Beach, Florida 33483, have reasonable and equivalent access to and from the Freecor Building via the publicly dedicated roadways or 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 force and effect upon recordation of the "Utility Relocation Certificate" (as defined in the Abandoned Alley Easement Agreement), evidencing that the Utilities have been disconnected, 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 and/or 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; 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 Beach County, Florida, and thereafter the Abandoned Alley Agreement shall be of no further force 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 reconveyance as described in the Financial Guarantee Agreement and as set forth herein. NOW, THEREFORE, 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 forth in their entirety. 2 8547119692.016 CurrenV13565006v4 02/15/2009 05:46 PM 2. Reserved Rights. a. Background. In connection with the development of the Project, the Developer may construct a relocated 7th Avenue, between N.E. Vt 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. Relocated 7th Avenue is legally described as follows: See Exhibit "C" attached hereto and made a part hereof. b. Development Conditions. The Developer has certain obligations relating to the construction of Relocated 7rh Avenue. The Developer shall (collectively, the "Development Conditions "): {i) obtain approval of the Developer's site plan by the City's Site Plan Review and Appearance Board no later than December 1, 2009 (the "SPRAB Approval Deadline ") (the "SPRAB Approval Condition ") (The date on which the Developer obtains the SPRAB approval (the "SPRAB Approval ") shall hereinafter be defined as the "SPRAB A roval Date "); (ii) obtain site plan certification for the Project from the City within five hundred and forty eight (548) days following 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 7th Avenue to the "No Turning Back Point" (defined below) within one thousand ninety five (1,095) days after the Site Plan Certification Date (the "No Turning Back Deadline ") (the "No Turning Back Condition "). The "No Turning Back Point" shall be the point at which the Developer has constructed a tunnel under Relocated 7th 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 deemed an approval of extension for site plan approval; and (iv) deliver to the City, within one hundred eighty (180) days after the City adopts the Abandonment Resolution (the "Environmental Audit Deadline "), a Phase T environmental audit report (the "Environmental 3 8547119692.016 CurrenV13565008V4 02/15/2009 05:46 PM Audit"), prepared at the Developer's expense by a properly licensed environmental engineer and certified to the City, attesting that the portion of Relocated 7th Avenue which is not included in the legal description of Vacated 7h Avenue, does not identify any environmental conditions that warrant further investigation in a Phase II environmental audit or require any remediation or corrective action so that the City is an innocent landowner under applicable environmental laws and regulations (the "Environmental Audit Condition "). C. Right of Reconveyance. If the Developer fails to timely satisfy the Development Conditions set forth in (a) above, then the City shall have the right to cause the Developer to reconvey the Abandoned Alley to the City, at the City's option, in the City's sole and absolute discretion. The Developer's obligation to reconvey the Abandoned Alley to the City in each of the three (3) circumstances set forth in (a) above is hereinafter collectively referred to as the "City's Reconveyance Right ". d. Evidence of Satisfaction of the Development Conditions. The Developer shall evidence that the Developer has satisfied the Development Conditions set forth in (a) above by recording in the Public Records of 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 Department 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 acceptable Environmental Audit has been delivered to the City by the Environmental Audit Deadline, in the form attached hereto as Exhibit "D "; iii. a certificate issued by 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 form attached hereto as Exhibit "E "; and iv. a certificate issued by the City Engineer confirming that the Developer has reached the No Turning Back Point by the No Turning Back Date, in the form attached hereto as Exhibit "F ". The City Engineer 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. 4 8547119692 -016 CurrenV1356500M 021151200905:46 PM e. Right to Exercise the City's Reconveyance Right. The City may exercise the City's Reconveyance Right if: i. the Developer has not obtained the SPRAB Approval by the SPRAB Approval Deadline; ii. the Developer has not satisfied 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; or iv. the Developer has not delivered the Environmental Audit to the City by the Environmental Audit Deadline. f. Method to Exercise the City's Reconveyance Ri ht. To exercise the City's Reconveyance 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 (60) days after the City is entitled to exercise the City's Reconveyance Right because the Developer has failed to timely satisfy one of the Development Conditions. The City's failure to timely exercise the City's Reconveyance Right with respect to one of the Development Conditions shall not be deemed a waiver of the City's right to exercise the City's Reconveyance Right as to the failure of the Developer to timely satisfy any of the other Development Conditions. g. Reconveyance Following Exercise of the City's Reconveyance Ri ht. If the City exercises the City's Reconveyance 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 of February 16, 2009. Evidence of the Developer's compliance or 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, or another national title insurer 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 Reconveyance Right. If the City is entitled to, but does not timely exercise the City's Reconveyance Right within sixty (60) days after the Environmental Audit Deadline, Site Plan Certification Deadline, the No Turning Back Deadline or the SPRAB Approval Deadline, as applicable (the "Reconveyance Right Deadline "), then the City shall forever waive and release the right to exercise the City's Reconveyance Right with respect to the applicable Development Condition, as the case may be. The Developer shall provide written notice of the Reconveyance Right Deadline to the City five (5) days prior to the 5 8547119692 -016 CurrenV1356500M 02/15/2009 05:46 PM expiration of the Reconveyance Right Deadline (the "Reconveyance Right Expiration Notice "). The failure of the Developer to timely deliver the Reconveyance Right Expiration Notice to the City shall cause the Reconveyance Right Deadline to extend until the date which is five (5) days following the delivery of the Reconveyance Right Expiration Notice by the Developer to the City; provided, however, the City shall still be able to exercise its Reconveyance Right, as set forth in this Agreement. If the City fails to exercise the City's Reconveyance Right for all of the Development Conditions such that the City is no 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 of 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 "G ". The Cert ification of Termination and Release shall confirm that all terms and provisions of this Agreement have been satisfied and this Agreement and the City's Reconveyance Right is waived, released and of no further force and effect confirming that the Developer shall no longer have any obligation to reconvey Vacated 7th Avenue to the City. i. Time of Essence. Time is of the essence with respect to the provisions of Section 2. 3. Escrow of Reconveyance Deed. To secure the City's Reconveyance Right, the Developer has, on 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 form of which is attached hereto and made a part hereof as Exhibit "H ". 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 (together with an executed "Relocated 7th 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 reconveyance of the Abandoned Alley; and (ii) a "Relocated 7th Avenue Termination Certificate" evidencing the termination and release of the City's Relocated 7t11 Avenue Easements. The form of the Escrow Agreement is attached hereto as Exhibit "I" and the form of the Relocated 7th Avenue Termination Certificate is attached hereto as Exhibit "J ". 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 the Abandoned Alley; (ii) lien, sell, convey, transfer, pledge, mortgage, or hypothecate the Abandoned Alley; and (iii) permit any person or entity to acquire any right, title, or interest in the Abandoned Alley (collectively referred to as an "Encumbrance "). Any Encumbrance which is permitted under this Agreement must expressly 6 8547119692 -016 Current113565008v4 02/15/2009 05;46 PM 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 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 limitation, an assumption of 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 force or effect with respect to the Abandoned Alley, and shall at all times be subject and inferior to the City's Reconveyance 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 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 to, 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 obligations under this Agreement (the "Defaulting Part y ") within thirty (30) days after receipt of written notice from the other party specifying the nature of the failure (the "Non - Defaulting 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 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. This Section 5.1 is not applicable to the provisions contained in Section 2 of this Agreement. 5.2 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 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 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 be suspended or terminated 7 6547119692 -016 Current113565008v4 021151200905:46PM except by an instrument in writing signed by the City and the Developer and recorded in the real property records of Palm Beach County, Florida. 5.3 Additional Remedy. 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 Abandoned Alley, subject only to the matters of records as of February 16, 2009, in that event, in addition to any other available remedy to the City, the City may declare a violation of and/or withhold, deny, abate, or revoke approval of any then pending or existing permit, site plan, development order, variance, or other governmental or quasi - governmental consent which relates to or concerns the Overall Parcel, until the Developer causes the reconveyance of the Abandoned Alley to 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: With a copy to As to Developer: With a copy to: 8547119692.016 Current/13565008v4 City of Delray Beach 100 N.W. 1s` Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561) -278 -4755 200 N.W. I't Avenue Delray Beach, Florida 33444 Attn: City Attorney Facsimile: (561) -278 -4755 Freecor Investments, Inc. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 Steve Daniels, Esq. Arnstein & Lehr LLP 515 North Flagler Drive Sixth Floor West Palm Beach, Florida 33401 -4323 Facsimile: (561) 655 -5551 8 02/15/2009 05:46 PM Atlantic Center, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2n1 Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 CDS ASJ Building, LLC c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn. President Facsimile: (561) 278 -6930 CDS 45, LLC c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn. President Facsimile: (561) 278 -6930 CDS Gas Station LLC c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 As to Escrow Agent: Steven D. Rubin, Esquire 980N. 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 for next day delivery; or (iii) the same day when sent by confirmed facsimile before 5:00 p.m. (Eastern time). 7. General Provisions. 9 8547/19692 -016 CurrenV1366600M 02/18/2009 03;47 PM 7.1 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. 7.2 Entire Agreement. This Agreement sets forth the entire agreement between the Developer and the City and supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parties. 7.3 Governing. This Agreement will be interpreted and enforced in accordance with Florida law. 7.4 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 Developer and the City. 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 be treated as an original. 7.7 Non - 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 not constitute in any respect or manner, a public dedication of any right or interest of the Developer in the Abandoned Alley 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 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 or the City may have hereunder by reason of any breach 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 term or provision to persons or 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 by law. 10 8547119692 -016 CurrenY13565008A 02/15/2009 05:46 PM 7.10 Non- 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 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 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. 7.11 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. 7.12 Covenant Running with the Land. This Agreement 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 Developer, as the case may be, their respective successors, assigns and/or grantees. 7.13 Joinder by Mortgagees. 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 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 foreclosure or trustees sale shall acquire title subject to all the terms and provisions of this Agreement. 7.14 Joint Pre aration. 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. 7.15 Attorne. sue. In connection with any litigation, or dispute arising out of this Agreement, each parry shall bear its own attorneys' fees and costs. 7.16 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. 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 of such court. 11 8547119692 -016 CurrenV135650080 02/15/2009 05:46 PM 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 disposed of or otherwise released on, to or under the Abandoned Alley or Relocated 7th Avenue. Neither the Developer nor the City shall engage in operations over, upon or under the Abandoned Alley or Relocated 7t' 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 the Abandoned Alley will be utilized for parking and driving vehicles which may leak oil, gasoline, or other fluids onto the ground, and City shall not be responsible for removal of such waste or have any liability for it under this Agreement. 7.19 No Third Party Beneficiaries. No private parties other than the City shall have the right to bring a cause of action against the Developer under this Agreement. 7.20 Force Maieure. If any party to this Agreement is delayed, hindered in, 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 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 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 or hindrance or 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 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. No Penalty. The Developer acknowledges that construction of improvements on the Overall Parcel is subject to the City's Reconveyance Right. Therefore, such construction is at the Developer's risk and that the loss of such improvements resulting from the City's exercise of the City's Reconveyance Right shall not be deemed a penalty or forfeiture. 9. City Approvals. The City reserves its authority to approve the 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 on the Developer or the Project other than as set forth in the City's code of ordinances and all other applicable laws and codes or in addition to any and all approvals for the Project granted and approved as of the Effective Date. 10. Governmental Functions. Notwithstanding anything to the contrary contained in this Agreement- 12 8547119692 -016 CurrenU13565008v4 02/15/2009 05:46 PM 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 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 tort limits of liability set forth in Fla. Stat. 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 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 "Vacated 7h Avenue" (as defined in that certain Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley, dated February 17, 2009, between the City and the Developer) shall not terminate until such time that the City is vested with marketable and insurable title to the fee of Vacated 7t' Avenue and the Abandoned Alley subject to matters of record against Vacated 7f Avenue and the Abandoned Alley which existed as of February 16, 2009. EXECUTION PAGES TO FOLLOW 13 8547119692 -016 Current113565008A 02/15/2009 05;46 PM IN WITNESS WHEREOF, the parties to this Agreement set their hands and seals the day �,NCity Attorney STATE OF F-1 a ri 1l ct, I 1 V: :wl._..._'' CITY ELRAY BEACH, FLORIDA BY: L Name: +tck S Its: 1'n n1 :j d r- _ -- Date: 2 r 2 -- 0 g The foregoing instrument was acknowledged before me this ZEday of e L a , 2009, by 94a e i 1 i 5 , the ice" cf— of the CITY OF DELRAY BEACH, FLORIDA. He /She is personally known to me i v -'j Signature o rson Taking Ac wledgmeat {yiiil � ; &wo-M444 Catharine inglese Commission # DD565576 Expires duly 22, 2010 TMy elm •lnaurmee. Inc. 800386.7018 8547119692 -016 C1jrrenV13565008v4 02115/2009 05:46 PM WITNESSES. STATE OF DEVELOPER FREECOR INVESTMENTS; INC.. a Florida corp ration By: 0 Print Name: . Dt } n ry Title: 55 COUNTY OF The foregoing instrument was acknowledged before me this j0j flay of \ 6 0 v C : k ; by ��� ,�`� s,.. .kj !6atttlie s r c��itof FREECOR INVESTMENTS, INC.; a FIorida corpora #ion: on behalf of the corporation. Re /She is (check one). Zpersonally known to Me or has produced as identification. _._.� Notary Public Signature CAROL ANN SAROO 4�X AUB MY COMMISSION #001518597 � - EXPIRES: FEB 14, 2010 Bonded through 1st State Insurance Print Name State of c— at Large Commission No:_ 3 1, 71 7 - - (SE .AL) My Conm- ission Expires: 8547119692-016 Currerrll135650{180 0219812009 04:14 PM STATE OF 10 Avlk- ss: COUNTY OF Lx- ) ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its eneral partner Print Name: Title: The foregoing instrument was acknowledged before me this eday of _ kN , 204 byM II I&K H, Mj) M# P� the Pfflf d PM Fof Atlantic Center, Inc., a Florida corporation, the general partner qf ATLANTI CENTER D., a Florida limited partnership, on behalf of the partnership. e/ he is (check one) personally known to me or has produced as identification. ` tary P tic-SignakGre- '�gA'y.. . ME YA.WIGLV ' a W COMMISSION # DD 778546 W EXPIRES; Apnt 13, 2012 Print Name �y dt EWdedTt,,Zma PUMunderwrbrs Qi ` State of (SEAL) Commission No.: My Commission Expires: at Large 6547119692 -016 CurrenV13565008A 02/15/2009 05:46 PIS STATE OF COUNTY OF R �C �" \) ss: CDS ASJ BUILDING, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager By: Print Name: Title: 'ti'/ -� The foregoing instruTent was acknowledged before me this ��day of tV 20L , byl�ll�jliiti� %i• Milt p the M&A Q of CDS International Realty, LLC, a Florida limited liability company, manager of CbS ASJ BUSING, INC., a Florida corporation, on behalf of the corporation. eyShe is (check one) personally known to or has produced as identif' Lion. tWy'N-bff Signature "d MY cOMMlssf ON # DD 778545 EXPIRES,- April 13 2012 (SE 9ondedT t M *yp U�erwdler Print Name State of Commission No.: My Commission Expires: at Large 6547119692 -016 CurrenV13565008v4 02/18/2009 03:24 PM STATE OF � 0 j � ) w j ss: COUNTY OF CDS 45, LLC, a Florida limited liability company By: Pri nt carne: Title:��1 The foregoing instrument was acknowledged before me this � day of n_, 201A byWilliA 1'!. 0,Mj1 UV the Q of CDS 45, LLCM a Florida limited liability company, on behalf of the company. H he is (check one) V personally known to me or has produced as identification./- W COMMISSION # DD 776546 EXPIRES: April 13, 2012 "f Bonded TfxuNafaryPW�ictfndeiwnilat8 (SEAL) lie S Print Name State of at Large Commission No.: My Commission Expires: 8547/19692 -016 GxrenV13565008A 02/15/2009 05:46 PM STATE OF �( } j ss: COUNTY OF CDS GAS STATION, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager By: Print ame:� Title: Z %z The foregoing instrument was acknowledged before me this I day of 20M byN'1jj`�&FK W- 0i(II 0 the of CDS International Realty, LLC, a Florida limited liability company, the manager o S GAS STATION, LLCM- Florida limited liability company, on behalf of the comp is (check one) personally known to me or has produced KASEY A. QUIGLEY MY COMMISSION # DD 778M EXPIRES, April 13, 2012 { '%r1FFlc BMW ihrutJptaryPu6NcUndenvdters (SEAL) identification. Print Name State of Commission No.: My Commission Expires: at Large 8547/19692-016 CurrenV135650080 02/15/2009 05:46 PM EXH B IT "A" Legal Description of the Overall Parcel 8547119692 -016 CurrenY13565006v4 02!1512009 05:46 PM DESCRIPTION OF PROJECT SITE: LOT 1, LESS THAT PORTION DEEDED TO THE STATE OF FLORIDA FOR ROAD RIGHT OF WAY, AS DESCRIBED IN OFFICIAL RECORDS BOOK 511, PAGE 516, LOTS 2 THROUGH 11, INCLUSIVE, LESS THE WEST 5.0 FEET THEREOF FOR ROAD RIGHT OF WAY, LOTS 12 THROUGH 19, INCLUSIVE, LOT 20, LESS THAT PORTION FOR THE RIGHT OF WAY FOR EAST ATLANTIC AVENUE AND U.S. HIGHWAY NO. 1, LOTS 21 THROUGH 24, INCLUSIVE, LESS THE SOUTH 7.0 FEET THEREOF FOR ROAD RIGHT OF WAY, ALL THE EAST -WEST ALLEY LYING SOUTH OF AND ADJACENT TO SAID LOT 11, LESS THE WEST 5.0 FEET THEREOF FOR ROAD RIGHT OF WAY, ALL OF THE NORTH -SOUTH ALLEY RIGHT OF WAY LYING EAST OF AND ADJACENT TO LOTS 1 THROUGH 11, INCLUSIVE AND LOT 22, LESS THE SOUTH 7.0 FEET THEREOF FOR ROAD RIGHT OF WAY, ALL LYING IN 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. TOGETHER WITH: ALL OF THE PLAT OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. AND TOGETHER WITH: THAT PORTION OF THE EAST HALF OF THE 50 FOOT ROAD RIGHT OF WAY FOR N.E. 7TB AVENUE LYING WEST OF AND ADJACENT TO THE SAID PLAT OF ATLANTIC PLAZA, AND THAT PORTION OF THE WEST HALF OF THE 50 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE LYING EAST OF AND ADJACENT TO SAID BLOCK 116, LESS THE SOUTH 7.0 FEET THEREOF. Legal Description of the Abandoned AlleX 8547119692 -016 Current/13565008A 02/1512009 05:46 PM 8. �i �. d �; N, �� }� R; [� i �7y i ti � D< �: q�; dj ti; 2� 5; �� c� °o; U� i 4zi ' ci , i SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 1 OF 1 W Q NO TES. THIS IS NOT A SURVEY o a S °m LOT 11, BLOCK 116 Z Y 00aa �w o . w ti m 16' PLATTED ALLEY RIGHT OF WAY • AREA = 2,081 SQUARE FEET MORE OR LESS �O�Z • l3a.oa� LOT 20 LOT 21 LOT 22 BLOCK 116 BLOCK 116 BLOCK 116 n NORTH RIGHT OF WA Y LINE EAST ATLANTIC AVENUE DESCRIPTION ALL THAT PORTION OF THE EAST-WEST 16 FOOT ALLEY RIGHT PAUL D. ENGLE OF WAY LYING SOUTH OF AND ADJACENT TO LOT 11, BLOCK SURVEYOR & MAPPER #5708 116, TOWN OF LINTON (NOW DELRA Y BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, DATE.• JULY 9, 2008 LESS THE WEST 5.0 FEET THEREOF FOR ADDITIONAL ROAD O BRIEN, SUITER & O'BRIEN, INC RIGHT OF WAY FOR US HIGHWAY N0. 1 CERTIFICA TE OF AUTHORIZA TION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE: PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE K1 DELRAY BEACH FLORIDA 33445 ORDER NO. 04 --164 PARCEL 4 ALLEY ABANDONMENT (561) 276 -4501 (561) 732 -3279 EXH1B IT "C" Legal Description of Relocated 7"' Avenue 8547/19692.016 CurrenY1356500M 02/15/2009 05:46 PM 8� 8� N. m i F ' 8W� a� i W C; x; w; Q, C UI 5: x. O. 4+ U: J + 0< 0 SKETCH OF DESCRIPTION EXHIBIT ';a" SHEET 2 OF 2 DESCRIPTION FOR N.E. 77H A VENUE RE- ALIGNMENT :- A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH A VENUE L PING WEST OF AND ADJACENT TO SAID A TLANTIC PLAZA AS SHOWN ON THE PLAT OF THE 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, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE S 89 °58'15" W., AL ONG THE NORTH LINE OF SAID PLA T OF A TLANTIC PLAZA, A DISTANCE OF 22118 FEET TO THE POINT OF BEGINNING; THENCE S0°00'00'E, A DISTANCE OF 359.01 FEET TO A POINT OF CURVATURE CONCA VE TO THE NORTHWEST HA VING A CENTRAL ANGLE OF 36 033'25" AND A RADIUS OF 205.00 FEE-T, • THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CUR VATUURE CONCAVE TO THE SOUTHEAST HAVING A CENTRAL ANGLE OF 36 °3325" AND A RADIUS OF 165.00 FEET, THENCE SOUTHWES7F'RL Y. ALONG THE ARC OF SAID CURVE, A DISTANCE OF 10528 FEET,• THENCE S 0 °00'00'E, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID A TLANTIC PLAZA AND A POINT ON THE NORTH LINE OF EAST A T LAN77C A VENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT. THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET A T ALL ANGLE POINTS AND TO TERMINA TE A T THE NORTH AND SOUTH LINES OF SAID PLA T OF A TLANTIC PLAZA AND THE WESTERLY PROJECTION OF THE SOUTH LINE OF SAID PLAT OF A TLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE.• JAN. 23, 2009 0 BRIEN, SUI TER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION #LB35J SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE.' PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE K DEL RAY BEACH FLORIDA 33445 ORDER AU 04-164 77H A VE RE- ALIGNMENT (561) 276 -4501 (561) 732 --3279 EXHIBIT "D„ Certificate of Delivery of Environmental Audit 8547119692 -016 Current1135650080 02/15/2009 05:46 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATE OF DELIVERY OF ENVIRONMENTAL AUDIT THIS CERTIFICATE OF DELIVERY OF ENVIRONMENTAL AUDIT (this "Certificate ") is issued as of the City Engineer for the City of Delray "City Engineer"). day of 2009, by Beach, whose address is WITNESSETH: (the WHEREAS, this Certificate is issued pursuant to Section 2 of that certain Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley, dated as of , 2009, between the City of Delray Beach, Florida (the "City"), Freecor Investments, Inc., a Florida corporation, Atlantic Center, Ltd., a Florida limited partnership, CDS ASJ Building, LLC, a Florida limited liability company, CDS 45, LLC, a Florida limited liability company and CDS Gas Station, LLC, a Florida limited liability company (collectively, the "Developer "), recorded in Official Records Book , Page , of the Public Records of Palm Beach County, Florida (the "Declaration of Reserved Rights "). The Declaration of Reserved Rights encumbers that certain alleyway more particularly described as follows ( "Abandoned Alley "): 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 ($10.00), and other good and valuable consideration the receipt whereof is hereby acknowledged, the City Engineer hereby states the following: 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 Environmental Audit. 3. This Certificate satisfies that certain requirement set forth in Section 2(d)(ii) of the 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 8547119692 -016 Curren11136185090 02/18/2009 04:15 PM Engineer confirming that an acceptable Environmental Audit 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 of Reserved Rights. [SIGNATURE PAGE FOLLOWS.] 2 8547119692 -016 CurrenV186185090 02/15/2009 05:49 PM IN WITNESS WHEREOF, 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 COUNTY OF CITY ENGINEER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me this day of 2009, by , the City Engineer for the City of Delray Beach. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547119692 -016 Current/136185090 02!1512009 03:49 PM EXHIBIT "A" to the Certificate of Delivery of Environmental A Abandoned Alley 8547119692 -016 Current/13618509v1 0211512009 05:49 PM SKETCH OF DESCRIPTION EXHIBIT ';4" SHEET 1 OF 1 W N.E. -1ST STREET J U � O O °5847E N.89 16.00' NOTES: NORTH LINE BLOCK 116 THIS IS NOT A SURVEY e = CENTERLINE O Q THE NORTH LINE OF BLOCK 116 IS ASSUMED TO BEAR N.89 °5847'E o� z� o� Ld (/i v �• NORTH RIGHT OF WAY LINE N90°0000't o -SOUTH LINE o BLOCK 116 d EAST ATLANTIC A VENUE DESCRIPTION: 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 & MAPPER #5708 DELRAY BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1,, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 70 FEET DATE. • JULY 9, 2008 THEREOF. 0 BRIEN, SUITER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION #L B353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE: PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE Kl ORDER NO 04 -164 PARCEL 5 ABANDONMENT DELRAY BEACH FLORIDA 33445 1 (551) 276 -4501 (551) 732 -3279 SKETCH OF DESCRIPTION EXHIBIT ;A" SHEET 1 OF 1 Lu v NO TES. - THIS IS NOT A SURVEY Z m LOT 11, BLOCK 116 16.0' W 5' 0 Q`° Z III �;� 130.00' J 16' PLATTED ALLEY RIGHT OF WAY o W AREA = 2,081 SQUARE � t'd W Z FEET MORE OR LESS °sin �ohti J� W 130.00' LOT 20 LOT 21 LOT 22 Z BLOCK 116 BLOCK 116 BLOCK 116 co 0 NORTH RIGHT OF WAY LINE EAST ATLANTIC AVENUE DESCRIPTION.• ALL THAT PORTION OF THE EAST —WEST 16 FOOT ALLEY RIGHT PAUL D. ENGLE OF WAY LYING SOUTH OF AND ADJACENT TO LOT 11, BLOCK SURVEYOR & MAPPER 115708 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, DATE• JULY 9, 2008 LESS THE WEST 5.0 FEET THEREOF FOR ADDITIONAL ROAD 0 BRIEN, SUI TER & 0 BRIEN, INC RIGHT OF WAY FOR US HIGHWAY NO 1. CERTIFICATE OF AUTHORIZATION JLB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE K1 DELRAY BEACH FLORIDA 33445 ORDER NO. 04 -154 PARCEL 4 ALLEY ABANDONMENT (561) 276 -4501 (561) 732 -3279 Certificate of Site Plan Certification 8547119692 -016 CurrenV1356500M 02/15/2009 05;46 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATE OF SITE PLAN CERTIFICATION THIS CERTIFICATE OF SITE PLAN CERTIFICATION (this "Certificate ") is issued as of the day of , 2009, by , Director of the City of Delray Beach Planning and Zoning Department, whose address is (the "Planning and Zoning Department 3). WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section 2 of that certain Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley, dated as of 2009, between the City of Delray Beach, Florida (the "City "), Freecor Investments, Inc., a Florida corporation, Atlantic Center, Ltd., a Florida limited partnership, CDS ASJ Building, LLC, a Florida limited liability company, CDS 45, LLC, a Florida limited liability company and CDS Gas Station, LLC, a Florida limited liability company (collectively, the "Developer "), recorded in Official Records Boob , Page , of the Public Records of Palm Beach County, Florida (the "Declaration of Reserved Rights'). The Declaration of Reserved Rights encumbers that certain alleyway more particularly described as follows ( "Abandoned Alley "): 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 ($10.00), and other good and valuable 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 their 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 Certificate satisfies that certain requirement set forth in Section 2(d)(iii) of the Declaration of Reserved Rights which provides, in part: 8547119692 -016 Current1136032600 021181200904:15 PM Records of Palm Beach County, Florida a certificate issued by the Planning and Zoning Department confirming that the Developer has obtained certification of the Developer's site plan by the Site Plan Certification Deadline. 4. All terns not defined herein shall have the meanings set forth in the Declaration of Reserved Rights. [SIGNATURE PAGE FOLLOWS.] 2 8547119692.016 CurrenV136032600 02/15/2009 05:49 PM IN WITNESS WHEREOF, the Planning and Zoning Department hereby executes and delivers this Certificate as of the day and year first above written. WITNESSES: (Print Name) (Print Name) STATE OF COUNTY OF JUWAIL ►i► :ur f► ► r �:; a ►.. By: , Director The foregoing instrument was acknowledged before me this day of 2009, by , the Director of the City of Delray Beach Planning and Zoning Department. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547119692 -016 CurrerV136032600 02/15/2009 05:49 PM EXHIBIT "A" to the Certificate of Site Plan Certification Abandoned Allen 8547119692 -016 Gurrent113603260v1 02/15/2009 05:49 PM �; o, a� N. �� $' N. g i i � � �� Q i ti u] 3� �; �� �: �� �' U. �� �i O q� U, �� �; z� �� �� �� �� 0� SKETCH OF DESCRIPTION EXHIBIT X; ; SHEET 1 OF 1 N w N.E._ 1ST STREET � o N N89 °58'47't. 16 DO' NORTH LINE BLOCK 116 -SOUTH LINE BLOCK 116 EAST A TLAI DESCRIPTION.• NORTH RIGHT OF WAY LINE ALL THAT PORTION OF THE NORTH -SOUTH 16 FOOT ALLEY RIGHT OF WA Y L YING IN 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, LESS THE SOUTH %0 FEET THEREOF. ORDER NO. 04 -164 PARCEL 5 ABANDONMENT NOTES.• THIS IS NOT A SURVEY e = CENTERLINE THE NORTH LINE OF BLOCK 116 IS ASSUMED TO BEAR N.8905847E PAUL D. ENGLE SURVEYOR & MAPPER #5708 DA TE: JULY 9, 2008 8 s N J� SOW J� �W m m -SOUTH LINE BLOCK 116 EAST A TLAI DESCRIPTION.• NORTH RIGHT OF WAY LINE ALL THAT PORTION OF THE NORTH -SOUTH 16 FOOT ALLEY RIGHT OF WA Y L YING IN 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, LESS THE SOUTH %0 FEET THEREOF. ORDER NO. 04 -164 PARCEL 5 ABANDONMENT NOTES.• THIS IS NOT A SURVEY e = CENTERLINE THE NORTH LINE OF BLOCK 116 IS ASSUMED TO BEAR N.8905847E PAUL D. ENGLE SURVEYOR & MAPPER #5708 DA TE: JULY 9, 2008 8 s N EXHIBIT 'T" Certificate of Construction to the "No Turnine Back Point" 8547119692 -016 Current113565008v4 02/15/2009 05:46 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Pro skauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATE OF CONSTRUCTION TO THE "NO TURNING BACK POINT" THIS CERTIFICATE OF CONSTRUCTION TO THE "NO TURNING BACK POINT" (this "Certificate ") is issued as of the day of , 2009, by , City Engineer for the City of Delray Beach, whose address is (the "City Engineer "). WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section 2 of that certain Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley, dated as of , 2009, between the City of Delray Beach, Florida (the "City "), Freecor Investments, Inc., a Florida corporation, Atlantic Center, Ltd., a Florida limited partnership, CDS ASJ Building, LLC, a Florida limited liability company, CDS 45, LLC, a Florida limited liability company and CDS Gas Station, LLC, a Florida limited liability company (collectively, the 'Developer "), recorded in Official Records Book , Page , of the Public Records of Palm Beach County, Florida (the "Declaration of Reserved Ri>~hts "). The Declaration of Reserved Rights encumbers that certain alleyway more particularly described as follows ( "Abandoned Alley "): 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 ($10.00), and other good 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 2(d)(iv) of the Declaration of Reserved Rights which provides, in part: The Developer shall evidence that the Developer has satisfied the No Turning Back Condition by recording in the Public Records of 1 8547119692 -016 CurrenV136028770 02/18/2009 04:15 PM Engineer confirming that Relocated 7th Avenue has been constructed to the No Turning Back Point by the No Turning Back Deadline. 4. All terms not defined herein shall have the meanings set forth in the Declaration of Reserved Rights. [SIGNATURE PAGE FOLLOWS.] 2 8547119692 -016 CurrenU136028770 02/15/2009 05:49 PM IN WITNESS WHEREOF, 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 COUNTY OF CITY ENGINEER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me this day of 2009, by , the City Engineer for the City of Delray Beach. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547/19692 -016 Current/136028770 02/15/2009 05:49 PM EXHIBIT "A" to the Certificate of Construction to the "No Turning Back Point" Abandoned Ailey 8547119692 -016 CurrenV13602877vl 02/15/2009 05:49 PM S. �: �; yi 4; �� N; �; �; �� W� �+ N � Q j � ' i i i U; ti� Z� q�q� b� C7 ; O; U� �� W� �� �; Q� 0; SKETCH OF DESCRIPTION EXHIBIT ",a" SHEET 1 OF 1 J � NOTES- THIS IS NOT A SURVEY Z Z LOT 11, BLOCK 116 16.0' lJJ 5' A! O.An 130r 00 W V J JQ 16' PLATTED ALLEY RIGHT OF WAY m—' AREA = 2,081 SQUARE FEET MORE OR LESS ZZ I &. ►~— �5 Q W 130.00' 5' LOT 20 LOT 21 LOT 22 BLOCK 116 BLOCK 116 BLOCK 116 co (!j o NORTH RIGHT OF WA Y LINE EAST ATLANTIC AVENUE DESCRIPTION.• ALL THAT PORTION OF THE EAST -WEST 16 FOOT ALLEY RIGHT PAUL D. ENGLE OF WAY LYING SOUTH OF AND ADJACENT TO L 0 T 11, BLOCK SURVEYOR & MAPPER #5708 116, TOWN OF LINTON (NOW DELRA Y BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, DATE.• JULY 9, 2008 LESS THE WEST 5.0 FEET THEREOF FOR ADDITIONAL ROAD OBRIEN, SUITER & O BR1EN, INC RIGHT OF WAY FOR U.S. HIGHWAY NO. 1 CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESP NSIBLE CHARGE: PAUL D. ENGLE 955 N. IN, 17TH AVENUE, SUITE K1 DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 4 ALLEY ABANDONMENT 1 (561) 276 -4501 (561) 732 -3279 EXHIBIT` "G„ Certification of Termination and Release 6547119692.016 CurrenY13565006v4 02/15/2009 05:46 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 CERTIFICATION OF TERMINATION AND RELEASE THIS CERTIFICATION OF TERMINATION AND RELEASE (this "Certification ") is made as of the day of , 20_ (the "Effective Date "), among the CITY OF DELRAY BEACH, FLORIDA (the "City "), and FREECOR INVESTMENTS, INC., a Florida corporation, ATLANTIC CENTER, LTD., a Florida limited partnership, CDS ASJ BUILDING, LLC, a Florida limited liability company, CDS 45, LLC, a Florida limited liability company and CDS GAS STATION, LLC, a Florida limited liability company (collectively, the "Developer "). WITNESSETH: WHEREAS, this Certification is issued pursuant to Section 2(h) of that certain Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley, dated as of , 2009, between the City and the Developer, recorded in Official Records Book Page , of the Public Records of Palm Beach County, Florida (the "Declaration of Reserved Rights'). The Declaration of Reserved Rights encumbers 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 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: I. The 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 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 Termination Date, the Declaration of Reserved Rights shall be null and void and of no further force or effect and shall be cancelled of record. 3. As a result of the termination of the Declaration of Reserved Rights, the City's Reconveyance Right is hereby terminated, released and of no further force and effect and the Developer shall no longer have any obligation to reconvey the Abandoned Ailey to the City. 8547119692 -016 CurrenY136025580 02/18/2009 04:26 PM 4. All terms not defined herein shall have the meanings set forth in the Declaration of Reserved Rights. [SIGNATURE PAGES FOLLOW] 8547119692 -016 CurrenV13602558v1 02/13/2009 01:02 PM IN WITNESS WHEREOF, the parties hereby execute and deliver this Certification as of the Effective Date. ATTEST: By: City Clerk Approved as to Form: By: City Attorney STATE OF COUNTY OF CITY OF DELRAY BEACH, FLORIDA By:— Name: Its: The foregoing instrument was acknowledged before me this day of , 20, by , the of the CITY OF DELRAY BEACH, FLORIDA. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547119692 -016 Currentl136025580 02J13/2009 01:02 PM WITNESSES: Print Name: Print Name: STATE OF ) ss: COUNTY OF } FREECOR INVESTMENTS, INC., a Florida corporation By:— Print N Title: The foregoing instrument was acknowledged before me this day of , 20_, by , the of FREECOR INVESTMENTS, INC., a Florida corporation, on behalf of the corporation. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8547119692 -016 CurrerV136025580 021131200901:02 PM Print Name: Print Name: STATE OF } ss: COUNTY OF } ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner By: Print Name: Title: The foregoing instrument was acknowledged before me this day of , 20_..,_., 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. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8547119692 -016 Currend13602558v1 02/13/2009 01:02 PM Print Name: Print Name: STATE OF ) ss: COUNTY OF ) CDS ASJ BUILDING, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager B y: Print Name: Title: The foregoing instrument was acknowledged before me this _ day of , 20_, by , the of CDS International Realty, LLC, a Florida limited liability company, the manager of CDS ASJ BUILDING, INC., a Florida corporation, on behalf of the entity. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8547119692.016 Current113602558v1 02/18/2009 04:26 PM Print Name: Print Name: STATE OF } ss: COUNTY OF ) CDS 45, LLC, a Florida limited liability company By: Print Name: Title: The foregoing instrument was acknowledged before me this day of , 20_, by , the of CDS 45, LLC, a Florida limited liability company, on behalf of the company. He /She is (check one) personally known to me or has produced as identification. Notary Public Signature Print Name State of at Large Commission No.: (SEAL) My Commission Expires: 8547119692.016 CurrenV13602558A 02/13/2009 01;02 PM Print Name: Print Name: STATE OF ) ss: COUNTY OF ) CDS GAS STATION, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager B y: Print Name- Title: The foregoing instrument was acknowledged before me this day of , 20_, by , the of CDS 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. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8547119692 -016 Current/136026580 021131200901:02 PM EXHIBIT "A" to the Certification of Termination and Release Abandoned _Alleyr 8547119692 -016 Curr®nV136025580 02!131200901:02 PM SKETCH OF DESCRIPTION EXHIBIT "A" SHEET 1 OF 1 1ST STREET J U N89°58'47't. 16.0 0 NOTES.• NORTH LINE THIS IS NOT A SURVEY BLOCK 116 e W CENTERLINE O O THE NORTH LINE OF BLOCK 116 : j IS ASSUMED TO BEAR N.89058'471. O� �� o 00 O O L U' � rn (d �w v� �4 U� O� O� m NORTH RIGHT OF WAY LINE a SOUTH LINE o BLOCK 116 EAST A TLANTIC A VENUE DESCRIPTION- 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 & MAPPER 115708 DEL RA Y BEACH), ACCORDING TO THE PLA T THEREOF AS RECORDED IN PLA T BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 70 FEET DATE:• JULY 9, 2008 THEREOF. O'BRIEN, SUITER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. • PAUL D. ENGLE 955 N. IN, 17TH AVENUE, SUITE K1 DEL RA Y BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 5 ABANDONMENT (561) 276 --4501 (561) 732 -3279 S. 8. ai m? 4; �I Lij e� U� ti 5 Q; 4' CQ]; J; i w1 q� o o, h� m. y; g Ni g 8. i J � N � O i 1 J i 4� U. �i 4. 0� U; W. 0� EXHIBIT "H„ Special Warrqaty Dee 8547119692.016 CurrenV13565008v4 02/15/2009 05:46 PM This instrument prepared by and when recorded return to: BRIAN SHUTT, ESQ. CITY ATTORNEY'S OFFICE 200 N.W. 1ST AVENUE DELRAY BEACH, FLORIDA 33444 SPECIAL WARRANTY DEED THIS SPECIAL WARRANTY DEED is executed by FREECOR INVESTMENTS, INC., a Florida corporation, ATLANTIC CENTER, LTD., a Florida limited partnership, CDS ASJ BUILDING, LLC, a Florida limited liability company, CDS 45, LLC, a Florida limited liability company and CDS GAS STATION, LLC, a Florida limited liability company (collectively, "Grantor ") whose address is c/o CDS International Holdings, Inc., 3299 N.W. 2nd Avenue, Boca Raton, Florida 33431, and is delivered to CITY OF DELRAY BEACH, a Florida Municipal Corporation ( "Grantee "), whose address is 100 N.W. 1" Avenue, Delray Beach, Florida 33444. Grantor, for and in consideration of the sum of TEN & NO /100 DOLLARS ($10.00) and other good and valuable consideration, paid to Grantor by Grantee, the receipt and sufficiency of which are hereby acknowledged, grants, bargains, sells, and conveys to Grantee and Grantee's successors and assigns forever, 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 "Propert y "); Together With all easements, tenements, hereditaments, and appurtenances belonging to the Property; and Together With all buildings and other improvements now or in the future located on 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 Hold the same in fee simple forever. This conveyance is made subject to: (a) Applicable zoning ordinances and restrictions; and (b) Conditions, restrictions, reservations, limitations, and easements of record as of February 16, 2009, which are not reimposed by this deed. 1 8547119692 -016 CurrerV13564225v3 02/18/2009 04:14 PM Grantor covenants that at the time 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 demands of all persons claiming by, through or under Grantor, but against none other. [SIGNATURE PAGES FOLLOWS] 2 8547119692.016 CurrenV1356422M 02/18/2009 04:14 PM Grantor has caused this instrument to be duly executed on , 20 Signed, sealed and delivered in the presence of: Print Name: Print Name: STATE OF ) ss: COUNTY OF ) FREECOR INVESTMENTS, INC., a Florida corporation By: Print Name: Title: The foregoing instrument was acknowledged before me this day of , 20_, by , the of FREECOR INVESTMENTS, INC., a Florida corporation, on behalf of the corporation. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8547119692 -016 Current/13564225v3 021181200904:14 PM Print Name: Print Name: ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner By: Print Name: Title: STATE OF ) } ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20_, 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. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of at Large Commission No.: My Commission Expires: 8547119692 -016 Current/13564225v3 02/18/2009 04:14 PM Print Name: Print Name: CDS ASJ BUILDING, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager B y: Print Name: Title: STATE OF } } ss: COUNTY OF } The foregoing instrument was acknowledged before me this day of , 20.,._,, by , the of CDS International Realty, LLC, a Florida limited liability company, the manager of CDS ASJ BUILDING, LLC, a Florida limited liability company, on behalf of the corporation. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8547119692 -016 CurrenU13564225v3 02/18/2009 04:14 PM Print Name: Print Name: STATE OF ) 55: COUNTY OF CDS 45, LLC, a Florida limited liability company By: Print Name: Title: The foregoing instrument was acknowledged before me this day of , 20_, by , the of CDS 45, LLC, a Florida limited liability company, on behalf of the company. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8547119692 -016 CurrenV13564225v3 021181200904:14 PM Print Name: Print Name: CDS GAS STATION, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager B y: Print Name: Title: STATE OF ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20_, by , the of CDS 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. He /She is (check one) personally known to me or has produced as identification. (SEAL) Notary Public Signature Print Name State of Commission No.: My Commission Expires: at Large 8547119692 -016 CurrenV13564225v3 02/18/2009 04:14 PM 8547119692 -016 CurrenU1356422M 02!1812009 04:14 PM SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 1 OF 1 NE._ 1ST STREET v o 0 N N.89 °5847'E 16'00t NO TES. NORTH LINE BLOCK 116 THIS 15 NOT A SURVEY e — CENTERLINE THE NORTH LINE OF BLOCK 116 „ �} IS ASSUMED TO BEAR N.89 58 47 E. 00 o �I' o �O O o V)n O m m NORTH RIGHT OF WA Y LINE R90°o000'F- a SOUTH LINE o BLOCK 116 EAST A TLANTIC A VENUE DESCRIPTION.• 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 & MAPPER #5708 DELRA Y BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK i, PAGE Z PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 70 FEET DATE: JULY 9, 2008 THEREOF. O'6RIEN, SUITER & OBRIEN INC CERTIFICATE OF AUTHORIZATION #LBJ53 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE K 1 DEL RA Y BEACH FL ORIDA 33445 ORDER NO. 04 -164 PARCEL 5 ABANDONMENT 1 (561) 276 -4501 (561) 732 -3279 SKETCH OF DESCRIPTION EXHIBIT ';4" SHEET 1 OF 1 W NOTES- Z THIS IS NOT A SURVEY Z LOT 11, BLOCK 116 16.0' �s�� 130.00' Lu 16' PLATTED ALLEY RIGHT OF WAY • z AREA = 2,081 SQUARE h ��� FEET MORE OR LESS to 130.00' Z 5' , LOT 20 LOT 21 LOT 22 BLOCK 116 BLOCK 116 BLOCK 116 m o NORTH RIGHT OF WA Y LINE EAST ATLANTIC AVENUE DESCRIPTION: ALL THAT PORTION OF THE EAST —WEST 16 FOOT ALLEY RIGHT PAUL D. ENGLE OF WAY L YING SOUTH OF AND ADJACENT TO LOT 11 BLCCK SURVEYOR & MAPPER #5708 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, DATE. • JULY 9, 2008 LESS THE WEST 5.0 FEET THEREOF FOR ADDITIONAL ROAD O'BRIEN, SUITER & O'BRIEN, INC RIGHT OF WA Y FOR U.S HIGHWA Y NO. 1. CERTIFICATE OF AUTHORIZATION #LB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE K1 DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 4 ALLEY ABANDONMENT (561) 276 -4501 (561) 732 -3279 8 N� ; a Lw Q, w; gi U. 2. bi O� U; w� D� 1 Cox .11:�M:iilW Escrow Agreement 8547119692 -016 CurrerV13565008v4 02/15/2009 05;46 PM ESCROW AGREEMENT THIS ESCROW AGREEMENT (this "Agreement ") is made and entered into as of February 17, 2009, by and between the CITY OF DELRAY BEACH, a Florida Municipal Corporation (the "C_ _ity "), ATLANTIC CENTER, LTD., a Florida limited partnership and CDR ATLANTIC PLAZA, LTD., a Florida limited partnership (collectively, the "Developer ") and STEVEN D. RUBIN, ESQ. ( "Escrow Agent "). (The City, Developer and Escrow Agent are sometimes referred to herein individually as a "Party," and collectively as the "Parties. ") RECITALS: 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, 2009 (the "Roadway Declaration of Reserved Rights). B. The City and Freecor Investments, Inc., a Florida corporation., Atlantic Center, Ltd., a Florida limited partnership, CDS ASJ Building, LLC, a Florida limited liability company, CDS 45, LLC, a Florida limited liability company and CDS Gas Station, LLC, a Florida limited liability company are parties to that certain. Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley dated as of February 17, 2009 (the "Alley Declaration of Reserved Rights; and together with the Roadway Declaration of Reserved Rights, collectively referred to herein as the "Declarations of Reserved Rights "). C. Pursuant to the terms of the Declarations of Reserved Rights, if the Developer fails to timely satisfy the Development Conditions (as such term is defined in the Declarations of Reserved Rights), the City has the right to cause the Developer to reconvey Vacated 7"h Avenue and the Abandoned Alleys to the City (the "City's Reconveyance_Ri ht "). D. To secure the City's Reconveyance Right, the Developer has caused to be executed and delivered to the Escrow Agent: (i) a fully executed special warranty deed for Vacated 7ffi Avenue; and (ii) a fully executed special warranty deed for the Abandoned Alleys, both to be held in escrow with Escrow Agent (collectively, the "Deeds "). E. Escrow 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 8547119692 -016 Currsr1113546918v4 021191200910:23 AM 1. Recitals and Capitalized Terms. The foregoing Recitals are true and correct and are incorporated herein by this reference, as if set forth in their entirety. All initial capitalized terms used, but not defined, in this Agreement shall have the meaning set forth in the Declarations of Reserved Rights. 2. Receipt and Deposit of Deeds. 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 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 Right, the Escrow Agent shall promptly 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 recorded Deeds to the City and the Developer, the Escrow Agent shall thereupon be released and discharged from any further duty or obligation hereunder. 4. Costs and Expenses. The Developer agrees to reimburse the Escrow Agent for all costs and expenses incurred by the Escrow Agent in serving as Escrow Agent hereunder, including, but not limited, reimbursement for all fees in connection with recording the Deeds. 5. Compliance with Court Orders. 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 to hold 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 or proceeding for leave to deposit the Deeds in a court of competent jurisdiction pending such determination. Escrow Agent shall be reimbursed for all costs and expenses of such action or 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 incur no liability whatsoever except for its willful misconduct or gross negligence, so long as Escrow Agent is acting in good faith. 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. 8, 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: 2 8547119692.016 CurrenV1354691Bv4 02/19/2009 10:23 AM As to City: City of Delray Beach 100 N.W. 1st Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561) 278 -4755 With a copy to: 200 N.W. 1st Avenue Delray Beach, Florida 33444 Attn: City Attorney Facsimile: (561) 278 -4755 As to Owner- Atlantic Center, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 CDR Atlantic Plaza, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2 d Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 As to Escrow Agent: Steven D. Rubin, Esq. 980 North Federal Highway, Suite 434 Boca Raton, Florida 33432 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 for next day delivery; or (iii) the same day when sent by confirmed facsimile before 5:00 p.m. (Eastern time). 9. Successors and Assigns; Third Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns under the Declarations of Reserved Rights. This 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 Declarations of Reserved Rights. 10. Conflict with Declarations of Reserved Rights. With respect to the subject matter of this Agreement only, if any of the terms or provisions of this Agreement conflict with, or are inconsistent with, any terms or provisions of the Declarations of Reserved Rights, the terms and provisions of this Agreement shall control. 9 8547/19692 -016 Currend1354691M 02J19/2009 10:23 AM 11. Governing Law; Severability. This Agreement shall be governed by the laws of the State of Florida. If any term or provision of this Agreement is held to be or 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 or provisions of this Agreement, or the validity or enforceability of such affected terms or provisions at any other time or in any other jurisdiction. 12. Waiver of Trial by Jury. Each Party hereby waives its right to a trial by jury in any litigation or other court proceeding by any Party against any other Party with respect to any matter arising from or in connection with this Agreement. 13. Attorney's Fees. In connection with any litigation or dispute arising out of this Agreement, each party shall bear its own attorneys' fees and costs. 14. Entire Agreement; Amendments to Agreement. With respect to the subject matter of this Agreement only, this Agreement sets forth 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 on or prior to the date of this Agreement. No amendment or modification to any terms of this Agreement, or cancellation of this Agreement, shall be valid unless in writing and executed and delivered by 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 to be an original executed signature page; provided, however, that such Party shall deliver an original 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] 8547119692 -016 Current/1354691&4 021191200910:23AM IN WITNESS WHEREOF, the City, Developer and Escrow Agent have caused this Agreement to be 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 OF DELRAY BEACH, FLORIDA By:— Name: Its: DEVELOPER ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc.., a Florida corporation, its General Partner By: Print Name: Its: CDR ATLANTIC PLAZA, LTD., a Florida limited partnership By: Delray Historic, Inc.., a Florida corporation, its General Partner By: Print Name: Its: ESCROW AGENT Steven D. Rubin, Esq. 8647118692 -016 CurrenU13546916v4 021191200910:23 AM JOINDER � NDER The undersigned, as the Owners of Vacated 7ffi Avenue and the Abandoned Alleys, hereby execute this Agreement for the sole purpose of confirming the Escrow Agent's authorization to release and record the Deeds in the event the City's Reconveyance Right is properly exercised. CDS ASJ BUILDING, LLC, a Florida limited- liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager By: Print Name: Title: CDS 45, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager By: Print Name: Title: ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner By:_ Nance: CDS GAS STATION, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager By: Name: Title: 85471196692 -016 CurrenV13546918v4 021191200910:23 AM FREECOR INVESTMENTS, INC., a Florida corporation By: Name: Title: 8547119692 -016 Current/13546918v4 02/19/2009 10:23 AM EXHTSTT "J" Relocated 7th Avenue Termination Certificate 8547119692 -016 Current113565008v4 021151200905:46 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 RELOCATED 7""' AVENUE EASEMENT TERMINATION CERTIFICATE THIS RELOCATED 7' AVENUE EASEMENT TERMINATION CERTIFICATE (this "Certificate ") is issued as of the day of , 20_ (the "Effective Date "), by the CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation in Palm Beach County, State of Florida (the "City"). RECITALS: A. CDR Atlantic Plaza, 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 7th 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 , 2009, and recorded in Official Records Book , Page , of the Public Records of Palm Beach County, Florida (the "Easement Agreement "). 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 ($10.00), and other good 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 hereby 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 no 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. 1 8547119692 -016 CurrenV135433000 021131200912:22 PM 3. All terms not defined herein shall have the meanings set forth in the Easement Agreement. [SIGNATURE PAGE FOLLOWS] 8547119692 -016 Current113543300v1 02/131200912:22 PM IN WITNESS WHEREOF, the City hereby executes and deliver this Certificate as of the Effective Date. ATTEST: CITY OF DELRAY BEACH, FLORIDA By: By:_ City Clerk Name: Its: Approved as to Form: By: City Attorney STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 20, by , the of the CITY OF DELRAY BEACH, FLORIDA. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 6547119692 -016 CurrenV135433000 02113/200912:22 PM EXHIB IT "A" to the Relocated 7� Avenue Termination Certificate Relocated 7h Avenue 8547119692 -016 CurrenV13543300vl 0213009 12:22 PM SKETCH OF DESCRIPTION EXH181 T ';All SHEET 1 OF 2 N Lu N. E_. 1ST STREET o 0 NORTH LINE P.B. 50, PAGE 129 `y 22118' NORTH LINE 0 o BLOCK 116 S89 °58'15 "W. N. �o N.E. CORNER P B PAGE 129 z a m POINT OF a i g o COMMENCEMENT W � 0 z� oo; Up ai0 0. w Q W�� o A TLANTIC PLAZA 60 ��Lj (PLAT BOOK 50, PAGE 129 Q5 40 �0 Z =o ARC = 130.80 z J C.A. = 36 3325 „ �j RADIUS = 20500' � C.B. = S 18 °16'43 "W. c o: NOTES- ARC = 105.28' TH151S NOT A SURVEY z C.A. = 36 °3325" RADIUS = 165.00' = CENTERLINE NORTH RIGHT-C.B. = S.18 °16'43 "W. OF WAY LINE W o THE NORTH LINE OF o ; SOUTH LINE a SOUTH LINE PLAT BLOCK 116 IS ASSUMED BLOCK 116 0 o BOOK 50, PAGE 129 TO BEAR N.8905847'E o ° NORTH RIGHT D. Ui OF WAY LINE P.B. = PLAT BOOK 0 O S W. CORNER o P.B. DATE. JAN. 23, 2009 50 PAGE 129 O'BRIEN, SUI TER & O BRIEN, INC EAST A TLANTIC _ _ CERTIFICATE OF AUTHORIZATION #L B353 A VENUE CHARGE- AND MAPPER IN RESPONSIBLE CHARGE.• PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE K1 DE•LRAY BEACH FLORIDA 33445 ( ORDER NO. 04 -154 7TH AVENUE RE- ALIGNMENT 561) 276 -4501 (561) 732 -3279 SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 2 OF 2 ► �1 � GZ'N: � I � y I�1 AI Via]: ���� �: � ti %� #1 �. �� ►' 1 �l e]► ,� I �I � icy 1 C A 40 FOOT EASEMENT BEING A PORTION OF ATLANTIC PLAZA, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 50, PAGE 129, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA AND THAT PORTION OF THE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 7TH AVENUE LYING WEST OF AND ADJACENT TO SAID ATLANTIC PLAZA AS SHOWN ON THE PLAT OF THE TOWN OF LINTON (NOW DELRA Y BEACH) ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING 40 FEET WEST OF AND ADJACENT TO THE FOLLOWING DESCRIBED LINE. COMMENCING AT THE NORTHEAST CORNER OF SAID PLAT OF ATLANTIC PLAZA; THENCE S.89 058'15 "W., ALONG THE NORTH LINE OF SAID PLAT OF ATLANTIC PLAZA, A DISTANCE OF 22118 FEET TO THE POINT OF BEGINNING, THENCE S 0000'00'E, A DISTANCE OF 359.01 FEET TO A POINT OF CURVATURE CONCA VE TO THE NORTHWEST HA VING A CENTRAL ANGLE OF 36 °33'25" AND A RADIUS OF 205 00 FEET, • THENCE SOUTHWESTERL Y ALONG THE ARC OF SAID CURVE, A DISTANCE OF 130.80 FEET TO A POINT OF REVERSE CURVATURE CONCAVE TO THE SOUTHEAST HA VING A CENTRAL ANGLE OF 36 03325" AND A RADIUS OF 165 00 FEET, THENCE SOU THWESTERL Y, ALONG THE ARC OF SAID CURVE, A DISTANCE OF 105.28 FEET,• THENCE S 0 °00'00'E, A DISTANCE OF 25.00 FEET TO A POINT ON THE SOUTH LINE OF SAID ATLANTIC PLAZA AND A POINT ON THE NORTH LINE OF EAST ATLANTIC AVENUE AS NOW LAID OUT AND IN USE AND THE TERMINUS POINT OF SAID EASEMENT: THE SIDE LINES OF SAID EASEMENT TO BE EXTENDED OR SHORTENED TO MEET A T ALL ANGLE POINTS AND TO TERMINATE AT THE NORTH AND SOUTH LINES OF SAID PLAT OF ATLANTIC PLAZA AND THE WESTERL Y PROJECTION OF THE SOUTH LINE OF SAID PLAT OF ATLANTIC PLAZA. PAUL D. ENGLE SURVEYOR & MAPPER 115708 DA TE• JAN. 23, 2009 ORDER NO. 04 -164 7TH A VE RE— ALIGNMENT CFK 20090116386 € R BK 231GG P3 1606 RECORDED 04/08/2009 10:36:45 Palm Beach County, Florida Sharon R. Bock, CLERK & COMPTROLLER Pgs IS0, - 1!853; t48pga) This instrument was prepared by and should be returned to: Brian Shutt, Esq. City Attorney's Office 200 N.W. 1st Avenue Delray Beach, Florida 33444 EASEMENT AGREEMENT (Abandoned Alley THIS EASEMENT AGREEMENT (this "Agreement ") made as of February 17, 2009 (the "Effective Date "), among the CITY OF DELRAY BEACH, FLORIDA (the "City"), with a mailing address of 100 N.W. 1st Avenue, Delray Beach, Florida 33444, a Florida municipal corporation in Palm Beach County, State of Florida, and FREECOR INVESTMENTS, INC., a Florida corporation ( "Freecor "), ATLANTIC CENTER, LTD., a Florida limited partnership ( "Atlantic Center "), CDS ASJ BUILDING, LLC, a Florida limited liability company ( "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 "). RECITALS: 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 (collectively, the "Abandoned Alley "): See Exhibit "A" attached hereto and made a part hereof. The Abandonment Resolution has been recorded 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 owner and holder of fee simple title of and to a portion of the Abandoned Alley and the Owner together own fee simple 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 to grant to the City: (i) a perpetual exclusive roadway easement for the 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 governmental and quasi - governmental functions with respect to the Abandoned Alley, including without limitation, traffic 1 7776119692 -016 Curren111355289M 02/18/2009 03:49 PIS regulation, and other uses and purposes as may be permitted by the City's Code of Ordinances or by resolutions adopted by the City Commission with respect to public rights -of -ways located 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 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 Abandoned Alley by members of the public, and City officers, agents, employees or contractors, and (ii) a perpetual non - exclusive subsurface utility easement over and under the Abandoned Alley, each for the uses and purposes and upon the terms and conditions herein contained. D. This Agreement shall remain in frill 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. The foregoing Recitals are 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. Subject to the terms of Section 10 of this Agreement, 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 unobstructed and unimpeded use for 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. 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. 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 Abandoned Alley by 2 7776119692 -016 Current/1355289M 02/13/2009 01:38 PM 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 governmental or 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 from exercising its rights or performing its obligations hereunder with respect to Abandoned Alley, as specifically set forth in this Agreement. 2.2 Maintenance. Except as otherwise provided in the 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 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 governmental or 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 week, twenty -four (24) hours per day, except as otherwise authorized by the City in the exercise of its governmental or 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. 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. 2.6 Obstruction. No 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. 2.7 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 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 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 interest at the rate of eighteen percent (18.0 %) 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 2.9 of this 3 7776119692 -016 CurrenV1355289M 0211 T2009 01:38 PM Agreement. This Roadway Easement shall be an ingress /egress 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 destruction to the Roadway Easement or 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 cost and expense shall, as expeditiously as possible after becoming aware of such damage, repair and restore Abandoned Alley and/or 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 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 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 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 emergency), may, but it is not obligated to, enter onto any portion of the Roadway Easement to perform all necessary construction, repair, maintenance, replacement and operating work and may assess Owner for the reasonable cost of said work. Owner shall pay the cost of said work within thirty (30) days after the City delivers to the Owner ( "Payment Date "): (i) a written statement setting forth the amount of the costs and expenses expended by the City; and (ii) back up information and detail evidence supporting such expenses, including without limitation paid invoices for all such work, if any. The Payment Date shall not 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 the foregoing amount is not paid on or before the Payment Date, then said amount shall bear interest 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 record 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 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 Palm 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 force and effect. Such lien may be foreclosed in the same manner as a mortgage and in accordance with law. Reimbursement of such work costs 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 7776119692 -016 CurrenV13552899A 02/13/2009 01:38 PM 2.10 Binding Effect. The Roadway Easement is an easement appurtenant to 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 of the Owner holding the servient estate. 2.11 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 codes. Each contractor performing work for 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). For purposes of this Agreement, "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 or encumbrance, loss, damage, cost, or expense. 2.12 Warranty. The Owner 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 all persons whomsoever, subject to any permitted exceptions permitted by the City. 2.13 Traffic Enforcement 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 "B ". 3. Utility Easement. 3.1 Grant of Easement. Subject to the terms of Section 10, 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 of the City, a non- exclusive easement (the "Utility 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, and/or 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. 3.2 The Owner warrants that: (i) the Owner 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, 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. 5 7776119892 -016 CurrenV13552899A 021131200901:38 PM 4. Use of Abandoned Alley 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, 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 Closure "). In performing 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 to, 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 for a period in excess of one hundred and twenty (120) days, in aggregate, during the term of this Agreement. 5. Ste. The City, at its sole cost and expense, may install, maintain and operate signage on 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. 6. Default and Remedies. 6.1 Default. The failure of the Owner or the City to observe or perform any of their respective obligations under this Agreement (the "Defaulting Party') within thirty (30) days after receipt of written notice from the other party specifying the nature of the failure (the "Non - Defaultin�y "), 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 commences such cure promptly after receiving such written notice, and is diligently pursuing such cure to completion. This Section 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 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 breach shall not be an available remedy unless otherwise 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 parry to this Agreement. 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. 6 7776119592 -016 CurrenV1365289M 02/13/2009 01:38 PM 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 Beach 100 N.W. 1St Avenue Delray Beach, Florida 33444 Attn: City Manager Facsimile: (561) 278 -4755 With a copy to: 200 N.W. 1" Avenue Delray Beach, Florida 33444 Attn: City Attorney Facsimile: (561) 278 -4755 As to Owner: Feecor Investments, Inc. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 With a copy to-. Steve Daniels, Esq. Arnstein & Lehr LLP 515 North Flagler Drive Sixth Floor West Palm Beach, Florida 33401 -4323 Facsimile: (561) 655 -5551 Atlantic Center, Ltd. c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 CDS ASJ Building, LLC c/o CDS International Holdings, Inc. 3299 N.W. 2 d Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 7 7776119692 -016 Curren111355269M 02/1812009 03:49 PM CDS 45, LLC c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 CDS Gas Station LLC c/o CDS International Holdings, Inc. 3299 N.W. 2nd Avenue Boca Raton, Florida 33431 Attn: President Facsimile: (561) 278 -6930 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). 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 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 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 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 to Execute; Representations. The Owner and the City each warrant and represent to the other that the individuals signing this Agreement on 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. 8.6 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 be treated as an original. 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 8 7776119692 -016 Current/1355289M 021131200901;38 PM shall not constitute in any respect or manner, a public dedication of any right or interest 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 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, but such limitation shall not affect in any manner any other rights or remedies which either the Owner or the City may have hereunder 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 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, 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. 8.10 Non - 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 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 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. 8.11 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. 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 or the Owner, as the case may be, their respective successors, assigns and/or grantees. 8.13 Force Majeure. If any party to this Agreement is delayed, hindered in, 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 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 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 or hindrance or 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 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 7776119692 -016 Current11355289M 02/13/2009 01:38 PM 8.14 Joinder 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 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 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. 8.15 Right to Pledge. 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 for any debt and all 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 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 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 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 No Merger. It is expressly understood and agreed that the parties do not intend that there be, and there shall in no event be, a merger of the dominant and servient tenements in Abandoned Alley by virtue of the present or fixture 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 Preparation. 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 more 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 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. 8.20 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 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 10 7776119692 -016 CurrenV13552899A 02/13/2009 0138 PM of or otherwise released on, to or under the Roadway Easement. Neither the Owner nor the City shall engage in operations over, upon or under the Roadway Easement 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. The Owner acknowledges however, that the Roadway Easement will be utilized for parking and driving vehicles which may leak oil, gasoline, or 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. 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. 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 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 tort limits of liability set forth in Fla. Stat. 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 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. 10. Termination. 10.1 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 the 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 Palm Beach County, Florida, stating that the tenants and owner of the "Freecor Building," located at 75 NE 6th Ave., Delray Beach, Florida 33483, have reasonable and equivalent access to and from the Freecor Building via the publicly dedicated roadways or over lands owned in fee simple by the Owner, including formerly the Abandoned Alley after the abandonment. 11 7776119692 -016 CurrenV1355289M 021131200901:38 PM 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 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 the Roadway Easement to be recorded in the Public Records of 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 survive termination of this Agreement. 10.2 Utility Easement. a, This Utility Easement shall terminate at such time as the engineer from the City (the "City Engineer ") executes and delivers to the City and the Owner Representative a relocation certificate (the "Utility Relocation Certificate ") in the 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 disconnected, 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 and/or 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 10.1 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 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 or satisfaction of any claim that arose prior to termination, and such claim shall survive termination of this Agreement. Furthermore, provided this Agreement has not been terminated, if the City exercises any reconveyance right of property described in this Agreement which shall result in a termination 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 approved by the City). 10.4 Notwithstanding the foregoing, even if 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 Reconveyance Right in accordance with the terms and conditions of the Declaration of Reserved Rights and Agreement Not to Encumber the Abandoned Alley (the "Declaration"), between the City and the Developer (as defined in the Declaration). 12 7776119692.016 CurrenY135528994 02/13/2009 01:38 PM 10.5 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 10.1 and 10.2 above are terminated and thereafter this Agreement shall be of no farther force and effect. 11. Owner Execution. Each Owner shall execute this Agreement on behalf of such portion of the Abandoned Alley that such Owner owns as a result of the Abandonment Resolution. EXECUTION PAGE TO FOLLOW 13 7776119692 -016 Current/135528994 02/13/2009 01:38 PM IN WITNESS WHEREOF, the parties to this Agreement set their hands and seals the day and year first above written. By: C)-^s� —� ,4,�y ,City Attorney STATE OF r j o r i! d (2 COUNTY OF R) I CITY OF DELRAY BEACH, FLORIDA By:— 4 �" (.P cc; The foregoing instrument was acknowledged before me this day of Q , 2009, by 1Ti i'a E 11 It 5, the of the CITY OF DELRAY BEACH, FLORIDA. He /She is personally known t6 me ype of i AL2'� Signature o rson Taking J66owledgment Catherine Inglese -M R. Commission # DD665576 .° Expires July 22, 2010 � � � bonded Troy Feln • Insurenoe, Ine- Bp0.3p3.7C10 7776/19692 -016 Current/13552899v6 02/13/2009 01:38 PM STATE O� t FREECOR WV STMFNTS, INC., a Florida "ration By: Print Name: j, Title i -r s F 6-1r fil 4-- } ss COLTNTY OF. D. /"2 The (foregoing instrument was ac�tiwJledg_pe_�d before 7me this Z�i'day of �� - �77��7 , ?' a by l � �I m `3 [i fa..'r'b$ 1J1 �!� �.; J` Cl. &LLJ— of FREECOR INVESTMENTS, liV C.. -.am Florida corporation, on behalf of the eflrporation. He /She is (check one) personally+ known tome or has pri ducted as identification, Notary Public Signature CAROL ANN SARDO (� 4 MY COMMISSION #00518597✓�� t i° :11411 EXPIRES: FEB 14, 2010 rlr►1 Name Bonded through #st State Insurance • - -. _ .. _ State of at Large Condinissidn Na (SEAL) My Cammisslon DCplres: 7776/19692 -016 Currenil1 1552899v6 02/18/2009 04 :14 PM yI` + I V1 a Print Name: STATE OF ss: COUNTY OF ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its e 1 partner B Print Nam Title:�f`i� The foregoing instrument was acknowledged before me this day of k w 204 byNj)jAM #•/gjjMd the of Atlantic Center, Inc., a Florida corporation, the general partVHe f ATLANTI CENTS- . D., a Florida limited partnership, on behalf of the partnership. She i s (check one) ✓✓ personally known to me or has produced as identification. 144, KASEY A. QEJIGLEY 19=- MY COMMISSION # DD 778596 g EXPIRES• Ap6143, 2042 BondedThruN*ryPu b)1denv ,, (SEAL) a - iw Print Name State of Commission No.: My Commission Expires: at Large 7776119692 -016 Cumnt/I3552899v6 02/13/2009 02:05 PM STATE OF a } COUNTY OF P } CDS ASJ BUILDING, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager B Print Name:�r% =" Title: The foregoin instrument was acknowledged before me this Pday of 0 20i flfl b W�il�i� �1�1 he of CDS International Realty, LLC, a Florida limited liability company, manager of C S AS.i BLT ING, INC., a Florida corporation, on behalf of the corporation. L56/She is (check one) ✓personally known to me or has produced as identification. /' x1flAIJU, 6. ftukA.C-L N AFPubld Signature No' C#00778546 hM1Y 413 2412 IXFfR1rS,�ut�sss Bmdedn"I�t�sY (SEAL) Print Name State of Commission No.: My Commission Expires: at Large 7776/19692 -016 Cumnt/13552899v6 021181200903:26 PM CDS 45, LLC, a Florida limited liability company By: Print Name: - — Title:¢ STATE OF ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me this day of kA r1j" 200 jJV�� {�[y/� �%. M jJ the of CDS 45, LL , a Florida limited liability company, on behalf of the company. WSlal is (check one) personally known to me or has produced KASEY A. O IMEY W COMMISSION # DD 778546 p��JEX�Py,I�R�ES: Apn�l�L11C�3,, 2��0�1�2�y (SEAL) as identification. L 'Ar,I)DJA 144 V- tart' P lic Signature Print Name State of Commission No.: My Commission Expires: at Large 7776/19692 -016 Current/13552899v6 02/13/2009 02;05 PM STATE OF fj 6 � } ) 55: COUNTY OF K—) CDS GAS STATION, LLC, a Florida limited liability company By: CDS International Realty, LLC, a Florida limited liability company, its manager Print Name: Title:i The foregoing instrument was acknowledged before me this 1p day of , 200 byWljj;,aj l Y- Mjj9jV the of CDS International Realty, LLC, a Flori a limited liability company, the manager S GAS STATION, LL ,a Florida limited liability company, on behalf of the company. H &She is (check one) personally known to me or has produced q identification., KASEYA. QUIGLEY MY COMMISSION # DD 778545 = WIRES: April 13, 2012 6mdedThcu Notary Pu*Undamders (SEAL) Signature Print Name State of Commission No.: My Commission Expires: at Large 7776119692 -016 CutTent113552899v6 02/13/2009 02:05 PM Exhibit "A" Legal Description of Abandoned Alley 7776119692.016 CurrenV1355289M 021131200901;38 PM SKETCH OF DESCRIPTION EXHIBIT ,�4" SHEET 1 of 1 LLJ b N.E. 1ST STREET � a o N N.89 °58471F. N 16.00 NO TES. NORTH LINE THIS IS NOT A SURVEY BLOCK 116 E = CENTERLINE O O THE NORTH LINE OF BLOCK 116 :Z _ t j IS ASSUMED TO BEAR N.89058'47'E LL-� it'd �O O� �_� OQ W�awz 0 c) m NORTH RIGHT OF WAY LINE nt90000 'E a SOUTH LINE o BLOCK 116 d EAST ATLANTIC A VENUE DESCRIPTION: 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 & MAPPER #5708 DELRA Y BEACH), ACCORDING TO THE PL T THEREOF AS RECORDED IN FL T BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 7.0 FEET DATE.' JULY 9, 2008 THEREOF. O BRIEN, SUITER & O BRIEN, INC CERTIFICATE OF AUTHORIZATION #L6353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE Kl DEL RAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 5 ABANDONMENT (561) 276 -4501 (561) 732 -3279 o, mi r� 8. �i Q? 3 a; a, U. z t� 1 0� U; Q; �i 0� ORDER NO. 04 -164 PARCEL Exhibit `B" Traffic Enforcement A _ re�ement 7776119692 -016 CurrenY13552899A 02/13/2009 01:38 PM TRAFFIC ENFORCEMENT AGREEMENT (Abandoned Alley) WHEREAS, 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 possible; and WHEREAS, ATLANTIC CENTER, LTD., a Florida limited partnership, FREECOR INVESTMENTS, INC., a Florida corporation, CDS ASJ BUILDING, LLC, a Florida limited liability company, CDS 45, LLC, a Florida limited liability company and CDS GAS STATION, LLC, a Florida limited liability company (hereinafter collectively 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 influence on the community; and WHEREAS, F.S. 316.006(2),(b),(1) allows for such enforcement on private roads pursuant to a written agreement approved by the City Commission which provides for reimbursement 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 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 the Abandoned Alley, which is described on Exhibit "1" attached hereto. 2. The enforcement of the traffic laws 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 costs of the traffic control and enforcement incurred by the CITY. 4. The speed limit shall be that set by Florida Statute 316.183(2) and 316.189(1) of 30 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. 316.189(3). 6. Stop signs must conform to the Manual and specifications of the United States Department of Transportation as stated in Florida Statute 316.006(2)(b)(3). 7, The Owner shall defend, indemnify and hold harmless the CITY, its agents, 6422119692 -016 Current/13572005v2 02/18/2009 03:55 PM 1 officers, officials and employees from any and 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 on the Abandoned Alley 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. 768.28. This indemnification shall survive the cancellation of this Agreement. 8. The Owner shall provide liability insurance to cover the indemnification in the amount of $1,000,000.00 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 force and effect for as long as the certain Abandoned Alley Easement between City and Owner, which is recorded in the Public Records of Palm Beach County, Florida, is in effect. 10. 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 FOLLOW] 8422119692 -016 CurrenY13572005v2 021131200911;44 AM 2 This Agreement is made and entered into on this day of , 2009. ATTEST: CITY OF DELRAY BEACH, FLORIDA City Clerk Rita Ellis, Mayor Approved as to form and legal sufficiency: Catherine M. Kozol, Asst. City Attorney 8422119692 -016 CurrsnV13572005v2 021131200911:44 AM OWNER ATLANTIC CENTER, LTD., a Florida limited partnership By: Atlantic Center, Inc., a Florida corporation, its general partner Print Name: Its: 8422119692 -016 CurrenV13572005v2 021131200911:44 AM FREECOR INVESTMENTS, INC., a Florida corporation Print Name: Its: 8422119692 -016 GurrenV1357200M 02/1312009 11:44 AM CDS ASJ BUILDING, INC., a Florida corporation By: Print Name: Its: 8422/19692 -016 CurreriV13572005v2 021131200911:44 AM CDS 45, LLC, a Florida limited liability company By: Print Name: Its: 84221196922 -016 GurrenV13572005v2 02/131200911:44 AM CDS GAS STATION, LLC, a Florida limited liability company By- CDS International Realty, LLC, a Florida limited liability company, its manager By: Print Name: Its : 8422119692 -016 Current113572005v2 M1312009 11:44 AM EXHIBIT " F" Abandoned Alley 8422/19692 -016 CurrenV13572005v2 021131200911:44 AM SKETCH of DESCRIPTION EXHIBIT ';a " SHEET I OF 1 W N.E. ST STREET J V � b o `V N.89°58'47'E 16.00' NOTES NORTH LINE BLOCK 116 THIS IS NOT A SURVEY e = CENTERLINE M} j THE NORTH LINE OF BLOCK 116 IS ASSUMED TO BEAR N89058'47'E L-LQ o� 0 0 Usoo'"iLr) o� o� m m NORTH RIGHT OF WA Y LINE � ncso°ooao'� Q SOUTH LINE o BLOCK 116 EAST A TLANTIC A VENUE DESCRIPTION- 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 & MAPPER J5708 DELRA Y BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 4 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 70 FEET DATE.• JULY 9, 2008 THEREOF. O'BRIEN SUITER & O'BRIEN INC CERTIFICATE" OF AUTHORIZATION JLBJ5J SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE- PAUL D. ENGLE 955 N. W. 77TH AVENUE, SUITE KI ORDER NO. 04 -164 PARCEL 5 ABANDONMENT DEL RAY BEACH FLORIDA 33445 1 (561) 276 -4501 (561) 732 -3279 �; o, Ri N� 0. N� N; }� � ; Q. 3 ti �; �� �; �; a� U. �� z; 5 Q� �; x, �, a; o� U; �� �� w� �� Q; 0� Exhibit "C" Owner Certificate 7776119692 -016 CurrenV13552899A 02/13/2009 01:38 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 OWNER CERTIFICATE THIS OWNER CERTIFICATE (this "Certificate ") is issued as of the day of , 20 by CDS INTERNATIONAL HOLDINGS, INC., a Florida corporation, as the appointed representative (the "Owner Representative ") of FREECOR INVESTMENTS, INC., a Florida corporation ( "Freecor "), ATLANTIC CENTER, LTD., a Florida limited partnership ( "Atlantic Center "), CDS ASJ BUILDING, LLC, a Florida limited liability company ( "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 "). WITNESSETH: WHEREAS, this Certificate is issued pursuant to Section 10.1 of that certain Easement Agreement, dated as of , 2009, between the City of Delray Beach, Florida (the "City ") and the Owner, recorded in Official Records Book 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 roadway easement (the "Roadway Easement ") over, 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 Agreement and in consideration of the sum of Ten Dollars ($10.00), and other good 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 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 Agreement which provides in pertinent part as follows: The Roadway Easement shall terminate at such time as the Owner Representative executes and delivers to the City the Owner Certificate stating that the tenants and owner of the "Freecor Building" have reasonable and equivalent access to and from the Freecor Building via the 8547119692 -016 CurrenV135554620 02/18/2009 04,24 PM publicly dedicated roadways and/or parking areas without the use of the Abandoned Alley. Upon recordation of the Owner Certificate, the Roadway Easement shall be terminated 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 Agreement. [SIGNATURE PAGE FOLLOWS] 2 6547/19692 -016 CurrenVI3555462v1 021131200911:46 AM IN WITNESS WHEREOF, the Owner Representative hereby executes and delivers this Certificate as of the day and year first above written. WITNESSES: Print N Print Name: STATE OF COUNTY OF CDS INTERNATIONAL HOLDINGS, INC., a Florida corporation By: Print Name: Title: The foregoing instrument was acknowledged before me this day of 20_, by the of CDS INTERNATIONAL HOLDINGS, INC., a Florida corporation. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547119692.016 CurrenU135554620 02/13/200911:45 AM EXHIBIT "A" to the Owner Certificate Abandoned Alle 8547119692 -016 Currentl13555462v1 02J13/200911:46 AM ALL THA T PORTION OF THE NORTH -SOUTH 16 FOOT ALLEY RIGHT OF WAY LYING IN BLOCK 116, TOWN OF LINTON (NOW DEL RA Y BEACH), ACCORDING TO THE PLA T THEREOF AS RECORDED IN PLAT BOOK 4 PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 70 FEET THEREOF. ORDER N0, 04 -164 PARCEL 5 ABANDONMENT PAUL D. ENGLE SURVEYOR & MAPPER #5708 DA TE: JULY 9, 2008 8' N; a; �d1 Q, aO� i N � ti u� k; z� Q� U� Z; o� 0; DESCRIPTION- ALL THAT PORTION OF THE EAST -WEST 16 FOOT ALLEY RIGHT OF WAY LYING SOUTH OF AND ADJACENT TO LOT 11, BLOCK 116, TOWN OF LINTON (NOW DELRA Y BEACH), ACCORDING 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 WA Y FOR US. HIGHWA Y NO, 1 ORDER NO. 04 -164 PARCEL 4 ALLEY ABANDONMENT PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE. JULY 9. 2008 a, Vi Ni 4 N. rn 1 o� U. z; �i a. U; N � u Y� � S � W � 9. 0� Exhibit "D" Utility Relocation Certificate 7776119692 -016 Current/13552899v6 02113/2009 01:38 PM Prepared by and upon Recording Return to: Stuart T. Kapp, Esq. Proskauer Rose LLP 2255 Glades Road Suite 340 West Boca Raton, Florida 33431 UTILITY RELOCATION CERTIFICATE THIS UTILITY RELOCATION CERTIFICATE (this "Certificate ") is issued as of the day of , 2009, by , City Engineer for the City of Delray Beach, whose address is (the "City Engineer "). WITNESSETH: VVHEREAS, this Certificate is issued pursuant to Section 10.2 of that certain Easement Agreement, dated as of , 2009, among the City of Delray Beach, Florida (the "C_ ity "), and Freecor Investments, Inc., a Florida corporation ( "Freecor "), Atlantic Center, Ltd., a Florida limited partnership ( "Atlantic Center "), CDS ASJ Building, LLC, a Florida limited liability company ( "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 "), recorded in Official Records Book , 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 "Utility Easement ") over and under 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 Agreement 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 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. This Certificate satisfies that certain requirement set forth in Section 10.2(x) 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 through an alternative right -of -way and/or easement so that the Abandoned Alley is no 1 8547119692 -016 Current1135558540 02/18/2009 04:25 PM Certificate, the Utility Easement shall be null and void and of no further force or effect and shall be terminated and cancelled of record. 3. All terms not defined herein shall have the meanings set forth in the Easement Agreement. [SIGNATURE PAGE FOLLOWS] 2 8547119692.016 Current1135558540 02/13/2009 01:38 PM IN WITNESS WHEREOF, 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 COUNTY OF CITY ENGINEER: City Engineer, City of Delray Beach The foregoing instrument was acknowledged before me this day of 20 , by , the City Engineer for the City of Delray Beach. He /She is personally known to me or has produced (type of identification) as identification. Signature of Person Taking Acknowledgment 8547/19692 -016 Current/135558540 02/13/2009 01:38 PM EXHIBIT "A" to the Utility Relocation Certificate Abandoned Alley 8547119692 -016 Current/13555854v1 02/13/2009 01:38 PM SKETCH OF DESCRIPTION EXHIBIT ",a" SHEET 1 OF 1 Lo N. E. 1ST STREET U � 0 0 N.8905847'E 16.00' NOTES- NORTH LINE THIS IS NOT A SURVEY BLOCK 118 � � � = CENTERLINE O O THE NORTH LINE OF BLOCK 116 Z: j r j IS ASSUMED TO BEAR N,89058'47'E J� IoW L JLd O _ � o � Qs 0 0 Q QIc v� m NORTH RIGHT OF WA Y LINE h >uso'00'0 E o SOUTH LINE o BLOCK 116 "t EAST ATLANTIC A VENUE DESCRIPTION. - 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 & MAPPER #5708 DEL RAY BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE SOUTH 70 FEET DATE JULY 9, 2008 THEREOF. OBRIEN, SUI TER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION #L B353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE. PAUL D. ENGLE 955 N. W. 17TH A VENUE, SUITE K1 DEL RA Y BEACH FLORIDA 33445 ORDER NO 04 -164 PARCEL 5 ABANDONMENT 1 (561) 276 --4501 (561) 732 -3279 SKETCH OF DESCRIPTION EXHIBIT 'A" SHEET 1 OF 1 Q NO TES. - o THIS IS NOT A SURVEY z m LOT 11, BLOCK 116 16.0' W w 5',�o :z o soh 134.44' LQ J Q 16' PLATTED ALLEY RIGHT OF WAY Q d W AREA = 2,081 SQUARE 0 Z �� FEET MORE OR LESS Qab ; �- J w 1,34,44' �` �Z �5 1 LOT 20 LOT 21 LOT 22 BLOCK 116 BLOCK 116 BLOCK 116 NORTH RIGHT OF WA Y LINE EAST ATLANTIC AVENUE DESCRIP770M ALL THAT PORTION OF THE EAST -WEST 16 FOOT ALLEY RIGHT OF WAY LYING SOUTH OF AND ADJACENT TO LOT 11, BLOCK 116, TOWN OF LINTON (NOW DEL.RA Y BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS THE WEST 50 FEET THEREOF FOR ADDITIONAL ROAD RIGHT OF WA Y FOR U.S HIGHWA Y NO. 1. ORDER NO. 04-164 PARCEL 4 ALLEY ABANDONMENT PAUL D. ENGLE SURVEYOR & MAPPER #5708 DATE. JULY 9, 2008 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. IT 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. IT 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 2,081 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 17th day of FEBRUARY, 2009. ATTEST: .._�\ City Clerk AYOR 2 RES. NO. 08-09 DELRA CITY CLERK F L R I D A D bftd 00 P•I. +4. t.st AictJU= G_LF'AY BEACH FLORIDA 33 444 561/243-7000 All-America City 2001 2001 CERTIFICATION I, CHEVELLE D. NUBIN, City Clerk of the City of Delray Beach, do hereby certify that the attached document is a true and correct copy of Resolution No. 08 -09, as the same was passed by the Delray Beach City Commission in regular session on the 17th of February 2009. IN WITNESS WHEREOF, I have hereunto set my hand and the official seal of the City of Delray Beach, Florida, on this the 25th day of March, 2009. Chevelle D. Nubin, CMC City Clerk City of Delray Beach, Florida (SEAL) 5EFVICE " PERFOPMANCE . 1h.i T EGRTTY " ESPO` SI L.E " INNOVATIVE ° TEA MW0PK 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 (13)(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 II 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. 1s' Street and N.E. 7th 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. Ph Avenue does not prevent the north - south flow of traffic along N.E. 7t"' 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 a left 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. 7th 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 II 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 7th 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 II 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 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 Sim Traffic 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 a street 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. 7th 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. 7th 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. 6th 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 II 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. 1" 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. 15t 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. 3. That the developer enters into a hold - 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 P8Z 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 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. IT 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 K A A XT /l n WEINER & ASSOCIATES, P.A. ATTORNEYS AT LAW 10 S.E. 1St Avenue, Suite C Delray Beach, Florida 33444 Telephone: (561) 265 -2666 Telecopier: (561) 272 -6831 E -mail: imankoff[aD-zonelaw.com MICHAEL S. WEINER LEE E. LEVENSON JASON S. MANKOFF February 10, 2009 FEB 10 2009 PLANNING & ZONING KERRY D. SAFIER STEPHEN B. GEBELOFF Mayor Rita Ellis & City Commissioners (via e-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 10 Avenue Delray Beach, Florida 33444 Mr. Paul Dorling (via hand delivery) Director of Planning and Zoning 100 NW 10 Avenue Delray Beach, Florida 33444 Re: NE 71" Avenue Our File No.: CDRA007 Dear Mayor, Ladies and Gentlemen: Mr. Randal Krejcarek (via hand delivery) City Engineer 434 S. Swinton Avenue Delray Beach, Florida 33444 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 7t" Avenue ( "New 7t"") be a private street in ownership which will function as a public street instead of just making New 7t" a new public street. The purpose of this letter is to clarify the reasons why New 7t" 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 7'" Avenue. There were numerous factors, which led to the current proposal for New 7 th . At the initial meetings, the Director 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: 0ACDRA0071Letter to City re 7th Avenue.Feb 10 2009.doc February 10, 2009 Page 2 of 3 1. New 74h 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 71h 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 City /County /State. We have met with the franchise utilities and coordinated their infrastructure in the "private" tract/easement 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 71h as a private street with a public easement avoids conflicts and clearly identifies maintenance responsibilities /costs. 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 New 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 infrastrtcture. 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 U31 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, OACDRA0071Letter to City re 7th Avenue.Feb 10 2009.doc February 10, 2009 Page 3 of 3 and street cleaning, and the duplication of site drainage and separate roadway drainage, maintenance, etc. ; 6. New 7t' as a private 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" 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 . Mank off enclosure cc: Atlantic Plaza Design Team O:ICDRA0071Letter to City re 7th Avenue. Feb 10 2009.doc EXHIBIT k�-j u Ll > < RE I st ST. I I BUILDING 1.11 FIVE STORY MXE04ZE OM. W1 H SASEN MT PMKM 210.111 pig, lc ALL Of THE PUBLIC UTILITIE5 5HALL BE RELOCATED AROUND THE PERIMETER WITHIN THE PUBLIC RIGHT-Of-WAY ///)=X ❑•❑ ❑ -❑ ❑•❑ ❑•❑ ❑• - LAI& u u u u u u z WF PUBLIC UTILITIES RELOCATION SCALE: V — 100'-0" Its I I BUILDING 1.11 FIVE STORY MXE04ZE OM. W1 H SASEN MT PMKM 210.111 pig, lc ALL Of THE PUBLIC UTILITIE5 5HALL BE RELOCATED AROUND THE PERIMETER WITHIN THE PUBLIC RIGHT-Of-WAY ///)=X ❑•❑ ❑ -❑ ❑•❑ ❑•❑ ❑• - LAI& u u u u u u z WF PUBLIC UTILITIES RELOCATION SCALE: V — 100'-0" of LAMBIT p 6 , , Z H ; i. 3 OFw ND _Z0 t. co r6' i , r ,.r ?i. r / �r � l 1 / �L `:: U K i..'...'. O� z z N J w w - a 3 U, 1 is RIGH OF QA1 T RU -LANE TtIKU-LA 4E DEWAL jo Z D Z c7. 1 12" CONC. BAND 1 BRICK i. PAVERS is - r l 1 f ... ,...: .. . J i.. 8 Ff. CR 55 WALK . __________J. 1 / , , Z H ; i. 3 OFw ND _Z0 t. co r6' i , r ,.r ?i. r / �r � l 1 / �L U OCR b c'r K w . O i� YF. Ill v h tlr \ IZ "'CONC.13AND ' X" "a PAVERS v' , 8 FT. CR SS WALK :r r ' / Y Ss: k 1 a\ , - s r :Xy:- .'.fit =i: :';"YIY -..' {!:�: =. tiF.`•.'Y S i�:% -Y �.� "' �sq�k� �.� ; u - 1(yi ltt 3+ t� Fl ,Eµ� R,I Atlantic Court ;:tz PULIC EA5MENT TO PROVIDE LAN50CAPE, LIGHTING, 5EATING, AND AN 6 FT, MINIMUM 51DEWALK, WITH ALL UTILITIE5 BEING PRIVATELY OWNED. STREET TREE5 PROVIDED. ®PROPOSED STREETSCAPE 'SCALE: 1/16" = VV u I / W t�-�� LLI Ln x M ±Tk E� 40 RIGH ❑F AY =' II�1G f. \ _,. .•.. 1 .: ,.t II A RKING T RU -LANE TIiRU- E PARKIN a r LAN MC _ • LAND APE h tlr \ IZ "'CONC.13AND ' X" "a PAVERS v' , 8 FT. CR SS WALK :r r ' / Y Ss: k 1 a\ , - s r :Xy:- .'.fit =i: :';"YIY -..' {!:�: =. tiF.`•.'Y S i�:% -Y �.� "' �sq�k� �.� ; u - 1(yi ltt 3+ t� Fl ,Eµ� R,I Atlantic Court ;:tz PULIC EA5MENT TO PROVIDE LAN50CAPE, LIGHTING, 5EATING, AND AN 6 FT, MINIMUM 51DEWALK, WITH ALL UTILITIE5 BEING PRIVATELY OWNED. STREET TREE5 PROVIDED. ®PROPOSED STREETSCAPE 'SCALE: 1/16" = VV PLANNING AND ZONING BOARD CITY OF DELRAY BEACH MEETING DATE: AGENDA ITEM: ITEM: GENERAL DATA: January 26, 2009 III. A. -- -STAFF REPORT - -- Abandonment of the right -of -way for N.E. 7'h Avenue, lying between East Atlantic Avenue and N.E. 1$t Street; the 16' east -west alleyway lying within Block 116, located east of N.E. 6"' 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. 1t 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 development, located between East Atlantic Avenue and N.E. 16t Street, east of N.E. 6"' Avenue (Northbound Federal Highway) and west of Veterans Park (Quasi - Judicial Hearing). Applicant .............. ............................... CDS International Holdings, Inc. Agent ............. ............................... Weiner, Aronson, and Mankoff, P.A. Location ............... ............................... Located between East Atlantic Avenue and N.E. 1" Street, east of N.E. 6h 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 District). Adjacent Zonings ......................North: RM (Multiple 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 fights -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. 7'r' Avenue and a 6" water main located within the north - south alleyway. Sewer Service ...... ............................... Abandonment areas contain 36" and 24" force mains located within N.E. 7"' Avenue and a 15" sewer main located within the north -south alleyway. A T AXAMM PLAZA ICTERMS PAR& N < o a u w z L III. A. ^sr.•- - .yi.Cr.. - .r,,, ,�:GS:� rs :r^ ._i. "r;- ';:F,n, _ �.. .;�+•�'„�;'T+ ^r" i � �+tt.,.. ..wl: e';J;':•, . '.ir�..(.�.: �!; S••;, ':� e � - a a .::i� . FIN g .. -Y'? "'.��er. � M �..� , ' FL" - r :U_47': �! .'�,. blur" '�r� �Ti PaX'f ,�r"'"cS'a. >t4 The item before the Board is that of making a recommendation to the City Commission on the proposed 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. 6"' 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 specked 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 11. 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 (13)(5), required findings for the granting of waivers. The subject portion of N.E. 7"' 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. 7th Avenue continues to function as one of the City's downtown "grid- pattem" 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. 6th 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 for a 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 comer of N.E. 1St Street and N.E. 7th 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 several 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 units. 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 townhome and condominium residential units. The development 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 2 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. Also, the above mentioned north -south and east -west alleyways must be abandoned and incorporated into the development area. ffalamw L The abandonment request was submitted by the applicant, CDS International 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 existing /relocated utilities; and then aggregate the proposed abandonment areas with the balance of the Atlantic Plaza II property. • N.E. 71" Avenue The subject portion of N.E. 7"' Avenue is a 597.40' x 40.00' rectangular shaped parcel, containing 23,896 square -feet (0.55 acres) which extends from N.E. 18t 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. 7 "' 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 x 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 a SAS Avenue and the relocated N.E. 7"' Avenue (see ( PARK An AMAc exhibit). I PLAZA • North -South Alleyway of Block 116 The subject area is a rectangular- shaped 16' x 597.35' A T A N i 1 G A V E N U 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 Plaza. Located 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 II 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 116 The subject area is a rectangular- shaped 16' x 130.00' parcel (0.05 acre) which is located approximately 100' north of East Atlantic Avenue and extends from N.E. 6"' 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 N.E. 7h Avenue and Block 116 Alleyways — Abandonment of Right -of -Way (Atlantic Plaza II) Paae 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. 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" Force main within the N.E. Ph 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 over 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. 7"' 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. T_ 5 • LDR Section 2 4 6(M)(5) — Required Findings for a Right -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 II 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. 7m Avenue and Block 116 Alleyways — Abandonment of Right -of -Way (Atlantic Plaza II) Page 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. 7t` 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. / S.E. 7t" Avenue relatively undisturbed. Ultimately N.E. 7"' 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. 6t' Avenue (Northbound Federal Highway) to the new road. It should be noted that the driveway configurations for both the proposed access from N.E. 6:' 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. a 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 — 11 property, this abandonment will not prevent access to any adjacent lot of record. The relocation of N.E. 7t' Avenue includes a 40' replacement ingress - egress easement located approximately 85' to the east at the north end which transitions back to its origin point 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 and /or 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 over 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 (6)(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. 7t' Avenue to approximately 85' from the requirement of 125' (reduction of 40'). Pursuant to LDR Section 2.4.7(13)(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(13)(5), prior to the Planning and Zoning Board Staff Report: January 26, 2009 Portion of N.E. 7th Avenue and Block 116 Alleyways — Abandonment of Right -of -Way (Atlantic Plaza II) Page 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 74h 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. 7 t Avenue does not prevent the north -south flow of traffic along N.E. 7' 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. 7t" Avenue and N.E. 1st Street will in effect make a "left jog" that will nest with the westbound traffic along N.E. 1st Street. Southbound traffic along the stretch of N.E. 7"' Avenue (outside of the project boundaries) would also make a "left jog" at the intersection of N.E. 18t 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 a left 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. 7'h 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. 7th 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 II 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 7th Avenue will change the existing east/west stop control to 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 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. 7tt' Avenue. Also, as noted in the applicant's Planning and Zoning Board Staff Report: January 26, 2009 Portion of N.E. 7"' Avenue and Block 116 Alleyways — Abandonment of Right -of -Way (AUantic Plaza ll) Page 6 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 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 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 a street jog offset of approximately 50'. The N.E. 4th Avenue and S.E. 2"d 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. 7t" 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 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 6t° 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." 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 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. 7t" Avenue Planning and Zoning Board Staff Report: January 26, 2009 Portion of N.E. 7t' Avenue and Block 116 Alleyways —Abandonment of Right -of -Way (Atlantic Plaza ll) Page 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. 7t' Avenue and N.E. 1 s' Street. Given the above, positive findings can be made pursuant to LDR Section 2.4.7.(B)(5) for a reduction below the minimum requirement of 125' of separation for a centerline -to- centerline street jog offset at the intersection of N.E. 1s' Street and the relocated N.E. 7t' Avenue. - S. OEM Communitv Redevelopment Anencv (CRA): On July 24, 2008, 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. 7"' which eliminated the offsetting intersection at Atlantic 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 revised relocation plan for N.E. 7m 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 replacement configuration of the N.E. 7"' Avenue access point along East Atlantic Avenue and the proposed dedicated access along N.E. 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. The City has asked the developer of the property to provide a suitable replacement road for the proposed abandonment of existing N.E. 7"' 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. 7d' Avenue and East Atlantic Avenue. The 85' offset created at the relocated intersection of N.E. 7 th 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. a y. 1. Continue with direction. 2. Move approval of the request for 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. 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 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. L; 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 Section 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. 7�' Avenue and N.E. T4 Street. 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 9 Abandonment: Move approval of the request for the abandonment of the right -of -way for N.E. 70' 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 and the 16' north -south alleyway lying within Block 116, located between East Atlantic Avenue and N.E. 15t 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 (Please see a draft version of the documents contained in attachment package #2). 3. That the developer enters into a hold - 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). Attachment Package #1: 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 Attachment Package #2: Abandonment Resolution #08-09 Easement Agreement for Relocated N.E. 7t' Avenue Easement Agreement for the Vacated N.E. 7t" Avenue Easement Agreement for Alleyway Utilifies Easement Agreement for Alleyway Access {� City Of Delray Beach PLANNING AND ZONING DEPARTMENT M E M O R A N D U M TO: Planning and Zoning Board FROM: 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 #1) 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 M-. r °� °T- -1 1-1 ATLANTIC PLAZA - I( Q L — _ J a ABANDONMENT OF EAST -WEST ALLEYWAY IN BLOCK 116 N.E. 1ST CT. O ABANDONMENT OF NORTH -SOUTH ALLEYWAY IN BLOCK 116 CITY OF DELRAY BEACH, FL AT ® O3 ABANDONMENT OF A PORTION OF N.E. 7TH AVENUE PLANNING do ZONING DEPARTMENT w z � LLI z 1ST ST. _■ 2. Q Q ■ 3O. VETERANS cn w ■ Q PARK <t zg� w■ ■ ATLANTIC Of o■ PLAZA w z ■ � �- o ■ Ct `r z on z 1. A T L A N T IC A V E N U E w w Q a � Q cy � co LJ vi a w IZ vi N r °� °T- -1 ATLANTIC PLAZA - I( --Mgmmm-` L — _ J 1O ABANDONMENT OF EAST -WEST ALLEYWAY IN BLOCK 116 SUBJECT AREAS O ABANDONMENT OF NORTH -SOUTH ALLEYWAY IN BLOCK 116 CITY OF DELRAY BEACH, FL ® O3 ABANDONMENT OF A PORTION OF N.E. 7TH AVENUE PLANNING do ZONING DEPARTMENT — 00TAL 9E- MqP SMTEM -- MAP REF: LMA237 w Q a N.E. 1ST CT. LLi z w z 1ST ST. Z 4 Q ■ CD }' Q ■ VETERANS w: A. o PARK o a ATLANTIC ■ o ■ PLAZA W o■ O Q m■ o■ z■ A T L A N T I C A V E N U E Lei w > cr Q Q Lv � > cy Q V) W J V) W N ATLANTIC PLAZA - II _ PRO.CT LIMITS ACCESS PLAN O ® PROPOSED DEDICATED ACCESS FROM N.E.6TH AVENUE CITY OF DEIRAY 9EA04, FL PLANNING k ZONING DEPARTMENT © REPLACEMENT INGRESS - EGRESS EASEMENT TO BE DEDICATED FOR N.E. 7TH AVENUE - DIGITAL 84SE MAP SYSTEM -- MAP REF: LMA237A hi W.-A lj m loll I'll Foil 0 ❑ 11 ❑ ❑ ❑ u 0 0 I • 23 1 IF 9 '-2 k I Ell r, OR '3AV �R*H -dAV T* SKETCH OF DESCRIPTION ,, EMMIT "A" EXHIBIT C SIEE-T 1 OF 1 N.E 1ST STREET U ' � O O N N89 °58'47 "E. 40.00 N07FS NORTH DIVE NORTH UNE 77-IS IS NOT A St RVEY BLOCK 116 PB. 50, PAGE 129 F = CENTERLINE NOR 774 LIAE OF ISAS9AED TO BEAR N89 58'47"E. 1 L Z Q P.B. = PLAT BOOK cS to vi NoN L, L D(6 J m NORTH RIGHT OF WAY LINE SOUTH LINE S W. CORNER BLOCK 116 P.B 50, PAGE 129 NORTH RIGHT AM OF WAY LINE ri. 1 AG" 1 2008 EAST ATLANTIC . ...... A VENUE PLAI'IN.11%'G & ZONMr, DESCRIP770 k ALL THAT PORTION OF TfE 40 FOOT ROAD RIGHT OF WAY FOR N.E. 77H AVEMIE BOU>VDED AS FOLLOWS- ON 77-E NORTH BY FJAUL D. E GLE TIE EASTERLY EXTENSION OF THE NORTH LIW OF BLOCK SURVEYOR & MAKER 15708 116, TOWN OF LINTON (NOW DELR4 Y BEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 4 PAGE 3, PULIC RECORDS OF PALM BEACH COUVTY, FLORIDA AND ON DATE. JULY 9, 2008 THE SOUTH BY THE EA57ERL Y EXTENSION OF 77-E NORTH RIGHT O'BRIEN, SUiTER & O'BRIEN, INC OF WAY LINE FOR EAST ATLANTIC AVENUE, SAO NOR77 -1 RIGHT CERTIFICATE OF AUTHORIZATION ILB353 OF WAY LINE BEING A LINE 7 FEET NORTH OF ANA PARALLEL SURVEYOR AND MAPPER IN RESPONSIBLE TO THE SOUTH LINE OF SAID BLOCK 116 CHARGE. PAUL D. ENGLE 955 N. W. 17TH AVENUE, SUITE Kl DELRAY BEACH FLORIDA 33445 ORDER NO. 04 -164 PARCEL 8 ARAN NT (561) 276 -4501 (561) 732 -3279 SKETCH OF DESCRIPTION EXHIBIT. 1'' EXMBIT "A" SIZET 1 OF 1 w N.E. ST STREET J U O O 2 N N.89 °5847E N 16.00' NOTES- N0I?TH LAE THS IS NOT A SURVEY BLOCK 116 e = CENTERLINE O O TIE NORTH LINE OF BLOCK 116 t j r j IS ASSUMED TO BEAR N8905847E o� O O o Q� o o o O QQ NORTH RIGHT OF WAY LINE K 6.00, 910°00� � o SOUTH l.wE o BLOCK 116 `E EAST A TLAN77C A VENJE DESCRIPTIOM ALL THAT PORTION OF 71-E NORTH -SOUTH 16 FOOT ALLEY PAUL D. ENGLE RIGHT OF WAY LYING IIV BLOCK 116, TOWN OF LINTON (NOW SURVEYOR & M PER 15708 DEL RAY BEACH), ACCORDING TO THE PLAT MREOF AS RECORDED #V FLAT BOOK 1, PAGE 3, PUBLIC RECORDS OF PALM BEACH COU VTY, FLORIDA, LESS THE SOUTH 70 FEET DATE- JULY 9, 2008 THEREOF 0 BRIEN, SUITER & O'BRIEN, INC CERTIFICATE OF AUTHORIZATION ILB353 SURVEYOR AND MAPPER IN RESPONSIBLE CHARGE: PAUL D. ENGL E 955 N. W. 17TH AVENUE, SUITE Kl DEL RAY BEACH FLORIDA 33445 ORDER N0. 04 -164 PARCEL 5 ABANDONMENT (561) 276 -4501 (561) 732 -3279 SKETCH OF DESCRIPTION EXl 6T 'A " E X H! BIT "A SHEET 10F 1 Q NOTES.- THS IS NOT A SURVEY Z m LOT 14 BLOCK 116 16.0' O - 15' W z lio.00 m 16' PLATTED ALLEY RIGHT OF WAY p •Zo AREA = 2,081 SQUARE jw FEET MORE OR LESS Q Q ° lio.00� LOT 20 LOT 21 LOT 22 BLOCK 116 BLOCK 116 BLOCK 116 Qo o NORTH RIGHT OF WAY UNE EAST ATLANTIC AVENUE DESCR1Pn0ft ALL THA T PORTION OF Tf-' EAST -WEST 16 FOOT ALLEY RIGHT OF WAY LYM1G SOUTH OF AND ADJACENT TO LOT 11 BLOCK 116, TOWN OF LINTON (NOW DELRA YBEACH), ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK I PAGE 3, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, LESS TfE WEST 5.0 FEET THEREOF FOR ADDITIONAL ROAD RIGHT OF WAY FOR U.S HGHWAY NO i ORDER NO. 04 -164 PARCEL 4 ALLEY A8ANDOMENT PAUL D. ENGLE SURVEYOR & h DATE. JUL Y 9, 2008 15708 VA A let loo t w7 .4 iiln 1. fib$ ,. AVM1031 YM 7Y15YO,O Yb1Ht o d g � i z y 1Fi �' Pit �° °� WEINER, ARONSON & MANKOFF, P.A. ATTORNEYS AT LAW 10 S. E. 1at Avenue Delray Beach, FL 33444 Telephone: (561) 265 -2666 Telecopier: (561).272 -6831 E -mail: jmankoff@zonelaw.com MICHAEL S. WEINER CAROLEJ.ARONSON JASON S. MANKOFF December 11, 2008 Mr. Paul Dorling Director of Planning and Zoning City of Delray Beach. 100 N.W. 1 st Avenue Delray Beach, Florida 33444 Re: Street Offset Waiver Request Our File No.: CDRAO06 Dear Paul: KERRY D. SAFIER STEPMEN.B. GEBELOFF Via Hand - Delivery IDI1 DEC 1 PLANNING & Z_0ir NG This letter is a waiver request pursuant to Section 2.4.7(8)(2) of the Delray Beach Land Development. Regulations (°LDRs') involving the granting of relief from LDR Section 6.1.2(C)(2)(4) to reduce the center line street jog offset along NE 7th Avenue to approximately 85'. To support a waiver, LDR Section 2.4.7(B).(5) requires that the governing body make a finding that granting a waiver: (A) Shall not adversely affect the neighboring area; The realignment of NE 70' 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 calminW 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 0ACDRA01 I�Letler to Dorting re.otfset. Dec 11.1008.doc 1 # street C a December 11,2008 Page 2 of 3 the right. These movements nest together to minimize any potential conflicts. (B) Shall. not signi>Ilcandy diminish the provision of public facilities; The realignment will not diminish the provision of public facilities. The realignment of NE 7th Avenue will change the existing east/west stop control to two north /south stop controlled T-i ntersections as shown in the figure to the right. To determine whether the new intersection geometry diminishes the roadway and intersection level of service an operational analysis was performed using Synch of this Intersection Offset Justification Analysis and Associates, Inc.. is attached as Exhibit "A ". ro and SimTraffic. A copy prepared by Kimley -Hom 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. The table below provides a summary of the existing and proposed operational conditions for the :AM and PM peak hour scenario obtained from Synchro. (C) Shall not create an unsafe situation; and, 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 =tum movements that are 0ACORA0111Letter to Dorflng re offset. :Dec 11.2006.doc CoSp ROM 7tds design agates e a felt lumlock -upon the aoss:ro0. IL also pemi�saash:prone traifiC ngvefients been dmres AM Peak:Hour PM Peek Hour CondkionlA roach Level of Service (LOS), Level.of Service LOS ES WB NB SB ES WB NB SB Existing Geometry B B A A B c A A Proposed Geometry North L A A NIA B. A A NIA B South L A A B NIA A A B NIA (C) Shall not create an unsafe situation; and, 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 =tum movements that are 0ACORA0111Letter to Dorflng re offset. :Dec 11.2006.doc CoSp ROM 7tds design agates e a felt lumlock -upon the aoss:ro0. IL also pemi�saash:prone traifiC ngvefients been dmres December 11, 2008. Page 3of3 usually associated with offset intersections; as shown in the figure on the right. 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. (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 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 6'h'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. This project meets or exceeds the requirements of LDR Section 2.4.7(B)(5) for this waiver request. By granting this waiver, a superior product will be achieved. The waiver will not adversely affect the neighboring area, significantly diminish the 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 for another applicant or owner. Thus, this waiver request should be approved. Consequently; a positive. finding with respect to LDR 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 yours, Jason S. Mankoff JSM:aly Enclosure Cc: Mr. David Harden,. City Manager (via hand delivery wl enclosure) Mr. Bill Milmoe (w/ enclosure) Mr. Derek VanderPloeg (w/ enclosure) Mr. Mike Covelii (wl enclosure) Mr. Fred Schwartz (w/ enclosure) Michael S. Weiner, Esquire (w/ enclosure) O:ICDRA0MLetter to Dortiro re offset. Dec 11. 2008.doc 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 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. H. 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. November 8, 2008 2. 16 _SusA � oXT� jl, A�oT S,� (o , `7. a, IZ. 13 a.�ii✓ . �7 , IL 3 - F pµ -e zi I DECEOVE KO 008 1[ PLANNING & ZONING 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 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 further adds to traffic congestion and slowing and does not conform to the city's Master Plan. November 8, 2008 A 4/f- 0,4049er # - K--C 1q. 1-10611 a • k r3i ,3 CQ j,, , AP 7 i-T �5. Gv - Ci r-�- s: , ., It r, N /- L 11 CI C---t _ r+uv- i s -tents 1 e: Z i YM OPT . PMSGMP 3024298862 P.01 Page 1 of 1 ,F'S Jfit°� Z i d- ,5'S ,6ET Subj: FW: Anna, pate forward to all residents and ask them to fax back to us by 1 Ili a Date: 11/132008 4 :04:07 AM Eastern Standard Time From: delraysummit®.bOtwuth.not Ann Spedale, LCAM Property Manager Delray Summit, Inc. 561 -278 -2050 ­­—Forwarded Message: ----- ---- -- From: oktaysabellsouth.net To: delraysummitCbellsouthmet (Delray Summit) Subject: Anne, pia forward to all residents and ask them to fax back to us by 11115 Date: Thu, 13 Nov 200613 :58 :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 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 traffic calming, The current slated project of Atlantic Plaza 11 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 Il, 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, November 8, 2008 P_F �° -COs 510 An , vn lJA/ r F'14 Al 1666 L01O/4 Y JT Thmcria., tv,_._.., .- . ._t - - I1.1~- 14 ARTRORR1NO. 11/13/2008 14:16 9147371967 Ann Spedale. LCAM Property Manager Delray Summit. Inc. 561-276-2050 VALERIA PAGE 01/01 r ago ` vA. o Forwarded Ltesssge: - -- From: oktays @belisouth.net To: delraysurnmitQbei .net (Defray Summit) Subject: Anne, pis forward to all residents and ask them to fax back to us by 11115 Date: Thu, 13 Nov 200813:58:28 +0000 We, the residents of the Delray Summit, are committed to ensuring that our "village I with Ss unique, small city charm. The downtown Delray Beech Master Plan once afforded us this assurance by stating and aspirations of the community", including beautification and traffic calming. The current slated project of Atlantic Plaza Il goes against the Master Flan by addinc with a huge influx of people and traffic. This complex, added to many other new builc small *village by the sea ° conoept that once served its citizens and businesses well. Public Notice 0 200 8-209 is the notice of abandonment of three tights -0-way essoch Plaza 11. We would request that the Planning and Zoning Department and Board, der streets as doing so further adds to traffic congestion and slowing and does not confo November 8, 2008 Ann Spedale. LOAM Property Manager Delray Summit, Inc. 661-278-2050 Forwarded Message : -- From: oktaysi@belisouth.net To: delraysummlt@bellsouth.net (Delray Summit, Subject Anne, pis forward to all residents and ask them to fax back to us by 11!15 Date: Thu, 13 Nov 200813 :58:28 +0000 We. the residents of the Delray Summit, are committed to the sea ", continues to serve Its citizen's with its unique, sm; The downtown Delray Beach Master Plan once afforded us that the city would develop with the "dreams and aspiration including beautification and traffic calming. https:llwebinC- OptimuvLnettmsg fs lr.htnll ?& security= false &lan"n&popupLevelmun... 11/33/2008 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 traffic calming. The current slated project of Atlantic Plaza II goes against the Master Plan by adding a very dense modem building complex along with a huge influx of people and traffic._ 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 # 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 further adds to traffic congestion and slowing and does not conform to the city's Master Plan. November 8, 2008 L'I Y- /34 -Vb43 P.1 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 traffic calming. The. current slated project of Atlantic Plaza H goes against the Master Plan by adding a very dense modern building complex along %x 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 # 200 8-209 is the notice of abandonment of three rights -of- way associated with the current slated plan of Atlantic Plaza H. 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. November 8, 2008 s 1110812006 03:06 7183176032 PAGE 01/01 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 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 further adds to traffic congestion and slowing and does not conform to the city's Master Plan. Nove.mber 8, 2008 J�ff y ,6 / 4,�� z - eav,��4 10r 7 ZI - From: David Fieldhouse aut From: David Fieldhouse <rosoniusa @yahoo.com> To: Ann Spedale <delraysummit @bellsouth,net> Subject: Petition Date: Saturday, November 8, 2008 6:11:02 PM Attached, hope you can print it out OK. David We, the residents of the Delray Summit, are committed to ensaFing that our "village by the sea', continues to serve its citiZell`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 beautifieation and traffic calming. The current slated project of Atlantic Plaza 11 goes agate st the Master Plan by adding a very dense modem 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 # -209 is the notice of abandDament of three rights- or-may associated with the current slated plan of Atlantic Plaza IL We would request that the Planning and Zonimg Departmem and Hoard, deny the request. of the developer to .alter these streets as dating so further adds to traffic congestion and slowing andidoes not conform to the city's Master Plan. November 8, 2008 David Reldtiause 1001) JrRyffi S� 7E 33483 Page 1 of 1 [Print] Close) http: // webmail .att.netlwmc /vlwml4918360B0003 CEF200002BDB22230647029BOA02D2089B9 ... 11/10/2008 Arlen D. Dominek 50 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. 1 urge the Planning and Zoning Department to NOT approve this request for nhnnrinnmcant Best regards, Arlen D. Dominek Peter Loosen, MD 1000 Lowry Street #5E Delray Beach, FL 33483 Tel: 561 265 1166 Fax: 561 278 6560 Ploosen@-mail.com 11 November 2008 Delray Planning and Zoning Board City Hall 100 NW 1 s Avenue Delray Beach, FL 33444 Re: Atlantic Plaza II Development Dear Board Members: 1 would like to take this opportunity to present my concerns about the current proposal of Atlantic Plaza 11, 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 1 -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 7"' 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 village charm, so to speak. am aware that many citizens raised their concerns about the building's height exemption at last month's public hearing. However, I have been informed that after last month's public hearing only one (!) 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: oktays @bellsouth.net [mailto:oktays @bellsouth.net] Sent: Saturday, November 08, 2008 4:52 PM To: Dorling, Paul Subject: Atlantic Plaza R Susan Oktay 1000 Lowry St., Apt. 5D Delray Beach, FL 33483 Delray Beach City Officials November 08, 2008 I would like to take this opportunity to address the current proposal of Atlantic Plaza R 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 60 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 abandonment 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 Oktay 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. 15t Street and N.E. 7th 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(B)(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(B)(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 17th day of February, 2009, by a vote of in favor and opposed. ATTEST: Rita Ellis, Mayor Chevelle Nubin, City Clerk 2