Res 29-11[ITY OF DELR114 BEII[H
DELRAY BEACH
All-America City
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1993
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CITY CLERK
CERTIFICATION
I, CHEVELLE D. NUBIN, CMC, City Clerk of the City of Delray
Beach, do hereby certify that the attached document is a true and correct
copy of Resolution No. 29-11, as the same was passed and adopted by the
Delray Beach City Commission in regular session on the 2nd day of August
2011.
IN WITNESS WHEREOF, I have hereunto set my hand and the
official seal of the City of Delray Beach, Florida, on this the 3rd day of August
2011.
~~~ ~~„~,
Chevelle D. Nubin, CMC
City Clerk
City of Delray Beach, Florida
(SEAL)
SERVICE PERFORMANCI
RESOLUTION N0.29-11
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO
EXCHANGE CERTAIN REAL PROPERTY IN PALM BEACH COUNTY,
FLORIDA, DESCRIBED BELOW WITH DEPOT INDUSTRIAL CENTER,
LLC.; HEREBY INCORPORATING AND ACCEPTING THE
AGREEMENT TO EXCHANGE REAL PROPERTY STATING THE
TERMS AND CONDITIONS FOR THE EXCHANGE.
WHEREAS, the City wishes to exchange the property described below, for a public purpose, with
Depot Industrial Center, LLC; and
WHEREAS, Depot Industrial Center, LLC wishes to exchange the property described below in
order to facilitate its development project.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That the City Commission of the City of Delray Beach, Florida, hereby agrees to
exchange property with Depot Industrial Center, LLC for a public purpose, said parcels being more
particularly described as follows:
See Exhibit "A", attached hereto.
Section 2. That the terms and conditions contained in the Agreement to Exchange Real Property
between the City of Delray Beach and Depot Industrial Center, LLC are incorporated herein.
PASSED AND ADOPTED in regular session on the ~~ day of , 2011.
ATTEST: MAYO R
City Clerk
EXHIBIT "A"
City shall transfer to Depot Industrial Center, LLC property described as:
Parcel 1
Legal description: Tract A-3
A portion of land lying in Section 18, Township 46 South, Range 43 East, City of Delray Beach,
Palm Beach County, Florida, being more particularly described as follows:
Commence at the SW corner Mack Industries Delray-Plat as recorded in Plat Book 43, Page
138 of the Public Records of Palm Beach County Florida; said corner being on a curve concave
westerly having a radius of 541.40' and a delta angle of 22°30'03"; radial bearing through said
corner bears S81 °25'47"E; thence Northwesterly along said curve an arc length of 212.62 feet to
a point of tangency; thence N13°55'52"W a distance of 79.15 feet to the point of beginning;
thence N89°39'19"W a distance of 22.90 feet; thence N00°48'37"W a distance of 100.63 feet; to
a point on a curve concave easterly having a radius of 25.00 feet and a delta angle of 13°06'33";
radial bearing through said point bears S89°11 '23"W; thence Southeasterly along said curve an
arc distance of 5.72 feet to a point of tangency; thence S13°55'52"E a distance of 97.97 feet to
the point of beginning; containing 1,119 square feet more or less
Parcel 2
A parcel of land lying in Section 18, Township 46 South, Range 43 East, City of Delray Beach,
Palm Beach County, Florida, said parcel being more particularly described as follows:
Commence at the NE corner of said Section 18; thence N 89°09'21" W, along the North line of
said Section 18, a distance of 251.13 feet; thence S 14°28'43" W, along the East right of way line
of the CSX Railroad, a distance of 143.88 feet to a point on a curve concave Northerly having a
radius of 600.00 feet and a delta angle of 11 °49'20"; radial bearing through said point bears N
00°33'26" W; thence Easterly, an arc distance of 123.80 feet to a point on a curve concave
easterly having a radius of 215.00 feet and a delta angle of 27°38'45":, radial bearing through
said point bears S 65°39'04" E; thence Southerly along said curve an arc length of 103.74 feet to
the point of beginning, said point having a radial bearing of N 86°42'29" E and being a point of
compound curvature, having a radius of 215.00 feet; thence Southerly along said curve, concave
Easterly and having a delta angle of 01°11'48", an arc Distance of 4.49 feet to a point of
tangency; thence S 04°29'19" E, a distance of 982.51 feet, thence S 31°05'49" W a distance of
160.88 feet to a point on the North right of way line of N.W. 2nd Street; thence S 89°56'26" E a
distance of 204.24 feet to a point on the West right of way line of Interstate I-95 as recorded in
Official Records 2187, Page 1256; said point begin on a curve concave Westerly, having a radius
RES. NO.29-11
of 1063.92 feet, whose radius bears N 85°23'36" W; thence Northerly along said curve having a
delta angel of 8°39'43" an arc length of 160.85 feet; to a point of tangency; thence N 04°03'20"
W along said West right of way line of I-95, a distance of 506.19 feet; thence N 08°04'42" W
along said West right of way line of I-95 a distance of 94.11 feet to a point on a curve; said curve
concave Easterly having a radius of 3969.72 feet; thence Northerly along said curve (being on
the West right of way line of I-95) having a delta angle of 5°31'47" an arc distance of 383.13 feet
to a point on a curve concave Northerly having a radius of 73.00 feet whose radius bears N
61°39'17" W, thence Westerly along said curve, having a delta angle of 105°17'12", an arc
distance of 134.14 feet to the point of beginning.
Parcel 3
A portion of Mack Industries-Delray, as recorded in Plat Book 43 Page 138 of the Public
Records of Palm Beach County, Florida, being more particularly described as follows:
Beginning at the NE corner of said Mack Industries-Delray plat (P.O.B.), thence N 89°56'26" W,
a distance of 149.78 feet to a point of curvature; said curve concave Southeasterly, having a
radius of 25.00 feet and a delta angle of 90°52'11", thence Southwesterly along said curve, an
arc distance of 39.65 feet; thence N 00'°48'37"W a distance of 10.00 feet; to a point of curvature
concave Southeasterly, having a radius of 25 feet and a Delta angle of 90°52'11 "; thence
Northeasterly along said curve for an arc distance of 39.65 feet to a point of tangency; thence
S89°56'26" E, a distance of 149.78 feet; thence S00°48'37" E, a distance of 10.00 feet to the
point of beginning;
Containing 1,752 square feet, more
Depot Industrial Center, LLC shall transfer to the City property described as:
A portion of Mack Industries-Delray as recorded in Plat Book 43, Page 138 of the Public
Records of Palm Beach County, Florida being more particularly described as follows:
Commence at the SW corner Mack Industries Delray-Plat; said corner being on a curve
concave Westerly having a radius of 541.40' and a delta angle of 22°30'03"; radial bearing
through said corner bears S81 °25'47"E; thence Northwesterly along said curve an arc length
of 212.62 feet to a point of tangency; thence N13°55'52"W a distance of 79.15 feet; thence
S89 °39'19"E a distance of 187.16 feet; thence S32°35'19"W a distance of 66.30 feet; thence
S32°35'19"W a distance of 43.58 feet; to a point on a curve concave Southeasterly having a
radius of 632.00 feet and a delta angle of 19°29'29"; thence Southwesterly along said curve
an arc distance of 215.00 feet; thence N79°12'27"W a distance of 16.25 feet to the point of
beginning; Containing 23,055 square feet more or less.
RES. NO. 29-1 1
Coversheet
MEMORANDUM
TO: Mayor and City Commissioners
FROM: R. Brian Shutt, City Attorney
DATE: July 26, 2011
Page 1 of 1
SUBJECT: AGENDA ITEM 10.D. -REGULAR COMMISSION MEETING OF AUGUST 2, 2011
RESOLUTION NO. 29-11/AGREEMENT TO EXCHANGE OF REAL PROPERTY: DEPOT
INDUSTRIAL CENTER, LLC
ITEM BEFORE COMMISSION
Approval of Resolution 29-11 and the Agreement to Exchange Real Property between the City and
Depot Industrial Center, LLC.
BACKGROUND
Depot Industrial Center ("Depot") owns property adjacent to the right-of--way of the current Depot Road
and next to the City's historic train depot that is adjacent to the I-95 right-of--way. The City owns the
strip of property that encompasses the current Depot Road as a result of the property being deeded to
the City by FDOT in 2008. Depot is planning to develop this area and has proposed to exchange certain
properties with the City. See Attachment "1 ". Once the resolution and agreement have been approved
the parties shall have 120 days to close the transaction. Once the closing has occurred, Depot will issue
a temporary easement to the City allowing the public to continue to use Depot Road until relocated
Depot Road (adjacent to the CSX railroad tracks) is constructed by Depot. Depot shall have 48 months
in order to complete the construction of the relocated Depot Road. If Depot fails to complete the
construction within the required time frame the City may use the bond to complete the road or exercise
its reconveyance rights as it pertains to existing Depot Road.
RECOMMENDATION
Approve Resolution 29-11 and the Agreement to Exchange Real Property.
http://itwebapp/AgendaIntranet/Bluesheet.aspx?ItemID=4696&MeetinglD=325 8/3/2011
RESOLUTION NO. 29-11
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO
EXCHANGE CERTAIN REAL PROPERTY IN PALM BEACH COUNTY,
FLORIDA, DESCRIBED BELOW WITH DEPOT INDUSTRIAL CENTER,
LLC.; HEREBY INCORPORATING AND ACCEPTING THE
AGREEMENT TO EXCHANGE REAL PROPERTY STATING THE
TERMS AND CONDITIONS FOR THE EXCHANGE.
WHEREAS, the City wishes to exchange the property described below, for a public purpose, with
Depot Industrial Center, LLC; and
WHEREAS, Depot Industrial Center, LLC wishes to exchange the property described below in
order to facilitate its development project.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That the City Commission of the City of Delray Beach, Florida, hereby agrees to
exchange property with Depot Industrial Center, LLC for a public purpose, said parcels being more
particularly described as follows:
See Exhibit "A", attached hereto.
Section 2. That the terms and conditions contained in the Agreement to Exchange Real Property
between the City of Delray Beach and Depot Industrial Center, LLC are incorporated herein.
PASSED AND ADOPTED in regular session on the day of , 2011.
ATTEST:
MAYOR
City Clerk
EXHIBIT "A"
City shall transfer to Depot Industrial Center, LLC property described as:
Parcel 1
Legal description: Tract A-3
A portion of land lying in Section 18, Township 46 South, Range 43 East, City of Delray
Beach, Palm Beach County, Florida, being more particularly described as follows:
Commence at the SW corner Mack Industries Delray-Plat as recorded in Plat Book 43,
Page 138 of the Public Records of Palm Beach County Florida; said corner being on a
curve concave westerly having a radius of 541.40' and a delta angle of 22°30'03";
radial bearing through said corner bears S81 °25'47"E; thence Northwesterly along said
curve an arc length of 212.62 feet to a point of tangency; thence N13°55'52"W 'a
distance of 79.15 feet to the point of beginning; thence N89°39'19"W a distance of
22.90 feet; thence N00°48'37"W a distance of 100.63 feet; to a point on a curve
concave easterly having a radius of 25.00 feet and a delta angle of 13°06'33"; radial
bearing through said point bears S89°11 '23"W; thence Southeasterly along said curve
an arc distance of 5.72 feet to a point of tangency; thence S13°55'52"E a distance of
97.97 feet to the point of beginning; containing 1,119 square feet more or less
Parcel 2
A parcel of land lying in Section 18, Township 46 South, Range 43 East, City of Delray
Beach, Palm Beach County, Florida, said parcel being more particularly described as
follows:
Commence at the NE corner of said Section 18; thence N 89°09'21" W, along the North
line of said Section 18, a distance of 251.13 feet; thence S 14°28'43" W, along the East
right of way line of the CSX Railroad, a distance of 143.88 feet to a point on a curve
concave Northerly having a radius of 600.00 feet and a delta angle of 11°49'20'; radial
bearing through said point bears N 00°33'26" W; thence Easterly, an arc distance of
123.80 feet to a point on a curve concave easterly having a radius of 215.00 feet and a
delta angle of 27°38'45":, radial bearing through said point bears S 65°39'04" E; thence
Southerly along said curve an arc length of 103.74 feet to the point of beginning, said
point having a radial bearing of N 86°42'29" E and being a point of compound curvature,
having a radius of 215.00 feet; thence Southerly along said curve, concave Easterly and
having a delta angle of 01 °11'48", an arc Distance of 4.49 feet to a point of tangency;
thence S 04°29'19" E, a distance of 982.51 feet, thence S 31°05'49" W a distance of
160.88 feet to a point on the North right of way line of N.W. 2nd Street; thence S
89°56'26" E a distance of 204.24 feet to a point on the West right of way line of
Interstate I-95 as recorded in Official Records 2187, Page 1256; said point begin on a
curve concave Westerly, having a radius of 1063.92 feet, whose radius bears N
85°23'36" W; thence Northerly along said curve having a delta angel of 8°39'43" an arc
length of 160.85 feet; to a point of tangency; thence N 04°03'20" W along said West
right of way line of I-95, a distance of 506.19 feet; thence N 08°04'42" W along said
West right of way line of I-95 a distance of 94.11 feet to a point on a curve; said curve
concave Easterly having a radius of 3969.72 feet; thence Northerly along said curve
(being on the West right of way line of I-95) having a delta angle of 5°31'47" an arc
distance of 383.13 feet to a point on a curve concave Northerly having a radius of 73.00
feet whose radius bears N 61°39'17" W, thence Westerly along said curve, having a
delta angle of 105°17'12", an arc distance of 134.14 feet to the point of beginning.
Parcel 3
A portion of Mack Industries-Delray, as recorded in Plat Book 43 Page 138 of the
Public Records of Palm Beach County, Florida, being more particularly described as
follows:
Beginning at the NE corner of said Mack Industries-Delray plat (P.O.B.), thence N
89°56'26" W, a distance of 149.78 feet to a point of curvature; said curve concave
Southeasterly, having a radius of 25.00 feet and a delta angle of 90°52'11", thence
Southwesterly along said curve, an arc distance of 39.65 feet; thence N 00'°48'37"W a
distance of 10.00 feet; to a point of curvature concave Southeasterly, having a radius of
25 feet and a Delta angle of 90°52'11"; thence Northeasterly along said curve for an arc
distance of 39.65 feet to a point of tangency; thence S89°56'26" E, a distance of 149.78
feet; thence S00°48'37" E, a distance of 10.00 feet to the point of beginning;
Containing 1,752 square feet, more
Depot Industrial Center, LLC shall transfer to the City property described as:
A portion of Mack Industries-Delray as recorded in Plat Book 43, Page 138 of the
Public Records of Palm Beach County, Florida being more particularly described as
follows:
Commence at the SW corner Mack Industries Delray-Plat; said corner being on a
curve concave Westerly having a radius of 541.40' and a delta angle of 22°30'03";
radial bearing through said corner bears S81 °25'47"E; thence Northwesterly along
said curve an arc length of 212.62 feet to a point of tangency; thence N13°55'52"W a
distance of 79.15 feet; thence S89 °39'19"E a distance of 187.16 feet; thence
S32°35'19"W a distance of 66.30 feet; thence S32°35'19"W a distance of 43.58 feet;
to a point on a curve concave Southeasterly having a radius of 632.00 feet and a
delta angle of 19°29'29"; thence Southwesterly along said curve an arc distance of
215.00 feet; thence N79°12'27"W a distance of 16.25 feet to the point of beginning;
Containing 23,055 square feet more or less.
RESOLUTION NO. 29-11
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO
EXCHANGE CERTAIN REAL PROPERTY IN PALM BEACH COUNTY,
FLORIDA, DESCRIBED BELOW WITH DEPOT INDUSTRIAL CENTER,
LLC.; HEREBY INCORPORATING AND ACCEPTING THE
AGREEMENT TO EXCHANGE REAL PROPERTY STATING THE
TERMS AND CONDITIONS FOR THE EXCHANGE.
WHEREAS, the City wishes to exchange the property described below, for a public purpose, with
Depot Industrial Center, LLC; and
WHEREAS, Depot Industrial Center, LLC wishes to exchange the property described below in
order to facilitate its development project.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That the City Commission of the City of Delray Beach, Florida, hereby agrees to
exchange property with Depot Industrial Center, LLC for a public purpose, said parcels being more
particularly described as follows:
See Exhibit "A", attached hereto.
Section 2. That the terms and conditions contained in the Agreement to Exchange Real Property
between the City of Delray Beach and Depot Industrial Center, LLC are incorporated herein.
PASSED AND ADOPTED in regular session on the day of , 2011.
ATTEST:
MAYOR
City Clerk
EXH161T "A"
City shall transfer to Depot Industrial Center, LLC property described as:
Parcel 1
Legal description: Tract A-3
A portion of land lying in Section 18, Township 46 South, Range 43 East, City of Delray
Beach, Palm Beach County, Florida, being more particularly described as follows:
Commence at the SW corner Mack Industries Delray-Plat as recorded in Plat Book 43,
Page 138 of the Public Records of Palm Beach County Florida; said corner being on a
curve concave westerly having a radius of 541.40' and a delta angle of 22°30'03";
radial bearing through said corner bears S81 °25'47"E; thence Northwesterly along said
curve an arc length of 212.62 feet to a point of to"ngency; thence N13°55'52"W 'a
distance of 79.15 feet to the point of beginning; thence N89°39'19"W a distance of
22.90 feet; thence N00°48'37"W a distance of 100.63 feet; to a point on a curve
concave easterly having a radius of 25.00 feet and a delta angle of 13°06'33"; radial
bearing through said point bears S89°11 '23"W; thence Southeasterly along said curve
an arc distance of 5.72 feet to a point of tangency; thence S13°55'52"E a distance of
97.97 feet to the point of beginning; containing 1,119 square feet more or less
Parcel 2
A parcel of land lying in Section 18, Township 46 South, Range 43 East, City of Delray
Beach, Palm Beach County, Florida, said parcel being more particularly described as
follows:
Commence at the NE corner of said Section 18; thence N 89°09'21" W, along the North
line of said Section 18, a distance of 251.13 feet; thence S 14°28'43" W, along the East
right of way line of the CSX Railroad, a distance of 143.88 feet to a point on a curve
concave Northerly having a radius of 600.00 feet and a delta angle of 11 °49'20"; radial
bearing through said point bears N 00°33'26" W; thence Easterly, an arc distance of
123.80 feet to a point on a curve concave easterly having a radius of 215.00 feet and a
delta angle of 27°38'45":, radial bearing through said point bears S 65°39'04" E; thence
Southerly along said curve an arc length of 103.74 feet to the point of beginning, said
point having a radial bearing of N 86°42'29" E and being a point of compound curvature,
having a radius of 215.00 feet; thence Southerly along said curve, concave Easterly and
having a delta angle of 01 °11'48", an arc Distance of 4.49 feet to a point of tangency;
thence S 04°29'19" E, a distance of 982.51 feet, thence S 31°05'49" W a distance of
160.88 feet to a point on the North right of way line of N.W. 2nd Street; thence S
89°56'26" E a distance of 204.24 feet to a point on the West right of way line of
Interstate I-95 as recorded in Official Records 2187, Page 1256; said point begin on a
curve concave Westerly, having a radius of 1063.92 feet, whose radius bears N
85°23'36" W; thence Northerly along said curve having a delta angel of 8°39'43" an arc
length of 160.85 feet; to a point of tangency; thence N 04°03'20" W along said West
right of way line of I-95, a distance of 506.19 feet; thence N 08°04'42" W along said
West right of way line of I-95 a distance of 94.11 feet to a point on a curve; said curve
concave Easterly having a radius of 3969.72 feet; thence Northerly along said curve
(being on the West right of way line of I-95) having a delta angle of 5°31'47" an arc
distance of 383.13 feet to a point on a curve concave Northerly having a radius of 73.00
feet whose radius bears N 61°39'17" W, thence Westerly along said curve, having a
delta angle of 105°17'12", an arc distance of 134.14 feet to the point of beginning.
Parcel 3
A portion of Mack Industries-Delray, as recorded in Plat Book 43 Page 138 of the
Public Records of Palm Beach County, Florida, being more particularly described as
follows:
Beginning at the NE corner of said Mack Industries-Delray plat (P.O.B.), thence N
89°56'26" W, a distance of 149.78 feet to a point of curvature; said curve concave
Southeasterly, having a radius of 25.00 feet and a delta angle of 90°52'11", thence
Southwesterly along said curve, an arc distance of 39.65 feet; thence N 00'°48'37"VII a
distance of 10.00 feet; to a point of curvature concave Southeasterly, having a radius of
25 feet and a Delta angle of 90°52'11"; thence Northeasterly along said curve for an arc
distance of 39.65 feet to a point of tangency; thence S89°56'26" E, a distance of 149.78
feet; thence S00°48'37" E, a distance of 10.00 feet to the point of beginning;
Containing 1,752 square feet, more
Depot Industrial Center, LLC shall transfer to the City property described as:
A portion of Mack Industries-Delray as recorded in Plat Book 43, Page 138 of the
Public Records of Palm Beach County, Florida being more particularly described as
follows:
Commence at the SW corner Mack Industries Delray-Plat; said corner being on a
curve concave Westerly having a radius of 541.40' and a delta angle of 22°30'03";
radial bearing through said corner bears S81 °25'47"E; thence Northwesterly along
said curve an arc length of 212.62 feet to a point of tangency; thence N13°55'52"W a
distance of 79.15 feet; thence S89 °39'19"E a distance of 187.16 feet; thence
S32°35'19"W a distance of 66.30 feet; thence S32°35'19"W a distance of 43.58 feet;
to a point on a curve concave Southeasterly having a radius of 632.00 feet and a
delta angle of 19°29'29"; thence Southwesterly along said curve an arc distance of
215.00 feet; thence N79°12'27"W a distance of 16.25 feet to the point of beginning;
Containing 23,055 square feet more or less.
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AGREEiYIENT
TO EXCHANGE RF;AL PROPERTY
This Agreement to Exchange Real Property (hereinafter referred to as "Agreement"} is
made this day of , 2011 between the City of Delray Beach, a Florida Municipal
Corporation (hereinafter referred to as "City"), and Depot Industrial Center, LLC, a Florida
Limited Liability Company {hereinafter referred to as "Depot").
RECITALS
A. The City is the owner of the real property described as follows:
1. The real property described in Exhibit "I" which is attached hereto and
made a part hereof and is incorporated by reference herein, which land. is presently vested in the
name of the City hereinafter referred to as "City Parcel 1 ", a/k/a "Tract A-3" as shown on the
proposed Plat of Historic Depot Square.
2. The real property described in Exhibit " 2" which is attached hereto and
made a part hereof, and is incorporated by reference herein, which land has been transferred to
the City by the Florida Department of Transportation, hereinafter referred to as "City Parcel 2",
and is shoum as a portion of Tract B-1 and Tract B-2 of the proposed Plat of Historic Depot
Square.
3. The real property described in Exhibit "3" which is attached hereto and
incorporated by reference herein, which land constitutes a ten (10') foot strip of land, south of the
right-of--way of N. W. 2'~ Street Delray Beach, Florida (a/k/a a portion of Depot Road),
hereinafter referred to as "City Parcel ~".
City Parcel 1, City Parcel 2, and City Parcel 3 are sometimes collectively
referred to as the "City Parcels."
B. Depot is the owner of the real property described as follows:
1. All of the real property described in Exhibit "4" which is attached hereto
and incorporated by reference herein, hereinafter referred to as the "Depot Parcel" and is also
known as "Tract A-2" as shown on the proposed Plat of Historic Depot Square.
C. The City has agreed to convey City Parcel 1, City Parcel 2, and City Parce! 3 to
Depot, and Depot has agreed to convey Depot Parcel to the City in accordance with the terms,
conditions, and covenants contained in this Agreement.
D. Depot needs City to convey City Parcel I, City Parcel 2, and City Parcel 3 to
Depot to allow Depot to establish the proposed Flat of Historic Depot Square, and in
Page 1 of 11
consideration of the conveyance of the City Parcels to Depot, Depot has agreed to convey the
Depot Parcel to the City.
E. City and Depot have agreed upon the closing procedure as set forth in the escrow
agreement for recording documents ("Closing Escrow Agreement").
NOW, THEREFORE, in consideration of the mutual promises and the mutual covenants
and agreements herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged by the respective parties, City and Depot hereby covenant and
agree as follows:
1. For the consideration and subject to the terms, provisions, and conditions
hereinafter set forth, City agrees to convey to Depot, City Parcel 1, City Parcel 2, and City Parcel
3. Notwithstanding anything to the contrary in the foregoing, with respect to City Parcel 2, City
shall, subject to its governmental functions, abandon City Parcel 2 and City Parcel 3 and
thereafter quit-claim its interest in City Parcel 2 and City Parcel 3 to Depot, on the conditions
that Depot complies wish all of its obligations under this Agreement and the Closing Escrow
Agreement.
2. For the consideration and subject to the terms, provisions, and conditions
hereinafter set forth, Depot agrees to convey Depot Parcel to City.
3. For purposes of this Agreement, the fair market value of Depot Parcel is Ninety-
Seven Thousand Two Hundred Ninety-Two and nor'100ths ($97,292.00). The amount of the
owners' marketability title insurance policy for the Depot Parcel shall be based upon its agreed
upon fair market value.
4. Conditions to conveyance of City Parcels to Depot:
A. The obligation of City to convey the City Parcels to Depot are subject to
the satisfaction of each of the following conditions and further subject to the Closing Escrow
Agreement, (any of which may be waived in whole or in part by City at or prior to closing):
1. City's abandonment of City Parcel 2 and City Parcel 3, on
the condition that the abandonment shall not be effective until it is recorded in the
Public Records of Palm Beach County, Florida ("Public Records").
2. City's survey, provided to City at or prior to closing by
Depot at Depot's expense, showing that there are no encroachments, boundary
line disputes, violations, excroachments, or any other matter which prevents the
title insurer from deleting the standard survey exception in the title insurance
commitment and owners' marketability title insurance policy for the Depot Parcel
and the Easement described in paragraph 4.(A)(7) of this Agreement.
Page 2 of 1 l
3. City's receipt of a title insurance commitment issued by a
Florida title insurance underwriter agreeing to insure marketable title of the Depot
Parcel and Temporary Easement described in paragraph 4.(A){7) of this
Agreement in the City in the amount of the agreed upon value stated in this
Agreement, subject only to taxes for the year 2011, the proposed Plat of Historic
Depot Square, and the matters set forth in Exhibit "~" which is attached hereto
and made a part hereof. The Depot Parcel shall not be encumbered by the
Roadway Improvement Agreement (as defined below) the Declaration (as defined
below) or the Work Force Housing Covenant (as defined below), and the same
shall be subordinate to the Temporary Easement.
4. Execution and delivery to the City of that certain Roadway
Improvement Agreement a copy of which is attached hereto as Exhibit "6". It is
understood that issuance of the actual letter of credit or bond will be in
accordance with City's requirements pursuant to the issuance of subdivision
improvement permits. The letter of credit and surety bond are sometimes
collectively referred to as the "Bond".
5. Execution and delivery by Depot of the recordable
Workforce Housing Covenant ("Workforce Housing Covenant" or "WF
Covenant") which shall encumber the proposed Plat known as Historic Depot
Square. The WF Covenant shall not be subject to any superior mortgage, lien or
other encumbrance and shall be recorded promptly after the recording of the Plat
of Historic Depot Square as described in the Closing Escrow Agreement. The
Workforce Housing Covenant shall be sufficient in form and content to the City's
counsel and shall otherwise conform to the City's Code of Ordinances.
6. Approval of the proposed Plat of Historic Depot Square
("Plat") by the City in accordance with all applicable City Codes and Ordinances,
the recording of which shall be subject to Depot's compliance with the Closing
Escrow Agreement and its obligation under this Agreement. The Plat shall
contain all of the transfer and drainage requirements set forth in the FDOT/City of
Delray Beach Roadway Transfer Agreement (Depot Road from N. W. 2"d Avenue
to Lake Ida Road (0.461 miles}}, dated February 22, 200$ ("FDOT Agreement")
so that the FDOT retained drainage rights in paragraphs 1(a) and 1(b) therein are
terminated and the obligation to maintain the land described in the FDOT
Agreement is imposed upon Depot or its successors and assigns, without recourse
to City.
7. Delivery by Depot to the City of a temporary
ingress/egress/access easement ("Temporary Easement") in form and content
reasonably satisfactory to the City's counsel, to allow City and the public
vehicular and pedestrian access, over, below, upon, and across Depot Road as it is
Page 3 of 11
now laid out, and for existing utilities, so that the City has legal access from
Depot Road, and lighting along Depot Road, and existing utility services to its
Historic Train Depot located at 1525 West Atlantic Avenue, Delray Beach,
Florida, pending completion of the right of way improvements shown on the Plat
of Historic Depot Square. The Temporary Easement shall terminate only upon
completion of the rights-of--way as shown on the proposed Plat of Historic Depot
Square and Depot's full performance of the Roadway Improvement Agreement.
"I'he form of the Temporary Easement is attached hereto as Exhibit "7".
8. City's inspection of the Depot Parcel, including without
limitation, an environmental audit, to determine that there are no violations of any
applicable governmental laws, rules, statutes, or ordinances related to the Depot
Parcel.
9. Execution and delivery by Depot of the Declaration of
Covenants and Restrictions for Historic Depot Square ("HOA Declaration")
which contains the perpetual obligation of Depot or the homeov~~ers' association
named therein to maintain the drainage areas identified in the FDOT Agreement,
and is otherwise in form and content reasonably satisfactory to City's counsel.
The Declaration shall not be subject to amendment without the City's prior
written consent with respect to the perpetual obligation to maintain the FDOT
drainage areas.
10. Execution and Delivery by Depot of the Declaration of Reserved
Rights ("Reserved Rights Declaration"), the form of which is attached hereto as
Exhibit "8".
11. Execution and delivery by Depot and City of the Closing Escrow
Agreement, the form of which is attached hereto as Exhibit "9".
12. Execution and delivery by Depot and City of the escrow agreement
for the right of way deed ("ROW Escrow Agreement"), the form of which is
attached to the Reserved Rights Declaration as Exhibit "F".
13. Depot shall have performed, observed, and complied with all of
the covenants, agreements and conditions required by this Agreement to be
performed, observed and complied with by it prior to or as of the closing.
14. 3oinder and consent from any mortgagee whose mortgage encumbers
the Plat of Historic Depot Square to the terms and covenants contained in the
HOA Declaration, Temporary Easement, the Roadway Improvement Agreement,
Work Force Housing Covenant, Reserved Rights Declaration, the ROW Escrow
Agreement, the Closing Escrow Agreement, and the Bond.
Page 4 of 11
In the event any one of the conditions precedent to closing described in paragraph 4(A)
above has not been satisfied within one hundred twenty (120) days after the F,ffective Date, City,
at City's option, may elect tv cancel this Agreement whereupon each party shall be relieved from
its obligations hereunder. City may exercise its option by delivering written notice of
cancellation to Depot within one hundred thirty-five (135) days after the Effective Date of this
Agreement.
Conditions to conveyance of Depot Parcel to City:
A. The obligation of Depot hereunder to convey Depot Parcel to City is
subject to the satisfaction of each of the following conditions and further subject to the terms of
the Closing Escrow Agreement (any of which may be waived in whole or in part by the Depot at
or prior to closing):
1. Conveyance and abandonment, as applicable, of City
Parcel 1, City Parcel 2, and City Parcel 3 to Depot accompanied by the
conveyance by Depot to Ciry of Depot Parcel as set forth in the Closing Escrow
Agreement.
2. Approval of the proposed Plat of Historic Depot Square by
the City in accordance with all applicable City Codes and Ordinances.
3. City shall have performed, observed, and complied with all
of the covenants, agreements and conditions required by this Agreement to be
performed, observed and complied v~~ith by it prior to or as of the closing.
(n the event any one of the conditions precedent to closing described in paragraph S (A)
above has not been satisfied within one hundred twenty (i20) days after the Effective Date,
Depot, at Depot's option, may elect to cancel this Agreement whereupon each party shalt be
relieved from its obligations hereunder. Depot may exercise its option by delivering written
notice of cancellation to City within one hundred thirty-five (135) days after the Effective Date
of this Agreement or set forth in the Escrow Agreement.
6. Depot represents and warrants to City as follows, which representations and
warranties shall be deemed made by Depot to Ciry as of the Effective Date and as of the closing
date and shall survive the closing:
A. There are no parties in possession of any portion of Depot Parcel other
than Depot.
B. 'There is no pending or threatened litigation or other proceeding or
assessment affecting Depot Parcel.
Page 5 of 11
C. Depot has complied with all applicable laws, ordinances, regulations,
statutes, rules and restrictions relating to Depot Pazcel or any part thereof.
D. Depot is authorized to enter into this transaction and has full authority to
convey Depot Pazcel to the City without violating any rule, law, statute, agreement or other
condition.
E. Depot shall maintain Depot Parcel in the same condition it exists as of the
Effective Date of this Agreement, reasonable wear and tear excepted, to the date of conveyance
of the Depot Parcel.
F. Depot is not a party to any unrecorded contracts, restrictions, easements,
leases, option contracts, or rights of first refusal with respect to Depot Parcel.
G. Depot warrants that it will not, between the Effective Date and the date of
recording under the Closing Escrow Agreement, without the City's prior written consent, create
by Depot's consent, any encumbrance on Depot Parcel or the Temporary Easement which will
not be discharged at closing.
7. CITY PARCELS CONVEYED AS 1S. WHERE IS. Except as otherwise provided
in this Agreement, the City makes no warranty or representation regarding the title to the City
Parcels and makes no representation or warranty either expressed or implied regarding the
condition, operability, safety, fitness for intended purpose, use, governmental requirements,
development potential, utility availability, legal access, economic feasibility or any other matters
whatsoever with respect to the City Parcels. Depot specifically acknowledges and agrees that
the City shall convey the City Parcels on an "AS IS, WHERE IS, AND WITH ALL FAULTS"
basis and that, except for the City's representations and warranties specifically set forth in this
Agreement, Depot is not relying on any representations or warranties of any kind whatsoever,
express or implied, by City or its respective agents, officers, or employees, as to any matters
concerning the City Parcels including, without Limitation, any matters relating to (1) the quality,
nature, adequacy, or physical condition of the City Parcels (2) the quality, nature, adequacy or
physical condition of soils, fill, geology, or any groundwater, (3) the existence, quality, nature,
adequacy or physical condition of utilities serving the City Parcels, (4} the development
potential, income potential, expenses of the City Parcels (5) the Gity Parcels' value, use,
habitability, or merchantability, (6) the fitness, suitability, or adequacy of the City Parcels for
any particular use or purpose, (7) the zoning or other legal status of the City Parcels, (8) the
compliance of the City Parcels or its operation with any applicable codes, laws, rules,
regulations, statutes, ordinances, covenants, judgments, orders, directives, decisions, guidelines,
conditions, or restrictions of any governmental or quasi-governmental entity or of any other
person or entity, including, without limitation, environmental person or entity, including without
limitation, environmental laws, (9) the presence of Hazardous Materials (as defined herein) or
any other hazardous or toxic matter on, under, or about the City Parcels or adjoining or
neighboring property, {10) the freedom of the City Parcels from latent or apparent defects, (11)
peaceable possession of the City Parcels (12) environmental matters of any kind or nature
Page 6 of 11
whatsoever relating to the City Parcels (13) any development order or agreement, or (14) any
ather matter or matters of any nature ar kind whatsoever relating to the City Parcels or any
improvements located thereon. The City shall not have any obligation to repair, replace, or
remediate *.he City Parcels or any portion thereof, and Depat understands that the City Parcels
are conveyed "t'~.s IS."
As used herein, the term "Hazardous Materials" means (i) those substances included
within the definitions of "hazardaus substances", "hazardous materials", "toxic substances" or
"solid waste" in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. §960 et seq., the Resource Conservation and Recovery Act of 1976, 42
U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S. C. §1801 et seq., or
the Clean Water Act, 33 U.S.C. § 1321 et seq., as amended, and in the regulations promulgated
pursuant thereto; (ii) those substances listed in the United States Department of Transportation
Table (49 CFR § 172.101 j or by the Environmental Protection Agency as "hazardous
(...~
substances", "hazardous materials", "toxic substances" or "solid waste" m such other
substances, materials and wastes which are regulated, or classified as hazardous or toxic, under
applicable local, state or federal laws, ordinances or regulations; and any material, waste or
substance which is petroleum, asbestos, polychlorinated, biphenyls, flammable explosives ar
radioactive materials.
Notwithstanding the foregoing, from and after the Effective Date, City shall operate and
maintain the City Parcels and shall cause the City Pazcels to be operated and maintained i^ a
manner generally consistent with past practices and in a mariner fully compliant with applicable
law and the City shall reasonably endeavor to prevent the introduction of any Hazardous Materials
onto the City Parcels, reasonable wear and tear excepted.
Prior to the Effective Date of this Agreement, Depot has inspected the City Parcels and has
agreed to take title to the City Pazcels "AS IS" by quit-claim deed or abandonment, as the case may
be, with all defects and faults, and subject to easements, restrictions, reservations and all other
matters of record.
8. This transaction shall be closed and the deeds and possession of the respective
parcels ~ri11 be delivered and exchanged pursuant to the Closing Escrow Agreement, but no later
than The closing shall take place in Delray Beach, Florida at a time and. place
designated by Cin-. ~,
- ~~cC.rt~sc;r ~t~ `L~ -1
9. Documents for closing.
A. City shall deliver to the escrow agent appointed in the Closing Escrow
Agreement ("Escrow Agent") the following executed dacuments ai or prior to closing:
] . Quit-Claim L7eed to City Parcel 1, City Parcel 2 and City
Parcel 3.
Resolution abandaning City Parcel 2 and City Parcel 3
Pale 7 of 11
3. Such other documents that are identified in this Agreement
and may be reasonably necessary in the opinion of City's counsel or Depot's counsel
to consummate the transaction described in this Agreement.
B. Depot shall deliver to the Escrow Agent the following executed documents at
or prior to closing:
1. Special Warranty Deed conveying Depot Parcel to City.
2. Affidavits and other documents required by the title insurer to
delete the standazd exceptions from the title insurance commitment and owners'
rnazketability title insurance policy for the Depot Parcel.
Depot Square.
The executed and recordable final approved Plat of Historic
4. The Temporary Easement.
Recordable Work Force Housing Covenant.
6. Recordable Historic Depot Square Declaration of Covenants
and Restrictions and related documents.
7. Closing Escrow Agreement.
8. Such other documents that are identified in this Agreement
and as may reasonably be necessary in the opinion of City's counsel or Depot's
counsel to consummate the transaction described in this Agreement.
C. Notwithstanding anything to the contrary contained in this Agreement or the
Closing Escrow Agreement, the delivery of the closing documents by City and Depot to the Escrow
Agent shall take place simultaneously on the Closing Date.
14. Prior to closing, each party shall beau- the risk of loss or damage to their respective
Parcels from fire or other casualty.
11. ADJUSTMENTS AT CLOSING. The following are to be apportioned pro-rata as of
11:59 P.M. E.S.T. on the day prior to Closing:
A. All real property taxes. In the event that, fol]owing the Closing, the actual
amount of assessed ad valorem real property tax on the Parcels for the current year is higher or
lower than any estimate of such tax used for purposes of the Closing, the parties shall re-prorate any
Page 8 of 11
amounts paid or credited based on such estimate as if paid in November, within thirty (30) days after
written demand is made upon the other parry.
12. DEFAULT .
If Depot fails, neglects or refuses to perform this Agreement within the time
specified, City, at City's option, may proceed in at law or equity to enforce City's rights under this
Agreement. If City fails, neglects or refuses to perform this Agreement within the time specified,
Depot may proceed at law or in equity to enforce Depot's rights under this Agreement.
13. TIME. Time is of the essence in this Agreement. Any time period in this Agreement
shall be measured in calendar days, unless otherwise stated herein, and if the last day for an act falls
on a Saturday, Sunday, or holiday on which the United States Postal Service ("USPS") does not
deliver mail, the time period for performing the act shall be extended through the next weekday
which is not a weekend or day on which the USPS does not deliver mail.
14. BROKER.
A. City represents that it has not listed the City Parcels for sale or otherwise
entered into any agreement for the payment of a real estate brokerage commission regarding the
conveyance of the City Parcels.
B. Depot represents that it has not listed the Depot Parcel for sale or otherwise
entered into any agreement for the payment of a real estate a brokerage commission regarding the
conveyance of Depot Parcel.
15. COSTS. Depot shall be responsible for the costs and expenses related to the
recording of all of the recordable instruments described in paragraph {11) of this Agreement. All
expenses related to obtainment of title insurance for the Depot Parcel and documentary stamp taxes
to be affixed to the deeds of conveyance of City Parcels and Depot Parcel shall be paid by Depot.
Each party shall pay for its own survey, inspection and financing costs, and attorney's fees.
16. ENFORCEABILITY. If any term, covenant or condition of this Agreement, or the
application thereof to any person or circumstance, shall be determined to be unenforceable by a
court of competent jurisdiction, then the remainder of this Agreement, or the application of such
term, covenant or condition to persons, entities or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby and each term, covenant and condition of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
17. N0 MERGER. All warranties, representations, covenants, terms and conditions
herein contained which are intended to survive the closing, shall not merge v~~ith the deeds.
18. NOTIC .Except as otherwise provided herein, ail written notices shall be effective
upon the actual receipt or first refusal of the addressee to accept delivery after having been sent by
Page 9 of 1 l
reputable overnight delivery service or by certified mail, postage prepaid, return receipt requested,
to the following addressees:
CITY: City of Delray Beach
200 N. W. I u Avenue
Delray Beach, Florida 33444
Attention: R. Brian Shutt, Ciry Attorney
With Copy to: Steven D. Rubin, Esq.
980 North Federal Highway, Suite 434
Boca Raton, Florida 33432
Telephone: (561) 391-7992
Fax: (561)347-0828
DEPOT Depot Industrial Center, LLC
250 N. W. 4~' Diagonal
Boca Raton, Florida 33432
With a Copy to: Michael Listick, Esq.
190 S. E. 5'" Avenue
Delray Beach, Florida 33483
Telephone: (561} 276-7424
(561}278-6909
19. EFFECTIVE DATE. The Effective Date of this Agreement shall be the date
when the last one of the City and Depot have signed or initialed this Agreement.
20. GOVERNING I.AW. This Agreement shall be governed by the laws of the State
of Florida.
21 ENTIRE AGREEMENT. All prior understandings and agreements between City
and Depot are merged in this Agreement. This Agreement completely expresses their full
agreement.
22. NO ORAL CHANGE. This Agreement may not be changed or amended orally.
23. SUCCESSORS/NO ASSIGNMENT. This Agreement shall and bind and inure to
the administrators, executors, successors and assigns of City and Depot, respectively. Depot
shall not assign this Agreement and any purported assignment of this Agreement by Depot shall
be a default.
24. COUNTERPARTS: This Agreement may be executed in two or more
counterparts, each of which shall be and shall be taken to be an original and all collectively
deemed one instrument. The parties hereto agree that a facsimile copy hereof and any signatures
hereon shall be considered for all purposes as originals.
Page 10 of 11
25. RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county health unit.
26. 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. 'fo 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 limits of tort
liability set forth in F. S. § 768.28 (5)(2008) of $100,000.00 per person and $200,000.00
per occurrence shall apply; and
d. Any action by City shall be without prejudice to, and shall not constitute a
limit or impairment or waiver of, or otherwise affect City's right to exercise its discretion
in connection with its governmental or quasi-governmental functions.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on
the day and year above written.
Witness
Witness
./~.~1
Wi ass ,
r
Witness
CITY OF DELRAY BEACH, a Florida
Municipal Corporation
BY:
Nelson S. McDuffie, Mayor
Date:
DEPOT INDUS RI L C ~1~R, LLC, a
Florida Limi . i pany
BY:
THO AS I-l~E , M ager
Page 11 of 11
EXHIBITS TO
AGREEMENT
TO EXCHANGE REAL PROPERTY
Exhibit "1" - City Parcel 1, a~k/a "Tract A-3" as shown on the proposed Plat of Historic Depot
Square.
Exhibit " 2" - City Parcel 2, a/k/a a portion of Tracts B-1 and B-2, as shown on the proposed Plat
of Historic Depot Square.
Exhibit " 3" - City Parcel 3, consisting of a ten (10') foot strip of land, south of the right-of--way of
N. W. 2~ Street, Delray Beach, Florida (a/k/a a portion of Depot Road).
Exhibit "4"- Depot Parcel and is also kmown as "Tract A-2" as shown on the proposed Plat of
Historic Depoi Square.
Exhibit "5" - Title Insurance Commitment permitted exceptions per paragraph (4)(A}(3).
Exhibit "6" - Roadway Improvement Agreement
Exhibit"7" - Temporary Easement
Exhibit "8" - Reserved Rights Declaration
Exhibit "9" - Closing Escrow Agreement
TRACT A-3 CONVEYANCE
CITY OF DELRAY BEACH TO
DEPOT INDUSTRIAL CENTER, LLC
LEGAL DESCRIPTION: TRACT A-3
A PORTION OF LAND LYING !N SECTION 18, TOWNSHIP 46
SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH., PALM BEACH
COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCE AT THE SW CORNER MACK INDUSTRIES
DELRAY-PLAT AS RECORDED IN PLAT BOOK 43, PAGE 138 OF
THE PUBLIC RECORDS OF PALM BEACH COUNTY FLORIDA; SAID
CORNER BEING ON A CURVE CONCAVE WESTERLY HAVING A
RADIUS OF 541.40' AND A DELTA ANGLE OF 22'30'03"; RADIAL
BEARING THROUGH SAID CORNER BEARS S81'25'47"E; THENCE
NORTHWESTERLY ALONG SAID CURVE AN ARC LENGTH OF
212.62 FEET TO A POINT OF TANGENCY; THENCE
N13'S5'S2"W A DISTANCE OF 79.15 FEET TO THE POINT OF
BEGINNING; THENCE N89'39'19"W A DISTANCE OF 22.90 FEET;
THENCE N00'48'37"W A DISTANCE OF 100.63 FEET; TO A
POINT ON A CURVE CONCAVE EASTERLY HAVING A RADIUS OF
25.00 FEET AND A DELTA ANGLE OF 13'06'33"; RADIAL
BEARING THROUGH SAID POINT BEARS S89'11'23"W; THENCE
SOUTHEASTERLY ALONG SAID CURVE AN ARC DISTANCE OF
5.72 FEET TO A POINT OF TANGENCY; THENCE S13'S5'52"E A
DISTANCE OF 97.97 FEET TO THE POINT OF BEGINNING;
CONTAINING 1,119 SQUARE FEET MORE OR LESS
c,tn lrrrc,~ rrurv: SCAtE: N/A ruuNUtu /yy~
TNlS sKETGi MEETS MINIMUM TECHNICAL STANDARDS AS SET FORTH 8Y THE FLORIDA BASEL/NE Q ENGINEER/NG
80ARD OF PROFESSIONAL SURVEYC:tS AND MAPPERS JN CHAPTEP, 6JCJ7-6, FLORIDA DRAWN BY D./.M.
ADMINISTRATJYE PURSUA 7n sECT?ON X72.027, FLORIDA STATUES AND
CHECKED BY.• M. J.A. LAND SUR ~EY/NG, INC.
-~ ~- ~ ~/
ERNEST W DUNC/N. PSM. S(ofe of f7o~;d~olc 1400 N. W. 1St COURT
P~otessional Surveyor dr Moppe~ No. 5782 BOCA RATON, FLOR/DA 334.32
7NlS ORAN?NC, SKETCH, PLAT, OR MAP IS FOR INFORMATION PURPOSES ONLY AND !S EB 6510 (561 417-0700 LB 6439
N07 YALID, UNLESS !7 8EAR5 7NE SIGNA7URE AND THE ORIGINAL RAISED SEAL OF A JOB NO.: Q5-05--013 SHEET N0. 1 of 2
F7 (1Dfnd II!`FIJCFn GlfRVFYAR dAlf] 1/dDPFP
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w ~ L=5.72'
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CER TI F! CA TJ UN: SCALE ! ° = 8D' FOUNDED 1993
TTiJS SKETCH MEETS MfIJfMUU TECHNICAL STANDARDS AS SET FORTH BY THE FLORID BASEL/NE ~ ENGINEER/NG
BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS 1N CHAPTER 61C17-S, FLORIDA DRAWN BY D.J.M.
ADMINISTRARYE~J. BUR U SECTION 472.027, FLORIDA STATUTES AND
C% ~-~ -~ ~ CHECKED BY ~W J.A. LAND SURIiEYING, /NC.
ERN£ST W. DUNCAN. PSM. Stole of F1a'idtlJote 1400 N. W. 1st COURT
Professional Su~veynr ctc Afapper No. S1B2 BOCA BATON, FLORIDA ,3,34,32
7Nf5 DRAWING, SKETCH, PLAT, OR MAP fS FOR JNFORMATION PURPOSES ONLY AND fS EB 6510 (561 417-0700 LB 6439
NOT VALID, UNLESS f7 BEARS THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF A
.,,..,,,,. ,,,.~..~~-„ ~„o„~..,,,D A.,D IIADOCO /OB NO.: 05-OS-OIJ SHEET NO. 2 of 2
Exhibit " 2"
City Parcel 2, a/k/a a portion of Tracts B-1 and B-2, as shown on the proposed
Plat of Historic Depot Square.
DEPtJT ROAD -PARCEL TO BE ABANDONED
LEGAL DESCRIPTION OF RIGHT OF WAY THAT CITY iS CONVEYING TO DEVELOPER:
A PARCEL OF LAND LYING IN SECTION 18, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CffY OF pELRAY BEACH, PALM
BEACH COUNTY, FLORIDA, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NE CORNER OF SAIp SECTION 18; THENCE N 89'09'21" W, ALONG THE NORTH LINE OF SAID
SECTION 18, A DISTANCE OF 251.13 FEET; THENCE S 14'28'43" W, ALONG THE EAST RIGHT OF WAY LINE OF THE
CSX RAILROAD, A DISTANCE OF 143.88 FEET TO A POINT ON A CURVE CONCAVE NORTHERLY HAVING A RADIUS OF
600.00 FEET AND A DELTA ANGLE OF 11 °49'20"; RADIAL BEARING THROUGH SAID POINT BEARS N 00°33'26" W;
THENCE EASTERLY, AN ARC DISTANCE OF 123.80 FEET TO A POINT ON A CURVE CONCAVE EASTERLY HAVING A
RADIUS OF 215.00 FEET AND A DELTA ANGLE OF 27'38'45", RADIAL BEARING THROUGH SAID POINT BEARS S
65°39'44" E; THENCE SOUTHERLY ALONG SAID CURVE AN ARC LENGTH OF 103.74 FEET TO THE POINT OF BEGINNING,
SAID POINT HAVING A RADIAL BEARING OF N 86°42'29" E AND BEING A POINT OF COMPOUND CURVATURE, HAVING A
RADIUS OF 215.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE, CONCAVE EASTERLY AND HAVING A DELTA ANGLE
OF 01°11'48", AN ARC DISTANCE OF 4.49 FEET TO A POINT OF TANGENCY; THENCE S 04'29'19" E, A DISTANCE OF
982.51 FEET, THENCE S 31°05'49" W A DISTANCE OF 160.88 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE
OF N.W. 2ND STREET; THENCE S 89°56'26" E A DISTANCE OF 204.24 FEET TO A POINT ON THE WEST RIGHT OF
WAY LINE OF INTERSTATE I-95 AS RECORDED IN OFFICIAL RECORDS 2187, PAGE 1256; SAID POINT BEING ON A
CURVE CONCAVE WESTERLY, HAVING A RADIUS OF 1063.52 FEET, WHOSE RADIUS BEARS N 85°23'36" W; THENCE
NORTHERLY ALONG SAID CURVE HAVING A DELTA ANGLE OF 8°39'43" AN ARC LENGTH OF 160.85 FEET; TO A POINT
OF TANGENCY; THENCE N 04°03'20" W ALONG SAID WEST RIGHT OF WAY IJNE OF I-95, A DISTANCE OF 506.19
FEET; THENCE N 08'04'42" W ALONG SAID WEST RIGHT OF WAY LINE OF I-95 A DISTANCE OF 94.11 FEET TO A
POINT ON A CURVE; SAID CURVE CONCAVE EASTERLY HAVING A RADIUS OF 3969.72 FEET; THENCE NORTHERLY ALONG
SAID CURVE (BEING ON THE WEST RIGHT OF WAY LINE OF I-95) HAVING A DELTA ANGLE OF 5°31'47" AN ARC
DISTANCE OF 383.13 FEET TO A POINT ON A CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 73.00 FEET WHOSE
RADIUS BEARS N 6i'39'17" W, THENCE WESTERLY ALONG SAID CURVE, HAVING A DELTA ANGLE OF 105'17'12", AN
ARC DISTANCE OF 134.14 FEET TO THE POINT OF BEGINNING.
DESCRIPTION OF ROAD RIGHT OF WAY ABANDONMEN T
CER TlFI CA TION: SCALE: N/A FOUNDED 1993
THIS SKETCH MEETS MINIMUM TECHNICAL STANDARDS AS SE7 FORTH 8Y THE FLORIDA BASELINE Y ENGINEERING
80ARD OF PROFESSIONAL SURVEYORS AND MAPPERS !N CHAPTER 61C17-6, FLORIDA DRAWN BY.' D/.M.
ADMINISTRATIVE COD RSUAN ECTION 472027, FLORIDA STATUTES. AND
~~ /~ CHECKED BY M.J.A. LAND SUR KEYING, lNC
'~... C,~..~-~ ,__._ G "% S -i / 1400 N. W 1st COUP, T
ERNEST -st DUNCAN. PSM. state of FToridQ7ote BOCA RA TON, FLORIDA 33432
Professional Surveyor rk /dapper No. 5182
THIS DRAwtNG, SKETCH, PLAT, OR MAP IS FOR INFORMAAON PURPOSES ONLY AND IS EB 651D (561 417-0700 LB 5439
N07 VALID. UNLESS IT BEARS 7H£ SIGNATURE AND THE ORIGINAL RAISED SEAL DF A ,/pB ND.: 05--05-013 SHEET NO. 1 Ot 3
FLORIDA LICENSED SURyEYOR AND MAPPER.
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THIS SKETCH MEE75 M/N1MUM TECHNICAL STANDARDS AS SET FORTH BY THE FLORID
BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS !N CHAPTER 67G77-6, FLORroA
ORA{'YN BY D.J.M. BASELINE ~ ENGINEER/NG
ADMINISTRATIVE COD~J~'~ SU r'T~SEC710N an.D2~, FLORIDA STArv7ES.
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`
ERNEST H! DUNCAN. PSbI. State o/ Florid ate 1400 N W. 1st COURT
BOCA RA TON
FLORIDA 33432
Pra/essionol Surveyor cQ Mopper No. 5182
TNtS DRAWING SKETCH, PLAT; OR MAP IS FOR INFORMATION PURPOSES ONLY AND fS ,
EB 6510 (5611 417-0700 LB 6439
N07 VALID, UNLESS !7 BEARS THE SIGNATURE AND 7NE ORIGINAL RAISID SEAL OF A
FLORIDA LICENSED SURVEYOR AND MAPPER.
JOB lYD.: OS-O5-O13 SHEET NO. Z Of 3
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SKETCH OF ROAD RI CN T OF WAY ABANDONMEN T
CER T!FlCA TION: SCALE: f " - 80' FOUNDED 1993
THIS SKETCH MEETS MINIMUM TECHNICAL STANDARDS AS SET FORTH BY 7HE FLORIDA BASELINE ~ ENG/NEERING
BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS 1N CHAPTER 67G77-6, FLORIDA DRAWN BY D.J.M.
ADMWlSTRATIVE CODE, PURS TO SECTION 47,,x.027, FLORIDA sraTU7FS. AND
.~ '~ , ~ CHECKED BY M. J.A. LAND SUR KEYING, INC.
ERN£ST W. OJNCAN PSM. State of FloridoDote 14x(7 N ~ iSl COURT
P~o/essionol Surveyw do Mopper No. 5182 BOCA RA TON, FL OR/DA ,33432
7HIS DRAWING, SKETCH, PLAT OR MAP !S FOR INFORMATION PURPOSES ONLY AND 15 EB 6510 X561) 417-0700 LB 643
NOT VAUO, UNLESS IT BEARS THE SICNANRE AND THE ORIGINAL RAISED SEAL OF A JOB NO.: 05-05-013 SHEET N0. 3 Of 3
Cf /1D11'f A 1 )l`CAICCfI Cf IDLTVl1D dAl/1 lI6 DDF'A
Exhibit " 3"
City Parcel 3, consisting of a ten (I O') foot strip of land, south of the
right-of--way of N. W. 2"~ Street, Delray Beach, Florida (a/k/a a portion of Dcpot Road).
PORTION OF NW 2ND STREET ABANDONMENT
A PORTION OF MACK INDUSTRIES-DELRAY, AS RECORDED IN PLAT BOOK 43 PAGE
138 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINING AT THE NE CORNER OF SAID MACK INDUSTRIES-DELRAY PLAT (P.O.B.),
THENCE N 89°56'26" W, A DISTANCE OF 149.78 FEET TO A POINT QF
CURVATURE; -SAID CURVE CONCAVE SOUTHEASTERLY, HAVING A RADIllS OF 25.00
FEET AND A DELTA ANGLE OF 90°52'11 ", THENCE SOUTHWESTERLY ALONG SAID
CURVE, AN ARC DISTANCE OF 39,65 FEET; THENCE N 00°48'37" W, A DISTANCE
OF 10.00 FEET; TO A POINT OF CURVATURE CONCAVE SOUTHEASTERLY, HAVING A
RADIUS OF 25 FEET AND A DELTA ANGLE OF 90°52'11 "; THENCE NORTHEASTERLY
ALONG SAID -CURVE FOR AN ARC DISTANCE OF 39.65 FEET TO A POINT OF
TANGENCY; THENCE S 89°56'26" E, A DISTANCE OF 149.78 FEET; THENCE S
00°48'.37" E, A DISTANCE OF 10.00 FEEL TO THE POINT OF BEGINNING;
CONTAINING 1,752 SQUARE FEET, MORE
c.tr, rrrrc,Hlruty: SCAL~~~ N/A
THIS SKETCH MEETS bf1NlAAUAt TECHNICAL STANDARDS AS SET FORTH BY 7HE F2DRlDA
BOARD OF PRDFESSIONAL SURVEYORS AND MAPPERS M CHAPTER 61617-6, FLORfDA DRAWN BJ' D.J.M.
ADMINl57RATJVE C~7DE, iP RSUANT 0 CT10N 472.027, FLORfDA STATUTES.
~~„ . , ~ L^ ~ C ` ~ ! J CHECKED BY M. /.A.
ERMES7 YY. O(7NCAN PSM. State of f7oridg7ote
Professiono/ Surveyor & Mopper No. 5182
THfS DRAWING, SKETCH, PLAT OR .MAP 15 FOR fNFDRMATION PURPOSES ONLY AND 1S
NOT VALID, UNLESS 17 BEARS THE SIGNATURE AND 7HE ORIGINAL RAISED SEAL OF A
FOUNDED 199,3
BASELINE ~ ENGINEER/NG
AND
LAND SURVEYING, INC.
1400 N W. 1st COURT
80CA RA TON, FL OR1DA 3.3432
EB 6510 X561) 417-0700 LB 64.3.
JOB NO.: 05-05-01.3 SHEET N0. 1 0( 2
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CER T1 FI C,4 T1 ON: SALE. 1 ' = 80' FOUNDED 1993
MlN1MUM TECHNICAL STANDARDS AS sE7 FORTH 8Y THE FLORIDA
THI
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BASELINE f
S SK
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80AR0 OF PROF~SSJONAL SURVEYORS AND MAPPERS !N CHAPTER fi7G17-6, FLORIDA DRAWN BY D.J.M. ~
AOMINISTRA7)VE CO~URSUANT~fO''S€CTION 472.027, FLORIDA STA7U7`S.
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LAND SURI/EYfNG, INC.
!
_ 1400 N. W. 1st COURT
ERN£Sr W. DUNCAN_ PSN.. Stole of Fforrd~ote
Professional Surveyor ck Mapper No. 5182 BOCA RA TON, FLORIDA 33432
417
0700
TH15 DRAri7NG, SKETCH, PLAT, OR MAP !S FOR 1NFORMA710N PURPOSES ONLY AND 1S -
EB 65x0 (56.1
LB 6439
ND7 VALfO. UNLESS !7 BEARS THE SIGNATURE ANO THE ORIGINAL RAISED SEAL OF A
FLORIDA LICENSED SURVEYOR AND AAAPPER. ,/OD NO.: OS-05-013 SHEET NQ 2 Of Z
Exhibit "4"
Depot Parcel and is also known as "Tract A-2" as shown on the proposed Plat of
Historic Depot Square.
TRACT A-2 CONVEYANCE
DEPOT INDUSTRIAL CENTER, LLC
TO CfTY OF DELRAY BEACH
LEGAL DESCRIPTION:
A PORTION OF MACK INDUSTlES-DELRAY AS RECORDED IN
PLAT BOOK 43, PAGE 138 OF THE PUBLIC RECORDS OF PALM
BEACH COUNTY, FLORIDA BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCE AT THE SW CORNER MACK INDUSTRIES
DELRAY-PLAT; SAID CORNER BEING ON A CURVE CONCAVE
WESTERLY HAVING A RADIUS OF 541.40' AND A DELTA ANGLE
OF 22'30'03"; RADIAL BEARING ~ THROUGH SAID CORNER BEARS
S81'25'47"E; THENCE NORTHWESTERLY ALONG SAID CURVE AN
ARC LENGTH OF 212.62 FEET TO A POINT OF TANGENCY;
THENCE N 13'55'52"W A DISTANCE OF 79.15 FEET; THENCE
S89'39'19"E A DISTANCE OF 187.16 FEET; THENCE
S32'35'19"W A DISTANCE OF 66.30 FEET; THENCE S32'35'19"W
A DISTANCE OF 43.58 FEET; TO A POINT ON A CURVE
CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 632.00 FEET
AND A DELTA ANGLE OF 19'29'29"; THENCE SOUTHWESTERLY
ALONG SAID CURVE AN ARC DISTANCE OF 215.00 FEET;
THENCE N79°12'27"W A DISTANCE OF 16.25 FEET TO THE
POINT OF BEGINNING; CONTAINING 23,055 SQUARE FEET MORE
OR LESS.
1S SKETCH MEETS MINIMUM TECHNICAL STANDARDS AS SET FORTH BY THE FLOR10/
BOARD OF PROFE5570NAL SURI~EYDRS AND MAPPERS fN CHAPTER 61GT7-6, FLORIDA
ADMINISTRAAVE PUR T SECTION 472027, FLORIDA STATUTES
~~~~ S-z~-~~
£RN£ST W. OUNCAN. PSM. State of Florldcflale
Professiono/ Surveyor ~ Mopper No. 5142
THIS DRAWING, SKETCH, PLAT; OR MAP !S FOR INFORMATION PURPOSES ONLY AND !S
N07 VALID, UNLESS IT QEARS THE SICNATUR£ AND THE ORICENAL RAISED SEAL OF A
CONVEYA~
SCALE.• N/A
DRAWN BY D. /.M.
CHECKED BY M.J.A.
FOUNDED 1993
BASEL/NE Q ENG/NEERING
AND
LAND SUR IiEY/NG, INC.
1400 N. W. 1st COURT
BOCA RA TON, FLORIDA 33432
EB 6510 (561 417-0700 (B 643.
~'IB N0: 05-05-01.~ SHEET N0. 1 of 2
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BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS IN CHAPTER 61C17-6, FLORIDA
ADMINISTRA7)VE C0~ URS SEC77ON 472027, FLORIDA STATUTES
(~ ~'~ ~t ~
ERNEST W. DUNCAN. PSM. Stole of Florfd~ote
Professionol Surveyror ~ Mopper No. 51 B2
THIS DRAriTNG, SKETCH, PLAT. OR AlAP fS FOR lNFORMATTON PURPOSES ONLY AND !S
NOT VALID, UNLESS 1T BEARS 7NE S7CNATURE AND THE ORIGINAL RAISED SEAL OF A
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PRAI4JV BY.• D.J.IY
BY M.J.A.
FOUNDED 1993
BASEL/NE Q ENGINEERING
AND
LANO SUR KEYING, INC.
1400 N. W. 1st COURT
BOCA RATON, FLORIDA 3,432
EB 6510 ~561~ 417-0700 LB 64.~~
JOB NO.: 05-05-07.~ SHEET ND. 2 of 2
Exhibit "5"
Title Insurance Commitment permitted exceptions per paragraph (4)(A)(3).
OLD REPUBLIC 1VATIONAI_ TITLE INSURANCE COMPANY
COMM1'TMENT
Schedule B-II
Fund File Number: Agent's File Reference:
06-2008-007200A1 Historic Depot/Delray Beach
II. Schedule B of the Policy or Policies to be issued will contain exceptions to the following matters unless the same are
disposed of to the satisfaction of the Company:
~oposed Insured acquires for value of
lout-~ C~~
u~h~ei.-yet-due-and-payable. ~~~
b-~ht~s-e~-e~laitt~s-ef~arties-i-n-pessession-rn~t-recm~ded-imbq-ttre-Pubtie~Recards. ~ ~ ~~I ~_.~ ~~
c--~y+-~es~~~^~,n--~:=~bra~se,---uiolakort;-~nr~a~iea-er-ad-uc+se-cir-surastancp that wo~~lri hP ri;crlosed_)~n
it+sp~cbiea-c~a~-,aid-set~alete-land-su3=vey-a~tl-e-L-end-afld~speettam6ffihe-Land. iJ-~. ~-Q. ~'L
dZr-83~irciii3; c~cra21T1S'0'f C2t5CiTTCn , blIC~2CIIl'dS. ', ~ , 'J,~ ~{
R2E(3F~-- ~ .~. 1-~~~
3. Any Omer Policy issued pursuant hereto will contain under Schedule B the following exception:.9ny adverse
ownership claim by the Ctate of Florida by right of sovereignty to any portion of tl:e Lands insured hereunder,
including submerged, filled and artificially exposed lands, and lands accreted to such lands.
4. Taxes For the year 20 ] 1, which are not yet due and payable.
5--~-t~-~ig~-~t~ na~_ _.~,~ ~, ~. m i~L1~.~~c~
I•
6. All matters contained on the Plat of Model Land Company's Subdivision of the North l/2 and part of the South 1/2
of Section 18, Township 46 South, Range 43 East, as recorded in Plat Book 6, Page(s) 51, Public Records of Palm
Beach County, Florida.
7. Declaration of Restrictions recorded in O.R. Book 3616, Page 1067, Public Records of Palm Beach County, Florida.
8. All matters contained on the Plat of Mack Industries-Defray, as recorded in Piat Book 43, Page(s) 138, Public
Records of Palm Beach County, Florida.
9. Ordinance of the City of Delray Beach recorded in O.R. Book 5887, Page 244 and O.R. Book 6620, Page 1707,
Public Records of Palm Beach County, Florida.
r b b ~
'fad--Beasl~]i~4e~i .}- _, +~~eeer~s-e€-Palm
8-eaelr-Ee~rt~-1`}or-ide-{q~a-lie-rtc-c~ed)- ~ ~ -L ~ ~ 1-
1 1. Al( matters contained on the Piat of Historic Depot Square, as recorded in Plat $ook , Page(s) _, Public
Records of Palm Beach County, Florida. (To be recorded) -
12. Notice of Environmental Resource or Surface Water Management Permit by South Florida Water Management
District recorded in O.R. Book 23383, Page 952 Public Reco!-ds of Palm Beach County. Florida.
Forat Cf 6•SCN.-3•il (rev. 32!10)
n, _ ,- ~ .. r ~.
T-T~JIII"R't
Exhibit "6"
Roadway Improvement Agreement
ROADWAY II\•IPROVE11~7ENT AGREEIt•IENT
THIS AGREEMENT ("Agreement" or "Road~~~ay Improvement Agreement"} entered into
this day of , 2011, between the CITY OF DEI,RAY BEACH, a Florida Municipal
Corporation (hereinafter referred to as the "City") and DEPOT INDUSTRIAL CENTER, LLC, a
Florida Limited Liability Company (hereinafter referred to as "Developer"), for the purpose of
assuring the City that the Developer will complete the roadway improvements in the approved Site
flan and engineering drawings of Smiley & Associates, Inc., and that the Developer provides a
guarantee for the roadway improvements as required by the City of Delray Beach Land Development
Regulations, Section 2.4.10.
RECITALS:
A. In connection with that certain Agreement to Exchange Real Property by and between
the City and the Developer, the City has abandoned Depot Road (``Abandoned Depot Road") and the
Developer has granted to City a temporary easement over, upon, across, and under Abandoned Depot
Road until the Developer has completed the construction of the new roadway (hereinafter referred
to as "Relocated Depot Road") the legal description of which is attached hereto and made a part
hereof as Exhibit "A".
B. The Developer has agreed to construct Relocated Depot Road, together with required
subsurface improvements, at its expense, within forty-eight (48) months after the closing of the
Agreement to Exchange Real Property (hereinafter referred to as the "Completion Date").
C. Developer has guaranteed to timely complete construction ofRelocated Depot Road,
in part, by depositing with the City in the form of bond, cash or letter of credit, an amount equal to
One Hundred Ten Percent (] 10%) of the estimated cost of completion of Relocated Depot Road, and
its related subsurface improvements. However, City is not obligated to complete Relocated Depot
Road if Developer fails to timely do so. City has the option to complete construction of Relocated
Depot Road if Developer fails to timely construct it, or City may exercise City's Reconveyance Right
pursuant to the Declaration of Reserved Rights and Agreement Not to Encumber Abandoned Depot
Road ("Declaration of Reserved Rights"). If City is entitled to and exercises City's Reconveyance
Right, the Bond will be returned to Developer as provided herein.
D. This Agreement sets forth the Developer's obligations regarding the construction of
Relocated Depot Road, subject to and in accordance with the teens and conditions hereinafter set
forth, and the Developer acknowledges that this Agreement is not a substitute for or a satisfaction
of the requirement imposed by the City Land Development Regulations for the execution and
delivery to the City of a Subdivision Improvement Agreement and Guarantee for the improvements
of the overall Historic Depot Square Project which are not included in this Agreement.
NOW, THEREFORE, inconsideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged, the
Page 1 of 9
City and the Developer hereby agree as follows:
Incorporation of Recitals
The above recitals are true and correct and are incorporated herein as if set forth in
full.
2. Construction of Relocated Depot Road.
a. The Developer, at the Developer's sole cost and expense, shall construct
Relocated Depot Road and its related subsurface improvements (hereinafter collectively referred to
as "Relocated Depot Road"} in accordance with: (i}the plans and specifications and criteria set forth
on Exhibit "B" attached hereto and made a part hereof (the "Specifications"); and (ii) all legal
requirements imposed by applicable governmental authorities having jurisdiction over Relocated
Depot Road (the "Governmental Authorities"). The construction of Relocated Deport Road shall
be performed by licensed contractors in a good workmanlike and non-negligent manner and in a Iien-
free condition.
b. The Developer shall apply for all necessary permits, licenses or other
authorizations in connection with the construction of Relocated Depot Road as required by the
Governmental Authorities (collectively, the "Permits'').
c. Every contractor performing work for the Developer shall be reasonably
insured and without cost to City, insured for any claim arising out of the work, and that City will be
indemnified and held harmless for any claims that may arise out of the work. Owner shall comply
with F. S. § 255.05 and F. S. § 287.133, if applicable.
d. The Developer shall complete construction of Relocated Depot Road in
accordance with the terms and conditions of this Agreement within forty-eight (48) months after the
closing date of the Agreement for Exchange of Real Property. The City Engineer, in the exercise
ofhis governmental functions, shall determine when construction ofRelocated Depot Road has been
completed. ~~%hen the City Engineer determines that Relocated Depot Road has been completed and
is fully operational as a City right-of--way, including completion of the final lift, the City Engineer
shall execute and deliver to the City and Developer a Certificate of Completion.
Time is of the essence for Developer's performance hereunder.
f. The Developer simultaneously upon the execution ofthis Agreementherewith
furnishes to the City a bond, cash or a letter of credit (hereinafter collectively referred to as the
"Bond") in the sum of One Million One Hundred Six Thousand Six Hundred and no/100ths
($1,106,600.00} which represents the cast estimate for completion of construction of Relocated
Depot Road plus ten percent (10°'0) for the Developer's post completion one (1) year warranty. If
the Developer elects to utilize a letter of credit instead of cash or the bond ,the letter of credit shall
Page 2 of 9
be issued by a focal national lending institution selected by Developer but subject to the reasonable
approval of City, and the terms and conditions, and form and content of the letter of credit and bond
shall be reasonably satisfactory to City's counsel and shall be issued in compliance with the City's
Land Development Regulations. City may require Developer to use more than one (1 }local national
banking institution to issue more than one (1) letter of credit which will aggregate in the amount
equal to the bond, if necessary in City's opinion to adequately secure Developer's performance
hereunder. The estimated costs for construction of Relocated Depot Road are:
(i} $305,000.00 -sanitary
(ii} $152,000.00 -water
(iii) $227,000.00 -drainage
(iv} $322,000.00 -paving
Total: $1,OOb,000.00 plus ten percent (10%) = $l,lOb,600.00
g. The funds provided under the above referenced Bond are to secure for the
Developer's obligation to construct and install all Relocated Depot Road improvements as called
for on the approved Site PIan and engineering drawings of Sin~ley & Associates, Inc. to be completed
by Developer in accordance with the specif cations of the City of Delray Beach. Upon issuance of
a certif cafe by the City Engineer attesting to the fact that not less than fifty percent (50%) of all
Relocated Depot Road improvements have been completed by Developer, the City shall release to
the Developer one-half of the Bond (excluding the portion of the Bond which is designated for the
one (1) year post completion warranty). Upon issuance of the Certificate of Completion by the City
Engineer, the City shall release to the Developer the sum of One Million Six Thousand and
no/1 OOths Dollars ($1,006,000.00), less any amounts previously released and less reimbursements,
if any, and shall retain the balance of the Bond for the one (i) year post completion warranty period,
except as otherwise provided in paragraph (3) of this Agreement. Notwithstanding anything to the
contrazy in this Agreement, in the event of a conflict between the approved Site Plan and the
drawings of Smiley& Associates, Inc., the specifications and requirements in the approved Site Plan
and the City Land Development Regulations shall control.
h. Developer warrants and guarantees that all labor, material and services
performed or furnished by Developer or Developer's agents, subcontractors and employees shall be
free from defects in materials and workmanship and performed in a good and workmanlike
professional and non-negligent manner, for a period of one (1) year after the date of completion of
Relocated Depot Road (whether completed by Developer or City). City shall notify Developer in
writing at Developer's address as stated in this Agreement specifying the nature of any defect which
occurs during the warranty period. Developer shall correct the defect or cause the defect to be
corrected, at Developer's cost, within twenty-one (21) days after the date of City's written notice of
the defect to Developer or sooner if the nature of the defect requires an immediate repair. If
Developer fails to effect the correction of the defect with the required correction time period, City
may correct the defect itself and City shall be reimbursed for such from the Bond, or such portion
thereof which is necessary for reimbursement. The City may withdraw funds from the account
Page 3 of 9
where the Band is held. If the amount remaining under the Bond is insufficient to reimburse the
City for the costs and expenses to correct defects which arise during the one (1) year post completion
warranty period, then the City shall submit invoices to the Developer and the Developer shall pay
to the City the additional funds necessary far the costs and expenses the City incurred in connection
with the correction of the defects. Payment by the Developer shall be made to City within ten (10}
days after City notifies Developer to pay such invoice(s). In the event that there is a surplus
remaining after the City's correction of defects which arise during the one (1) year post completion
warranty period, the City shall remit or release the surplus amount to the Developer.
3. Failure to Timely Complete Construction. If the Developer has not completed
construction of Relocated Depot Road by the Completion Date as determined in the judgment of the
City Engineer, then the City is authorized, and has the option but not the obligation, to complete
construction of Relocated Depot Road in accordance with the Specifications (the "City
Construction"}, or, the City may exercise City's Reconveyance Right pursuant to the Declaration of
Reserved Rights.
a. If City elects to exercise City's Reconveyance Right and Abandoned Depot
Road is reconveyed to City in accordance with the terms of the Declaration of Reserved Rights, City,
within thirty (30) days after the effective reconveyance of Abandoned Depot Road to City, shall
remit or release the Bond to the Developer, less any reimbursements to which the City is entitled,
and less the amount the City is required to expend (for which the City is entitled to be reimbursed}
to remove, install, replace, repair or modify any partially completed improvement made by
Developer to Relocated Depot Road prior to the City's vacation and abandonment of it (as provided
in the Declaration of Reserved Rights} so that the physical condition of abandoned and vacated
Relocated Depot Road is in the same condition that existed before Developer commenced any
construction of Relocated Depot Road.
b. If the City elects to complete the City Construction, then upon completion of
the City Construction, the City shall be reimbursed for such by disbursing the Bond, or such portion
thereof, from time to time, as may be necessary for reimbursement. If the amount remaining under
the Bond is insufficient to reimburse the City for the costs and expenses to complete the City
Construction, then the City shall submit invoices to the Developer and the Developer shall pay to
the City the additional funds necessary to pay the costs and expenses in connection with the
completion of the City Construction. Payment by the Developer shall be made to City within ten
(10) days after City notifies Developer to pay the invoice(s). If there is a Bond surplus remaining
after the City's completion ofconstruction of Relocated Depot Road, then City shall remit or release
the surplus to Developer, but City shall retain the sum of $100,600.00, or such amount which
remains after City construction costs have been reimbursed to City, as the Bond far the one (1) year
warranty period.
Default and Remedies.
4.1 Default. The failure of the Owner or the City to observe or perform any of
Page 4 of 9
their respective obligations under this Agreement (the "Defaulting Party"1 within fifteen (1 S) 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.
4.2 Remedies. The terms and provisions of this Agreement are enforceable with
all remedies at law and inequity, 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 ternZination of this Agreement on account. of a breach shall nat be an available
remedy. 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.
4.3 Notwithstanding anything to the contrary contained in this Agreement, City
is also entitled to withdraw from the Bond before it is released to Developer, an amount equal to all
assessments, whether imposed or pending, in favor of the City pursuant to the Temporary Easement
(for Abandoned Depot Road} executed by and between City and Developer.
S. Notice. Any notice, demand or request which may be permitted, required or desired
to be given in connection therevrith shall be given in writing and directed to the City and the Owner
as follows:
,4s to City: Mr. David Harden, City Manager
City of Delray Beach
200 N. W. I5t Avenue
Delray Beach, Florida 33444
With a copy to: R. Brian Shutt, Esq.
City Attorney
100 N. W. 1 S` Avenue
Delray Beach, Florida 33444
As to Omer: Depot Industrial Center, LLC
2S0 N. W. Diagonal
Boca Raton, Florida 33432
With a copy to: Michael Listick, Esq.
I90 S. E. S'h Avenue
Delray Beach, Florida 33483
Facsimile: (S61) 278-6909
Page S of 9
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).
6. Generall'rovisions
6.1 Amendment. This Agreement maybe 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.
6.2 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.
6.3 Governing Law. This Agreement will be interpreted and enforced in
accordance with Florida law.
6.4 Successors aJid Assigns. The covenants, conditions and agreements contained
in this Agreement will inure to the benefit of and be binding upon the successors and assigns ol'the
Owner and the City.
6.5 Authorit~to Execute; Representations. The Owner and the City each
warrant and represent to the other that the individuals signing tlus 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 pal-ties hereto.
6.6 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.
6.7 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.
6.8 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 atiected thereby and each term or provision of this Agreement shall be
valid and enforceable to the fullest extent permitted b}~ Iaw.
Page 6 of 9
6.9 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, riglri
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.
6.10 Headings. The headings ofthe articles ofthis Agreement are for guidance
and convenience of reference only and shall not Limit or otherwise affect tiny of the teni~s or
provisions of this Agreement.
6.11 Covenant Run111nQ 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.
6.12 By separate joinder in this Agreement, first United Bank has consented and
does hereby consent to this Agreement, and the liens and security interests held by Lienholder are
hereby made subject and inferior 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 inferiorto the terms and conditions
ofthis Agreement and shall be bound by the teens 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 ofthis Agreement.
6.13 Joint Preparation. The preparation ofthis Agreement has been a joint effort
of the City and the Owner and the resulting document shall not, solely as a matter of judicial
consideration be constructed more severely against one party than the other.
6.14 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.
6.15 Further Assurances. The parties agree to execute all future instruments and
take all fitrther action that may be reasonably required by any party to fully effectuate the terms and
provisions of this Agreement and the transactions contemplated herein.
6.16 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. Governmental Functions.
a. Even though the City has certain contractual obligations under this
Agreement such obligations shall not relieve any person subject to this Agreement
Page 7 of
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 limits of tort
liability set forth in F. S. § 768.28 (5)(2008) of $100,000.00 per person and
$200,000.00 per occurrence shall apply; and
d. Any action by City shall be without prejudice to, and shall not
constitute a limit or impairment or waiver of, or otherwise affect City's right to
exercise its discretion in connection with its govemmental or quasi-governmental
functions.
Termination of Agreement
By virtue of the Declaration of Reserved Rights and Agreement Not to Encumber
("Declaration of Reserved Rights") executed by and between the City and Developer, the City may
require the reconveyance of Abandoned Depot Road to City. If the reconveyance of Abandoned
Depot Road is effective, this Agreement shall terminate and Developer shall not be obligated to
complete construction of Relocated Depot Road. The Bond, or any portion thereof, shall be released
to Developer if this Agreement is terminated, subject to and Less any amounts or reimbursements
from the Bond the City is entitled to pursuant to this Agreement, the Declaration of Reserved Rights
and Agreement Not to Encumber, or the Temporary Easement. In addition, if the Site Plan expires
before Developer commences any construction of Relocated Depot Road; Developer has the option
of terminating this Agreement, provided Developer has effectively reconveyed Abandoned Depot
Road to City, as more fully described in the Declaration of Reserved Rights. In the event Developer
is entitled to terminate this Agreement and does so, Developer shall not be obligated to commence
or complete construction of Relocated Depot Road. Upon termination of this Agreement, the Bond,
or any portion thereof, shall be released to Developer.
fN WITNESS WHERIJOF, the parties to this Agreement set their hands and seals the day and
year first above written
ATTF,ST: CITY OF DELRAY BEACH, A FLORIDA
MUNICIPAL CORPOItA'TION
BY:
Approved as to Form:
By:
Page 8 of 9
Nelson S. ivlcDuffie, Mayor
City Attorney
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me tlus day of , 2011, by
Nelson S. McDuffie, the Mayor of the City of Delray Beach, a Florida Municipal Corporation.
He/she is personally known to me or has produced (type of identification) as
identification.
Signature ofPerson'I'aking Acknowledgement
WITNESSES:
DEPOT INDUSTRIAL CENTER, LLC.,
Florida Limited Liability Company
BY:
Thomas Head, Manager
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of , 2011, by
Thomas Head, the Manager of Depot Industrial Center, LLC, a Florida Limited Liability Company,
and he/she is personally known to me or has produced (type of identification}
as identification.
Signature of Person Taking Acknowledgement
Page 9 of 9
I/XIiIBITS TO
ROAD'~~'AY IMPROVEMENT AGREEMENT
Exhibit "A" - Legal description of Relocated Depot Road.
Exhibit "B" - Specifications for construction of Relocated Depot Road.
Tract RW and Tract RW-1 as shown on the proposed
Plat of Historic Depot Square
Exizibit B
Specifications for construction of Relocated Depot Road.
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EX111b1t"7~~
Temporary ~asemer~t
Prepared by and return to:
Steven D. Rubin, Esq.
980 North Federal Highway, Suite 434
Boca Raton, Florida 33432
TEMPORARY EASEMENT
(Abandoned Depot Road)
THIS EASEMENT AGREEMENT (this "Agreement") made this ____ day of
2011, amongthe CITY OF DELI2AYBEACH, a Florida Muntcipa[ Corporation,
(the "City"}, with a mailing address of 100 N.W. lst Avenue, Delray Beach, Florida 33444, a
municipal corporation in Palm Beach County, State of Florida, and Depot Industrial Center, LLC,
a Florida Limited Liability Company (hereinafter referred to as the "Owner"} with a mailing
address of 2S0 N. W. Diagonal, Boca Raton, Florida 33432.
RECITALS:
A. Pursuant to that Agreement to Exchange Real Property between the City and Owner
(the "Exchange Agreement''}, the City has agreed to vacate and abandon a certain roadway, located
in Delray Beach, Florida, legally described as follows {the "Abandoned Roadway"):
See Exhibit "A" attached hereto and made a part hereof.
B. As a result of the abandonment by the City, the Owrter became the owner and holder
of fee simple title of and to the Abandoned Roadway and the Owner owns fee simple title in and
to the property constituting the Abandoned Roadway.
C. The Owner desires to grant to the City: (i) an exclusive roadway easement for
vehicular and pedestrian traffic for ingress and egress, and over, upon, under, and across the
Abandoned Roadway and for the City to exercise its governmental and quasi-governmental functions
with respect to the Abandoned Roadway, including without limitation, traff c 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 Roadway by members of the public, and City officers,
agents, employees or contractors. and (ii) an exclusive utility easement over and under the
Abandoned Roadway, for those utilities which are presently in place.
D. In connection with the City approving the abandonment of the Abandoned Roadway,
and pursuant to the terns and conditions of that certain Agreement for Completion of Roadway
Page 1 of 10
Improvements and Guarantee between the Owner and the City (the "Roadway Improvement
Agreement"},the Owner has agreed to construct a relocated Depot Road {"Relocated Depot Road"),
including the installation of improvements located thereon, including, without timitatian, streetlights,
pedestrian and vehicular traffic lights, signs and markings, sidewalks, planters, trees landscaping and
other related appurtenances as shown on Phase I of the approved Site Plan ("Site Plan") as it relates
to Relocated Depot Road, and the drawings of Smiley & Associates, Inc, to the extent such drawings
do not conflict with the Site Plan or the City's Land Development Regulations. Relocated Depot
Road is legally described as follows:
See Exhibit "B" attached hereto and made a part hereof.
E. Owner may construct improvements in the Historic Depot Property ("Project")
pursuant to the Site Plan approved by the City of Delray Beach only after Relocated Depot Road
Constriction has been completed.
F. This Agreement shall remain in full force and effect until Relocated Depot Road is
constructed as set forth herein, unless ternlinated sooner as provided herein.
NOW, THEREFORE, in consideration ofthe 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. Grant of Easement. Owner, as grantor, hereby grants and conveys to City, its
successors and assigns and the general public, grantees (collectively hereinafter referred to as the
"City"), and continuing until termination as described below, an exclusive easement for the use and
benefit of City ("Roadway Easement"} over, upon, under, and across the Abandoned Roadway for
the following purposes:
a. The unobstructed and unimpeded exclusive 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. Far 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
Page 2 of I O
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 Easement
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 Roadway by members of the
public, and City officers, agents, employees or contractors.
2.1 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, traff c control devices, street lights, median requirements, striping,
sidewalks, paving, and curbing, in good condition and repair, and in compliance with all applicable
govermmental rules, laws, regulations and ordinances as they pertain to public rights of ways.
2.2 Owner may not make airy alterations to the roadway design,l ocation or improvements
thereon, perform any construction on the Roadway Easement whatsoever, load or unload any
construction equipment or vehicles on the Roadway Easement, or traverse the Roadway Easement
with any construction equipment or vehicles.
2.3 City shall have the exclusive right to use the Roadway Easement on a seven (7) day
per week, twenty-four (24) hour per day basis. No fee or other expense shall be charged by Owner
to the City for use of the Roadway Easement.
2.4 Owner shall not be allowed to tow or otherwise relocate vehicles which use the
P~oadway Easement.
2.5 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 Owner.
2.6 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 simple
interest of the Abandoned Roadway, and provide evidence of the same to City. If those amounts are
not timely paid by Owner, City clay (but shall not be obligated to) pay all or part of those amounts
and Owner shall immediately reimburse City those amounts upon demand, together with interest at
the rate of eighteen percent (18.0%) per annum on the amounts so paid by City, from the date of
advance until reimbursed. City shall also have a lien 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 paragraph
(2.8} of this Agreement. This Agreement is intended as an easement with the meaning of F. S.
Section 197.572.
2.7 City is hereby granted an exclusive easement ("Utility Easement"} through, over,
upon, on, in, across and under the Roadway Easement for utility conduits, ducts, plumbing and
wiring and other facilities reasonably necessary for the use and enjoyment of the Roadway Easement,
and presently existing municipal utilities including without limitation, maintenance, repair and
replacement of the Roadway Easement and traffic control devices, and the City is hereby granted an
exclusive easement of support and necessity for the roadway and related improvements.
Page 3 of 10
2.8 In the event Owner causes damage or destruction to the Roadway F,asernent or any
improvements thereon in connection with the construction of the Project 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 afterbecoming aware of such damage, shall repair
and restore the Abandoned Roadv~~ay and/or the damaged utilities installed by the City in tl~e Utility
Easement to the condition same were in immediately prior to such damage. Any restoration and
repair work undertaken shall be performed in accordance with alI applicable laws by licensed
contractors and in a good, non-negligent, and workmanlike and lien-free mazLner. Should Owner fail
to promptly restore the Roadway Easement or utilities thereunder, or any improvements located
thereon, and as a consequence, City's easement rights created by this Agreement become impaired
or City is unable to utilize the Roadway Easement or Utility Easement as intended by this Agreement,
in addition to any remedy City may have, 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 ("Work"), and may use City
personnel to perform the Work, and may assess Owner for the cost of the Work. Owner shat l pay the
cost of said work within thirty (30) days after assessment by City. The assessment; plus interest
thereon at eighteen percent {18%) per annum, may, at the option of the City, be paid from the Bond
which the Owner furnishes to the City pursuant to the Road~~ay Improvement Agreement.
Alternatively, the assessment, plus interest thereon at eighteen percent (18.0%) per annum, shall be
lien against the fee simple interest of Owner in the Abandoned Roadway. The lien shall attach to
the Owner's fee simple interest in the Abandoned Roadway, and shall be effective upon recording of
a notice thereof in the Public Records of Palm Beach County, Florida, but its priority shad relate back
to the date on which this Agreement is recorded. The lien shall be substantially in the form of a
construction claim of lien described in Chapter 713 of the Florida Statutes. 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 personal
obligation of Owner at the time the costs are incurred, and may be collected by the City accordingly.
2.9 The Roadway Easement and Utility Easement are easements appurtenant to the
City's public right-of--ways and is intended to benefit such properties and shall run in favor of the
City, and shall be binding upon Owner and its successors and assigns with Owner holding the servient
estate.
2. I 0 All Work performed by Owner in the Roadway Easement and Utility Easement shall
be performed only by properly licensed contractors and in compliance with all applicable building
codes and zoning ordinances. Every contractor performing the Work shall be reasonably insured and
without cost to City, insured for any claim arising out of the Work, and that City will be indemnified
and held harmless for any claims that may arise out of tlae Work. Ow~zer shall comply with F. S. §
255.05 and F. S. § 287.133, if applicable.
2.11 Owner warrants that it is seized of the Abandoned Road«~ay and has the right to
convey the Roadway Easement and LtiIity Easement to the City; free and clear of all superior liens
Page 4 of 10
and encumbrances, that City shall have quiet enjoyment of the Roadway Easement and Utility
Easement ,and Owner does hereby fully wan•ant the title to said land and will defend the same against
the lawful claims of all persons whomsoever.
2.12 Owner agrees that the City shall have jurisdiction over the Roadway Easement to
enforce all applicable traffic regulations and Owner shall, if requested by the City, execute the City's
Standard Traffic Enforcement Agreement, the form and content of which shall be reasonably
satisfactory to the City's Counsel.
2.13 Notwithstanding anything to the contrary contained in this Agreement, the Developer,
and its authorized agents, representatives and employees, shall be deemed to be members of the
"public" and may use the Easement created herein as any other member of the public can.
City's Maintenance Obligation
3.1 City, at its expense shall maintain the Roadway and utilities located on and under the
Roadway Easement except as otherwise stated in paragraph 2.8 of this Agreement.
4. Si >na e. The City, at its sole cost and expense, may install, maintain and operate
signage on the Roadway Easement, in such locations and in such capacities as the City may approve
in the City's exercise of its governmental or quasi-governmental functions.
Default and Remedies.
S.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.
S.2 Remedies. The terms and provisions of this Agreement are enforceable with
alI remedies at law and in equity, including, but not limited to, bringing an action for actual damages,
an action for specific performance, an action far temporary restraining orders, preliminary or
permanent injunctions, declaratory judgments or other similar orders for relief; provided, however,
that suspension or termination of this Agreement on account of a breach shall not be. an available
remedy. 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.
6. l~Totice. Any notice, demand or request which may be permitted, required or desired
to be given in connection therewith shall be given in ~~7iting and directed to the City and the Owner
as follows:
As to City: Mr. David Harden, City Manager
City of Delray Beach
Page S of 10
204 N. W. 151 Avenue
Delray Beach., Florida 33444
Witli a copy to: R. Briaci Shutt, Esq.
City Attorney
100 N. W. 151 Avenue
Delray Beach, Florida 33444
As to Developer: Depot Industrial Center, LLC
250 N. W. Diagonal
Boca Raton, Florida 33432
With a copy to: Michael Listick, Esq.
190 N. E. 4`h Avenue
Delray Beach; Florida 33483
Facsimile: (561) 278-6909
Notices shall be deemed properly delivered and received ~~~hen 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).
7. General Provisions.
7.1 Amendment. This Agreement maybe 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.
Page 6 of 10
7.2 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.
7.3 Governinb Law. This Agreement wilt 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
Owner and the City.
7.5 Authority to Execute' Representations. The Owner and the City each
war-ant 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.
7.6 Counterparts. This Agreement may be sigmed 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 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.
7.8 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.
7.9 Non-Waiver. No waiver of, or failure to assert, any claim, right, benefit or
remedy of any parry pursuant to this Agreement shall operate as a waiver of any other claim, riglZt 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 «~aiver 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.
7.10 Headings. The headings of the articles of this Agreement are for guidance
and convenience of reference only and shall not limit or othei-~~vise affect any of the terms or
provisions of this Agreement.
Page 7 of 10
7.11 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 benef t of the City or the
Owner, as the case may be, their respective successors, assigns and/or grantees.
7.12 By separate joinder in this Agreement, First United Bank, the holder of a lien
on the Abandoned Roadway, has consented and does hereby consent to this Agreement, and the liens
and security interests held by Lienholder are hereby made subject and inferior 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
inferior to the terms and conditions of this Agreement and shall be bound by the ternls 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.
7.13 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
consideration be constructed more severely against one party than the other.
7.14 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.
7.15 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.
7.16 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.
7.17 Hazardous Substances. Neither Owner nor City shall cause or permit at any
time during the teams of this Agreement, any hazardous substances to be disposed of or otherwise
released on, to, or under the Roadway Easement. Neither Owner nor 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 City shall not be responsible for removal of such waste or have any
liability for it under this Agreement.
8. Governmental Functions.
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.
Page 8 of 10
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 limits oftort liability
set forth in F. S. ~ 768.28 (5)(2008) of $100,000.00 per person and $200,000.00 per
occurrence shall apply; and
d. Any action by City shall be without prejudice to, and shall not constitute a
limit or impairment or waiver of, or otherwise affect City's right. to exercise its
discretion in connection with its governmental or quasi-governmental functions.
Termination.
9.1 This Agreement shall terminate at such time as the engineer from the City (the
"City Engineer"} executes and delivers to the City and the Owner a completion certificate
("Completion Certificate"). The City Engineer shall execute the Completion Certificate at such time
as Relocated Depot Road has been timely and completely constructed by O«~ner or if not timely
completed by Owner and if City elects to complete construction, when construction is completed by
City, and City is fully reimbursed for the construction costs, all in accordance with the terms and
conditions of the Roadway Improvement Agreement, and upon acceptance by the City of Relocated
Depot Road as shown on the Plat of Historic Depot Square as a fully operational perpetually
dedicated City right of way. Any disputes regarding the construction of Relocated Depot Road shall
be governed by the terms and conditions of the Roadway Improvement Agreement.
9.2 This Agreement may also tenminate as provided in that certain Declaration of
Reserved Rights and Agreement Not to Encumber executed by and between City and Owner.
9.3 Upon termination of this Agreement if the Owner requests, the City shall
execute a fiirther document 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. Upon
reasonable request of either party, the other party shall furnish a v~~ritten estoppel certified statement
specifying therein whether any claims exist of the date of the estoppel certificate. These estoppel
ce[liticates shall be in recordable form.
IN WITNESS WHEREOF, the parties to this Agreement set their hands and seals the day and
year first above written
ATTEST:
CITY OF DELRAY BEACH, A
FLORIDA iVIUNICIPAL
CORPORATION
Page 9 of 10
BZ':
Approved as to Fonn:
City Attorney
STATE OF FLORIDA
COUNTY OF PALM BEACH
Bv:
Nelson S. 1\-4cDuffie, Mayor
The foregoing instrument was acknowledged before me this day of , 2011, by
Nelson S. McDuff e, the Mayor of the City of Delray Beach, a Florida Municipal Corporation.
He/She is personally known to me or has produced (type of identification) as
identification.
Signature of Person Taking Acknolwedgement
WITNF,SSES:
DEPOT INDUSTRIAL CENTER, LLC.,
Florida Limi#ed Liability Company
BY:
Thomas Head, Manager
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of , 2011, by
Thomas Head, the Manager of Depot Industrial Center, LLC, a Florida Limited Liability Company,
He/She is personally known to me or has produced (type of identification) as
identification.
Signature ofPerson Taking Acknolwedgement
Page 10 of 10
EXHIBITS TO
'TEMPORARY EASEMENT
(.Abandoned Depot Road)
Exhibit "A" - Legal description of l-lbandoned Depot Road.
Exhibit "B" - Legal description of Relocated Depot Road.
LEGAL DESCRIPTION OF RIGHT OF WAY THAT CITY IS CONVEYING TO DEVELOPEP,:
DEPOT ROAD RIGHT OF WAY
A PARCEL OF LAND LYING IN SECTION 18, TOVJNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY
BEACH, PALM BEACH COUNTY, FLORIDA, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS rr"OLLOWS:
COMMENCE AT THE NE CORNER OF SAID SECTION 18; THENCE N 89°09'2i" W, ALONG THE NORTH LINE
OF SAID SECTION 18, A DISTANCE OF 251.13 FEET; THENCE S 14°28'43" W, ALONG THE EAST RIGHT OF
WAY LINE OF THE CSX RAILROAD, A DISTANCE OF 143.88 FEET TO A POINT ON A CURVE CONCAVE
NORTHERLY HAVING A RADIUS OF 600.00 FEET AND A DELTA ANGLE OF 1 1 °49'20"; RADIAL BEARING
THROUGH SAID POINT BEARS N 00°33'26" W; THENCE EASTERLY, AN ARC DISTANCE OF 123.80 FEET TO
A POINT ON A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 215,00 FEET AND A DELTA ANGLE OF
27°36'45", RADIAL BEARING THROUGH SAID POINT BEARS S 65°39'04" E; THENCE SOUTHERLY ALONG SAID
CURVE AN ARC LENGTH OF 103.74 FEET TO THE POINT OF BEGINNING, SAID POINT HAVING A RADIAL
BEARING OF N 86°42'29" E AND BEING A POINT OF COMPOUND CURVATURE, HAVING A RADIUS OF
215.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE, CONCAVE EASTERLY AND HAVING A DELTA ANGLE
OF 01°11'48", AN ARC DISTANCE OF 4.49 FEET TO A, POINT OF TANGENCY; THENCE S 04°29'19" E, A
DISTANCE OF 982.51 FEET, THENCE S 31°05'49" W A DISTANCE OF 160.88 FEET TO A POINT ON THE
NORTH RIGHT OF WAY LINE OF N.W. 2ND STREET; THENCE S 89°56'26" E A DISTANCE OF 204.24 FEET
TO A POINT ON THE WEST RIGHT OF WAY LINE Or' INTERSTATE !-95 AS RECORDED IN OFFICIAL RECORDS
2187, PAGE 1256; SAID POINT BEING ON A CURVE CONCAVE WESTERLY, HAVING A RADIUS OF 1063.92
FEET, WHOSE RADIUS BEARS N B5°23'36" W; THENCE NORTHERLY ALONG SAID CURVE HAVING A DELTA
ANGLE OF 8°39'43" AN ARC LENGTH OF 160.85 FEET; TO A POINT OF TANGENCY; THENCE N 04°03'20"
W ALONG SAID WEST RIGHT OF WAY LINE OF i-95, A DISTANCE OF 506.19 FEET; THENCE N OS°04'42" W
ALONG SAID WEST RIGHT OF WAY LINE OF I-95 A DISTANCE OF 94.11 FEET TO A POINT ON A CURVE;
SAfO CURVE CONCAVE EASTERLY HAVWG A RADIUS OF 3969.72 FEET; THENCE NORTHERLY ALONG SAID
CURVE (BEING ON THE WEST RIGHT OF WAY LINE OF i-95) HAVING A DELTA ANGLE OF 5°31'47" AN ARC
DISTANCE OF 383.13 FEET TO A POINT ON A, CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 73.00
FEET WHOSE RADIUS BEARS N 61°39'17" W, THENCE WESTERLY ALONG SAID CURVE, HAVING A, DELTA
ANGLE OF 105°17'12", AN ARC DISTANCE OF 134.14 FEET TO THE P01NT OF BEGINNING.
TOGETHER WITH:
NW 2ND STREET RIGHT OF WAY
A PORTION OF MACK INDUSTRIES-DELRAY, AS RECORDED IN PLAT BOOK 43 PAGE 138 OF THE PUBLIC
RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINING AT THE NE CORNER OF SAID MACK INDUSTRIES-DELRAY PLAT (P.O.B.), THENCE N 89°56'26" W,
A DISTANCE OF 149.78 FEET TO A PO{NT OF CURVATURE; SAID CURVE CONCAVE SOUTHEASTERLY, HAVING
A RADIUS OF 25.00 FEET AND A DELTA ANGLE OF 90°52'11", THENCE SOUTHWESTERLY ALONG SAID
CURVE, AN ARC DISTANCE OF 39.65 FEET; THENCE N 00°48'37" W, A DISTANCE OF 10.00 FEET; TO A
POINT OF CURVATURE CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 25 FEET AND A DELTA ANGLE OF
90'52' 11 "; THENCE NORTHEASTERLY A! ONG SAID CURVE FOR AN ARC DISTANCE OF 39.65 FEET TO A
POINT OF TANGENCY; THENCE S 89°56'26" E, A DISTANCE OF 149.78 FEET; THENCE 5 00°48'37" E, A
DISTANCE OF 1 G.00 FEET TO THE POINT OF BEGINNING; CONTAINING 1,752 SOUAP,E FEET, MORE
DESCRiP TiON OF ABANDONMEN T
CERTIFICATION: SCALE: 1" = 80' FOUNDED 1993
TH!S SKETCH MEE75 MINIMUM TECHNICAL STANDARDS AS SET FORTH BY THE FLORIDA BASELINE >~ ENGINEERING
BDARD OF PROFESSIONAL SURVEYORS AND MAPPERS IN CHAPTER 61G17-6, FLORIDA ORAIy?J BY.• D.J.M.
ADMINISTRATIVE C 0 -PUR$ : ~Q SECTION 472.027, FLORIDA STATUTES. AND
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THIS DP,AVNNC, SKETCH, PLAT, Ok MAP IS FOk INFORMATION PURPOSES ONLY AND 15 ~Ey 6,_S,1Q 1,7E1) 41i-0700 LB 6438
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Exhibit B
Legal description of Relocated Depot Road.
Exhibit "8"
Reserved Rights Declaration
DECLARATION
OF RESERVED RIGHTS AND AGREEMENT
NOT TO ENCUMBER
(Abandoned Depot P~oad}
This Declaration of Reserved Rights and Agreement Not to Encumber Abandoned Depot
Road, (this ``Agreement'') is entered into this day of , 2011 {the "Effective Date"),
between the CITY OF DELRAY BEACH, a Florida Municipal Corporation, (the "City") anei
DEPOT INDUS"TRIAL CENTER, LLC, a Florida Limited Liability Company, (the "Developer")
for the purpose of setting forth the Developer's contingent obligation to reconvey Abandoned Depot
Road which the City abandoned and quitclaimed to accommodate the Developer's project in Delray
Beach, Florida on lands designated as Historic Depot Square.
RECITALS:
A. The Developer intends to construct and develop a project (the "Project") on that
certain real property described as follows (the "Historic Depot Square"):
See Exhibit "A" attached hereto and made a part hereof
B. Pursuant to that certain Resolution (the "Abandomnent Resolution''), the City, at the
Developer's request, vacated and abandoned and quitclaimed all right, title and interest the City held
in and to that certain roadway more particularly described as follows ("Abandoned Depot Road''}:
See Exhibit "B" attached hereto and made a part hereof
The Abandonment Resolution is recorded in Off cial Record Book ,Page , of
the Public Records of Palm Beach County, Florida.
C. As a result of the approval by the City ofthe Abandonment Resolution, Developer
has become the owner and holder of fee simple title of Abandoned Depot Road. Pursuant to that
certain Temporary Easement Agreement to be recorded in the Public Records of I?alm Beach County,
Florida (the "Temporary Easement Agreement"), the Developer has agreed to grant the City an
exclusive temporary roadway and utility easement over, upon, under and across Abandoned Depot
Road(the "Abandoned Depot Road Easement"):
D- In connection with the development of the Project, the Developer has agreed to
construct a relocated Depot Road ("Relocated Depot Road")including the installation of
improvements located thereon, including, without limitation, streetlights, pedestrian and vehicular
traffic lights, signs and markings, sidewalks, planters, trees, landscaping and other related
appurtenances, as specified in the Phase I Site Plan ("Site Plan") approved for the Project and the
drawings of Smiley & Associates, Inc., to the extent such drawings do not conflict with the Site Plan
or the City's Land Development Regulations. Relocated Depot Road shall be constructed within
Page 1 of 11
I-Iistoric Depot Square and in those certain East-West roadway extensions lying outside the Plat of
Historic Depot Square, and is legally described as follows:
See Exhibit "C" attached hereto and made a part hereof.
E. The Abandoned Depot Road Agreement provides, in pa1-t, that the Abandoned Depot
Road Easement shall terminate and be of no further force and effect upon recordation of the
"Completion Certificate" as defined in the Agreement for Completion of Roadway Improvements
and Guarantee ("Roadway Improvement Agreement") evidencing that construction of Relocated
Depot Road has been completed.
F. If City is entitled to and exercises its right of reconveyance of Abandoned Depot
Road, and it is reconveyed to City in accordance with the terms of this Agreement, City shall
abandon and vacate that portion of Relocated Depot Road identified as Tract RW on the Plat of
Historic Depot Square ("Tract RW").
G. This Agreement sets forth the obligation of Developer to reconvey Abandoned Depot
Road to the City and the City's obligation to abandon and vacate Tract RW in the event either the
City or the Developer exercises its respective right of reconveyance or right of termination, and
Abandoned Depot Road is reconveyed to the City 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.
City's Reserved Rights.
2.1 Pursuant to the Roadway Improvement Agreement, Developer is obligated to complete
construction of Relocated Depot Road within forty-eight (4$) months after the closing date of the
Agreement for Exchange of Real Property by and between City and Developer. In addition, if the
approved Site Plan expires before any permits are issued by the City with respect to the Project, the
City, at the option of the City, may require the developer to reconvey Abandoned Depot Road to the
City. In the event Developer fails to timely complete construction of Relocated Depot Road, the
City, at the option of the City, may require the Developer to reconvey Abandoned Depot Road to the
City. The Developer's obligation to reconvey Abandoned Depot Road to the City is hereinafter
referred to as the "City's Reconveyance Right".
2.2 The City may exercise City's Reconveyance Right if the approved Site Plan expires
before any permits aze issued by City with respect to the Project; or if construction of Relocated Depot
Road has commenced but the Developer has not timely completed construction of Relocated Depot
Page 2 of 11
Road, and City has not elected to complete construction of Relocated Depot Road itself pursuant to
the Roadway Improvement Agreement.
2.3 To exercise City's Reconveyance Right ,City shall notify Escrow Agent (as identified
in paragraph (3) of this Agreement) and Developer of such exercise within one hundred twenty (120)
days after City is entitled to exercise City's Reconveyance Right.
2.4 If City exercises City's Reconveyance Right, Developer shall reconvey Abandoned
Depat Road to 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 "D" which is attached
hereta("Permitted Exceptions"). Evidence ofDeveloper's compliance ornancompliance 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 underwriter selected by Developer, or
by the opinion of a Florida Bar Board Certified Real Estate Attorney selected by the City.
2.5 Within thirty (30) days after City is no longer entitled to exercise City's
Reconveyance Right, provided City has not in fact exercised it, City shall record a certificate
evidencing the termination of this Declaration and City's Reconveyance Right.
2.6 If City is entitled to and exercises City's Reconveyance Right, within ninety (90) days
after Abandoned Depot Road is reconveyed to City in accordance with the terms of this Agreement
(i.e. City has acquired good, marketable and insurable title to Abandoned Depot Road, subject only
to the Permitted Exceptions), City shall vacate and abandon "Tract RW. In addition, Ciry may
terminate the Temporary Easement Agreement without thereby releasing any Develaper financial
liability thereunder which has accrued prior to termination.
Developer's Reserved Rights
3.1 If the approved Site Plan expires before any permits are issued by the City with
respect to the Project, then Developer has the option of terminating its obligation to commence and
complete construction of Relocated Depot Road, provided Develaper reeonveys Abandoned Depot
Road to City. The Developer's option to terminate its obligation to commence and complete
construction of Relocated Depot Road, provided it reconveys Abandoned Depot Road to the City,
is hereinafter referred to as "Developer's Termination Right".
3.2 The Develaper may exercise Develaper's Termination Right if the approved Site Plan
has expired and no permits have been issued. by the City with respect to the Project.
3.3 To exercise Developer's Termination Right ,Developer shall notify Escrow Agent
(as identified in paragraph (3) of this Agreement) and City of such exercise within one hundred
twenty (l2~) days after Developer is entitled to exercise Developer's Termination Right.
3.4 Before Developer may exercise Developer's Ternination Right, Developer shall
Page 3 of 11
reconvcy Abandoned Depot Road to 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 "D"
which is attached hereto("Permitted Exceptions"). Evidence of 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
underwriter selected by Developer, or by the opinion of a Florida Bar Board Certif ed Real Estate
Attorney selected by the City.
3.5 If Developer is entitled to and exercises Developer's Termination Right, within one
hundred fifty { 150) days after Abandoned Depot Road is reconveyed to City in accordance with the
terms of this Agreement (i.e. City has acquired good, marketable and insurable title to Abandoned
Depot Road, subject only to the Permitted Exceptions), City shall vacate and abandon Tract RW.
In addition, City may terminate the Temporary Easement Agreement without thereby releasing any
Developer financial liability thereunder which has accrued prior to tern~ination or which may be
secured by the Bond issued pursuant to the Roadway Improvement Agreement.
4. Escrow of Recom~eyance Deed. To secure the City's Reconveyance Right and
Developer's obligation to reconvey Abandoned Depot Road to City- if Developer exercises
Developer's Termination Right, Developer has, on even date herewith, executed and delivered to
City's counsel, as Escrow Agent, a fully executed Warranty Deed ("Warranty Deed"), the form of
which is attached hereto and made a part hereof as Exhibit "E". Upon the City's written notice to
Escrow Agent and Developer stating that City has exercised City's Reconveyance Right, Escrow
Agent shall be authorized to and shall promptly record the Warranty Deed in the Public Records of
Palm Beach County, Florida to effectuate the rconveyance of Abandoned Depot Road. The form
of the Escrow Agreement is attached hereto as Exhibit "F".
S. Agreement I~Tot to Encumber. Developer shall not encumber the title to Abandoned
Depot Road, shall not lien, sell, convey, transfer, pledge, mortgage, or hypothecate Abandoned
Depot Road, and shall not permit any person or entity other than the City to acquire any right, title,
or interest in Abandoned Depot Road (collectively referred to as "Encumbrance") during the term
of this Agreement. Any Encumbrance shall be void and have no force or effect with respect to
Abandoned Depot Road and shall at ail times be subject and inferior to the City's Reconveyance
Right. 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 Abandoned
Depot Road. City's remedies include, but are not limited to, injunction, foreclosure, specific
performance, quiet title, and declaratory relief.
Default and Remedies.
6.1 Default. The failure of the Owner or the City to
their respective obligations under this Agreement (the "Defaulting Parl
Page 4 of 11
notice from the other party specifying the nature of the failure (the '`Non-Defaulting Party"), shall
constitute a default and breach 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 specif c performance, an action for temporary restraining orders, preliminary or permanent
injunctions, declaratory judgments or other similar orders for relief; provided, however, that suspension
or tczmination of this Agreement on account of a breach shall not be an available remedy. 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.
6.3 Additional Remedy. if the City exercises City's Reconveyance Right or
Developer exercises Developer's Termination Right, but Abandoned Depot Road is not effectively
reconveyed to 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 Abandoned Depot Road, or City does not
obtain good, insurable, and marketable title to Abandoned Depot Road subject only to the Pernitted
Exceptions, in that event, in addition to any other available remedy to the City, City may declare a
violation ofand/or withhold, deny, abate, or revoke approval of any then pending or existing pernut, site
plan, development order, vaz-iance, or other governmental or quasi-govezmental consent or approval
which relates to or concerns the Project until the Developer effects the reconveyance of Abandoned Depot
Road to the City in compliance w7th dais Agreement.
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 Ageement. This Agreement sets forth the entire agreement between the
Developer and the City ~~ith 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.
7.3 Govemin~ Law. This Agreement wil l be intezpreted and enforced in accordance
«7th 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
Page 5 of 1 I
City, respectively; have full power and authority to execute and deliver the Agreement and to bind the
respective patties 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 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 jiu-isdiction to be
im~alid or unenforceable, the remainder of this Agreement, or the application of such teen 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 pei~nitted by law.
7.8 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 maizner
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.
7.9 Headings. The headings of the articles of this Agreement are for guidance
aild convenience of reference only and shall not limit or otherwise affect any of the terms or provisions
of this Agreement.
7.10 Covenant Running with the L and. This Agreement aild the easements granted
herein, and all of the rights, duties and obligations of the parties wish respect thereto, shall be construed
as covenants running ~x~ith 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.
7.11 Lienholders. By its joinder in this Agreement, First United Bank (Developer's
"Lienholder'"), the holder of a lien on the Historic Depot Square land, has consented and does hereby
consent to this Agreement, and the liens and security interests held by Lienholder are hereby made subject
and subordinate to the teens of this Agreement ~~ithout the necessity of the execution of any other
document. Airy 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 terrns and
provisions of This Agreement. In the event City exercises City's Reconveyalice Right or Developer
exercises Developer's Termination Light and Abandoned Depot Road is reconveyed to City, Lienholder
agrees that its inferior lien against Abandoned Depot Road shall automatically be extinguished, released,
and be of no further force or effect upon recordation of the Abandoned Depot Road Warranty Deed.
Page h of I 1
7. i2 Joint Preparation. The preparation of this Agreement has been ajoint 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 pai-ly than the other.
7.13 Attorneys Fees. Ili coiznection with any litigation, or dispute arising out of this
Agreement, each party shall bear its o~m attorneys' fees and costs.
7.14 Further Assurances. The pai-cies agree to execute all future instruments and take
all further action that may be reasonably required by any party to fully effectuate the teens and provisions
of this Agreement and the transactions contemplated herein.
7.15 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.
7.16 Hazardous Substances. Neither Developer nor 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 Abandoned Depot Road. Neither Developer nor City shall engage in operations aver,
upon or under Abandoned Depot Road that involve the generation, manufacture, refining, transportation,
treatment, handling or disposal of "Hazardous Substances" or "hazardous wastes" as such teens are
defined ui7der any en~~ironmental laws. Developer acknowledges however, that Abandoned Depot Road
will be utilized for parking and dm~ing 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
Ab •eeinei~it.
8. No Penalty. Developer acknowledges that construction of improvements on the Historic
Depot Square is subject to the City's Reconveyance Right. Therefore; such construction is at Developer's
risk andthat 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 ~~ith its governmental and
quasi-govemmental functions. Developer acknowledges and agrees that if City exercises City's
Reconveyance Right, the site plan, permits and other approvals relating to Historic Depot Square will
have to be modified and may no longer be in compliance w7th applicable governmental laws, ordinances
and rules, a~~d they may be revoked or rescinded by City until there is compliance with all applicable
govei-runenta] laws, ordinances and rules.
Page 7 of 11
10 Govezmmental 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 corrzplying with all
applicable governmental regulations, rules, laws, and ordinances.
b. To the e?.~tent 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 sovereigzi imrrrunity and the limits of tort liability set
forth in F. S. ~ 768.28 (5}(2008} of $100,000.00 per person and $200,000.00 per occurrence shall
apply; and
d. Any action by City sha[1 be without prejudice to, and shall not constitute a limit
or impairment or waiver of, or otherwise affect City's rightto exercise its discretion in connection
~~rith its govemmental or quasi-govennemental functions.
11. Notices. Any notice, demand or request which maybe permitted, required or• desired to
be given in connection therewith shall be given in writing and directed to the City and the Developer as
follows:
As to City: R. Brian Shutt, Esq.
City Attorney
200 N. W. ly` Avenue
Delray Beach, Florida 33444
With a copy to: Mr. David Harden, City Manager
City of Delray Beach
100 N. W. 15` Avenue
Delray Beach, Florida 33444
As to Developer: Depot Industrial Center, LLC
250 N. W. Diagonal
Boca Raton. Florida 33432
With a copy to: Michael Listick, Esq.
190 S. E. 5`h Avenue
Delray Beach, Florida 33483
Page 8 of 11
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
swine day when sent by confirmed facsimile before 5:00 p.m. (Eastern time}.
IN WITNESS WHEREOF, the parties to this Agreement set their hands and seals the day and
year f rst above v~n•itten.
ATTEST:
By:
CITY OF DELRAY BEACH, FL012IDA
Bv:
City Clerk Nelson S. McDuffte, Mayor
Date:
Approved as to Form:
By:
City Attorney
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this day of , 2010,
byNelson S. McDuffie, the Mayor ofthe CITY OF DELRAI' BEACH, FLORIDA. He!She is personally
known to me or has produced (type of identification) as identification.
Signature of Person Taking Acknowledgnnent
WITNESSES:
Page 9 of 11
DEPOT INDUSTRIAL CENTER,
LLC, a Florida Limited Liability
Company
Witness
Print Nanze of Witness
Witness
BY:
Print Name of Witness Thomas Head, Manager
Date:
STATr OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of
201 I, by Thomas Head, the Manager of Depot Industrial Center, LLC, on behalf of The
. He/She is personally known to me or has produced (t}~pe
of identification) as identification.
Signature of Person Taking Acknowledgment
Page I O of 11
JOINDER AND CONSENT OF LIENHOLDEI2
The undersigned,
set forth in Section 6.11 above.
hereby joins in ibis Agreement for the purposes
FIRST UNITED BANK
BY:
its Vic e
President
STATE OF
COUNTY OF
The foregoing instnunent was ackno«~ledged before me this day of , 2011, by
,the of . He/She
is personally knov~nl to me or has produced (type of identification) as identification.
Signature of Person Taking
Acknolwedgement
Page 11 of i 1
EXHIBITS TO DECLARATION
OF RESERVED RIGHTS AND AGREEMENT
NOT TO ENCUMI3EI2
(Abandoned Depot Road)
Exhibit "A" - Legal Description of Historic Depot Square.
Exhibit "B" - Legal Description of Abandoned Depot Road.
Exhibit "C" - Legal Description of Relocated Depot Road.
Exhibit "D" - Permitted Exceptions to reconveyance of Abandoned Depot Road.
Exhibit "E - Warranty Deed from Depot to reconvey Abandoned Depot Road.
Exhibit "F" - Escrow Agreement for holding Exhibit "E" (ROW Escrow Agreement).
Exhibit A
Legal Description of Historic Depot Square.
PLAT LEGAL DESCRIPTION
DESCRIPTION
A REPEAT OF PART OF SECTION 18, TOWNSHIP 46 S. RANGE 43 E AND ALL OF THE PLAT OF "MACK INDUSTRIES-DELRAY", PLAT BOOK 43,
PAGE 138, PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA, BEING MORE
PARTICULARILY DESCRIBED AS FOLLOWS:
A PARCEL OF LAND LYING IN SECTION 18, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH, PALM BEACH COUNTY,
FLORIDA, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOV~S:
COMMENCE AT THE NE CORNER OF SAID SECTION 18; THENCE N89°09'21"W, A DISTANCE OF 251.13 FEET, ALONG THE NORTH LINE OF
SAID SECTION 18; THENCE S14°28'43"W' ALONG THE EAST RIGHT OF WAY LINE OF THE SEABOARD COASTLINE RAILROAD, A DISTANCE OF
143.88 FEET TO THE POINT OF BEGINNING; THENCE S14°28'43"W ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 143.60 FEET;
THENCE S14°28'43"W ALONG SAID EAST RIGHT OF WAY LINE A DISTANCE OF 407.32 FEET;THENCE N89°09'21"W A DISTANCE OF 2.13 FEET
TO A POINT ON A CURVE, CONCAVE TO THE EAST, HAVING A RADIUS OF 2815.00 FEET, AND A DELTA ANGLE OF 07`52'41 ", RADIAL BEARING
THROUGH SAID POINT BEARS S82°59'54"E; THENCE SOUTHERLY ALONG SAID CURVE AN ARC DISTANCE OF 387.06 FEET TO A POINT OF
TANGENCY THENCE S00°52'35"E A DISTANCE OF 288.98 FEET;THENCE S89°56'26"E ALONG THE NORTH RIGHT OF WAY OF NORTHWEST 2ND
STREET HAVING A PROPOSED RIGHT OF WAY WIDTH OF 30.00 FEET A D?STANCE OF 458.47 FEET TO A POINT ON THE WEST RIGHT OF WAY
LINE OF INTERSTATE 95 AS RECORDED IN ORB 2187, PAGE 1256, HAVING AN IRREGULAR RIGHT OF W'AY WIDTH; SAID POINT BEING ON A
CURVE CONCAVE WESTERLY HAVING A RADIUS O"r 1063.92 FEET, A DELTA ANGLE OF 08°39'43"; RADIAL BEARING THROUGH SAID POINT
BEARS N85°23'36"VU; THENCE NORTHERLY ALONG SAID CURVE AN ARC DISTANCE OF 160.85 FEET; THENCE N04°03'20"W ALONG SAID WEST
RIGHT OF WAY OF INTERSTATE 95, A DISTANCE OF 506.19 FEET; THENCE N08°04'42"W A DISTANCE OF 94.11 FEET TO A POINT OF
CURVATURE, CONCAVE EASTERLY, HAVING A RADIUS OF 3969.72 FEET, A DELTA ANGLE OF 05°3 i'4T', THENCE NORTHERLY ALONG SAID
CURVE A DISTANCE OF 383.13 FEET TO A POINT ON A CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 73.00 FEET A DELTA ANGLE OF
105°17'12", RADIAL BEARING THROUGH SAID POINT BEARS N61°39'17"W; THENCE WESTERLY ALONG SAID CURVE AN ARC DISTANCE OF
134.14 FEET, TO A POINT ON A CURVE, CONCAVE EASTERLY, HAVING A RADIUS OF 215.00 FEET, A DELTA ANGLE OF 27°38'45", RADIAL
BEARING THROUGH SAID POINT BEARS N86°42'29"E; THENCE NORTHERLY ALONG SAID CURVE A DISTANCE OF 103.74 FEET TO A POINT ON
THE SOUTH RIGHT OF WAY LINE OF THE E-4 CANAL SAID POINT BEING ON A CURVE. CONCAVE NORTHERLY, HAV{NG A RADIUS OF 600.00
FEET A DELTA ANGLE OF 11 °49'20", RADIAL BEARING THROUGH SAID POINT BEARS N12°22'4E"W; THENCE WESTERLY ALONG SAID SOUTH
RIGHT OF V1,'AY A DISTANCE OF 123.80 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH A PARCEL OF LAND LYING IN SECTION 18, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH, PALM BEACH
COUNTY, FLORIDA, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED A5 FOLLOWS:
COMMENCE AT THE NE CORNER OF SAID SECTION 18 THENCE N89°09'21"W, A DISTANCE OF 251.13 FEET ALONG THE NORTH LINE OF SAID
SECTION 18; THENCE S14°28'43"W ALONG THE EAST RIGHT OF WAY LINE OF THE SEABOARD COASTLINE RAILROAD, A DISTANCE OF 143.88
FEET; THENCE S14°28'43"W ALONG SAID EAST RIGHT OF WAY LINE, A DISTANCE OF 143.60 FEET; THENCE S14°26'43"W ALONG SAID EAST
RIGHT OF WAY LINE A DISTANCE OF 407.32 FEET; THENCE N89°09'21"W A DISTANCE OF 2.13 FEET TO A POINT ON A CURVE, CONCAVE
EASTERLY, HAVING A RADIUS OF 2815.00 FEET, AND A DELTA ANGLE OF 07°52'41", RADIAL BEARING THROUGH SAID POINT BEARS
S82°59'54"E; THENCE SOUTHERLY ALONG SAID CURVE AN ARC DISTANCE OF 387.06 FEET TO A POINT OF TANGENCY; THENCE S00°52'35"E
A DISTANCE OF 288.98 FEET; THENCE S89°56'26"E ALONG THE NORTH RIGHT OF WAY OF NORTHWEST 2ND STREET HAVING A PROPOSED
RIGHT OF WAY WIOTH OF 30.00 FEET A DISTANCE OF 307.16 FEET; THENCE S00°04'40"E, A DISTANCE OF 30.OG FEET TO THE POINT OF
BEGINNING; THENCE CONTINUE S00°04'40"E A DISTANCE OF 300.27 FEET; THENCE N88`49'47"E A DISTANCE OF 70.41 FEET TO A POINT ON
A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 1063.92 FEET, A DELTA ANGLE OF 09°40'54"; RADIAL BEARING THROUGH SAID
POINT BEARS N67°U5'34"W; THENCE SOUTHWESTERLY ALONG SAID CURVE AN ARC DISTANCE OF 179.78 FEET TO A POINT OF TANGENCY;
THENCE S32°35'19`W ALONG THE WEST RIGHT OF WAY LINE OF SAID INTERSTATE 95 A GISTANCE OF 91.69 FEET; THENCE N89°39'19"W A
DISTANCE OF 210.06 FEET; THENCE N00`4S'37"W A DISTANCE OF 100.63 FEET; THENCE CONTINUE N00°48'37"W A DISTANCE OF 408.07 FEET
TO A POINT OF CURVATURE OF A CURVE, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 25.00 FEET, A DELTA ANGLE OF 90`52'11";
THENCE NORTHEASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 39.65 FEET TO A POINT OF TANGENCY; THENCE S89°56'26"E ALONG
THE SOUTH RIGHT OF WAY LINE OF NORTHWEST 2ND STREET HAVING A PROPOSED RIGHT OF WAY WIDTH OF 30.00 FEET A DISTANCE OF
254.40 FEET TO THE POINT OF BEGINNING.
TGGETHER WITH A PORTION OF MACK INDUSTRIES-DELRAY P.S RECORDED IN PLAT BOOK 43, PAGE 138 OF THE PU6LiC RECORDS OF
PALM BEACH COUNTY, FLORIDA BEING MORE PARTICULARLY GESCRIBEC AS FOLOWS:
BEGINING AT THE SOUTHWEST COP.NER OF Iv1ACK INDUSTRIES DELRAY-PLAT, SAID CORNER BEING ON A CURVE CONCAVE WESTERLY
HA\/LNG A RADIUS OF 541.40 FEET AND A DELTA ANGLE OF 22°30'0', RADIAL BEARING THROUGH SAID CORNER BEAP,S N8 i °25'47"W;
THENCE NORTHWESTERLY ALONG SAID CURVE AN ARC LENGTH OF 21262 FEET TO A POINT OF TANGENCY; THENCE N13°55'52"W A
DISTANCE OF 79.15 FEET; THENCE S89°39'19"E, A DISTANCE OF 187.16 FEET; THENCE S32°35'i9"W, A DISTANCE OF 109.88 FEET TO A POINT
OF CURVATURE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 632.00 FEET AND A DELTA ANGLE OF 19°29'29"; THENCE
SOUTHWESTERLY ALONG SAID CURVE AN ARC DISTANCE OF 215.00 FEET; THENCE N79°12'27"W, A DISTANCE OF 16.25 FEET TO THE POINT
OF 6EGINNING.
LEGAL DESCRIPTION OF RIGHT OF WAY THAT CITY lS CONVEYING TO DEVELOPER:
DEPOT ROAD RIGHT OF WAY
A PARCEL OF LAND LYING IN SECTION 18, TOWtdSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY
BEACH, PALM BEACH COUNTY, FLORIDA, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NE CORNER OF SAID SECTION 18; THENCE N 89°09'21 " W, ALONG THE NORTH LINE
OF SAID SECTION 18, A DISTANCE OF 251.13 FEET; THENCE S 14°28'43" W, ALONG THE EAST RIGHT GF
WAY LINE OF THE CSX RAILROAD, A DISTANCE OF 143.88 FEET TO A POINT ON A CURVE CONCAVE
NORTHERLY HAVING A RADIUS OF 600.00 FEET AND A DELTA ANGLE OF 1 1 °49'20"; RADIAL BEARING
THROUGH SAID POINT BEARS N 00°33'26" W; THENCE EASTERLY, AN ARC DISTANCE OF 123.80 FEET TO
A POINT ON A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 215.00 FEET AND A DELTA ANGLE OF
27°38'45", RADIAL BEARING THROUGH SAID POINT SEARS S 65°39'04" E; THENCE SOUTHERLY ALONG SAID
CURVE AN ARC LENGTH OF 103.74 FEET TO THE POINT OF BEGINNING, SAID POINT HAVING A RADIAL
BEARING OF N 86°42'29" E AND BEING A POINT OF COMPOUND CURVATURE, HAVING A RADIUS OF
215.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE, CONCAVE EASTEPLY AND HAVING A DELTA ANGLE
OF 01°11'48", AN ARC DISTANCE OF 4.49 FEET TO A POINT OF TANGENCY; THENCE S 04°29'19" E, A
DISTANCE OF 982.51 FEET, THENCE S 31°05'49" W A DISTANCE OF 160.88 FEET TO A POINT ON THE
NORTH RIGHT OF WAY LINE OF N.W. 2ND STREET; THENCE S 89°56'26" E A DISTANCE OF 204.24 FEET
TO A POINT ON THE WEST RIGHT OF WAY LINE OF INTEP.STATE I-95 A5 RECORDED IN OFFICIAL RECORDS
2187, PAGE 1256; SAID POINT BEING ON A CURVE CONCAVE WESTERLY, HAVING A RADIUS OF 1063.92
FEET, WHOSE RADIUS BEARS N 85°23'36" W; THENCE NORTHERLY ALONG SAID CURVE HAVING A DELTA
ANGLE OF 8°39'4.3" AN ARC LENGTH OF 160.85 FEEL; TO A POINT OF TANGENCY; Ti-1ENCE N 04°03'20"
W ALONG SAID WEST RIGHT OF WAY LINE OF I-95, A DISTANCE OF 506.19 FEET; THENCE N 08°04'42" W
ALONG SAID WEST RIGHT OF WAY L{NE OF 1-95 A DISTANCE OF 94.11 FEET TO A POINT ON A CURVE;
SAID CURVE CONCAVE EASTERLY HAVING A RADIUS OF 3969.72 FEET; THENCE NORTHERLY ALONG SAID
CURVE (BEING ON THE WEST RIGHT OF WAY LINE OF 1-95) HAVING A DELTA ANGLE OF 5°31'47" AN ARC
DISTANCE OF 383.13 FEET TO A POINT ON A CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 73.00
FEET WHOSE RADIUS BEARS N 61 °39' 17" W, THENCE WESTERLY ALONG S.AiD CURVE, HAVING A DELTA
ANGLE OF 105°17'12", AN ARC DISTANCE OF 134.14 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH:
NW 2ND STREET RIGHT OF WP,Y
A PORTION OF MACK INDUSTRIES-DELRAY, AS PECORDED iN PLAT BOOK 43 PAGE 138 OF THE PUBLIC
RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINING AT THE NE CORNER OF SAID MACK INDUSTRIES-DELRAY PLAT (P.0.6.), THENCE N 89°5fi'26" W,
A DISTANCE OF 149.78 FEET TO A POINT OF CURVATURE; SAID CURVE CONCAVE SOUTHEASTERLY, HAVING
A RADIUS OF 25.00 FEET AND A DELTA ANGLE OF 90°52' 11 ", THENCE SOUTHWESTERLY ALONG SAID
CURVE, AN ARC DISTANCE OF 39.65 FEET; THENCE N 00°48'37" W, P, DISTANCE OF 10.00 FEET; TO A
POINT OF CURVATURE CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 25 FEET AND A DELTA ANGLE OF
90°52'1 1 "; THENCE NORTHEASTERLY ALONG SAID CURVE FOR AN ARC DISTANCE OF 39.65 FEET TO A
POINT OF TANGENCY; THENCE S 89°56'26" E, A GiSTANCE OF 149.78 FEET; THENCE S 00°48'37" E, A
DISTANCE OF 10.00 FEET 70 THE POINT OF BEGINNING; CONTAINING 1,752 SQUARE FEET, MORE
DESCRIPTION OF a Bti ND ONMEN T
CERTIFICATION: SCALE: ?" - 80' FOUNDED 1993
THIS SKETCH MEETS MINIMUM TECHNICAL STANDARDS AS SET FORTH BY THE FLORIDA BASELINE ~ ENGINEERING
BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS 1N CNAPTI=R 6;G77-6, FLORIDA L7~Aw~l Bv~ D.,LM.
ADMI.NISTRATIYE C -FURS SEC770N 472.027, FLORIDA STATUTES. AND
~°~' ~_ CHECKED BY M. J.A.
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ERNcST W. OUNCAN. PSN,. Sloe of F/orio~ote ~ 1400 N. W. 1st COUR?
Professional Surveyor & Mapper No. 5187 BOCA RA TON, FLORIDA 34.32
'THIS DRAWING, SKETCH, PLAT, OR MAP !S FOR 1NFDRMATlON PURPOSES DNLY AND fS EB 6510 (561j X17-0700 LB 0439
.NOT YALID, UNLESS /7 BEARS THE SIGNA PJRE AND THE OP,IGINAL RAISED SEAL OF A p
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BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS 1N CHAPTER 61G17-6, FLORIDAI DRAWN BY.' D.J.M.
ADMfN1STRATiVE CO .PAJkSUAN SECTION 472.027, FLORIDA STATUTES.
J ~ ~ CHECKED BY M. /. A.
ERNEST W. DU/JCAN PSM. Stole o1 F/orid~ote
Pro/essiona! Surveyor & lfopper No. 5182
THlS DRAN7NG, SKETCH, PLAT, OR MAP IS FOR INr"ORMATlON PURPOSES ONLY' AND IS
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1400 N. H! 1st COURT
BOCA RA TON; FL OR/DA 33432
EB 6510 ~~501) 417- 0700 ~ ~ 6439
/OB NG.; OS-05-0131 SHt r i N0. 2 0; 3
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THIS SKETCH MEETS MINIMUM 7ECNNICAL STANDARDS AS SET FORTH BY THE FLORIDA
BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS !N CHAPTER biG17-b, FLORIDA
ADMlNfSTRAnVE CODE„~' RSUANT ~SFC710N 472.027, FLORIDA STATUTES.
ERNEST W. DUNCRA~ PSN,. Stote of FloridoDote
Professibno/ Surveyor & Mopper No. 5182
THIS DRAWING, SKETCH. PLAT, OR MAP IS FOR INFORMATr01J PURPOSES ONLY AND !S
N07 VALJD, UNLESS 17 BEAP,S THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF A
., ".~,,... , ,,.r.,crn cuo~wnc enlO 1/e PP:P
AD ABAP~JC
SCALE' 1" = 8Q'
DRAWN BY.~ D. J.M.
CN,ECKED BY' M. J.A.
~NN,'ENT
FOUNDED 1993
B,4 ScLINE ~ ENGINEERING
AND
LAND SUR tiEYING INC.
1400 N. Yt' 1st COURT
BOCA RA TON, FL ORIDA 33432
Eta 6510 ~561~ 41 i - 0?OG LB 643
JOB NO.: 05-05-013~SHEET N0. 3 of 3
Exhibit C
Legal Description of Relocated Depot Road.
Tract RW and Tract RW-1 as shown on the proposed
Plat of Historic Depot Square
Exhibit D
Permitted Exceptions to reconveyance of Abandoned Depot Road.
OLD RFI'UBLIC' NAll"ONAL TIT LL' I.NrSURANCE COMPANY
COMMITMENT
Schedule B-ri
Fund File t~lumber: Agent's File Reference:
06-2008-007200A1 Historic Depot/Delray Beach
I1. Schedule B of the Policy or Policies to be issued will contain exceptions to the following matters unless the same are
disposed of to the satisfaction of the Company:
or attaching subsequent to the Effectiv triter-ec~u~rio a e e roposed Ins/u~red acquires for value of
r ~ er~age-tl}e~c~rt-eol~erQd-by-t~:is-£t~mm~itrtrerrk l~~_ 1~' ~r~ L~-
~he-}ie--z-oi-m;-axes-ers~eei-al-assesstrjertEs-€~or-t#~e-~~ar-{~-2{}~N-and-theraaft~-wla~l~a~e not-}mot-due-arid-13ayable. ~ ~!
r, n:,.r,....._ .,i,,:i3-6~j7fltFte3-lit-}~e33E33t~i1-Clot-T:' 't'f~tC~Trds. ~(7 tai' "'~.~
. o
e~er~s~er~-~rr3}br-aflse;-v~olation~zr-iatiar~r--er-aduer~e~ircuuistattce--tlzai-w.outd be ~~sclasP I7Y an
irss~ss.~iar~-o~a{~-acc~+ate-acrd-so~ple#e-lend-survey-cif-tHe-I/ancl-aitcl-irtspeetiam6f thc-~~a~nd. `~~. {~2 K?
-'~~n`~,- ~ratms-of-cascmcnts-n bi~i~-Reorn'ds. ~,,~' , ~ ~~ ~=-
1~~- 1J:z-- I -~ ~"~
3. Any Owner Policy issued pursuant hereto will contain under Schedule B the fol]owing exception: Any adverse
ownership claim by the State of Florida by rigs:t of sovereignty to arty portion of the Lands insured hereunder,
including submerged, filled a~zd artificially exposed lands, and lands accreted to such lands.
4. Taxes for the year 201 1, which are not yet due and payable.
st~;~-s€-tt~--~ i~%1 ~~~ c~
6. All matters contained on the Plat of Model Land Company's Subdivision of the North 1/2 and part of the South 1/2
of Section 18, Township 46 South, Range 43 East, as recorded in Plat Book 6, Page(s) S 1, Public Records of Palm
Beach County, Florida.
7. Declaration of Restrictions recorded in O.R. Book 36 i6, Page 1067, Public Records of Palm Beach County, Florida.
8. All matters contained on the Plat of Mack Industries-Delray, as recorded in Plat Book 43, Pages} 138, Public
Records of Palm Beach County, Florida.
9. Ordinance of the City of Delray Beach recorded in O.R. Book 5887, Page 244 and O.R. Book 6620, Page 1707,
Public Records of Palm Beach County, Florida.
_ ~ , spot-Irrclnstriai-~erittr,
i r r,~L~„.~ ~~n rat., „F~7i,,el}"~e3613~-F~{9ri~ ,a--FCC-e\r\rn~'-u-irrvz~; lc , I~&~0---i~ljl'!e-Pcee6r~-~6~-IlElm
~Cfi"C-j"'~'"1~rYtlH~~-~ ~ ~,/ ~ ~ ~~~ b
11. All matters contained on the Plat of Historic Depot Square, as recorded in Plat Book _, Page(s) _, Public
Records of Palm Beach County, Florida. (To be recorded}
12. Notice of Environmental Resource ar Surface Water Manaeement Permit by South Florida Water Management
District recorded in O.R. Book 23383, Page 952. Public Records of Palm Beach County, Florida.
Form CI~6-SCH.•B-il (rev. 12/10)
Exhibit E
~~Jarranty Deed from Depot to reconvcy Abandoned Depot Road.
"Ibis instrument was prepared by
and RrTURN TO:
Steven D. Rubin, Esq.
980 North Federal Highway, Suite 434
Boca Raton, Florida 33432
SPECIAL V4'ARRA\T'TY DEED
THI5 INDENTURE, made this day of , 20_, BETWEEN DEPOT
INDUSTRIAL CENTER, LLC, a Florida Limited Liability, Company, 250 N. W. Diagonal,
Roca Raton, Florida 33432, grantor*, and CITY OF DELRAY BEACH, a Florida Municipal
Corporation, whose post offce address is 200 N. W. ls` Avenue, Dclra}~ Bcach, Florida 33444,
grantee*,
WITNESSETH that said grantor, for and in consideration of the sum of Ten and no/100ths
($10.00) Dollars, and other good and valuable considerations to said grantor in hand paid by said
grantee, the receipt whereof is hereby acknowledged, has granted, bargained and sold to the said
grantee, and grantee's heirs and assigns forever, the following described Iand, situate, lying and being
in Palm Beach County, Florida, to-wit:
See Attached Exhibit "A"
SUBJECT TO: (a) All matters contained an the Plat of Model Land Company's
Subdivision of the North 1/2 and part of the South 1/2 of Section 18, Township 46 South, Range
43 East, as recorded in Plat Book 6, Page 51, of the Public Records of Palm Beach County,
Florida; (b) Declaration of Restrictions recorded in Official Record Book 3616, Page 1067, of the
Public Records of Palm Beach County, Florida; (c} All matters contained on the Plat of Mack
Industries-Delray, as recorded in Plat Book 43, Page 138, of the Public Records of Palm Beach
County, Florida; (d) Ordinance of the City of Delray Beach recorded in Official Record Book
5887, Page 244, and Official Record Book 6620, Page 1707, of the Public Records of Palm Beach
County, Florida; (e) All matters contained on the Plat ofHistoric Depot Square, as recorded in Plat
Page 1 of 2
Book ,Page , of the Public Records of Palm Beach County; Florida; (f) Notice of
Environmental Resource or Surface Water Management Permit by South Florida Water
Management District, recorded in Off cial Record Book 23383, Page 952, of the Public Records
of Palm Beach County, Florida; and {g) taxes for the year this Special Warranty Deed is dated.
and said grantor does hereby fully warrant the title to said land and will defend the same against
the la«~ful claims of all persons arising by, through and under the Grantor.
* "Grantor" and "grantee" are used for singular or plural
as context requires
IN WITNESS WHEREOF, grantor has hereunto set grantor's hand and seal the day and
year first above written.
Signed, sealed and delivered
in our presence:
Witness
Print name of witness
Witness
DEPOT INDUSTRIAL CENTER, LLC, a
Florida Limited Liability Company
BY:
Print name of witness Thomas I-lead, Manager
STATE OF FLORIDA
COUNTY OF PALM BEACH.
(SEAL)
The foregoing instrument was acknowledged before me this ,day of , 20_,
by Thomas Head, Manager, Depot Industrial Center, LLC, who is personally known to me and
«~ho did not take an oath.
My Commission Expires: Notary Public
Properly Control No.
Pagc 2 of 2
Exhibit F
Escrow Agreement for holding Exhibit "E" (RO~~J Escrow Agreement).
RIGI-IT OF «%A1'
ESCROW AGREEMENT
THIS RIGI3T OF WAY ESCROW AGREEMENT (this "Agreement") is made and
entered into as of 2011, by and between the CITY OF DELRAY BEACH, a
Florida Municipal Corporation (the "City"), DEPOT INDUSTRIAL CENTER, a Florida Limited
LIABILITY COMPANY, (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 Abandoned Depot Road (the "Declaration of Reserved Rights").
B. Pursuant to the terms of the Declaration of Reserved Rights, if the Developer fails
to complete construction of Relocated Depot Road (as such term is defined in the Declaration of
Resen~ed Rights), the City has the right to cause the Developer to reconvey Abandoned Depot Road
to the City (the "City's Reconveyance Right").
C. Pursuant to the terms of the Declaration of Reserved Rights, if the approved Site Plan
expires before any permits are issued by City with respect to the development of Historic Depot
Square Project, the Developer has the right to terminate the Roadway Improvement Agreement;
provided Developer has reconveye.d Abandoned Depat Road to the City {the "Developer's
Termination Right"),
D. To secure the City's Reconveyance Right and Developer's Termination Right, the
Developer has caused to be executed and delivered to the Escrow Agent: (i) a fully executed
warranty deed for Abandoned Depot Road (the "Deed"} and a Release of the HOA Declaration as
an encumbrance against Abandoned Depot Road ("Release") and to be held in escrow with Escrow
Agent.
E. Escrow Agent is willing to hold the Deed and Release in escrow in accordance with
the terms and conditions set forth in this Agreement.
NOW, THEREFOP~E, in consideration of the mutual covenants set forth in this Agreement
Page 1 of 5
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the City, Developer and the Escrow Agent hereby agree as follows:
1. Recitals 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 Deed and Release. By its execution and delivery of this
Agreement to the City, the Escrow Agent hereby acknowledges that it has received the Deed and
Release from the Developer.
Recordation of Deed and Release.
3.1 City's Exercise of Reconveyance Right. If the City properly and timely
exercises the City's Reconveyance Right, then upon the City's unitten 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 Deed and the Release in the Public Records of Palm
Beach County, Florida. Escro~~v Agent shall promptly deliver a cop} of the recorded Deed and
Release to the City. Following delivery of the recorded Deed and Release to the City and the
Developer, the Escrow Agent shall thereupon be released and discharged from any further duty or
obligation hereunder.
3.2 Developer's Exercise of Termination Right. If the Developer properly and timely
exercises the Developer's 'Termination Right, then upon the DeveIoper's written notice to Escrow
Agent and the City stating that the Developer has properly and timely exercised the Developer's
Termination Right, the Escrow Agent shall promptly record the Deed and Release in the Public
Records of Palm Beach County, Florida. Escrow Agent shall promptly deliver a copy of the
recorded Deed and Release to the City and the Developer. Following delivery of the recorded Deed
and Release to the City, the Escrow Agent shall thereupon he released and discharged from any
further duty or obligation hereunder.
4. Costs and Expenses. The Developer agrees to reimburse the Escrow Agent for all
reasonable costs and expenses incurred by the Escro«~ Agent in serving as Escrow Agent hereunder,
including, but not limited, reimbursement for all fees in comlection with recording the Deed.
5. Compliance with Court Orders. Escrow Agent is acting as a stakeholder only with
respect to the Deed. 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 Deed until
receipt by Escrow Agent of an authorization in writing, signed by the City and the Developer,
directing the disposition of the Deed. In the absence of such written authorization, Escrow Agent
may hold the Deed until a f nal determination of the rights of the parties in an appropriate proceeding
or may bring an appropriate action or proceeding for Ieave to deposit the Deed in a court of
Page 2 of 5
competent jurisdiction pending such determination. Escrow Agent shall be reimbiu•sed for all costs
and expenses of such action or proceeding, including, without (imitation, reasonable attorneys' fees
and disbursements, by the party determined not to be entitled to the Deed.
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 Iong 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. City and Developer may, from time to
time, and at any time, upon mutual consent, designate a new Escrow Agent.
8. Notice. Any notice, demand or request which may be permitted, required or desired
to be given in connection there~~~ith 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 S` Avenue
Delray Beach, Florida 33444
Attn: City Manager
Facsimile: (561} 278-4755
With a copy to: 200 N.W. 15t Avenue
Delray Beach, Florida 33444
Attn: City Attorney
Facsimile: (561) 278-4755
As to Developer: Depot Industrial Center, LLC
250 N. W. Diagonal
Boca Raton, Florida 33432
With a copy to: Michael Listick, Esq.
190 S. E. ~`h Avenue
Delray Beach, FIorida 33483
Facsimile: (561) 278-6909
As to Escrow Agent: Steven D. Rubin, Esq.
980 North Federal Highway, Suite 434
Boca Raton, Florida 33432
Facsimile: (561) 347-0828
Page 3 of 5
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
Declaration 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
Declaration of Reserved Rights.
10. Conflict with Declaration 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 Declaration of Reserved Rights, the terms and
provisions of this Agreement shall control.
11. Governing Law; Severability. This Agreement shall be governed by the laws of the
State of Florida. If any term or provision of this Agreemen# 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 b~-y. 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 ov<m attorneys' fees and costs, except as otherwise stated herein.
I4. 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 ~~riting 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 sib ed the same
signature page.
Page 4 of 5
IN WITNESS WHI;JREOF, the City; Developer and Escrow Agent have caused this
Agreement to be executed and delivered in their names by their respective duly authorized off cers
or representatives as of the day and _year first above written.
CITY OF DELRAY BEACH, a Florida
A~Iunicipal Corporation
Nelson S. McDuff e, Mayor
DEPOT FVDUSTRIAL CENTER, LLC, a
Florida Limited Liability Company
BY:
THOMAS HEAD, Manager
Page S of 5
Exhibit "9"
Closing Escrow Agreement
CLOSING
ESCRO~'i' AGRI;ER'IF,NT
This Closing Escrow Agreement (the "Agreement"), dated as of the day
of 2011, between the City of Delray Beach, a Florida. municipal
corporation ("City"), Depot Industrial Center, LLC, a Florida Limited Liability Company
("Depot"j and Listick and Krall, P.A., whose address is 190 S.E. 5`" Avenue, Delray
Beach, Florida 33483 (hereinafter referred to as "Escrow Agent").
~'4'I`I'NESSETI-I
WHEREAS, City and Depot have entered into the certain Agreement to Exchange
Real Estate dated the day of , 2011 (the "Exchange Agreement"},
as to the exchange of property in the proposed Plat of Historic Depot Square, Delray
Beach, Florida; and
WHEREAS, City and Depot have agreed and are desirous and willing that the
closing of the transaction contemplated by the Exchange Agreement take place in
escrow, in accordance with the terms and provisions of this Escrow Agreement.
NOW, THEREFORE, in furtherance of the transaction contemplated b}~ the
Exchange Agreement, and other good and valuable consideration, the receipt and
Buff ciency of which are hereby acknowledged, the parties hereto hereby covenant and
agrees follows.
City and Depot hereby designate, constitute and appoint the Escrow Agent
to receive, hold and release the documents for closing described in
Paragraph 11 of the Exchange Agreement, pursuant to the procedures
described in this Escrow Agreement and the Escrow Agent acecpts such
designation and appointment and agrees to act in accordance with the
terms of this Escrow Agreement. It is hereby expressly understood and
agreed that in the event a conflict should arise as between the terms of this
Escrow Agreement and those of the Exchange Agreement, the terms of the
Escrow Agreement shall control. Depot agrees to pay to the Escrow
Agent a reasonable fee, to be collected at closing, for expenses incurred by
the Escrow Agent for its services hereunder (the "Escrow Agreement
Fee"). Seller and Buyer agree (a) that Escrow Agent shall be a
stakeholder only and not liable for any losses, cost or damages it may
incur in performing its responsibilities hereunder unless such losses, costs
or damages shall arise out of the willful default or gross negligence of
Escrow Agent or its agents; (b) that no release of documents or
disbursements shall be made hereunder except pursuant to this Escrow
Agreement or upon written instructions from both City and Depot or their
successors or assigns; and (c) that in the event of a dispute hereunder
between City and Depot (or their successors or assigns), Escrow Agent
shall have the right, exercisable in its sole discretio~i, to be discharged by
tendering back to each party the documents they delivered or by tendering
unto the registry or custody of any court of competent jurisdiction,
together with any such legal pleadings as it deems appropriate. Escrow
Agent shall be indemnified, saved and held harmless by the City and
Depot for all of its expenses, cost and reasonable attorneys' fees, at trials
and appeals, incurred in connection with said interpleader action, At
closing each party shall deposit with Escrow Agent their respective unpaid
costs described in the Exchange Agreement.
2 Documents for closing shall be delivered to the Escrow Agent and
released pursuant to the terms and conditions of this Escrow Agreement.
A. City shall deliver to Escrow Agent the following documents at
closing.
Quit-Claim Deed to City Parcel 1, City Parcel 2 and
Parcel 3.
2. Resolution abandoning City Parcel 2 and City Parcel 3.
3. Such other documents as may be reasonably necessary in
the opinion of City's counsel or Depot's counsel to
constunmate the transaction described in this Escrow
Agreement or the Exchange Agreement.
4. Executed Escrow Agreement.
B. Depot shall deliver to Escrow Agent the following documents at
closing
Special Warranty Deed conveying Depot Parcel to City.
2. Affidavits and other documents required by the title insurer
to delete. the standard exceptions from the title insurance
commiUnent and owners' marketability title insurance
policy for the Depot Parcel.
3. The executed and recordable final approved Plat of Historic
Depot Square.
4. Declaration of Reserved Rights.
5. The Temporary ingress/egress Easement.
6. Recordable Work Force Housing Covenant.
7. Recordable Historic Depot Square Declaration of
Covenants and Kestrictions and related documents.
8. Executed Escrow Agreement.
9. Such other documents as may reasonably be necessary in
the opinion of City's counsel or Depot's counsel to
consummate the transaction described in this Escrow
Agreement or the Exchange Agreement.
C. Upon receipt of all documents for closing, then Escrow Agent shall
release the documents from escrow by promptly recording the documents
on the same day, in the Public Records of Palm Beach County, Florida, in
the following order:
Resolution abandoning City Parcel 2 and City Parcel 3.
2. Quit Claim Deed to City Parcel 1, City Parcel 2 and City
Parcel 3.
3. Historic Depot Square Declaration of Covenants and
Restrictions and related documents.
4. Plat of Historic Depot Square.
5. Special Warranty Deed conveying Depot Parcel to City.
The legal description shall be the metes and bounds
description of the City Parcel and the legal description of
the Depot Parcel based on the recorded Plat. The Escrow
Agent is authorized to complete the plat Iegal description,
in the Special Warranty Deed, upon recording the plat.
6. Declaration of Reserved Rights.
7. The Temporary ingress/egress Easement.
8. Work Force Housing Covenant.
3. In the event all documents are not deposited with Escrow Agent within One Hundred
twenty (120) days after City shall adopt the resolution of abandonment and approving the
Plat, either party may elect to cancel the Exchange Agreement by delivering written
notice of cancellation to the other; in the event of cancellation the Escrow Agent shall
deliver the unrecorded plat to City and return the remaining documents to the party that
delivered them to Escrow Agent.
4. Escrow Agent shall not be liable for any loss or damage resulting from the following:
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(a) Any default, error, action or omission of any other party;
(b) The expiration of any time limit unless such time limit was known to
Escrow Agent to proceed in its ordinary course of business:
(c) Escrow Agent complying with any and all legal process, writs, orders,
judgments and decrees of any court whether issued with or without
jurisdiction and whether or not subsequently vacated, modified, set aside
or reversed.
5. 1/scrow Agent shall be entitled to rely upon the instructions and other matters
covered thereby, and shall not be required to investigate the authority of the
person executing and delivering such instructions; or otherwise verify the
accuracy of the statements of information presented therein.
6. The terms and provisions of this Escrow Agreement are for the benefit of City,
Depot and Escrow Agent and their respective successors and assigns only.
Nothing contained herein shall be deemed or construed to inure to the benefit of
any other person or party, it being the express intent of City, Depot and Escrow
Agent that no such person or party shall be entitled to any of the benefits hereof,
except as herein expressly provided.
7. Time is of the essence of this Agreement.
8. This Agreement is intended as a contract under the laws of the State of Florida
and shall be governed thereby and construed in accordance therewith.
9. This Agreement may be executed by facsimile signatures, which for all
purposes shall be deemed to constitute originals. 'T`his Agreement may be
executed in counterparts, all of which when taken together shall be deemed one
original.
10. Paragraph 28 of the Exchange Agreement is incorporated herein and made a
pari hereof.
IN WITNESS WHEP.EOF, the parties hereto have executed this Escrow Agreement as of
the day, month and year first written above.
City of Delray Beach, Florida
Municipal Corporation
By:
Nelson S. It4cDuffie, Mayor
Date:
(Buyer)
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Depot Industrial Center, LLC a Florida
Limited Liability Company
gy; (Seller)
THOMAS HEAD, Manager
Date:
Listick & ItiraIl, P.A.
By:
Michael Listick, Esq.
Date: