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07-01-97 Regular DELRAY BEACH COMMISSION CHAMBERS The City will furnish auxiliary aids and services to afford an individual with a disability an opportunity to participate in and enjoy the benefits of a service, program or activity conducted by the City. Contact Doug Randolph at 243-7127 (voice) or 243-7199 (TDD), 24 hours prior to the event in order for the City to accommodate your request. Adaptive listening devices are available for meetings in the Commission Chambers. RULES FOR PUBLIC PARTICIPATION 1. PUBLIC COMMENT: The public is encouraged to offer comments with the order of presentation being as follows: City Staff, public comments, Commission discussion and official action. City Commission meetings are business meetings and the right to limit discussion rests with the Commission. Generally, remarks by an individual will be limited to three minutes or less, (10 minutes for group presentations). The Mayor or presiding officer has discretion to adjust the amount of time allocated. A. Public Hearings: Any citizen is entitled to speak on items under this section. B. Comments and Inquiries on Non-Agenda Items from the Public: Any citizen is entitled to be heard concerning any matter within the scope of jurisdiction of the Commission under this section. The Commission may withhold comment or direct the City Manager to take action on requests or comments. C. Regular Agenda and First Reading Items: When extraordinary circumstances or reasons exist and at the discretion of the Commission, citizens may speak on any official agenda item under' these sections. 2. SIGN IN SHEET: Prior to the start of the Commission Meeting, individuals wishing to address public hearing or non-agendaed items should sign in on the sheet located on the right side of the dais. If you are not able to do so prior to the start of the meeting, you may still address the Commission on an appropriate item. The primary purpose of the sign-in sheet is to assist staff with record keeping. Therefore, when you come up to the podium to speak, please complete the sign-in sheet if you have not already done so. 3. ADDRESSING THE COMMISSION: At the appropriate time, please step up to the podium and state your name and address for the record. Ail comments must be addressed to the Commission as a body and not to individuals. Any person making impertinent or slanderous remarks or who becomes boisterous while addressing the Commission shall be barred by the presiding officer from speaking further, unless permission to continue or again address the Commission is granted by a majority vote of the Commission members present. Regular Commission Meeting July 1, 1997 APPELLATE PROCEDURES Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. AGENDA 1. Roll Call. 2. Invocation. 3. Pledge of Allegiance to the Flag. 4. Agenda Approval. 5. Approval of Minutes: Special Meeting of June 10, 1997 Regular Meeting of June 17, 1997 6. Proclamations: None 7. Presentations: A. RESOLUTION NO. 49-97: A Resolution recognizing and commending A. GEORGE & SONS for 86 years of service to the residents of Delray Beach. 8. Consent Agenda: City Manager recommends approval. A. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Planning and Zoning Board, Site Plan Review and Appearance Board and the Historic Preservation Board during the period June 16 through June 27, 1997. B. AWARD OF BIDS AND CONTRACTS: 1. Bid award in the amount of $48,980.00 to Eagle Metal Fabricators, Inc. for repairing and repainting the frames of the City's 100' Christmas tree, with funding from 334-6112-519-46.90. 2. Purchase award in the amount of $13,000.00 to H.T.E., Inc., sole source provider, for a Supplement to H.T.E. Software License and Services Agreement to incorporate the State Interface (NCIC/FCIC) at the Police Department, with funding from 001-2113-521-66.10. -2- Regular Commission Meeting July 1, 1997 3. Bid award to SIGA, Inc. for the 1-95 sound barrier wall landscaping, in the amount of $91,417.74: $45,160.52 from 334-4144-572-63.34; $30,000.00 from 334-4144-572-63.34 through budget transfer from 334-0000-334-36.00; and $16,257.22 from six months maintenance 334-4144-572-46.40 through budget transfers from 334-4144-572-63.31 and 334-4144-572-63.34. C. COUNTY-WIDE LAW ENFORCEMENT MUTUAL AID AGREEMENT: Approve a mutual aid agreement for combined operational assistance and voluntary cooperation among Palm Beach County Law Enforcement Agencies. 9. Regular Agenda: A. RESOLUTION NO. 51-97 AUTHORIZING ACQUISITION AND ACCEPTANCE OF ASSIGNMENT AGREEMENT/NANMYER PROPERTY: Consider approval of a resolution authorizing the acquisition of the Nanmyer property located at the northeast corner of N.E. 14th Street and N.E. 3rd Avenue, and approve the assignment agreement with the Community Redevelopment Agency to purchase the property for $30,000 plus the cost of the appraisal, with funding from 448-5411-538-61.10. B. RESOLUTION NO. 50-97: Consider approval of a resolution to the Palm Beach County Commission requesting the Florida Department of Natural Resources to establish an "idle speed, no wake" zone along the Intracoastal Waterway in the area north and south of the marina located 0.38 miles north of the Linton Boulevard Bridge. C. CONDITIONAL USE REQUEST/ALPHA MARBLE, INC.: Consider a request for conditional use approval to allow the establishment of a monument and ornamental stone cutting facility (Alpha Marble, Inc.) within the MIC (Mixed Industrial and Commercial) District. The subject property is located on the south side of Dr. Andre's Way, approximately 315 feet east of Congress Avenue, south of McEwen Lumber facility and adjacent to the CSX Railroad. QUASI-JUDICIAL PROCEEDING D. BID AWARD/STONE AGE PAVERS, INC.: Consider approval of a bid award in the amount of $38,535.00 to Stone Age Pavers, Inc. as the lowest responsive bidder (second low bidder) for removal and replacement of brick pavers at Old School Square, with funding from 334-6111-519-62.10. E. CONTRACT AMENDMENTS/AUBURN TRACE: Consider approval of amendments to the City's agreements under the Urban Development Assistance Grant (UDAG) with respect to Auburn Trace. F. APPOINTMENT TO THE DELRAY BEACH HOUSING AUTHORITY: Appoint a member to the Delray Beach Housing Authority to fill an unexpired term ending July 14, 1998. Recommendation by Commissioner Ellingsworth, with appointment by Mayor Alperin. -3- Regular Commission Meeting July 1, 1997 10. Public Hearings: A. ORDINANCE NO. 26-97: An ordinance designating the Trinity Evangelical Lutheran Church Chapel located at 400 North Swinton Avenue as a local historic site to be listed in the Local Register of Historic Places. B. ORDINANCE NO. 25-97: An ordinance changing the Future Land Use Map designation (small scale amendment) from Commerce to General Commercial, and rezoning from MIC (Mixed Industrial and Commercial) to GC (General Commercial) District for the Country and Western Bar of Delray Beach, to be located at the northwest corner of Atlantic Avenue and the CSX Railroad, immediately west of 1-95. QUASI-JUDICIAL HEARING C. ORDINANCE NO. 28-97: An ordinance amending Section 8.4.1, "Authority to Make Special ..... " of the Assessments; Excep~l~ , Land Development Regulations to provide for the construction of walls to provide a barrier from public rights-of-way as a project for which the City may levy and collect a special assessment. D. ORDINANCE NO. 27-97: An ordinance amending Chapter 73, "Parking Schedules", of the City Code to revise parking hours for certain lots in the downtown area. E. LOCAL LAW ENFORCEMENT BLOCK GRANT PROGRAM/PROPOSED USE OF FUNDS: Conduct a public hearing on the proposed use of funds anticipated from the Local Law Enforcement Block Grant Program, and authorize staff to submit the application. 11. Comments and Inquiries on Non-Agenda Items from the Public- Immediately following Public Hearings. A. City Manager's response to prior public comments and inquiries.. B. From the Public. 12. First Readings: None 13. Comments and Inquiries on Non-Agenda Items. A. City Manager B. City Attorney C. City Commission -4- CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION REGULAR. MEETING JULY 1, 1997 - 6:00 P.M. PUBLIC HEARINGS - 7:00 P.M. COMMISSION CHAMBERS AGENDA ADDENDUM THE REGULAR AGENDA IS AMENDED BY ADDING THE FOLLOWING: 9.G MUNICIPAL LEAGUE APPOINTMENT TO THE CITIZENS ADVISORY COMMITTEE ON AIRPORT NOISE: Consider nomination of a member to the Citizens Committee on Airport Noise for consideration by the Palm Beach County Municipal League. CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION REGULAR MEETING - JULY 1, 1997 - 6:00 P.M. PUBLIC HEARINGS - 7:00 P.M. COMMISSION CHAMBERS AGENDA ADDENDUM #2 THE REGULAR AGENDA IS AMENDED BY ADDING THE FOLLOWING: 9.H REQUEST FOR ADDITIONAL FUNDING/JULY 4TH FIREWORKS: Consider a request from the Delray Beach Joint Venture for an additional $2,000 for the July 4th fireworks display, due to increased barge costs. ~ESOLL1TION ~0 iq 9 ~97 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING AND COMMENDING A. GEORGE AND SONS FOR EIGHTY-SIX YEARS OF CONTINUED SERVICE TO THE RESIDENTS OF THE CITY OF DELRAY BEACH, FLORIDA. WHEREAS, in the early 1900's, Lebanese immigrant and family patriarch Abraham George began his family's business by sellin~ lace, linen and silk shirts door to door from a pack on his back. He would walk from West Palm Beach to Pompano Beach and then hop a train for the ride home; and WHEREAS, in 1911, Abraham George started doin~ business in Delray Beach and built his first store at the southeast corner of East Atlantic and Fourth Avenues about 1919. The George family lived above the shop and many of the family's eight children were born there; and WHEREAS, in 1959, the business chan~ed from a ~eneral store to one specializin~ in men's wear. The old buildin9 was razed and a new store was built on the same site; and WHEREAS, this pioneer business family has continued to operate at the same location for eighty-six years; and WHEREAS, in the summer of 1997, A. George & Sons men's clothin~ store will close its doors. However, members of this pioneer business family continue to devote themselves to buildin~ a better community. NOW, THEREFORE, BE IT RESOLVED 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 hereby recognizes and commends the George Family for 86 years of continued and dedicated quality service to the residents of the Delray Beach community. Section 2: That the City Commission further expresses appreciation for a job well done and wishes the George Family the best of health and happiness in all of their future endeavors. PASSED AND ADOPTED in regular session on this 1st day ATTEST: MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS SUBJECT: AGENDA ITEM # ~.A' - MEETING OF JULY 1, 1997 REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS DATE: JUNE 27, 1997 Attached is the Report of Appealable Land Use Items for the period June 16 through June 27, 1997. It informs the Commission of the various land use actions taken by the designated boards which may be appealed by the City Commission. Recommend review of appealable actions for the period stated; receive and file the report as appropriate. TO: DAVID T. HARDEN, CITY MANAGER FROM: /JASMIN ALLEN, PLANNER SUBJECT: MEETING OF JULY 1, 1997 * CONSENT AGENDA* REPORT OF APPEALABLE LAND USE ITEMS JUNE 16, 1997 THRU JUNE 27, 1997 The action requested of the City Commission is that of review of appealable actions which were made by various Boards during the period of June 16, 1997 through June 27, 1997. This is the method of informing the City Commission of land use actions, taken by designated Boards, which may be appealed by the City Commission. After this meeting, the appeal period shall expire (unless the 10 day minimum has not occurred). Section 2.4.7(E) of the LDRs applies. In summary, it provides that the City Commission hears appeals of actions taken by an approving Board. It also provides that the City Commission may file an appeal. To do so: 1. The item must be raised by a City Commission member. 2. By motion, an action must be taken to place the item on the next meeting of the Commission as an appealed item. City Commission Documentation Appealable Items Meeting of July 1, 1997 Page 2 There were no appealable items considered by the Board. The following items which were considered by the Board will be forwarded to the City Commission for final action. Approved on a 5 to 0 vote (Archer and Eliopoulos absent), the preliminary plat and certified the final plat for Hammock Reserve, a 273 unit single family development, located on the east side of Military Trail, south of Linton Boulevard. Recommended approval (5 to 0), of a conditional use request to allow the establishment of a monument and ornamental stone cutting facility, for Alpha Marble, located on the south side of Dr. Andre's Way, east of Congress Avenue (south of McEwen Lumber Facility). Recommended approval (5 to 0), of an amendment to the Land Development Regulations Section 8.4.1(A)"Authority to Make Special Assessments" which was then approved on First Reading at the City Commission meeting of June 17, 1997. A. Approved (5 to 0, Pakradooni absent, Shutt arrived late ) a request for a color change for Country Storm Shutter, Inc. located on the east side of North Federal Highway, south of N.E. 14th Street. B. Approved (6 to 0), a request to change the color of an awning for Linton Center Office Building, located at the southeast corner of Linton Boulevard and Federal Highway. C. Tabled (6 to 0), a request to install a carport canopy for Five Star Productions, located within the building at the southeastern corner of the Congress Park South site. D. Approved (6 to 0), a change in the perimeter fencing material and the architectural elevation plan for the clubhouse at Water's Edge, a proposed multi-family development, located on the west side of Congress Avenue. City Commission Documentation Appealable Items Meeting of July 1, 1997 Page 3 E. Approved (6 to 0), the architectural elevation plan and landscape plan associated with the conversion of the first floor of Craig's Furniture to a bakery, The Old School Bread Company, located at the northeast corner of N.E. 1st Avenue and East Atlantic Avenue. Minor site changes are being processed as a non- impacting modification and will be approved administratively. F. Approved with conditions (3 to 2, Sheremeta stepped down), a request to modify the approved landscape plan at The Plaza at Delray (Delray Mall), located at the northwest corner of Linton Boulevard and Federal Highway. G. Approved (6 to 0), the architectural elevation plan associated with the proposed expansion of the Camino Real Hotel, located at the northwest corner of North Ocean Boulevard and Atlantic Avenue. The Board tabled the landscape plan in order to resolve the buffer treatment along the north property line adjacent to the Manor House. H. Approved with conditions (6 to 0), the site plan, landscape plan and architectural elevation plan for Delray Medical Center, a 3,395 sq. ft. walk-in medical center, located at the northwest corner of S.E. 5th Avenue (southbound Federal Highway) and $.E. 10th Street. I. Approved with conditions (5 to 0, Sheremeta stepped down), the site plan, landscape plan and architectural elevation plan for Our Lady Bakery, a proposed 2,854 sq. ft. bakery to be located at the southwest corner of S.E. 1st Street and S.E. 2nd Avenue. Concurrently, the Board approved a reduction in the required landscape strip from 5' to 4'6" along a portion of the southern property line and a reduction in the right-of-way width from 60' to 50' for S.E. 1st Street and S.E. 2nd Avenue. 1. Approved (4 to 0, Turner, Hulburt and Damiano absent), a request for a Certificate of Appropriateness associated with the installation of a fabric covered carport and replacing the asphalt driveway and concrete walkways with brick for a single family residence at 1018 Nassau Street. City Commission Documentation Appealable Items Meeting of July 1, 1997 Page 4 2. Continued (4 to 0), a request for a Certificate of Appropriateness to install an aluminum garden shed in the rear yard of a single family residence located at ll4 N.E. 1st Avenue. The Board recommended utilizing a painted wood shed. 3. Approved (3 to 1, Farrington dissenting), a request for a Certificate of Appropriateness associated with replacing a cement tile roof with fiberglass shingles at Mariposa, an adult congregate living facility located at the northwest corner of S.E. 1st Street and S.E. 1st Avenue. By motion, receive and file this report. Attachment: Location Map LOCATION MAP FOR CULF S,~EA,, BL,~. CITY COMMISSION MEETING OF JULY 1, 1997 L-30 CANAL L ...... N.W. 2ND S.W. 2N~ r'~'- .-.£"I [ © LOWSON BOULEVARD LIN TON BOULEVARD BOULEVARD I I .~ L ..... J ? L-58 CANAL C-15 CANAL c,w uM,TS ........... S.P.R.A.B.: H.P.B.: A. - COUNTRY STORM SHUTTER, INC. 1. - 1018 NASSAU STREET B. - LINTON CENTER 2. - 114 N.E. 1ST AVENUE MILE I C. - FIVE STAR PRODUCTION ,3. - MARIPOSA D. - WATER'S EDGE SCALE E. - OLD SCHOOL BREAD COMPANY F. - THE PLAZA AT DELRAY N G. - CAMINO REAL HOTEL H. - DELRAY MEDICAL CENTER ~ I. - OUR LADY BAKERY CITY OF DEEP, AY BEACH. FL PLANNING DEPARTMENT MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER~I AWARD OF BIDS AND CONTRACTS DATE: JUNE 27, 1997 This is before the Commission to approve the award of the following bids and contracts: 1. Bid award in the amount of $48,980.00 to Eagle Metal Fabri- cators, Inc. for repairing and repainting the frames of the City's 100' ;Christmas tree, with funding from 334-6112-519- 46.90. 2. Purchase award in the amount of $13,000.00 to H.T.E., Inc., sole source provider, for a Supplement to H.T.E. Software License and Services Agreement to incorporate the State Interface (NCIC/FCIC) at the Police Department, with funding from 001-2113-521-66.10. ~5 3. Bid award to SIGA, Inc. for the 1-95 sound barrier wall landscaping, in the amount of $91,417.74: $45,160.52 from 334-4144-572-63.34; $30,000.00 from 334-4144-572-63.34 through budget transfer from 334-0000-334-36.00; and $16,257.22 from six months maintenance 334-4144-572-46.40 through budget transfers from 334-4144-572-63.31 and 334-4144-572-63.34. Agenda Item No. AGENDA REQUEST Date: June 23. 1997 Request to be placed on: X Regular Agenda ~ Special Agenda ~ Workshop Agenda When: July 1, 1997 Description of item (who, what, where, how much): Staff reauest City_ Commission approve a contract with Eagle Metal Fabricators. Inc., in the amount of $48,980.00 for repainting the frames of the existing 100' Christmas Tree. Funding is available from Account Number 334-6112-519-46.90. ORDINANCE/RESOLUTION REQUIRED: Not required. Recommendation: Staff recommends City. Commission approve a contract with Eagle Metal Fabricators. Inc.. in the amount of $:,48.980.00 for re.painting the frames of the existing 100' Christmas Tree. ,,,~ Department head signature: Determination of Consistency with Comprehensive Plan: City Attorney Review/Recommendation if applicable):. Budget Director Review (rej;j.~red on a~l items involving expenditure ~f funds): Funding available: ~E~NO Funding alternatives~lrapplicable): Account No. & Description Account Balance City Manager Review: Approved for agenda: ~ES/NO Hold Until: Agenda Coordinator Review: Received: Placed on Agenda: Action: Approved/Disapproved s:\...\9742~agreq701 ENVIRONMENTAL SERVICES DEPARTMENT MEMORANDUM To: David T. Harden City Manager From: Josh Aguila, A.I.A. Construction Manager Date: June 23, 1997 Subject: AGENDA REQUEST 7/01/97 Christmas Tree Repainting and Repair Project Project No. 97-042 On June 19, 1997, the City received two (2) bids for the repainting of the existing steel frame of the 100 foot Christmas Tree. Over the years the framework has deteriorated to a point where it is now necessary that some structural repairs be made as well as a total repainting of all members, to insure beneficial use for years to come. The bids are listed in the following table. I Eagle Metal Fabricators, Inc. $ 48,980.00 2 Sunshine Painting, Inc. $101,201.00 Eagle Metal Fabricators, Inc., is a Fort Lauderdale Company who has donated many hours of work in previous years toward the erection of the tree at Old School Square and therefore has the added advantage of being familiar with the needs of the City both in scope and schedule. Staff recommends that the Iow bid from Eagle Metal Fabricators, Inc. be accepted and the City enter into a Contract for the specified work. Funding is available from the Building Maintenance Account No. 334-6112-519-46.90. cc: Agenda file 7/1/97 Dick Hasko File 97-042 (A) s\...\9742\agmem701 Agenda Item No.: ~Yi~a9° AGENDA REQUEST Request to be placed on: Date: June 23, 1997 _XX_Consent Agenda __Special Agenda __Workshop Agenda When: July 1, 1997 Description of agenda item (who, what, where, how much): Approve- Sole Source Purchase of Supplement to HTE Software License and Service Agreement Program to HTE, Inc., at a total cost of $13,000.00. ORDINANCE/RESOLUTION REQUIRED: YES/NO Draft Attached: YES/NO Recommendation: Purchase Software License and Service Agreement from HTE, Inc., at a total cost of $13,000.00. FundingS-2113-52.1-66.10. ~ Department Head Signature: Determination of Consistency with C m~ensive Plan: City Attorney Review/ Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): F~ding altemmives: (~ applicable) Acco~tNo. & De~cription:~[~ 2~ 3~21. Accost Bal~ce: ~ ~%, 0~) Ci~ M~ager Review: HoldApproved for agenda: Until: ~0 ~/ Agenda Coordinator Review: Received: Action: Approve~isapproved MEMORANDUM TO: David Harden, City Manager FROM: K. Butler, Buyer ]~ THROUGH: Joseph Safford, Finance Director DATE: June 23,1997 SUBJECT: DOCUMENTATION- CITY COMMISSION MEETING - JUL ¥ 1, 1997 - SOLE SOURCE PURCHASE SUPPLEMENT TO HTE SOFTWARE LICENSE AND SERVICE AGREEMENT ~ POLICE DEPARTMENT Item Be_fore Commission: The City Commission is requested to approve the sole source purchase of the State Interface IrNCIC/FCIC) Supplemental Software License Program to HTE Inc., at a total cost of $13, 000. 00. Backgrounck This system will enhance the capabilities of the existing system as well as save valuable time for the Communications Center and improve officer safety. (Please see attached memo) The Police Department recommends the purchase of this (NCIC/FCIC) Licensed Program with funding budgeted from account #001-2113-521-66.10. Recommendation: The Purchasing Staff concurs with the recommendation to purchase this Software License and Service Agreement from HTE, Inc., at a total cost of $13, 000. O0 Attachments Memo from Police Dept. Dateddune 19, 1997 Invoice from HTE, Inc. Dated 4/15/97 cc: Jacklyn Rooney, Purchasing Supervisor Tina L. Lunsford, Support Services Division David Junghans, Administrative Officer agenda, doc Delray Beach Police Departmem Memorandum TO: David Junghans Administrative Officer FROM: Assistant Director Tina L. Lunsford~'~ Support Services Division DATE: June 19, 1997 SUBJECT: FCIC/NCIC State Interface for the AS400 This software application will enable us to directly interface FCIC/NCIC into the H.T.E. Computer Aided Dispatch Module, thus allowing the dispatcher to immediately run a tag or name through FCIC/NCIC without having the officer switch to channel four, which will improve officer safety as well as save valuable time for the Communications Center. The following requisition has been created: //54025 - H.T.E. - $13,000.00, Software Interface FCIC/NCIC This project was approved in the 96/97 budget for $13,000.00, out of account #001211352166.10. Please forward this request to Purchasing for Commission approval. Your prompt action will be appreciated. Attachments _t9eadquarters: 0 N. Orange Ave., Suite 2000, Orlando, FL 32801-1693 * (407) 841-3235 Application Solutions for Government INVOICE CITY OF DELRAY BEACH DELRAY BEACH POLICE DEPARTMENT 300 W. ATLANTIC AVENUE DATE: 4/15/97 DELRAY BEACH, FL 33444 INVOICE # CE PROJECT: DLR ATTN: TINA LUNSFORD, DIRECTOR POLICE INFORMATION SERVICES Due upon contract execution: License Fees NCIC/FCIC Interface $ 13,000.00 TOTAL AMOUNT DUE THIS INVOICE $ 13,000.00 PLEASE REMIT TO: H.T.E., INC P.O. BOX 628258 ORLANDO FL 32862-8258 Non-Hiring Statement During the term of this Agreement and for a period of twenty-four (24) months after the termination of this Agreement, the Customer may not offer to hire or in any way employ or compensate any of the employees of HTE or persons who have been employed by HTE within the immediate past twenty-four (24) months without prior consent of HTE. Prices quoted above will be honored through May 31, 1997. CITY OF DELRAY BEACH H.T.E., INC. BY BY Sus Vice President/Controller/ Chief Accounting Officer 4/15/97 Title Date Title Date DIb-a 2 SUPPLEMENT TO H.T.E., INC. SOFTWARE LICENSE AND SERVICES AGREEMENT BY AND BETWEEN H.T.E., INC. AND DEL RAY BEACH POLICE DEPARTMENT SCHEDULE A - PRICING AND PAYMENT SCHEDULE CONTRACT NO. PSC-DLRB-9704010 This Supplement is to the Original AGREEMENT FOR H.T.E., INC. LICENSED PROGRAMS dated October 17, 1985, between H.T.E., INC. (HTE) and City of Delray Beach (Customer). Unless otherwise stated below, all terms and conditio as stated in the Agreement shall remain in effect. State Interface (NCIC/FCIC) $ 13,000.00 I $ 1,000.00 $ 2,700.00 TOTALS $ 13,000.00 I $ 1,000.00 $ 2,700.00 LICENSE FEES: $ 13,000.00 $ 13,000.00 TRAINING FEES: I day ~ $1000/day 1,000.00 $ 1,000.00 SUPPORT FEES: 2,700.00 $ 2,700.00 TOTAL $ 16,700.00 $ 13,000.00 $ 1,000.00 $ 2,700.00 Support Services The initial term of support services shall commence one hundred twenty (120) days after delivery of the Licensed Program and extend for a twelve (12) month term. Support fees for the initial term of support are due upon the commencement of s Subsequent terms of support will be for twelve (12) month periods, commencing at the end of the initial support period, an support fees will be due at that time at the then prevailing rate. Rates for subsequent support fees will be due at that time a then prevailing rate. Rates for subsequent years of support service are subject to change. Program Package Discount The above quoted prices on License Fees reflect a substantial Program Package Discount. PPD's apply only to unmodified applications purchased on a single contract. Travel and Living Expense Actual and reasonable travel and living expenses are in addition to the prices quoted for the HTE Licensed Programs and services and will be invoiced as incurred. Conversion Conversion, if necessary, will be invoiced as incurred at the prevailing rate per hour. It is understood that no two systems and file structures are exactly alike and there may be a need for some manual conversion efforts to take place along with the electronic conversion. Data must be given to THE in an IBM compatible format on a specified magnetic media. Data must match data field definition. Input data file clean up must be the responsibility of the Customer. Modifications Modifications will be controlled by the HTE "System Change Request" form which will be prepared for the Customer by the HTE Project Manager responsible for that module. HTE will proceed on the SCR when the signed SCR is returned with the City's authorization along with 50% payment. The final 50% payment is due up~} completion. 50% due at contract signing, 50% due at delivery and installation.~/~ DIb-a I Date: 6/26/97 Agenda Item No. AGENDA REQUEST Agenda request to be placed on: X Regular __ Special __. Workshop __ Consent When: July 1, 1997 Description of Agendaltem: Considerat±on of the Award of Bid for 1-95 Sound Barrier Wall Landscap±ng, Bid No. 97-29, to SIGA Incorporated in the amount of $91, /417.7/4 Ordinance/Resolution Required: Yes / No Draft Attached: Yes / No Recommendation: A p p r oval //'fi Department Head Signature: ~ City Attomev Review/Reconirfiendation (if applicable) , Budget Director Review (required on all items involving expenditure of funds): Funding Available: Yes / No Funding Altematives: (if applicable) Account # & Description: 33/4-41/44-572-63.3/4 $/45,160.52 Account Balance: Grant from Beaut±ful Palm Beaches - $30,000 33/4-/41/4/4-572-/46./40 $16,257.22 City. Manager Review: Approved for agenda: Yes / No Hold Until: Agenda Coordinator Review: Received: Action: Approved / Disapproved 1/17/96 TO: DAVID T. HARDEN, CITY MANAGER THROUGH: LULA BUTLER, DIRECTOR, COMMUNITY IMPROVEMENT FROM: NANCY DAVlLA, HORTICULTURIST ~ RE: RECOMMENDATION FOR AWARD OF BID 1/95 SOUND BARRIER WALL LANDSCAPE PROJECT BID NO. 97-29 DATE: JUNE 25, 1997 ITEM BEFORE THE COMMISSION The item before the Commission is the consideration of the award of bid for 1-95 Sound Barrier Wall Landscaping, Bid No. 97-29, to SIGA, Incorporated, in the amount of $91,417.74. BACKGROUND An advertisement for bid was issued May 25, 1997. The pre-bid meeting was held on June 5, 1997 and the sealed bids were due on June 16, 1997. The bid price included the initial landscape installation and the extended 6 month maintenance contract. The Consultant's estimate for the project, excluding the extended watering/maintenance period was $80,000.00. The City has been awarded a grant through Beautiful Palm Beaches, Inc., in the amount of $30,000.00 to off-set project costs. Seven bids were received as listed below: Siga, Incorporated $114,000.25 Phoenix Hayes, Inc. $118,324.60 Bermuda Landscape $121,809.47 adjusted for math error Arazoza Brother's Inc. $128,070.00 Southeast Cattle Company $130,659.95 Regal Contractors $165,646.18 Censtate Holding Corporation $211,780.99 During the evaluation of bids it was determined that there were errors in the quantities of Mulch and Recycled Organic Materials that inflated the prices received. The Consultant and City Staff reviewed the quantities and found the Mulch needed would be 475 Cubic Yards instead of 975 Cubic Yards and the quantities of Recycled Organic Materials should be 516 Cubic Yards, and not the 1451 Cubic Yards indicated in the bid. Since the City has the right, per the contract documents, to decrease quantities at the unit prices provided by the bidder through change orders, I felt it would be a much cleaner bid to inform the Contractor about the proposed deletions, and let them evaluate their bottom line and then enter into the bid with the correct quantities. Siga Incorporated reviewed the new quantities and have indicated they will enter into the contract with the quantity adjustment. Siga Incorporated has done work for the City previously on the installation of the landscaping in the medians on Congress Avenue between Lake Ida Road and the Boynton Beach city limits. They have also done work for the Florida Department of Transportation, South Florida Water Management District and the City of Ft. Lauderdale. All references have been positive. RECOMMENDATION Both City Staff and our Consultants, Land Design South have reviewed the bids and are recommending the Commission give favorable consideration to the award of the bid for 1-95 Sound Barrier Wall Landscaping to SIGA, Incorporated, in the amount of $91, 4t7.74, which includes the project installation and the extended 6 month watering/maintenance period. Funding is to come from: Account # 334-4144-572-63.34 Project installation $ 45,160.52 ~ L°/~ Grant from beautiful Palm Beaches, Inc. Project Installation 30,000.00 :~l-~lqq Account # 334-4144-572-46.40 Six months maintenance 16,257.22 ~ lo~t°l.q TOTAL $ 91,417.74 ~~"~ Landscape Architecture DESIGN Environmental Consultation SOUTH ,,,,,..0,. FAx 561478-5012. Congres~ Business center. 1280 N. Congress Avenue · Suite 215 · We~t Palm Be<::lOh, Flolicla 3M09 June 25,1997 Ms. Nancy Davila Horticulturist/Special Projects Coordinator City of Delray Beach 100 N.W. 1st Avenue Delray Beach, Florida 33444 Re: 1-95 Sound Barrier Wall Landscaping Dear Nancy, After reviewing the seven bids submitted for the above referenced project, Land Design South recommends awarding the contract to SIGA, Inc. for performing the landscape installation along 1-95. Enclosed with this recommendation is a spreadsheet with all bids received for comparison. Should you have any questions or comments, please do not hesitate to call. Sincerely, L~ESIGN SOUTH Brad Swanzy Director BS/Ib Enclosures letters\davila 625 File #300.2 City of Delray Beach Budget Transfer Form (1) DepartmentalLineTransfer (2)Date -Ju~e 96, 1997 (3) Interfundflnterdepartmental Transfer (4) Batch Number (5) Requested By: PROJECT # (6) ACCOUNT NUMBER (7) DESCRIPTION ~R'4~NSFER OUT (9) TRANSFER 1N 940181 334-4144-572-63.31 East Lke Ida Beautif 10,811 96043 334-4144-572-63.34 1-95 Barrior Wall 5,446 Beautification 96043 334-4144-572-46.40 One Year Maintenance 16,257 (10)TOTAL 16,257 16,257 JUSTIFICATION: To set up funding for the 1-95 Barrier Wall one year beautific tic maintenance contract with Siga Inc. The total maintenance contract to Siga Inc. is $16~257.00. $10,811.00 will be transferred from the East Lake Ida beautification project which will close out this proiect. The halant'~ nf .~5 LAg hO w'~11 h~ trmn.qfm'c,rmd from the 1-95 Barrier Wall beautificatlo~ project which will be capitalized upon completion. The one year maintenace for the the 1-95 Barrier Wall project will not be ~apitalized ep~rtment Head' Asst City Manager Finance Director CiD' Manager. (11) Budget Revision Date (12) Control Number (13) Period (14) Count ORIGINAL-BUDGET CANARY-FILE PINK-DEPARTMENT City of Delray Beach Budget Transfer Form (I) DepartmentalLine Transfer (2) Date June 25, 1997 (3) Interfund/Interdepartmental Transfer (4) Batch Number k:?) ll,~qUt~all~UD.)';. .Iflg:lal')lq N,~l-l't3'Ctl illr'tat',r~t- c11- I~lTq~fl~"ta r' PROJECT # (6) ACCOUNT NUMBER (7) DESCRIPTION' ~"RANsFER OUT (9) TRANSFER IN 334-0000-334-36.00State of Florida- 30,000 Oept of Transportation Highway Beautification Grant 96043 334-4144-572-63.341-95 Barrier Wall 30,000 Beautification (10)TOTAL 30,000 30,000 JUSTIFICATION: To budget the State of Florida Department of..Tra, nsportation Highway Beautification Grant amproved in an agreement between the City of Delray Beach and the State on May 9, 1997. This beautification grant will help., fund the beautification cont.ract which will be awarded on the next Commission Agenda Meeting for the 1-95 Sound Barrier Wall beautificat ~on project, Department l~ead Asst City Manager Finance Director CiD' Manager (11) Budget Revision Date (12) Control Number (13) Period (14) Count ORIGINAL-BUDGET CANARY-FI LE PINK-DEPARTMENT CITY DF I]ELAIIV BEIIgH CITY ATTORNEY'S OFFICE TELEPHONE 407/243-7823 · FACSIMILE 407/243-7816 ~ POLICE LEGAL ADVISOR Ali. America City 1993 TO: David Harden, City Manager FROM: Eric D. Hightower, Police Legal Advisor DATE: June 24, 1997 SUBJECT: County-Wide Law Enforcement Mutual Aid Agreement Attached for your review and placement on the consent agenda are two copies of the above-referenced agreement regarding mutual aid with all other law enforcement agencies in Palm Beach County. This agreement is the same as the prior county-wide mutual aid agreement and contains all the same protections as the prior agreement pursuant to Section V of the agreement. When the agreement has been fully executed, please direct the City Clerk to forward the two originals to me so that I may forward them to Chief Kelly of the School Board Police for execution by the other agencies. Feel free to contact me if I can be of further assistance in this matter. EDH:Ibg ha rden8.doc/memor,/citymang Pr, nted on Recycled Paper <~' C PALM BEACH COUNTY LAW ENFORCEMENT AGENCIES COMBINED OPERATIONAL ASSISTANCE AND VOLUNTARY COOPERATION MUTUAL AID AGREEMENT WITNESSETH WHEREAS, the subscribing Law Enforcement Agencies as listed in Attachment I, which is incorporated by reference, are so located in relation to each other that it is to the advantage of each to receive and extend mutual aid in the form of law enforcement services and resources to adequately respond to: (1) Intensive situations, including, but not limited to, emergencies as defined under Section 252.34, Florida Statutes, and (2) Continuing, multi-jurisdictional law enforcement problems, so as to protect the public peace and safety, and preserve the lives and property of the people; and, WHEREAS, the subscribing Law Enforcement Agencies have the authority under Section 23.1225, Florida Statutes, et. seq., The Florida Mutual Aid Act, to enter into a combined ~nutua! aid agreement for law enforcement service which: (1) Permits voluntary cooperation and assistance of a routine law enforcement nature across jurisdictional lines, and; (2) Provides for rendering of assistance in a law enforcement emergency as defined in Section 252.34. NOW, THEREFORE, THE AGENCIES AGREE AS FOLLOWS: SECTION I: PROVISIONS FOR OPERATIONAL ASSISTANCE The subscribed Law Enforcement Agencies hereby approve and enter into this Agreement whereby each of the agencies so represented may request and render law enforcement assistance to the other to include, but not necessarily be limited to, dealing with civil disturbances, large protest demonstrations, aircraft disasters, fires, natural or man-made disasters, sporting events, concerts, public school graduations, parades, escapes from detention facilities, and incidents requiring utilization of specialized units. SECTION I1: PROVISIONS FOR VOLUNTARY COOPERATION Each of the subscribed Law Enforcement Agencies hereby approve and enter into this Agreement whereby each of the agencies may request and render law enforcement assistance to the other in dealing with any violations of Florida Statutes to include, but not necessarily be limited to, investigating homicides, sex offenses, robberies, assaults, burglaries, larcenies, gambling, motor vehicle thefts, controlled substance violations, pursuant to Chapter 893, Florida Statutes, DUI violations, backup services during patrol activities, School Police Officers enforcing laws within 1000 feet of a school or School Board property, and inter-agency task forces and/or joint investigations. SECTION II1: PROCEDURE FOR REQUESTING ASSISTANCE In the event that an agency that is a party to this Agreement is in need of assistance as set forth above, such agency shall notify the agency or agencies from whom such assistance is required. The Agency Head or his/her authorized designee whose assistance is sought shall evaluate the situation and his/her available resources and will respond in a manner he/she deems appropriate. The Agency Head in whose jurisdiction assistance is being rendered may determine who is authorized to lend assistance in his/her jurisdiction, for how long such assistance is authorized and for what purpose such authority is granted. This authority may be granted either verbally or in writing as the particular situation dictates. No Agency Head or his/her designated representatives shall be empowered under this Agreement to operate in another jurisdiction without prior approval of the Agency Head having jurisdiction. The Agency Head's decision in these matters shall be final. SECTION IV: COMMAND AND SUPERVISORY RESPONSIBILITY The personnel and equipment that are assigned by the assisting agency head shall be under the immediate command of a supervising officer designated by the assisting agency head. Such supervising officer shall be under the direct supervision and command of the agency head or his/her designee of the agency requesting assistance. CONFLICTS: Whenever a Law Enforcement Officer is rendering assistance pursuant to this Agreement, the Law Enforcement Officer shall abide by and be subject to the rules and regulations, personnel policies, general orders and standard operating procedures of his/her own employer. If any such rule, regulation, personnel policy, general order or standard operating procedure is contradicted, contravened or otherwise, in conflict with a direct order of a superior officer of the requesting agency, then such rule, regulation, policy, general order or procedure shall control and shall supersede the direct order. 2 HANDLING COMPLAINTS: Whenever there is cause to believe that a complaint has arisen as a result of a cooperative effort as it may pertain to this Agreement, the Agency Head or his/her designee of the requesting agency shall be responsible for the documentation of said complaint to ascertain at a minimum: 1. The identity of the complainant. 2. An address where the complaining agency can be contacted. 3. The specific allegation. 4. The identity of the employees accused without regard to agency affiliation. If it is determined that the accused is an employee of the assisting agency, the above information with all pertinent documentation gathered during the receipt and processing of the complaint shall be forwarded without delay to the Agency Head or his/her designee of the assisting agency for administrative review. The requesting agency may conduct a review of the complaint to determine if any factual basis for the complaint exists and/or whether any of the employees of the requesting agency violated any of their agency's policies or procedures. SECTION V: LIABILITY Each agency engaging in any mutual cooperation and assistance, pursuant to this Agreement, agrees to assume responsibility for the acts, omissions, or conduct of such agency's employees while engaged in rendering such aid pursuant to this Agreement, subject to the provisions of Section 768.28, Florida Statutes, where applicable. SECTION VI: POWERS, PRIVILEGES, IMMUNITIES AND COSTS A. Employees of each participating Law Enforcement Agency, when actually engaging in mutual cooperation and assistance outside of their jurisdictional limits, but inside the State of Florida, under the terms of this Agreement, shall, pursuant to the provisions of Section 23.127(1), Florida Statutes, have the same powers, duties, rights, privileges and immunities as if the employee was performing duties inside the employee's political subdivision in which normally employed. B. Each agency agrees to furnish necessary personnel, equipment, resources and facilities and to render services to each other agency to the Agreement as set forth above; provided however, that no agency shall be required to deplete unreasonably it's own personnel, equipment, resources, facilities, and services in furnishing such mutual aid. 3 C. A political subdivision that furnishes equipment pursuant to this part must bear the cost of loss or damage to that equipment and must pay any expense incurred in the operation and maintenance of that equipment. D. The agency furnishing aid pursuant to this section shall compensate it's employees during the time such aid is rendered and shall defray the actual travel and maintenance expenses of it's employees while they are rendering such aid, including any amounts paid or due for compensation due to personal injury or death while such employees are engaged in rendering such assistance. E. The privileges and immunities from liability, exemption from laws, ordinances and rules, and all pension, insurance, relief, disability, workers' compensation, salary, death and other benefits that apply to the activity of an employee of an agency when performing the employee's duties within the territorial limits of the employee's agency apply to the employee to the same degree, manner, and extent while engaged in the performance of the employee's duties extraterritorially under the provisions of this Mutual Aid Agreement. The provisions of this section shall apply with equal effect to paid, volunteer, auxiliary, and reserve employees. F. Nothing herein shall prevent the requesting agency from requesting supplemental appropriations from the governing authority having budgeting jurisdiction to reimburse the assisting agency for any actual costs or expenses incurred by the assisting agency performing hereunder. G. Nothing in this Agreement is intended or is to be construed as any transfer or contracting away of the powers or functions of one party hereto to the other. SECTION VII: EFFECTIVE DATE This Agreement shall take effect upon execution and approval by the hereinafter named officials and shall continue in full force and effect until December 31, 2000. Under no circumstances may this Agreement be renewed, amended, or extended except in writing. SECTION VIII: CANCELLATION Any agency may cancel their participation in this Agreement upon delivery of written notice to the other agencies. Cancellation will be at the direction of any subscribing agency. IN WITNESS WHEREOF, the agencies hereto cause these presents to be signed on the date specified. 4 ATTEST: CITY OF ATLANTIS: William P. Howell, Mayor (date) Robert G. Mangold, Chief of Police (date) (date) (date) CITY OF BELLE GLADE: J. Stephen Weeks, Mayor (date) Michael R. Miller, Chief of Police (date) (date) (date) CITY OF BOCA RATON: Carol G. Hanson, Mayor (date) Peter Petracco, Chief of Police (date) (date) (date) CITY OF BOYNTON BEACH: Gerald "Jerry" Taylor, Mayor (date) Marshall B. Gage, Chief of Police (date) (date) (date) CITY OF DELRAY BEACH: ,~ _,~~. Jay AIperin, Mayor (date) Richard G. Overma e) City Clerk (date) Cit (date) 5 CITY OF GREENACRES: Samuel Ferrari, Mayor (date) John T. Treanor, Director of Public Safety (date) (date) (date) TOWN OF GULFSTREAM: William Koch, Jr., Mayor (date) Robert Schultz, Chief of Police (date) Scott Harrington, Town Manager (date) (date) TOWN OF HIGHLAND BEACH: Arlin Voress, Mayor (date) Anthony M. Cervasio, Chief of Police (date) Mary Ann Mariano, Town Manager (date) (date) TOWN OF JUNO BEACH: Frank W. Harris, Mayor (date) Mitchell L. Tyre, Chief of Police (date) Gail F. Nelson, Town Manager (date) (date) TOWN OF JUPITER: Karen J. Golonka, Mayor (date) Richard Westgate, Chief of Police (d~'~e) (date) (date) 6 TOWN OF JUPITER INLET COLONY: Nicholas Porto, Mayor (date) Randall J. Parker, Chief of Police (date) (date) (date) TOWN OF LAKE CLARKE SHORES: Robert M.W. Shalhoub, Mayor (date) Michael A. Bruscell, Sr., Chief of Police(date) .t (date) (date) TOWN OF LAKE PARK: William H. Wagner, Mayor (date) Jeffrey Lindskoog, Chief of Police (date) (date) (date) CITY OF LAKE WORTH: Thomas Ramiccio, Mayor (date) William Smith, Chief of Police (date) (date) (date) TOWN OF LANTANA: Ronald M. Ferris, Town Manager (date) Robert W. Chalman, Jr., Chief of Police (date) (date) (date) 7 TOWN OF MANALAPAN: Gerald Kent Shortz, Mayor (date) William W. Smith, III (date) Director of Public Safety Charles H. Helm, Town Manager (date) (date) TOWN OF MANGONIA PARK: Gale M. English, Mayor (date) Joseph vonDembowski, Chief of Police(date) (date) (date) VILLAGE OF NORTH PALM BEACH: Gall H. Vastola, Mayor (date) Bruce F. Sekeres, Chief of Police (date) (date) (date) TOWN OF OCEAN RIDGE: George D. Stamos, Mayor (date) Edward G. Hillery, Jr., Chief of Police (date) Gary W. Lanker, Town Manager (date) (date) CITY OF PAHOKEE: Ramon Horta, Mayor (date) Carmen Salvatore, III, Chief of Police (date) Kenneth Schenck, City Manager (date) (date) 8 TOWN OF PALM BEACH: Paul R. Ilyinsky, Mayor (date) Joseph L. Terlizzese, Chief of Police (date) Robed J. Doney, Town Manager (date) Lesly Smith (date) President, Town Council PALM BEACH COUNTY SHERIFF'S OFFICE: (date) Robed W. Neumann, Sheriff (d~[e) (date) (date) PALM BEACH COUNTY SCHOOL DISTRICT: Paulette Burdick, Chairman (date) James P. Kelly, Chief of School Police (date) Joan P. Kowal, Superintendent (date) (date) CITY OF PALM BEACH GARDENS: Joe Russo, Mayor (date) James O. FitzGerald, Chief of Police (date) (date) (date) TOWN OF PALM BEACH SHORES: Thomas C. Chilcote, Mayor (date) Roger K. Wille, Chief of Police (date) (date) (date) 9 VILLAGE OF PALM SPRINGS: John M. Davis, Mayor (date) Karl E. Umberger (date) Director of Public Safety Joseph L. Gallegos, Village Manager (date) (date) CITY OF RIVIERA BEACH: Clara K. Williams, Mayor (date) Jerry P. Poreba, Chief of Police (date) (date) (date) VILLAGE OF ROYAL PALM BEACH: Tony Masilotti, Mayor (date) Philip Redstone, Chief of Police (date) (date) (date) CITY OF SOUTH BAY: Clarence E. Anthony, Mayor (date) Michael E. Jackson, City Manager (date) (date) (date) TOWN OF SOUTH PALM BEACH: Margot Roberts, Mayor (date) Roger M. Crane, Chief of Police (date) (date) (date) 10 VILLAGE OF TEQUESTA: Elizabeth A. Schauer, Mayor (date) Stephen J. Allison, Chief of Police (date) (date) (date) CITY OF WEST PALM BEACH: Nancy M. Graham, Mayor (date) Ric L. Bradshaw, Chief of Police (date) (date) (date) 11 Attachment I Atlantis Police Department Belle Glade Police Department Boca Raton Police Department Boynton Beach Police Department Delray Beach Police Department Greenacres Police Department Gulfstream Police Department Highland Beach Police Department Juno Beach Police Department Jupiter Police Department Jupiter Inlet Colony Police Department Lake Clarke Shores Police Department Lake Park Police Department Lake Worth Police Department Lantana Police Department Manalapan Police Department Mangonia Park Police Department North Palm Beach Police Department Ocean Ridge Police Department Pahokee Police Department Palm Beach Police Department Palm Beach County Sheriff's Office Palm Beach County School District Police Department Palm Beach Gardens Police Department Palm Beach Shores Police Department Palm Springs Police Department Riviera Beach Police Department Royal Palm Beach Police Department South Bay Police Department South Palm Beach Police Department Tequesta Police Department West Palm Beach Police Department MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY M.hlqAGER~'~ SUBJECT: AGENDA ITEM # ~ - REG~ MEETING OF JULY 1, 1997 RESOLUTION NO. 51-97 AUTHORIZING ACQUISITION AND ACCEPTANCE OF ASSIGNMENT AGREEMENT/NANMYER PROPERTY DATE: JUNE 27, 1997 The Nanmyer property was before the Commission on May 21, 1996, for an appeal of the Site Plan Review and Appearance Board's action to deny a proposed 4-plex townhouse development on the site. The property is located at the northeast corner of N.E. 14th Street and N.E. 3rd Avenue within the Seacrest Neighborhood. After holding a hearing, the Commission voted 4 to 1 (Ms. Kiselewski dissenting) to uphold SPRAB's action and deny the appeal. In view of the sensitivity of the neighborhood as a redevelopment area with a plan underway and its relationship to the North Federal Highway corridor, the Community Redevelopment Agency subsequently entered into negotiations with the property owner and contracted to purchase the property. City staff has since determined the property to be suitable for use as a stormwater retention area. As indicated in Mr. Wight's memorandum, the area has already been identified as a proposed project due to periodic flooding and is included in the proposed Capital Improvement Program for FY 97/98. The action requested of the Commission is approval of Resolution No. 51-97 which authorizes the acquisition of the property for the municipal purpose of stormwater retention and authorizes the City to enter into an assignment agreement with the CRA to purchase the Nanmyer property for $30,000.00 plus the cost of the appraisal, to be funded from Stormwater Utility - Land Acquisition Costs (448-5411-538-61.10) through transfer from project reserve. Recommend approval of Resolution No. 51-97. ref:agmemo7 ~ ~--O 06.'27'97 FR! 07:33 F3_X 407 278 4755 DEL DOit CTY A'~¥ ....~ CITY HALL CITY DF DELRIIY BEACH .,..... CiTY ATTORNEY'S OFFICE ' w~Tcr's Di~ L~: (561) DEL~AY BEACH in. Jft~ric~ City MEMORANDUM TO: City Commission FROM: David N. Tolces, Assistant City Attom;~ SUBJECT: Acquisition of Nanmyer Property - Approval of Assignment Agreement LOx Purchase Contract with C0mmumtv Red~elo~naent Agency Approval of the accompanying resolution will authorize the City to enter hno the assignment agreement with the CRA to pm'chase the property described in the contract from Nam-nyer Properties, Inc. The assignment agreement and purchase contract have been reviewed and approved by the City Attorney's Office. If you have any questions or concerns, please do not hesitate to call. DNT:smk Attachment cc: David T. Harden, City Attorney Sharon Morgan, City Clerk's Office n~n'nyer.dnt City Of Delray Beach. Department of Environmental Services MEMORANDUM TO: David T. Harden, City Manager FROM: Howard Wight, Dep Dir ESD ConstrU~v~ // DATE: June 26, 1997 ~ ~J "' dUItl Cl~y ~.~,~ SUBJECT: Nanmeyer Lot Purchase ~ N E 3rd Ave/NE 14th St Per your direction we have reviewed this lot for use as a possible stormwater retention area. Staff feels that it would be suitable for receiving stormwater runoff from the area of NE 3rd Ave from N E 14 th St to NE 16th St (see attached map). This area has already been identified as a proposed project due to periodic flooding. It is included in the proposed CIP plan for FY 97/98. The proposed design would include swale grading to inlets and hardpiping to the retention area. cc: Dick Hasko,P.E. Acting Director of Environmental Services Matt Rier, Civil Engineer File: Memos to City Manager < PLUMOSA ELEMENTARY ~ ?> SCHOOL ........... m .:.:.:.:.:.:.: ..... :-:.:.:.:N.:.:.:.E:.:.:.:-:.:.:.:-I.7:TH ............... · ............ :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ................... . AR m..................................................................... ..... "'"'" ' ' 5:.T.:~:'-'-'""'-'-- ~".'.'.'.'-'.'.'. -'.'.'.'..-.~'..,. .~ _ANE ................................................................ .- ..v.v.........................-... " 14TH ST. (LA N.E. 14TH ST. --~t~ LN. "--~~ N ~ NANMEYR PROPERTY ,..,..~,.,o. R E T E N T I 0 N A R E A CI1Y OF DE~RAY BF...AO'I, FL --- D/G/TA/. ~ASE MAP SYSTEM -- C.'I L/BI DA/V£OC. DI, FG Community Redevelopment Agency Delray Beach June 18, 1997 Mr. David T. Harden City Manager City of Delray Beach 100 NW 1st Avenue Delray Beach, FL 33444 RE: Nanmyer Property Delray Beach, FL Dear Dave: Enclosed please find copies of the following: 1. Contract for Sale and Purchase executed by Nanmyer Properties, Inc. and the CRA. 2. Second Addendum to Contract for Sale and Purchase executed by Nanmyer Properties, Inc. and the CRA. 3. Assignment Agreement between the CRA and the City of Delray Beach executed by the CRA. The original documems have been forwarded to the City Attorney's office. Also enclosed is a copy of a paid invoice in the amount of $200 to Jenkins Appraisal Services, Inc. which we would appreciate the City reimbursing the CRA. There was no environmental Phase I study conducted. The seller provided the survey, however, it may need to be updated and certified to the City. The CRA will cover the expenses of our attorney, Bob Federspiel. By copy of this letter I am asking the City Clerk to place this item on the next regular City Commission agenda. 24 N. Swinton Avenue, Delray Beach, FL 33444 (561) 276-8640 / Fax (561) 276-8558 Mr. David T. Harden Page 2 June 18, 1997 If you h/atv~iny questions, please contact me. // Christopher J. Brown Executive Director Enclosures c: City Attorney w/enclosures (originals) City Clerk w/enclosures INVOICE N E 34/11/97 04107/97 PHS ~ 6B-0304203 640~0B9 ~ope~Address ~ ~ ~=~ ~a Unit c~ ~l~,y Bea~ SubdMsion ~l~sa CounW Pa~ Boa~ State ~1o~ ~p 3~444 68 Appraisal Fee Amount Mail or Handling Fee. 200.0Q Additional Charges 1 ' * ' Additional Charges 2 ... Additional Charges 3 ... ' ' ' $ Sales Tax ' ' ' $ Thankdt$1~,~10fll~olaRtmBitlll~lENT AG£NCY TotM Amo~ of Invok~ , FL -.~ v.. ,"= ~'~ ':.'~ro D^~ ~ '~/sa ~.~ ~.[~.:- .._. . · ......~ .Y..,~LE I, ._.~-. ~~ . Ploa~o dotaoh md inoludo ~o bosom ~o~on w~ your ~aymont... ~mk you ! RESOLUTION NO. 51-97 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY OF DELRAY BEACH TO PURCHASE FROM SELLER CERTAIN REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, LOCATED AT THE NORTHEAST CORNER OF N.E. 14TH STREET AND N.E. 3RD AVENUE, DELRAY BEACH, FLORIDA, AS MORE PARTICULARLY DESCRIBED HEREIN, HEREBY INCORPORATING AND ACCEPTING THE CONTRACT STATING THE TERMS AND CONDITIONS FOR THE SALE AND PURCHASE BETWEEN THE SELLER AND THE CITY OF DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, AND AUTHORIZING THE CITY TO EXECUTE AN ASSIGNMENT AGREEMENT BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY AND THE CITY OF DELRAY BEACH FOR SAID PROPERTY; PROVIDING AN EFFECTIVE DATE. WHEREAS, th~ City of Delray Beach wishes to acquire certain property located at the northeast corner of N.E. 14th Street and N.E. 3rd Avenue; and WHEREAS, the Seller, Nanmyer Properties, Inc., has entered into a contract to sell the property hereinafter described to the City of Delray Beach Community Redevelopment Agency; and WHEREAS, it is in the best interest of the City of Delray Beach to enter into an assignment agreement with the Community Redevelopment Agency to authorize the City of Delray Beach to acquire the said property for the purpose of stormwater retention. NOW, THEREFORE, BE IT RESOLVED 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, as buyer, hereby agrees to purchase from Nanmyer Properties, Inc., as seller, land for the purchase price of Thirty Thousand Dollars ($30,000.00) and other good and valuable consideration; said property being more particularly described as follows: South 43 feet of Lot 115 and the North 67 feet of Lot 116, PLUMOSA PARK, Section A, according to the Plat thereof, as recorded in Plat Book 23, Page 68 of the Public Records of Palm Beach County, Florida. Section 2. That the te~s and conditions in the contract for sale and purchase and related addendums to the contract for sale and purchase between the City of Delray Beach Community Redevelopment Agency and Nanmyer Properties, Inc. are attached hereto as E~ibit "A" and inco~orated herein. Section 3. That the City Co~ission hereby approves and agrees to enter into the Assignment A~reement with the Community Redevelopment A~ency for said property. Section 4. That the te~s and conditions of the Assignment Agreement are attached hereto as E~ibit "B" and are incorporated herein. Section 5. That this resolution shall become effective immediately upon its passage. PASSED AND ~OPTED in regular session on this the 17th day of June, 1997. ATTEST: --- City ~l~k - 2 - Res. No. 51-97 EXHIBIT "A" to RES. NO. 51-97 PARTIES, N~%NMYER PI~OFZRTIES, IN_~., .('~ell~r~).,of 18083 Clear Brook Circle, Boca Radon, Florida 33499, (Phone~b% ~-Z~b ), and ~UNITY A~ENCY OF DEL~Y BEACH, ("Buver"), of 24 North Swinton Avenue, Delzay Florida 33444, (Phone 2~6-8540)~ hs=~by agree tha~ the ~elle= shall ~e1% Buyer shall buy ~ho following zeal pro~r~y ("~ea~ Proart") and (a)~e~a~ description o~ ~ P~opert~ l~a~ed ~n Pa~ Beach County, Flo~lda~ ·outh 43 feet of ~t lis and the No~h 67 feet of Lot 116~ P~, Bastion A, a~rdin~ to the Plat thereof, ii recorded in Plat Book 23~ Page 60 of the Public ~coFdo of Pal~ ~ach Count~, Florida. (b) Street address, c~ty, z~p, of the Pro~ ~s~ N.Z. 3rd Avenue, DelFay Beach, Florida (c) PAY~ ~ (i) De.sit %o be held in ecu.ow by Robert W. (b) Balance to =los~ (~.S, oas~, LOC~Y D~WN certified or cashier's check), fubjec~ to adjustments and p~orations $ III. TI~ ~R A~~; RFF~ DAli FACSIMI~ If this o~ier 18 not executed by and delivered ~o all pa~loa OR FACT OF EXECUTION co~nicated ~iting ~twoon the ~tie8 on or borers fourteen days (~4) after the execution of this ~n~ract by tho Buyer, tho de.sits will, a~ Buyer's o~ion, b~ returned %o Buyer and %him o~fex wi~hdrawn, A facsimile copy of thl8 Contract for Sal~ and ~rchase ('~ntrl~') and any signatures hereon shall ~ considered for ~r~ses as originals. The date O~ Contract ("Effective Date") will ~ the date IV. TZ~ ~ZDEN~s Within thirty (30) days after the execution of this ~n~act Seller shall, at Seller,s ex~nse, ~liver to Burr or Buyer's attorney, Iff accordance with Standard A, (~ECK (1) O~ (2)1~ (1)Oabetract Of title (2)~ title insurance c~i~ent ~d, a~ter closing, ~er'g policy of v. ~IB~ ~z This tr~ac~lon ohs11 be closed and the warranty deed and o~hmr closing pairs delivered 8ixt~ (60) days foll~lng the full execution this Con~=act, unless extended by other pr~iaions of Oon~ract. VI. ~I~S~ ~7 LIMITAT/~St Buyer shall take title subject toz zoning, restriction~, proh~l~ions and other re~l~n~l lm~eed bM ~ve~ental authority; reetri~ions ~d ~tters a~ing on the pla~ or otherwise co.on to the au~lviaion; ~blic utility eas~ents of r~ord (easements are to be located contiguous to Real Prope~y lines and not more than 10 feet in width as to the rear or fron~ lines ~d $] feet In width as ~o the side lines, unless othe~lse a~ted herein); t~e8 for ye~ Of ClOling ~d lubae~en2 ~arel ~e~ed mo~ga~es ~d ~rchase ~ney ~rtgage8, If any; other None; provided that there exists closing no violation of ~ho foregoing and none of them ~revents uso of Real Pro. ray for residential vii. ~~t The pro~y shall ~ u~oo~upied as el ~he ~a~e of closing. othe~ioe stated herein. If ~cupancy is ~o ~ delivered before closing, Buyer aml~s all risk of ~oe8 to P~o~y ~ date of ~cu~cy, shall ~ rom~naiblo and l~le for ~tenance ~r~ ~hat date, ~d shall ~ do~ed to have Pro~y in their existing condition as o~ ~ime of t~lng ocoupa~c~ unless VIII. ~P~N OR ~~ ~8l~sJ ~lt~en or handwritten provisions 0hall control al~ printed provisions of Contract in conflict with Page 1 of 6 XX. _~aXD~ (CHECX l~ any o~ ~be ~oll~w£n~ Ride~ a~e applicable an~ are e) ~/VA ELder Z. ~sI~I~ (c~ (1) 0~ (~))~ auger (1)Irony assign o: (2)O~ay not aeeLg~ Contract. XI. S~C~ ~EB~ (CHSOK (1) da (2])~ Addendum ~t applicable. XXI. TI~ ~50P ~ ESS~ OF ~IS ~T~. ~IX. DIS~~S} Buyer ~acknow~edg~ o= ~doee ~o~ ac~owledqe receipt of 18083 CLEAR DACCA CIRCI~ Social ~=url~ Boci&l o~ Tax l~ No. o~ T~ ID No. Exhibit "A" to Res. No. 51-97 Page 2 of 6 lq;il SIEIN RO$~NBERG NJNIKOFF FAX NO, 954 772 4224 P, O5 STANDARDS FOR REAL BSTA.TB TRANSACTIONS A. ~ Or TITLR: (l)An lb=tract of tltil preperad Or brought current by & ta~utebla end axllting ibntract fl~ (~ not ·hall com~on~o ~l~h tJ~ ~a~l~Jt pub~Lc ~ecord~, o~ ~uch lltez d~tl ~S ~y be cu~t~a~ ~n ~h~ oo~n~y. ~on clo~lng o~ thl~ vJthin 3 ~y~, no~lJ~ ~l~r ~n wcJ ~Lng IpecXfyXng defect(I). If the de~ecc (~) rende~ ~ltle u~rk~nblo, ~M~I~ W~IX have ~0 of m aecurity aero.enO ovX~ncod ~ re~rd~ financing abm~n~a, I~ · ~l~. mor~gmge, t~ rLni~ ~eht WLXI exao~ tho date of wr/tton notice t~roo~, ~thXn which to have 0~1 d~ge~, whether vla~blJ or not, lna~ctod end oo~i~.~ ~ I ~conJed Should much ~oaee exceed thLo etas: elo~lng agent dee~gflatodby So/let. p.m. ~ the next bus/no~s day. IOcu~y ag:o~enef and f~nancing a. ~a~: ~onea~at~s on tbJ w~tmneydood mhd zooo~ng~r:~Xve lnftr~entl ahll~ be plldby Seller. ~ento:y prQ;et~t~gh~y~%o~oe~ag, In vh~Qh event pt~luua ahi~l ~ p:or. Led. Caah a~ cloGlng shall bo &nczmased et decreased aJ ~y ~ required by prot&tlonJ. to~/oc~a. U~el~ Buyer r~ttm fuch de%ecrm within thmt th., Buymm eh&~ ~ do~o~ to hmv. wmlv~ Sell.r'm~rrmnt%es mm to tmlling wh%ch either pa~by say clflcol thai Contract. %f ~eLlet Xe unmble to ~rrect tbt durst= ptlot to clomLng, the =oft Pro. ray rot LnoFoctLona, %nclu~ng acto~such Qthvt mutuD~ly mcceptablo escr~aqont for m p.r/~ og no~ %eager then ~ daya gr~ mad ~%Cer ¢lQ01ng date. .Buyer and simultaneously with such repayment, Buyer shall return Personalty and vacate Real Property and reconvey It to Seller " by yarranty deed. If Buyer fails to~ake timely demand for refund, Buyer shall take title ss is, waiving all rights against Seller es to any intervening defect except as may be available to Buyer by virtue of warranties contained In the warranty deed. If a portion of the purchase price is to be derived from Institutional financing or refinancing, requirements of the lending Institution as to place, time of day and p£ocedures for closing, and for disbursement of mortgage proceeds shall control over contrary provision In this Contract. Sailor shall have the right to roqulre trom the lending institution a wrltten commitment that it will not withhold disbursement of mortgage proceeds as a result of any title defect attributable to Buyer-mortgagor. The escro~ end closing procedure required by this Standard may be waived If title agent insures adverse matters pursuant to Section i27.7841, r.S.(1989), as amended. ~. I~OW: Any escro~ agent ("~i~t") receiving funds or equivalent is authorized and agrees by acceptance of them to deposit them prm~otly, hold same in escr~and, sub~ect to clearance, disburse them in accordance with terms and conditions of Contract. failure of clearance of ~unds shall not excuse Buyer's por~or~ance. If in doubt as to Agent's duties or liabilities under the provisions o~ Contract, Agent may, at Agent's option, continue to hold the sub,act matter of the escro~ until the parties mutually agree to Its disbursement, or until a }udgment o~ a court of competent ~urlsdictlon shall determine the rights of the parties or kgent may deposit vlth the clerk of the circuit cou£t having ~urlsdlction of the dispute. Upon notifying all parties concerned of such action, all liability on the part of Agent shall fully terminate, except to the extent of accounting for any Items previously delivered out of escrow. Il a licensed real estate broker~ Agent will comply vlth provisions of Chapter 47S, ~.$.[1989), aa emended. Any suit between Buyer and Seller where Agent is made a party because of acting aa Agent hereunder, or In any suit wherein Agent lnterpleada the sub}ect matter of the escrow, Agent shall recover reasonable attorneys' fees end costs incurred ~lth the fees and costs to be paid from and out o~ the escrowed funds or equivalent and charged and awarded es court costs In favor of the prevailing party. Parties agree that Agent shall not be liable to any party or person for mlsdelivery to Buyer or Seller of lte~s sub, set to this escr~, unless such~lsdelive~y Is due to ~lllful breach of Contract or gross negligence of Agent. I. l l~l~; OOl[l: In any litigation arising out of this Contract, the prevailing party in such litigation which, for the purposes o~ this Standard, shell ~nclude Seller, Buyer~ listing broker, Buyer's broker end any subagents to the listing broker or Buyer's broker~ cheil be entitled to recover reasonable attorney's fees end costa. ~. ~ZI,~I O~ i~R~Oi~41~IC~ If Buyer ~siis to perform this Contract within the time specified (Including payment of all deposit(s)), the deposit(si paid by Buyer end deposltisl agreed to be paid, may be retained by or for the account of Seller as agreed upon liqu~dated damages, consideration for the execution of this Contract and In ~ull settlement of any claims] whereupon, Buyer and Seller shall be relieved of all obligations under Contract; or Seller, at Seller's option, may proceed in equity to enforce Seller's rights under this Contract. If, for any reason othe~ than failure of Seller to make Seller's title marketable after diligent effort, Seller fails, neglects or refuses to perform this Contract, the Buyer may seek specific performance or elect to receive the return of Buyer's deposit(si without thereby waiving any action for damages resulting from Seller's breach. I. Ollel~llO~g~a;~Oa~l; ~ I~X3~); II~Z(:~: Neither this Contract nor any notice of It shall be recorded In any public records. This Contract shall bind end inure to the benefit of the parties and their successors In interest. ~henever the context permits, singular shall Include plural and one gender shall Lnclude ell. Notice given by or to the attorney for any party shall be as effective as if given by or to that party. · . COI~I~¥J~IC~: Seller shall convey title to Real Property by statutory warranty, trustee's, personal representative's or guardian's deed, es appropriate to the status of Seller, sub}eot only to matters contained In Paragraph VII and those otherwise accepted by Buyer. Personalty shall~ at request o~ Buyer, be transferred by an absolute bill of sale ~lth warranty of title, subiect only to such matters aa may be otherwise provided for herein. ~. O~t~S: No prior or present agreements or representations shell be binding upon Buyer or Belier unless included In this Contract. No modification or change In this Contract shall be valid or binding upon the parties unless in writing end executed by the party or parties Intended to be bound by it. V. llaMU~q~Zee: Seller warrants that there are no facts known to Sailer materially affecting the value of the Real Property which are not readily observable by Buyer or which have not been disclosed to Buyer. Exhibit "A" to Res. No. 51-97 Page 4 of 6 /aDDeNDUM TO COh~RACT FOR SALZ AND PURCHASB GELLER~ NANHYER PROPERTIES, INC. BUYER~ COIdHUNITY BEDEVELOPMENT ~GENCY OF DELRA~ BEkCH PROPERTY ADDKESSI $~uth 43 feet of Lot 115 and the North 67 feet of Lot 116, P~JHOSA PA~K, Section A, &c~ording to the Plat thexeofr aB recorded in Plat Book 23, Page 68 of the Public Records of Palm Beach Oounty, Florida. XIV. BPBCIALCLAUSES (Continued)l A. RADON GAS: Radon gas iS naturally occurring radioactiv~ gas that, when it has accumulated in · building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding redon and radon testing may be obtained from your county public health unit. Paragraph N of the Gtandards for Real Estate TranSactions attached to this contract is hereby deemed to include an inspection for radon gas. B. FOR~ION INVESTMENT IN ~AL PROPERTY TAX ACT ('FIRPTA'}~ Except aa othe~wile provided herein, Buyer, ~rauant to Section 1445 of the Internal Revenue Code of 1986, as amended '(nSec=ion 144S#) and the regulations promulgated thereunder ('Regulations'), shall be required to withhold luch amOUnt as is necessary to comply with the Regulations and shall timely remit to the Internal Revenue Service the mmount so withheld along with properiy completed remittance forms. If, however, on or before closing, Seller provides Buyer with (1) an Affidavit of Non-Foreign Status regarding Seller, (2) a Notice of Non-Recognition Treatment, or (3) a ~lthholding Certificate elteblishing that no, or 4 reduced, amount of federal income tax il required to be withheld under Section 1445 (collectively 'Withholding Document') in proper form al required by the Regulations, and Buyer has no knowledge or notice that the Withholding Document furnished by Geller is false, as determined in accordance with the Regulations, then Buyer shall not be required to withhold any portion of the ~mount payable to Seller or shall be allowed to withhold such lesser amount as is required by the applicable Withholding Document, Is the case may be, and ahall submit the amount Io withheld to the Internal Revenue Service along with properly completed remittance forms, In addition, if Seller, prior to closing, satisfies those Regulations which concern the filing of an application for a Withholding Document with the Internal Bevenue Service and gives notice of such pursuant to the Regulations to Buyer and said application is still pending as of the date of closing, then Suyer shall cooperate with Seller's reasonable request to escrow any amount withheld at closing pursuan~ to the Regulations, et Seller'· expense, until · final determination Il ~ade regarding said application at which time said amount shall be disbursed in accordance with said final determination. In the event insufficient cash is paid by Buyer at closin~ to fund the Suyer's withholding obligation, Seller shall deliver to Buyer at closing =he amount of additional cash necessary to satisfy the withholding obligation. In the event Buyer determines after the closing that the Withholding Document provided by Seller to Buyer relieving Buyer entirely of Buyer's duty to withhold or reducing the amount required to be withheld by Buyer was false, Buyer shall have the authority to withhold from any additional amounts due to Seller in accordance with the Regulations, all or such portion of said additional amoun~ due to Seller as Buyer deems necessary to comply with Section 1445 and to =emit the amount as withheld and report such lnfozmation aa required under the Regulations to the Internal Revenue Service. C. This Contract Is contingent upon the COMMUNITY P~EDEVE~OPMENT AGENCY OF DELRA¥ BEACH'S Board of Co~miseicnera approving this Contract within fourteen (14) days followin~ its e~ecution by the Seller. D. The soil, surface water, drainage requirements and runoff availability, geological conditions, and environmental state of the property being purchased must be acceptable to Buyer in Buyers, discretion. This shall be determined by test boring and other soil, geological and engineering studies which may be conducted Buyer b~ mt Buyers' ex, nee within the time permitted for delivery of evidence of title herein. Notice of the results of such =siting shall be furniahed to Seller. During the term of this Contract, the Suyer, or Buyers' employees, agents, representatives, or assigns, shall have full and plete right to enter u~on the property for the purpose of making any and nspections, tests and studies of the property. In the event said conditions disclosed by such inspections sxe unacceptable to Buyer, the Buyer shall have the right to cancel this Agreement and receive · refund of all deposit monies paid hereunder. NANMYER PROPERTIES, INC. ~SECOND ADDENDUM TO CONTRACT FOR SALE_AND PURCHASE SELLER: NANMYER PROPERTIES, INC. BLryER: COI~hMLrNI'I'Y REDEVELOPMENT AGENCY OF DELRAY BEACH PROPERTY ADDRESS: South 43' of Lot 115 & N. 67' of Lot 116, Plumosa Park, Section A, according to the plat thereof, as recorded in P.B. 23, Page 68 of the Public Records of Palm Beach Count, Florida. 1. Miscellaneou~. This addendum is attached to and made a part of ~he Con,-act for Sale and Purcha.~ between Seller and Purchaser having an Effective Dare of May 1, 1997 (such con, race and all addendums thereto being referred to collectively as the "Contract"). All capitalized t~rmg no! defined in this second addendum shall have. tile me. an~gs giv~..n in the Conm~t. To the extent the t~-ms of this s~cond addendum conflict with any of the terms of the Contract, the terms of this second addendum shall govern and cor~trol. Facsimile signatures of this second addendum shall con.~rute originals. 2. ~-~g. tP. iilllILg~. Notwithstimding paragraph "C" of the Standards for Real Estate Transactions set forth on the reverse side of the Conlzacg and notwithstanding any other provision of the Conl~act to the contrary, Purchaser acknowl~lges time thee exists an encroachment of N.E. I4th Street onto the southeast com~ of the properly, and with restmct th~eto agrees as follows: (a) For purposes of the Contrac% the encroachment shall not constitute a title defect or render title to the Property unmarketable; (b) Purchaser's obligation to clos~ on its purchas~ of the Property, as set forth in the Contract, shall not be relieved or otherwise affected by the existence of the encroachment; and (c) At closing, Purch,~er shall accept title to the Properly subject to the encroachment, provided Seller otherwise complies with irs obligations under the Contract. NANMYER PROPERTIES, INC. .-- , Exhibit "A" to Res. No. 51-97 Page 6 of 6 EXHIBIT "B" tO RES. NO. 51-97 THIS ASSIGNMENT AGrEEMeNT is made and entered into thin day of . , 1997, by and between the COMMUNITY REDEVELOPMENT AGENCY OF DELRAY BEACH, hereinafter referred to as "Assignor, · and the CITY OF DELRAY BEACH hereinafter referred to as "Assignee." WI TNESSETH 8 WHEREAS, the Assignor has entered into that certain Contract for sale and purchase wl~h NANMYER PROPERTIES, INC., as Seller, for the purchase of South 43 feet of Lot 115 and the North 67 feet of Lot 116, PLUMOSA PARK, Section A, according to the Plat thereof, as recorded in Plat Book 23, Page 68 of the Public Records of Palm Beach County, Florida, a copy of which is attached hereto (hereinafter referred to as the "Contract"); and WHEREAS, the Assignor is desirous of assigning said Contract to the Assignee and the Assignee is agreeable to accepting such assignment pursuant to the terms and conditions hereinafter set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained the parties hereby agree as follows: Simultaneously with the execution of this Assignment, the Assignee shall pay to Assignor an amount equal to the deposit having been made by the Assignor pursuant to said Contract, as well as the appraisal fee, environmental study costs, soil test costs, and the survey fee incurred by the Assignor. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTESTED BY8 CITY OF DELRA¥ BEACH City Clerk Jay A1perin, Mayor Page 1 of 7 Rates, Florida $3498, (Phone~b% ~_~Z~ ), ~nd ~UN~TY pro~==y ("Pe=eonaltve} (collectivel~ "~") u~n t~e following te~ ~d (a)Legal deoc=l~on o~ ~al P~o~rty l~a~ed ~n Pa~ Beach ~unty, P~, ~c~on A~ ~rding to the Pla~ ~he~eof, ~ re~=ded Book 2~ Page 68 of t~e ~bl/~ ~co~ds of ~lm ~ch ~lor~da. {b) S~reet address, clay, ~p, o~ the Pzo~ l~ __ ~.E. 3rd Avenue, Delra~ Beach, Florida (c) Pereona~y~ PAY~ ~ {a) De.sit to be held in escrow by Robert ~. cert$~d or c~B~$er'l ch~ck), .ubJec~ to / ZZI. TI~ ~R A~~ ~FFE~I~ DA~ FACSIMI~ If this offer is not of this ~ntrict by the Buyer~ tho de~s!ts will, at Buyer'l o~ion, be returned ~r~ses lB originals. The date of ~ntract ("E~fect~ve Date') will ~ the date when the last one of the Buyer and the Seller has signed this offer. IV. T~ ~ZDKN~t Within thlrt~ (30) days after the execution of th~m ~n~ract seller mba11, a~ Seller.o e~nle, ~livor ~o Buzz o~ Buyer'l a~tornoy, (2)N tLtle ~neurance c~l~ent ~d, after closing, ~er's policy of title Snsurance. V. ~I~ ~1 This tr~saction shall bo closed and the warranty deed and ~. ~I~S; ~7 LIMZTATZONS~ Buyer lhall take t~tlo eub~ec~ ~or co~tiguoug to Real Prope~y lines and not ~oro than 20 feet ~ w~dth as ~o CAe rear o= front 1L~8 ~d 9j feet in width as tO tho lido lines, unless othe~loe ~d ~rchase ~noy mortgages, if any; othe~ Hone) provided that there exists closing no violation of ~he foregoing and none of them prevents use of Real vii. ~~t Tho pr~y shall ~ unoccupied as o~ the da~e ~he~lee stated herein. If ~cupancy ~s to ~ delivered before closing, Pro~rty ~n their existing co~dition as of time of t~ing occupancy unless VZIZ, ~P~N OR ~~ ~SZ~Sl ~tten or handwritten p~ovisiona shall control tlZ printed provisions o~ Cont~ao~ ~n oonflic~ with Exhibit "B" to Res. No. 51-97 Page 2 of 7 attao~ed to th~ Oont=act)~ b) ~Condom~nium ~IE. DIS~5~S~ Buyer ~ackno~ed~; o=. ~doeg no~ ac~owledge receipt of NANMYER PROPER~ES, IMC. 1~083 CLEAR [tROO~ CiRCI.E Exhibit "B" to Res. No. 51-97 Page 3 of 7 ..(-co-ul r~l iq:Il S'I'LIH ROSENBEkG WlNIKOFF F~ NO, 954 772 4224 P, 05 o~ i Security Igre~ent evidenced ~ ;e~rded ~l~ncinl ~it~cflLs, It · ballon ~or~g~ge, tim ~a~ ~ent v~ Izoeld the or fll~l ~Lltlng ~ge gr~ temlCe lafllcAtlon ~ C~ ~rov~tl. lg //thl~ o~ both Ire round, l~ez v~l~ heys 4 day~ Should ~uch caleb IXciod tho~ omeun~ Buyer ~hall have ~he option o~ canceling Contract ~i~hLn S d~y* *rear ~ecelpt the F~or~d~ Pe~t ~,t~o~ gar herein, of any fLnancAng at~eaentl, oAaims of lien or potential l~enora k.~ to SeAle~ ind /ur~he~ J~el~/~g ~h~t ~he~e have been no AmproveaenCa or replir~ to P~operty for 90 d~yl ~edl~ti~y preying date of c~ol~ng, If ~roperty bas ~en ~h~ Contraot, ~, P~ OF ~QI Clo~ing shill ~ he/d Ln tho county where ~a~ Pro~ercy ~e l~lced, lC the of~l~ o~ the ettor~ oC~o~ eLoo~ng agent deslgno~ed by So/Z~r. p,l. ~ ~he nGXG bu~Lneos Z. ~ ~ ~; Selle: Ih~l tu~t/h ~rranty de~, bill O~ l~e, mechanic's lien afEidavAt, a~signmente of e~e:, improv~ent8 ~e~e n~t {n o~=tence on Januozy 1st o~ the proof year then texas *ha~l be prorat~ booed upon the pcior yun~'s ~X~k~ ~d It ~ ~it~X~ aonou~nt to bo &greu6 upon b~n tho parkie~, Za~X~ng ~Lch, r~est wIXl bi mude to the County ~f~a Mt r~fc~. ~1 ~ro or replmcuenC &re ~uired; lullEr 8hall cmu~e such repalro to ~ rode e~d .hnll poy up to fmlling which 4~tllOF ~z~y nay cancel this ~ntrecC. If Nll.r 1o un~le to eorrecc tbs dufuCts p~lor to oloeing, tho O, f~l OF ~; ~SX~ l~t The s~c~l ~&rc&nty d~d Ih*Il ~ r,cocded upc~ cLelrt~ce ~ fund,. If ubact&c~, and aLnulteneously with such repayment, Buyer shall return Personalty and vacate Real Property and reconvey it to wa~enty deed. ZE Buyer falls to make timely demand Ear refund, Buyer shall take title as ~a, waiving all rights against S~tler as to any Intervening defect except as =~y ~ available to Buyer by vLrtue of ~rtant~es ¢onCaSned ~n the ~a~;anty deed. l~t~tvt~on es to place, time of day and pz~edu;es ;o~ clo~ln9, and for dlsbursemen~ of mortgage pr~eeds sha~l con~rol over ~tra;y provision ~n ~hl= Contract. Seller =hal~ have the r~ght Lo require f;~ the lend~ng institution a ~ltten It ~ ~t ~thho~d d~sburs~n~ of mortgage pr~eeds as a result of any t~Lle defect attributable Lo Buyer-mortgagor. The ~ end clos~n9 pr~ure r~u~;~ by th~ Standard ~ay be ~a~ved ~f ~lC~e agent ~nsures adverse =at,ers pursuant to 5action ~9.984~ r.s.{/ge~), ~s ~ended. ~: ~y e~cr~ agent ('~ent") r~e~v~ng funds o; equivalent ~s authorL~ed and agrees by acceptance of them to ~p~t~y~ ~d s~ ~n esc;~and, .ub~t ~o c~earance~ ~sburse them ~n acco;dance ~th te~= and conditions of Contract. F~e of c~tence of E~nds shaZZ not excuse Buyer's ~rfo~ance. If ~n doubt as to Agen~s duties o~ ~ab~l~es under the pro~s~ons of Cont;act~ Agent =a7~ ~ Agent's option, continue to ho~d the sub~ect matter of the escr~ until the part]es mut~y egr~ ~o ~s d~sbu;s~en~, et unt~ a ~ud~enL of a court of c~en~ ~vtLsdLct~oa sha~l de~e~ne the ;sgh~= o~ the ~es or ~en~ ~7 ~s~ ~th the clerk of the cL;cu~t court hsv~ng ~ut~sd~ction of ~he d~spvte. Upon not~fy~n9 a~ ~rn~ of s~h ~ct~on, all l~b~l~ty on the part of kgent ~hal~ fully termlnate~ ezcept to the eztent of accounting for any p~ev~ous~y delivered out of esc~. Ifa licensed rea~ estate broker, kgent ~1~ c~ply ~th prov~s~ons o[ Chapter r.s.(]~e9), ~s ~nded. ~y su~t ~een Buyer and Sel~er ~here ~ent ~s made · party ~cause of acting ss ~ent hereunder, or la~ su~t ~erein ~en~ lnterplea~ the s~t ~tter of the escr~, Agent sha~ ~ecover ~easonab~e atto;nays' fees and costs ~red ~th the Eee~ and costs to ~ pa~d f;~ and out oE the esc;~ed funds or equ~v. Zent ~nd charged ~nd a~arded as court ~n favor of ~he prevailing party. ParLLes agree that ~ent shall not ~ ~Lab~e to any pa~ty o~ pe~son fo~ n~sde~very to ~ent. b~et et B~et'o b~oket, ahaX~ ~ ontXt~ed to t~ovet roaoonab~e attorney's ~oes and ~ ~ ~~= I~ Buyer fB~ls to ~tfo~ tbLs Contract ~Lth~n the ties n~cLfLed (~nclud~ng pa~ent of and Se2~et aha21 ~ ~el~eved of a~ ob~gat~ons under Contract; or Se~er~ at Se~er~a opt~on~ may pt~eed In equity to e~ ~ler"a t~ghta under this Contract. ~, ~or any reason other than gallure o~ Sel~et to make Se~ler's tlt2e ea;ketab~e diligent eggo;t, Se~2e: galZs, neglects et reguses to ~r[otm thin Contract~ the Buyer may seek a~cl~lc petfo~ance to t~lve t~ tetu:n of B~er~a ~slt(a) ~lthout thereby ~alvtnq any act/on ~or ~eagea ~eaultlng gt~ SeZ2er~a breach. ~~~; ~ ~; ~: ~Ithet this Contract not any notice of It aha11 be recorded In any public t~. ?his Cent;act aha12 bind and 1hUge to the ~ne/lt of the part/e= and their successors In Interest. ~enever the con:ext ~, singular s~11 lnc/u~ p/uts1 and one gende~ ahab1 ~nc/ude a~l. Notice given by o; to the attorney ~o~ any party shall ~ ueggec:~ve as lg given by et to that pa~ty. ~~: Seller shall convey tltZe to Real Property by statutory ~atranty~ truatee'a~ ~tsonal representative's 9~an's ~, as appropriate to the status ~f Seller, sub,act onZy to matters contained ~n Pa;ag;apb VZZ and those othe~Lae ex--ted by the ~tty or pestles ~ntended to be ~und by ~t. are nec t~y observable by Buyer o= ~b~ch have not ~en d~ac~oaed to Buyer. Exhibit "B" to Res. No. 51-97 Page 5 of 7 ADDENDUM TO CONTRACT FoR SALBAHD ~N~TY ~D~LOP~NT ~GEN~ OF DEL~Y PROPERTY ~D~SSI South 43 ~eet of Lot 1~S and the North 67 feet of Lot 116, 23. ~age 68 of tho Public ~ecord. of P~lm ~ch ~unt~, XIV. 8PKC~ ~USES (Cont/nued)z A. ~N G~ Kadon gao 18 naturally occur=lng radioactive gas ~oal~h =~ke ~o ~=8ong who are exposed ~o ~t eve= C~o. Levels of r.don ~our count~ ~blic health unit, Paragraph N of tho standards fo~ ~al fo~ f~don gas. B. FO~IGN ~S~ IH ~ PROPERTY T~ ACT ("F~RPTA"}~ ExCept ~Ue ~e o8 1966, al ~dod '("Sicken 1445'J I~ho re~lltionl p~ulga~ed thereunder ("h~lationl'), Ihall ~ ~equired ~o wlYhhold ouch ~oun~ I~ forms. If, h~ever, on or ~fore closing, ~ellef provides ~uyer with (1) an Affidavit of Non-Foreign Sta=ul re,,ding Seller, (2) a Notice of Non-~c~ni~ion amount ~f feds=al lnc~ tax i~ ~e~lred ~o ~ withheld under 6et=ion 1445 (collectively 'With~oldin9 Doc~t") In proper fo~ il required by ~la~Zon8, and Buyer h~ no ~owledge or notice ~hat the Wi~hholding Documen~ furn~eh~ ~ Solle~ ~o false, as determined in accordance with ~he Regulations, then Buyer shall not ~ re.ired to withhold any po=tLon of the ~oun= to ~eller or shall be all.ed to withhold such lesser ~ount a~ As zequired by ~unt so ~lthheld ~ tho %nterflal ~veflue So.ice along with properly completed =~ addition, ~f Seller, prior to closing, satisfies those Re~lations be d~sburoed In accordance wl~b said final dete~lna~ion. ~un~ of additional cash necess~ to satisfy the withholding obligation. In the with t~ Re~latione, all or luch ~rtion of said additional ~unt due to Seller as Buyer de~a necessary to comply with Section 2445 and to remit the amount so withheld and repott such lnfo=mation aa re. ired under the Regulations to the C. ~e ~ntra~ ~e ~ntingent upon the ~UNI~ ~DE~P~NT AGENCY (14} dazs roll.lng its execution b~ the Seller. D. The ioll~ lur~ace ~ate=, ~a~nage ze~L=e~nt. ~d ~noff ~ing purchased must ~ acceptable ~o ~uyar in Buyers' discretion. This shall ~ deteml~ed bM ~eet ~fing and othe~ eel1, qeol~lcal ~d engineering ~hich ma~ ~ conducted by Buyer at Bu~o~;' ~nso within the time ~ittod for oel~very of evidence of t~tle herein. Not[ce of the =eoultl of such testing shall be furnished co seller. During the term of this ~ntract, the BuyeF~ Buyers, ~ployeeo, agents, roptesentat/vee, or aloigne, shall have ~ull and ~plete r~ghC Co enter u~n the property fo~ the purpose o~ m~kLng ~y and inm~tionf, tes2o and etudLee of the property. ~ the event ma~d conditions d~sclos~ by such ine~ctiona ~e unacce~le to Buyer, the BuMs= shall have the hereunder. ~ER P~OPERTIZ$~ INC. 7 SECOND..ADDENDUM TO CO. NTRACT FOR SALE...AND PURCHASE SELLER: NANMYER PROPERTIES, INC. BI.~'ER: COM'MUNITY REDEVELOPMENT AGENCY OF DELRAY BEACH PROPERTY ADDRESS: South 43' of Lot 115 & N. 67' of Lot 116, Plurnosa Park, Section A, according to the plat thereof, as recorded in P.B. 23, Page 68 of the Public Records of Palm Beach County., Florida. 1. MiscellaneouS. This addendum is attached to and made apart of the Contract for Sale and Purchase between Seller and Purchaser having an Effective Date of May 1,199'/(such contract and all addendUms thereto being referred to collectively as thc 'Contract"). All capitalized terms not defined in this second addendum shall have thc meanings given jr, the Contract. To thc extent the terms of this second addendum conflict with any of thc ~erms of Ibc Contracl, the terms of this second addendum shall govern and control. Facsimile signatures of this second addendum shall constitute originals. 2. ,~B.~l~lllilg. Nov,vithstanding paragraph "C" of the Standards for Real Estate Transactions set forth on the reverse side oft. he Contract., and noV,vithstanding any other provision of the Contract to thc contrary, Purchaser acknowledges tlmt there exists an encroachment of N.B. 14th Street onto the southeast comer of tl~e property, and with respect thereto agrees as follows: (a) For purposes of thc Contract, the encroachment shall not constitute a title defect or render title to the Property unmarketable; (b) Purchaser's obligaion to close on its purchase of the Property, as set forth in the Conu'act, shall not be relieved or otherwise affected by the existence of the encroachment; and (c) At closing, Purchaser shall accept title to the Property subject to the encroachment, provided Seller ot. hcrwisc complies with irs obligations under thc Contract. NANMYER PROPERTIES, INC. By:. l~er T. Berkowitz~residem Date: June q , 1997 CO)ehM~trI~I%Y_REOEVELOPMENT AGENCY OF DELRAY BEACH By: )J~{(." Date: Sune /.~.g~', 1997 Title: Exhibit "B" to Res. No. 51-97 Page 7 of 7 MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY I~M~AGER~7~ SUBJECT: AGENDA ITEM $ ~' - MEETING OF JULY 1, 1997 RESOLUTION NO. 50-97 DATE: JUNE 27, 1997 This is before the Commission to consider approval of a resolu- tion to the Palm Beach County Commissioners requesting the Florida Department of Natural Resources establish an "idle speed, no wake" zone along the Intracoastal Waterway in the area north and south of the Delray Harbour Club condominium. The State of Florida Department of Natural Resources established "slow speed" and 25 mph speed zones within the Intracoastal Waterway throughout the City limits. The Delray Harbour Club operates a marina and fueling facility 0.38 miles north of the Linton Boulevard bridge. The wakes at-or-above the "slow speed", create a hazardous situation at the marina due to fuel spills and damage to boats fueling and moored at the facility. The petitioner asks that the "idle speed-no wake" zone be put into effect from the Linton Boulevard bridge to the Atlantic Avenue bridge entirely. If the Commission wants to make a motion to that effect, the wording of Section 1 of the Resolution could be modified to reflect its intent. RESOLUTION NO. 50-97 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, REQUESTING THAT THE BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, FLORIDA, REQUEST THE STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES TO ESTABLISH AN "IDLE SPEED-NO WAKE" ZONE ALONG THE INTRACOASTAL WATERWAY IN THE AREA IMMEDIATELY NORTH OF THE ATLANTIC AVENUE BRIDGE TO IMMEDIATELY SOUTH OF THE LINTON BOULEVARD BRIDGE IN THE CITY OF DELRAY BEACH; PROVIDING AN EFFECTIVE DATE. WHEREAS, the State of Florida Department of Natural Resources established slow and 25 mph speed zones within the Intracoastal Waterway throughout the City limits; and WHEREAS, the Delray Harbour Club condominium which is located just 0.38 miles north of the Linton Boulevard bridge operates a marina and fueling facility; and WHEREAS, the wakes created by at or above the "slow speed" create a hazardous situation at the marina due to fuel spills and damage to other boats fueling at the facility; and WHEREAS, the Delray Beach City Commission has determined that it would be in the best interests of public safety and well-being to establish an "Idle Speed-No Wake" zone along a portion of the Intracoastal Waterway within the City limits. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That this resolution be forwarded to the Board of County Commissioners of Palm Beach County, Florida, as a formal request that due to the hazardous conditions existing at the marina herein described and in the interests of public safety and well-being, the Palm Beach County Commission request the Department of Natural Resources to investigate the feasibility of enacting a rule declaring the portion of the Intracoastal Waterway in the area immediately north of the Atlantic Avenue bridge (i.e. the north end of Veterans Park) to immediately south of the Linton Boulevard bridge in the City of Delray Beach, an "Idle Speed-No Wake" zone as defined in Section 16N-24.022, F.A.C. Section 2. That this resolution shall become effective immediately upon its passage. PASSED AND ADOPTED in regular session on this the 1st day of July, 1997. ATTEST: J city-~l~k - 2 - Res. No. 50-97 RESOLUTION NO. 50-97 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, REQUESTING THAT THE BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, FLORIDA, REQUEST THE STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES TO ESTABLISH AN "IDLE SPEED-NO WAKE" ZONE. ~ ALONG THE INTRACOASTAL WATERWAY IN THE AREA~N~H~AND SOUTH OF THE MARINA LOCATED 0.38 MILES NORTH OF THE LINTON BOULEVARD BRIDGE; PROVIDING AN EFFECTIVE DATE. WHEREAS, the State of Florida Department of Natural Resources established slow and 25 MPH speed zones within the Intracoastal Waterway throughout the City limits; and WHEREAS, the Delray Harbour Club condominium which is located just 0.38 miles north of the Linton Boulevard bridge operates a marina and fueling facility; and WHEREAS, the wakes created by at or above the "slow speed" create a hazardous situation at the marina due to fuel spills and damage to other boats fueling at the facility~ .-- . NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISStON~n OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: --~U~~ Section 1: That this resolution be forwarded to the ~/~ Board of County Commissioners of Palm Beach County, Florida, as a formal request that due to the hazardous conditions existing at ~l~t~ the marina herein described,~ the Palm Beach County Commission ~,~ request the Department of Natural Resources to investigate the feasibility of enacting a r~le declaring the portion of the ~]; Intracoastal Waterway north~nd south of the marina which is ~~ located just north of the~inton Boulevard Bridge an "idle ~ ~'~ speed-no wake" zone as define~ in Section 16N-24.022, F.A.C. / Section 2: Tha~ this resolution shall take effect immediatel~u-~J~ i-~passag~. PASSED AND ADOPTED in regular session on this 1st day of July, 1997. M A Y 0 R ATTEST: City Clerk Nl-~ri~C~ Fobruary 6, 1~8 1993 Mr. David Carson Palm Beach County Department of Environmental Resources Management 3323 Belvedere Road West Palm Beach, FL 33406 Re: Resolution No. 50-97 Dear Mr. Carson: Enclosed for your consideration is a copy of Resolution No. 50-97 asking that the Board of County Commissioners request the State Department of Natural Resources to establish an "Idle Speed-No Wake" zone along a portion of the Intracoastal Waterway within the municipal limits of Delray Beach. This resolution was passed and adopted by the Delray Beach City Commission in regular session on July 1, 1997. I apologize for the inadvertent delay in sending it to your attention. Your serious consideration will be appreciated. Sincerely, City Clerk Enclosure cc: John Walker, Project Coordinator 'File THE EFFORT ALWAYS MATTERS Pnnred on Recycled Paper MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ~/( SUBJECT: AGENDA ITEM # q~ - MEETING OF JULY 1, 1997 CONDITIONAL USE REQUEST/ALPHA MARBLE, INC. DATE: JUNE 27, 1997 This is before the Commission consider a request for conditional use approval to allow the establishment of a monument and ornamental stone cutting facility, Alpha Marble, Inc., within the MIC (Mixed Industrial and Commercial) zone district. The proposed facility is to be located in four bays of an existing warehouse on the south side of Dr. Andre's Way, approximately 315 feet east of Congress Avenue, south of the McEwen Lumber facility, and adjacent to the CSX Railroad. The structure, parking, drainage and utilities are currently in place, and no improvements are proposed with this petition. The materials will be stored and processed within the structure, with no outside storage or activities. At its meeting of June 16, 1997, the Planning and Zoning Board voted 5-0 to recommend approval of the conditional use request for Alpha Marble, Inc. based on positive findings with respect to Chapter 3 (Performance Standards) and Section 2.4.5(E)5) (Required Findings) of the Land Development Regulations, and the policies of the Comprehensive Plan, and subject to the following conditions: (1) provide a monitoring well or documentation from the Department of Resource Management (DERM) stating that a well is not required, and (2) outside storage of materials is prohibited. Recommend approval of the conditional use request subject to the findings and conditions as recommended by the Planning and Zoning Board. TO: ~TY/v4~MANAGER THRU: DrANE DOMINGUEZ, DIR~CTO~ ~~ZONING SUBJECT: MEETING OF JULY 1, 1997 CONSIDERATION OF A CONDITIONAL USE REQUEST TO ESTABLISH A MONUMENT AND ORNAMENTAL STONE CUTTING FACILITY (ALPHA MARBLE). LOCATED ON THE SOUTH SIDE OF DR. ANDRE'S WAY. APPROXIMATELY 315 FEET EAST OF CONGRESS AVENUE, SOUTH OF MCEWEN LUMBER FACILITY AND ADJACENT TO THE CSX RAILROAD. The action requested of the City Commission is that of approval of a Conditional Use request to establish a monument and ornamental stone cutting facility (Alpha Marble), within the MIC (Mixed Industrial and Commercial) zone district. The subject property is located on the south side of Dr. Andre's Way, approximately 315 feet east of Congress Avenue, south of McEwen Lumber Facility and adjacent to the CSX Railroad. The development proposal involves the conversion of four bays totaling 1,500 sq.ft, to accommodate a stone cutting facility. As the structure and all attendant facilities (parking, drainage, utilities, etc.) are currently in place, no improvements are proposed with the petition. Alpha Marble, Inc. is a stone working company which fabricates kitchen counter tops, bathroom vanity tops, furniture, window sills, thresholds, treads and risers, and other items. The proposed facility will process finished slabs of granite and other stone into custom floors, counter tops, and furniture. Marble slabs are delivered, cut, ground and City Commission Documentation Meeting of July 1, 1997 Alpha Marble - Conditional Use Approval Page 2 polished to desired shape and texture. The slabs will be stored and processed within the structure, and there will be no outside storage or activities. The interior will consist of approximately 548 sq.ft, of work area including one cutting table, 219 sq.ft, of office/showroom, 533 sq.ft, of storage, and 200 sq.ft, for future storage. The cutting table will be provided with a water reclamation system. The facility will have 2-4 employees. The hours of operation will be 9:00 A.M. to 5:00 P.M., Monday through Saturday. The facility will not operate on Sundays. An analysis of the request is found in the attached Planning and Zoning Board Staff Report. At its meeting of June 16, 1997, the Planning and Zoning Board held a public hearing in conjunction with review of the request. There was no public testimony regarding the request. After minimal discussion, the Board voted 5-0 (Ms. Archer and Mr. Eliopoulos absent) to recommend to the City Commission approval of the conditional use request to establish a monument and ornamental stone cutting facility for Alpha Marble based upon positive findings with respect to Chapter 3 (Performance Standards) and Section 2.4.5(E)(5) (Required Findings) of the Land Development Regulations, and the policies of the Comprehensive Plan subject to the following conditions: 1. Provide a monitoring well or documentation from DERM stating that a well is not required. 2. Outside storage of materials is prohibited. By motion, approve the Conditional Use request to establish a monument and ornamental stone cutting facility (Alpha Marble) subject to the findings and conditions as recommended by the Planning and Zoning Board. Attachments: Staff Report and Documentation of June 16, 1997 PLANNING AND ZONING BOARD CiTY OF DELRAY BEACH ---STAFF REPORT--- MEETING DATE: June 16, 1997 AGENDA ITEM: V.A. ITEM: Conditional Use Request to Allow the Establishment of a Monument and Ornamental Stone Cutting Facility for Alpha Marble, Located on the South Side of Dr. Andre's Way, Approximately 315 feet East of Congress Avenue (South of McEwen Lumber Facility). GENERAL DATA: Owner ......................................... Florida Atlantic Industrial Ltd. Applicant ..................................... Alpha Marble, Inc. Agent .......................................... Vincent and Tova Vidalon Location ...................................... South side of Dr. Andre's Way, approximately 315 feet east of Congress Avenue, south of the McEwen Lumber Facility. Property Size .............................. 4.0 Acres Future Land Use Map ................ Commerce Current Zoning ............................ MIC (Mixed Industrial & Commercial) Adjacent Zoning ................ North: MIC East: CD (Conservation District) South: CF (Community Facilities) West: CF Existing Land Use ...................... Office/warehouse industrial complex consisting of 4 buildings with associated parking and landscaping. Proposed Land Use .................... Establishment of a 1,500 sq.ft, monument and ornamental stone cuffing facility at the northeast corner of the site, within an existing industrial building structure. Water Service ............................. Existing on site. Sewer Service ............................. Existing on site. V.A. The action before the Board is making a recommendation to the City Commission on a request for Conditional Use approval for a monument and ornamental stone cutting facility (Alpha Marble), pursuant to Section 2.4.5(E). The subject property is located on the south side of Dr. Andre's Way, approximately 315 feet east of Congress Avenue, south of McEwen Lumber Facility and adjacent to the CSX Railroad. The subject property consists of Lot 2, McEwen Lumber Company, and is 4.0 acres. The property contains 4 industrial (office/warehouse) buildings with associated parking areas. At its meeting of September 10, 1979, the City Commission approved the final plat for McEwen Lumber Company, a two lot subdivision. On October 22, 1979, the City Commission approved a conditional use request to establish McEwen Lumber Company, which is located on Lot 1. In 1979, site plan approval was granted for Stor-AII Warehouse Center industrial park, a 4 building office/warehouse development containing a total of 65,075 sq.ft. In 1984, a site plan modification was approved to reduce the size of building D from 18,000 sq.ft, to 12,935 sq.ft, resulting in 60,010 sq.ft, of total floor area for the development. The 4 one-story buildings were constructed between 1981 and 1985. VVith the Citywide rezoning and adoption of the Land Development Regulations in October 1990, the subject property was rezoned from LI (Light Industrial) to MIC (Mixed Industrial and Commercial). On May 5, 1997, a Conditional Use request was submitted to establish a monument and ornamental stone cutting facility on the subject property and is now before the Board action. The development proposal involves the conversion of four bays totaling 1,500 sq.ft, to accommodate a stone cutting facility. As the structure and all attendant facilities (parking, drainage, utilities, etc.) are currently in place, no improvements are proposed with the petition. Alpha Marble Inc. is a stone working company which fabricates kitchen counter tops, bathroom vanity tops, furniture, window sills, thresholds, treads and risers, and other items. The proposed facility will process finished slabs of granite and other stone into custom floors, counter tops, and furniture. Marble slabs are delivered, cut, ground and Planning and Zoning Board Staff Report Alpha Marble - Conditional Use Approval Page 2 polished to desired shape and texture. The slabs will be stored and processed within the structure, and there will be no outside storage or activities. Approximately 548 sq.ft, will be devoted to work area including one cutting table, 219 sq.ft, to office/showroom, 532.70 sq.ft, to storage, and 200 sq.ft, to future storage. The cuffing table will be provided with a water reclamation system. The facility will have 2-4 employees. The hours of operation will be 9:00 A.M. to 5:00 P.M., Monday through Saturday. The facility will not operate on Sundays. CHAPTER 3 (REQUIRED FINDINGS): (Performance Standards - L.O.S.) Pursuant to Section 3.1.1 (Required Findings) of the Land Development Regulations, prior to approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information on the application, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. These findings relate to the following four areas: FUTURE LAND USE MAP: The use or structures must be allowed in the zone district and the zoning district must be consistent with the land use designation. The subject property has a Future Land Use Map designation of Commerce and a zoning designation of MIC (Mixed Industrial and Commercial). The MIC zoning district is consistent with the Commerce Future Land Use Map designation. Pursuant to LDR Section 4.4.19(D)(5) within the MIC zone district, a monument and ornamental stone cuffing facility is allowed as a Conditional Use. Based upon the above, a positive finding with respect to consistency with the Future Land Use Map can be made. CONCURRENCY: Facilities which are provided by, or through, the City shall be provided to new development concurrent with issuance of a Certificate of Occupancy. These facilities shall be provided pursuant to levels of service established within the Comprehensive Plan. This proposal is the introduction of a new industrial use into an existing industrial structure. Traffic volumes and trash associated with the proposed stone cutting operation will be similar to that generated by the previous industrial (manufacturing) operation. No additional demand for any services or facilities will be created by this development. CONSISTENCY; Compliance with performance standards set forth in Chapter 3 and required findings in Section 2.4.5(E)(5) for the Conditional Use request shall be the basis upon which a finding of overall consistency is to be made. Other objectives and policies found in the adopted Comprehensive Plan may be used in making a finding of overall consistency. Planning and Zoning Board Staff Report Alpha Marble - Conditional Use Approval Page 3 A review of the goals, objectives and policies of the adopted Comprehensive Plan was conducted and the following applicable policy is noted. _Conservation Policy A-1.1: The practice of monitoring groundwater conditions through installation of monitoring wells shall be continued. In addition, monitoring wells are to be installed for non-residential land uses which locate within zone 3 around the series 20 and eastern wellfields. Provisions shall be made for data from these private monitoring wells to be used in the City's on- going monitoring efforts. The County Wellfield Protection Ordinance, administered by the Department of Resource Management (DERM), determines whether or not monitoring wells .are required for any property. The applicant has notified DERM of this proposal. Installation of a monitoring well or written confirmation from DERM that a well is not required has been attached as a condition of approval for this project. SECTION 2,4.5(E) REQUIRED FINDINGS: (Conditional Use) Pursuant to Section 2.4.5(E)(5) (Findings), in addition to provisions of Chapter 3, the City Commission must make findings that establishing the conditional use will not: A. Have a significantly detrimental effect upon the stability of the neighborhood within which it will be located; B. Nor that it will hinder development or redevelopment of nearby properties. The subject property is surrounded by the following zoning districts: to the north is zoned MIC; to the south and west are zoned CF (Community Facilities); and to the east, across the CSX Railroad is zoned CD (Conservation District). The surrounding land uses are: a lumber company to the north (McEwen Lumber Company), to the west and south are the Palm Beach County Health Unit, South Palm Beach County Administrative Complex, and the Tri-Rail Station; and east is vacant 1-95 right-of-way. The proposed use will be located at the northeast corner of the site adjacent to the lumberyard and railroad, which is not visible from adjacent properties. The proposed use will be located in an existing industrial building in an existing industrial area. No exterior changes to the site, outside uses, or outside storage are proposed. The properties to the north, south and west are developed and the vacant property to the east, if developed, would be to accommodate 1-95 expansion. Based on the above, the proposed use will not have an adverse impact on the surrounding area nor will it hinder development or redevelopment of nearby properties. COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS: The proposed Conditional Use does not include any changes to the site plan. The site was designed pursuant to the development standards of 1980 and was constructed Planning and Zoning Board Staff Report Alpha Marble - Conditional Use Approval Page 4 between 1981 and 1984. The site does not comply with the current development standards with respect to parking, landscaping, and open space, however it does comply with the building setback and height requirements. The parking deficiency relates to the numerous auto repair facilities that exist on the Site which have a parking requirement of 4.5 spaces per 1,000 sq.ft, versus 3 spaces per 1,000 sq.ft, for manufacturing, office, fabrication and 1 space per 1,000 sq.ft, for storage. Upgrading the site to meet current development standards is not practical as it would require redesign of the entire site. This development proposal will not exacerbate the existing conditions, and should have minimal impact on parking availability. The development proposal is not within a geographical area requiring review by the CRA (Community Redevelopment Agency, DDA (Downtown Development Authority), or the HPB (Historic Preservation Board). Site Plan Review and Appearance Board: As no exterior improvements are proposed, Site Plan Review and Appearance Board review is not required. Special Courtesy and Neighborhood Notices: Courtesy notices were provided to the following homeowner's associations and civic organizations: [] Delray Golfview [] Presidents Council [] Progressive Residents of Delray (PROD) [] United Property Owners Public Notice: Formal public notice has been provided to property owners within a 500' radius of the subject property. Letters of objection, if any, will be presented at the Planning and Zoning Board meeting. .i.i....i.i.i .......................................................... .-S..~-. E .......... ~..~i~..~ ......... ~..:*:.. ~.. · .. :~;-~. U. ~i.iii.~. ~;:.....~::~:::; *:::;::...~!::.t:.:::.~:1: ................ The proposed conditional use for Alpha Marble will not increase the current intensity of the site. The proposal replaces the previous tenant with a new tenant. The development proposal is consistent with Chapter 3 of the Land Development Regulations and the policies of the Comprehensive Plan. Also, positive findings with respect to LDR Section 2.4.5(E)(5) (Conditional Use Findings) can be made as the proposal will not have an adverse impact on the surrounding area nor will it hinder development or redevelopment of nearby properties. Although there are some Planning and Zoning Board Staff Report Alpha Marble - Conditional Use Approval Page 5 existing non-conformities (i.e. parking deficiency, insufficient open spaces and landscape areas to meet current requirements) on the site, these deficiencies will not be increased by the current proposal. 1. Continue with direction. 2. Recommend approval of the conditional use request for Alpha Marble based upon positive findings with respect to Chapter 3 (Performance Standards) and Section 2.4.5(E)(5) (Required Findings) of the Land Development Regulations, and the policies of the Comprehensive Plan subject to conditions. 3. Recommend denial of the conditional use request for Alpha Marble based upon a failure to make positive findings with respect to Section 2.4.5(E)(5) (Conditional Use Findings) of the Land Development Regulations and policies of the Comprehensive Plan, of the proposed use with adjacent land uses. Recommend to the City Commission approval of the conditional use request for Alpha Marble (monument and ornamental stone cuffing facility) based upon positive findings with respect to Chapter 3 (Performance Standards) and Section 2.4.5(E)(5) (Required Findings) of the Land Development Regulations, and the policies of the Comprehensive Plan subject to the following conditions: 1. Provide a monitoring well or documentation from DERM that a well is not required. 2. Outside storage of materials is prohibited. Attachments: E] Floor Plan [3 Site Plan Report prepared by: Jeff Costello. Senior Planner MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ~Jf/ SUBJECT: AGENDA ITEM ~ ~m - MEETING OF JULY 1, 1997 BID AWARD/STONE AGE PAVERS, INC. DATE: JUNE 27, 1997 This is before the Commission to consider a bid award to Stone Age Pavers (second low bidder) for repair and replacement of Old School Square brick p~vers. Four bids were received to correct leveling problems between the brick and the cast coral on three of the four streets of Old School Square (Atlantic Avenue is not in need of repair). The apparent low bidder, Machado Industries, Inc. made a $2,000 error in their proposal. When contacted, Mr. Machado indicated he had underbid the project, and asked to be released. Recommend approval of Stone Age Pavers, Inc. (second low bidder), in the amount of $38,535 from Other Government Services - Buildings (Account No. 334-6111-519-62.10). Agenda Item No. AGENDA REQUEST Date: June 23. 1997 Request to be placed on: X Regular Agenda ~ Special Agenda ~ Workshop Agenda When: July 1. 1997 Description of item (who, what, where, how much): Staff reauest City Commission approve a contract with Stone Age Pavers. Inc. in the amount of $38,535.00 for removal and replacement of brick pavers at Old School Square. Funding is available from Account Number 334-6111-519-62.10. ORDINANCE/RESOLUTION REQUIRED: Not required. Recommendation: Staff recommends City_ Commission approve a contract with Stone pavers at Old School Square. J~~ Department head signature: ~ -- Determination of Consistency with Comprehensive Plan: City Attorney Review/Recommendation if applicable):. Budget Director Review (re~red on all items involving expenditur~e,~f funds): Funding available:~CEj,,~UO -$~',o~- ~, t,)~-'~IA~! ~ Funding alternatives'Of applicable): Account No. & Description ~-~d~ ~lll -~[~, OZ ~ tO '~-~1~ ~ Account Balance ~J City Manager Review: Approved for agenda: ~0 ~' ;~'I Hold Until: Agenda Coordinator Review: Received: Placed on Agenda: Action: Approved/Disapproved s:\...\9741\agreq701 ENVIRONMENTAL SERVICES DEPARTMENT MEMORANDUM To: David T. Harden City Manager From: Jos~ Aguila, A.I.A.~ Construction Mana~'er Date: June 23, 1997 Subject: AGENDA REQUEST 7/01/97 Old School Square Brick Paver Repair Project No. 97-041 On June 18, 1997, the City received four (4) bids for the removal and replacement of existing paver bricks around three of the four streets of Old School Square (Atlantic Avenue is not in need of repair). The purpose of this work is to correct leveling problems between the brick and the cast coral which could cause a tripping hazard. The bids are listed in the following table. 1 Machado Industries, Inc. $17,600.00 / $19,610.00 2 Stone Age Pavers, Inc. $38,535.00 3 Perfect Pavers, Inc. $49,010.00 4 CSE Paving, Inc. $50,398.00 The apparent Iow bidder, Machado Industries, Inc., made an error in their proposal page representing just over $2,000. Also, a follow up of his references indicated that he is not properly staffed, needs close scrutiny and is not financially able to front the anticipated expenses for the project. When contacted to discuss the project, Mr. Machado indicated to me that he had underbid the work and wished to be released from the project. The estimate for this work was $30,000.00 based on current market value of similar work. Staff recommends that the Iow bid from Machado Industries, Inc., be rejected on grounds of inconsistencies in the bid plus non-favorable reference check, and that a contract be approved with Stone Age Pavers, Inc., in the amount of $38,535.00. cc: Agenda file 7/1/97 Dick Hasko File 97-041 (A) s\...\9741\agmem701 MACHADO INDUSTRIES, INC. lnterlockin$ Paving Bricks CITY OF OELRI:IV BEACH CITY ATTORNEY'S OFFICE TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755 Writer's Direct Line: (561) 243-7091 DF£RAY BEACH ~ MEMORANDUM Ali,America City '~,,,~''''' DATE: June26, 1997 ~ 993 TO: City Commission FROM: Susan A. Ruby, City Attorney SUBJECT: Auburn Trace - Approval of Three Subordination Agreements for the $3,840,000.00, $720,000.00, $768,000.00 Notes (Amendments to Three Notes. and Amendment No. 5 to the UDAG Agreement Auburn Trace, Ltd. has submitted the above-referenced documents for City Commission approval. On February 4, 1997, the City Commission approved Amendment No. 4 to the UDAG Agreement in which the City Commission agreed to subordinate its interest to the first mortgage loan upon ref'mancing. The entire principal and interest on the original $3,840,000.00 dollar UDAG loan is due on June 30, 2022. The original $720,000.00 note and $768,000.00 notes are due June 30, 2021. The agreements before you at this time are the subordination agreements for each note, the fifth amendment to the UDAG Agreement and revised notes. The UDAG Agreement is amended by extending the date from June 30, 2022 to August 1, 2022. Each of the notes are amended to include the Fannie Mae prescribed subordination language. The two other notes retain their June 30, 2021 maturity dates. The subordination agreements are as required by Fannie Mae. Our office was unsuccessful in changing Paragraph 8C which states that if a deed in lieu of foreclosure is obtained by the first mortgage holder that the City has 30 days to cure and upon failure to cure the City's subordinate loans are eliminated. By copy of this letter to David Harden, City Manager, our office requests that these agreements and notes be placed on the July 1, 1997 City Commission agenda for City cc: David Harden, City Manager Alison MacGregor Harty, City Clerk Joe Safford, Finance Director Becky O'Connor, Treasurer Lula Butler, Community Improvement Director u a ..r C. 06/24/1997 15:55 15612767002 FAHt PAGE 02 Florida Affordable Housing, Inc. June 24, 1997 Ms. Susan Ruby City Attorney 200 N.W. 1st Avenue Delray Beach, FL 33414 . FAX 278-4755 Dear Susan: Enclosed are agreements I drafted per your request regarding minor revisions required by our new first mortgage lender with respect to the three City loans to Auburn Trace, Ltd. Although it required several pages of verbiage, the changes in essence simply accomplish the following: 1. The term of the UDAG Loan is extended by 1 month, from June 30, 2022 to August 1, 2022; and 2. Fannie Mae requires their specific language with respect to the fact that the City's Loan will be subordinate to their loan, and they want that language in each of the three Notes. Also enclosed is a copy of my letter to the new first mortgage lender's attorney setting forth your comments regarding the three Subordination Agreements. Please call me after reviewing the enclosed. Kindest personal regards, TGH/bjb · . 130'1 S.W. 10th Avenue, Bldg. J, Delray Beach, FL 33444, (561) 278-0053, FAX (561) 276-7002 06/24/97 TUE 15:53 [TX/RX NO 8312] 86/24/1997 15:55 15612767002 FAHI PAGE 83 Florida Affordable Housing, Inc. June 24, 1997 David McPherson Pepper, Hamilton & Scheetz LLP 1300 Nineteenth Street, N.W. Washington, D.C. 20036-1685 202-828-1200 202-828-1665 - FAX Dear David: The City of Delray Beach has gotten back to me with respect to their comments on the Subordination Agreements and the new term for the UDAG Agreement, as follows: 1. They cannot change the date from June 30, 2022 to August 1, 2022 without going to the City Commission for approval. There was no commission meeting this week, and the next meeting will be on Tuesday, July 1, so we could not close until July 2; 2. In the Recitals for the 2 Subordination Agreements for the smaller notes, B has an incorrect principal amount; 3, In Recital A of the Subordination Agreement for the $3,840,000 note the due date should be changed to August 1, 2022 in light of the July 2 closing; 4. In Recital A for both the $720,000 Note and the $768,000 Note, the Subordination Agreements should set forth June 30, 2021 as the due dates; 5. In Recital A, in subparagraph 3(a)(i) and subparagraph 3(b)(i) the amount of the new first mortgage loan is specified as $3,470,000, whereas the amount will be different depending upon the interest rate when the rate is locked, so that it should instead say "no more than $3,600,000"; and 6. They cannot agree to subparagraph 8(c). 130! S.W. 10th Avenue, Bldg. J, Delray Beach, FL 33444, (561) 278-0053, FAX (561) 276-7002 06/24/97 TUE 15:53 [TX/RX NO 8312] 0B/24/1997 15:55 156127G7002 F~HI PAGE 04 I enclose for your review the proposed City Loan revisions. Please call me and/or Ms. Susan Ruby with respect to these items. Susan is the City Attorney for Delray Beach and her phone number is 561-243-7090. Thomas G. Hinners TGH/bjb cc: Jim Basque Susan Ruby 06/24/97 TUE 15:53 [TX/RX NO 8312] 86/24/1997 15:55 15612767882 FAHI PAGE 85 AGREEMENT TO REVISE TERM AND PAYMENT SCHEDULE OF $3,840,000 NOTE DATED JUNE 29, 1989 THIS AGREEMENT, dated this ~day of 1997, is in reference to a $3,840,000.00 loan, which is evidenced by an instrument dated June 29, 1989, made by AUBURN TRACE, LTD., a Florida limited partnership (hereinafter referred to as "Auburn Trace"), and payable to the order of THE CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation. This instrument is secured by a Mortgage and Security Agreement, dated June 29, 1989, on the following property: That part of the Subdivision of Section 20, Township 46 South, Range 43 East, Palm Beach County, Florida, according to the plat recorded in Plat Book 1, Page 4 of the Public Records of Palm Beach County, Florida, described as follows: The West half of Lot 25, less the North 25 feet thereof; the East half of Lot 25, less the North 25 feet thereof, less the East 25 feet thereof, less the South 10 feet thereof, and less the North 310.20 feet of the South 320.20 feet (as measured parallel with the East line of said Lot 25); of the West 295.20 feet of the East 320.20 feet (as measured parallel with the South line of said Lot 25); the South 10 feet of the West 25 feet of the East half of Lot 25; the West 25 feet of the East half of Lot 26; the WeSt half of Lot 26; and the East half of Lot 18. The Mortgage and Security Agreement is recorded in the office of the Clerk of the Court, of the County of Palm Beach, State of Florida, in Official Record Book 6116, Page 521, of the Public Records of Palm Beach County, Florida. For and in consideration of the sum of Ten Dollars. ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual covenants, promises and representations herein, the Term is hereby increased and the payment schedule of the instrument described above shall be changed in the following manner: During years one through five, principal payments shall be deferred and interest shall be accrued and deferred at the rate of 3%, compounded annually for each year of the remainder of the term; such accrued and deferred interest and principal shall be due and payable in a single payment at the end of the 31 1/2 year loan term, or sooner in the event the obligation to the City is accelerated. Beginning in year 6, repayment of principal and interest shall be made in equal annual installments in accordance with a 50-year amortization schedule. A balloon payment sufficient to pay the entire outstanding indebtedness of principal, interest and accrued interest shall be made on August 1, 2022. auburn t~ac¢/~grmvi.doc 06/24/97 TUE 15:53 [TX/RX NO 8312] 0G/2411997 15:55 156127G7002 FAHI PAGE 06 If default be made in the payment of any of the sums mentioned herein, the Payee shall impose a penalty of 5% on the unpaid payment In addition, said payment and penalty shall bear interest from such time until paid. at the highest rate allowable under the laws of the State of Florida. The Promissory Note shall be amended so as to add the following provision: "The indebtedness evidenced by this Note is and shall be suborcllnate In right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated , 1997, in the odginal principal in the amount of no more than $3,600,000 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order to the extent and in the manner provided in that certain Subordination Agreement dated . , 1997, between the payee of this Note, and the Senior Lender and Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreement"). The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, ter.ms, Co.venants and ¢ondlt. iqn.s qf the Multifamily Mortgage securing the MuJtifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Modgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement." This agreement is only a revision and not a novation. Except as provided in this agreement, all the terms and conditions of the instrument and the Mortgage and Security Agreement described above .shall remain in full effect. auburn ~ace/agrrevi.doc 06/24/97 TUE 15:53 [TX/RX NO 8312] ~en above, ~c, LTD. has Slgne~ this agreement By:AUBURNAubumTRACE, LTD. WITNESSEs: Trace Joint Venture (Type or print name) (Type or print name) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this., day of , 1997 by , partner (or agent) on behalf of AUburn Trace. Ltd. a partnership. He/She is personally known to me/or has produced . (type of identification) and did (did not) take an oath. Signature of Notary Public- State of Florida Print, Type or Stamp Name of Notary Public auburn trace/agrrevi.doc 06/24/97 TUE 15:53 [TX/RX NO 8312] · 05/24/1997 15:55 15G12757002 FAHI PAGE 88 This agreement is accepted by THE CITY OF DELRAY BEACH, FLORIDA ON ,1997 CITY OF DELRAY BEACH, FLORIDA ATTEST: BY: Jay Alperin, Mayor City Clerk Approved as to Form and Legal Sufficiency: City Attorney aubtma trace/agrrevi.doc 06/24/97 TUE 15:53 [TX/RX NO 8312] 0G/24/1997 15:S5 15612767002 FAHI PAGE 09 AGREEMENT TO REVISE PAYMENT SCHEDULE OF $768,000 NOTE DATED JUNE 29, 1989 THIS AGREEMENT, dated this __day of 1997, is in reference to a $768,000.00 loan, which is evidenced by an instrument dated June 29, 1989, made by AUBURN TRACE, LTD., a Florida limited partnership (hereinafter referred to as "Auburn Trace"), and payable to the order of THE CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation. This instrument is secured by a Mortgage and Security Agreement, dated June 29, 1989, on the following property: That part of the Subdivision of Section 20, Township 46 South, Range 43 East, Palm Beach County, Florida, according to the plat recorded in Plat Book 1, Page 4 of the Public Records of Palm Beach County, Florida, described as follows: The West half of Lot 25, less the North 25 feet thereof; the East half of Lot 25, less the North 25 feet thereof, less the East 25 feet thereof, less the South 10 feet thereof, and less the North 310.20 feet of the South 320.20 feet (as measured parallel with the East line of said Lot 25); of the West 295.20 feet of the East 320.20 feet (as measured parallel with the South line of said Lot 25); the South 10 feet of the West 25 feet of the East half of Lot 25; the West 25 feet of the East half of Lot 26; the West half of Lot 26; and the East half of Lot 18. The Mortgage and Security Agreement is recorded in the office of the Clerk of the Court, of the County of Palm Beach, State of Florida, in Official Record Book 6116, Page 521, of the Public Records of Palm Beach County, Florida, For and in consideration of the sum of Ten Dollars. ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual covenants, promises and representations herein, the the instrument described above shall be changed by adding the fo[lowing provision: "The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated , 1997, in the original principal in the amount of no more than $3,600,000 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order to the extent and in the manner provided in that certain Subordination Agreement dated ,1997, between the payee of this Note, and the Senior Lender and Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreement"). The Mortgage securing this Note is and shal~ be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Muitifamily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be do~rn{~d, t~y ¥/rtl~ gl' auburn trace/agtrevi2.doc 06/24/97 TUE 15:53 [TX/RX NO 83121 06/24/1997 15:55 1561276?002 FAHI PAGE 10 such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement." This agreement is only a revision and not a novation, Except as provided in this agreement, all the terms and conditions of the instrument and the Mortgage and Security Agreement described above shall remain in full effect, IN WITNESS WHEREOF, AUBURN TRACE, LTD. has signed this agreement on the day and year first written above. AUBURN TRACE, LTD. BY: Auburn Trace Joint Venture WITNESSES: BY: BY: (Type or print name) (Type or print name) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ._.day of ,1997 by .. , _ partner (or agent) on behalf of Auburn Trace. Ltd. a partnership. He/She is personally known to me/or has produced (type of identification) and did (did not) take an oath. Signature of Notary Public- State of Florida Print, Type or Stamp Name of Notary Public auburn trace/agrrevi2.doc 06/24/97 TUE 15:53 [TX/RX NO 8312] 0G/24/1997 15:55 15612767002 F~HI P~GE 11 This agreement is accepted by THE CITY OF DELRAY BEACH, FLORIDA ON , 1997 CITY OF DELRAY BEACH, FLORIDA ATTEST: BY: Jay Alperin, Mayor City Clerk Approved as to Form and Legal Sufficiency: City Attorney auburn trace/agrrevi2.doc 06/24/97 TUE 15:53 [TX/RX NO 8312] 06/24/1997 15:55 15612767002 FAHI PAGE 12 AMENDMENT NO. $ TO THE UDAG AGREEMENT DATED JUNE 29, 1989 BETWEEN THE CITY OF DELRAY BEACH AND AUBURN TRACE, LTD. THIS AMENDMENT NO. 5; made and entered into this __ day of ,1997 by and between the CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation, (hereinafter referred to as "City"), and AUBURN TRACE, LTD., a Florida limited partnership (hereinafter referred to as "Auburn Trace") WlTNESSETH: WHEREAS, the City was the recipient of an Urban Development Action Grant ("UDAG") #B-88-AA012-0099(P) from the United States Department of Housing and Urban Development ("HUD"), pursuant to a UDAG Grant Agreement dated February 4, 1988, together with all amendments and modification thereto ("UDAG Agreement"), which UDAG Agreement is incorporated herein by reference, in the amount of Thru Million Eight Hundred For~y Thousand Dollars ($3,840,000% and the City agreed to lend such UDAG funds (the "UDAG Loan") to Aubttm Trace; and WHEREAS Auburn Trace used the funds loaned pursuant to the UDAG Loan in order to construct a rental housing project on a 36-acre tract within the City's UDAG-designatexl "Pocket of Poverty" and WHEKEAS, the parties hereto desire to revise certain provisions of the UDAG Agreement as set forth herein. NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual obligations of the parties as hereinabove set forth, the parties hereto hereby agree to amend the UDAG Agreement as follows: 1. Paragraph IV (b) (2) (A) of the UDAG Agreement is hereby revised to read as follows: (A) Term. The term of the permanent loan shall be from the date of completion of consn'uction which was December 31, 1990, until August 1, 2022 provided however that the 1st mortgage shall be co-terminus with the UDAG Loan. 2. Paragraph IV(b)(2)(D) of the UDAG Agreement is hereby revised to read az follows: (D) Repayment. During the years one through five, tnincipal payments shall be deferred and interest shall be accrued and deferred at the rate of 3%, compounded annually for each year of the remainder of the term; such accrued and. deferred principal and interest shall be due and payable in a single payment at the end of the loan term, or sooner in the event the obligation to the City is accelerated. Beginning in year 6, repayment of principal and interest shall be made auburn traco/~mendNoS.dnc 06/24/97 TUE 15:53 [TX/RX NO 83121 OB/2A/1997 15:55 15612767002 VANI PAGE in equal annual installments in accordance with a 50-year amortization schedule. A balloon payment sufficient to pay the entire outstanding indebtedness of principal, interest and accrued interest shall be made on August 1, 2022. 3. That the attached Agreement to Revise the Payment Schedule for the $3,840,000 UDAG Loan is attached hereto as Exhibit "A", and its terms are incorpoa'ated herein by reference. 4. The Promissory Note shall be amended so as to add the following provision: "The indebtedness evidenced by this Note is and shall be subordinam in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated ., 1997, in the original principal in the amount of no more than $3,600,0(~0 issued by Auburn Trace, Ltd,, a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order to the extent and in the manner provided in that certain Subordination Agreement dated , 1997, between the payee of this Note, and the Senior Lender arid Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreemenf'). The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the MuIlffarnily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement." 5. That all other terms and conditions of the Agreement dated June 29, 1989 and subsequent Amendments thereto between the parties, except as may be in conflict with this Amendment, shall remain in full force and effect. I1~ WITNESS WHEREOF, the parties hereto have entered into this Amendment as of this day and year first above written. AUBURN TRACE, LTD. WITNESSES: BY: Auburn Trace Joint Venture BY: BY: (Type or print name) (Type or print name) auburn trace/amandNoS.doc 2 06/24/97 TUE 15:53 [TX/RX NO 8312] · 06/24/1997 15:55 15G127G7002 FAHI PAGE 14 STATE OFFLO~DA COUNTY OFPALM BEACH The foregoing instrument was acknowledged before me this~ day of , 1997 by , parmer (or agent) on behalf of Auburn Trace. Ltd., a partnership. He/She is personally known to me/or has produced .(type of identification) and did (did not) take an oath, Signature of Notary Public - State of Florida CITY OF DELRAY BEACH, FLORIDA BY' lay Alperin, Mayor ATTEST: City Clerk Approved as to Form and Legal Sufficiency: City Attorney -,q:mm m,~mendNoI, doc 3 06/24/97 TUE 15:53 [TX/RX NO 8312] 05/24/1997 15:55 15612767882 FAHI PAGE 15 AGREEMENT TO REVISE PAYMENT SCHEDULE OF $720,000 NOTE DATED JUNE 29, 1989 THIS AGREEMENT, dated this day of 1997, is in reference to a $720,000.00 loan, which is evidenced by an instrument dated June 29, 1989, made by AUBURN TRACE, LTD., a Florida limited partnership (hereinafter referred to as "Auburn Trace"), and payable to the order of THE CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation. This instrument is secured by a Mortgage and Security Agreement, dated June 29, 1989, on the following property: That part of the Subdivision of Section 20, Township 46 South, Range 43 East, Palm Beach County, Florida, according to the plat recorded in Plat Book 1, Page 4 of the Public Reeorcls ol Palm Beach County, Florida, described as follows: The West half of Lot 25, less the North 25 feet thereof; the East half of Lot 25, less the North 25 feet thereof, less the East 25 feet thereof, less the South 10 feet thereof, and less the North 310.20 feet of the South 320.20 feet (as measured parallel with the East line of said Lot 25); of the West 295.20 feet of the East 320.20 feet (as measured parallel with the South line of said Lot 25); the South 10 feet of the West 25 feet of the East half of Lot 25; the West 25 feet of the East half of Lot 26; the West half of Lot 26; and the East half of Lot 18. The Mortgage and Security Agreement is recorded in the office of the Clerk of the Court, of the County of Palm Beach, State of Florida, in Official Record Book 6116, Page 521, of the Public Records ot Palm Beach County, Florida. For and in consideration of the sum of Ten Dollars. ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual covenants, promises and representations herein, the instrument described above shall be changed by adding the following provision: 'q'he indebtedness evidenced by this Note is and shell be ~.ubordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated . 1997, in the original principal in the amount of no more than $3,600,000 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates. Inc., a Massachusetts corporation ("Senior Lender"), or order to the extent and in the manner provided in that certain Subordination Agreement dated ,1997, between the payee of this Note, and the Senior Lender and Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreement"), The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of auburn t~ace/agrrevil.doc 06/24/97 TUE 15:53 [TX/RX NO 8312] 06/24/1997 15:55 15612767002 FAHI PAGE 16 such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement." This agreement is only a revision and not a novation. Except as provided in this agreement, all the terms and conditions of the instrument and the Mortgage and Security Agreement described above shall remain in full effect. IN WITNESS WHEREOF, AUBURN TRACE, LTD. has signed this agreement on the day and year first written above. AUBURN TRACE, LTD. BY.' Auburn Trace Joint Venture WITNESSES: BY: BY: (Type or print name) (Type or print name) STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this ..day of ,1997 by , partner (or agent) on behalf of Auburn Trace. Ltd. a partnership. He/She is personally known to me/or has produced . (type of identification) and did (did not) take an oath. Signature of Notary Public- State of Florida Print, Type or Stamp Name of Notary Public auburn trace/agrr~vil.doc 06/24/97 TUE 15:53 [TX/RI NO 8312] , 06/24J1997 15:55 15612767002 FAHI PAGE 17 This agreementis accepted by THE CITY OF DELRAY BEACH, FLORIDA ON ,1997 CITY OF DELRAY BEACH, FLORIDA ATTEST: BY: Jay Alperin, Mayor City Clerk Approved as to Form and Legal Sufficiency: City Attorney auburn trace/agrrevil.doc 06/24/97 TUE 15:53 [TX/RX NO 8312] This Instrument prepared by: David J. McPherson, Esquire Pepper, Hamilton & Scheetz LLP 1300 19th Street, N.W. Washington, D.C. 20036 When recorded return to: James F. Basque, Esquire James F. Basque, Chartered 1637 East Vine Street, Suite E Kissimme, Florida 34744 SUBORDINATION AGREEMENT (City of Delray Beach - $3,840,000.00 Note) THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of the . day of July, 1997 by and among (i) CONTINENTAL WINGATE ASSOCIATES, INC., a Massachusetts corporation (the "Senior Lender"), (ii) CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation (the "Subordinate Lender"), and (iii) AUBURN TRACE, LTD., a Florida limited partnership (the "Borrower"). Recitals A. The Senior Lender has made or is making a loan (the "First Mortgage Loan") to the Borrower int he original principal amount of $3,470,000.00. The First Mortgage Loan is or will be secured by a first mortgage lien (the "First Mortgage") on a multifamily housing project located in the City of Delray Beach, Florida (the "Property"). The Property is more fully described in Exhibit A attached hereto. The Borrower's obligation to repay the First Mortgage Loan is evidenced by a Multifamily Noted dated July m, 1997 together with all addenda (the "First Mortgage Note"), and is due in full on August 1, 2022. B. The Borrower has requested the Senior Lender to permit the Subordinate Lender to keep in place a subordinate loan to Borrower in the original principal amount of $3,840,000.00 (the "Subordinate Loan") and to secure the Subordinate Loan by keeping in place a mortgage lien against the Property. C. The Senior Lender has agreed to permit the Subordinate Lender to keep the Subordinate Loan in place and to keep in place a subordinate mortgage lien against the Property, subject to all of the conditions contained in this Agreement. Fannie Mae Subordination Agreement (Affordable Housing) (Page 1 of 15) Florida Housing Finance Agency Form D. The Senior Lender intends to sell, transfer and deliver the first Mortgage Note and assign the First Mortgage to Federal National Mortgage Association ("Fannie Mae"). NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate Lender to keep in place the Subordinate Loan and to keep in place a subordinate mortgage lien against the Property, and in consideration thereof, the Senior Lender, the Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "First Mortgage Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the First Mortgage Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the First Mortgage Loan Documents for curing the default. "First Mortgage Loan Documents" means the First Mortgage Note and all other documents evidencing or securing the First Mortgage Loan. "Land Use Restriction Agreement" means the agreement dated as of June 29, 1989, and recorded in the land records where the Property is located, imposing certain occupancy, rent and other affordability restrictions on the Property. Fannie Mae Subordination Agreement (Affordable Housing) (Page 2 of 15) Florida Housing Finance Agency Form "Person" means an individual, estate, trust, partnership, corporation, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means the Person named as such in the first paragraph on page 1 of this Agreement. When Fannie Mae or any other Person becomes the legal holder of the First Mortgage Note, Fannie Mae or such other Person shall automatically become the Senior Lender. "Subordinate Lender" means the Person named as such in the first paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, the Land Use Restriction Agreement and all other documents evidencing and securing the Subordinate Loan. "Subordinate Mortgage" means the mortgage or deed of trust encumbering the Property as security for the Subordinate Loan, which is recorded in Official Records Book 6116, Page 521, Public Records of Palm Beach County, Florida. "Subordinate Note" means the Promissory Note dated June 29, 1989, as amended, issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate 2. Permission to Keep in Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the First Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep in place the Subordinate Mortgage against the Property (which is subordinate in all respects to the lien of the First Mortgage) to secure the Borrower's obligation to repay the Subordinate Note. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not tree and correct on said date, the provisions of the First Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. Fannie Mae Subordination Agreement (Affordable Housing) (Page 3 of 15) Florida Housing Finance Agency Form 3. Borrower's and Subordinate Lender's Representations and Warranties. (a) The Borrower makes the following representations and warranties to the Senior Lender: (i) Subordinate Note. The Subordinate Note contains the following provision: The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated July __, 1997, in the original principal amount of $3,470,000.00 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order, to the extent and in the manner provided in that certain Subordination Agreement dated July __, 1997, between the payee of this Note, and the Senior Lender and Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreement"). The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement. (ii) Relationship of Borrower to Subordinate Lender and Servicer. Neither the Subordinate Lender nor the Senior Lender is an Affiliate of the Borrower. (iii) Term. The maturity date of the Subordinate Note is August 1, 2022. (iv) Subordinate Loan Documents. The executed Subordinate Loan Documents are in the exact form submitted to, and approved by, Fannie Mae prior to the date of this Agreement. (b) The Subordinate Lender makes the following representations and warranties to the Senior Lender: (i) Subordinate Note. The Subordinate Note contains the following provision: The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Fannie Mae Subordination Agreement (Affordable Housing) (Page 4 of 15) Florida Housing Finance Agency Form Multifamily Note dated as of July __, 1997, in the original principal amount of $3,470,000.00 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order, to the extent and in the manner provided in that certain Subordination Agreement dated as of July __, 1997, between the payee of this Note, and the Senior Lender and Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreement"). The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The fights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement. (ii) Term. The maturity date of the Subordinate Note is August 1, 2022. (iii) Subordinate Loan Documents. The Subordinate Loan Documents have not been modified or amended since the execution thereof by the Subordinate Lender. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement (including but not limited to Paragraph 4(c) below), to the prior payment in full of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage is and shall be subject and subordinate in all respects to the Senior Lien, terms, covenants and conditions of the First Mortgage and to all sums advanced for the purposes of (x) protecting or further securing the lien of the First Mortgage, curing defaults by the Borrower under the First Mortgage Loan Documents, or (y) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Senior Lender agrees that if, by reason of the advance payment by the Subordinate Lender of real estate taxes or the casualty insurance obligations of the Borrower to protect the Property and the Subordinate Lender, by reason of the Subordinate Loan Documents, acquired by right of subrogation or otherwise a lien on the Property, said amount advanced shall be senior to the lien of the First Mortgage only to the extent of the amount advanced, provided that the Subordinate Lender gives the Fannie Mae Subordination Agreement (Affordable Housing) (Page 5 of 15) Florida Housing Finance Agency Form Senior Lender prior written notice of its intent to advance sums for real property taxes and/or casualty insurance. (c) Payments Before First Mortgage Loan Default. Until the Subordinate Lender receives notice of a First Mortgage Loan Default, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After First Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a First Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent excluding, however, such sums which were due and owing and received by the Subordinate Lender prior to receipt of notice, or it otherwise acquires knowledge, of the First Mortgage Loan Default. The Subordinate Lender agrees that, after it receives notice of a First Mortgage Loan Default, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including, but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. (e) Receipt of Payment Not Permitted Hereunder. If, after the Subordinate Lender receives notice of a First Mortgage Loan Default, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the First Mortgage Loan Documents in such order and in such manner as set forth in the First Mortgage. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender written notice of each Subordinate Mortgage Loan Default in each case where the Subordinate Lender has given notice to the Borrower. The Senior Lender shall have the right, but not the obligation, to cure any such Subordinate Mortgage Loan Default within 30 days following the date of such notice. All amounts paid by the Senior Lender to the Subordinate Lender to cure a Subordinate Mortgage Loan default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Senior Mortgage. Fannie Mae Subordination Agreement (Affordable Housing) (Page 6 of 15) Florida Housing Finance Agency Form (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder, unless and until it has given the Senior Lender at least 45 days' prior written notice. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a default under the First Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First Mortgage Loan Documents in the same manner as in the case of any other default thereunder. 6. Default Under First Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender written notice of each First Mortgage Loan Default in each case where the Senior Lender has given notice to the Borrower. The Subordinate Lender shall have the right, but not the obligation, to cure any such First Mortgage Loan Default within 30 days following the date of such notice; provided, however, that the Senior Lender shall be entitled, during such 30-day period, to continue to pursue its remedies under the First Mortgage Loan Documents. All amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the First Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the First Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan Default becomes a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. ff at any time the Borrower cures any First Mortgage Loan Default to the satisfaction of the Senior Lender, any default under the Subordinate Loan Documents arising from such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such First Mortgage Loan Default had never occurred. Fannie Mae Subordination Agreement (Affordable Housing) (Page 7 of 15) Florida Housing Finance Agency Form 7. Conflict. The Borrower and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control: (i) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (ii) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the First Mortgage and the Subordinate Mortgage, respectively; and (iii) the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Mortgage. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure First Mortgage Loan Defaults pursuant to Paragraph 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of (i) a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"), or (ii) the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the First Mortgage remains a lien on the Property the following provisions shall apply: (1) the Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender. However, this paragraph or anything contained in this Agreement shall not limit the tights of the Subordinate Lender to file any pleadings, Fannie Mae Subordination Agreement (Affordable Housing) (Page 8 of 15) Florida Housing Finance Agency Form documents, claims or notices with the appropriate court with jurisdiction over a Taking or a Casualty. (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the First Mortgage Loan) in the manner set forth in the First Mortgage; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents; provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds; provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail; and (3) the Subordinate Lender agrees to execute and deliver, at no expense to the Senior Lender, all documents, instruments, agreements or further assurances required to effectuate the provisions of this subsection. (c) Termination of Subordinate Mortgage. If, after the occurrence of a First Mortgage Loan Default, ihe Senior Lender acquires title to the Property pursuant to a deed in lieu of foreclosure, the lien of the Subordinate Mortgage shall automatically terminate upon the Senior Lender's acquisition of title, provided that (i) the Subordinate Lender shall have been given written notice of the First Mortgage Loan Default, and (ii) the Subordinate Lender shall not have cured the First Mortgage Loan Default within the 30-day period after the date of the notice referred to in clause (i), which notice may be given at any time. (d) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, (i) amend, modify, increase, extend, renew or replace the Subordinate Loan Documents or (ii) assign any interest in the Subordinate Loan. Any amendment of the Subordinate Loan Documents or assignment of Fannie Mae Subordination Agreement (Affordable Housing) (Page 9 of 15) Florida Housing Finance Agency Form the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. 9. Modification of First Mortgage Loan Documents. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the First Mortgage Loan Documents, including any provision requiring the payment of money. 10. Default by the Subordinate Lender. If the Subordinate Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by the Subordinate Lender under this Agreement, the Senior Lender shall have the right to all available legal and equitable relief. 11. Non-Approval of Subordinate Financing Terms. This Agreement does not constitute an approval by the Senior Lender or Fannie Mae of the terms of the Subordinate Loan or limit any of the Borrower's rights to negotiate the terms of the Subordinate Loan Documents with the Subordinate Lender. 12. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered), or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier), or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Continental Wingate Associates, Inc. Old Central Wharf 75 Central Street Boston, Massachusetts 02109-3497 Attention: Gardner Hall Fannie Mae Subordination Agreement (Affordable Housing) (Page 10 of 15) Florida Housing Finance Agency Form SUBORDINATE LENDER: City of Delray Beach, Florida 100 N.W. 1st Avenue Delray Beach, Florida 33444 Attention: Susan A. Ruby, Esq. BORROWER: Auburn Trace, Ltd. 1301 SW 10th Avenue Building J Delray Beach, Florida 33444 Attention: Brian J. Hinners Either party may, by notice given pursuant to this Paragraph, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. This Agreement shall be binding upon and shall inure to the benefit of the' respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's permission for the placement of the Subordinate Mortgage does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's Consent. Wherever the Senior Lender's' consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion. (d) Further Assurances. The Subordinate Lender agrees to execute and deliver all additional instruments and/or documents required by the Senior Lender in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. Fannie Mae Subordination Agreement (Affordable Housing) (Page 11 of 15) Florida Housing Finance Agency Form (f) Governing Law. This Agreement shall be governed by the laws of the State of Florida. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof, (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained in) the First Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained in) the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. WITNESSES: SENIOR LENDER: CONTINENTAL WINGATE ASSOCIATES, INC., Name: a Massachusetts corporation By: (SEAL) Name: Jeffrey M. Goodman Vice President Fannie Mae Subordination Agreement (Affordable Housing) (Page 12 of 15) Florida Housing Finance Agency Form SUBORDINATE LENDER: CITY OF DELRAY BEACH, FLORIDA, a Florida Name: municipal corporation By: .(SEAL) Name: Name: Title: WITNESSES (as to all): BORROWER: AUBURN TRACE, LTD., a Florida limited partnership By: Auburn Trace Joint Venture, a Florida general Name:. partnership, its General Partner By: Auburn Management, Inc., a Florida corporation, its General Partner By: (SEAL) Name: Brian J. Hinners President By: Matrix Financial, Ltd., a Florida limited partnership, its General Partner By: MFL, Inc., a Florida corporation, its General Partner By:. (SEAL) Kenneth G. Dixon Vice President Fannie Mae Subordination Agreement (Affordable Housing) (Page 13 of 15) Florida Housing Finance Agency Form ACKNOWLEDGMENTS COMMONWEALTH OF MASSACHUSETTS, County of Suffolk, The foregoing instrument was acknowledged before me this day of July, 1997, by Jeffrey M. Goodman, as the Vice President of Continental Wingate Associates, Inc., on behalf of said corporation. Such person is personally known to me or has presented as identification. Notary Public - Commonwealth of Massachusetts (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: STATE OF FLORIDA, County of , The foregoing instrument was acknowledged before me this day of July, 1997, by · as the of the City of Delray Beach, Florida, on behalf of said city. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: Fannie Mae Subordination Agreement (Affordable Housing) (Page 14 of 15) Florida Housing Finance Agency Form STATE OF FLORIDA, County of , The foregoing instrument was acknowledged before me this day of July, 1997, by Brian J. Hinners, as the President of Auburn Management, Inc., as the General Partner of Auburn Trace Joint Venture, General Partner of Auburn Trace, Ltd., a Florida limited partnership, on behalf of said corporation and said partnerships. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: STATE OF FLORIDA, County of , The foregoing instrument was acknowledged before me this ~ day of July, 1997, by Kenneth G. Dixon, as the Vice President of MFL, Inc., as the General Partner of Matrix Financial, Ltd., General Partner of Auburn-Trace Joint Venture, General Parmer of Auburn Trace, Ltd., a Florida limited partnership, on behalf of said corporation and said partnerships. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: DC: #38324 v2 {TKKO2!.WPD) Fannie Mae Subordination Agreement (Affordable Housing) (Page 15 of 15) Florida Housing Finance Agency Form This Instrument prepared by: David J. McPherson, Esquire Pepper, Hamilton & Scheetz LLP 1300 19th Street, N.W. Washington, D.C. 20036 When recorded return to: James F. Basque, Esquire James F. Basque, Chartered 1637 East Vine Street, Suite E Kissimme, Florida 34744 SUBORDINATION AGREEMENT (City of Delray Beach - $720,000.00 Note) THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of the day of July, 1997 by and among (i) CONTINENTAL WINGATE ASSOCIATES, INC., a Massachusetts corporation (the "Senior Lender"), (ii) CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation (the "Subordinate Lender"), and (iii) AUBURN TRACE, LTD., a Florida limited parmership (the "Borrower"). Recitals A. The Senior Lender has made or is making a loan (the "First Mortgage Loan") to the Borrower in the original principal amount of $3,470,000.00. The First Mortgage Loan is or will be secured by a first mortgage lien (the "First Mortgage") on a multifamily housing project located in the City of Delray Beach, Florida (the "Property"). The Property is more fully described in Exhibit A attached hereto. The Borrower's obligation to repay the First Mortgage Loan is evidenced by a Multifamily Noted dated July __, 1997 together with all addenda (the "First Mortgage Note"), and is due in full on August 1, 2022. B. The Borrower has requested the Senior Lender to permit the Subordinate Lender to keep in place a subordinate loan to Borrower in the original principal amount of $720,000.00 (the "Subordinate Loan") and to secure the Subordinate Loan by keeping in place a mortgage lien against the Property. C. The Senior Lender has agreed to permit the Subordinate Lender to keep the Subordinate Loan in place and to keep in place a subordinate mortgage lien against the Property, subject to all of the conditions contained in this Agreement. Fannie Mae Subordination Agreement (Affordable Housing) (Page 1 of 15) Florida Housing Finance Agency Form D. The Senior Lender intends to sell, transfer and deliver the first Mortgage Note and assign the First Mortgage to Federal National Mortgage Association ("Fannie Mae"). NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate Lender to keep in place the Subordinate Loan and to keep in place a subordinate mortgage lien against the Property, and in consideration thereof, the Senior Lender, the Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" mean~ the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "First Mortgage Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the First Mortgage Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the First Mortgage Loan Documents for curing the default. "First Mortgage Loan Documents" means the First Mortgage Note and all other documents evidencing or securing the First Mortgage Loan. "Land Use Restriction Agreement" means the agreement dated as of June 29, 1989, and recorded in the land records where the Property is located, imposing certain occupancy, rent and other affordability restrictions on the Property. Fannie Mae Subordination Agreement (Affordable Housing) (Page 2 of 15) Florida Housing Finance Agency Form "Person" means an individual, estate, trust, partnership, corporation, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means the Person named as such in the first paragraph on page 1 of this Agreement. When Fannie Mae or any other Person becomes the legal holder of the First Mortgage Note, Fannie Mae or such other Person shall automatically become the Senior Lender. "Subordinate Lender" means the Person named as such in the first paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, the Land Use Restriction Agreement and all other documents evidencing and securing the Subordinate Loan. "Subordinate Mortgage" means the mortgage or deed of trust encumbering the Property as security for the Subordinate Loan, which is recorded in Official Records Book 6116, Page 521, Public Records of Palm Beach County, Florida. "Subordinate Note" means the Promissory Note dated June 29, 1989, as amended, issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. 2. Permission to Keep in Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the First Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep in place the Subordinate Mortgage against the Property (which is subordinate in all respects to the lien of the First Mortgage) to secure the Borrower's obligation to repay the Subordinate Note. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not tree and correct on said date, the provisions of the First Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. Fannie Mae Subordination Agreement (Affordable Housing) (Page 3 of 15) Florida Housing Finance Agency Form 3. Borrower's and Subordinate Lender's Representations and Warranties. (a) The Borrower makes the following representations and warranties to the Senior Lender: (i) Subordinate Note. The Subordinate Note contains the following provision: The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated July __, 1997, in the original principal amount of $3,470,000.00 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order, to the extent and in the manner provided in that certain Subordination Agreement dated July __, 1997, between the payee of this Note, and the Senior Lender and Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreement"). The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement. (ii) Relationship of Borrower to Subordinate Lender and Servicer. Neither the Subordinate Lender nor the Senior Lender is an Affiliate of the Borrower. (iii) Term. The maturity date of the Subordinate Note is June 30, 2021. (iv) Subordinate Loan Documents. The executed Subordinate Loan Documents are in the exact form submitted to, and approved by, Fannie Mae prior to the date of this Agreement. (b) The Subordinate Lender makes the following representations and warranties to the Senior Lender: (i) Subordinate Note. The Subordinate Note contains the following provision: The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Fannie Mae Subordination Agreement (Affordable Housing) (Page 4 of 15) Florida Housing Finance Agency Form Multifamily Note dated as of July __, 1997, in the original principal amount of $3,470,000.00 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order, to the extent and in the manner provided in that certain Subordination Agreement dated as of July __, 1997, between the payee of this Note, and the Senior Lender and Auburn Trace. Ltd., a Florida limited partnership (the "Subordination Agreement"). The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement. (ii) Term, The maturity date of the Subordinate Note is June 30, 2021. (iii) Subordinate Loan Documents. The Subordinate Loan Documents have not been modified or amended since the execution thereof by the Subordinate Lender. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement (including but not limited to Paragraph 4(c) below), to the prior payment in full of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage is and shall be subject and subordinate in all respects to the Senior Lien, terms, covenants and conditions of the First Mortgage and to all sums advanced for the purposes of (x) protecting or further securing the lien of the First Mortgage, curing defaults by the Borrower under the First Mortgage Loan Documents, or (y) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Senior Lender agrees that if, by reason of the advance payment by the Subordinate Lender of real estate taxes or the casualty insurance obligations of the Borrower to protect the Property and the Subordinate Lender, by reason of the Subordinate Loan Documents, acquired by right of subrogation or otherwise a lien on the Property, said amount advanced shall be senior to the lien of the First Mortgage only to the extent of the amount advanced, provided that the Subordinate Lender gives the Fannie Mae Subordination Agreement (Affordable Housing) (Page 5 of 15) Florida Housing Finance Agency Form Senior Lender prior written notice of its intent to advance sums for real property taxes and/or casualty insurance. (c) Payments Before First Mortgage Loan Default. Until the Subordinate Lender receives notice of a First Mortgage Loan Default, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After First Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a First Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent excluding, however, such sums which were due and owing and received by the Subordinate Lender prior to receipt of notice, or it otherwise acquires knowledge, of the First Mortgage Loan Default. The Subordinate Lender agrees that, after it receives notice of a First Mortgage Loan Default, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including, but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. (e) Receipt of Payment Not Permitted Hereunder. If, after the Subordinate Lender receives notice of a First Mortgage Loan Default, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the First Mortgage Loan Documents in such order and in such manner as set forth in the First Mortgage. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender written notice of each Subordinate Mortgage Loan Default in each case where the Subordinate Lender has given notice to the Borrower. The Senior Lender shall have the right, but not the obligation, to cure any such Subordinate Mortgage Loan Default within 30 days following the date of such notice. All amounts paid by the Senior Lender to the Subordinate Lender to cure a Subordinate Mortgage Loan default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Senior Mortgage. Fannie Mae Subordination Agreement (Affordable Housing) (Page 6 of 15) Florida Housing Finance Agency Form (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder, unless and until it has given the Senior Lender at least 45 days' prior written notice. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a default under the First Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First Mortgage Loan Documents in the same manner as in the case of any other default thereunder. 6. Default Under First Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender written notice of each First Mortgage Loan Default in each case where the Senior Lender has given notice to the Borrower. The Subordinate Lender shall have the right, but not the obligation, to cure any such First Mortgage Loan Default within 30 days following the date of such notice; provided, however, that the Senior Lender shall be entitled, during such 30-day period, to continue to pursue its remedies under the First Mortgage Loan Documents. All amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the First Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the First Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan Default becomes a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any First Mortgage Loan Default to the satisfaction of the Senior Lender, any default under the Subordinate Loan Documents arising from such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such First Mortgage Loan Default had never occurred. Fannie Mae Subordination Agreement (Affordable Housing) (Page 7 of 15) Florida Housing Finance Agency Form 7. Conflict. The Borrower and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control: (i) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (ii) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the First Mortgage and the Subordinate Mortgage, respectively; and (iii) the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Mortgage. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure First Mortgage Loan Defaults pursuant to Paragraph 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of (i) a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a 'Waking"), or (ii) the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the First Mortgage remains a lien on the Property the following provisions shall apply: (1) the Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender. However, this paragraph or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to file any pleadings, Fannie Mae Subordination Agreement (Affordable Housing) (Page 8 of 15) Florida Housing Finance Agency Form documents, claims or notices with the appropriate court with jurisdiction over a Taking or a Casualty. (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the First Mortgage Loan) in the manner set forth in the First Mortgage; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents; provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds; provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail; and (3) the Subordinate Lender agrees to execute and deliver, at no expense to the Senior Lender, all documents, instruments, agreements or further assurances required to effectuate the provisions of this subsection. (c) Termination of Subordinate Mortgage. If, after the occurrence of a First Mortgage Loan Default, the Senior Lender acquires title to the Property pursuant to a deed in lieu of foreclosure, the lien of the Subordinate Mortgage shall automatically terminate upon the Senior Lender's acquisition of title, provided that (i) the Subordinate Lender shall have been given written notice of the First Mortgage Loan Default, and (ii) the Subordinate Lender shall not have cured the First Mortgage Loan Default within the 30-day period after the date of the notice referred to in clause (i), which notice may be given at any time. (d) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, (i) amend, modify, increase, extend, renew or replace the Subordinate Loan Documents or (ii) assign any interest in the Subordinate Loan. Any amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. Fannie Mae Subordination Agreement (Affordable Housing) (Page 9 of 15) Florida Housing Finance Agency Form 9. Modification of First Mortgage Loan Documents. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the First Mortgage Loan Documents, including any provision requiring the payment of money. 10. Default by the Subordinate Lender. If the Subordinate Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by the Subordinate Lender under this Agreement, the Senior Lender shall have the fight to all available legal and equitable relief. 11. Non-Approval of Subordinate Financing Terms. This Agreement does not constitute an approval by the Senior Lender or Fannie Mae of the terms of the Subordinate Loan or limit any of the Borrower's rights to negotiate the terms of the Subordinate Loan Documents with the Subordinate Lender. 12. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered), or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier), or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Continental Wingate Associates, Inc. Old Central Wharf 75 Central Street Boston, Massachusetts 02109-3497 Attention: Gardner Hall Fannie Mae Subordination Agreement (Affordable Housing) (Page 10 of 15) Florida Housing Finance Agency Form SUBORDINATE LENDER: City of Delray Beach, Florida 100 N.W. 1 st Avenue Delray Beach, Florida 33444 Attention: Susan A. Ruby, Esq. BORROWER: Auburn Trace, Ltd. 1301 SW 10th Avenue Building J Delray Beach, Florida 33444 Attention: Brian J. Hinners Either party may, by notice given pursuant to this Paragraph, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. 'This Agreement shall be binding upon and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's permission for the placement of the Subordinate Mortgage does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion. (d) Further Assurances, The Subordinate Lender agrees to execute and deliver all additional instruments and/or documents required by the Senior Lender in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. Fannie Mae Subordination Agreement (Affordable Housing) (Page 11 of 15) Florida Housing Finance Agency Form (f) Governing Law. This Agreement shall be governed by the laws of the State of Florida. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof, (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained in) the First Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained in) the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. WITNESSES: SENIOR LENDER: CONTINENTAL WINGATE ASSOCIATES, INC., Name: a Massachusetts corporation By: (SEAL) Name: Jeffrey M. Goodman Vice President Fannie Mae Subordination Agreement (Affordable Housing) (Page 12 of 15) Florida Housing Finance Agency Form SUBORDINATE LENDER: CITY OF DELRAY BEACH, FLORIDA, a Florida Name: municipal corporation By:. .(SEAL) Name: Name: Title: WITNESSES (as to all): BORROWER: AUBURN TRACE, LTD., a Florida limited partnership By: Auburn Trace Joint Venture, a Florida general Name: partnership, its General Partner By: Auburn Management, Inc., a Florida corporation, its General Partner By: .(SEAL) Name: Brian J. Hinners President By: Matrix Financial, Ltd., a Florida limited partnership, its General Partner By: MFL, Inc., a Florida corporation, its General Partner By: .(SEAL) Kenneth G. Dixon Vice President Fannie Mae Subordination Agreement (Affordable Housing) (Page 13 of 15) Florida Housing Finance Agency Form ACKNOWLEDGMENTS COMMONWEALTH OF MASSACHUSETTS, County of Suffolk, The foregoing instrument was acknowledged before me this ~ day of July, 1997, by Jeffrey M. Goodman, as the Vice President of Continental Wingate Associates, Inc., on behalf of said corporation. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires:. My Commission Number: STATE OF FLORIDA, County of , The foregoing instrument was acknowledged before me this day of July 1997, by , as the of the City of Delray Beach, Florida, on behalf of said city. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: Fannie Mae Subordination Agreement (Affordable Housing) (Page 14 of 15) Florida Housing Finance Agency Form STATE OF FLORIDA, County of , The foregoing instrument was acknowledged before me this day of July 1997, by Brian J. Hinners, as the President of Auburn Management, Inc., as the General Partner of Auburn Trace Joint Venture, General Partner of Auburn Trace, Ltd., a Florida limited partnership, on behalf of said corporation and said partnerships. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: STATE OF FLORIDA, County of , The foregoing instrument was acknowledged before me this day of July, 1997, by Kenneth G. Dixon, as the Vice President of MFL, Inc., as the General Partner of Matrix Financial, Ltd., General Partner of Auburn Trace Joint Venture, General Partner of Auburn Trace, Ltd., a Florida limited partnership, on behalf of said corporation and said partnerships. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: IX:: #38414 v2 (TN202!.WPD) Fannie Mae Subordination Agreement (Affordable Housing) (Page 15 of 15) Florida Housing Finance Agency Form This Instrument prepared by: David J. McPherson, Esquire Pepper, Hamilton & Scheetz LLP 1300 19th Street, N.W. Washington, D.C. 20036 When recorded return to: James F. Basque, Esquire James F. Basque, Chartered 1637 East Vine Street, Suite E Kissimme, Florida 34744 SUBORDINATION AGREEMENT (City of Delray Beach - $768,000.00 Note) THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of the day of July, 1997 by and among (i) CONTINENTAL WINGATE ASSOCIATES, INC., a Massachusetts corporation (the "Senior Lender"), (ii) CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation (the "Subordinate Lender"), and (iii) AUBURN TRACE, LTD., a Florida limited parmership (the "Borrower"). Recitals A. The Senior Lender has made or is making a loan (the "First Mortgage Loan") to the Borrower int he original principal amount of $3,470,000.00. The First Mortgage Loan is or will be secured by a first mortgage lien (the "First Mortgage") on a multifamily housing project located in the City of Delray Beach, Florida (the "Property"). The Property is more fully described in Exhibit A attached hereto. The Borrower's obligation to repay the First Mortgage Loan is evidenced by a Multifamily Noted dated July __, 1997 together with all addenda (the "First Mortgage Note"), and is due in full on August 1, 2022. B. The Borrower has requested the Senior Lender to permit the Subordinate Lender to keep in place a subordinate loan to Borrower in the original principal amount of $768,000.00 (the "Subordinate Loan") and to secure the Subordinate Loan by keeping in place a mortgage lien against the Property. C. The Senior Lender has agreed to permit the Subordinate Lender to keep the Subordinate Loan in place and to keep in place a subordinate mortgage lien against the Property, subject to all of the conditions contained in this Agreement. Fannie Mae Subordination Agreement (Affordable Housing) (Page 1 of 15) Florida Housing Finance Agency Form D. The Senior Lender intends to sell, transfer and deliver the first Mortgage Note and assign the First Mortgage to Federal National Mortgage Association ("Fannie Mae"). NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate Lender to keep in place the Subordinate Loan and to keep in place a subordinate mortgage lien against the Property, and in consideration thereof, the Senior Lender, the Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "First Mortgage Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the First Mortgage Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the First Mortgage Loan Documents for curing the default. "First Mortgage Loan Documents" means the First Mortgage Note and all other documents evidencing or securing the First Mortgage Loan. "Land Use Restriction Agreement" means the agreement dated as of June 29, 1989, and recorded in the land records where the Property is located, imposing certain occupancy, rent and other affordability restrictions on the Property. Fannie Mae Subordination Agreement (Affordable Housing) (Page 2 of 15) Florida Housing Finance Agency Form "Person" means an individual, estate, trust, partnership, corporation, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means the Person named as such in the first paragraph on page 1 of this Agreement. When Fannie Mae or any other Person becomes the legal holder of the First Mortgage Note, Fannie Mae or such other Person shall automatically become the Senior Lender. "Subordinate Lender" means the Person named as such in the first paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, the Land Use Restriction Agreement and all other documents evidencing and securing the Subordinate Loan. "Subordinate Mortgage" means the mortgage or deed of trust encumbering the Property as security for the Subordinate Loan, which is recorded in Official Records Book 6116, Page 521, Public Records of Palm Beach County, Florida. "Subordinate Note" means the Promissory Note dated June 29, 1989, as amended, issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate 2. Permission to Keep in Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the First Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep in place the Subordinate Mortgage against the Property (which is subordinate in all respects to the lien of the First Mortgage) to secure the Borrower's obligation to repay the Subordinate Note. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on Fannie Mae Subordination Agreement (Affordable Housing) (Page 3 of 15) Florida Housing Finance Agency Form said date, the provisions of the First Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. (a) The Borrower makes the following representations and warranties to the Senior Lender: (i) Subordinate Note. The Subordinate Note contains the following provision: The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated July __, 1997, in the original principal amount of $3,470,000.00 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order, to the extent and in the manner provided in that certain Subordination Agreement dated July __, 1997, between the payee of this Note, and the Senior Lender and Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreement"). The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement. (ii) Relationship of Borrower to Subordinate Lender and Servicer. Neither the Subordinate Lender nor the Senior Lender is an Affiliate of the Borrower. (iii) Term. The maturity date of the Subordinate Note is June 30, 2021. (iv) Subordinate Loan Documents. The executed Subordinate Loan Documents are in the exact form submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Fannie Mae Subordination Agreement (Affordable Housing) (Page 4 of 15) Florida Housing Finance Agency Form (b) The Subordinate Lender makes the following representations and warranties to the Senior Lender: (i) Subordinate Note. The Subordinate Note contains the following provision: The indebtedness evidenced by this Note is and shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated as of July __, 1997, in the original principal amount of $3,470,000.00 issued by Auburn Trace, Ltd., a Florida limited partnership, and payable to Continental Wingate Associates, Inc., a Massachusetts corporation ("Senior Lender"), or order, to the extent and in the manner provided in that certain Subordination Agreement dated as of July __, 1997, between the payee of this Note, and the Senior Lender and Auburn Trace, Ltd., a Florida limited partnership (the "Subordination Agreement"). The Mortgage securing this Note is and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Mortgage securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Mortgage securing this Note are subject to the restrictions and limitations set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the Subordinate Lender under the Subordination Agreement. (ii) Term. The maturity date of the Subordinate Note is June 30, 2021. (iii) Subordinate Loan Documents. The Subordinate Loan Documents have not been modified or amended since the execution thereof by the Subordinate Lender. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement (including but not limited to Paragraph 4(c) below), to the prior payment in full of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage is and shall be subject and subordinate in all respects to the Senior Lien, terms, covenants and conditions of the First Mortgage and to all sums advanced for the purposes of (x) protecting or further securing the lien of the First Mortgage, curing defaults by the Borrower under the First Mortgage Loan Documents, or (y) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). Fannie Mae Subordination Agreement (Affordable Housing) (Page 5 of 15) Florida Housing Finance Agency Form (b) Subordination of Subrogation Rights. The Senior Lender agrees that if, by reason of the advance payment by the Subordinate Lender of real estate taxes or the casualty insurance obligations of the Borrower to protect the Property and the Subordinate Lender, by reason of the Subordinate Loan Documents, acquired by right of subrogation or otherwise a lien on the Property, said amount advanced shall be senior to the lien of the First Mortgage only to the extent of the amount advanced, provided that the Subordinate Lender gives the Senior Lender prior written notice of its intent to advance sums for real property taxes and/or casualty insurance. (c) Payments Before First Mortgage Loan Default. Until the Subordinate Lender receives notice of a First Mortgage Loan Default, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After First Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a First Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent excluding, however, such sums which were due and owing and received by the Subordinate Lender prior to receipt of notice, or it otherwise acquires knowledge, of the First Mortgage Loan Default. The Subordinate Lender agrees that, after it receives notice of a First Mortgage Loan Default, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including, but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. (e) Receipt of Payment Not Permitted Hereunder. If, after the Subordinate Lender receives notice of a First Mortgage Loan Default, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the First Mortgage Loan Documents in such order and in such manner as set forth in the First Mortgage. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender written notice of each Subordinate Mortgage Loan Default in each case where the Subordinate Lender has given notice to the Borrower. The Senior Lender shall Fannie Mae Subordination Agreement (AffordaMe Housing) (Page 6 of 15) Florida Housing Finance Agency Form have the right, but not the obligation, to cure any such Subordinate Mortgage Loan Default within 30 days following the date of such notice. All amounts paid by the Senior Lender to the Subordinate Lender to cure a Subordinate Mortgage Loan default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Senior Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder, unless and until it has given the Senior Lender at least 45 days' prior written notice. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a default under the First Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First Mortgage Loan Documents in the same manner as in the case of any other default thereunder. 6. Default Under First Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender written notice of each First Mortgage Loan Default in each case where the Senior Lender has given notice to the Borrower. The Subordinate Lender shall have the right, but not the obligation, to cure any such First Mortgage Loan Default within 30 days following the date of such notice; provided, however, that the Senior Lender shall be entitled, during such 30-day period, to continue to pursue its remedies under the First Mortgage Loan Documents. All amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the First Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the First Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan Default becomes a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted Fannie Mae Subordination Agreement (Affordable Housing) (Page 7 of 15) Florida Housing Finance Agency Form to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any First Mortgage Loan Default to the satisfaction of the Senior Lender, any default under the Subordinate Loan Documents arising from such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such First Mortgage Loan Default had never occurred. 7. Conflict. The Borrower and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control: (i) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (ii) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the First Mortgage and the Subordinate Mortgage, respectively; and (iii) the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Mortgage. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure First Mortgage Loan Defaults pursuant to Paragraph 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of (i) a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"), or (ii) the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the First Mortgage remains a lien on the Property the following provisions shall apply: (1) the Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or aCtion relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain Fannie Mae Subordination Agreement (Affordable Housing) (Page 8 of 15) Florida Housing Finance Agency Form subordinate in all respects to the Senior Lender's rights under the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender. However, this paragraph or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over a Taking or a Casualty. (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the First Mortgage Loan) in the manner set forth in the First Mortgage; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents; provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds; provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail; and (3) the Subordinate Lender agrees to execute and deliver, at no expense to the Senior Lender, all documents, instruments, agreements or further assurances required to effectuate the provisions of this subsection. (c) Termination of Subordinate Mortgage. If, after the occurrence of a First Mortgage Loan Default, the Senior Lender acquires title to the Property pursuant to a deed in lieu of foreclosure, the lien of the Subordinate Mortgage shall automatically terminate upon the Senior Lender's acquisition of title, provided that (i) the Subordinate Lender shall have been given written notice of the First Mortgage Loan Default, and (ii) the Subordinate Lender shall not have cured the First Mortgage Loan Default within the 30-day period after the date of the notice referred to in clause (i), which notice may be given at any time. (d) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, (i) amend, modify, increase, extend, renew or replace the Subordinate Loan Documents or (ii) assign any interest in the Subordinate Loan. Any amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. Fannie Mae Subordination Agreement (Affordable Housing) (Page 9 of 15) Florida Housing Finance Agency Form 9. Modification of First Mortgage Loan Documents. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the First Mortgage Loan Documents, including any provision requiring the payment of money. 10. Default by the Subordinate Lender. If the Subordinate Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by the Subordinate Lender under this Agreement, the Senior Lender shall have the fight to all available legal and equitable relief. 11. Non-Approval of Subordinate Financing Terms. This Agreement does not constitute an approval by the Senior Lender or Fannie Mae of the terms of the Subordinate Loan or limit any of the Borrower's fights to negotiate the terms of the Subordinate Loan Documents with the Subordinate Lender. 12. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender: is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered), or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier), or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Continental Wingate Associates, Inc. Old Central Wharf 75 Central Street Boston, Massachusetts 02109-3497 Attention: Gardner Hall Fannie Mae Subordination Agreement (Affordable Housing) (Page 10 of 15) Florida Housing Finance Agency Form SUBORDINATE LENDER: City of Delray Beach, Florida 100 N.W. 1st Avenue Delray Beach, Florida 334~.4 Attention: Susan A. Ruby, Esq. BORROWER: Auburn Trace, Ltd. 1301 SW 10th Avenue Building J Delray Beach, Florida 33444 Attention: Brian J. Hinners Either party may, by notice given pursuant to this Paragraph, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. This Agreement shall be binding upon and shall inure to the benefit of the i'espective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's permission for the placement of the Subordinate Mortgage does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion. (d) Further Assurances. The Subordinate Lender agrees to execute and deliver all additional instruments and/or documents required by the Senior Lender in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. Fannie Mae Subordination Agreement (Affordable Housing) (Page 11 of 15) Florida Housing Finance Agency Form (f) Governing Law. This Agreement shall be governed by the laws of the State of Florida. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof, (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained in) the First Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure, or a deed in lieu of foreclosure, of (or the exercise of a power of sale contained in) the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. WITNESSES: SENIOR LENDER: CONTINENTAL WINGATE ASSOCIATES, INC., Name: a Massachusetts corporation By: .(SEAL) Name: Jeffrey M. Goodman Vice President Fannie Mae Subordination Agreement (Affordable Housing) (Page 12 of 15) Florida Housing Finance Agency Form SUBORDINATE LENDER: CITY OF DELRAY BEACH, FLORIDA, a Florida Name: municipal corporation By: (SEAL) Name: Name: Title: WITNESSES (as to all): BORROWER: AUBURN TRACE, LTD., a Florida limited partnership By: Auburn Trace Joint Venture, a Florida general Name: partnership, its General Partner By: Auburn Management, Inc., a Florida corporation, its General Partner By: .(SEAL) Name: Brian J. Hinners President By: Matrix Financial, Ltd., a Florida limited partnership, its General Partner By: MFL, Inc., a Florida corporation, its General Panner By: .(SEAL) Kenneth G. Dixon Vice President Fannie Mae Subordination Agreement (Affordable Housing) (Page 13 of 15) Florida Housing Finance Agency Form ACKNOWLEDGMENTS COMMONWEALTH OF MASSACHUSETTS, County of Suffolk, The foregoing instrument was acknowledged before me this day of July, 1997, by Jeffrey M. Goodman, as the Vice President of Continental Wingate Associates, Inc., on behalf of said corporation. Such person is personally known to me or has presented as identification. Notary Public - Commonwealth of Massachusetts (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: STATE OF FLORIDA, County of The foregoing instrument was acknowledged before me this ~ day of July, 1997, by .. , as the of the City of Delray Beach, Florida, on behalf of said city. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: Fannie Mae Subordination Agreement (Affordable Housing) (Page 14 of 15) Florida Housing Finance Agency Form STATE OF FLORIDA, County of , The foregoing instrument was acknowledged before me this day of July, 1997, by Brian J. Hinners, as the President of Auburn Management, Inc., as the General Partner of Auburn Trace Joint Venture, General Partner of Auburn Trace, Ltd., a Florida limited partnership, on behalf of said corporation and said partnerships. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: STATE OF FLORIDA, County of , The foregoing instrument was acknowledged before me this day of July, 1997, by Kenneth G. Dixon, as the Vice President of MFL, Inc., as the General Partner of Matrix Financial, Ltd., General Partner of Auburn-Trace Joint Venture, General Partner of Auburn Trace, Ltd., a Florida limited partnership, on behalf of said corporation and said partnerships. Such person is personally known to me or has presented as identification. Notary Public - State of Florida (NOTARY SEAL) Printed Name: My Commission Expires: My Commission Number: DC: #31M30 v2 (TN$02!.WPD) Fannie Mae Subordination Agreement (Affordable Housing) (Page 15 of 15) Florida Housing Finance Agency Form MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER ~/~'~I SUBJECT: AGENDA ITEM # ~F - REGULAR MEETING OF JULY 1, 1997 APPOINTMENTS TO THE DELRAY BEACH HOUSING AUTHORITY DATE: JUNE 23, 1997 At the June 17th meeting, W. Howard Ellingsworth and Kevin McCarty were appointed to the Community Redevelopment Agency. Letters of resignation have been received from both gentlemen, creating two vacancies on the Delray Beach Housing Authority for unexpired terms ending July 14, 1998 and July 14, 2000, respectively. Per statute, an appointee may not be an officer or employee of the City. Further, each housing authority must have at least one member who is a resident, current in rent, of the housing project or a person of low or very low income who resides within the housing authority's jurisdiction and is receiving rent subsidy through a program administered by the authority. There is a resident-member currently serving on the Housing Authority. The following individuals have submitted applications for consideration and were contacted to verify continued interest: Ronald Brito (currently on Board of Construction Appeals) Renee C. Dillon (currently on the Affordable Housing Advisory Committee) Betty J. Goodman Herman Green Robert Hutzler Isle Nathan Willie Potts, Jr. (currently on the Pompey Park Advisory Committee) Jay Slavin Pursuant to Commission direction, a check for code violations and municipal liens was conducted. None were found. According to Florida Statutes, members are appointed by the Mayor and ratified by the Commission. However, at the City Commission meeting of June 5, 1991, a consensus was reached whereby each Commissioner would, on an informal basis and according to the rotation procedure, make a recommendation to the Mayor as to Housing Authority appointees. For these appointments, the recommendations will be made by Commissioner Egan (Seat #2) for the unexpired term of July 14, 1998, and Commissioner Ellingsworth (Seat #3) for the unexpired term of July 14, 2000, with the actual appointments by Mayor Alperin. Please note that Co,..issioner Egan will not be present at the July 1st meeting and has asked that his recom~endation for appointment be deferred to July 15, 1997. Recommend appointment of a member to the Delray Beach Housing Authority to fill an unexpired term ending July 14, 2000, and that the remaining appointment be scheduled for the July 15, 1997, regular meeting. ref:agmemo3 June 24, 1997 City of Delray Beach Attn.: Mr. Dave Hardin, City Manager Via Telefax No.: 243-3774 Dear Mr. Hardin, Please accept this letter as formal notice of my resignation ti-om the board of directors o£the Delray Beach Housing Authority effective June 27, 1997· Sincerely,, W. Howard Ellingswonh/ '- CC: Anita Barba Kovin McCarry Vi~a 1~1 Mar Drive Delray Beach, FL 33483 FACSIMILE 243.-3774 Mr. David Harden Ci~' of Delray Beach 100 !N,WI I~ Aveaue Delray Beach: I:L 33444 Dear Mr. iHa~den: Please ac~pt this l~ter as my formal resignation as Vice Chairman and Board Member of the Delray//B6aCh Housing Authority which I would like to be effective hr~e 27. 1997. ,, ./2 Kevin 'McCarty ~/ TI_-IT~L F'. t3I CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION REGULAR MEETING - JULY 1, 199.7 - 6:00 P.M. PUBLIC HEARINGS - 7:00 P.M. COMMISSION CHAMBERS AGENDA ADDENDUM THE REGULAR AGENDA IS AMENDED BY ADDING THE FOLLOWING: 9.G MUNICIPAL LEAGUE APPOINTMENT TO THE CITIZENS ADVISORY COMMITTEE ON AIRPORT NOISE: Consider nomination of a member to the Citizens Committee on Airport Noise for consideration by the Palm Beach County Municipal League. .UENT.. BY:Xerox Telecopier 7021 ; 8-23-9? ,' 16:21 ; '"" +4072437168;# 1 Palm Ueatfl county MUNICIPAL LEAGUE P.O. 80X 1989, GOVERNMENTAL CENTER, WEST PALM BEACH, FLORIDA 33N)~ (407)355.4484 MEMORANDUM TO: Mayors and M~.nagers CITY MtI^:,~.- ..... FROM: Sack L. Homiman, ' ' Executive Director PALM BEACH COUNTY MUNICIPAL LEAGUE RE: Municipal League Appointment to the Citizens Advisory Commi~ on Airport Noise (1 Seat) for 3 year term. DATE: June 23, 1997 The Palm Beach County Municipal Leasue has been rcqumtext to appoim an individual to ~rv¢ on its bohalfto consider issues relating to noise impacts of oPerl~tions at the Palm Beach International Airport. Anyone having an interest to serve on thc Citizens Committe~ on Airport Noise please submit a Letter of Interest to the Municipal League no later than Th~sth~y, .I~y 3,1~7 so that the Board of Directors may consider your letter and make recommendations to the General Membership. Please supply a resume, reasons for interest or any other information you fe, eJ is appropriate for the Board's consideration. CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION REGULAR MEETING - JULY 1, 1997 - 6:00 P.M. PUBLIC HEARINGS - 7:00 P.M. COMMISSION CHAMBERS AGENDA ADDENDUM #2 THE REGULAR AGENDA IS AMENDED BY ADDING THE FOLLOWING: 9.H REQUEST FOR ADDITIONAL FUNDING/JULY 4TH FIREWORKS: Consider a request from the Delray Beach Joint Venture for an additional $2,000 for the July 4th fireworks display, due to increased barge costs. MEMORANDUM TO: David T. Harden, City Manager FROM: Marjorie Ferrer, Downtown Coorciinator DATE: June 30, 1997 SUBJECT: AGENDA ITEM - CITY COMMISSION MEETING JULY 1, 1997 REQUEST FOR ADDITIONAL FUNDING - FIREWORKS Action: City Commission is requested to approve an additional $2,000 funding for the fireworks show due to an increase in barge costs. _Background: We have recently received a quote for the barge for the fireworks display for $8,000. Our service agreement with Grucci includes a base payment of up to $6,000 for the barge and requires additional payment if the cost exceeds the $6,000. Attached is a revised invoice with a request to pay the additional $2,000. We are asking the City to pay the additional cost. Your consideration of this request is appreciated. DELRAY BEACH JOrNT VENTURE" Community Redevelopment Agency · Delmy Beach Chamber of Commerence · Downtown Development Authority 64 S.E. Fifth Avenue, Delray Beach, FL 33483 · Tel: 561-278-0424 · Fax: 561-278-0555 06/10/~'T---l'lTE 15:'06 FAX 5162869036 FIRE~¥0RKS GRUCCI ~001 TO: MAaR. GIE FERPdER TEL#: 561-278-0424 F~ =. 561-278-0555 DATE June 10, 1997 FROM: DO~A GRUCCI BUYER ~ OF PAGES: 1 (including this one) AS PER OUR PHONE CONVERSATION YESTERDAY .- ATTACHED PLEASE FIND A NEW INVOICE FOR TI-{E BUDGET OF THE PROGRAIVI.' ..... WE HAVE AGREED. TO' TAKE 5,000.00 OFF TIlE CONTP~,-iCT PRICE BRINGING TIlE DISCOL.rNTED BUDGET FROM 41,000.00 TO 36,000.00. AS PER 2E OF TIq]E FIREWORKS SERVICE AGREEIv[ENT DATED 6/28/9'6 TI--IE BA.P,.GE COST EXCEEDED TI-{E 6:000.00. I HAVE ALSO ATTACI-rED A LETTER FROM MARITIME TUG ANT) BARGE INDICATING A FEE OF 8,000.00 FOR TI-IE~ SERVICES FOR THE DATES OF 7/2-7/5/97. EW ADDITION TO THE 36,000.00 WE M'UST STILL RECEIVE THE 2,000.00 FOR THE .ADDITIONAL BARGE COST. AS WE DISCUSSED IN' OUR CONVERSATION ~,¥~ WII,L WORK VERY CLOSELY' %-ITH YOU TO HELP MAKE THE DELRAY BEACH PROGRAM TI-~ JEWEL OF SOUTH FLORIDA. AS VCE ARE CONTIDENT IT H_AS THE POTENTIAL TO GROW, ESPECLALLY WITH SU'N-N'Y 105 AND THE PALM BEACH POST'S INVOLVEMENT ,~TER THE 4TH WE MUST REYq]EW THE COST OF THE PROGRAM AND SEE HOW WE C._A_N_GET MORE OF THE EXPENSES COVERED THROUGH SPONSORSHIP. MARGIE IF.YOU COULD PLEASE SENT ME THE D~E~OSIT (~F11,700.00 THA/T'S DUE NOW, IT CERTAINrLy WOULD BE HELPFUL, AS I MU ST GIVE~iO~- --MONEY TO TI-{E t~ARGE CONiPANY. THAIWKS CC :TON'Y AUGELLO 'i Fireworks By Grucci, Inc. Office #: (516) 286-0088 One Gmcc[ Lane Marketing Fax #: (516) 286-9036 Brookhaven NY, 1 t 7'19 Operations Fax #: (516) 286-0802 06/10/97 TUE 15:07 F.~. 5162869036 ..: ...... .. , ~?\~'f 0..~-,~ :~'~C .~ ~ oo~ ,. '.:'~A~]T~ME TUG AND ~A~GE 9150 $. W. ENNSYLVANIA AVE, STtJA~ FLORIDA 3~g97 '" :N6vemb~r I2, t996 Fit'oworks by Grucci At!n: Tony Auqe~o __ _ Th~ you fo~ ~he oppo~tt~ty o.[ bidding on your'project,. ~. Tug and. B~g~ (Lo'~6 Lin~) $3,000,~ 2. Tug aha B~g~ approved 5fland ~ Thank you." Start R. I~.'aly ... FIREWORKS ElY GRUOOI~ INO, Manufacturers of Fine Fireworks Displays 1 Grucci Lane BROOKHAVEN, NY 11719-9423 " (516)286-0088*FAX(516)286-9036 BILL TO: SHOW LOCATION: DOWN TOWN JOINT VENTURE 4TH AT DELRAY BEACH 64 SE 5TH AVE. BARGES OFF OF DELRAY BEA DELRAY BEACH, FL 33483 DELRA¥ BEACH, FL 407-279-1384/Fx 278-0555 ATTN: MARGIE FERRER. 2i53 t 5/i6/96 2317 FL 7/ 4/97 NATNL 07/05/97 THIS INVOICE REPRESENTS THE TOTAL OBLIGATION FOR YOUR FIREWORKS DISPLAY CONTRACT AND SERVICE .- AGREEMENT TO BE DISPLAYED ON 7/ &/97. FIREWORKS DISPLAY CONTRACT 35,000.00 Service Agreement 10,000.00 FULL CONTRACT PRICE &5,000. O0 LESS: DISCOUNT 9, O00.O0- REQUIRED DEPOSIT 30% OF THE FIREWORKS CONTRACT . $11,700.00 SERVICE AGREEMENT $ 5,000.00 _-$16,700.00 / TOTAL DEPOSIT T~{E BALANCE OF $19,300.00 IS DUE AND PAYABLE ON OR BEFORE JULY 4, 1997. ADOITIG[",¢~ BARGE EXPENSF~ - MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITYMhAIAGER~ SUBJECT: AGENDA ITEM # /~ ~ - MEETING OF JULY 1, 1997 ORDINANCE NO. 26-97: DATE: JUNE 27, 1997 This is second reading for Ordinance No. 26-97 designating the Trinity Evangelical Lutheran Church Chapel, located at 400 N. Swinton Avenue as a local historic site to be listed in the Local Register of Historic Places. Constructed in 1904 the chapel is the oldest existin9 church building in the City. In 1965 the building was moved from its original site on the southeast corner of N.E. 1st Street and 5th Avenue to its present location. The building served as the congregation's place of worship until the new church was constructed in 1971. Since that time it has been used as the library for the Lutheran School and as a temporary home for the Haitian Emmanuel Lutheran congregation. The chapel is the only building in the complex being considered for historic designation. The Historic Preservation Board considered this item at a Public Hearing on June 4, 1997 and voted unanimously to recommend historic designation. At first reading on June 17th, 1997, the ordinance was passed by a vote of 5-0. I recommend that Ordinance No. 26-97 be approved on second and final reading. ORDINANCE NO. 26-97 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, DESIGNATING THE TRINITY EVANGELICAL LUTHERAN CHURCH CHAPEL, LOCATED AT 400 NORTH SWINTON AVENUE, AS MORE PARTIC~LY DESCRIBED HEREIN, AS A LOCAL HISTORIC SITE TO BE LISTED IN THE LOCAL REGISTER OF HISTORIC PLACES; PROVIDING FOR THE AMENDMENT OF THE "ZONING MAP OF DELRAY BEACH, FLORIDA, 1994" TO SHOW THE HISTORIC DESIGNATION IN AN OVERLAY MANNER; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, Section 4.5.1 of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach provides for the designation and protection of historic sites; and WHEREAS, the Trinity Evangelical Lutheran Church of the City of Delray Beach initiated the nomination of the property hereinafter described for historic designation, and a designation report was subsequently prepared; and WHEREAS, the Historic Preservation Board held a duly noticed public hearing in regard to the historic designation on June 4, 1997, and voted unanimously to recommend that the property described herein be designated a local historic site; and WHEREAS, the City Commission of the City of Delray Beach has conducted a duly noticed public hearing in regard to the designation of the property described herein as a local historic site. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the following described property in the City of Delray Beach, Florida, is hereby designated as a local historic site in accordance with and under the provisions of Section 4.5.1 of the Land Development Regulations of the City of Delray Beach, to-wit: THE TRINITY EVANGELICAL LUTHERAN CHURCH CHAPEL, located on a portion of the Trinity Evangelical Lutheran Church property at 400 North Swinton Avenue, Delray Beach, Florida; more particularly described as the East 1/2 of Lot 12, Section 8-46-34, Delray Beach, Palm Beach County, Florida. The chapel is the only building in the church complex receiving an historic designation. The church complex is located at the northwest corner of Lake Ida Road and Swinton Avenue. Section 2. That the Planning Director of said City shall, upon the effective date of this ordinance, amend the Zoning Map of the City of Delray Beach, Florida, to show the historic designation, in an overlay manner. Section 3. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 4. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the 1st day of July , 1997. ATTEST: ~~ -- JCity Cl~k r First Reading June 17, 1997 Second Reading July 1, 1997 - 2 - Ord. No. 26-97 II. LOCATION MAP N.W. 9TH ST, · . IH 51. ~,LUh~bl~ BL SH BOUt N.W. 7TH ST. N.E. 7~ ST. L~E ~RR. N.W. 6~ ST. N.E. 6~ ST. ~ N.E. 5TH WOOD LANE KIN( I N.E. 5TH CT. -- CHAPEL/ LIBRARY SCOUT ~u N.E. 5TH ST. HUT TRINITY ~ ~ J LUTHERAN D~ CASON ', METHODIST ' N.E. 3RD ST. N.W. 5RD ST. 3UILDING I ~ -CHAPEL/LIBRARY LOCATION- PLANNING CITY O¢ OELRAY B£ACH, FL A-SANCTUARY B-FELLOWSHIP HALL D-CLASSROOMS -- L)IGI~A/ ~45£ ~ $~JPEt/ -- MAP REF: LIdA32 THRU: DIANE DOMINGUEZ, DIRECT. OR DEPARTMENT OF PLANNING AND ZONING FROM: PAT CAYCE, HISTORIC PRESERVATION PLANNER SUBJECT: MEETING OF JUNE 17, 1997 FIRST READING OF AN ORDINANCE TO DESIGNATE THE TRINITY LUTHERAN CHAPEL, 400 N. SWINTON AVENUE TO THE LOCAL REGISTER OF HISTORIC PLACES. The action requested of the City Commission is that of approval on first reading of an ordinance designating the Trinity Lutheran Chapel to the Local Register of Historic Places. Constructed in 1904 as the house of worship for the Trinity Evangelical Lutheran Church of Delray, the chapel is the oldest existing church building in the City. The building was moved from its original site on the southeast corner of N.E. 1st Street and N.E. 5th Avenue to its present location, 400 N. Swinton Avenue, in 1965 and served as the congregation's place of worship until the new church was constructed in 1971. Since 1971 it has been used as library for the Trinity Lutheran School as well as a temporary home for the Haitian Emmanuel Lutheran Congregation. In 1938 the simple wood vernacular church was remodeled and enlarged by the addition of a vestibule, decorative entrance steps and a rear extension. The building's exterior was stuccoed and five decorative buttresses were added to the north and south elevations. Beginning in 1940, with the gift of one stained glass window, the church began to replace the original double hung windows. The beautiful stained glass panels which now grace all of the window openings were installed, over time, as they were donated to the church. Though enlarged City Commission Documentation Trinity Lutheran Chapel, Historic Status Page 2 by the front and rear additions during the 1938 renovation, the chapel retains a great deal of its original vernacular feeling and appearance. Trinity Lutheran Chapel is located on a portion of the Trinity Evangelical Lutheran Church complex and is zoned Community Facility (CF). The legal description of the church complex is Section 8-46-34, Delray Beach, East 1/2 of Lot 12. The chapel is the only building in the complex being considered for historic designation. If the church complex expands requiring relocation of the chapel on the church property no loss of historic status will occur. The church initiated the request for the chapel's designation. Additional background and analysis is provided in the attached designation Report. The Historic Preservation Board considered this item at a Public Hearing on June 4, 1997. After discussion, the Board voted unanimously to recommend historic designation to the City Commission. By motion, approve the ordinance designating the Trinity Lutheran Chapel, 400 N. Swinton Avenue, to the Local Register of Historic Places Attachment: Trinity Lutheran Chapel Designation Report. flle/u/ww/trin-ccd DESIGNATION REPORT TRINITY LUTHERAN CHURCH CHAPEL/LIBRARY HISTORIC PRESERVATION BOARD DELRAY BEACH, FLORIDA -1- DESIGNATION REPORT TABLE OF CONTENTS I. GENERAL INFORMATION II. LOCATION MAP III.EXECUTIVE SUMMARY IV. ARCHITECTURAL SIGNIFICANCE V. HISTORICAL AND CULTURAL SIGNIFICANCE VI. STATEMENT OF SIGNIFICANCE VII.BIBLIOGRAPHY AND SOURCES -2- I. GENERAL INFORMATION Present Location: 400 North Swinton Avenue, Delray Beach, Palm Beach County, Florida. Moved to present location in 1965. Original Location: Southeast comer of N.E. 1st Street and N.E. 5th Avenue; Block 110, Lots 1 & 2. Date of Construction: 1904 Architect: Unknown Builder: Constructed by the men of the congregation, under the direction of the Building Committee; Mr. Adolph Hoffman, Mr. C.H. Miller and Mr. J.S. Wuepper Present Owner: Trinity Evangelical Lutheran Church Present Use: School Library and Temporary Chapel for the Haitian Emmanuel Congregation Present Zoning: Community Facility (CF) Legal Description: The Chapel is located on a portion of the Trinity Lutheran Church complex; Section 8-46-34, Delray Beach, East 1/2 of Lot 12. The chapel is the only building in the church complex being considered for historic designation. If the church complex expands, requiring relocation of the chapel on the church property, no loss of historic status will occur. Property Control N umber:. 12-43-46-08-21-000-1340 Classification for Designation: Architectural and Social Significance -3- III. EXECUTIVE SUMMARY Constructed in 1904 as the house of worship for the Tdnity Evangelical Lutheran Church of Delray, the chapel is the oldest existing 'church building in the City. The building was moved from its original site on the southeast comer of N.E. 1st Street and N.E. 5th Avenue to its present location, 400 N. Swinton Avenue, in 1965 and served as the congregation's place of worship until the new church was constructed in 1971. Since 1971 it has been used as library for the Trinity Lutheran School as well as a temporary home for the Haitian Emmanuel Lutheran Congregation. In 1938 the simple wood vernacular church was remodeled and enlarged by the addition of a vestibule, decorative entrance steps and a rear extension. The building's exterior was stuccoed and five decorative buttresses were added to the north and south elevations. Beginning in 1940, with the gift of one stained glass window, the church began to replace the original double hung windows. The beautiful stained glass panels which now grace all of the window openings were installed, over time, as they were donated to the church. Though enlarged by the front and rear additions during the 1938 renovation, the chapel retains its original window openings, front door location and roof pitch. IV. ARCHITECTURAL SIGNIFICANCE The Trinity Lutheran Chapel is the oldest existing church building in the City. The chapel, as it is referred to today, was constructed as the church and original house of worship for the Trinity Lutheran Congregation of Delray Beach. The church was constructed in 1904 and was originally located at the southeast · corner of N.E. 1st Street and N.E. 5th Avenue. Twenty two feet wide, fifty feet long and twelve feet high, the building was built as a wood frame vernacular structure with wood clapboard siding and set on a pier foundation. The front elevation faced West and had centered double doors with two windows flanking the entrance doors. Four wooden steps, without a railing, led to the double doors. The roof was a single gable running east and west and was surfaced with wood shingles. The roof overhang was minimal and no shelter was provided over the entrance doors. The north elevation had four symmetrically spaced windows and the south elevation was identical. There are no photographs to indicate the original east (rear) elevation. The land on which the chUrch first stood, Lots 1 and 2 of Block 110, was purchased for $75 from Henry Blackmer, a surveyor who came from Michigan with the first white settlers in 1895. Mr. Blackmer then donated one half of the price of the lots, $37.50, to the church building fund. Henry Flagler, founder of the Florida East Coast Railroad also donated $100 to the fund. It was Flagler's policy to donate land or funds to establish religious institutions in the towns through which his railroad was expanding. The chapel was constructed by the -5- men of the congregation under the direction of the building committee; Mr. Adolph Hoffman, Mr. C.H. Miller and Mr. J.S. Wuepper. The total cost of construction was estimated and budgeted for $950. Construction began in August of 1904 and the building waS completed by December of the same year, when the first child of the congregation, William Hoffman, was baptized on December 4, 1904. The interior of the church was finished with painted wood paneling and a used organ was purchased from. Mr. Stiding of the Stirling Commissary for $15. When the church was built, the congregation could not afford to buy standard pews so simple wood benches were built. Later, backs were installed on the benches for the ladies' side of the aisle, however, the men found the benches with backs much more comfortable and from time to time they too used the ladies' pews. In 1913 Mr. Wuepper, of the building committee, was asked to construct backs for all of the pew benches. Electricity came to Delray in 1914, and by 1915 the church was electrified for a cost of less than $25. In 1919 Trinity decided to lay a sidewalk 50' in length in front of the church "providing the town would give a quit claim deed not to collect any more money from the church". Also in 1919 the congregation started collecting money to build a steeple, thus reviving a resolution passed two years earlier, unfortunately, though the proposal was revisited many times, the steeple was never constructed. In 1923 the congregation replaced the 19 year old roof but not with wood shingles, as in 1916 after a serious tire, the City required that all roofs be clad in metal, tile or a composition material. On Sunday afternoon, September 16th the disastrous hurricane of 1928 struck and the church was tilted off its foundation. This caused such serious damage that the congregation voted to.demolish the building. Just as demolition was to occur, along came a Mr. Reed from Miami who offered to repair the church for $400. When the work was completed it was felt that the restored structure was sounder than it was before the hurricane damage. Sometime after 1932 a photograph of the south elevation shows that the rectangular windows of the church's south elevation had been given a decorative Gothic arched header, which leads to speculation that this trim was added to the north elevation as well. In 1938, with the Great Depression on the wane, the congregation began a building fund to construct a new and larger church. Plans, in the Gothic Revival style, were drawn up by Samuel Ogren, Delray's most prominent and prolific architect, the new building was to cost $12,000. However, the new building was never constructed as only '$500 in pledges could be raised and it had been decided that the work could not be started until $3,000 was pledged. By July of 1938 it was decided to remodel the old building once more. The building was moved slightly to the rear of the lot and a new vestibule, with a secondary gable roof, was added to the front elevation and the church was enlarged to the rear with an additional window constructed on both the north and south elevations. Five decorative buttresses were added to the north and south facades and the -6- exterior of the building was stuccoed. The cornerstone for the remodeled church was laid on July 31, 1938. With the completion of the landscaping, which was donated by a member of the congregation, Mike Blank of Blank's Nursery, Trinity Church had a totally new look. The chapel's beautiful stained glass windows were installed as they were donated starting in 1940 when the first window, depicting Christ in Gethsemane, was presented by Mr. and Mrs. John Schoeller. It is in the shape of a Gothic arch and is located directly over the altar. There are five 30' x 67' rectangular windows on each side wall of the chapel and all have an unusual 8" high hinged transom opening at the bottom of the window to allow for cross ventilation, in the days before air conditioning. The windows depict scenes from the Bible and the donor or the commemorative is listed when shown. From Front to Rear South Wall North Wall The Children in the Meadow The Good Shepherd Commemorative, Adolf Hofman Calming the Waters on the Sea of Storm on the Sea of Galilee Galilee Commemorative, Rev & Mrs. Arno Thieme Christ is Risen Mary at the Tomb of Christ Donor, Mr. & Mrs. John Schoeller Donor, Rose Marie & Fredrick Wriedt John Baptizing Christ Teaching in the Temple Donor, Mr. and Mrs. John Schoeller Angel Guiding the Shepherds Christ in the Manger Donor, Trinity Walther League Donor, Mr. & Mrs. John Blank It is interesting to note that the windows bear a subject theme in pairs across the aisle from each other. For example the Good Shepherd across from The Children in the Meadow; Storm on the Sea of Galilee across from Calming the Waters on the Sea of Galilee. The vestibule has two small 12" x 46" windows on either side of the front entrance doors. On the north is Christ with a Lantern, or Light of the World and on the south is Christ Welcoming the Flock. In the vestry to the north of the altar are two 30" x 67" windows with geometric stained glass panes; one located on the north elevation and one on the west. -7- Unfortunately, at the time of this report the stained glass artist remains unknown. Though the windows appear to be, by coloring, design and technique, the work of one firm, further research will be needed to determine their origin. The church sustained minimal damage, $500 worth of repairs, during the hurricane of 1947 and otherwise remained in stable, condition till its relocation to .its current site in 1965. V. HISTORICAL AND CULTURAL SIGNIFICANCE Adolf Hofman was the first person of the Lutheran faith in the area. He was bom in Germany and, while a student at an agricultural college in Stuttgart, became aware of the unique farming opportunities in south Flodda. He and his fdend, Frank Hailer, a Roman Catholic, decided to migrate to Florida and arrived in Delray Beach (formerly Town of Linton) in 1895 the same year that the first Michigan settlers arrived, and only one year after the area had been purchased by William Linton. During the next few years Mr. and Mrs. Hofman constructed a house on N.E. 7th Avenue and Mr. Hofman conducted Lutheran readings at their home. In 1898 an ordained Lutheran minister held services for the first time ever in Delray. As only one minister served the southem half of the state, official services were held on an annual and sometimes semiannual basis. A number of the early Michigan pioneers were members of the Lutheran faith, thus greatly expanding the little congregation as they continued to settle in Delray. On July 17, 1904, during a reading at the J.S. Wuepper's home, the little group of worshipers determined to establish a formal congregation for the purpose of building a church and requesting a resident pastor from the Lutheran Church-Missouri Synod. On August 11, 1904 the' congregation decided on a name, and as the readings and services were held in the German language, the following name was proposed, 'Evangelische Lutherische Dreieinigkeits Gemeinde, Delray Florida", (Trinity Evangelical Lutheran Church of Delray, Florida, the name of the town was changed from Linton to Delray in 1901). While the church was under construction in 1904 the congregation decided to rent a small house nearby to use as a school for the children. The children were to attend public school in the mornings and in the afternoon to receive instructiOn in religion and in the German language from the pastor. German was the usual language for church services, with English services held from time to time, until the outbreak of W.W.I. Though only on a part time basis, this can be construed as the real beginning of the parochial school movement in Delray. The German language school closed at the outbreak of W.W.I, however the congregation had always harbored a desire to open a church sponsored school as an alternative to public school. In September of 1948 a new school was -8- opened in the parish house directly south of the church, thirty three students in kindergarten and first grade were enrolled By 1952 the school conducted classes through 4th grade with more than sixty pupils enrolled, and by 1955 a separate school had been erected on property to the south of the church. However, within a few years it was apparent that more room was needed for the school, and the church purchased its present property, which consisted of the Weir estate at the comer of N.W. 4th Street and Swinton Avenue and the hydroponic vegetable farm owned by Dr. K. M. Davis which was just to the west. In 1963 the groundbreaking ceremony for the new school took place. In 1965 the congregation put its property on N.E. 5th Avenue up for sale and the church was moved to the Swinton Avenue site and served as the congregation's house of worship until a new church was constructed in 1971. The original church became known as the chapel and is used as a library and for the school, and for the past several years has served as an interim house of worship for the Haitian Emmanuel Lutheran Congregation. VI. STATEMENT OF SIGNIFICANCE Tdnity Lutheran Chapel is the oldest existing church building in the City. With the exception of the vestibule and the rear addition which were added in 1938, the footprint of the original structure is intact. The side elevations retain their original fenestration patterns except for the two windows which were added with the rear addition. Though the building has been stuccoed and the original windows have been replaced with stained glass, the simple interior presents the visitor with a visual reminder, in both size and proportion, of the City's early vemacular church architecture and reinforces the role religion played in the life of the pioneers of the City. The City had other eady churches in the same vernacular style, however this is the only remaining example of 'the genre. Historically, it is important to note that it was in this building that the congregation voted to establish a church school in 1904, thus, though only on a part time basis, establishing the first parochial school in the City. The Tdnity Chapel, for its architectural, historical and cultural associations with the early beginnings of the City, from pioneering days to the present, is worthy of the protection and consideration afforded it by designation to the Local Register of Historic Places. Criteria for Designation To qualify as an historic district the properties must fulfill one or more of the criteria set forth in LDR Section 4.5.1(B)(2) or (3). Trinity Lutheran Chapel more than meetsthe criteria for designation and fulfills the qualifications as follows: Section 4.5.1(B)(2) A building will be deemed to have historical or cultural significance if it meets one or more of the following criteria: -9- (d) Exemplifies the historical, political, cultural, economic, or social trends of the community in history. · The chapel exemplifies the social and cultural importance of religious institutions in the development of the community. The chapel was constructed only nine years after the first settlers arrived in the south Florida wilderness. (e) Is associated in a significant way with a past or continuing institution which has contributed substantially to the life of the City. · The chapel is significant for its association with the Trinity Lutheran Church of Delray Beach. Additionally, it 'was the congregations desire to establish a church school which began the parochial school movement in the City. Section 4.5.1(B)(3) A building is deemed to have architectural or aesthetic significance if it fulfills one or more of the following criteria: (a) Portrays the environment in an era of history characterized by one or more distinctive architectural styles. · The chapel's odginal simple unadorned vernacular style is typical of the construction methods in the early years of the community. (b) Embodies those distinguishing characteristics of an architectural style, period, or method of construction. · The chapel, as originally constructed, incorporated all of the characteristics of the City's early vemacular style. As it stands today it represents, through it's decorative buttresses and stained glass windows, the ideals of Gothic revival ecclesiastical architecture which was popular in the 1930s. It is also an example of a simple building which was renovated to reflect the changing social mores while creating additional space for the growing congregation. -10- VII. BIBLIOGRAPHY AND SOURCES Kuolt, Milton G. Sevel3ty-Five Years of Memories. Trinity_ Evangelical Lutheran Church, Delray Beach, Florida. Hackensack, NJ. Custom Books, Inc. Britt, Lora Sinks. My Gold Coast. South Florida in the Earlier Years. Palatka, Florida, Brittany House Publishers. Information for Home Seekers. Picturesque Delray. 1915, Delray Beach, FL. Delray Beach News Journal, March 4, 1938 Delray Beach News Joumal, July, 8, 1938 Report prepared March, 1997 by Patricia Cayce, Histodc Preservation Planner, City of Delray Beach. file/u/cayce/ww/trinity -11 - ' i .i.~' ~o8 ~ MAPPING & GEOGRAPHIC INFORMATION SERVICE NaOt~ ~tt'~ SU~ VS CON~UC t t. L, The Church and Parsonage-About 1909 Trinity Lutheran Church after the 1928 Hurricane MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER~I AMENDMENT AND REZONING FOR DELRAY BEACH FARM SUPPLY) DATE: JUNE 23, 1997 This is second reading and a quasi-judicial (as to zoning) public hearing for Ordinance No. 25-97 which changes the Future Land Use Map (FLUM) designation from Commerce to General Commercial for the Delray Beach Farm Supply property, and rezones it from MIC (Mixed Industrial and Commercial) District to GC (General Commercial) District. The site is located at the northwest corner of Atlantic Avenue and the CSX Railroad, immediately west of 1-95, and contains 0.39 acres. The property is currently occupied by a farm supply store. If the FLUM amendment and rezoning are approved, it is anticipated that a site plan modification request will follow to establish a country and western bar. Please refer to the staff report for additional background and analysis. The Planning and Zoning Board considered this matter at a public hearing on May 19, 1997, and voted unanimously to recommend that the request be denied based upon a failure to make positive findings with respect to Future Land Use Element Policies A-1.4 and A-1.6, and Traffic Element Policy A-5.3 of the Comprehensive Plan, LDR Section 3.3.2(C) (Performance Standards), and LDR Section 2.4.5(D) (5) (Findings), and based upon deficiencies in the storage capacity of the turn lane at the Congress Avenue and Atlantic Avenue intersection, and deficiencies in on-site parking that is available for the subject property. At second reading of Ordinance No. 25-97 on June 17th, the applicant requested and the Commission granted a postponement of the formal hearing to the date certain of July 1, 1997. I recommend that Ordinance No. 25-97 be denied on second and final reading based upon the recommendation of the Planning and Zoning Board. ref:agmemo9 ~£. ~/~3~ ~ ~ FAILED ON SECOND/FINAL READING - JULY 1, 1997 ORDINANCE NO. 25-97 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, CHANGING THE FUTURE LAND USE MAP DESIGNATION FROM COMMERCE TO GENERAL COMMERCIAL, AND REZONING FROM MIC (MIXED INDUSTRIAL AND COMMERCIAL) DISTRICT TO GC (GENERAL COMMERCIAL) DISTRICT, FOR LOT 1, OWEN'S COMMERCIAL SUBDIVISION AS THE SAME IS MORE PARTICULARLY DESCRIBED HEREIN, LOCATED AT THE NORTHWEST CORNER OF ATLANTIC AVENUE AND THE CSX RAILROAD, IMMEDIATELY WEST OF 1-95; ELECTING TO PROCEED UNDER THE SINGLE HEARING ADOPTION PROCESS FOR SMALL SCALE LAND USE PLAN AMENDMENTS; AND AMENDING "ZONING MAP OF DELRAY BEACH, FLORIDA, 1994"; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the property hereinafter described is designated on the Future Land Use Map (FLUM) in the Comprehensive Plan for the City of Delray Beach, Florida, as Commerce; and WHEREAS the property hereinafter described is shown on the Zoning District Map of the City of Delray Beach, Florida, dated April, 1994, as being zoned MIC (Mixed Industrial and Commercial) District; and WHEREAS, at its meeting of May 19, 1997, the Planning and Zoning Board for the City of Delray Beach, as Local Planning Agency, reviewed this item at a public hearing and voted unanimously to recommend denial of the small scale FLUM amendment and rezoning, based upon a failure to make positive findings; and WHEREAS, the City Commission of the City of Delray Beach, Florida, finds that the change is not inconsistent with the Comprehensive Plan; and WHEREAS, it is appropriate that the Future Land Use Map in the Comprehensive Plan be amended to reflect the revised land use designation, and that the Zoning District Map of the City of Delray Beach, Florida, dated April, 1994, be amended to reflect the revised zoning classification. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: FAILED ON SECOND/FINAL READING - JULY 1, 1997 Section 1. That the legal description of the subject property is as follows: Lot 1, Owen's Commercial Subdivision, according to the Plat thereof as recorded in Plat Book 74, Pages 130-131 of the Public Records of Palm Beach County, Florida. The subject property is located at the northwest corner of Atlantic Avenue and the CSX Railroad, immediately west of 1-95; containing 0.39 acres, more or less. Section 2. That the Future Land Use Map in the Comprehensive Plan of the City of Delray Beach, Florida, is hereby changed to reflect a land use designation of General Commercial for the subject property. Section 3. That the City of Delray Beach elects to make this small scale amendment by having only an adoption hearing, pursuant to Florida Statutes Section 163.3187(1) (c)4. Section 4. That the Zoning District Map of the City of Delray Beach, Florida, dated April, 1994, is hereby amended to reflect a zoning classification of GC (General Commercial) District for the subject property. Section 5. That the Planning Director of said City shall, upon the effective date of this ordinance, amend the Zoning Map of the City of Delray Beach, Florida to conform with the provisions of Section 4 hereof. Section 6. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 7. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. - 2 - Ord. No. 25-97 FAILED ON SECOND/FINAL READING - JULY 1, 1997 Section 8. That this ordinance shall become effective thirty-one (31) days after adoption, unless the amendment is challenged pursuant to Section 163.3187(3), F.S. If challenged, the effective date of this amendment shall be the date a final order is issued by the Department of Community Affairs, or the Administration Commission, finding the amendment in compliance with Section 163.3184, F.S. No development orders, development permits, or land uses dependent on this amendment may be issued or commence before it has become effective. If a final order of noncompliance is issued by the Administration Commission, this amendment may nevertheless be made effective by adoption of a resolution affirming its effective status, a copy of which resolution shall be sent to the Department of Community Affairs, Bureau of Local Planning, 2740 Centerview Drive, Tallahassee, Florida 32399-2100. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 1997. MAYOR ATTEST: City Clerk First Reading June 3, 1997 June 17, 1997 (continued to date certain of 7/1/97) Second Reading July 1~ 1997 ~Motion to Approve FAILED TO PASS) - 3 - Ord. No. 25-97 FAILED ON SECOND/FINAL READING - JULY 1, 1997 AMBRO', DR. COM PALM TRAN FACILITY --1 MDR ),.w. ,~, ~,. oo, ~,~,~,~o.~ w~ GC COM "°~' COMM. PLAZA SHAW TRUCKING N.W. 2ND ST. CHEVRON RINKER MA TERIA L S CONGRESS C ~°~ C M OS DR. ANDRES WAY CONGRESS CF-P PARK N ~ - FUTURE LAND USE MAP AMENDMENT- PLANNINC DIrPARTMENT FROM: COMMERCE TO: GENERAL COMMERCE CITY OF D[LRAY 8£ACH, FL -- D/Gl[AZ ~4~[ ~ E)'~TEM -- MAP REt: LM152 RM-7 o~ PALM TRAN RM-? CF FA CIL I TY '~ST ST. 00N FRANCISCO'S WAY RM GC COMM. PLAZA SHAW 9~ TRUCKING ,L W. 2ND ST. CHEVRON RINKER MA TERIAL$ MI(: CONGRESS SQUARE CD PC OS DR. ANDRES WAY CONGRESS CF PARK N ~ - REZONING - PLANNING DEPARTMENT FROM: MIC (MIXED INDUSTRIAL & COMMERCIAL) TO: GC (GENERAL COMMERCIAL) CITY Q~ OELRAY BEACH, FL TO: DAVID T. HARDEN, CITY MANAGER SUBJECT: MEETING OF JUNE 3, 1997 SMALL-SCALE FUTURE LAND USE MAP AMENDMENT FROM COMMERCE TO GENERAL COMMERCIAL. AND REZONING FROM MIC (.MIXED INDUSTRIAL AND COMMERCIAL) TO GC (GENERAL COMMERCIAL) FOR PROPERTY LOCATED AT THE NORTHWEST CORNER OF ATLANTIC AVENUE AND THE CSX RAILROAD. IMMEDIATELY WEST OF 1-95. The action requested of the City Commission is that of a.O. ELO..V~ on first reading of an ordinance changing the Future Land Use Map designation from Commerce to General Commercial, and rezoning from MIC (Mixed Industrial and Commercial) to GC (General Commercial) for the Country and Western Bar of Delray Beach. The subject property is located at the northwest comer of Atlantic Avenue and the CSX Railroad, immediately, west of 1-95. The subject property consists of Lot 1, Owens Commercial Subdivision, containing 0.39 acres, at the south end of the overall 3 lot subdivision. The subject property is currently occupied by a farm supply store (Delray Beach Farm Supply, Inc.). The building contains 5,380 sq.ft, of wholesale/warehouse space and 1,793 sq.ft, of retail space. The proposal is to change the Future Land Use Map designation for the property from Commerce to General Commercial and City Commission Documentation Meeting of May 6, 1997 Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC for the Country & Western Bar of Delray Beach Page 2 rezone the property from MIC (Mixed Industrial and Commercial) to GC (General Commercial). If the FLUM amendment and rezoning are approved, it is anticipated that a site plan modification request will follow to establish a country and western bar. Additional background and an analysis of the request is found in the attached Planning and Zoning Board Staff Report. At its meeting of May 19, 1997, the Planning and Zoning Board held a public hearing in conjunction with review of the requests. There was public testimony both in support of and opposition to the requests. The Board had concerns with potential parking and traffic problems; and that there was no compelling reason to change the FLUM designation and zoning. The Board then voted 7-0 to recommend to the City Commission denial of the Small-Scale Future Land Use Map Amendment from Commerce to General Commercial and the rezoning request from MIC to GC based upon a failure to make positive findings with respect to Future Land Use Element Policies A-1.4 and A-1.6, and Traffic Element Policy A-5.3 of the Comprehensive Plan, LDR Section 3.3.2(C) (Performance Standards), and LDR Section 2.4.5(D)(5) (Findings), and based upon deficiencies in the storage capacity of the turn lane at the Congress Avenue and Atlantic Avenue intersection, and deficiencies in on-site parking that is available for the subject property. As this is a quasi-judicial matter, it is recommended that the City Commission defer taking testimony, and approve the item on first reading. It is further recommended that on second reading the City Commission deny the Small- Scale Future Land Use Map Amendment from Commerce to General Commercial and the rezoning request from MIC to GC based upon a failure to make positive findings with respect to Future Land Use Element Policies A-1.4 and A-1.6, and Traffic Element Policy A-5.3 of the Comprehensive Plan, LDR Section 3.3.2(C) (Performance Standards), and LDR Section 2.4.5(D)(5) (Findings), and based upon deficiencies in the storage capacity of the turn lane at the Congress Avenue and Atlantic Avenue intersection, and deficiencies in on- site parking that is available for the subject property. Attachments: · P & Z Staff Report and Documentation of May 19, 1997 · Ordinance by Others PLANNING AND ZONING BOARD CITY OF DELRAY BEACH ---STAFF REPORT--- MEETING DATE: May 19, 1997 AGENDA ITEM: VI.E. ITEM: Future Land Use Map Amendment from Commerce to General Commercial and Rezoning from MIC (Mixed Industrial & Commercial) to GC (General Commercial) for the Country & Western Bar located at the northwest corner of West Atlantic Avenue and the C.S.X. Railroad. GENERAL DATA: Owner. ......................................... Helen Owens Applicant ...................................... David Shine Agent ........................................... Dennis P. Koehler, P.A. Location ....................................... Northwest corner of West Atlantic Avenue and the C.S.X. Railroad. Property Size ............................... 0.39 Acres Current Future Land Use Map ...... Commerce Proposed Future Land Use Map.. General Commercial Current Zoning ............................. MIC (Mixed Industrial & Commercial) Proposed Zoning .......................... GC (General Commercial) Adjacent Zoning ................. North: MIC East: GC South: MIC West: MIC Existing Land Use ........................ Farm Supply Store Proposed Land Use ..................... Conversion of the existing 7,173 sq.ft, building into a Country and Western night club. Water Service .............................. Existing via a service lateral connection to an existing 8' main along N.W. 18th Avenue. Sewer Service .............................. Existing via a septic system. VI.E. The item before the Board is that of making a recommendation to the City Commission on a privately-sponsored Small-Scale Future Land Use Map Amendment from Commerce to General Commercial and a rezoning from MIC (Mixed Industrial and Commercial) to GC (General Commercial). The subject property is located at the northwest comer of Atlantic Avenue and the CSX Railroad, immediately west of 1-95. The subject property consists of Lot 1, Owens Commercial Subdivision, containing 0.39 acres, at the south end of the overall 3 lot subdivision. Lot 1 contains a 7,173 sq.ft. building which was constructed in 1952 and is currently occupied by a farm supply store (Delray Beach Farm Supply, Inc.). The balance of the Owens Commercial Subdivision consists of Lot 2 (middle lot) containing an 8,505 sq.ft, industrial building (constructed in 1974), and Lot 3 (northernmost lot) containing a 10,740 sq.ft, industrial building (constructed in 1962; additions constructed 1965 and 1968). The businesses that currently exist on Lots 2 and 3 are as follows: Lot 2 - Econo Auto Paint; and, Lot 3 -- Tile and Marble Wholesale, Inc., Modern Mica Design, Excellent Auto, Inc. and a contractor's office (Warren Clyde Kidd, Jr.). On November 12, 1962, the subject property along with other properties within the vicinity north of Atlantic Avenue, east of Congress Avenue and west of the CSX railroad were annexed into the City of Delray Beach with an initial zoning designation of C-3 (Wholesale and Light Industrial District). In 1972, tile properties zoned C-3 were rezoned to LI (Light Industrial). In March of 1977, the City Council (now City Commission) approved a conditional use request to establish an automobile paint body and repair shop (Econo Auto Painting) within the existing warehouse building in the middle of the overall development. In late 1977, the subject property along with other properties in this area was rezoned from LI to MI (Medium Industrial). With the adoption of the City's Comprehensive Plan and Future Land Use Map in November, 1989, the land use designation of the property was changed from Industrial to Commerce. Subsequently, with the Citywide rezonings and adoption of the Land Development Regulations in October 1990, the property was rezoned from MI to MIC (Mixed Industrial and Commercial). On November 15, 1994, the City Commission approved the final plat for the Owens Commercial Subdivision. In conjunction with the plat a cross-parking and drainage agreement was executed as the plat also subdivided required parking spaces and drainage flows across property lines. Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 2 On April 4, 1997, a request for a Future Land Use Map amendment and Rezoning to GC (General Commercial) for Lot I was submitted and is now before the Board for action. The proposal is to change the Future Land Use Map designation for the property from Commerce to General Commercial and rezone the property from MlC (Mixed Industrial and Commercial) to GC (General Commercial). The subject property is currently occupied by a farm supply store (Delray Beach Farm Supply, Inc.). The building contains 5,380 sq.ft, of wholesale/warehouse space and 1,793 sq.ft, of retail space. If the FLUM amendment and rezoning are approved, it is anticipated that a site plan modification request will follow to establish a country and western bar. Florida Statutes t63.3187 - Small Scale Land Use Map Amendments: This Future Land Use Map Amendment is being processed as a Small-Scale Development pursuant to Florida Statutes 163.3187. This statute states that any local government comprehensive land use amendments directly related to proposed small scale development activities may be approved without regard to statutory limits on the frequency of consideration of amendments (twice a year), subject to the following conditions: The amendment does not exceed 10 acres of land; The cumulative effect of the amendments processed under this section shall not exceed 120 acres within designated redevelopment and traffic concurrency exception areas, or 60 acres annually in areas lying outside the designated areas; and, The proposed amendment does not involve the same property, or the same owner's property within 200 feet of property, granted a change within a period of 12 months. The Future Land Use Map amendment involves a 0.39 acre area, thus the total area is less than the 10 acre maximum. The amendment to General Commercial is being processed concurrently with a rezoning request to GC (General Commercial) to facilitate establishing a country and western bar within the existing building as a permitted use. The property is not located within a designated redevelopment or traffic concurrency exception area. This amendment along with other small-scale amendments processed this year, outside the designated areas, will not exceed 60 acres. This property has not previously been considered for a land use amendment nor has the same property owner's properties been granted a land use change within 200 Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 3 feet or within the last year. Therefore, the property meets the criteria for processing as a small-scale amendment. COMPREHENSIVE PLAN POLICIES; A review of the objectives and policies of the adopted Comprehensive Plan was conducted and the following applicable policy was found. Future Land Use Element Policy A-1.4; "Commerce" Land Use which involves a mix of light industrial, commercial uses, and research and development are the most needed land uses during the City's final stage of build-out. Thus, changes to the Land Use Map which diminish this land use are discouraged. While the Objective regarding this policy refers to vacant land it is also relevant to developed Commerce-designated land. City staff conducted an inventory of Commerce designated parcels, both vacant and developed. There is a total of 246 acres, of which 160 are developed and 86 are vacant. The 246 acres represents approximately 3% of the City's total acreage. While the subject property is only 0.39 acres, the proposed FLUM amendment will reduce the amount of Commerce designated land. A May, 1995 article in Florida Trend estimated that 9 out of every 10 jobs in Florida are created by small firms. According to a 1995 business profile of Delray Beach, conducted by Urban Decision Systems, approximately 90% of "commerce" type businesses in the City are relatively small, employing 20 or fewer people. This indicates that even the smaller parcels within the City are important in terms of satis~ing this policy regarding Commerce land uses. Future Land Use Element Policy A-1.6 - To encourage redevelopment of the City's Central Business District, Future Land Use Map amendments to Commercial designations in outlying areas of the City's Planning Area, shall not be considered. The proposal is inconsistent with this policy. While the petition involves a relatively small parcel, its purpose is to accommodate a night club/entertainment use which will compete with the redevelopment efforts in the City's Central Business District. Further, as the property is located adjacent to and is easily accessible from 1-95, the use will be primarily a destination type use and will not encourage customers to visit the City's downtown. There are existing commercially zoned properties throughout the City that can easily accommodate the proposed use. If the amendment is approved, similar requests to accommodate commercial uses along this section of Atlantic Avenue/N.W. 18th Avenue may occur. Traffic Element Policy A.5.3 - The City shall guard against the overcommercialization of intersections by restricting land uses which are high traffic generators to no more than two adjoining streets. Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 4 The proposal is inconsistent with this policy. The subject property is located within 700 feet of the intersection of Congress and Atlantic Avenues, and 200 feet of the intersection of Atlantic Avenue and N.W. 18th Avenue. The intersection of Atlantic and Congress Avenue is commercialized with two gasoline stations, a carpet store and a shopping center. This FLUM amendment and rezoning to GC will result in commercial zoning within an industrial area which is not easily accessible from Atlantic Avenue, and which can accommodate high traffic generating commercial uses such as fast food restaurants, night clubs, convenience stores, and general retail uses. While the MIC zoning allows retail uses, they are limited to no more than 25% of the total floor area of the building and typically involve items that can be manufactured, fabricated or assembled within the MIC district. Land Use Arl~llysis: Pursuant to Land Development Regulations Section 3.1.1(A) (Future Land Use Map), all land uses and resulting structures must be allowed in the zoning district within which the land is situated and, said zoning must be consistent with the land use designation as shown on the Future Land Use Map. The proposed General Commercial Future Land Use Map designation will allow the following zoning classifications: GC (General Commercial), PC (Planned Commercial), AC (Automotive Commercial), NC (Neighborhood Commercial), POC (Planned Office Center), POD (Professional and Office District), RT (Resort Tourism), CF (Community Facilities), OS (Open Space), and OSR (Open Space and Recreation). In conjunction with the Future Land Use Map amendment to General Commercial, a rezoning to GC (General Commercial) is being sought. The FLUM amendment and rezoning to GC are being processed concurrently to facilitate establishing a country and western bar. Within the GC zone district, night clubs and bars are allowed as a permitted use. Based upon the above, a positive finding with respect to consistency with the proposed FLUM and zoning designations can be made. Ad_iacent Future Land Use Map Designations. Zoning Designations & Land Uses: North and West: North and west of the property has a Future Land Use Map designation of Commerce and is zoned MIC (Mixed Industrial and Commercial). The existing land uses include automobile paint, body and repair shops (Econo Auto Painting, Eastern Auto Care Center/NTW Tires, etc.). South: South, across Atlantic Avenue, has a FLUM designation of Commerce and is zoned MIC (Mixed Industrial and Commercial). The existing land use is the CSPJRinker concrete products manufacturing facility. Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 5 East: East of the property, across the CSX railroad tracks, has a Future Land Use Map designation of General Commercial and is zoned GC. The existing land use is a contractor's office (George B. VVittmer Associates, Inc.) Allowable Land Uses: The current Commerce FLUM designation allows the following zoning classifications: RT (Resort Tourism), PCC (Planned Commerce Center), MIC (Mixed Industrial and Commercial) and LI (Light Industrial). With the exception of RT, these zoning designations are primarily intended for industrial type uses such as manufacturing, fabrication, assembly, etc. which allows a mix of service and commercial uses. The RT allows uses that can be complementary to an industrial park setting, such as hotels and conference facilities. The subject property is currently zoned MIC which allows a mixture of industrial, service and commercial type uses. Under the proposed General Commercial FLUM designation, commercial developments under a variety of zoning designations (GC, PC, NC , AC, RT, POC and POD) are allowed. The applicant has requested a zoning designation of GC (General Commercial), which permits high intensity commercial uses such as gasoline stations, night clubs, convenience stores, and fast food restaurants, high turnover sit-down restaurants as well as office and other retail uses. Land Use & Zoning Compatibility_: As described in the Future Land Use Element of the Comprehensive Plan, the Commerce land use designation is applied to property which is developed, or is to be developed, in such a manner as to accommodate a mix of industrial, service, and limited commercial uses. This may be done either through development of existing parcels or through a planned concept. The proposed General Commercial land use designation is to be applied to land which is, or should be, developed for general commercial purposes e.g. retail, office, services. The adjacent properties to the north, south and west have a Commerce land use designation, are zoned MIC, and contain industrial uses. The property to the east is zoned GC but is occupied by a contractor's office, which is compatible with industrial type uses. Also, it is separated from the subject industrial area by the CSX railroad tracks and takes access from Lake Ida Road. The compatibility of the proposed GC zoning with the adjacent industrial uses is a concern as rezoning to GC allows high traffic generating commercial uses, while the MIC zoning allows industrial uses which generally have Iow traffic volumes. The applicant has stated that the business hours are limited to the evening hours (6:30 p.m. to 2:00 a.m.) at which time the adjacent industrial uses are closed. However, once the property is rezoned the hours of operation cannot be regulated. The GC zoning allows uses that may be open during the daytime and evenings, are high traffic generators, Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 6 and have a greater parking demand. Commercial uses which would locate at or near a busy intersection such as this (i.e. gasoline station, convenience store), are typically open 24 hours. While peak hour traffic generation of the industrial uses may occur during the morning and evening hours, traffic to a commercial business will be continuous with peak hours coinciding with normal peak traffic hours. Based upon the above, the proposed land use designation will be inconsistent with the existing Commerce designation on surrounding properties. CONCURRENCY; Facilities which are provided by, or through, the City shall be provided to new development concurrent with issuance of a Certificate of Occupancy. These facilities shall be provided pursuant to levels of service established within the Comprehensive Plan. Water and..~ewer: Water service exists via a service lateral connection to an 8" water main along N.W. 18th Avenue. Adequate fire suppression is provided via existing hydrants along the west side of N.W. 18th Avenue. No off-site water main extensions and/or upgrades are required with this development proposal. Currently, there are no sewer mains installed to serve the properties along this section of N.W. 18th Avenue. Sewage for the existing wholesale/retail operation is accommodated via an existing on-site septic system. The proposed land use and zoning change will allow uses that have a much greater demand on sewage facilities, such as restaurants. The proposed conversion of the structure to a night club will at a minimum require upgrading of the existing septic system. Given the intensity of the proposed night club use, installation of a lift station and a force main to connect to the existing main along Congress Avenue may be required. Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water Treatment Plant and the South Central County Waste Water Treatment Plant for the City at build-out. With FLUM amendment and rezoning requests drainage plans are not required. The site was originally engineered to drain into swale areas along N.W. 18th Avenue. Over time the swale areas have been destroyed and paved. If the FLUM amendment and rezoning is approved, a site plan modification submittal will follow. At that time, plans must be provided which indicate removal of the paving and the installation of swales. Traffic: The current use of a farm supply/feed store generates approximately 50 daily trips. The proposed use of a country and western bar would generate approximately 588 daily Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 7 trips, a net increase of 538 trips. The traffic study indicates this specific project can meet traffic concurrency. However, as the proposal before the Board is to rezone the parcel to General Commercial, and once rezoned any use in the GC zone district could be established, these numbers are of little significance. The analysis of this action must address the potential impact of the worst case use under the GC district as there is no guarantee that this proposed use will be established or that it will not be replaced in the future with a more intense use allowed under the GC. While the current use of the property (farm supply/feed store) generates approximately 50 trips, the maximum development potential under the current MIC zoning (75% industrial, 25% retail) would generate approximately 352 daily trips. The maximum development potential under the proposed GC zoning designation is significantly higher. For example, a retail use will generate approximately 750 trips, a fast food restaurant 3,174 daily trips, and a convenience store 2,911 daily trips. Therefore, a rezoning approval to General Commercial may result in daily traffic increases of: 113% for retail, 727% for convenience store, and 801% for fast food restaurant. This increase in traffic is of significant concern given the location of the site and the restrictions of right turn only at the intersection of Atlantic Avenue and N.W. 18th Avenue. The "right turn only" sign was installed to prevent vehicles on N.W. 18th Avenue from making left tums onto eastbound Atlantic Avenue, due to the intersection's proximity to the railroad tracks, 1-95 interchange, and the Atlantic/Congress intersection. With the restriction to right turn only at N.W. 18th Avenue and Atlantic Avenue all trips desiring to go eastbound on Atlantic Avenue from the site must first go west and make a u-turn at Congress and Atlantic Avenue. An analysis of the westbound left turn storage during peak hours was conducted on Wednesday May 7th and Thursday May 8th. The results of the analysis indicate that in the AM peak hour (7:30 AM to 8:30 AM) the left tum lane storage is inadequate (overflows into westbound travel lanes) an average of 20 out of 25 cycles or 80% of the time. In the PM peak (4:30 PM to 5:30 PM) the left turn storage fails an average of 5 of 25 cycles or approximately 20% of the time. The traffic study submitted with this proposal indicates that the traffic distribution will be primarily from 1-95 to and from the site. However, as previously indicated, eastbound traffic must first go west and make a u-turn, thus impacting the Congress/Atlantic intersection. The applicant argues that since the proposed use will operate at night it will not affect the intersection at these peak hours. Again, a rezoning cannot be tied to a single use, therefore it must be evaluated in terms of all potential uses, many of which could significantly affect this intersection at peak hours. Further, while project distribution may change given the different uses it is anticipated a general commercial use will generate more trips than uses allowed under the existing zoning and therefore increase impacts on this intersection. Given the current operating conditions at the intersection adoption of any land use designation or zoning designation which intensifies the traffic volumes in this area is inappropriate. Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 8 Parks and Recreation: Park and dedication requirements do not apply to nonresidential uses. Thus, there will be no impact on this level of service standard. Trash generated each year by the proposed commercial use would be equal to or slightly greater than trash generated from the uses allowed by the applicable zoning districts of the Commerce land use designation (MIC, PCC, LI, RT). The development of these properties under the General Commercial land use designation should not create an adverse impact on this level of service standard. REQUIRED FINDINGS: (Chapter 3) Pursuant to Section 3.1.1 (Required Findings), prior to the approval of development applications, certain findings must be made in a form which is part of the official record. This may be achieved through information on the application, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development application. These findings relate to the Future Land Use Map, Concurrency, Comprehensive Plan Consistency and Compliance with the Land Development Regulations. Future Land Use Map, Concurrency and Comprehensive Plan Consistency were previously discussed under the Future Land Use Map Analysis section of this report. Compliance with respect to Compliance with the Land Development Regulations (Standards for Rezoning Actions, Rezoning Findings) are discussed below. CONSISTENCY: Compliance with the performance standards set forth in Section 3.3.2 (Standards for Rezoning Actions) along with required findings in Section 2.4.5(D)(5) (Rezoning Findings) shall be the basis upon which a finding of overall consistency is to be made. Other objectives and policies found in the adopted Comprehensive Plan may be used in the making of a finding of overall consistency. Section 3.3.2 (Standards for Rezonin_o Actions): Standards A and B are not applicable. The applicable performance standard of Section 3.3.2 is as follows: (C) Additional strip commercial zoning on vacant properties shall be avoided. This policy shall not preclude rezonings on land that at the time of rezoning has improvements on it. Where existing strip commercial areas or zoning exists along an arterial street, consideration should be given to Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 9 increasing the depth of the commercial zoning in order to provide for better project design. The proposed GC zoning would allow inappropriate commercial zoning on a developed parcel of land. The subject property is one parcel of an overall 3 parcel subdivision with an overall width of 670 feet and a depth of only 100 feet. The properties currently have back-out parking onto N.W. 18th Avenue, and substandard parking lots between the buildings. As all the properties are developed and are located between the CSX railroad and N.W. 18th Avenue, there is no ability to aggregate additional land to provide a' well-planned commercial development. Thus, rezoning the property to GC would be inconsistent with this performance standard. (D) That the rezoning shall result in allowing land uses which are deemed compatible with adjacent and nearby land uses both existing and proposed; or that if an incompatibility may occur, that sufficient regulations exist to properly mitigate adverse impacts from the new use. The properties to the north, south and west are industrial in character and are zoned MIC, while to the east is zoned GC, and contains a contactor's office. Compatibility with the adjacent industrial uses is a concern. As previously stated under the Future Land Use Map Analysis of this report, the GC zoning designation allows uses that are much more intense than those allowed in the MIC zone district. Given the limited on-site parking that is available, and the potential conflicts between commercial and industrial traffic, a positive finding with respect to this standard cannot be made. Sectien 2.4.5(D)(5.} (Rezonin_= Findin_es): Pursuant to Section 2.4.5(D)(5) (Findings), in addition to provisions of Section 3.1.t, the City Commission must make a finding that the rezoning fulfills one of the reasons for which the rezoning change is being sought. These reasons include the following: a. That the zoning had previously been changed, or was originally established, in error; b. That there has been a change in circumstances which make the current zoning inappropriate; and, c. That the requested zoning is of similar intensity as allowed under the Future Land Use Map and that it is more appropriate for the property based upon circumstances particular to the site and/or neighborhood. Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 10 The applicant has submitted a justification statement which states the following: · The subject property has operated as a farm supply store for the past forty- four years. The store was established when Delray had a farming community and the location was appropriate. However, the urbanization of Delray Beach makes current use inappropriate at this location. The property owner has seen Atlantic Avenue expanded many times and developed as a commercial corridor. This request is to change a small 0.38 acre parcel of land to a commercial zoning reflecting the highest and best use of use of the property. There currently exists similar commercial zoning immediately to the east, and fronting on both sides of Atlantic Avenue at three quadrants of the intersection of Congress Avenue. The other quadrant of Congress and Atlantic is also commercial zoned, PC. · The requested rezoning to GC is best suited for this small parcel and not planned commercial designations. · The requested zoning district is intended for applications on arterials such as Atlantic Avenue. · This request is compatible with adjacent areas. · No residential areas will be disturbed. · Current regulations permit uses which will generate more traffic than the proposed use. · The proposed use will upgrade the frontage along the major entryway of Delray Beach. · The applicant will voluntarily limit the hours of operation to night time only to reduce traffic impacts. Comment: The justification statement appears to address Items "b" and "c" as the basis for which the rezoning should be granted - that there has been a change in circumstances which make the current zoning inappropriate, the rezoning is of similar intensity as allowed under the Future Land Use Map and it is more appropriate for the property based upon circumstances particular to the site. Those arguments are discussed below. The change in circumstances referred to by the applicant is that the urbanization of the City has made a farm supply store obsolete. This argument might make sense if the property were zoned Agricultural and had uses limited to agricultural related activities. However, that is clearly not the case in this situation. The property has a land use and zoning designation that allows for a variety of other uses. It is located in an industrial area with a number of viable businesses that have been successfully operating for many years. The applicant's argument is applicable only to the use that is currently occupying the building. A change in the economic circumstances of a particular business is not a valid basis to alter the land use and zoning designations of the Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 11 ~ property on which it is located. The fact that Delray Beach has become more urbanized makes those industrial uses more valuable to the City's continued economic health. The purpose and intent of the GC zone district states that the GC zoning is appropriate for small parcels which are best suited for general retail and office uses, and along arterial and collector streets. However, this argument cannot be used to support the establishment of a 7,173 sq.ff, night club or restaurant on a parcel that is less than a half an acre in size. Further, while the property fronts an arterial street, it is only accessible from a local street containing industrial uses. As the property is within an industrial area and contains minimal parking, it is not well-suited for general commercial uses. Compatibility of the GC zoning with the adjacent MIC zoning and uses must also be taken into consideration as discussed previously in this report. With regard to traffic, the applicant's contention that the MIC zone district contains permitted uses that will generate more traffic that the proposed night club use is not valid. As noted in the section of the report dealing with traffic, most of the uses allowed in GC zoning are much higher traffic generators than industrial type uses. With regard to the statement that the use will upgrade the property frontage, it is noted that landscape upgrades were required as part of the subdivision plat approved in 1994, however, that landscaping has not been installed. Finally, the offer by the applicant to voluntarily limit the hours of operation is unenforceable as a condition of a rezoning. Once the property is rezoned, any of the uses permitted in the GC district may apply to establish at this location, and the City would have no ability to restrict the hours of operation. Based upon the above, a finding cannot be made that the rezoning fulfills any of the reasons for which a rezoning should be granted. COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS: The existing development has 3 separate parcels which share 28 parking spaces. This is accomplished through cross-access easements and a cross-parking agreement between the 3 parcels. However, while 28 spaces are available, a total of 96 spaces is required by code to accommodate the current uses. Thus, there is an existing deficiency of 68 spaces. Uses allowed in the GC zoning district typically have a higher parking requirement than industrial uses. For example, pursuant to LDR Section 4.6.9(C)(5)(a), industrial uses require 3 spaces per 1,000 sq.ff., and I space for each 1,000 sq.ft, of storage area. By contrast, restaurants, night clubs and lounges are required to provide 12 spaces per 1,000 sq.ff, up to 6,000 sq.ft., then 15 spaces per 1,000 sq.ft, over 6,000 sq.ft. Based upon the above, the proposed night club requires 90 parking spaces. Assuming that a third of the 28 existing spaces (9 spaces) are allocated to the subject property, the on-site parking deficiency would increase to 149 spaces. The applicant proposes to provide required parking off-site via an off-site Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 12 parking agreement with the Eastern Auto Care Center/NTW Tires development on the west side of N.W. 18th Avenue. The justification for utilizing the off-site spaces is based upon the different hours of operation between the night club and the industrial uses. Pursuant to LDR Section 4.6.9(E)(5), an off-site parking agreement may be approved so long as it provides that "the land comprising the alternate off-street parking area shall never be disposed of except in conjunction with the transfer or sale of the building which the parking area is intended to serve, so long as the parking facilities are required". The agreement must run with the land and is binding on owners, successors, heirs, administrators and assigns. In brief, the agreement ties the properties together and they cannot be sold separately for as long as the parking need exists. For this reason, off-site parking agreements to utilize private property have been very difficult to obtain. As previously noted, the proposed GC zoning allows a variety of uses with operating hours similar to the industrial uses which would create conflicts among users of the parking spaces. In essence, the City is being asked to change the land use and zoning designation of this parcel to allow a use that will create a far greater parking demand than the current zoning allows, on a site that is already severely deficient in parking. This request is to be based on the submission and approval of an agreement that will legally bind the subject property to the adjacent industrial property, and proposes to limit the hours of operation accordingly. The City would be responsible for enforcing this agreement. If the property owners decided to dissolve the agreement, the City will be left with a parcel that has a commercial zoning designation and severe parking shortage. The development proposal is not within a geographical area requiring review by the CRA (Community Redevelopment Agency, DDA (Downtown Development Authority), or the HPB (Historic Preservation Board). S_~ecial Courtesy and Neighborhood Notices: Courtesy notices were provided to the following homeowner's associations and civic organizations: [3 Chatelaine [3 Rainberry Lake [3 Delray Shores [3 Rainberry Woods South [3 Hamlet [3 Sherwood Forest [3 High Point Sections 1-7 [3 The Sudan [3 Highland Trailer Park [3 Sunset Pines [3 Pines of Delray North [3 United Property Owners [3 Presidents Council [3 Windy Creek [3 Progressive Residents of Delray (PROD) [3 Woodlake [3 Rainberry Bay Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 13 Public Notice: Formal public notice has been provided to property owners within a 500' radius of the subject property. Letters of objection, if any, will be presented at the Planning and Zoning Board meeting. With the Future Land Use Map Amendment from Commerce to General Commercial positive findings with respect to compatibility are unable to be made. The proposal does not comply with Future Land Use Element Policies A-1.4 and ^-1.6, and Traffic Element Policy A-5.3. The proposed FLUM amendment will reduce the City's "Commerce" land use inventory, will accommodate a zoning designation that will compete with the City's Central Business District, and will further commercialize the Atlantic and Congress Avenues intersection. Compatibility of the GC zoning and its potential uses with the adjacent industrial uses is a concern, especially with regard to traffic and parking impacts. Eastbound vehicles are required to first head westbound on Atlantic, and then make u-turns at the intersection of Atlantic and Congress. There are concerns that a general commercial use at this location will severely impact the stacking distance (queuing) of the westbound left turn lane at the Congress and Atlantic intersection. The stacking distance of the turn lane is insufficient to accommodate the traffic volumes generated by the commercial use. Further, the ability to expand the turn lane (lengthening storage capacity) is limited as the turn lane for N.W. 18th Avenue begins just east of the left turn lane. The site is part of an industrial development that was constructed under antiquated development standards and does not conform to current code requirements. Most significant of these is the parking deficiency of 68 spaces. The existing deficiencies will only be exacerbated by an intensification of the uses. The conversion of the existing wholesale/retail building to a night club, will increase the on-site parking shortage to 149 spaces. While the applicant has offered to limit the hours of operation and provide off-site parking agreements, limiting the hours of operation and the uses is not enforceable. Off-site parking agreements restrict the long-term use and marketability of the properties involved and should not be used to justify a zoning change. Finally, a positive finding cannot be made with regard to any of the three reasons listed in LDR Section 2.4.5(D)(5) for which a rezoning should be granted. A change in the economic circumstances of a particular business is not a valid basis to alter the land use and zoning designations of the property on which it is located. There are other permitted uses in the MIC zone district that can be accommodated and would be viable at this location. Planning and Zoning Board Staff Report Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC Page 14 A. Continue with direction. B. Recommend approval of the Future Land Use Map Amendment from Commerce to General Commercial, and the rezoning request from MIC to GC based upon positive findings with respect to Chapter 3 (Performance Standards) of the Land Development Regulations, policies of the Comprehensive Plan, and LDR Sections 2.4.5(D)(5)(b) and (c). C. Recommend denial of the Future Land Use Map Amendment from Commerce to General Commercial, and the rezoning request from MIC to GC based upon a failure to make positive findings with respect to Chapter 3 (Performance Standards) of the Land Development Regulations, policies of the Comprehensive Plan, and LDR Sections 2.4.5(D)(5), and based upon deficiencies in the storage capacity of the turn lane at the Congress Avenue and Atlantic Avenue intersection, and deficiencies in on-site parking that is available for the subject property. Recommend to the City Commission denial of the Small-Scale Future Land Use Map Amendment from Commerce to General Commercial and the rezoning request from MIC to GC based upon a failure to make positive findings with respect to Future Land Use Element Policies A-1.4 and A-1.6, and Traffic Element Policy A-5.3 of the Comprehensive Plan, LDR Section 3.3.2(C) (Performance Standards), and LDR Section 2.4.5(D)(5) (Findings), and based upon deficiencies in the storage capacity of the turn lane at the Congress Avenue and Atlantic Avenue intersection, and deficiencies in on-site parking that is available for the subject property. Attachments: Future Land Use Map Zoning Map Survey i I SUBDIVISION' ~ (P.B. 74, POS, P.8.C.R.) j I ~ ~ LOT 2 , ROADWAY ' I STORY C.B.S. OVOID ~ WAREHOUSE ~ FEN~ FOOTE I ~ WAREHOUSE ~E~ I'IFI',' 23 '97 16:4! LAW OFFICES I ennls I ehler, God, rede ~lln~ Gsnt®r 12,~0 North Congreee Avenue, Suite 104 W~e! Palm Beach0 Flori¢~ $~409 T®leph~ne; ($~1) 884-2844 BY FAX F~im~e: ($61) Hay 23, 1997 Hon. Jay A1perin, Mayor CITY OF DELRAY BEACH 100 N.W. 1st Avenue Delray Beach, FL 33444 RE: OWEN~-SHINE applications for Comprehensive Plan Amendment, ~ezoning (Country an~ western nightclub) - DELRAY BEACH FARM SUPPLY, INC. property Dear Mayor A1per~n: I'm ~riting this letter to a~vise you that although your Planning & zoning Board Chairman Mr. Bill Schwartz ~escribed our presentation last Monday evening (May 19) as "the best he's ever seen," ~e were ultimately unsuccessful in seeking the P&~. Board's recommendation of approval in the reference~ matter. Particularly frustrating to me was City staff's refusal to take seriously our central argument: That by voluntarily imposing ~ee~ restrictions on th~s very small (0.39 acre) parcel, limiting its CG use to a nightclub open to the public durin~ evening ho.u. rs only, the "parade of 'n6rrlbly unacceptable i~acts" offered by staff ~s reasons for rejecting our proposals would be eliminated completely. As william Shakespeare m~ght have put At, staff's report was "much a~o about nothfngl" [It's frankly galling to me as a veteran lan~ use attorney to see government planners go so far out o~ their way to trash what promises to be a most exciting development project. It"s true that I di~ not vigorously attack the sta~ report during the Planning & Zoning Board meeting on May 19. We chose instea~ to focus on the positive merits of our project. Bu~ obviously, that wasn*t enough for the Planning & Zoning Board, even though several of the members appeared ~o vote reluctantly with the mai o rtty. I will keep you posted as my clients and our developmen~ team intensify our efforts to make our requests acceptable to you an~ the other members of the City Commissio~ Xoehler ~.squire Dennis F~ , DPK/ns pc: Ms, Helen Owens Mr. Davi~ Shine Ben S. Kennedy, Esq. Mr. Jim Kahn, KEITH & SCHNAR$ .TLIIt 13 '97 11:16 T~Ei'IIII$ P I~iOEFtL~P,, P.l:t. '~ P.t . DENNIS P. KOEHLER, P,A. E!TY:.. 1280 North Congress Avenue, Suite 104 West Palm Beack, Florida 33~09 Telephone: (561) 684-2844 Pacsimile: (S61) 684-9370 FAX COVER SHEET c/;.~,~,~,..,...,,,.,--.,o~,.., ,A - FROM: DENNIS P.. KO. EHLER~ ESQUIRE LOC~: ~ ~.ONG DiS?kNCE:~,~ NO. OF PAGES: ~ ' PLUS COVER S~EET DATE & TIME OF TRANSMISSION: ~, INITIALS OF PERSON SENDING FAX: ~. .TUll 13 '97 11:16 DEIlltI$ P f*,:,EHLER, P.R, :' P'"-' LAW OFFICES I ennls l cehler, Congress Bu$1ne~ Center 1280 North Congrese Avenue, Sulle 104 W~t Palm Be&ch, Florida 9~409 Telephane: (661) 684-2844 Fa~imlle:($61)6~-9370 BY FAX June 13, 1997 Hon. Jay A1perin, Mayor and Members DELRAY BEACH CITY COMMISSION Delray Beach City ~all 100 N.W. First Avenue Delray Beach, Florida 33444 RE: OWENS-SEINE Applications for Comprehensive Plan Amendment, Rezoning ("Country and Western Nightclub"), City Ordinance No. 25-97 (proposed) - Positive responses to City staff concerns Dear Mayor Alpertn and Commissioners: As we prepare for this coming Tuesday eventng'~ final public hearing before the City Commission on the referenced applications, I wanted to share some exciting news with you: City Attorney Susan Ruby confirmed during a meeting with me on June 12 that if properly drafted and executed, the two (2) legal documents that my clients are proposing to address your planning staff's major concerns - an "OFF SITE PARKING AGREEMENT" and a "DECLARATION OF RESTRICTIVE COVENARTS" - will be both legal and enforceable by the City. The OFF SITE PARKING AGREEMENT is based on a standard form supplied to me several months ago by Ms. Ruby. It will require the proposed country and western nightclub's patrons to park their vehicles (via a valet parking service) on the adjacent, existing parking tract of the EASTERN AUT0 CARE CENTER. This Agreement is presently undergoing final review by the EASTERN AUTO CARE CENTER's owners in Michigan. We plan to present this Agreement to you on Tuesday evening. The DECLARATION OF RESTRICTIVE COVENANTS, we believe, is critically important to our prospects for approval, We have carefully crafted this Declaration to address City Attorney Ruby's concerns. This document, which will be executed and recorded prior to next Tuesday evening's City Commission meeting, will restrict the property's commercial use to a nightclub only, open 9nly during the eveninq hours. At present, no country and western nightclubs are located anywhere between Fort Lauderdale and West Palm Beach. My client Mr. Shine's investor-partners hope to establish not only a popular and successful nightclub at the DELRAY BEAC~ FARM SUPPLY location: they are considering making the nightclub the location for a made- for-TV movie and a possible TV series! None of this will be possible, of course, without your approval this coming ~esday evening, we look forward to presenting the merits of our re~ests to you at that time. ~Koehler, Esquire DPK/ns pc:. Mrs. Helen Owens Mr. David Shine Mr. Leo Wilson Messrs. Jim KaL & ~dre Groenhoff, KEITH & SCHN~S I>enAIs I cehler, MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER~ SUBJECT: AGENDA ITEM # /0C- REGULAR MEETING OF JULY 1, 1997 SECOND READING/PUBLIC HEARING FOR ORDINANCE NO. 28-97 (WALLS AS A SPECIAL ASSESSMENT PROJECT) DATE: JUNE 27, 1997 This is second reading and a public hearing for Ordinance No. 28-97 which would permit the City to follow the special assessment process for the construction of walls or sound barriers to provide a barrier from public rights-of-way. The City may provide for the special assessment process pursuant to its Home Rule powers. Adoption of this amendment to LDR Section 8.4.1 will permit the City to levy and collect the special assessment on properties benefiting from the wall. The Planning and Zoning Board considered the amendment at a public hearing on June 16, 1997, and voted unanimously to recommend that it be approved, subject to a minor wording change which has been incorporated into the ordinance. At first reading on June 17th, the Commission passed the ordinance by unanimous vote. Recommend approval of Ordinance No. 28-97 on second and final reading. ref:agmemolO ORDINANCE NO. 28-97 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING ARTICLE 8.4, "PUBLIC IMPROVEMENTS AND SPECIAL ASSESSMENTS", SECTION 8.4.1, "AUTHORITY TO MAKE SPECIAL ASSESSMENTS; EXCEPTIONS" OF THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA TO PROVIDE FOR THE CONSTRUCTION OF WALLS TO PROVIDE A BARRIER FROM PUBLIC RIGHTS-OF-WAY AS A PROJECT FOR WHICH THE CITY MAY LEVY AND COLLECT A SPECIAL ASSESSMENT; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach has the authority through its Home Rule Powers to construct public projects which benefit the citizens of the City of Delray Beach; and WHEREAS, the City Commission for the City of Delray Beach has the authority to impose special assessments on the lands which benefit from a public project by levying and collecting a special assessment; and WHEREAS, the City Commission for the City of Delray Beach desires to include as a potential special assessment project the construction of walls which run parallel to public rights-of-way; and WHEREAS, the City Commission of the City of Delray Beach finds that the construction of walls which run parallel to public rights-of-way is the types of project which improves the aesthetics of the City of Delray Beach and provides for the safety of the citizens of the City of Delray Beach. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Chapter 8, "Special Implementation Programs," Article 8.4, "Public Improvements and Special Assessments," Section 8.4.1., "Authority to Make Special Assessments; Exceptions," of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach be, and the same is hereby amended to read as follows: Section 8.4.1 Authority to Make Special Assessments: Exceptions: (A) The City Commission is authorized and empowered, in the manner herein provided, to cause any and all streets, highways, boulevards, avenues, lanes, alleys, and parks or any part thereof, to be graded, paved, repaved, surfaced, or resurfaced, and to cause curbs and gutters to be constructed therein, and to install associated street lighting and landscaping, and sanitary sewers, storm sewers, sewers, and drains, and to construct walls as a barrier from public roadways and alleys, and to cause seawalls to be constructed or reconstructed and to cause canals or other waterways to be laid and constructed, and dredged and to provide for the paymem of the whole or any part of the cost thereof by levying and collecting special assessments upon abutting, adjoining and contiguous or other specially benefited property. The amount assessed against the property benefited by these improvemems shall not exceed the estimated benefits accruing to that property by reason of these public improvements. Section 2. That should any section or provision of this ordinance, or any portion thereof, or any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof, other than the part declared to be invalid. Section 3. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby, repealed. Section 4. That this ordinance shall become effective immediately upon its passage on the second and final reading. pASSED AND ADOPTED in regular session on second and final reading on this the 1st dayof July ,1997. '~ /~~7~ ATTEST: ~/MAJO R City Clerk~' r First Reading June 17, 19 9 7 Second Reading July 1, 19 9 7 priwalls.ord 2 ORD. NO. 28-97 MEMORANDUM TO: DAVID T. HARDEN, CITY MANAGER ~~ FROM: ROBERT A. BARCINSKI, ASSISTANT CITY MANAGER SUBJECT: AGENDA ITEM # ~oD- REGULAR MEETING OF JULY 1, 1997 SECOND READING FOR ORDINANCE NO. 27-97 (PARKING HOURS ~ FOR CERTAIN LOTS IN THE DOWNTOWNAREA) DATE: JUNE 23, 1997 ACTION: City Commission is requested to approve on second reading Ordinance No. 27-97 amending City Code Chapter 73, "Parking Schedules", Schedule I., subsections (A) (2) and (3) to change the parking limit for approximately the south 60 feet of the Worthing Park lot from two hours to eight hours, and to add parking hour limits to the area along the east side of the F.E.C. Railway tracks. BACKGROUND: In January, the parking hour limit in the Worthing Park lot was changed from four hours to two hours. Since that time, the Parking Management Team has received numerous requests from business owners in this area to at least make part of this lot 8-hour parking so that their employees would have a place to park. In addition, the area along the east side of the F.E.C. railroad tracks was never assigned parking limits. Commission is being requested to amend the ordinance to accommodate these changes. RECOMMENDATION: At first reading on June 17th the ordinance was passed by a vote of 5-0. I recommend that Ordinance No. 27-97 be approved on second and final reading. ref:agmemo6 ORDINANCE NO. 27-97 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 73, "PARKING SCHEDULES", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, BY AMENDING SCHEDULE I. TO REVISE PARKING HOURS FOR CERTAIN LOTS IN THE DOWNTOWN AREA; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the Parking Management Team and the Joint Venture have requested changes to the parking restrictions in the downtown area; and WHEREAS, the City Commission finds these changes to be in the best interests of the citizens of Delray Beach. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That Title VII, "Traffic Code", Chapter 73, "Parking Schedules", Schedule I., Subsections (A) (2) and (3) of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same are hereby amended to read as follows: (2) The two-hour parking restriction shall apply in the following described City-owned parking lots: Lot 8 and the south six inches (6") of Lot 9, and Lots 24 and 25, Block 92, Plat of the Town of Delray, Plat Book 1, Page 3, according to the Public Records of Palm Beach County, Florida. Lots 14, 15 and 16, Block 101, Plat of the Town of Delray, Plat Book 1, Page 3, according to the Public Records of Palm Beach County, Florida. Lot 16 and the north 26.33 feet of Lot 17, and Lots 8 and 9 (less the south 42.5 feet), Block 109, Plat of the Town of Delray, Plat Book 1, Page 3, according to the Public Records of Palm Beach County, Florida. The south 60 feet of Lots 4 throuqh 6 inclusive, the north 16 feet of Lots 7 and 13, and includinq the east/west 16 foot alley, Block 77, Town of Detra¥. Parkinq sDaces on the east side of the Florida East Coast (F.E.C.) Railway, l¥inq west of Lot 8, Block 92, Town of Delra¥. (3) The eight-hour parking restriction shall apply in the following described City-owned parking lots: Lots 10-16, inclusive, and Lot 19, Block 92, Plat of the Town of Delray, Plat Book 1, Page 3, according to the Public Records of Palm Beach County, Florida. The south 7 feet of Lot 6 and Lots 7-11, inclusive, Block 117, Plat of the Town of Delray, Plat Book 1, Page 3, according to the Public Records of Palm Beach County, Florida. Lots 7 and 13, less the north 16 feet thereof, Block 77, Town of Delra¥. Parkinq spaces east of the Florida East Coast (F.E.C.) Railway, lyinq west of Lots 9 throuqh 14, inclusive, Block 92. Section 2. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 3. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 4. That this ordinance shall become effective immediately upon passage on second and final reading. - 2 - Ord. No. 27-97 PASSED AND ADOPTED in regular session on second and final reading on this the 1st day of July , 1997. ATTEST: First Reading June 17, 1997 Second Reading July 1, 1997 - 3 - Ord. No. 27-97 Janet I. Onnen 220 NE 1" Street Delray Beach, Florida 33444 June 4,1997 Mr. Bob Barsinski Assistant City Manager City of Delray Beach 100 NW 1'* Avenue Delray Beach, FL 33444 Re: SE 2"d Avenue Parking Lot Dear Bob: Prompted by the daytime merchants, the Parking Management Team approved a motion that would change the southern row of parking at the City-owned lot on SE 2"°Avenue from 2 hour parking to all-day parking. The PMT recognizes the future parking burden created by the Executive Mall but, in its efforts to remain time-sensitive, recommends this change. Please place this request before the City Commission for their recommendation. Sincerely, Chairperson, Parking Management Team JIO/dp cc: Michael Listick, DDA Members of the PMT: Rick Mouw, Meg Eaton, Robin Bird, Kevin Egan, Bruce Gimmy, Monty Helm, Norma Bannoura, Armand Mouw, Joe Gillie Block 77 Parking Lot A. Two-Hour Parking: S. 60 Feet of Lots 4 to 6, N. 16 feet of Lots 7 & 13 & adjacent east-west 16' alley, Block 77, Town of Delray. B. Eight-Hour Parking: Lots 7 & 13 (less N. 16 Feet Road R/W), Block 77, Town of Delray re ce v d I ATLANTIC AVENUE EYE CARE 204 E. Atlantic Avenue OPTOMETRISTS Phone: (561) 278-4581 Delray Beach, FL 33444 ' Fax: (561) 276-6672 April 21, 1997 Dear Janet, As a business enity on Atlantic Avenue for almost fifty years we have supported most of the changes in the downtown. However, the recent change of the all- day parking lot, north of the two-hour parking lot immediately north of Worthing Park leaves surrounding business employees with no place to park. The forty spaces in this lot go unused all day (see pictures) while the thirty spaces in the two hour lot are rarely filled to capacity. Meanwhile, our employees are required to walk further and cross Atlantic Avenue while utilizing the "all day" lot west of Palm Beach Photographic Centre. We feel this is counter productive and request this lot be returned to "all day" status. This request is based on fairness, distribution, and most importantly utilization. Thank you for your consideration. Carl C. ~arter, O.D. cc: Robert Barcinski MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM:CITY I SUBJECT: AS NDA ITEM #° - ME,TINS OF JULY 1, 1997 APPLICATION AUTHORIZATION AND PROPOSED USE OF BLOCK GRANT FUNDS DATE: JUNE 27, 1997 The Omnibus Fiscal Year 1997 Appropriations Act, Public Law 104-134, provides $523 million for the implementation of the Local Law Enforcement Block Grants Program, to be administered by the Bureau of Justice Assistance (BJA), U.S. Department of Justice. The purpose of the Local Law Enforcement Block Grants Program is to provide units of local government with funds to underwrite projects to reduce crime and improve public safety. We have already been advised that we are eligible to receive a $187,440 grant based on our Urban Crime Rate (UCR) report. In order to receive the funds, we must complete the application which requires a recommendation from an established advisory board as well as the holding of a public hearing regarding the proposed use of funds. The Police Department advisory board has recommended the purchase of CDPD (Cellular Digital Packet Data) wireless technology, an upgrade to Mug imaging link to the county jail, crime scene lab enhancement for fingerprint identification, surveillance system cameras and receivers, overtime costs in the drug interdiction efforts, and volunteer program funding. The grant program requires a ten percent match by the City, or $18,744. Funding would be provided either from the City Manager's contingency account or next year's Police Department budget depending on receipt and acceptance of the grant. Recommend approval of the proposed use of funds and application for the grant. ~$/23/97 M0N 16:51 F.tT 561 243 3774 CITY CLERK ~002 Agenda Item No.: /0~ AGENDA I~EQU P..ST Dat;e: 06/27/97 Reques~ :O be place~ on: ~ Regular Agenda Special Agenda Wo=kshop Agenda When: _07/.01/97 De,trip=ion of agenda i=em (who, what, where, how much): The disposition of a Federal B~oe9 Gr~ *~r ~7~A~0.OO n],,~ ~ C4~v m~ob o* $48,74~.00. Total amount $206.184.00 ~4~ be..,,~J by tb~ ~4~ ~t~ ~n . fund' the following: Volunteer Pro,ram (.S~5.000.0Q). Ov~r~4m~ (~&~A ~} ~ ~uipmen~ (~3~,000.00) ...... O~I~CE/ ~SOLUTI~ ~Q~I~D: YES/NO Draf= A%~ached: YES/NO RecommenCe=ion: Department Head Signature: Determination of Consistency wi~ Comprehensive Plan: city Attorney Review/ Recommen4ation (if applicable): Budge= Director Review (re~uire~ on all items.involving expenditure of funds): Fundin~ available: YES/ NO Funding al~ernatives: (if applicable) Accohnt No.'& Deacrip=fon: Account Balance: City Manage~ Reviewt Approvedforag.n~.: ~NO~//} HOld Until: Agenda.Cooraina~or Review: Reoeived: Ac=ion= App~0V6a/Disapp~oved DELRAY BEACH Delray Beach Police Department NI-AmericaCity (561) 243-7888 Fax (561) 243-7816 llll MEMORANDUM / ~993 TO: David T. Harden, City Manager i~, l)h, l/-'~h\\/// FROM: Richard G. Overman, Chief of Police i~,N" V DATE: June 27, 1997 SUBJECT: BLOCK GRANT Per the requirements established by the Bureau of Justice Assistance for the Local Law Enforcement Block Grant Program, the Advisory Board met this date to review the plan for the available funds. The following is a list, with estimated costs, of our request for funding: 1. Volunteer Program $15,000.00 Costs associated with training and operation throughout the Department's Volunteer Program 2. Overtime 36,184.00 To offset overtime costs associated with the use of the equipment listed in item 3 in the Department's drug interdiction efforts 3. Equipment 155,000.00 a. CDPD hookup 100,000.00 Cellular Digital Packet Data is wireless technology that allows information to be sent and received quickly and securely between patrol vehicles and the AS400 b. Upgrade to Mug Imaging 20,000.00 Required improvements to the system that links us to the County Jail, thus providing timely photos of arrestees c. Crime Scene Lab 10,000.00 Specialized light source that allows for fingerprint identification at a crime scene SUBJECT: BLOCK GRANT June 27, 1997 Page 2 d. Surveillance systems 25,000.00 Small video cameras and receivers for use in conjunction with drug interdiction and other ongoing criminal investigations The grant totals $187,440.00 with a City match of 10%. The total funds that would be available: $206,184.00. The costs listed above are only estimates at this time; however, the Department feels the final will be very close to the stated amount. ppt COMMENTS FROM CITY COMMISSION REGULAR MEETING OF JULY 1, 1997 11. Comments and Inquiries on Non-Agenda Items from the Public - Immediately following Public Hearings. 11.A. City Manager's response to prior public comments and inquiries. The City Manager stated that at the last meeting concerns were expressed regarding the North Federal Highway redevelopment plan and getting more involvement in that plan. Staff has contacted Treasure Coast Regional Planning Council and has asked that they facilitate public meetings as a disinterested party on this issue. In order to finish the North Federal Highway redevelopment plan certain issues need to be addressed, such as determining the most appropriate zoning designation for the Yake property, long term plans for the Delray Swap Shop, landscaping and other improvements of residential areas in the North Federal Highway area, and tying the plan to the Seacrest and Del-Ida Park neighborhood plan. The City Manager felt that it was not necessary to do a block-by-block analysis but due to time constraints and increased development occurring along North Federal Highway, there is a need to get the plan in place. In response to comments with respect to problems with yard trash and garbage pick-up in the Chatelaine neighborhood, the City Manager reported that the City has experienced problems with the level of service being provided by the contracted vendor. Some of the problems have been resolved since the vendor added additional equipment. However, there have been 15 documented complaints from the residents of Chatelaine between April and June 30, 1997. Ail of the complaints were resolved within a two day period, with the exception of one related to missed bulk trash pickup. The City Manager stated that he has asked the Director of Community Improvement to set up a meeting with BFI to inform them that the City is still not satisfied with their quality of service with respect to vegetative trash pickup. He emphasized that BFI needs to take quick action in order to get this corrected or else he intends to formally notify them that they are in default under the terms of the contract. 11.B. From the Public. 11.B.1. Bernie Burkoff, Vice President of the Board of Rainberry Lakes, noted that the City Code restricts the use of barbed wire to commercial properties. Mr. Burkoff stated that the pool area in Rainberry Lakes needs further protection, including a fence along Davis Road, and asked that the Commission consider modifying the code to allow the use of barbed wire in residential areas. ll.B.1. Stan Scheinberq, representing the Tropic Isle Civic Association, suggested that the City consider initiating a Waterfront Advisory Committee so that the Commission can be advised of problems along the City's waterfront. Secondly, Mr. Scheinberg noted that many residents and organizations now own fax machines and suggested that there could be a cost saving if the agenda could be faxed rather than mailed to residents who request this service. ll.B.2. Jean Beer, 945 Tropic Boulevard, stated that there is a strong effort at the County's growth management workshops to push for the development of the Agricultural Reserve area, and expressed concern that such development would have a definite impact on the City. At its last meeting, the Land Use Advisory Board acknowledged that if new development meets certain criteria, approximately 13,000 acres will be allowed to be developed. She emphasized that there is a possibility of land being developed in a huge area located well beyond the urban service line. Mrs. Beer stated that she will not be able to attend a joint workshop meeting between the Land Use Advisory Board and the Board of County Commissioners scheduled for October 22, 1997, and urged the Commission to make sure that someone will be present at this meeting to represent the City. She stated there are three critical issues with respect to growth management: (1) maintaining the urban service line; (2) timing (approved areas within the urban service area will be developed first and there is enough land to be developed to the year 2015); and (3) the school situation. In conclusion, Mrs. Beer urged City officials and residents of the City to contact members of the County Commission in order to monitor actions taken by the County Growth Management Team. ll.B.3. Ali~e Finst, 707 Place Tavant, suggested that the City should look to its alleyway system for the possibility of having garbage pickups in the alleys rather than streets. She felt this would help to improve the overall appearance of the City since trash would not be piled on the main roadways and garbage containers would not be left in front of houses. Secondly, Mrs. Finst noted that the recycling area at the north end of the City Hall parking lot looks pretty bad. There is usually a large amount of cardboard boxes and other trash lying on the pavement which is very unsightly. 13. Comments and Inquiries on Non-Aqenda Items. 13.A. City Manager. In response to Mr. Randolph's comment from a prior meeting regarding the condition of swales along Congress Avenue, the City Manager reported that staff has contacted the County's roads department about the condition of the swales. The person from the County who is responsible for the maintenance of -2- Congress Avenue within our community explained that the County cuts the grass in the swales about every four weeks and edging and trimming is done two/three times a year. They had asked for a budget increase to increase the frequency of the cutting but were turned down by the County Commission. The City Manager reported that the City has received its certification of taxable value for this year and it has increased significantly over the preliminary value. The total increase over last year is now 5.28% which is approximately 3/4 to a whole percent more than what we had been informed at the end of May, 1997. This is good news as the total 1997 preliminary total taxable value is $2,770,548,703, which is the largest increase since 1992. The City Manager pointed out that there are no items for the workshop agenda of July 8, 1997 and suggested that the workshop be rescheduled to either the 4th or 5th Tuesday. Since the millage rate needs to be determined by the end of July, along with other budget matters, it would be beneficial to have a budget workshop toward the end of the month. He suggested adding the capital budget to the regular meeting of July 15, 1997 (if the agenda continues to be light). After discussion, it was the consensus of the Commission to cancel the July 8th workshop. If the agenda for the July 15th regular meeting appears to be light, review of the capital budget should be added to it. Otherwise, a workshop will be scheduled for July 22, 1997. 13.B. City Attorney. The City Attorney had no comments or inquiries. 13.C. City Commission. 13.C.1. Mr. Ellinqworth asked about the status of street paving on S.E. 4th Street between the railroad tracks and Federal Highway? The City Manager stated that this street paving will be done within the next few months. There is a drainage problem at the intersection which needs to be corrected. Once that is done, the road will be resurfaced out to Federal Highway. Mr. Ellingsworth also inquired about street paving on N.E. 12th Street, between Seacrest Boulevard and N.E. 3rd Avenue which badly needs resurfacing. Mr. Ellingsworth also asked the City Manager to provide him with information on the dollar amount that the Community Redevelopment Agency owes the City, the status of funding and the type of repayment involved. 13.C.2. Mr. Scb_midt had no comments or inquiries. 13.C.3. Mr. Randolph had no comments or inquiries. 13.C.4. Mayor Alperin asked if staff was monitoring the County's actions regarding zoning and land use in the Agricultural Reserve? He emphasized that any changes in the west will have an impact upon the City and felt there is a need to be vigilant in this matter. There being no further business, Mayor Alperin declared the meeting adjourned at 8:30 p.m. -4-