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04-16-13 Regular MeetingCity of Delray Beach Regular Commission Meeting Tuesday, April 16, 2013 Regular Meeting 6:00 p.m. Public Hearings 7:00 p.m. Delray Beach City Hall RULES FOR PUBLIC PARTICIPATION 1. PUBLIC COMMENT: 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. The Mayor, presiding officer or a consensus of the City Commission has discretion to adjust the amount of time allocated. Public comment shall be allowed as follows: A. Comments and Inquiries on Non - Agenda and Agenda Items (excluding public hearing or quasi-judicial hearing 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. B. Public Hearings /Quasi- Judicial Hearings: Any citizen is entitled to speak on items under these sections at the time these items are heard by the Commission. 2. SIGN IN SHEET: Prior to the start of the Commission Meeting, individuals wishing to address the Commission 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. 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. All 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. 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. 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 the City Manager at 243 -7010, 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. 100 N.W. 1st Avenue Delray Beach, FL 33444 Phone: (561) 243 -7000 - Fax: (561) 243 -3774 www.mydelraybeach.com REGULAR MEETING AGENDA ROLL CALL 2. INVOCATION 3. PLEDGE OF ALLEGIANCE TO THE FLAG A. NONE 4. APPROVAL OF MINUTES: A. January 8, 2013 Special/Workshop Meeting B. March 19, 2013 — Regular Meeting 5. PROCLAMATIONS: A. Paralyzed Veterans Association (PVA) Awareness Month — April 2013 B. National Arbor Day — April 16, 2013 C. "A Day to Remember" — April 27, 2013 D. Delray Beach Police Department Month — May E. National Travel and Tourism Week — May 4 -12, 2013 6. PRESENTATIONS: A. Presentation of African Art — Sister Cities Committee 7. COMMENTS AND INQUIRIES ON AGENDA AND NON - AGENDA ITEMS FROM THE PUBLIC- IMMEDIATELY FOLLOWING PRESENTATIONS: A. City Manager's response to prior public comments and inquiries. B. From the Public. AGENDA APPROVAL CONSENT AGENDA: City Manager Recommends Approval A. LANDSCAPE MAINTENANCE AGREEMENT /120 SOUTHRIDGE ROAD: Approve a Landscape Maintenance Agreement with R. Scott Buchanan for landscape installation within the right -of -way at 120 Southridge Road. B. ADDITIONAL SCOPE / RANDOLPH & DEWDNEY CONSTRUCTION, INC.: Approve additional scope to Randolph & Dewdney Construction, Inc. in the amount of $16,670.14 for the Fire Station No. 1 Storm Hardening Project. Funding to be paid out of the Contract's Undefined General Allowance. C. RESOLUTION NO. 25 -13: Approve Resolution No. 25 -13 assessing costs for abatement action required to remove nuisances on 29 properties throughout the City of Delrav Beach. D. REVISIONS TO THE COMMISSION RULES OF PROCEDURE:Approve revisions to the Commission Rules of Procedure to allow Dublic comment not to exceed 3 minutes on special agenda items which are part of a workshop meeting. E. SPECIAL EVENT REQUEST /ON THE AVE: Approve a special event request to endorse On the Ave to be held on May 9, 2013 from 6:00 p.m. to 10:00 p.m., to grant a temporary use permit per LDR Section 2.4.6(F) for the closure of Atlantic Avenue from Swinton to the west side of N.E. /S.E. 5th Avenue, Railroad Avenue from Atlantic north to 150 feet north of the east /west alley, and to the alleys north and south of Atlantic on N.E. /S.E. 1st Avenue, N.E. /S.E. 2nd Avenue, S.E. 3rd Avenue, and N.E. /S.E. 4th Avenue and the southeast quadrant of the Delray Beach Center for the Arts grounds; and to authorize staff support as outlined in the staff report; with payment of costs to the City per the Special Event Policies and Procedures. SPECIAL EVENT REQUEST /2ND ANNUAL WINE AND SEAFOOD FESTIVAL: ADDrove a special event reauest for the 2nd Annual Wine and Seafood Festival, sponsored by Greater Delray Beach Chamber of Commerce proposed to be held on November 9, 2013 from 11:00 a.m. to 10:00 p.m., and November 10, 2013 from 11:00 a.m. to 8:00 p.m.; grant a temporary use permit per LDR Section 2.4.6(F ) for closure and use of Atlantic Avenue from the west side of Bronson to the east side of the Intracoastal from 4:00 p.m., Friday, November 8, 2013 through approximately 10:00 p.m. Sunday, November 10, 2013; and authorize staff support as outlined in the staff report; contingent upon the conditions of approval listed in the staff report. The event producer is required to pay 100% of all City costs, plus the administrative fee. G. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period April 1, 2013 through April 12, 2013. H. AWARD OF BIDS AND CONTRACTS: 1. Multiple awards to listed vendors for the Durchase of Chemicals and Fertilizers through the Co -Op annual contract Bid No. 2013 -20 on an "as needed basis" at an estimated annual cost of $205,000.00. Funding is available from Beautification Trust Fund /Parks Maintenance, DB Municipal Golf Course, Lakeview Golf Course, Beautification Trust Fund and General Fund /Parks and Recreation OperatinjZ Supply BudlZets. 10. REGULAR AGENDA: A. RESOLUTION NO. 23 -13 /BEACH RENOURISHMENT PROJECT /FEDERAL HIGHWAY BEAUTIFICATION PROJECT: Consider approval of Resolution No. 23- 13; authorizing the issuance of a bond up to $22,250,000.00 in Delray Beach Bond Anticipation Revenue Improvement Notes, Series 2013, for the purpose of financing all or a portion of a Beach Renourishment Project and a portion of a Federal Highway Beautification Project. B. APPEAL OF SITE PLAN REVIEW AND APPEARANCE BOARD (SPRAB) DECISION: ENTERPRISE RENT -A -CAR: Consider an appeal of the Site Plan Review and Appearance Board (SPRAB) decision to deny a flat wall sign with corporate colors for Enterprise Rent -A -Car, located at 14832 South Military Trail. (Quasi - judicial Hearing) C. PROPOSAL FOR SETTLEMENT IN ELIZABETH BROWN/ BARRETTE BROWN v. CITY OF DELRAY BEACH: Consider a Proposal for Settlement in the total amount of $225,000.00 in Elizabeth Brown /Barrette Brown v. City of Delray Beach. Staff recommends denial. D. APPOINTMENT TO THE PUBLIC ART ADVISORY BOARD: ADDoint one (1 reMular member to the Public Art Advisory Board to serve an unexpired term plus a two (2) year term ending July 31, 2015. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). E. APPOINTMENT TO THE POLICE & FIREFIGHTERS RETIREMENT SYSTEM BOARD OF TRUSTEES: Appoint one (1) regular member to serve a two year term ending April 22, 2015 to the Police & Firefighters Retirement System Board of Trustees. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). 11. PUBLIC HEARINGS: A. ORDINANCE NO. 06 -13: Consider a Drivatelv initiated Future Land Use amendment — small scale from MD (Medium Density Residential 5 -12 du /ac) to GC (General Commercial) and rezoning from RM (Medium Density Residential, ) to GC (General Commercial) for MD Now Delray Beach, located on the north side of Linton Boulevard, west of S.W. 4th Avenue at 601 Linton Boulevard. (Quasi- Judicial Hearin B. ORDINANCE NO. 08 -13: Consider a city- initiated amendment to the Land Development Regulations (LDR) Section 4.4.13, "Central Business (CBD) District ", Subsection 4.4.13 (G)(1), "Central Core and Beach Area Supplemental Regulations ", to provide for parkingulations governing call centers. C• PURCHASE AND SALE AGREEMENT: OLD SCHOOL SQUARE GARAGE RETAIL SPACE: Consider approval of a contract by resolution authorizing the sale and purchase of interior space on the first floor of the Old School Square Garage Retail Space. RESOLUTION NO. 08-13: Provides for the sale to the Law Offices of Kanner & Pintaluga, P.A., in the amount of $2,500,000.00 for 10,400 square feet of interior space on the first floor of the Old School Square Garage Retail Space. RESOLUTION NO. 09 -13: Provides for the sale to S &F Acquisitions, Inc., a related entity of Schmier & Feurring Properties, Inc. in the amount of $2,500,000.00 for 10,400 square feet of interior space on the first floor of the Old School Square Garage Retail Space. RESOLUTION NO. 24 -13: Provides for the sale to The Law Offices of Kanner & Pintaluga, P.A. in the amount of $1,000,000.00 for 5,385 square feet of interior space on the first floor of the Old School Square Garage Retail Space. 12. FIRST READINGS: A. NONE 13. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS: A. City Manager B. City Attorney C. City Commission SPECIAL /WORKSHOP MEETING JANUARY 8, 2013 A Special /Workshop Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Thomas F. Carney, Jr. in the First Floor Conference Room at City Hall at 6:00 p.m., on Tuesday, January 8, 2013. Roll call showed: Present - Commissioner Christina Morrison Commissioner Alson Jacquet Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Thomas F. Carney, Jr. Also present were - Douglas Smith, Interim City Manager Brian Shutt, City Attorney Lanelda Gaskins, Deputy City Clerk Mayor Carney called the Special /Workshop meeting to order and announced that it had been called for the purpose of considering the following Items. SPECIAL MEETING AGENDA 1. SELECTION OF DEPUTY VICE -MAYOR (THROUGH MARCH 28, 2013) Mr. Frankel moved to appoint Angeleta Gray as the Deputy Vice- Mayor through March 28, 2013, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes. Said motion passed with a 5 to 0 vote. Mayor Carney adjourned the Special Meeting at 6:01 p.m. WORKSHOP MEETING AGENDA 1. Discussion regarding Mitigation Alternatives for Beach Erosion at the North End of the Beach Mr. Paul Dorling, Director Planning and Zoning presented a PowerPoint presentation regarding the mitigation alternatives for beach erosion at the north end of the beach. He discussed the erosions control lines, delineation of the dredge fill project, the beach properties along the beach and the north end beach renourishment options. Mr. Dorling stated that a representative for Coastal Planning and Engineering (CPE) talked about coming in on the north end of the beach and extending some fill about 20 cubic yard per feet going north about 4,000 feet at $40.00 per cubic yard, which is estimated at about $3.6 million dollars. The 2,000 feet on the south end of the beach would be an additional cost. He stated that he received some figures from Palm Beach County; and that the County has an agreement with Eastern Aggregate Enterprises for hauling sand from specific mines that are beach compatible for other project within the county. He explained that Costal Planning and Engineering had been in contact with Palm Beach County regarding their contract. Mr. Dorling discussed several options as follows: Option 1) add fill with trucked in sand at (20 cubic yards going north at 4,500 feet at $40.00 per cubic yard), at an estimated cost of $3.6 million or potentially less if the City is able to piggyback on the County contract for hauling with Eastern Aggregate Enterprises, which is currently doing similar hauling for dune restoration for the County. Option 2) add fill with trucked in sand to add approximately two cubic yard for each frontage foot located in front of the existing escarpment to cover the roots of existing dune plants (same cubic yard and feet at $40.00 per cubic yard) at an estimated cost of $360,000. This provides aesthetic relief and some limited protection. He also discussed the difference between the public beach and the area adjacent to the private property. According to DEP (Department of Environmental Protection), there are several options the private property owners can take with any of the solution. Individual private property owners that have property which abuts the beach can consult with DEP to bring in fill as long as they meet the same criteria as the City. The private property owner would have to consult with the City because of the access points to get the sand on the beach. The City would be a party to that, but does not have to be the applicant or contact DEP. The property owners can contact DEP directly. Representative Richard Spadoni of Coastal Planning and Engineering stated that he contacted Tony McNeal of the FDEP CCCL program and asked him two questions. First question, can the beach renourshiment dredge stockpile sand from the offshore borrow area to be used by the residents to restore the dunes damaged by the hurricane. Mr. McNeal response was no. Second question, does the City have to request approval under the emergency order to restore dunes behind the private property or can the residents do it themselves. Mr. NcNeal response was yes, it could be done through the City requesting permission or an individual property owner can request permission. Mr. Spadoni stated that the contract between Palm Beach County and Eastern Aggregate Enterprises is setup in a fashion that the City Delray Beach and Palm Beach County can utilize the contract to get materials on the beach. He asked Mr. Eastman to give two estimates, one for 10,000 tons of sand and another for 60,000 tons. In each case, the estimates are about $45.00 cubic per yard, which exceeds what was anticipated. The problem is Eastman Aggregate Enterprises is trucking the sand from Fort Pierce, which is most compatible with the City sediment. It adds a lot of mileage on the trip and drives the cost up. This is the contract that would bring in the sand. Based on Mr. Eastman's estimate it would be about $45.00 per cubic yard and he would look at the site conditions to determine if there would be additional costs related getting the trucks on and off the beach. The private properties owners are pretty close to the access point and will not necessary suffer the consequences of the fill being trucked up and down the beaches. Their cost would be about $45.00 per cubic yards. Mr. Frankel asked if anyone contacted Senator Nelson's office or the state representatives to see if there is funding available. Mr. Dorling stated that there was a request for funding submitted by the State to FEMA and it was denied. We are unable to get federal funding for beach renourishment. Mayor Carney asked if it was the State DEP that said the City could not use the sand Mrs. Gray asked if the City considers option two, does the City have the funds. Ms. Morrison asked if December 2013 the mandated deadline, and if the City can get some of the funding that was recently approved by Palm Beach County for beach renourishment. Mr. Jacquet asked if the city considered contributions from private property owners. Discussion ensued between Commission and staff regarding the funding for the beach renourishment project. 2 January 8, 2013 Mr. Dorling stated if the City is going to proceed with any request to DEP, CPE needs to be on board and they need to provide numbers with respect to volume. Off shore and sand surveys needs to be done. Mayor asked about the time table. Mr. Dorling stated that he will be meeting with the DEP to discuss if the emergency order can be used in this case. Mr. Spadoni stated that the surveyors will be on the beach over the next two weeks. After discussion, it was the consensus of the Commission for staff to work with the engineering firm to put the studies together for the beach renourshment project and also look at option two. Mr. Smith stated that staff can try to get some information and have an agenda item on next week Regular Commission agenda, if Commission takes some action on approving engineering fees or any other action necessary. Mr. Shutt asked if Commission would like to piggyback on Palm Beach County agreement. Commission would like the City to piggyback on Palm Beach County agreement. 2. Palm Beach County Sports Commission Presentation Michael Brady, President of the Palm Beach County Sports Commission ( PBCSC) gave a brief overview of the Sports Commission mission. PBCSC mission is to bring tourism into Delray Beach and Palm Beach County through sports. Mr. Brady introduced Margie Walden. Margie Walden gave a PowerPoint presentation regarding the events Palm Beach County Sports Commission brought to the City over the past years. She stated that there is a tremendous amount of resources in Delray Beach in terms of the sports facilities. She believes it would be a great opportunity to look at sports and the innovation of entertainment for economic development. Ms. Walden asked if there is an interest to make Delray Beach a sports destination. If so, is there a possibility to make a strategic plan to bring the Parks and Recreation Director, Delray Beach Marketing Cooperative, Downtown Development Authority, ELEV8 and Prep & Sport together. She suggested a vision and a possible plan of action that might help. As well as asked can the resources be made better and come up with a strategic plan to move forward. Discussion ensued between Commission and Ms. Walden regarding how much money is spent in the South county area, use of the City facilities and future meeting with the stakeholders. It was the consensus of the Commission for all the stakeholders to meet. Mayor stated he is in favor of at least exploring the possibility of doing something if Palm Beach County Sports Commission ( PBCSC) can come back with a reasonable price and it would be considered. Commission thanks the Palm Beach County Sports Commission and Margie Walden for their presentation. At this point, 6:47 p.m., Commissioner Jacquet left the meeting. 3 January 8, 2013 3. Direction regarding the Use of Air Rights Above Public Rights -of -Wad Mr. Brian Shutt presented this item. Staff is seeking direction from Commission regarding 32 East request for use of air rights to allow structures to encroach into the public right of way for commercial purpose. Currently, the Land Development Regulations does not allow this and will have to be amended to allow this to occur. Paul Dorling, Director of Planning and Zoning discussed several photographs showing the canopy, balcony and railing for 32 East. He stated that the code in this situation requires a five feet setback from the property line. The canopy for a balcony is allowed to encroach four feet into the setback. At the February 11, 2011 Regular Meeting, Commission approved two waiver requests for Front Setbacks, and Structures Allowed within Setback to permit a proposed balcony, support columns of the balcony- canopy, entry arch columns and attached high top tables to encroach within the front setback. Mr. Dorling stated that during the process, the applicant said he wanted to hardscape canopy, not an awning, and wanted to extend it to protect its patrons underneath. There were some concerns. He stated that all along in the process it was made clear to the applicant that the seating could not be expanded and there was a limited use area. The applicant built the newly - constructed balcony /canopy and thought he should be able to use it, and was aware that he could not and should not use it under the current scenario. The physical building currently extends into the right -of -way and four feet over the property line. The applicant built this knowing that he could not use it and there is no obligation to allow the applicant to use it. Mr. Dorling stated if it is the Commission desire to look at allowing the applicant to use the public space the following needs to happen: the additional use area will be subject to in -lieu parking fees in the amount of $15,600.00 for two spaces, and an annual lease agreement. Discussion ensued between Commission and staff. Commission directed staff to prepare an agreement with 32 East to provide some form of payment, an annual lease agreement renewal by City Commission, and to charge the appropriate in -lieu parking fee. 4. State Legislative Update Richard Reade, Sustainability Officer /PIO presented this item. He stated that the City has been working with All Florida Solutions, a subsidiary of Weiss, Handler & Cornwell, P.A. to develop language to present to elected officials that would protect and preserve some of the City's interest. He introduced Henry Handler from Weiss Handler. Mr. Handler gave an update regarding the City's actions to prepare for the upcoming 2013 State Legislative Session. He stated that they developed an outline of issues that is based in part from the association of counties and the Palm Beach County League of Cities. The goal is to make the state legislative issues specific to the Delray Beach. Next week they will approach the legislative delegation with what is important to the city, in addition to what has been generated and developed by the Palm Beach County League of Cities and the association of cities. Mr. Handler introduced Megan Hoeser and stated that they have been working with Douglas Smith and Richard Reade with regards to Delray enterprise zone legislation. Received very good cooperation from Representative Lori Berman of the House of Representatives, and a bill has been submitted to drafting for the Delray Enterprise Zone. Senator Maria Sachs will be the author of the Delray Enterprise Zone Bill. Mr. Handler and Richard Reade are working together to develop meetings with local legislative delegation and is targeting dates at the end of January. The meeting will bring the legislative delegation and the City Commission together to emphasize what is important to the City of Delray Beach. 4 January 8, 2013 Mr. Reade explained that Representatives Bill Hager and Bobby Powell have agreed to be co- sponsors on the bill. Discussion between Commission and staff continued regarding the state legislative issues specific to the City of Delray Beach. Mr. Reade suggested a joint meeting with Senator Maria Sachs and Representatives Bill Hager and Bobby Powell on January 29`h or January 30`' It was the consensus of Commission to meet on Wednesday, January 30, 2013 at 6:00 pm 5. Discussion Regarding City Commission Voting Procedure Mayor Carney presented this item and discussed the City Commission voting procedures. Currently the Charter provides that the all votes taken by the Commission shall be by roll call and must be made in the affirmative. He suggested that Commission consider changing the voting procedure to allow the votes to be done in a more expeditious manner and remove the language from the Charter. Mr. Shutt stated he will come back before Commission with an ordinance at the January 15, 2013 Regular Meeting and the second reading ordinance will have to be adopted by February 5, 2013, because the language will have to be provided to the Palm Beach County Supervisor of Election by February 8, 2013. He asked if the voting procedures shall be as in accordance with the Local Rules of Procedures. Discussion continued and Commission agreed to keep the three affirmative votes as outlined in the Local Rules of Procedures. Mayor Carney adjourned the Workshop Meeting at 7:51 p.m. ATTEST: MAYOR City Clerk The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information provided herein is the Minutes of the Special /Workshop Meeting of the City Commission held on Tuesday, January 8, 2013, which Minutes were formally approved and adopted by the City Commission on April 16, 2013. 5 January 8, 2013 City Clerk NOTE TO READER: If the Minutes you have received are not completed as indicated above, this means they are not the official Minutes of the City Commission. They will become the official Minutes only after review and approval, which may involve amendments, additions or deletions to the Minutes as set forth above. January 8, 2013 MARCH 19, 2013 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Thomas F. Carney, Jr. in the Commission Chambers at City Hall at 6:00 p.m., Tuesday, March 19, 2013. 1. Roll call showed: Present- Commissioner Christina Morrison Commissioner Alson Jacquet Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Thomas F. Carney, Jr. Absent - None Also present were - Douglas E. Smith, Interim City Manager Brian Shutt, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Reverend Kathleen Gannon with St. Paul's Episcopal Church. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. APPROVAL OF MINUTES: Mr. Frankel moved to approve the Minutes of the Workshop Meeting of January 31, 2013, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes. Said motion passed with a 5 to 0 vote. Mrs. Gray moved to approve the Minutes of the Regular Meeting of February 19, 2013, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 6. PROCLAMATIONS: 6.A. Water Conservation Month — April 2013 Mayor Carney read and presented a proclamation hereby proclaiming the month of April 2013 as Water Conservation Month. Victor Majtenyi, Interim Environmental Services Director, came forward to accept the proclamation and gave a 03/19/13 few brief comments. 7. PRESENTATIONS: 7.A. RESOLUTION NO. 18 -13: Approve Resolution No. 18 -13 recognizing and commending Barbara J. Flynn for 35 years of dedicated service to the City of Delray Beach. The caption of Resolution No. 18 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, RECOGNIZING AND COMMENDING BARBARA J. FLYNN FOR THIRTY -FIVE YEARS OF LOYAL SERVICE TO THE CITY OF DELRAY BEACH. (The official copy of Resolution No. 18 -13 is on file in the City Clerk's office.) Mayor Carney read Resolution No. 18 -13 into the record. David Boyd, Finance Director, came forward to accept the resolution on behalf of Barbara J. Flynn. Mr. Frankel moved to approve Resolution No. 18 -13, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 7.B. Recognizing and commending NAKeD Hair Salon for their contributions and service in the community Mayor Carney asked Vice Mayor Frankel to read the recognition award commending NAKeD Hair salon for their contributions. Vice Mayor Frankel read and presented a special recognition award to Adam and Janine Schuman for their dedication and service in the community. Janine Schuman came forward to accept the proclamation and gave a few brief comments. 7.C. Check Presentation for Sponsorship of a portion of First Night - Delray Beach Marketing Cooperative (DBMC) (ADDENDUM) Sarah Martin, Executive Director of the Delray Beach Marketing Cooperative, gave a brief overview of the partnership between the City of Delray Beach, the Delray Beach Marketing Cooperative (DBMC), the Community Redevelopment Agency (CRA), and the Chamber of Commerce. Ms. Martin presented the City of Delray Beach with a check in the amount of $69,094 to help off -set holiday expenditures. She stated this past year the DBMC raised over $223,000 in revenue; $267,000 in in -kind services and donations; received over $1.695 billion marketing impressions that is mostly 2 03/19/13 attributed to Delray's "Small Town" win. In addition, Ms. Martin stated Delray Beach has been nominated for the top five in the County's largest tourism award. At this point, the time being 6:22 p.m., the Commission moved to Item 8, Comments and Inquiries on Agenda and Non - Agenda Items From the Public and the City Manager Immediately Following Presentations. 9.11. From the Public. 9.11.1. Steve Blum, Antilles Homeowners' Association, 115 Venetian Drive Unit "C ", Delray Beach, FL 33483, read a brief statement into the record regarding the change on the agenda regarding public comments. Mr. Blum gave kudos to Mayor Carney and the Commission for all they have done for Ethics Reform. 9.11.2. Pauline Moody, 609 S.W. 8th Avenue, Delray Beach, FL 33444, briefly spoke about the Beach Renourishment Project and asked if anyone has checked regularly on the sewage pipe on a regular basis. 9.A. City Manager's response to prior public comments and inquiries. In response to comments expressed by Ms. Moody at the last regular meeting regarding the security company from the tennis tournament and valet parking, Mr. Smith stated Mr. Barcinski provided Mr. Smith with a summary and he mentioned that the company the City hired for the security was just for the security and not parking. The officers and bag checkers that he saw were in proper uniforms and Mr. Barcinski cannot speak for 24/7 since he was not there the entire time; however, the police staff keeps a close eye on that. Mr. Smith stated Mr. Baron hires the valet parking companies and the company he hired is the same company that the City hired to manage and control the City paid and reserved lots. Mr. Smith stated Mr. Barcinski indicated that his observations were proper uniform and attire was worn. 9. CONSENT AGENDA: City Manager Recommends Approval. 9.A. GRANT APPLICATION/FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT): Authorize staff to accept a grant from the Florida Department of Transportation (FDOT) in the amount of $525,000.00 for the Downtown Roundabout Shuttle trolley system. 9.11. SOUTH FLORIDA REGIONAL TRANSPORTATION AUTHORITY (SFRTA): Authorize staff to pursue an agreement with South Florida Regional Transportation Authority (SFRTA) for the feeder service program to provide funding to the City for shuttle service between the Tri-Rail Station. 9.C. RESOLUTION NO. 21 -13: Approve Resolution No. 21 -13; a declaration to reimburse capital expenditures relative to the Beach Nourishment Project as well as the Federal Highway Beautification Project. 03/19/13 The caption of Resolution No. 21 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, DECLARING OF OFFICIAL INTENT WITH RESPECT TO REIMBURSEMENT OF TEMPORARY ADVANCES MADE FOR CAPITAL EXPENDITURES TO BE MADE FROM SUBSEQUENT BORROWINGS; AND PROVIDING FOR AN EFFECTIVE DATE. (The official copy of Resolution No. 21 -13 is on file in the City Clerk's office.) 9.D. CONSENT TO ASSIGNMENT/ ROSSO PAVING & GRADING, INC. TO ROSSO SITE DEVELOPMENT, INC.: Approve a Consent to Assignment with Rosso Paving & Grading, Inc. to Rosso Site Development, Inc. 9.E. RESOLUTION NO. 10 -13: Approve Resolution No. 10 -13 assessing costs for abatement action required to remove nuisances on 14 properties throughout the City of Delray Beach. The caption of Resolution No. 10 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 100 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATING NUISANCES UPON CERTAIN LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH AND PROVIDING THAT A NOTICE OF LIEN SHALL ACCOMPANY THE NOTICE OF ASSESSMENT; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ABATEMENT OF NUISANCES; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ON ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS. (The official copy of Resolution No. 10 -13 is on file in the City Clerk's office.) 9.F. GRANT APPLICATION/FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT)/HIGHWAY SAFETY PROGRAM: Approval 4 03/19/13 to submit a grant application to the Florida Department of Transportation's (FDOT) Highway Safety Program in the amount of $57,808.00 for programming to mitigate aggressive driving within the City limits. 9.G. GRANT AGREEMENT/PALM BEACH COUNTY/ FED CUP TIE: Approve a Grant Agreement between the City and Palm Beach County to provide a grant to the City in the amount of $38,000.00 for the FED Cup Tie to be held on April 20 & 21, 2013. 9.11. MUNICIPAL ELECTION RESULTS/RESOLUTION NO. 20- 13: Canvass the returns, and declare the results of the March 12, 2013 First Nonpartisan and Special Elections and approve Resolution No. 20 -13. 9.I. SPECIAL EVENT REQUEST /AVDA 5K/10K WALK/RUN: Approve a special event request to endorse the 14th Annual Aid to Victims of Domestic Abuse, Inc. (AVDA) 5K /IOK Walk/Run to be held on Saturday, October 12, 2013 from 7:30 a.m. until approximately noon, with set up at 5:00 a.m., to grant a temporary use permit per LDR Section 2.4.6(F) for the use of Anchor Park and the City right -of -way along Ocean Boulevard from Bucida Road to George Bush Boulevard, to waive parking meter fees in Anchor Park, Sandoway lots, Atlantic Dunes Park, Ingraham Lot and the City lot at Gleason Street from 5:00 a.m. to 11:00 a.m., and to authorize support as outlined in the staff report, with the event producer paying 100% of City costs; contingent on the receipt of the Certificate of Liability Insurance by September 27, 2013. 9_J. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period March 4, 2013 through March 15, 2013. 9.K RIGHT OF WAY DEED ACCEPTANCE /428 N.E. 8TH AVENUE: Approve acceptance of a right -of -way deed for two feet (2') of alley right -of -way dedication for the property located at 428 N.E. 8m Avenue. (ADDENDUM) Vice Mayor Frankel stated Item 9.G., Grant for the FED Cup, he voted on it at the TDC meeting and asked if there is a conflict for him to vote on it again. The City Attorney stated as long as this does not inure to his personal gain or loss then there is no conflict. Mr. Frankel moved to approve the Consent Agenda, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes. Said motion passed with a 5 to 0 vote. 5 03/19/13 5. AGENDA APPROVAL. Mr. Frankel moved to approve the Agenda, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 10. REGULAR AGENDA: 10.A. CONDITIONAL USE REQUEST /SOUTHGATE MOTEL: Consider approval of a conditional use request associated with the renovation and expansion of the existing ten (10) room motel including the construction of a two -story addition to accommodate seventeen (17) new motel rooms for a total of twenty -seven (27) rooms, and construction of new on -site parking spaces with associated landscaping for Southgate Motel, located at 1600 North Federal Highway. (Quasi- Judicial Hearing) Mayor Carney read the City of Delray Beach Quasi - Judicial Hearing rules into the record for this item and all subsequent Quasi - Judicial items. Chevelle D. Nubin, City Clerk, swore in those individual who wished to give testimony on this item. Mayor Carney asked the Commission to disclose their ex parte communications. Mayor Carney noted that he spoke with Mr. Dorling on this issue. Ms. Morrison disclosed that she attended the Planning and Zoning Board meeting when this was discussed. The rest of the Commission had no ex parte communications to disclose. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2013 -080 into the record. Mr. Dorling stated this item is a conditional use request to expand the ten (10) rooms to accommodate seventeen (17) new rooms along with construction of on -site parking and landscaping. He stated this is a 0.67 acre site and the existing motel is 3,937 square feet and it would be expanded by an additional 9,614 feet for a total of 13,551 square feet, add seventeen (17) rooms, would be open twenty -four (24) hours and would include a site manager's office and residence. Mr. Dorling stated it would also include amenities including laundry facilities and continental breakfast facilities for those patrons staying on the site. At its meeting of February 14, 2013, the Community Redevelopment Agency (CRA) considered the development and recommended approval. At its meeting of February 25, 2013, the Planning and Zoning Board made a recommendation to the City Commission to approve the conditional use request with a vote of 5 to 1. Staff recommends approval subject to seventeen (17) conditions as listed in Exhibit "A" of the Board Order. 6 03/19/13 There was no applicant present. Mayor Carney stated if anyone from the public would like to speak in favor or in opposition of the conditional use request, to please come forward at this time. There being no one from the public who wished to address the Commission, the public hearing was closed. Mr. Frankel stated he wants to ensure that this remains a motel and not a treatment or medical procedure facility. Mr. Dorling stated this is a general commercial district so a medical office would be allowed; this is a conditional use for a motel so the Commission can apply conditions relating to that if they so wish. Mr. Dorling stated if they wanted to seek medical offices they would have to return with a Class III change of use. Mr. Frankel proposed a condition that no medical procedures or counseling take part on this property. Mr. Jacquet stated he does not feel comfortable with going forward with this right now. The City Attorney suggested that the Commission can place a condition on the property that no medical or counseling services should be offered on -site. Ms. Morrison asked if there are currently any outstanding code violations on this property. Mr. Dorling stated he is not aware of any code violations. Ms. Morrison asked if it is true that there is significant police presence on this property now. Mr. Dorling stated there are a number of calls that come to this property; some calls are a result of the applicant requesting that officers do their paperwork in the parking lot and some related to the people who frequent the site. Ms. Morrison asked if the issue concerning the owners unit that was brought up at the Planning and Zoning Board meeting has been resolved. Mr. Dorling stated this has not been resolved; there are a number of ways to accomplish that and if it is approved and moved forward it would have to be resolved at the site plan stage. Ms. Morrison stated she is not in support of this. At this point, Chevelle D. Nubin, City Clerk swore in Mr. Bob Currie, Architect for the Project. Mr. Currie stated the owner has tried hard to clean this up and wants to have a standard motel. Mr. Frankel suggested that a condition be added that there will be no medical treatment provided there. Mr. Jacquet inquired about the square footage. Mrs. Gray expressed concern over medical facilities turning into something other than what they came in for and stated if staff could get the language 7 03/19/13 together that would prohibit some of these medical centers and for it to just be a motel then she would be in favor of it because the City needs redevelopment in this area. Mr. Jacquet stated the past few years the City has been struggling to protect the community and he does not feel that confident that this is going to be only a motel; he feels by granting this we will see this again in the near future where it may pose a problem. Mr. Jacquet reiterated that he does not feel it is the right thing for this area of Federal Highway at this moment. The City Attorney stated he can add condition #18 would be no medical or counseling services of any kind should be offered or allowed on -site. The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Jacquet moved to adopt the Board Order denying the conditional use request, seconded by Ms. Morrison. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — No; Mrs. Gray — No; Mayor Carney — Yes; Ms. Morrison — Yes. Said motion denying the conditional use was passed with a 3 to 2 vote, Commissioner Frankel and Commissioner Gray dissenting). 10.B. APPEAL OF SITE PLAN REVIEW AND APPEARANCE BOARD (SPRAB) DECISION: ENTERPRISE RENT -A -CAR: Consider an appeal of the Site Plan Review and Appearance Board (SPRAB) decision to deny a flat wall sign with corporate colors for Enterprise Rent -A -Car, located at 14832 South Military Trail. (Quasi- Judicial Hearing) Mr. Frankel moved to postpone to April 16, 2013, seconded by Mr. Jacquet. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 10.C. WAIVER REQUESTS/DELRAY BEACH FAIRFIELD HOTEL: Consider approval of six (6) waivers to the Land Development Regulations (LDR) Sections 4.4.13(F)(4)(b)(1), "Front Setbacks ", 4.4.13.(F)(4)(c)(1), "Building Frontage ", 4.6.9(13)(3)(c)(1), "Stacking Distance ", 6.1.3(B)(1)(f), "Sidewalk Design Requirements" and 4.6.18(B)(14)(iv)(2), "Windows and Doors ", pertaining to the Delray Beach Fairfield Hotel, located on the south side of West Atlantic Avenue, between S.W. 9th Avenue and S.W. 10th Avenue. (Quasi- Judicial Hearing) Mayor Carney asked the Commission to disclose their ex parte communications. Mr. Frankel stated he spoke to Vin Nolan this morning. Mrs. Gray stated she received a telephone call from Vin Nolan but did not speak to him. Mayor Carney stated he spoke with a representative of the developer. Ms. Morrison stated she received an email from Diane Colonna. Mr. Jacquet stated he spoke with Jeff Costello of 8 03/19/13 the CRA and Jim the developer. Mayor Carney stated he spoke to Jeff Costello. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2013 -040 into the record. Mr. Dorling stated this request is for six (6) waivers associated with the Delray Beach Fairfield Hotel and its proposed location between S.W. 9th Avenue and S.W. 10th Avenue on the south side of Atlantic Avenue. Mr. Dorling stated the six (6) waivers are explained in detail in the staff report; the first three (3) waivers relate to waivers to setbacks. He stated the fourth waiver relates to waivers to setbacks and there is a waiver to stacking distances to the parking lot a reduction to 14 feet and 11 feet where 50 feet is required when there are dual entries. Mr. Dorling stated there is a waiver for the sidewalk design in the CBD; 8 feet is required; 5 feet is proposed. Staff recommends approval subject to the 8 feet portion of the sidewalk to be extended wrapping around on 9th and 10th to the driveway. He stated there is also a waiver to the amount of transparency and the transparency issue requires 75% relating to retail uses when there is a hotel where privacy is necessary. At its meeting of February 27, 2013, the Site Plan Review and Appearance Board (SPRAB) recommended approval with a 5 to 0 vote. Larry Abbo, Prime Hospitality Group, 4651 Sheridan Street, Suite #480, Hollywood, FL 33021 (applicant), stated he is happy to be before the Commission and hopefully nearing the final stages of approval. Mr. Abbo stated he is present for any questions the Commission may have regarding the project. Ms. Morrison commended the applicant for his patience over the past three years. Mr. Jacquet thanked the applicant and his team for being interested in developing in Delray Beach and he appreciates the time that Mr. Abbo has taken to work with the community, the City, the CRA and all the different partners. Mayor Carney asked Mr. Abbo to provide an update on how they work with the Police Department. Mr. Abbo stated they have gone back and forth on a number of ideas with the Police Department. He stated there is some hesitation as to what to expect with regards to potential crime issues, etc. Mr. Abbo stated they made some commitments as far as security, detail of staff and camera requirements. Mayor Carney stated he is very happy that Mr. Abbo stuck with us. The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Jacquet moved to adopt the Board Order as presented, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor 9 03/19/13 Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 7:03 p.m., the Commission moved to Item 11, the duly advertised Public Hearings portion of the Agenda. 11. PUBLIC HEARINGS: 1LA. RESOLUTION NO. 19 -13 /CONTRACT FOR SALE AND PURCHASE /125 N.W. 12 AVENUE: Consider approval of Resolution No. 19 -13, a contract for sale and purchase, authorizing the City to sell the Neighborhood Stabilization Program property located at 125 N.W. 12th Avenue to Azianne Zamor in the amount of $70,000.00 or appraised value. The caption of Resolution No. 19 -13 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO SELL REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, AS DESCRIBED HEREIN, HEREBY INCORPORATING AND ACCEPTING THE CONTRACT STATING THE TERMS AND CONDITIONS FOR THE SALE AND PURCHASE BETWEEN THE BUYER AND THE CITY OF DELRAY BEACH, FLORIDA. (The official copy of Resolution No. 19 -13 is on file in the City Clerk's office.) The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. Lula Butler, Director of Community Improvement, stated this is a request for the Commission to approve a sale of a Neighborhood Stabilization home and noted this is the 20th house that they have sold located at 125 N.W. 12th Avenue to Azianne Zamor for the purchase price of $70,000 or appraised value. Mrs. Butler stated the City was awarded $9.1 million from the State for the Neighborhood Stabilization Program (NSP) matched with another $400,000 from the Community Redevelopment Agency (CRA). Staff recommends approval. Mr. Jacquet asked how the City selects the buyers. Mrs. Butler stated the buyers are done through the non - profit partners; Delray CDC and the CLT. She explained that they bring the eligible client to the table and the more money the City earns it creates a revolving fund for us to purchase and sell. 10 03/19/13 Mayor Carney declared the public hearing open. There being no one from the public who wished to address the Commission regarding Resolution No. 19 -13, the public hearing was closed. Ms. Morrison applauded Mrs. Butler for placing another property on the tax roll. Ms. Morrison moved to approve Resolution No. 19 -13, seconded by Mr. Jacquet. Upon roll call the Commission voted as follows: Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 12. FIRST READINGS: 12.A. ORDINANCE NO. 07 -13: Consider a privately- initiated rezoning from AC (Automotive Commercial) to PC (Planned Commercial) for Delray Marketplace (former Ralph Buick Dealership property), located at 2501 South Federal Highway. If passed, a public hearing will be held on April 2, 2013. office.) The caption of Ordinance No. 07 -13 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, REZONING LAND PRESENTLY ZONED AC (AUTOMOTIVE COMMERCIAL) DISTRICT TO PC (PLANNED COMMERCIAL) DISTRICT; SAID LAND BEING A PARCEL LOCATED AT THE NORTHEAST CORNER OF SOUTH FEDERAL HIGHWAY (U.S. HIGHWAY NO. 1) AND FLADELL' S WAY (AVENUE "F "), AS MORE PARTICULARLY DESCRIBED HEREIN; AMENDING "ZONING MAP OF DELRAY BEACH, FLORIDA, JANUARY, 2012 "; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 07 -13 is on file in the City Clerk's The City Attorney read the caption of the ordinance. Paul Dorling, AICP, Director of Planning and Zoning, stated this is a privately initiated rezoning from AC (Automotive Commercial) to PC (Planned Commercial) for Delray Marketplace (former Ralph Buick Dealership property), located at 2501 South Federal Highway. Mr. Dorling stated staff feels that this is more appropriate at this time to rezone this property to PC. He stated this was also identified in the South Federal Highway Redevelopment Plan approved by the City Commission on 11 03/19/13 September 20, 2012 and it indicated that a shopping center or a mixed use development was more appropriate for this site under the PC zoning and would not be accomplished under the current zoning. At its meeting of February 15, 2013, the Planning and Zoning Board considered the application to rezone the property from AC and PC and recommended approval with a 5 to 1 vote (Franciosa dissenting, Pierre -Louis absent). Staff recommends approval. Mr. Jacquet stated he is looking forward to the second reading when the public gets to speak on this item. Mayor Carney asked why staff feels that PC is better. Mr. Dorling stated staff feels that site is better with a mixed use development for a shopping center on that side of the road rather than an auto related use. Mr. Dorling stated historically that has created some issues in the past and as part of the plan discussed it should be a general commercial use. Mr. Frankel moved to approve Ordinance No. 07 -13 on FIRST Reading, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 7:13 p.m., the Commission moved back to Item 10.1). of the Regular Agenda. 10.D. CONDITIONAL USE REQUEST/DELRAY MEDICAL CENTER: Consider approval of a conditional use request to increase the building height to a maximum of 60 feet for the Delray Medical Center located at 5270 Linton Boulevard. (Quasi- Judicial Hearing) Mayor Carney asked the Commission to disclose their ex parte communications. The Commission had no ex parte communications to disclose. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning project file #2013 -075 into the record. Mr. Dorling stated this is a conditional use request to increase the building height to a maximum of sixty (60) feet for the Delray Medical Center known as the Delray Medical Hospital on Military Trail and Linton Boulevard. He stated there is a development application that has been submitted as part of this to construct a four -floor building addition on the north side of the existing hospital that will contain 140 private patient rooms. This addition will not result in additional beds because they will be converting semi - private rooms to private rooms so the number of beds will stay the same but these will be single bed rooms. Mr. Dorling stated the improvements also include a 343 space parking garage on the north side of the hospital and a helipad on the roof of the new hospital wing and associated parking and landscape changes associated with the 12 03/19/13 proposed buildings. Mr. Dorling stated this was a result of a text change that the City Commission approved on February 19, 2013 to allow this area to be one of those areas considered for additional height up to the sixty (60) feet which was approved on March 5, 2013. At its meeting of February 25, 2013, the Planning and Zoning Board considered this item and recommended approval with a 6 to 0 vote. Mr. Dorling stated there were some residents from the neighboring community (Country Lake) to the south that had concerns over flooding which is in association with the Wal -Mart property. He stated residents also expressed desire to enhance buffering between the hospital property and their subdivision. Mr. Dorling stated the applicant has met with both the community representatives from Country Lake as well as staff and the requirements for increased landscaping will be part of the site plan which will follow this conditional use process. The Planning and Zoning Board also recommended as a condition of approval that the applicant seek a Florida Green Building or LEED Certification for the building addition (condition #3 attached to the staff report). Colleen Walter, Urban Design Kilday Studios, 477 S. Rosemary Road #225, West Palm Beach, FL 33401 (applicant), speaking on behalf of Delray Medical Center introduced the Director of Plant Operations, the Architect and the Landscape Architect. Ms. Walter stated Delray Medical Center was originally approved in unincorporated Palm Beach County in 1980. She stated what is here before the Commission now is another expansion; the construction of a parking structure as well as now a 4 -story addition that would be at the front of the building which will add 140 private rooms. Ms. Walter stated this will allow for 140 semi - private rooms to be redone and they would become private rooms as well. She stated there will also be a new helipad that will be located on the top of that 4 -story addition which is over the emergency department and will facilitate trauma care being able to bring patients directly down from the roof into the emergency department. Ms. Walter stated in LDR Section 4.3.4(J)(4)(b) which allows the Commission to consider a conditional use request to increase height there are certain criteria that have to be met for the Commission's consideration of that increase which includes additional building setbacks, the inclusion of courtyards, plazas, as well as landscaping to reduce the mass of all of the proposed facilities. Rob Kurtaugh, Stephen Boruff Architects, gave a brief overview of the project and stated green architecture is part of what they do. Jonathan Haag, Landscape Architect with Kimley Horn and Associates, gave a brief overview of the landscape elevations. Ms. Walters stated they believe that the project complies with all the performance standards, the required findings, and is consistent with the City's Comprehensive Plan as well as meeting all the conditional use standards. She stated Mr. Dorling indicated that there are three (3) conditions of approval that are included in the proposed Board Order; the first one requires the applicant to receive site plan approval 13 03/19/13 from SPRAB, the second would be to revise the landscape plan to reflect the program that Jonathan proposed where the required shrubs and ground cover would be planted in the Linton Boulevard buffer but the trees would be relocated to the south buffer, and the third condition is that the applicant has requested to look into obtaining Florida Green Building or LEED Certification. Mayor Carney stated if anyone from the public would like to address the Commission regarding the conditional use request, to please come forward at this time. Robert Ganger, 1443 North Ocean Boulevard, Delray Beach, FL 33483, supports the conditional use and feels that not only does the concept make sense but it adds a great deal of value to the City of Delray Beach. He urged the Commission to approve this project. There being no one else from the public who wished to address the Commission, the public hearing was closed. Mr. Jacquet supports the conditional use. Ms. Morrison asked if the photometric issue has been addressed in the parking lot because this was a condition early on (Item #3 under the original condition). Ms. Walters stated the lighting engineer met with Scott Pape, Senior Planner and they will be resubmitting plans this Friday to go to SPRAB. The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. Jacquet moved to adopt the Board Order approving the conditional use subject to three (3) conditions listed in the staff report, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes. Said motion passed with a 5 to 0 vote. 10.E. JOB CREATION INCENTIVE AGREEMENT/ ALDRIDGE CONNORS LLP.: Consider approval of a Job Creation Incentive Agreement with Aldridge Connors LLP, for the creation of 250 new and existing jobs to Delray Beach office space on the Innovation Corridor, with a maximum five -year grant of $200,000.00. Vin Nolan, Economic Director of the Community Redevelopment Agency (CRA), stated this is a Job Creation Incentive Agreement with Aldridge Connors, LLP to move their offices from Boca Raton to Congress Avenue at the Arbors. Mr. Nolan introduced Zakia White representing the senior partners of Aldridge Connors (LLP). Mr. Nolan stated at the February 18, 2013 meeting the CRA brought this application before the Commission and their recommendation that the CRA provide them with an incentive under the recently created Job Creation Incentive Program. Mr. Nolan stated the City 14 03/19/13 Commission directed the CRA to go back and craft the final language that would be approved. He stated the CRA worked with the City Attorney's office, the Manager, and assistance from Palm Beach County's office of Economic Sustainability and created an incentive that provides them for the 250 job commitment to take 40,000 square feet in the Arbors and pay $200,000 to be paid out over a 5 year period beginning in September. Mr. Nolan stated during the early negotiations they discussed the $250,000 that the Commission had authorized; however, he did an analysis of the overall spread of salary levels in the jobs and concluded that the $800.00 per job is the appropriate number and negotiated that with the firm. Mr. Frankel stated these monies previously approved by the City Commission will spur other businesses not only in the Congress Avenue area but West Atlantic Avenue area as well. Mr. Frankel thanked Mr. Nolan for his efforts. Mrs. Gray stated she is a little disappointed that the Commission cannot put any type of language in the agreement that makes sure we have these jobs in five years. Mr. Nolan stated there is language in the agreement and the issue that they worked to resolve is that they originally intended to front and load the incentives with a Surety Bond or Letter of Credit. He stated what they agreed upon with the firm is a slower payout and they will be earning as they go over time. Mr. Nolan stated their window is only about $40,000 at any point in time over what they have earned versus what they have paid. Mrs. Gray asked how many new jobs they will be bringing. Mr. Nolan stated there are 180 current jobs that are in Boca Raton and they are committing to creating an additional 70 by September 2014. He stated if they do not validate 250 jobs the grant will come down from there accordingly. Mrs. Gray asked who will be monitoring it. Mr. Nolan stated he will be monitoring this. Mrs. Gray thanked Mr. Nolan and stated this is a good example of a public /private partnership. Ms. Morrison stated 35% of these jobs are at or above the average income of $46,000; so 88 jobs. She asked if they report every six (6) months on their hiring and number of employees. Mr. Nolan stated they will be required to do a filing in September to create the initial wave of jobs and they have to file a report then in order to receive their initial compensation then a year later they will file for their second payment and there is an annual maintenance process going forward before they receive their annual payment. Ms. Morrison thanked Mr. Nolan for bringing these jobs to Delray Beach. Mr. Jacquet thanked Mr. Nolan for his efforts and stated out of 250 jobs 180 of them currently exist so they anticipate adding 70 jobs. Mr. Nolan stated the larger element of their firm is in Atlanta, Georgia and they may be moving some additional elements from there but they anticipate growing to 250. Mr. Jacquet asked why we are not paying for 70. Mr. Nolan stated they are paying for the 180 jobs to relocate as well. Mr. Jacquet thanked Mr. Nolan for his efforts. Mr. Jacquet asked how far along are we in actually conducting interviews in the local community and with these 70 new positions do we have an indication of how many people we will be hiring from the local area or will we be bringing in sixty (60) more people from Boca. Mr. Nolan stated 15 03/19/13 there is no preference and there is encouraging language in the agreement that they want to see hiring from the local community. Mrs. Gray stated not only on a Federal level have they lost dollars but we lost them here too in the CRA district. Ms. Morrison stated she googled this company and there are over 1,000 attorneys in 4 or 5 states and noted this is not a small start-up company and this is a real live acting growing law firm. Mayor Carney stated cities need to invest to bring jobs and this is a very good start. Ms. Morrison moved to approve the Job Creation Incentive Agreement/Aldridge Connors, LLP, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes. Said motion passed with a 5 to 0 vote. 10.F. REQUEST FOR PROPOSALS (RFP) RESPONSES FOR BOND COUNSELING SERVICES: Consider approval of the Selection Committee's ranking of the Bond Counsel Services (RFP# 2013 -32) responses short list and provide authorization to enter into a contract. David Boyd, Finance Director, stated the purpose of this RFP is to secure legal counsel for financing that is related to the beach renourishment and the Federal Highway Beautification Project. Mr. Boyd stated these projects will have an estimated net financing of about $10 million (either bond issuance of bank financing). He stated the requested contract term is three (3) years with three (3) one -year options. Mr. Boyd stated four (4) firms responded to this RFP; two provided the required information; two responded with a non -bid letter. Mr. Boyd stated on March 8, 2013, the evaluation committee in a public meeting used the following criteria to form their recommendation to the Commission. He stated the committee looked at each firm's experience and capabilities, looked at their approach and understanding, looked at the qualifications of their key personnel and the actual pricing bids that they submitted. Mr. Boyd stated the committee ranked each firm according to the criteria and Greenberg Traurig has the highest score and the Committee recommends the selection of Greenberg Traurig as Bond Counsel with a three (3) year contract and three (3) one -year options. Mr. Boyd stated staff is adding in the one three (3) year options because it gives the City flexibility because the City can choose to do it or not, the City's Treasurer is one -year away from retirement and she can choose to retire or continue working but if she chooses to retire in 2 -3 years and the Finance Department has to hire a new treasurer this gives that person time especially if staff is involved in another financing project to work with experienced counsel. Mr. Jacquet clarified that the City can choose not to renew without cause. In response, Mr. Boyd stated this is correct. Mr. Jacquet asked why there were not more 16 03/19/13 than two firms to choose from. Mr. Boyd stated that was all the submitted bids and two of them issued "no bid" sheets. Ms. Morrison stated the City sent out an RFP and only received four (4) responses. Mr. Boyd stated this is correct. Mr. Boyd explained that this project is not a big project in terms of fees that are going to be generated. Mayor Carney noted that in the contract the City Manager has the right to make the recommendation to renew the contract. Mayor Carney stated any renewals need to come back to the Commission and feels that this was a problem the City had with some contracts last year where the City Manager retained the right. Mayor Carney stated if there is going to be a renewal it really has to come back before the Commission. Mayor Carney recommended that the contract be modified to provide that the renewals come back to the Commission first. It was the consensus to modify the contract as discussed. Ms. Morrison moved to approve the contract as amended, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 10.G. APPOINTMENT TO THE GREEN IMPLEMENTATION ADVANCEMENT BOARD: Appoint one (1) alternate member to the Green Implementation Advancement Board to serve an unexpired term plus a two year term ending July 31, 2015. Based upon the rotation system, the appointment will be made by Commissioner Morrison (Seat #1). Ms. Morrison moved to appoint Walter Cornell as an alternate member to the Green Implementation Advancement Board to serve an unexpired term plus a two (2) year term ending July 31, 2015, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor Carney — Yes; Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 10.H. APPOINTMENT TO THE BOARD OF ADJUSTMENT: Appoint one (1) alternate member to the Board of Adjustment to serve an unexpired term plus a two (2) year term ending August 31, 2015. Based upon the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2). Mr. Jacquet moved to appoint Jess Sowards as an alternate member to the Board of Adjustment to serve an unexpired term plus a two (2) year term ending August 31, 2015, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Ms. Morrison — Yes; Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor Carney — Yes. Said motion passed with a 5 to 0 vote. 17 03/19/13 10.I. APPOINTMENT TO THE CIVIL SERVICE BOARD: Appoint one (1) regular member to the Civil Service Board to serve a two (2) year term ending April 1, 2015. Based upon the rotation system, the appointment will be made by Mayor Carney (Seat #5). Mayor Carney stated he wished to reappoint Larry Zalkin as a regular member to the Civil Service Board to serve a two (2) year term ending April 1, 2015. Mr. Frankel so moved, seconded by Mr. Jacquet. Upon roll call the Commission voted as follows: Mr. Jacquet — Yes; Mr. Frankel — Yes; Mrs. Gray; Mayor Carney — Yes; Ms. Morrison — Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 7:58 p.m., the Commission moved to Item 13, Comments and Inquiries on Non - Agenda Items from the City Manager, City Attorney and the City Commission. 13. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS. 13.A. City Manager Douglas E. Smith, Interim City Manager, had no comments or inquiries on non - agenda items. 13.11. City Attorney The City Attorney had no comments or inquiries on non - agenda items. 13.C. City Commission 13.C.1. Mr. Jacquet Mr. Jacquet announced that there will be a Unity Bike Ride on March 30, 2013 starting at City Hall at 8:30 a.m. He stated those who are interested need to bring their own bicycles and noted it is about fitness, family, fun and community unity. Secondly, Mr. Jacquet stated he was at the first block of East Atlantic Avenue and it was 4:02 p.m. and he went to pull up and there were chairs already put in the parking spots blocking them. He stated the valets need to adhere and respect their time of 5:00 p.m. because these are parking spots for the public. Mr. Jacquet stated in front of Cut 432 he received information that by the electric box there are 4 -5 blocks that are lower than grade and business owners have said that people have tripped there and one individual actually fell. Mr. Jacquet stated he took photos and can provide them to the Commission. Lastly, Mr. Jacquet acknowledged Commissioner Elect Shelly Petrolia and one of the community leaders who ran as well Alexander Christopher. 18 03/19/13 13.C.2. Ms. Morrison Ms. Morrison stated the St. Patrick's Day Parade was great and commended Nancy Stewart. Ms. Morrison stated she met with the YMCA and they are proposing that they use the City's recreation ground on Congress Avenue and Lake Ida Road for the YMCA. She stated she was surprised that they wanted the City to donate the ground, build the building at the City's expense, and they want to charge Delray residents to use it. Lastly, Ms. Morrison announced that she will not be present at the Annual Organizational meeting on March 28, 2013. Therefore, Ms. Morrison thanked the Commission for being cordial and kind to her and she appreciates the opportunity to serve on the Commission. 13.C.3. Mr. Frankel Mr. Frankel stated when he left the last Commission meeting he saw two high end cars at 75 Main valet parked and one high end car at Gol /Cut 432 parked up the side street. Secondly, Mr. Frankel commented about the St. Patrick's Day Parade and stated before the parade he walked up and down the Avenue with officers from the Police Department and saw people reserving large spaces with "please do not cross" tape; one restaurant selling chairs and alcoholic beverages in their location at the parade line. He expressed concern about the overflow of garbage in the garbage receptacles and heard a lot of complaints that it has turned into a fire truck parade. Mr. Frankel stated the parade has expanded greatly over the last couple of years and stated he does not feel it is appropriate that people get there at 8:00 a.m. and rope off large areas with police tape. Mr. Frankel stated Assistant Chief Goldman stated that in the future his preference is that the City not waive the open container ordinance from 2:00 -4:00 p.m. Mr. Frankel stated he was informed by Assistant Chief Goldman that there is only 30 -35 officers that are on this route to handle 100,000 plus people. There being no further business, Mayor Carney declared the meeting adjourned at 8:13 p.m. City Clerk 19 03/19/13 ATTEST: MAYOR The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information provided herein is the Minutes of the Regular City Commission Meeting held on March 19, 2013, which Minutes were formally approved and adopted by the City Commission on City Clerk NOTE TO READER: If the Minutes you have received are not completed as indicated above, this means they are not the official Minutes of the City Commission. They will become the official Minutes only after review and approval which may involve some amendments, additions or deletions as set forth above. 20 03/19/13 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA CONDITIONAL USE REQUEST FOR THE SOUTHGATE MOTEL 1. This conditional use request has come before the City Commission on March 19, 2013, 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the conditional use request for the Southgate Motel. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsections I and II. I. COMPREHENSIVE PLAN a. Comprehensive Plan - Future Land Use and Map: Is the future use and intensity of the development consistent with the future land use map and comprehensive plan and is it appropriate in terms of soil, topographic, and other applicable physical considerations, complementary to adjacent land uses, and fulfills remaining land use needs? Yes No ✓ b. Concurrency: Concurrency as defined pursuant to Objective B -2 of the Land Use Element of the Comprehensive Plan must be met and a determination made that the public facility needs of the requested land use and/or development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Are the concurrency requirements met as respect to water, sewer, drainage, streets and traffic, parks, open space, solid waste and schools? Yes ✓ No ll. LDR REQUIREMENTS: Pursuant to LDR Section 4.4.9(D)(9), hotels and motels are listed as allowable conditional uses. March 19, 2013 City Commission Meeting; Item 1 0.A. a. LDR Section 2.4.5(E) Required Findings: (Conditional Use): Pursuant to Section 2.4.5(E)(5), in addition to provisions of Chapter 3, the conditional use will not- i. Have a significantly detrimental effect upon the stability of the neighborhood within which it will be located; ii. Nor that it will hinder development or redevelopment of nearby properties. Will Section 2.4.5(E)(5) be met subject to the attached conditions? Yes ✓ No 3. The comments and notes set forth in the staff report are hereby incorporated herein. 4. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the conditional use request was submitted. 5. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 6. Based on the entire record before it, the City Commission approves denies ✓ the conditional use request subject to the conditions of approval attached hereto in Exhibit "A ". The City Commission hereby adopts this Order this 19th day of March 2013, by a vote of 3 in favor and 2 oppose . Mayor ATTEST: Chevelle Nubin City Clerk 2 March 19, 2013 City Commission Meeting; Item 1 0.A. *:1:n- 1l11Wir% CONDITIONS OF APPROVAL FOR SOUTHGATE MOTEL 1. Prior to building permit issuance, a Class IV Site Plan Modification application shall be submitted and approved by the Site Plan Review and Appearance Board (SPRAB) with all conditions met and certified plans approved by the Planning & Zoning Director. 2. Per LDR Section 4.6.9(C)(7)(e), hotels and motels shall provide 10 spaces per 1,000 sq. ft. of floor area devoted to restaurants and lounges. No less than two (2) parking spaces shall be required to accommodate the 166 sq. ft. on -site Breakfast/Restaurant facilities. It appears the common area square footage has been omitted. 3. The site data chart shall reflect that required parking is estimated at twenty - one (21) spaces and shall separate the parking data chart to demonstrate required parking for the rooms at 0.7 spaces each from the common areas at 10 per 1,000 sq. ft. 4. Pursuant to LDR Section 4.6.9(C)(1)(g), up to a maximum of 30% of the required parking for any use may be designated as compact spaces. The required parking is 21 spaces, so a maximum of six (6) compact spaces are allowed. Seven (7) compact spaces are proposed which is not in compliance. Modify plans to convert one (1) compact space to standard. 5. Since the one -way drive aisle adjacent to the angled parking spaces is 15' it is presumed that the angled parking spaces measure 45 degrees. The proposed angle of the parking spaces shall be specified on the site plan and an angled parking space detail shall be provided. [See LDR Section 4.6.9(D)(4)(e)(Parking Lots Detail RT 4.1) Page 4.6 -46.] 6. Since twenty -one (21) spaces are required and twenty (20) spaces are provided, one (1) additional standard parking space is required. Consider relocating the elevator to south of Unit #12 in order to accommodate one (1) additional on -site parking space. Otherwise, at least one (1) unit may have to be eliminated in order to reduce the parking requirement back down to the twenty (20) on -site parking spaces currently proposed. 7. Pursuant to the Lift Station Easement (ORB 6060, PG 1442) you will need expressed written consent to construct within this area. Proposed construction of two (2) rear access driveways along Old Dixie Highway is applicable. Please provide proof of consent accordingly. 3 March 19, 2013 City Commission Meeting; Item 1 0.A. 8. The abandoned 5' Limited Access Easement (ORB 5571, PG 761) shall be recorded with Palm Beach County. The survey and site plan shall be modified to reflect its removal. This shall be a condition of approval. 9. Provide written confirmation from FDOT that no additional right -of -way is required along North Federal Highway. Documentation shall be on FDOT letterhead and provide contact information for designated staff reviewing the development proposal, 10. Provide written confirmation from FDOT that no new sidewalk or expansion is required along North Federal Highway. Documentation shall be on FDOT letterhead and provide contact information for designated staff reviewing the development proposal. 11. Provide written confirmation from the Palm Beach County Traffic Division that the development proposal meets streets and traffic standards. 12. All plans shall reflect the twenty foot (20') right -of -way dedication along Old Dixie Highway and graphically depict the new rear (west) property line location AFTER right -of -way dedication. 13. Along Old Dixie Highway, the DSMG (Development Services Management Group) has recommended to the City Commission that a five foot (5) sidewalk deferral agreement be processed and approved prior to building permit issuance. 14. Along Old Dixie Highway, the DSMG (Development Services Management Group) has recommended to the City Commission that a twenty foot (20') right -of -way dedication be processed and approved via deed agreement prior to building permit issuance. 15. Pursuant to the definition of motel, no provisions for cooking can be provided. The ten (10) existing motel units have stoves and full -size refrigerators. All of these items are more characteristic of permanent housing versus transient motel use. It is noted that the proposal would not meet several LDR requirements related to permanent housing including unit size or density. These items are to be removed with the renovation of these units and prior to issuance of a certification of occupancy for the motel expansion. 16. No 220 volt circuit electrical outlets (with the exception of A/C units) will be provided within the individual motel rooms that could be utilized to accommodate full -size appliances. 17. In the two -story unit with an attached garage, full -size electrical appliances are prohibited. Should the two -story unit be utilized as an on -site manager's residence, then it must be entirely detached from the resulting twenty -six (26) unit motel. 4 March 19, 2013 City Commission Meeting; Item 1 0.A. 18. No medical or counseling services of any kind shall be offered or allowed on- site. March 19, 2013 City Commission Meeting; Item 1 0.A. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUESTS FOR DELRAY BEACH FAIRFIELD INN HOTEL PROJECT ON WEST ATLANTIC AVENUE 0091 1. These waiver requests came before the City Commission on March 19, 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver request for the Delray Beach Fairfield Hotel on the south side of West Atlantic Avenue between S.W. 91h Avenue and S.W. 10th Avenue All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. 1. WAIVERS: Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. A. Waiver to LDR Section 4.4.13(F)(4)(b)(1) Pursuant to LDR Section 4.4.13(F)(4)(b)(1), for a height from finished grade to 37 feet (37'), a minimum of seventy percent (70 %) and a maximum of ninety percent (90 %) of the building frontage shall be set back no greater than ten feet (10') from the property line. The applicant is asking for a waiver to allow a 181 feet (181') of building frontage along West Atlantic Avenue to be set back no greater than ten feet from the property line. A minimum of 196 feet (196 ') of building frontage is required to be set back no greater than 10 feet (10 '). 1 March 19, 2013 City Commission Meeting; Item 10.C. Should the waiver to Section 4.4.13(F)(4)(b)(1) be granted? Yes ✓ No B. Waiver to LDR Section 4.4.13(F)(4)(c) (1) Pursuant to LDR Section 4.4.13(F)(4)(c)(1), for a height from finished grade to 25 feet (25`), a minimum of seventy percent (70 %) and a maximum of ninety percent (90 %) of the building frontage shall be set back no greater than ten feet (10') from the property line. The applicant is asking for a waiver to allow a zero feet (0) of building frontage along S.W. 9 Avenue to be set back no greater than ten feet (10') from the property line. A minimum of 252 feet (252') of building frontage is required to be set back no greater than 10 feet (10'). Should the waiver to Section 4.4.13(F)(4)(c) (1) be granted? Yes ✓ No C. Waiver to LDR Section 4.4.13(F)(4)(c)(1) Pursuant to LDR Section 4.4.13(F)(4)(c)(1), for a height from finished grade to 25 feet (25`), a minimum of seventy percent (70 %) and a maximum of ninety percent (90 %) of the building frontage shall be set back no greater than ten feet (10') from the property line. The applicant is asking for a waiver to allow a zero feet (0) of building frontage along S.W. 10th Avenue to be set back no greater than ten feet (10') from the property line. A minimum of 112 feet (112') of building frontage is required to be set back no greater than 10 feet (10'). Should the waiver to Section 4.4.13(F)(4)(c) (1) be granted? Yes ✓ No 4 March 19, 2013 City Commission Meeting; Item 10.C. D. Waiver to LDR Section 4.6.9(D)(3)(c)(1) Pursuant to LDR Section 4.6.9(D)(3)(c)(1), the minimum stacking distance between a right -of -way and the first parking space or aisle way in a parking lot that contains 51 or more spaces is fifty feet (50'). The applicant is asking for a waiver to allow a minimum stacking distance of 11 feet (11') for the western access driveway and 14 feet (14') for the eastern access driveway. Should the waiver to Section 4.6.9(D)(3)(c)(1) be granted? Yes ✓ No E. Waiver to LDR Section 6.1.3(B)(1)(f) Pursuant to LDR Section 6.1.3(B)(1)(f), the required width of the sidewalk in the Central Business District (CBD) is 8 feet (8'). The applicant is asking for a waiver to allow the portion of the sidewalk along S.W. 10th Avenue and S.W. 9th Avenue from the rear parking lot access driveway to the south property line to be 5 feet (5'). The sidewalk along S.W. 10th Avenue and S.W. 9th Avenue from West Atlantic Avenue to rear parking lot access driveway will be 8 feet (8'). Should the waiver to Section 6.1.3(B)(1)(f), be granted? Yes ✓ No F. Waiver to LDR Section 4.6.18(B)(14)(iv)(2) Pursuant to LDR Section 4.6.18(B)(14)(iv)(2), the minimum transparency or glass surface area on the ground floor wall area of all non - residential and mixed -use buildings shall be a minimum of 75 percent (75 %) of the wall area for that elevation. The applicant is asking for a waiver to allow a minimum transparency of 25 percent (25 %) for the West Atlantic Avenue elevation, a minimum transparency of 4 percent (4 %) for the S.W. 10th Avenue elevation, and a minimum transparency of 4 percent (4 %) for the S.W. 9th Avenue elevation. 3 March 19, 2013 City Commission Meeting; Item 10.C. Should the waiver to Section 4.6.18(B)(14)(iv)(2) be granted? Yes ✓ No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original development application was submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves ✓ denies the waiver requests. 6. Based on the entire record before it, the City Commission hereby adopts this Order this 19th day of March 2013, by a vote of in favo n 0 op sed. ATTEST: Chevelle Nubin, City Clerk CI Mayor March 19, 2013 City Commission Meeting; Item 10.C. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA CONDITIONAL USE REQUEST FOR DELRAY MEDICAL CENTER 5270 LINTON BOULEVARD ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This conditional use request has come before the City Commission on March 19, 2013. This conditional use request is to allow an increase in the building height to a maximum of 60 feet for the Delray Medical Center located at the southwest corner of Military Trail and Linton Boulevard (5270 Linton Boulevard). 2. The City staff, applicant, and other persons have presented documentary evidence and testimony to the City Commission pertaining to the conditional use request for the Delray Medical Center. All of the evidence is a part of the record in this case. Findings that are required pursuant to L.D.R. Section 3.1.1 are made in Sections I and II below. I. COMPREHENSIVE PLAN a. Comprehensive Plan - Future Land Use Element Ob"ective A -1: This objective requires that the property shall be developed or redeveloped in a manner so that the future use and intensity is appropriate in terms of soil, topographic, and other applicable physical considerations, is complementary to adjacent land uses, and fulfills remaining land use needs. Is this objective met? Yes ✓ No b. Future Land Use Map: The resulting use of land or structures must be allowed in the zoning district within which the land is situated and said zoning must be consistent with the applicable land use designation as shown on the Future Land Use 1 March 19, 2013 City Commission Meeting; Item 10.D. Map. The subject property has a Future Land Use Map designation of Community Facilities (CF) and is zoned Community Facilities (CF) Future Land Use - Is project's proposed location consistent with the Future Land Use Map? Yes ✓ No C. 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. Concurrency as defined pursuant to Objective B -2 of the Land Use Element of the Comprehensive Plan must be met and a determination made that the public facility needs of the requested land use and /or development application will not exceed the ability of the City to fund and provide, or to require the provision of, needed capital improvements for the following areas: Are the concurrency requirements met as respect to water, sewer, drainage, streets and traffic, parks, open space, solid waste and schools? Yes ✓ No d. Consistency : Will the granting of the conditional use be consistent with and further the goals and policies of the Comprehensive Plan? Yes ✓ No II. LDR REQUIREMENTS a. Section 2.4.5(E)(5) requires certain findings: The conditional use will not: 1. Have a significantly detrimental effect upon the stability of the neighborhood within which it will be located; 2. Hinder development or redevelopment of nearby properties. Has this requirement been met? 2 March 19, 2013 City Commission Meeting; Item 10.D. ✓ Yes No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the conditional use application was submitted. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports and testimony of witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves ✓ denies the conditional use application subject to the conditions attached hereto in Exhibit "A" and hereby adopts this Order this 19th day of March, 2013, by a vote of 5 in favor and 0 opposed. Mayor ATTEST: Chevelle Nubin City Clerk 3 March 19, 2013 City Commission Meeting; Item 10.D. EXHIBIT "A" Conditions Related to the Conditional Use Request for Delray Medical Center 1. Approval of a site plan by SPRAB that is in general conformance to the submitted sketch plan. 2. That the landscape plan be revised to address code deficiencies and provide enhanced buffering along the south boundary. 3. That the applicant is requested to look into obtaining Florida Green Building or LEED certification status for the building addition. March 19, 2013 City Commission Meeting; Item 10.D. WHEREAS, Paralyzed Veterans Association (PVA) of Florida, Inc., a nonprofit organization whose mission is to improve the lives of veterans with a spinal cord injury or dysfunction and other persons with disabilities to achieve maximum health, productivity and self - esteem in their daily lives; and WHEREAS, residing within the boundaries of the City of Delray Beach, many of our neighbors have served as members of the Armed Forces, and in doing so honored our community with exemplary dedication; and WHEREAS, it is important that we recognize the sacrifices made by our community's veterans who are paralyzed and want to extend awareness for the entire month. The theme for this year's observance of PVA Awareness month is `Building a Nation Fit for Heroes"; and WHEREAS, the City of Delray Beach honors our paralyzed veterans because they personify the highest ideals of service to country, sacrifice of self and perseverance in overcoming adversity. Their stories of hardship and triumph provide life affirming lessons for all of us. NOW, THEREFORE, I, CARY D. GLICKSTEIN, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission do hereby proclaim April, 2013 as: PVA AWARENESS MONTH in the City of Delray Beach, Florida, and encourage citizens to observe and participate in the activities associated with PVA Awareness Month and reflect upon the sacrifices endured by our community's veterans who are paralyzed. There are many local community service organizations, particularly those serving our youth that seek involvement in worthy projects, and PVA Awareness Month meets and surpasses that standard. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed this 161h day of April, 2013. CARY D. GLICKSTEIN MAYOR WHEREAS, recognition should be given to the value of trees in our community and the need for a continual city -wide forestry program for the benefit of all persons; and WHEREAS, the holiday to recognize the importance of trees in our lives, was proclaimed at the federal level in 1970, by President Richard Nixon and is celebrated the last Friday in April as National Arbor Day; and WHEREAS, the National Arbor Day Foundation, in cooperation with the U.S. Forest Service and the National Association of State Foresters, sponsor a project known as "Tree City USA" in an effort to make every community in America a better place in which to live; and WHEREAS, the protection and proliferation of trees within the City of Delray Beach is governed by regulations for the purpose of promoting the health, safety, welfare, and aesthetic quality of the community by realizing the importance of trees for oxygen production, carbon dioxide absorption, dust and air pollution filtration, wind and noise reduction, soil erosion prevention, surface drainage improvement, energy conservation, beautification and aesthetic enhancement of all lands in the City; and WHEREAS, the City of Delray Beach has been recognized as a "Tree City USA" community by the National Arbor Day Foundation for the twelfth (12) time; and WHEREAS, the City of Delray Beach will celebrate Arbor Day with plantings in the month of May 2013; and WHEREAS, the optimum time of the year for planting most species of trees in the Southeastern Florida is in the springtime due to the mild temperatures and the beginning of the wet season. NOW, THEREFORE, I, CARY D. GLICKSTEIN, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission, do hereby proclaim April 16, 2013 as: "ARBOR DAY' in the City of Delray Beach, Florida, and urge all citizens, schools, businesses and community organizations to join with me in recognizing the value and the need for trees within our community. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed this 16`h day of April, 2013. Cary D. Glickstein MAYOR WHEREAS, Reverend Laurie Ann Leach created Youth Energy Possibilities (Y.E.P), a 501(c)3 organization that instills in youth the importance of who they are and what they can become through workshops, classes and events. Reverend Leach believes that teenage girls who receive timely coaching, education and mentoring are better equipped to become stronger, more visible community leaders - demonstrating a higher self- esteem which translates into healthier families and vibrant citizenry; and WHEREAS, hundreds of teenage girls and the women who love them will participate in A Day to Remember ", a multi- speaker interactive event designed to uplift and empower the voice of the teenage female with performance, inspiration and fun; and WHEREAS, "A Day to Remember" will feature top leaders on teen issues and X Factor singing sensation finalist, Drew Ryniewicz. NOW, THEREFORE, I, CARY D. GLICKSTEIN, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission do hereby proclaim April 27, 2013 be recognized as: "A DAY TO REMEMBER" and encourage the citizens of the City of Delray Beach to support this worthy cause by attending the 1St annual "A Day to Remember" which will be held on Saturday, April 27, 2013, at the Church of the Palms. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed the 16th day of April, 2013. CARY D. GLICKSTEIN MAYOR WHEREAS, in 1962, President John F. Kennedy signed a proclamation which designated May 15th as Peace Officers Memorial Day and the week in which that falls as Police Week, and WHEREAS, the Delray Beach Police Department is incorporated of the Support Bureau and the Operations Bureau — 72 civilians and 153 sworn police officers dedicated to the safety and well -being of the public by means of education, awareness, communication, enforcement and prevention; and WHEREAS, the Community Patrol Division effected 2,111 arrests, 8,019 citations, 6,190 traffic warnings and 42,408 calls for service during 2012; and WHEREAS, the K -9 Unit was utilized in 95 cases, effecting 27 apprehensions. In 2012 the Vice Intelligence and Narcotics Unit and the TACT Team executed 27 search warrants and initiated 336 arrests; and WHEREAS, Narcotics Investigations performed in collaboration with Homeland Security and the Drug Enforcement Administration (DEA) resulted in three pain clinics and two pharmacies in Palm Beach County being closed, and charging offenders with over - prescribing Schedule II narcotics; and WHEREAS, the Traffic Unit conducted 821 traffic selective enforcement patrols, issued 5,856 uniform traffic citations, 1,915 traffic warnings, 76 arrests, conducted 99 traffic crash investigations, and investigated 7 traffic homicides; and WHEREAS, information sharing between divisions and the data provided by the Crime Analysts resulted in a 10% reduction in crimes for the City of Delray Beach; and WHEREAS, the Communications Division handled 49,741 emergency (E911) calls, 168,062 non - emergency lines, entered 102,741 events into our Computer Aided Dispatch system, and dispatched /self - initiated 95,101 calls for service; and WHEREAS, Community Affairs manages and oversees Kids and Cops activities which include the Police Department's Literacy Program (in partnership with elementary schools in Delray Beach), the Police Explorer Program, the Annual Easter Egg Hunt, Baseball Camp, Football Camp, Annual Toy Drive, The Mark Gerretson Annual Fishing Tournament, and ongoing field trips with local elementary and middle school students. The P.I.O. also participates in the Kids -Safe Initiative "No Child Left in a Cap" campaign which kicked -off at Florida Atlantic University in Boca Raton; and WHEREAS, Community Affairs also oversees the Department's Volunteer Program, and in 2012, police volunteers contributed 44,543 hours of service to the police department. Several new members were recruited through successful Haitian Citizen or Senior Academies, and as a result 114 new volunteers processed through orientation. The volunteer program continues to provide enhanced contributions and valuable services to all facets of the Police Department through its Traffic Monitoring Unit, the Senior Victim Advocacy Program, and through its specialized divisions; the Ambassador Program, the Citizens on Patrol, the Downtown Roving Patrol, Homeland Security; and Parking Enforcement — to name a few. In 2012, the Senior Victim Advocacy Program reviewed a total of 1,571 reports with 849 cases referred to the Area Agency on Aging for further resources. This amounts to 55 percent of senior victims being referred for assistance. The newly implemented Ambassador Program provides directions, safety recommendations, and general information to visitors along the East Atlantic Avenue corridor making safety paramount when enjoying the entire Downtown Delray experience. NOW, THEREFORE, I, CARY D. GLICHSTEIN, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission do hereby proclaim May 2013 as: DELRAY BEACH POLICE DEPARTMENT MONTH and urge the residents to join Aid to Victims of Domestic Abuse (AVDA) in celebrating the men and women of the Delray Beach Police Department's commitment to the highest degree of service to the community and their domestic violence prevention efforts and the promotion of awareness about crimes against women. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed the I61n day of April, 2013. CARY D. GLICHSTEIN MAYOR WHEREAS, travel matters to the nation's economic prosperity and its image abroad, to business wealth and to individual travelers; and WHEREAS, travel to and within the United States provides significant economic benefits for the nation, generating $1.9 trillion in economic output, with $813 billion spent directly by travelers that spurred an additional $1.1 trillion in other industries; and WHEREAS, travel is among the largest private- sector employers in the United States, supporting 14.4 million jobs, including 7.5 million directly in the travel industry and 6.9 million in other industries; and WHEREAS, travelers' spending directly generated tax revenues of $124 billion for federal, state and local governments, funds used to support essential services and programs; and WHEREAS, the agencies of the Palm Beach County Tourist Development Council: Palm Beach County Convention and Visitors Bureau, Cultural Council, Sports Commission and Film Commission develop marketing and sales strategies to support tourism which as one of Palm Beach County's largest industries generates an annual economic impact of $5 billion in the local economy, welcomes 5 million visitors a year, supports 45,000 industry jobs; and WHEREAS, the Palm Beach County Convention and Visitors Bureau provides the overarching brand platform and market awareness that has maintained Palm Beach County's positive growth in tourism performance for three consecutive years; and WHEREAS, international travel, which accounts for more than three - quarters of all trips taken in the United States, spurs countless benefits to travelers' creativity, cultural awareness, education, happiness, productivity, relationships and wellness; and WHEREAS, travel is a catalyst that moves the national economy forward. NOW, THEREFORE, I, CARY D. GLICKSTEIN, Mayor of the City of Delray Beach, Florida, on behalf of the City Commission do hereby proclaim May 4 -12, 2013 as: TRAVEL AND TOURISM WEEK and urge the citizens of the City of Delray Beach to join me in this special observance by wearing red on National Travel Day, May 7, 2013 as a symbol of unity among travel and tourism workers and supporters. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed the 16th day of April, 2013. CARY D. GLICKSTEIN MAYOR MEMORANDUM TO: Mayor and City Commissioners FROM: Louie Chapman Jr., City Manager DATE: April 8, 2013 SUBJECT: AGENDA ITEM 6.A. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 PRESENTATION OF AFRICAN ART - SISTER CITIES COMMITTEE ITEM BEFORE COMMISSION David Schmidt, President of the Delray Beach Sister Cities, will be present to provide this presentation. MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: Louie Chapman, Jr., City Manager DATE: April 10, 2013 SUBJECT: AGENDA ITEM 9.A. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 LANDSCAPE MAINTENANCE AGREEMENT/ 120 SOUTHRIDGE ROAD ITEM BEFORE COMMISSION Request Commission approval of the Landscape Maintenance Agreement between the property owners and the City for landscape installation within the right -of -way at 120 Southridge Road. BACKGROUND The owners of the property would like to remove the existing Mahogany trees and replace them with Foxtail Palms and small flowering trees. The existing trees have severe hurricane damage and are in very poor condition. The owner has agreed to maintain the new plant material in perpetuity and has submitted a signed City of Delray Beach Landscape Maintenance Agreement. The proposed plant material is not substantial and can be removed easily if the need occurs. RECOMMENDATION Staff recommends the City Commission give favorable consideration to the owner's request to install the proposed plants in the City right -of -way by executing the Landscape Maintenance Agreement. Prepared by: RETURN: R. Brian Shutt, Esq. City Attorney's Office 200 N. W. 1st Avenue Delray Beach, FL 33444 LANDSCAPE MAINTENANCE AGREEMENT THIS AGREEMENT is made this 1— day of 40-1 � , 2013 by and between the City of Delray Beach, Florida ( "City ") and le t, ( "Owner "). WITNESSETH: WHEREAS, in order to provide landscaping in the City, the City Commission has adopted ordinances setting forth requirements for landscaping; and, WHEREAS, in order to comply with the City's landscape Ordinance the Owner shall be allowed to install landscaping material in the right -of -way of SOQ c(y� (2J pursuant to the terms of this Agreement; and, WHEREAS, this Agreement shall in no way be deemed an actual, constructive or any other type of abandonment by the City of the public right -of -way of 4 l ; and, WHEREAS, the City reserves the right at any time to utilize the right -of -way for right-of- way purposes, and, WHEREAS, the public will benefit from the beautification of areas along its streets by the addition of landscaping; and, WHEREAS, this Agreement is not effective unless the Owner has submitted a landscape plan and it has been approved by the City; and, WHEREAS, the parties hereto mutually recognize the need for entering into an Agreement designating and setting forth the responsibilities of each party. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The Parties hereby represent and warrant that the above recitals are accurate and correct and hereby incorporate them in this Agreement. 2. The Owner shall perform all conditions as required by the City or any Board of the City in conjunction with the site plan and review process for the required installation and maintenance of the landscaping. The subject property, further described in Exhibit "A ", shall have an approved landscape plan, Exhibit "B ", attached hereto and incorporated herein by reference. I The Owner shall be responsible for purchasing and installing all plant, tree, hedge or grass material or any other material as required by the Owner's approved landscaping plan. Owner shall further be responsible for obtaining all permits and approvals from all applicable governmental agencies. 4. The Owner hereby agrees to maintain the plantings in the right -of -way in accordance with the City's Ordinances and the terms and conditions of this Agreement. The Owner shall be responsible to maintain, which means the proper watering and proper fertilization of all plants and keeping them as free as practicable from disease and harmful insects; to properly mulch the plant beds; to keep the premises free of weeds; to mow and /or cut the grass to a proper height; to properly prune all plants which includes (1) removing dead or diseased parts of plants, or (2) pruning such parts thereof which present a visual hazard for those using the roadway. To maintain also means removing or replacing dead or diseased plants in their entirety, or removing or replacing those that fall below original project standards. All plants removed for whatever reason shall be replaced by plants of the same grade, not necessarily the same plant but of acceptable quality to the City and the Owner, as specified in the original plans and specifications and of a size comparable to those existing at the time of replacement. To maintain also means to keep litter removed from the landscaped areas in the right -of -way. Plants shall be those items which would be scientifically classified as plants and include but are not limited to trees, grass, or shrubs. 2 5. If at any time after the execution of this Agreement by the Owner, it shall come to the attention of the City that the landscaping is not properly maintained pursuant to the terms and conditions of this Agreement then the City may at its option issue a written notice that a deficiency or deficiencies exist, by sending a certified letter to the Owner. Thereafter, the Owner shall have a period of thirty calendar days within which to correct the cited deficiencies. If said deficiencies are not corrected within this time period, the City may at its option, proceed as follows: (a) Maintain the landscaping or part thereof, and invoice the Owner for expenses incurred. (b) Terminate this Agreement and require the Owner to comply with the City's current Ordinance on landscaping. (c) Cite the Owner for failure to comply with the City's Ordinances. 6. At all times hereto, the Owner shall own and maintain all landscaping installed in the right -of -way by the Owner. 7. If for any reason the City decides that it needs the right -of -way of St f 1 4 it k I or for any other public purpose this Agreement shall terminate, and the Owner shall be required to comply with the City's current Code of Ordinances regarding landscape requirements. Owner shall remove all landscaping from the right -of -way within 20 days of such notification, if so requested by the City. 8. Owner, in consideration of the mutual covenants set forth herein, agrees to defend, indemnify, and hold harmless the City, its agents, officers, employees and servants from any and all claims, suits, causes of action or any claim whatsoever made, and damages, which may result from the placement or existence of the landscaping in the public right -of -way. Owner further agrees to hold the City, its agents, officers, employees and servants harmless for any damage to the improvements Owner places within the public right -of -way. It is understood that any cost for replacement of landscaping or repairs to the improvements shall be the Owner's responsibility, and the City will not be held liable for any damage as a part of the maintenance or construction within the said public right -of -way. 9. This Agreement shall constitute the entire Agreement of the parties with respect to the subject matter of it. All prior understandings and agreements between the parties with 3 respect to such matters are merged into this Agreement, which alone fully and completely expresses their understanding. 10. This Agreement may not be assigned or transferred by the Owner, in whole or part without the written consent of the City. 11. This Agreement shall be binding on the Parties, their respective heirs, successors, legal representatives, and permitted assigns and shall be recorded in the Public Records of Palm Beach County and shall run with the land. 12. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on their behalf this day of i , 2013. ATTEST: CITY OF DELRAY BEACH, FLORIDA City Clerk Approved as to legal form and sufficiency: City Attorney ITNESSES: L A CC��CL TLVSA (Print or Type Name) R44 S _ (2zUG LIE, (Print or Type Name) STATE OFL COUNTY OF JeJ IC Mayor (OWNER.) � n� (Print or Type Name) The foregoin ins ent was knowledged before me this 7" day of t 2013, by as j� a/ (n ;&e of officer or agent, title of officer or agent), of (name of corporation acknowledging), a L- or place of incorporation) corporation, on behalf of the corporation tShe is ovally known me or ham+�lrluced. �o�e1I. S.Ma, (type of iden ion) as i en i iea ion. NUMUEN _ o0 9��e5Z * • A4,XOi 2ota ' �' 4 W / ,�;�ro;�u�sso•.� /�o- ;Signa reV4 son Taking Acknowledgment �•• V NUMBER •• * : d0 977812 j EXPIRES -Z:. Apr. 01, 2014 :-0 L` @Oros two �' �° - �A rKBOm „�L�. ;Name Typed, Printed or Stam ed oti. �'•. bilc State .�` ,��r�17111111111` 1E 0 O Y � U -d [n O LL T O � J � O O U in t r U N N cu 47 O] W C M (0 � O p� r � d C6 _ M O r I� p C6 O CD N T O N 1 d I M r \. ,u En rc c( o m w J �w � W J waM Z fd^s w Q w z T 5 n r ( ] cn w ? (D MCI c1 a �m L� 'L a- ` z U. _a LA AP M) l l �N J U. v LAla n. cn 4'X i N 3 Q z Y f Off e -a i v iAq,v Et � 4 1 r t tT mop w r ,u J u 1 I I I C C 1 1 4 I l r J r n c{ _4 _ ill F F — — Off e -a i v iAq,v Et � MEMORANDUM TO: Mayor and City Commissioners FROM: Bob Diaz, Construction Manager Rafael Ballestero, Deputy Director of Construction Victor Majtenyi, Interim Environmental Services Director THROUGH: Louie Chapman, Jr., City Manager DATE: April 2, 2013 SUBJECT: AGENDA ITEM 9.B. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 ADDITIONAL SCOPE / RANDOLPH & DEWDNEY CONSTRUCTION, INC. ITEM BEFORE COMMISSION This item is before the Commission to approve additional scope consisting of the repair of water damaged soffit, to Randolph & Dewdney Construction, Inc. The request is in the amount of $16,670.14 to be paid out of the Contract's Undefined General Allowance for the Fire Station #1 Storm Hardening Project, P/N 12 -063. BACKGROUND On September 20, 2012, Commission approved a contract award, in the amount of $613,347.00, to Randolph & Dewdney Construction, Inc. for the repair and hardening of the City's emergency operations center, also known as Fire Station No. 1 Headquarters. The scope of work consisted of the following: New 180 KW dual fuel generator and associated equipment within a new enclosure, removal of an existing underground 500 gallon LP tank and replacement with a new underground 1,000 gal LP fuel tank. Removal and replacement of approximately 9,000 square feet of modified bitumen roofing; associated accessories, flashing, drains, etc. Removal of 49 existing windows and storefront system units and replacement with impact rated windows and storefront systems, as well as removal of one glass panel exterior door and replacement with new impact rated swing entry door. The restoration of all affected interior and exterior finishes including drywall, acoustical and drywall ceilings, floor finishes, stucco, and interior and exterior paint to match. At the same meeting, Commission approved Change Order No. 1 to reduce the amount of the Undefined General Allowance from $45,000.00 to $39,747.00 to synchronize the contract award amount and the matching available grant funding for the project of $613,347.00. This project is grant funded, reimbursed 100% through the Palm Beach County Department of Economic Sustainability. The requested additional scope, in the amount of $16,670.14, is for the repair of the extensive water damaged wood soffit; this structural hazard was concealed by 100 pound coquina stone sills and stucco facade; and was discovered during construction. The attached Exhibit "A" details all costs associated with this work. The cost of the additional work, will be paid from the Contract's Undefined General Allowance. Prior expenditures from this general allowance total $3,096.09, and were approved by the Finance Director in accordance with city purchasing procedures. Attached is a copy of the Construction Project Detailed Allowances Spreadsheet. FUNDING SOURCE Cost to be funded out of Contract's Undefined General Allowance; which has a balance of $36,650.91. RECOMMENDATION Staff recommends approval of additional scope consisting of the repair of water damaged soffit, to Randolph & Dewdney Construction, Inc.; and approval for the amount of $16,670.14 to be paid out of the Contract's Undefined General Allowance; for the Fire Station #1 Storm Hardening Project. r 1 � I t -APA ti r` 5 U4L411i44415iH11 1p115 4514511LL4Ll4ii 4441 ` sf ,+ L►154i51111111 - tsrrLUn4u54 ► tn514r�j5iL 5►su ;ss 1 4►4i 1�1111s1f1 �� ....„tt�l �1 ,ilra'tts1111111 >jl111f11y1s414 5;x':'1', � 1i1�/111114L 54 � ; - - �114441114 X111111 i 111111` +!1 {i111i11 ->iryl ■lillillf1411111 `�!1 �11111l1111lI1 {1 f11t1 ►if11s1lt11� 11fi�t111 ► ►1 1f1�11161�ttitlt t<11f f11j11111 Ott", itt:l l�tf A-L- 'Ilk ** k r; m ti i 1� r v� 14 11 JAI R y' •err �� 1 Y ►L► ►►LL ►, {r{ttlrll +1 N r�1�11 .rr .ear �11!�►� •r ti . 1 a +" am .•�IHIr Irrilflfl+llju IN ill - •.Fi!!llel A41,unlrniriiiiu rprrrrffr {i rrirrrnfriirlil r +r :urrrrfrrrr rgrullr�l� 1 � ++ " +.rllll Iflllllf11t111fi1 • firS!!!!lirlrlrl rillifNI111�i11! 4111twu y y Jim— f Irli?!l�l.�Il'�ly1f �.� 11l11�I1lliil! I�L.fr� Oto . - rr�lrlrrrlrrr�r� rrr711 r��l� E• IlrllrlrrlrR�1l1 lrlfi� "�N' : " : +ii1 �1111lrllrl111ri 11111r1rr111ri11 �t�r #�k ►,rrr -rrr � ►rl # ►lrrr�rlrlr ��irr�ririrlrr�r rrlixrr�rrtrliir�rl 11r111! rl�ri��1 �Rr,l�t[�r :J�rl/!� 11i111��11irr�� ik�rrr,�rr�i,r i.►� 11111# � r111111, mill rrrr ►1 Y �1111111I�fl�b 1��1111trrr#���� ■ w f 1rrr���rrtr� +. 11r1r1r1111rrr,�•j I�EIrr111r1��:� _5 . �+E�.r>#� � it l ► � tltr ►rrrl�l�ll�l►Ilj � #�:1111�1 ► ► ► ►Ilrjj I�►1r1,11�11111l11j +�,, fi 1. ] � 111l111111s1� rL� a If 7 4L 44 r 1 r 4- r ti-Ok 09 SP, ' b f � t I 5 Lt 4 i 01 .r - 4 f� Jill 11 ,r 1 { V r . t F � 4-1 1 �+ I 7 4 i r ;lMyr4n � r y;A � ; ...... _ , ,,,r.�r �. ���.� r� �I f :� i ��i �i .r a J f� t I`. j r f • a k, } r TINA ft - � Y April 2, 2013 Construction Project Detailed Allowances Spreadsheet Project Information: FS #1 Storm Hardening PIN 12 -063 Consultant: Randolph & Dewdney Construction, Inc. Contract Allowance Current Allowance Item Allowance Date Date Amount Amount Balance Requested Approved Line Item #4 Undefined General Allowance $45,000.00 $0.00 $45,000.00 - Change Order No. 1 Reduction to Undefined General Allowance; thereby reducing the contract amount. Approved by Commission on 09120112; ($5,253.00) $39,747.00 9/20/2012 9/20/2012 at the same time that the contract was awarded. Cost to cut and grind smooth concrete over the existing block recess to receive the 2x sill plate to reflect detail A3/A3.5; and additional demolition and metal framing for Type J windows. Approved ($3,096.09} $36,650.91 12/3/2012 12/10/2012 by Finance Director 12/05/12 TOTAL ALLOWANCE AMOUNTS $45,000.00 ($$,349.09) $36,650.91 Additional Information: The following has been added /subtracted tolfrom the Contract: - Change Order No. 1 Reduction to Undefined General Allowance; thereby, reducing the total contract amount. Approved by Commission on 09120112; at the same time as contract award. ($5,253.fl0} Additional Pro'ect Expenses Not Added to the Contract: - Currie Sowards Aguila - Cost for consulting services for all required services: preparation of construction documents, construction administration and final contract closeout. Approved by $44,300.00 Commission on 01103112. - Cost for blue printing and bid documents. Funding is available from #441 -5112- 536 -46.10 (Water /Sewer Fund /Repair & Maintenance Service /Building Maintenance). Approved by ESD Director $635.25 07125112. $44,935.26 3 O U U *4,1 m .a O U 4-r O O U O PEA a w IT O CO ...................... r ............ .. .. ... OWNER CHANGE: ORDER::::.............. �R�1lr�cr CONTRACTOR FIELD OTHER` PROJECT_ :Project #112 -06.3- CHANGE ORDER #: 3 Eire Station #1 Storm Hardening 501 WestAtiantic Avenue CHANGE ORDER DATE: 0312212013 Delray::Beach, FL 33444` PROJECT-ft: TO:....:: City of Delray Beach ESf PATE OF CONTRACT::. 11 . /0112012 434 S:. Swinton Avenue J]elray Beach, FC 33444; FOR: Fire Station #'1 EOC Headquarters The Contract is clanged as follows: Usc. Rough .'Materials '(ie. turnber, Plywood, connectors, nails etc) .... ..... : ......: ': ._.... -::'• 620.81 Rough Carpentry Labor. including coquina sill removal {11 days @ $330 a day. 2 men) ..: 3830 :Q0 FatidcatedFJashings .�l�ateriafaonly} ..,;; ---.. -.- _..._:_ - -- -. -_ 749;D0 Peel & Stick UnderJayrrient (i�Aaterials only) :. ....... 1fl4 :94 Lab to install flashings and Peel &Suck:: <: --- . ... 380: :Qt} :Labor A Setting Materials to Re- install Coquina Sills . .. 1,9fl0:00 Re -Stucco affected. areas . ....... ..... .,- 1,fi00.110 Paint Re stuccoed affected areas _...: :551-00 Additional Days tdi Dental {$270 @ I days) ......... ............... - _ -. - :. 5,930:00 Genera! Conditions ....... ....._._ .......:! 207:97 Overhead & Rrofit ..._: .... ...... 2,310;97 Bond Escalation ......: : 1. ...... ........ .... ...:' 485:51 F07AL: $16;t37iJ_ 14 The oiiglnal Contract Sum was: $68,60D,00 The net change by previously authorized Change Ordefs is ($ 263 -13p) The Contract Sum prick to this :Change. Order was $613,34i.t10 The Contract Sum will be increased by this Change Order in the amount of The new Contract Sutra including this Change Carder wilt be $6'i.3 W.00 The Contract Time will be increased by 0 days The date of Substantial Completion as of this Change Order therefore is Not valid until signed by ail parties below. Currie; Soward Aguila Amhitects, ine. Rmdolph & Dewdney City. of Delray Beach Architect' Contractor OwrEer 185 NE:0 Avenue Suite 141 1191 AI. Federal Hwy #1 434 S. Swinton Avenue Address Address Address Deh*. Beach, FL 331483 Delray Beach, FL 33483: Delray $each, FI 33444 77 (S gatae) y (SignatueBy . - Sy.(Sigrature) Jose 1lguiia Arigala Randolph .Bob Diaz. (TYPed Name) jyped Name) �Iyped ldame} 3123Ji3 Date Date' bate MEMORANDUM TO: Mayor and City Commissioners FROM: Louie Chapman, Jr., City Manager DATE: April 11, 2013 SUBJECT: AGENDA ITEM 9.C. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 RESOLUTION NO. 25-13 ITEM BEFORE COMMISSION This is a resolution assessing costs for abatement action required to remove nuisances on 29 properties throughout the City. BACKGROUND The resolution sets forth the actual costs incurred and provides the mechanisim to attach liens against the properties if the assessments remain unpaid. RECOMMENDATION Recommend approval of Resolution No. 25 -13. RESOLUTION NO. 25 -13 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PURSUANT TO CHAPTER 100 OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, ASSESSING COSTS FOR ABATING NUISANCES UPON CERTAIN LAND(S) LOCATED WITHIN THE CITY OF DELRAY BEACH AND PROVIDING THAT A NOTICE OF LIEN SHALL ACCOMPANY THE NOTICE OF ASSESSMENT; SETTING OUT ACTUAL COSTS INCURRED BY THE CITY TO ACCOMPLISH SUCH ABATEMENT AND LEVYING THE COST OF SUCH ABATEMENT OF NUISANCES; PROVIDING FOR AN EFFECTIVE DATE AND FOR A DUE DATE AND INTEREST ON ASSESSMENTS; PROVIDING FOR THE RECORDING OF THIS RESOLUTION, AND DECLARING SAID LEVY TO BE A LIEN UPON THE SUBJECT PROPERTY FOR UNPAID ASSESSMENTS. WHEREAS, the City Manager or his designated representative has, pursuant to Chapter 100 of the Code of Ordinances, declared the existence of a nuisance upon certain lots or parcels of land, described in the list attached hereto and made a part hereof, for violation of the provisions of Chapter 100 of the Code of Ordinances; and, WHEREAS, pursuant to Section 100.21 and 100.22 of the Code of Ordinances of the City of Delray Beach, the City Manager or his designated representative has inspected said land(s) and has determined that a nuisance existed in accordance with the standards set forth in Chapter 100 of the Code of Ordinances, and did furnish the respective owner(s) of the land(s) described in the attached list with written notice of public nuisance pursuant to Sections 100.21 and 100.22 of the Code of Ordinances describing the nature of the nuisance(s) and sent notice that within seven (7) days from the date of said notice (forty -two (42) days in the case of violation of Section 100.04 pertaining to seawalls) they must abate said nuisance, or file a written request for a hearing to review the decision that a nuisance existed within five (5) days from the date of delivery of said notice, failing which the City of Delray Beach would proceed to correct this condition by abating such nuisance, and that the cost thereof would be levied as an assessment against said property; and, WHEREAS, the property owner(s) named in the list attached hereto and made a part hereof did fail and neglect to abate the nuisance(s) existing upon their respective lands or to properly request a hearing pursuant to Section 100.21 and 100.22 within the time limits prescribed in said notice and Chapter 100 of the Code of Ordinances, or if the property owner(s) did request and receive a hearing, said property owner(s) failed and /or neglected to abate such nuisance(s) within the time designated at the hearing wherein a decision was rendered adverse to the property owner(s); and, WHEREAS, the City of Delray Beach, through the City Administration or such agents or contractors hired by the City Administration was therefore required to and did enter upon the land(s) described in the list attached and made a part hereof and incurred costs in abating the subject nuisance(s) existing thereon as described in the notice; and, WHEREAS, the City Manager of the City of Delray Beach has, pursuant to Chapter 100 of the Code of Ordinances of the City of Delray Beach, submitted to the City Commission a report of the costs incurred in abating said nuisance(s) as aforesaid, said report indicating the costs per parcel of land involved; and, WHEREAS, the City Commission of the City of Delray Beach, pursuant to Chapter 100 of the Code of Ordinances desires to assess the cost of said nuisance(s) against said property owner(s), NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That assessments in the individual amounts as shown by the report of the City Manager of the City of Delray Beach, involving the City's cost of abating the aforesaid nuisances upon the lots or parcels of land described in said report, a copy of which is attached hereto and made a part hereof, are hereby levied against the parcel(s) of land described in said report and in the amount(s) indicated thereon. Said assessments so levied shall, if not paid within thirty (30) days after mailing of the notice described in Sec. 3, become a lien upon the respective lots and parcel(s) of land described in said report, of the same nature and to the same extent as the lien for general city taxes and shall be collectible in the same manner as mortgages and foreclosures are under state law. Section 2. That such assessments shall be legal, valid and binding obligations upon the property against which said assessments are levied. Section 3. That the City Clerk of the City of Delray Beach is hereby directed to immediately mail by first class mail to the owner(s) of the property, as such ownership appears upon the records of the County Tax Assessor, notice(s) that the City Commission of the City of Delray Beach at the April 16, 2013 meeting has levied an assessment against said property for the cost of abatement of said nuisance by the City, and that said assessment is due and payable within thirty (30) days after the mailing date of said notice of assessment, after which a lien shall be placed on said property, and interest will accrue at the rate of 8% per annum, plus reasonable attorney's fees and other costs of collecting said sums. A Notice of Lien shall be mailed, along with the Notice of Assessment and this resolution. Section 4. That this resolution shall become effective thirty (30) days from the date of adoption and the assessment(s) contained herein shall become due and payable thirty (30) days after the mailing date of the notice of said assessment(s), after which a lien shall be placed on said 2 Res. No. 25 -13 property(s), and interest shall accrue at the rate of eight (8) percent per annum plus, if collection proceedings are necessary, the costs of such proceedings including a reasonable attorney's fee. Section 5. That in the event that payment has not been received by the City Clerk within thirty (30) days after the mailing date of the notice of assessment, the City Clerk is hereby directed to record a certified copy of this resolution in the public records of Palm Beach County, Florida, and upon the date and time of recording of the certified copy of this resolution a lien shall become effective on the subject property which shall secure the cost of abatement, interest at the rate of 8 %, and collection costs including a reasonable attorney's fee. ATTEST: PASSED AND ADOPTED in regular session on this 16'h day of April, 2013. City Clerk MAYOR This instrument was prepared by: Brian Shutt, City Attorney 200 N.W. 1" Avenue Delray Beach, Florida 33444 Res. No. 25 -13 COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCE PROPERTY DESCRIPTION OWNER ASSESSMENT 1218 SW 22ND AVENUE DELRAY BEACH HIGHLANDS SEC 1 LOT 1 BLOCK 8 PCN 12 43 46 19 02 008 0010 CASE NO. NA12 -35216 Brian P. Honaker 1218 SW 22nd Avenue Delray Beach, Florida 33445 $ 95.00 Invoice No. 38400 $ 55.00 Admin Fee $ 150.00 14950 WHATLEY ROAD COUNTRY CLUB ACRES 1 ST ADD LOT 35 (LESS S 37.5 FT) AND LOT 36 PCN 12 42 46 13 02 000 0351 CASE NO. NA12 -33793 Grayhawk Development Corp. % Lawrence B. Hawkins, Reg. Agt. 4570 Lake Worth Road #B -1 Lake Worth, Florida 33463 $ 150.00 Invoice No. 38401 $ 55.00 Admin Fee $ 205.00 14960 WHATLEY ROAD COUNTRY CLUB ACRES 1 ST ADD LOT 34 (LESS S 1/2) & s 37.5 FT OF LOT 35 PCN 12 42 46 13 02 000 0341 CASE NO. NA12 -33794 Grayhawk Development Corp. % Lawrence B. Hawkins, Reg. Agt. 4570 Lake Worth Road #B -1 Lake Worth, Florida 33463 $ 150.00 Invoice No. 38397 $ 55.00 Admin Fee $ 205.00 660 UDELL LANE DELRAY SHORES LOT 1 BLOCK 11 PCN 12 43 46 07 01 011 0010 CASE NO. NA12 -34335 Daniella Henry Est. 3418 Diane Drive Boynton Beach, Florida 33435 $ 95.00 Invoice No. 38402 $ 55.00 Admin Fee $ 150.00 3100 LAKE I DA ROAD DELRAY SHORES 1 ST ADD LOT 1 BLOCK 12 PCN 12 43 46 07 02 012 0010 CASE NO. RN12 -32436 Steven C. Sharet 3100 Lake Ida Road Delray Beach, Florida 33445 $ 125.00 Invoice No. 38403 $ 55.00 Admin Fee $ 180.00 VIOLATION IS: SECTION 100.01— LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, AND MATTER CONSTITUTES HAZARDS; DECLARED NUISANCE PDFConvert.17397.1.RES NO. 25- 13.xls COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCES PROPERTY DESCRIPTION OWNER ASSESSMENT 511 NE 3RD AVENUE DEL IDA PARK (DEL -IDA PARK HISTORIC DISTRICT) N 14.6 FT OF LOT 8 & LOT 9 BLOCK 13 CASE NO. NA12 -29045 3RD Avenue Property LLC & Munro Maria C/O Peter K. Smith 106 1st Lane Palm Beach Gardens, FL 33418 $ 125.00 Invoice No. 38404 $ 55.00 Admin Fee $ 180.00 VAC LOTS ON JEFFERSON ROAD COUNTRY CLUB ACRES 2ND ADD LOTS 68 & 69 PCN 12 42 46 13 03 000 0680 CASE NO. NA12 -33792 Arturo and Marta Gutierrez 3621 NW 108th Drive Coral Springs, Florida 33065 $ 200.00 Invoice No. 38405 $ 55.00 Admin Fee $ 255.00 404 SE 4TH AVENUE OSCEOLA PARK S 64.77 FT OF LOTS 5 & 6 BLOCK 4 PCN 12 43 46 21 01 004 0052 CASE NO. NA12 -33796 Mark Yellen 5534 Ainsley Court Boynton Beach, Florida 33437 $ 125.00 Invoice No. 38406 $ 55.00 Admin Fee $ 180.00 322 SW 5TH AVENUE TOWN OF DELRAY N 50 FT OF S 356.4 FT OF E 135 FT OF 'BLOCK 24 PCN 12 43 46 16 01 024 0040 CASE NO. 12 -34253 Maurice D. and Patricia Lord 8454 NW 14th Street Coral Spring, Florida 33071 $ 95.00 Invoice No. 38407 $ 55.00 Admin Fee $ 150.00 634 SE 3RD AVNUE OSCEOLA PARK S 30 FT OF LOT 26 & LOT 27 BLOCK 7 PCN 12 43 46 21 01 007 0261 CASE NO. NA12 -34648 Joseph Kaknes 634 SE 3rd Avenue Delray Beach, Florida 33483 $ 125.00 Invoice No. 38409 $ 55.00 Admin Fee VIOLATION IS: SECTION 100.01— LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, AND MATTER CONSTITUTES HAZARDS; DECLARED NUISANCE $ 180.00 PDFConvert.17397.1.RES NO. 25- 13.xls COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCES PROPERTY DESCRIPTION OWNER ASSESSMENT 805 SW 7TH AVENUE COLONIAL HEIGHTS LOT 6 BLOCK 2 PCN 12 43 46 20 03 002 0060 CASE NO. NA12 -33789 1811 Meadows Group LLC % Jeannie Foss 3140 Sherwood Blvd Delray Beach, Florida 33445 $ 125.00 Invoice No. 38410 $ 55.00 Admin Fee $ 180.00 17- 46 -43, E 135 FT (LESS N 150 FT, S 50 FT & E 25 FT RD R /W) & W 15 FT OF E 150 FT AS IN OR6254 P899 PCN NO. 12 43 46 17 42 006 0240 Maggie Rolle 106 NW 10th Avenue Delray Beach, Florida 33444 $ 195.00 Invoice No. 38408 $ 55.00 Admin Fee $ 250.00 4835 NW 6TH STREET PINE TRAIL SEC II W 1/2 OF LOT 17 BLOCK 3 PCN 12 42 46 12 08 003 0171 CASE NO. NA12 -32789 US Bank National Assoc. Tr. % Aldridge Conners LLC 7000 W. Palmetto Park Road #307 Boca Raton, Florida 33433 $ 95.00 Invoice No. 38411 $ 55.00 Admin Fee $ 150.00 41 SW 7TH AVENUE TOWN OF DELRAY S 55 FT OF N 540 FT OF W 135 FT OF BLOCK 13 PCN 12 43 46 16 01 013 0070 CASE NO. RN12 -33374 James Gross 41 SW 7th Avenue Delray Beach, Florida 33444 $ 150.00 Invoice No. 38412 $ 55.00 Admin Fee $ 205.00 335 NW CONGRESS AVENUE L L PARK OF COMMERCE REPL PAR B PCN 12 43 46 18 43 002 0000 CASE NO. NA12 -33967 Bentley CKS, Inc. % Sam Caliendo, R/A 900 Glades Road #200 Boca Raton, Florida 33431 $ 240.00 Invoice No. 38413 $ 55.00 Admin Fee $ 295.00 VIOLATION IS: SECTION 100.01— LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, AND MATTER CONSTITUTES HAZARDS; DECLARED NUISANCE PDFConvert.17397.1.RES NO. 25- 13.xls COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCES PROPERTY DESCRIPTION OWNER ASSESSMENT 2006 NW 4TH AVENUE LAKE SHORE ESTS LOT 14 PCN 12 43 46 05 02 000 0140 CASE NO. RN12 -32491 Leonard Silvestri 80 SW 14th Avenue Boca Raton, Florida 33486 $ 225.00 Invoice No.38415 $ 55.00 Admin Fee $ 280.00 107 NW 10TH AVENUE WEST SIDE HEIGHTS DELRAY LOT 11 BLOCK A PCN 12 43 46 17 26 001 0110 CASE NO. NA12 -32648 Jani E. Wagner 252 NE 15th Street Delray Beach, Florida 33444 $ 75.00 Invoice No. 38416 $ 55.00 Admin Fee $ 130.00 551 NW 46TH AVENUE PINE TRAIL SEC 1 N 40 FT OF LOT 10 BLOCK 1 PCN 12 42 46 12 07 001 0101 CASE NO. NA12 -31134 Sol Pal John Bejarano 551 NW 46th Avenue Delray Beach, Florida 33445 $ 75.00 Invoice No. 38417 $ 55.00 Admin Fee $ 130.00 809 NW 2ND STREET TOURIST NOOK DELRAY W 1/2 OF LOTS 17 & 18 BLOCK 8 PCN 12 43 46 17 25 002 0172 CASE NO. NA12 -33833 ZMAX Investors LLC 43 Jefferson Avenue Rockville Centre, NY 11570 $ 165.00 Invoice No. 38418 $ 55.00 Admin Fee $ 220.00 240 NW 9TH AVENUE TOURIST NOOK DELRAY LOT 27 BLOCK a PCN 12 43 46 17 25 001 0270 CASE NO. NA12 -31673 Jason Brenner 90 SW 3rd Street #2705 Miami, Florida 33130 $ 75.00 Invoice No. 38419 $ 55.00 Admin Fee $ 130.00 VIOLATION IS: SECTION 100.01— LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, AND MATTER CONSTITUTES HAZARDS; DECLARED NUISANCE PDFConvert.17397.1.RES NO. 25- 13.xls COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCES PROPERTY DESCRIPTION OWNER ASSESSMENT 321 NW 5TH AVENUE TOWN OF DELRAY LOT 5 BLOCK 25 PCN 12 43 46 16 01 025 0050 CASE NO. RN12 -33832 Aleida Austin 4465 Coral Hills Drive Pompano Beach, Florida 33065 $ 75.00 Invoice No. 38420 $ 55.00 Admin Fee $ 130.00 2887 ANGLER DRIVE DELRAY SHORES 1 ST ADD LOT 29 BLOCK 12 PCN 12 43 46 07 02 012 0290 CASE NO. NA12 -35010 Rosman & Vanes Clerval 2887 Angler Drive Delray Beach, Florida 33445 $ 350.00 Invoice No. 38421 $ 55.00 Admin Fee $ 405.00 380 SE 5TH AVENUE OSCEOLA PARK LOT 10 /LESS E 10 FT RD R /W/ BLOCK 104 PCN 12 43 46 21 01 104 0100 CASE NO. NA12 -29766 Hare, Hare, Hare Inc. c/o Robert L. Hornung, R/A 366 SE 5th Avenue Delray Beach, FL 33483 $ 75.00 Invoice No. 38422 $ 55.00 Admin Fee $ 130.00 315 NW 2ND AVENUE TOWN OF DELRAY LOT 11 BLOCK 49 PCN 12 43 46 16 01 049 0110 CASE NO. NA12 -31562 Nationwide Invsmt Firm Corp. %Guilfort Dieuvul, R/A 8757 Baystone Cove Boynton Beach, Florida 33473 $ 75.00 Invoice No. 38424 $ 55.00 Admin Fee $ 130.00 34 NW 10TH AVENUE ATLANTIC PINES LOT 14 BLOCK 2 PCN 12 43 46 17 17 002 0140 CASE NO. NA12 -32444 Raymond Robinson 301 Stone Gate Drive Columbia, SC 29233 $ 85.00 Invoice No. 38425 $ 55.00 Admin Fee $ 140.00 VIOLATION IS: SECTION 100.01— LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, AND MATTER CONSTITUTES HAZARDS; DECLARED NUISANCE PDFConvert.17397.1.RES NO. 25- 13.xls COST OF ABATING NUISANCES UNDER CHAPTER 100 OF THE CODE OF ORDINANCES PROPERTY DESCRIPTION OWNER ASSESSMENT 116 SW 8TH AVENUE LINCOLN PARK DELRAY LOT 40 PCN 12 43 46 17 38 000 0400 CASE NO. NA12 -33371 Andrelle Chavannes 116 SW 8th Avenue Delray Beach, Florida 33444 $ 95.00 Invoice No. 38429 $ 55.00 Admin Fee $ 150.00 222 SW 13TH AVENUE ATLANTIC PARK GARDENS PRIEST ADD LOT 18 BLOCK 4 PCN 12 43 46 17 19 004 0180 CASE NO. NA12 -34284 Barbara Haynes and Queen E. Owens 222 SW 13th Avenue Delray Beach, Florida 33444 $ 125.00 Invoice No. 38430 $ 55.00 Admin Fee $ 180.00 3936 NW 7TH COURT SUNFLOWER - DELRAY SEC 1 LOT 4 BLOCK 4 PCN 12 42 46 12 06 004 0040 CASE NO. NA12 -34936 Steven M. & Wana N. Hirsch 3936 NW 7th Court Delray Beach, Florida 33445 $ 125.00 Invoice No. 38432 $ 55.00 Admin Fee $ 180.00 16 SW 10TH AVENUE ATLANTIC GARDENS DELRAY LOT 21 BLOCK 8 PCN 12 43 46 17 23 008 0210 CASE NO. NA12 -34087 Giuseppe and Annunz Barbalaco N. & Burone A. Barbalaco 3508 Diane Drive Boynton Beach, Florida 33435 $ 125.00 Invoice No. 38428 $ 55.00 Admin Fee $ 180.00 VIOLATION IS: SECTION 100.01— LAND TO BE KEPT FREE OF DEBRIS, VEGETATION, AND MATTER CONSTITUTES HAZARDS; DECLARED NUISANCE PDFConvert.17397.1.RES NO. 25- 13.xls MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: April 11, 2013 SUBJECT: AGENDA ITEM 9.D. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 REVISIONS TO THE COMMISSION RULES OF PROCEDURE ITEM BEFORE COMMISSION The item before the Commission is a proposed change to the Commission Rules of Procedure. BACKGROUND At the April 9, 2013 City Commission workshop meeting, staff was directed to prepare changes regarding the Commission's Rules of Procedure. The proposed change, allows public comment, not to exceed 3 minutes, on special agenda items which are part of a workshop meeting. RECOMMENDATION Approve the rule change. RULES OF PROCEDURE - DELRAY BEACH CITY COMMISSION I. GENERAL PARLIAMENTARY RULES. The general parliamentary procedure to be followed by the City Commission of the City of Delray Beach, Florida, except as otherwise modified by the City Commission or as modified or amended herein, shall be in accordance with the rules of parliamentary procedures entitled "Robert's Rules of Order ", being the reprint of the 1907 edition. H. LOCAL RULES. A. The following Local Rules of Procedure shall be applicable to the organization and conduct of business, as well as preparation and publication of agendas, of the City Commission of the City of Delray Beach, Florida. To the extent these Local Rules shall modify or conflict with the standard "Robert's Rules of Order" as adopted above, these Local Rules shall prevail to the extent of their conflict or inconsistency with "Robert's Rules of Order ". In addition to these local rules, rules for quasi judicial proceedings shall apply to proceedings which require quasi judicial hearings. 1. Regular meetings of the City Commission shall be held on the first and third Tuesdays of each month, with the exception of the month of December and any Delray Beach municipal election dates, at 6:00 p.m., in City Hall. During the month of December only, the regular City Commission meetings shall occur on the first and second Tuesdays at 6:00 p.m. at City Hall. There shall be no regular City Commission meeting on the date of a Delray Beach municipal election. A meeting that would otherwise have been scheduled for such date shall be held on the Thursday immediately following the election at 6:00 p.m. at City Hall. 2. Workshop meetings of the City Commission shall be held on the second Tuesday of each month at 6:00 p.m. in City Hall, except that there shall be no workshops in the month of December. 3. All regular City Commission meetings shall be held in the City Commission Chambers at City Hall, unless otherwise designated by the City Commission. All workshop City Commission meetings will be held in either the First Floor Conference Room or the Commission Chambers at City Hall, as determined by the City Manager. All meetings of the City Commission shall end by 11:00 p.m. unless extended beyond 11:00 p.m. by a majority vote of the City Commission. Thereafter, the meeting shall end upon the conclusion of each hour (12:00, 1:00, etc.), unless extended by a majority vote of the City Commission for each hour. Any unfinished business shall be considered at a time and place set by the City Commission. 4. There may also be special workshop meetings at such other times as so designated in advance by the City Commission for the purposes of holding joint meetings with City boards, etc., to include receiving annual reports and presentations from the City's boards, committees, agencies and authorities, or for such other purposes as may be deemed necessary or desirable by the City Commission. 5. Special meetings shall be called at the request of the Mayor in accordance with the provisions of the City Charter and the Code of Ordinances. 6. To the extent compatible with the conduct of business, all workshop meetings shall be held on an informal basis. The applicability of the City's general rules shall not be strictly applied. Public comments after presentations will be limited to three (3) minutes at the Mayor's discretion or by consensus of the City Commission. Presentations made at workshop meetings shall be limited to fifteen (15) minutes, unless the Commission, by consensus, agrees to extend the time. In the event there is a special meeting agenda during a workshop meeting, public comment on only the special meeting agenda items, not to exceed 3 minutes per person in total, shall be allowed prior to the start of the special meeting agenda. 7. Although appropriate members of the City Attorney's Office and City Administration may place items on either the workshop or the regular agendas, all regular agendas shall be subject to review in advance by the Mayor prior to their publication, except that a majority of the members of the City Commission may request that the City Manager's office place or remove an item on such regular agendas, and that all such regular agendas shall be further subject to the approval of the City Commission preceding the conduct of business at each such meeting. If the Commission or any of its members wish to place or remove an item on an agenda, or if any member of the Commission has a question or concern about an item, any such request or inquiry shall be directed to the City Manager's office for disposition as opposed to any Commission member contacting any City officer or employee who is subject to the direction and supervision of the City Manager. 8. With regard to the agenda for regular City Commission meetings, the following shall apply: a. To the extent possible, the City Administration shall group all matters by subject area, and shall place as many as possible on the consent portion of the agenda. b. The agenda format shall be generally as follows: A call to order, invocation, pledge of allegiance, formal approval of minutes, pfeelffffifftieiq and presentations, if any, public comments and inquiries from the floor, formal approval of the agenda, the consent agenda, the regular agenda, public hearings, first readings of ordinances, followed by items not specifically on the published agenda from the City Manager, the City Attorney, and members of the City Commission. The public comment and inquiry portion shall not extend beyond 7:00 p.m. and in the event there are persons who have not been able to voice their comments prior to 7:00, the public comment portion shall resume after the public hearing segment of the agenda. The public hearing segment of the agenda shall be duly advertised for and shall commence at 7:00 p.m. or as soon thereafter as possible. c. Any items received during the public comment portion of the regular agenda may, at the discretion of the Commission, be discussed by the City Commission at the time of such presentation, may be directed by the Commission to the City Manager for action or resolution, or may be added to a subsequent workshop agenda if a member of the City Commission so specifically requests. d. (1) Votes taken on ordinances, resolutions and motions shall be by roll call and shall be recorded by the City Clerk. The roll call shall be on a rotating basis and according to the numbered Commission seats, i.e.: Motion A — Order of rotation: Seat 1, Seat 2, Seat 3, Seat 4, Seat 5 Motion B — Order of rotation: Seat 2, Seat 3, Seat 4, Seat 5, Seat 1 Motion C — Order of rotation: Seat 3, Seat 4, Seat 5, Seat 1, Seat 2, etc. (2) There shall be no votes taken on any non - published /non - agendaed items, except upon the declaration of an emergency. The declaration of emergency shall only be determined upon the affirmative vote of no less than four (4) members, or a unanimous vote if only three (3) City Commission members are present and voting on such motion. These rules are not intended to and shall not supersede the procedures and requirements of the City Charter, Code of Ordinances or State Statute with regard to emergency matters for consideration by the City Commission. e. All public comment on agendaed or non - agendaed items shall be limited to not more than three (3) minutes, in total, per person, subject to an extension of such time upon the formal approval by a majority vote of the City Commission members present and voting on such request for extension of time. Public comment on quasi - judicial items and items that have been set for a formal public hearing shall only be allowed when those items are specifically heard by the Commission. f. The Mayor shall have the authority to limit immaterial, unnecessary or redundant presentations or requests. III. CITY BOARD, COMMITTEE, COMMISSION AND AGENDA APPOINTMENTS. A. All appointments to city boards, commissions and committees whose members are not subject to appointment by other entities, and in accordance with any applicable restrictions by State Statute, shall be made in accordance with the following procedures: 1. All vacancies subject to appointment to such city boards, commissions and committees shall be made on a nomination basis by each of the members of the City Commission. This nomination shall be construed to be a Motion to Appoint, which must be seconded by another member of the City Commission then present and voting, and then adopted by an affirmative vote of no less than three (3) votes. A Commissioner may defer an appointment to the next regular meeting. If a Commissioner is not ready to make an appointment at the next regular meeting then the nomination shall rotate to the next appropriate Commissioner. If a Commissioner makes a nomination /motion and this motion either fails for lack of a second or does not receive a sufficient number of affirmative votes, then that Commissioner shall have one additional opportunity to make a secondary nomination for this vacancy at this same meeting or the next successive regular meeting. If that appointment should also fail for lack of a second to the nomination or by not receiving sufficient affirmative votes, then the nomination shall rotate to the next appropriate Commissioner. 2. The rotation system shall be by numbered Commission seat and insofar as possible, each Commission seat shall be assigned an equal number of initial appointments from the date of adoption of these rules, i.e.: Board A — Order of Rotation: Seat 1, Seat 2, Seat 3, Seat 4, Seat 5 Board B — Order of Rotation: Seat 2, Seat 3, Seat 4, Seat 5, Seat 1 Board C — Order of Rotation: Seat 3, Seat 4, Seat 5, Seat 1, Seat 2 3. A separate rotation list shall be established by the City Clerk's office for each such City board, commission or committee, and the City Clerk's office shall maintain records of the rotation list, the status of same, and the nominations made by each Commissioner. In the instance where a vacancy is available at a City Commission meeting where the Commissioner who is next on the rotation is absent, then the City Commission shall postpone this appointment to the next regular meeting. Should this Commissioner not be present at the subsequent meeting, then the nomination ability shall pass to the next Commissioner on the rotation system present at that meeting. 4. In the event that an individual, duly nominated and appointed to a board, commission or committee by a Commissioner at a City Commission meeting, is unable to accept or declines the appointment, for whatever reason, then the Commissioner who appointed the individual unable to serve shall have the opportunity to nominate a replacement appointee to fill the vacancy before the nomination ability passes to the next Commissioner on the rotation system. Such replacement appointment shall be made no later than the second regular meeting subsequent to the meeting at which the declined appointment was made. If the replacement appointment is not made within this time frame, then the nomination ability shall pass to the next Commissioner on the rotation system. 5. Appointments for vacancies occurring on a board wherein the particular member has, for whatever reason, not fulfilled their entire term of membership on that particular board, commission or committee, shall be to complete the unexpired term only. 6. The City Commission retains the right to waive these requirements by the affirmative vote of no less than four (4) members of the City Commission under circumstances that would be in the best interest of the City (or a unanimous vote if only three members of the City Commission are present and voting on such motion). 7. These rules, when adopted, shall supersede any other general rules or local rules which are inconsistent herewith, to the extent of such inconsistency. IV. CITY MANAGER /CITY ATTORNEY ANNUAL REVIEW. The City Commission shall annually, in the month of May, conduct a performance evaluation and salary review of the City Manager and City Attorney. Approved and adopted by the City Commission of the City of Delray Beach, Florida, at the Regular Meeting held on March 5, 2013. ATTEST: Chevelle D. Nubin, MMC City Clerk MEMORANDUM TO: Mayor and City Commissioners FROM: Robert A. Barcinski, Assistant City Manager THROUGH: Louie Chapman, Jr., City Manager DATE: April 9, 2013 SUBJECT: AGENDA ITEM 9.E. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 SPECIAL EVENT REQUEST/ ON THE AVE ITEM BEFORE COMMISSION City Commission is requested to approve a Special Event Permit for On the Ave scheduled for May 9, 2013 from 6:00 p.m. to 10:00 p.m., to grant a temporary use permit per LDR Section 2.4.6(F) for the closure of Atlantic Avenue from Swinton to the west side of NE /SE 5th Avenue, Railroad Avenue from Atlantic north to 150 feet north of the east/west alley, and to the alleys north and south of Atlantic on NE /SE 1St Avenue, NE /SE 2nd Avenue, SE 3rd Avenue and NE /SE 4th Avenue and on the southeast quadrant of Delray Beach Center for the Arts grounds and to authorize staff support for security and traffic control, EMS assistance and fire inspection, barricade set up and removal, trash removal and clean up. BACKGROUND Attached are the special event permit request, site plan, budget and Economic Calculator for this event received from Sarah Martin, Executive Director of the Delray Beach Marketing Cooperative, prior to her resignation. The estimate of overtime cost for this event is $6,275 and cost for the barricade rental is estimated at $100. Based on the event agreement, the DBMC is to pay the City 50% for all overtime costs, plus a 5% administrative fee and the full cost of barricade rental for an estimated charge of $3,395. RECOMMENDATION Staff recommends approval of the Special Event Permit, approval of the temporary use permit and street closures, staff support as stated above, including barricades with payment of costs to the City per the Special Event Policies and Procedures. City of Delray BeanECE1`/ED f 1 0 s.. I 9WSpecial Event Permit a,, Application MAR � 2 2013 l � REVISED 11.2.1 1NiSTRATIVESERVICES PLEASE TYPE OR PRINT 1993 2001 Event NaniefFitie: 0/l 2%jz. A%s- Event Date(s): /"(ml-/ Times: ��/ Requesting street clgsure :- yes X-- no (If yes, need time/date for closure and reopening) Event Sponsor/Producer: Codpf_ct (L'tc Event Contact /Coordinator: �pb?,�,k i�`� -tl-� us eiC C tub i �c -tf Name: Address: s "L ' qd 3 Telephone Number: 541 - z -M -13ffG Cellular Nu ber: qs`y - 66 -0.03V ( E-mail Address: 5mar1-«•.Jf d,• 69M Event Description/Purpose: Brief History of Event (If applicable): �c,,ar,, i- w Cwt � - ,�,c�. S��nc� l� �i Planned Activities (Outline of activities /number of activities, i.e, entertainment, children's rides, gatnes, otlier programs): Mo-%rc,( �en+at.5 - �ke4,&tA- Ck -M4�W Ac l -htla }r,7+n-s r ('MM, � n4c?-1Cc1r,-e4 Page 1 of 5 Page 2of5 Number of Individuals Served Previous Year (if applicable): 's� lsi OtxJ��� Describe the targeted population and expected attendance: C,) -e(mi &ock Soise,,k/v) �y ea"t of r Hts � 7a "rr.s f s �J Describe how the program or project addresses community needs: 0�` Describe your Marketing/Protnotions Program (How will you tnarket /promote, i,e. TV, radio, posters, flyers, web sites, other): Scyt„�r.�! , GAS %�� / /%�ocr ,��dr•�C /�- A1 , �%�5kr5 �ra� air r. Sarre l .�lrr/ _ �,d - /�'�sf� 1251f s Sponsor Category (please check) City o Non-Profit/Charitable VPrivate a Co-Sponsor—Non-Profit/Private o (IfNorr;urofit attacli proof of SOlc(3), c(4), c(6), C(10), or c(19) or (d) Event Location (Describe area boundaries of event /location): _Se,� Site plan attached: yes no (Site plait requh-ed for entire event site. Include locations of tents, stage, portalets, dantpsters, portable lighting, and barricade location if applicable.) Rental of Old School Square: yes no (If yes, attach proof of approval) Rental of Old School Square Park: yes no (If yes, attach proof of rental agreement with Parks & Recreation) Private Property Use: yes no (If yes, attach letter giving authorization from property owner) Event budget Revenue & Expenses attached: yes no (Regttired for all events) UAmydatiMSpecinl Event Regnest\Speciat Event Permit Application REVISED FINAL. FYI 04 1(3).doc Page 3 of 5 Previous year Revenue/Expense summary attached: yes ►to (Required for all events) Arts and Economic Impact Calculator attached: yes no Obtained on line at Nv-*vw,AmericansForTlieArts.org (Required for all events except minor events and 5K Runs) Do you have cash sponsors for the event: yes no (Indicated on budget) / Do you have inkind sponsors for the event: yes v no (Indicated on budget) Serving or selling alcoholic beverages: yes no If yes, what entity is obtaining the Alcohol License permit? 7_6 . (If yes, copy of license and alcohol liability insurance regtdred two (2) weeks priors- to eveno Event certificate of insurance attached: yes no (Required two (2) weelrs prior to event naming the City as additioual insrrrerl, also requh -edfor vendors) Playing of amplified music: (Waiver requh -erl) yes no Will there be entertainment: yes !/ no (If yes, attached list of Performers and /or DJ's) If yes, sponsor agrees all entertainment will be family oriented and contain no obscenities: yes no. Requesting Police assistance: yes no. (traffic control /security) Will supplement with private security: yes (rf yes, need plant attached) Requesting Emergency Medical assistance: yes Requesting barricade assistance: yes (If no, how are you handling ?) Requesting trash removal /clean tip assistance: (If no, how are you handling ?) Requesting trash boxes /containers and liners: Requesting stage use: (lfyes, cheek type) yes 110 no no 1 Ito yes 110. yes no Large stage (14' x 36') o Sinall stage (16' x 21') o Half small stage (8' x 2I') o UA%%,%vdatalspecial Event RetluestLSpecial went Pennit Application REVISED VINAL FYI 0-1 1(3),doc Page 4 of 5 Requesting signage: yes tao Type: 4'x4'Pvent sign L,"' Parking Signs Banner hanging t,trcek P"a,- Indicate dates required (Waiver required !f more than two (2) week prior to event) Requesting City Portable Generator: yes no ✓ (if yes, size & power) Food and beverage vendors: yes no If yes, approximate number (Health Department approval required) yes t/ no Other vendors: yes L'� no (Indicate type) �� �� U tit i_ c ;�sv r-e- , c' J- `fents: yes ✓ no If yes, How many _L-z- 2 U Mid size or size required (If yes, teat permits and fire inspections may be needed) Will the event include amusement rides: yes no (lf yes, type and location and copy of liability insurance regrrrre(l, also requh,es state license and inspeciion.) Will the event be gated: (Show orr -site Wrap) yes no Will there be a charge for the event: yes no (If yes, indicate ticket prices) OA 4'r R Will there be fireworks or other pyrotechnics: yes no (If yes, contact Tire Marshal to obtain and complete permit application) Will there be cooking with compressed gas: yes c/ no (If yes, contact Tire Alarshal for inspections) Will you be providing port -a -lets for the event: yes Ll no (If yes, locate on -site map. If no, indicate [to it, you will handle restroom needs) Is reserved parking requested: yes no (If yes, indicate locations rind purpose for use) IJ: %NudatOpeciai Lvent RcquestLSpecial Event Permit Application REVISER FINAL FYI04I(3).doc Page 5 of 5 Event Permit Attachments: %Revenue/Expense Budget ✓ Revenue/Expense Recap Last Years Event Site Plan Ails and Economic Impact Calendar Letter Requesting Noise Ordinance Waiver ✓ Letter Requesting Waiver Consumption Alcohol Beverages ✓ Proof of Non- Proflt.Status General Liability Insurance Certificate Alcohol Beverage Liability Certificate Proof of Rental Agreement or Authorization Letter from Private Property Owner Hold Harmless Agreement, notarized. Sitbinittal Date Recl>i>lirennents: • Minor Event 45 flays prior to event • Intermediate went 90 days prior to event Major I,vent 120 days prior to event Neighborhood Block Party 30 Clays prior to event l �G LZ-1 3 Event Contractor /Co rdinatorq Dat Please print:1>^(;1��1Gl�rtF'� Please enclose the appropriate non - refundable application fee payable to the City of Delray Beach, 100 N.W. 1St Avenue, Delray Beach, Florida 33444, Required with permit application. 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C2 J aj c tc a L� In a E Q> J CS7 v C G C a m l7 1j) z p� Ln aJ x Z Ln �+ s= Ln 0.a C cn ° V C 0 n In pZi 'a cn U C CL Q Y ~ W 9J R� QC] ° o'S C ai Q j N Q- pCJ d i S ++ V _U c w G Li c 03 g L m 0. @� u Y C LT a M U a j C 0 li C Vl C j �' N tp O N G DJ N L N a L C vi QQC C U a Lu 7 a- Vl Vl F^ Val G ?' W Li a ¢ U w F t? F n Untitled Document Information Page 1 of 1 Arts & Economic Prosperity CaICLIkItor The Economic Impact of Nonprofit Arts and Culture Organizations and Meir Audiences STEP 1: POPULATION POPULATION of your community: 50,000 to 99,999 - STEP 2: TOTAL EXPENSES (optional) Your Organization's TOTAL EXPENSES (please do not use commas): $ 11430 STEP 3. TOTAL ATTENDANCE (optional) TOTAL ATTENDANCE to your organization's arts events (again, do not use commas): 15000 Total Economic Impact Of: Nonprofit Arts and Culture Organizations: Nonprofit Arts and Culture Audiences: Total Industry Impact: (The Sum of Organizations and Audiences) Definitions calculate reset Total Expenditures Household FTE Jobs Income Local Government State Government Back to Calculator Revenue Revenue $11,430 - - - 0.4 $7,516 $390 $445 $339,750 9 $137,816 $13,495 - $15,815 $351,180 9.3 $145,332 $13,885 Print Your Results Please see the fine print below. $16,260 Total Expenditures: The total dollars spent by your nonprofit arts and culture organization and its audiences; event - related When using estimates derived from this calculator, always keep the Fallowing caveats in mind: (1) the results or this analysis are based upon the averages of similarly populated communities, (2) input/output models were customized for each of these similarly populated communities, providing very specific employment, household income, and government revenue data, and (3) your res0s are therefore estimates, and should not be used as a substitute for conducting an economic impact study that is customized for your community. © Copyright 2007 by Americans for the Arts. www. America nsForTheArts. org http:/ /Nv%v-,v.americatisforthearts.org /information _ serviccs /re search lservices /economic_impa... 3/8/2013 spending by arts and culture audiences is estimated using the average dollars spent per person by arts event attendees in similarly populated communities. Back to Calculator FTE Jobs: The total number of full -time equivalent (FTE) jobs in your community that are supported by the expenditures made by your arts and culture organization and/or its audiences. An FTE can be one full -time employee, two half -time employees, four employees who work quarter -time, etc. Back to Calculator Household Income: The total dollars paid to community residents as a result of the expenditures made by your arts and culture organization and/or its audiences. Household income includes salaries, wages, and proprietary income. Back to Calculator Government The total dollars received by your focal and state governments (e.g., license fees, taxes) as a result of the Revenue: expenditures made by your arts and culture organization and/or its audiences. Back to Calculator When using estimates derived from this calculator, always keep the Fallowing caveats in mind: (1) the results or this analysis are based upon the averages of similarly populated communities, (2) input/output models were customized for each of these similarly populated communities, providing very specific employment, household income, and government revenue data, and (3) your res0s are therefore estimates, and should not be used as a substitute for conducting an economic impact study that is customized for your community. © Copyright 2007 by Americans for the Arts. www. America nsForTheArts. org http:/ /Nv%v-,v.americatisforthearts.org /information _ serviccs /re search lservices /economic_impa... 3/8/2013 MEMORANDUM TO: Mayor and City Commissioners FROM: Robert A. Barcinski, Assistant City Manager THROUGH: Louie Chapman, Jr., City Manager DATE: April 8, 2013 SUBJECT: AGENDA ITEM 9.F. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 SPECIAL EVENT REQUEST/ 2ND ANNUAL WINE AND SEAFOOD FESTIVAL ITEM BEFORE COMMISSION Commission is requested to approve a special event permit for the 2nd Annual Wine and Seafood Festival produced by the Greater Delray Beach Chamber of Commerce proposed to be held on November 9, 2013 from 11:00 a.m. to 10:00 p.m., and November 10, 2013 from 11:00 a.m. to 8:00 p.m. Commission is also requested to approve a temporary use permit per LDR's Section 2.4.6.(F) for the closure of Atlantic Avenue from the west side of Salina to the east of side of the Intracoastal from 4:00 p.m., Friday, November 8, 2013 through approximately 10:00 p.m. Sunday, November 10, 2013 and providing staff support for traffic control and security, EMS services and Fire Inspections, barricading and event signage. BACKGROUND Attached are the special event permit, site plan, budget and economic prosperity calculator received from Nancy Stewart- Franczak on behalf of the Chamber of Commerce for this event. The applicant has indicated that they have Beach Property Owners Association (BPOA) support, as well as merchant support for this proposed event. Staff has a concern with the request to close Atlantic Avenue at 4:00 p.m. on Friday and would recommend an early AM closure on Saturday, as we do for Delray Affair and the Howard Alan Show. The estimated overtime costs for this event is $14,850, administrative fee $745, barricade, message and arrow board rental $1,800 and signage $250 for a total estimated City cost of $17,645. Per Event Policies and Procedures the event producer is required to pay 100% of all City costs, plus the administrative fee. RECOMMENDATION Staff recommends consideration of the special event permit, temporary use permit, signage, barricading and staff assistance as requested with the following conditions: 1. Street closures to commence after 2:00 a.m. of the date of the event, November 9, 2013. 2. Receipt of a Certificate of Event Liability Insurance fourteen (14) days prior to the event. 3. Receipt of a Liquor Liability Insurance fourteen (14) days prior to the event. 4. Alcohol beverages not to be served before noon on Sunday. 5. Event producer is required to provide dumpster and grease disposal barrels for vendor use. 6. All trash and garbage to be removed from area and cleaned up by 2:00 a.m. Monday morning, November 11, 2013. 7. All barricades to be removed immediately after event area cleared of tents and cleaned. A,�, Greater Delray Beach Chamber of Commerce Feb. 18, 2013 Mr. Bob Barcinski City of Delray Beach 100 NW 1st Avenue Delray Beach, FL 33444 Dear Bob: The Greater Delray Beach Chamber of Commerce and Festival Management Group pleased to submit our request for the 2"0 Annual Delray Beach Wine & Seafood Fest, scheduled for November 9 -10, 2013. The event was extremely successful last year and we received nothing but positive feedback from merchants, sponsors and attendees! In addition to this letter, an official City of Delray Beach Special Event Permit Application is attached for your review. Please consider approval of the following Wine & Seafood Festival items: 1. Endorsement by the City Commission as a City supported event; 2. Additionally, blocking access to Atlantic Avenue from the west side of the Atlantic Avenue bridge to Salina; Barricades at Seabreeze, Andrews Avenues, Venetian Drive and Gleason Street; 3. Provide City staff support with representation from Police, Fire, Streets, Engineering, Fleet and Facility Maintenance, Community Improvement, Parks & Recreation, and City Managers Office for planning and operation services; 4. Allow this to be the only Commission approved event during the event time frame. Allow all permits to be assigned by the Chamber of Commerce only, with the exception of the Special Event Parking Lot Concessions; 5. 2 hour parking restriction waived for downtown parking Nov 9 -10, 2013 during event hours; 6. Permission to erect signs promoting the event from October 25 through November 10, 2013; 7. Permission to erect overhead banners within the confines of the Wine & Seafood Festival site; 8. Open container waiver within event footprint (as was approved last year)' 8. City staff overtimes costs to be handled per new event policy. We sincerely appreciate all of the efforts of the City employees and look forward to a great new event in 2013. We hope each of you will be a part of the festivities. Sincerely, Nancy Stewart- Fran cza k Director of Special Events Greater Delray Beach Chamber of Commerce Attachment: Special Event Permit Application cc: Douglas E. Smith, Interim City Manager 2013 Wine & Seafood CITY REQ LTR.pdf 64B SE 5" Avenue, Delray Beach, FL 33483 561- 279 -09071 F: 561- 278 -0555 City of Delray Beach DEFRAY BEACH Special Event Permit AlMwricaCq i Application Q REVISED 11.2.11 k, PLEASE TYPE OR PRINT 1993 2001 Event Name /Title: 2nd Annual Delray Beach Seafood & Wine test Event Date(s): Nov. 9, 2013 Times: 11 am - I Opm Nov. 10, 2013 1 I am - 8pm Requesting street closure: yes —x— no (If yes, need time /date for closure and reopening) �Ni Nov. 8 2013 4 m throu h Sunda Nov. 10 2013 11 m Please ante: eve are res sect ull � re rteslin consideration to close street on Thursda due to the arrrorrrrt o setts � time required for our cooking areas; food & tivine pairing seminar area, etc. Event Sponsor /Producer: Greater Delray Beach Chamber of Commerce Event Contact/Coordinator: Festival Management Group, Inc. Name: Nancy Stewart- Franczak and Bern xyan Address: 64B SE 51r' Avenue Delray Beach FL 33483 Telephone Number: 561- 279 -0907 Cellular Number: Nancy: 561- 703 -7028 and Bern: 561- 703 -6998 E -mail Address: nancY(a)avenuecreative.com /irish1227Aao1.com Event Description /Purpose: Wine and Seafood festival Brief History of Event (If applicable): Produced hy the Greater Deh-ay Beach Chamber of Commerce as a fund-raiser. Features wine bars cooking demonstrations wine & foodpairing seminars live music and 185 artists and cra ters. Planned Activities (Outline of activities /number of activities, i.e. entertainment, children's rides, gables, other programs): Food vendors exhibitors food & wine pairing seminar, cooking demonstrations wine gardens, live music. Number of Individuals Served Previous Year (if applicable): 50,000 Describe the targeted population and expected attendance: Greater Delray Beach area and Palm Beach Counly, 50,000 Describe how the program or project addresses community needs: Economic engine for beachside and downtown businesses and restaurants, and hotels Y_ICHAMBER OF COMMERCEISEAFOOD FESTNAL12M WINE & SEAFOOD FESTIVAl.1CITY12413 SEAFOOD FEST Special Event Permit Application.doe Page 1 of 5 Page 2 of 5 Describe your Marketing /Promotions Program (How will you market/promote, i.e. TV, radio, posters, flyers, web sites, other): Street banners street si na e sponsor banners TV PBF -25 Radio ahn Beach Broadcaster WRMF-97.9 Sunny 104.3 Newspapers The Pineapple) Magazines Atlantic Ave Delray Beach Magazine, Boca Magazine), Posters, Flyers, Web exposure, email blasts. Sponsor Category (please check) City X Non- Profit/Charitable ❑ Private ❑ Co- Sponsor — Non- Profit/Private ❑ (If Non-profit attach proof of 501c(3), c(4), c(6), C(10), or c(19) or (d) Event Location (Describe area boundaries of event/location): Atlantic Avenue from Intracoastal bridge to Salina Site plan attached: yes X no (Site plan required for entire event site. Include locations of tents, stage, portalets, dumpsters, portable lighting, and barricade location if applicable.) Rental of Old School Square: yes no, X (If yes, attach proof of approval) Rental of Old School Square Park: yes no X (If yes, attach proof of rental agreement with Parks & Recreation) Private Property Use: yes no X (If yes, attach letter giving authorization from property owner Event budget Revenue & Expenses attached: yes X (Required for all events) Previous year Revenue /Expense summary attached: yes (Required for all events) Arts and Economic Impact Calculator attached: yes X Obtained on line at www.AmericansForTheArts.org (Required for all events except minor events and 5K Runs) Do you have cash sponsors for the event: yes_ X no (Indicated on budget) Do you have in -kind sponsors for the event: yes X (Indicated on budget) no no X no no Serving or selling alcoholic beverages: yes X no If yes, what entity is obtaining the Alcohol License permit? _Chamber of Commerce_ (Ifyes, copy of license and alcohol liability insurance required two (2) weeks prior to event) Event certificate of insurance attached: yes no X (Required two (2) weeks prior to event earning the City as additional insured, also required for vendors) Y:ICHAMBER Of COMMERCEISEAFOOD FESTIVAL\2013 WINE & SEAFOOD FESTIVALICITY12013 SEAFOOD FEST Special Event Permit Application.doc PG 2 Page 3 of S Playing of amplified music: (Waiver required) yes X Will there be entertainment: yes X no_ (If yes, attached list of Performers and /or DJ's) If yes, sponsor agrees all entertainment will be family oriented and contain no obscenities: yes_ X no Requesting Police assistance: yes X no. (traffic control /security) Will supplement with private security: yes X (Ifyes, needplan attached) Requesting Emergency Medical assistance: yes X Requesting barricade assistance: yes X (If no, how are you handling ?) Requesting trash removal /clean up assistance: yes (If no, how are you handling ?) no no no no no X Requesting trash boxes /containers and liners: yes no X Requesting stage use: yes X no (Ifyes, check type) Large stage (14' x 36') X Small stage (16' x 21') ❑ Half small stage (8' x 21') ❑ Requesting signage: yes no Type: 4'x4'Event sign X Parking Signs X Banner hanging X Indicate dates required Oct 25 2013 to Nov 10 2013 (Waiver required if more than two (2) week prior to event) Requesting City Portable Generator (If yes, size & power) Food and beverage vendors: If yes, approximate number 15 (Health Department approval required) yes no X. yes X no yes X no Other- vendors: yes X no (Indicate type) Arts & Craft, Clothing, Spices /Sauces, etc. Tents: yes X no, If ;yes, How marry I5 -2d (vendor tents not included)_ Y:ICHAMBER OF COMMERCEISEAFOOD FESTIVAL\2013 'VINE & SEAFOOD FESTIVAt,1CITY12013 SEAFOOD FEST Special Event Permit Application.doc PG 3 Page 4 of 5 What size or size required 10x10s, 20x40, 30x4O's (Ifyes, tent permits and fire inspections may be deeded) Will the event include amusement rides: yes no X (Ifyes, type and location and copy of liability insurance required, also requires state license and inspection) Will the event be gated: (Show on-site drip) Will there be a charge for the event (If yes, indicate ticket prices) yes no X yes no X Will there be fireworks or other pyrotechnics: yes no X (Ifyes, contact Fire Marshal to obtain and complete permit application) Will there be cooking with compressed gas: yes X no (Ifyes, contact Fire Marshal for inspections) Will you be providing port -a -lets for the event: yes X no (If yes, locate on -site map. If no, indicate how you will handle restroom needs) Is reserved parking requested: yes. (Ifyes, indicate locations and purpose for use) no X Y:ICHAMBER OF COMMERCEISEAFOOD FESTIVAL\2013 WINE & SEAFOOD FESTIVALICITY120 E 3 SEAFOOD FEST Special Event Permit Application.doc PG 4 Event Permit Attachments: Revenue/Expense Budget Revenue/Expense Recap Last Years Event L,— Site Plan Arts and Economic Impact Calendar %--�etter Requesting Noise Ordinance Waiver -'-­Letter Requesting Waiver Consumption Alcohol Beverages Proof of Non -Profit Status 6OW- e- General Liability Insurance Certificate Z Ct/YYLA-Alcohol Beverage Liability Certificate Ali -Proof of Rental Agreement or Authorization Letter from Private Property Owner Hold Harmless Agreement, notarized. Submittal Date Requirements: • Minor Event 45 days prior to event • Intermediate Event 90 days prior to event • Major Event 120 days prior to event • Neighborhood Block Party 30 days prior to event '1ja'-7Gy u4_4--- A, 'd k_' Event Contractor /Coordinator Please print: Nance Stewart-Franczak Feb. 18, 2013 Date Page 5 of 5 Please enclose the appropriate non - refundable application fee payable to the City of Delray Beach, 100 N.W. I" Avenue, Delray Beach, Florida 33444. Required with permit application. For Staff Use Only Date Received a 6112 Application fee received $250.00 Y:ICHAMEER OF COMMERCEISEAFOOD FESTIVAL12013 WINE & SEAFOOD FESTIVALICITY12013 SEAFOOD FEST Special Event Permit Application.doc PG 5 L i. L ° oc = w o n O oy U d y a Z C o O T .1 .w A� W 0 u i r PENN awl I' V A4-J1 `� 11 b! N O V '1 m _, ma z � Iw v 1LI oL CL SL Fi 6x rM 16 s6 44 H6 66 00! !a! em SOr Yx! E� Lot %U! 601 Oil n[ xu [r! PH Sf! Y[f Lri 61[ ax[ in xx! c ` VENETIAN r , 4fir, �iiG F t , �� �; �' may!♦ � rr� a: %44 rte• 4 Go ry 0 in SCROCCU = N New World C Wine Garden C3 {•• � � 1 N L• r ry aL H u N k !y L+ w ! !i a 1LI oL CL SL Fi 6x rM 16 s6 44 H6 66 00! !a! em SOr Yx! E� Lot %U! 601 Oil n[ xu [r! PH Sf! Y[f Lri 61[ ax[ in xx! c ` VENETIAN r , 4fir, �iiG F t , �� �; �' may!♦ � rr� a: %44 rte• 4 Go ry 0 in a _ a T o m r 19 C 4 i C SS +-• z Pao ,w. C r a c O a c IM Ak� a ft r1 !'mil V I W Y •v N a- ­ it L'Z M SZ 9z LZ SI dZ Of Ie zz f� S£ LC 1 f Ri 4£ i I cr a � CL z a ` NOSV3 z LU Tr £r 9r A Lr � Br 61, 'L L r Z t t 1 M N i w N a o a ? 0 fo � � O w O C = O p D m a a as y r A� W ee,o �1 �L O A� W aPoo I o a� A b N a r it 4 =A. Oil NI r 1 I r cn M N a � V O N O W C f0 y O o � o m a � 0 z � n O �1 ■PM ArAll' r"I O V1 V I MW O �I N ■ SM3?I a NV AL S r r 2013 Wine Seafood Fest Budget INCOME ACCT CODE 2012 BUDGET 2012 ACTUAL 2013 BUDGET NOTES IN -KIND SPONSORSHIP VALUE Event Sponsor Income 4601 Total Cash Sponsorships $ 12,500.00 $ 16,500.00 $ 16,500.00 Atlantic Ave Magazine Full Page Oct /Dbl trunk Nov $ 4,200.00 50 Ocean Vintner Dinner $ 2,500.00 BB &TCenter Ad in magazine, jumbo tron, ribbon board, lobby vision sign, tickets $ 10,000.00 Boston's Entertainment sponsor $ 7,500.00 Clear Channel Outdoor $ 5,000.00 Hyatt Regency 2 rooms for security $ 500.00 The Pineapple Full page Oct & Nov $ 1,200.00 Real Time Marketing Partial sponsor of social media costs $ 3,000.00 SCP Print: tickets, posters, post cards, entertainment cards $ 1,500.00 Seagate Hotel Conference room - 2 days $ 750.00 Sunshine Golf 2 Golf Carts $ 250.00 Wine & Food Pairing Sponsors Luna Rosa, 50 Ocean, La Cigale, Sundy House, Candy Fish, Carefree Catering ($40 per person x 48 people x 6 seminars) $ 11,520.00 Worrell Water Tech Survey $ 1,000.00 Waste Mgmt Roll off truck /disposal $ 5,000.00 WRMF Radio ads $ 29,000.00 WPBF -25 Television & web $ 9,000.00 Total in -kind sponsorship $ 91,920.00 Beverage Sales 4605 $ 12,500.00 Soda /Water, Wine, Beer Sales $ 75,318.47 $ 82,000.00 Exhibitor Booths 4602 $ 40,000.00 $ 27,075.00 $ 29,000.00 Food Booth Vendors 4602 $ 17,500.00 $ 12,675.00 $ 13,000.00 Application Fees 4621 $ - $ 2,800.00 $ 2,800.00 Rental Package $ - $ 2,888.75 $ 2,900.00 MISC Income 4607 $ - $ 20,864.12 $ 22,000.00 Weekend Wino /Wine & Food Pairing Seminars TOTAL INCOME $ 82,500.00 $ 158,121.34 $ 168,200.00 $ 183,840.00 EXPENSES ACCT CODE NOTES Ads, Marketing, Signage 6101 $ 2,500.00 $ 3,458.28 $ 4,500.00 Beverage Expense 6155 $ 3,000.00 $ 35,404.32 $ 35,000.00 Beer /Wine /Soda /Water 2013 seafood fest budget.xlsx 2013 Wine Seafood Fest Budget City Services 5210 $ 18,000.00 $ 18,388.44 $ 25,000.00 Police, Fire, Public Works, Parks & Recreation Commission - Sponsors 5910 $ 1,000.00 $ 75.00 $ - Possibly can be eliminated if all sponsorship sold by FMG Contract Services 6110 $ 5,000.00 $ 12,282.50 $ 14,000.00 Trash & Operations Staff Coordination Fee 5705 $ 18,000.00 $ 28,076.36 $ 18,000.00 Event coordination & mgmt, sponsorship sales + bonus Entertainment 6110 $ 4,000.00 $ 600.00 $ 4,000.00 Possibly can be eliminated if music sponsored by Boston's Equipment Rental 6125 $ 2,500.00 $ 14,254.16 $ 14,500.00 Tents, Tables & Chairs Event Supplies 6171 $ 500.00 $ 2,496.76 $ 2,000.00 Ice, trash bags Graphic Design 6115 $ 2,000.00 $ - $ - Ads, poster, press releases, eblasts, flyers Insurance 5301 $ 2,000.00 $ 180.00 $ 1,300.00 Liquor & liability Miscellaneous 6141 $ 500.00 $ 6,492.53 $ 6,500.00 Misc. supplies (duct tape, zip ties, etc.) Office Supplies 5231 $ 100.00 $ 305.50 $ 300.00 Pens, paper, plastic covers Printing 6151 $ 500.00 $ 3,136.62 $ 800.00 Banners, posters, flyers for tradewinds Sales Tax 5322 $ 3,656.00 $ 2,256.67 $ 3,000.00 Sales tax for vendor fees paid TOTAL EXPENSES $ 63,256.00 $ 127,407.14 $ 128,900.00 PROFIT $ 30,714.201 $ 39,300.00 2013 seafood fest budget.xlsx Arts & Economic Prosperity IV: Calculator I; Page 1 of 2 POPULATION of your community: Your Organization's TOTAL EXPENSES (please do not use commas): TOTAL ATTENDANCE to your organization's arts events (again, do not use commas): CALCULATE J Reset ) 50,000 to 99,999 V $ 127407 •1111 littp: l/ www. americansfortbearts .org /inforination services /researeIVset-vices /economic imp... 2/18/2013 Total Household Local State Expenditures FTE Jobs Income Government Government Revenue Revenue Nonprofit Arts and Culture $127,407 4.7 $107,190 $4,445 $5,235 Organizations: Nonprofit Arts and Culture $1,218,600 33.8 $735,681 $63,867 $69,180 Audiences: Total Industry Impact: 38.5 $842,871 $68,312 $74,415 (The S Organizations (The Suns of Organizations and Audiences) Print Your Results Please see the fine print below. DEFINITIONS Total The total dollars spent by your nonprofit arts and culture organization and its audiences; event - Expenditures: related spending by arts and culture audiences is estimated using the average dollars spent per person by arts event attendees in similarly populated communities. FTE Jobs: The total number of full -time equivalent (FTE) jobs in your community that are supported by the expenditures made by your arts and culture organization and/or its audiences. An FTE can be one littp: l/ www. americansfortbearts .org /inforination services /researeIVset-vices /economic imp... 2/18/2013 MEMORANDUM TO: Mayor and City Commissioners FROM: Jasmin Allen, Planner Paul Dorling, AICP, Director of Planning and Zoning THROUGH: Louie Chapman, Jr. City Manager DATE: April 11, 2013 SUBJECT: AGENDA ITEM 9.G. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS ITEM BEFORE COMMISSION The action requested of the City Commission is review of appealable actions which were taken by various Boards during the period of April 1, 2013 through April 12, 2013. BACKGROUND This is the method of informing the City Commission of the land use actions, taken by designated Boards, which may be appealed to the City Commission. After this meeting, the appeal period shall expire (unless the 10 day appeal period has not occurred). Section 2.4.7(E), Appeals, of the LDRs applies. In summary, it provides that the City Commission hears appeals of actions taken by an approving Board. It also provides that the City Commission may file an appeal. To do so: The item must be raised by a Commission member. By motion, an action must be taken to place the item on the next meeting of the Commission as an appealed item. REVIEW BY OTHERS Site Plan Review and Appearance Board Meeting of April 10, 2013 A. Approved with conditions (5 to 0, Rustem Kupi and James Knight absent), a Class I site plan modification associated with architectural elevation changes including replacing overhead garage doors with windows for the Mackey Building, located at 1515 North Congress Avenue within the Delray Park of Commerce (northeast corner of Lake Ida Road and Congress Avenue). B. Approved (4 to 1, Alice Finst dissenting), a Class I site plan modification associatedwith construction of a new entry feature, replacing single doors with a double door entry in the front and rear, enclosing a recessed area of the existing building in order to align the store front, and construction of handicap accessible ramps in the rear for Dollar Tree, located at 1310 -1350 North Federal Highway (southwest corner of North Federal Highway and NE 14th Street). Concurrently, the Board approved (4 to 1, Alice Finst dissenting), an amendment to the blanket sign program for the Delray Beach Shopping Center to allow the Dollar Tree sign to exceed the maximum letter height. C. Approved with conditions (5 to 0), a Class III site plan modification, landscape plan and architectural elevation plan associated with the demolition of a condominium unit and replacing it with a swimming pool and cabana building for Delray Villas by the Sea, located at 2225 South Ocean Boulevard (east side of South Ocean Boulevard, south of Linton Boulevard). D. Approved (5 to 0), a Class III site plan modification and architectural elevation plan associated with the conversion of a stand -alone bar to an art facility /studio for EMC Studio, located at 19 NE 3rd Avenue (east side of NE 3rd Avenue, north of East Atlantic Avenue). E. Approved with conditions (5 to 0), a Class IV site plan modification, landscape plan and architectural elevation plan associated with the construction of a 140 -bed hospital wing and parking garage for the Delray Medical Center, 5270 Linton Boulevard (south side of Linton Boulevard, west of Military Trail). Historic Preservation Board Meeting of April 3, 2013 1. Approved with conditions (5 to 0, Iris McDonald and Reginald Cox absent) a request for a Certificate of Appropriateness for additions and alterations to a contributing single family residence located at 1029 Nassau Street, within the Nassau Historic District. Concurrently, the Board approved (3 to 2, Anna Maria Aponte and Ronald Brito dissenting), a variance request to reduce the rear yard setback from 10 feet to 4.2 feet. RECOMMENDATION By motion, receive and file this report. Attachment: Location Map • CITY COMMISSION MEETING - _ _ _ CITYLIMITS . _ _ _ N APPEALABLE ITEMS ONE MILE LOCATION MAP PLANNING AND ZONING GRAPHIC SCALE DEPARTMENT APRIL 16, 2013 SPRAB: A. MACKEY BUILDING B. DOLLAR TREE C. DELRAY VILLAS BY THE SEA D. EMC STUDIO E. DELRAY MEDICAL CENTER HPB: 1. 1029 NASSAU S -- DIGITAL BASE MAP SYSTEM -- -- DLS -- MAP REF: S: \Planning & Zoning \DBMS \File— Cab \CC— DDC \4 -16 -13 MEMORANDUM TO: Mayor and City Commissioners FROM: David Boyd, Finance Department Patsy Nadal, Purchasing Manager THROUGH: Louie Chapman, Jr., City Manager DATE: April 1, 2013 SUBJECT: AGENDA ITEM 9.H.1 - REGULAR COMMISSION MEETING OF APRIL 16, 2013 BID AWARD/ MULTIPLE VENDORS: CHEMICALS AND FERTILIZERS ITEM BEFORE COMMISSION The City Commission is requested to approve multiple awards for the purchase of Chemicals and Fertilizers through the Co -Op annual contract Bid No. 2013 -20 on an "as needed basis" at an estimated annual cost of $205,000. BACKGROUND The City of Delray Beach is the lead entity for this co- operative bid. Bids were received on December 04, 2012 from ten (10) vendors, all in accordance with City purchasing policies and procedures (Bid No. 2013 -20), documentation is on file in the Purchasing Office. A tabulation of bids with the awarded items highlighted for each vendor is attached for your review; any awards to a non -low bidder are for compatibility of products or to avoid a non - preferred mixture. Other vendors may be used for any of the listed items when the awarded vendor cannot provide sufficient supply, issues arise regarding effectiveness of the product, or to consolidate items for shipping. All chemical and fertilizers are ordered on an "as needed basis" to meet the needs of the City of Delray Beach. AWARDED VENDOR(S): Crop Production Services Diamond R. Fertilizer Co, Inc. Helena Chemical Company Howard Fertilizer & Chemical Company John Deere Landscapes Red River Specialties Upstart Products Sunniland Corp. Univar USA Winfield Solutions Please note that the estimated balance of $205,000.00 is through April 2014 - to cover multiple fiscal years. FUNDING SOURCE Funding from the Beautification Trust Fund/Parks Maintenance /Cemetery, DB Municipal Golf Course and Lakeview Golf Course operating supply budgets. RECOMMENDATION Staff recommends award to multiple vendors as listed at an estimated annual cost of $205,000 for the purchase of chemicals and fertilizers to be ordered by departments as needed. T- W -, U C J W N � m � F M 1�L L 4 q [L N ❑ Q � O < c J C r m O L U 2� U q a ca pry l_J N 4 N d' O d E v m � J Z W U 02 m 0 (YJ Ql CO CL. i! F- m (O E m m a (4 m C t7 W C4 J CO Ln (b CL m 3 i a 'U D)_ Q W d1 % m a 4 co X 3M 6 M K U N a o0 [,(j fV p .O 0 0. r O (I 'O N N O z N CD N 7 4J m (tj t? 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Boyd, Director of Finance Rebecca S. O'Connor, Treasurer DATE: April 10, 2013 SUBJECT: AGENDA ITEM 10.A. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 RESOLUTION NO. 23-13/ BEACH RENOURISHMENT PROJECT/ FEDERAL HIGHWAY BEAUTIFICATION PROJECT ITEM BEFORE COMMISSION Approve Resolution No. 23 -13 authorizing the issuance of not to exceed $22,250,000 in Delray Beach Bond Anticipation Revenue Improvement Notes, Series 2013, for the purpose of financing all or a portion of a Beach Renourishment Project for an estimated cost of not to exceed $9,500,000 and a portion of a Federal Highway Beautification Project of not to exceed $12,750,000. The resolution provides for a negotiated sale of such notes to TD Bank, N.A. and terms which include a variable interest rate based on 75% of the 30 day LIBOR (London Inter -Bank Offered Rate) plus 64 basis points, a term of three years and no penalty for early pre - payment. LIBOR is a common benchmark interest rate index that is used by banks to make adjustments to adjustable rate loans. BACKGROUND On February 28, 2013, Finance sent out an RFP for the financing of the $22,250,000 Delray Beach Bond Anticipation Revenue Improvement Notes, Series 2013 ( "the 2013 Notes "). On March 22, 2013, Finance staff received bids from Bank of America Public Capital Corp, BB &T, City National Bank, PNC, SunTrust and TD Bank, N.A. An analysis was performed based on an approximate draw schedule, current rates provided by the banks and a three (3) year term. TD Bank, N.A. came in with the lowest estimated cost of $259,728 and best terms. The variable rate provided by TD Bank, N.A. is 75% of the 30 day LIBOR plus 64 basis points and is currently at .7932 %. Terms such as the determination of the draw schedule and the test requirement for issuing additional debt were negotiated. The terms of the resolution also include an option to convert the outstanding balance into a 10 year term loan subject to a rate index. Please see attached chart for rates and terms for all responses. RECOMMENDATION Recommend the approval of Resolution No. 23 -13 authorizing the sale of Delray Beach Bond Anticipation Revenue Improvement Revenue Notes, Series 2013, to TD Bank, N.A. in the principal amount of not to exceed $22,250,000 at a variable rate based on 75% of the 30 day LIBOR plus 64 basis points for a term of three (3) years with no penalty for early pre - payment. RESOLUTION NO. 23 -13 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $22,250,000 IN AGGREGATE PRINCIPAL AMOUNT OF BOND ANTICIPATION REVENUE IMPROVEMENT NOTES, SERIES 2013, OF THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF FINANCING ALL OR A PORTION OF A BEACH RENOURISHMENT PROJECT FOR AN ESTIMATED PROJECT COST OF NOT TO EXCEED $9,500,000 AND A PORTION OF A FEDERAL HIGHWAY BEAUTIFICATION PROJECT FOR AN ESTIMATED PROJECT COST OF NOT TO EXCEED $12,750,000, INCLUDING FOR BOTH PROJECTS ALL INCIDENTAL AND NECESSARY COSTS RELATING THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH NOTES TO TD BANK, N.A. (THE "BANK "); PROVIDING FOR THE TERMS AND PAYMENT OF SAID BOND ANTICIPATION REVENUE IMPROVEMENT NOTES, SERIES 2013, AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID BOND ANTICIPATION REVENUE IMPROVEMENT NOTES, SERIES 2013; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A CLOSED -END LINE OF CREDIT AGREEMENT AND A NOTE PURCHASE AGREEMENT BOTH WITH THE BANK; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SAID BOND ANTICIPATION REVENUE IMPROVEMENT NOTES, SERIES 2013; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida (the "City Commission', hereby determines that it is in the best interest of the City of Delray Beach, Florida (the "City "), to finance, on a short -term basis, certain costs relating to all or a portion of a beach renourishment project for an estimated cost of not to exceed $9,500,000 and all or a portion of a Federal Highway Beautification Project for an estimated cost of not to exceed $12,750,000, as further described on Exhibit D attached hereto, together with all incidental and necessary costs relating thereto (the "2013 Projects "); and WHEREAS, on December 14, 1999, the City Commission did adopt Resolution No. 76 -99 (the "Bond Resolution's authorizing the issuance, from time to time, of revenue bonds (the `Bonds' to finance and refinance capital projects in the City; and WHEREAS, any capitalized term used in this Resolution and not otherwise defined, shall have the meaning ascribed to such term in the Bond Resolution; and WHEREAS, pursuant to the Bond Resolution, each series of Bonds issued thereunder shall be payable from the City's covenant contained in the Bond Resolution to budget and appropriate in each Fiscal Year, by budget amendment if necessary, Non -Ad Valorem Revenues and deposit the same in the Debt Service Fund created and established under the Bond Resolution (herein, the "City's Covenant "); and WHEREAS, pursuant to the terms and provisions of Section 8 of Article IV of the Bond Resolution and this Resolution, the City shall issue a series of bond anticipation notes known as "City of Delray Beach, Florida Bond Anticipation Revenue Improvement Notes, Series 2013" (herein, the "2013 Notes' in substantially the form attached hereto as Exhibit B to finance, on a short -term basis, the costs of the 2013 Projects, including the costs of issuing such 2013 Notes; and Resolution No. 23 -13 WHEREAS, the principal amount of the 2013 Notes authorized under this Resolution shall not exceed $22,250,000; and WHEREAS, the 2013 Notes shall be secured by a pledge of and lien on the Pledged Revenues (as herein defined); and WHEREAS, City staff has previously solicited bids from qualified lending institutions to provide a closed -end line of credit as the vehicle by which the 2013 Notes are to be issued and the 2013 Projects are to be financed on a short -term basis; and WHEREAS, City staff has determined and the City Commission hereby concurs that TD Bank, N.A., a national banking association organized under the laws of the United States with its designated office in Fort Lauderdale, Florida (herein, the `Bank' has provided the best overall bid to the City; and WHEREAS, the City Commission hereby finds that in light of present market conditions, the aforementioned bid provided by the Bank, the necessity for the funds in calendar year 2013 and calendar year 2014 and other factors described herein, it would be in the best interest of the City to sell the 2013 Notes to the Bank on a negotiated basis pursuant to the terms and provisions of the Bond Resolution, this Resolution, that certain Note Purchase Agreement dated the date of delivery of the initial issuance of the 2013 Notes (herein, the "Agreement ") by and between the City and the Bank in substantially the form attached hereto as Exhibit A and that certain Closed -End Line of Credit Agreement dated the date of the initial issuance of the 2013 Notes (herein, the "Line of Credit' by and between the City and the Bank, in substantially the form attached hereto as Exhibit C. NOW, THEREFORE, be it resolved by the City Commission of the City of Delray Beach, Florida, as follows: ARTICLE I STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS Section 1.1 AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Charter of the City of Delray Beach, Florida, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented and other applicable provisions of law (collectively, the "Act ") and the authority provided for in the Bond Resolution. Section 1.2 FINDINGS. It is hereby ascertained, determined and declared: (a) That the City hereby authorizes that the 2013 Projects be financed on a short -term basis from a portion of the proceeds derived from the 2013 Notes issued pursuant to this Resolution and the Line of Credit, together with all incidental and necessary costs and expenses associated therewith, as more fully set forth in Section 1.2(d) hereof. (b) That the City Commission has previously determined it to be necessary and in the best economic interest of the City to implement the 2013 Projects. (C) That the 2013 Projects will serve valid municipal purposes. (d) That the cost of the 2013 Projects shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving a portion of the Beach Renourishment Project in a principal amount of not to exceed $9,500,000 and the Federal Highway Beautification Project in a principal amount of not to exceed $12,750,000, including without limitation the reimbursement of such capital expenditures 2 Resolution No. 23 -13 previously made by the City, the cost of administrative expenses; design, engineering and legal expenses; the fees and expenses of Bond Counsel; expenses for estimates of costs; expenses for plans, specifications, licenses and permits; and such other expenses as may be necessary or incidental to the financing of the 2013 Projects and the issuance of the 2013 Notes herein authorized. (e) That the principal of and interest on the 2013 Notes shall be secured solely by the Pledged Revenues in the manner provided herein, provided that the Owner of the 2013 Notes shall have no lien on any Non -Ad Valorem Revenues until deposited into the Debt Service Fund. The ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the 2013 Notes and the 2013 Notes issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City other than the Grant Moneys when paid to the City and the net proceeds of any Take -Out Bonds when such proceeds are delivered to the City. (f) That the City, having previously solicited bids for the sale of the 2013 Notes, has determined that the best qualified bid for the 2013 Notes was delivered by the Bank. (g) That the negotiated sale of the 2013 Notes to the Bank is in the best interest of the City by reason of the nature of and schedule for need of funds to finance the 2013 Projects, the ability to receive advances of the proceeds of the 2013 Notes when needed for the construction of the 2013 Projects and present market conditions. (h) That the Agreement, in the form attached hereto as Exhibit A, the 2013 Notes in the form attached hereto as Exhibit B, and the Line of Credit, in the form attached hereto as Exhibit C, are hereby approved, with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof and the Mayor (or in his absence, the Vice Mayor) and City Clerk are hereby authorized to execute the same on behalf of the City. (I) That pursuant to the provisions of the Bond Resolution and this Resolution, the City may issue obligations in the future secured by certain of the Pledged Revenues. Q) That any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Bond Resolution. Section 1.3 DEFINITIONS. That, in addition to terms defined elsewhere in this Resolution, the following terms shall have the following meanings unless the context otherwise clearly requires: "Bond Counsel" shall mean Greenberg Traurig, P.A. or any other firm of nationally recognized bond counsel selected by the City and acceptable to the Bank. "Bond Resolution" shall mean Resolution No. 76 -99, adopted by the City Commission on December 14, 1999. "Business Day" shall mean any day other than a Saturday or Sunday, or a day on which the Bank or London banks are closed. "City" shall mean the City of Delray Beach, Florida, a municipal corporation in the County of Palm Beach, State of Florida and its successors and assigns. Notes. "City Commission" shall mean the duly constituted governing body of the City. "Closing Date" shall mean the date the City issues the authorized principal amount of the 2013 3 Resolution No. 23 -13 "Default Rate" shall mean four hundred basis points above the actual Interest Rate in effect immediately prior to any default by the City under this Resolution. "Determination of Taxability" shall mean the circumstance of interest paid or payable on the 2013 Notes becoming includable for federal income tax purposes in the gross income of the Noteholder. A Determination of Taxability will be deemed to have occurred upon the receipt by the City or Noteholder of an original or a copy of an Internal Revenue Service Technical Advice Memorandum, Statutory Notice of Deficiency, or other similar written notification which holds that any interest payable on the 2013 Notes is includable in the gross income of the Noteholder for federal income tax purposes; which notice or notification is not contested by either the Issuer or any Owner; or (ii) a determination by a court of competent jurisdiction that the interest payable on the 2013 Notes is includable for federal income tax purposes in the gross income of the Owner thereof, which determination either is final and non - appealable or is not appealed within the requisite time period for appeal, or (iii) the admission in writing by the Issuer to the effect that interest on the 2013 Notes is includable for federal income tax purposes in the gross income of the Owner thereof. "Draw" shall mean a written request made by an authorized officer described in Section 4.2 hereof to the Bank for a funding request under the Line of Credit. The City shall submit such written request not earlier than two (2) Business Days prior to the expected funding date. "Grant Moneys" shall mean any of the net proceeds the City receives from the Florida Department of Transportation ( "FDOT'� under a Local Agency Program Agreement and a Public Transportation Joint Participation Agreement, both by and between the City and FDOT, relating to the resurfacing or reconstruction of portions of U.S. Highway 1 (consisting of landscaping, lighting, minor drainage improvements and resurfacing of parts of Atlantic Avenue and Bus Shelter facility). "Interest Rate" shall mean with respect to the 2013 Notes, unless the 2013 Notes bear interest at the Default Rate or Taxable Rate or if the Term -Out Period is elected, a variable rate of interest on the 2013 Notes which shall be equal to 75% of LIBOR, plus 64 basis points. The Interest Rate shall be calculated on the basis of a 360 day year of twelve thirty -day months and shall be recalculated by the Bank on the first business day of each month. "LIBOR" shall mean the rate of interest (rounded upwards if necessary to the next 100th of one percent) equal to the British Bankers Association LIBOR ( "BBA LIBOR' as published by Bloomberg (or such other commercially available source providing quotations of BBA LIBOR as designated by the Bank from time to time) at approximately 11:00 A.M. (London time) 2 Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided however, if more than one BBA LIBOR is specified, the applicable rate shall be the arithmetic mean of all such rates. If, for any reason, such rate is not available, the term LIBOR shall mean the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1 %) determined by the Bank to be the average rates per annum at which deposits in dollars are offered for such LIBOR Interest Period to major banks in the London Interbank Market in London, England at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period. The effective interest rate applicable to the 2013 Notes shall change at the end of each Interest Period. LIBOR Interest Period means initially, a period of one month; provided however, (i) if any LIBOR Interest Period would end on a day which is not a Business Day, such LIBOR Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (ii) no LIBOR Interest Period shall extend beyond the Maturity Date and (iii) any LIBOR Interest Period with respect to the 2013 Notes that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such LIBOR Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such LIBOR Interest Period. 4 Resolution No. 23 -13 "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2013 Notes, not later than June 1, 2016 unless the Term -Out Period is elected then June 1, 2026. "Owner," "Noteholder" or "registered holder" or any similar term shall mean the Bank or, subject to the provisions of Section 2.4 hereof, any successor registered holder of the 2013 Notes; provided no Noteholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2013 Notes. "Paying Agent" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent hereunder. "Payment Date" shall mean, with respect to interest on the 2013 Notes, each June 1 and December 1, commencing June 1, 2013 and with respect to principal on the 2013 Notes, the Maturity Date and on any other date the principal of the 2013 Notes is optionally prepaid in whole or in part, provided that if such date is not a Business Day, the payment shall be made on the next succeeding Business Day. "Pledged Revenues" shall mean (a) with respect to interest on the 2013 Notes, (i) the Non -Ad Valorem Revenues deposited in the Debt Service Fund created and established under the Bond Resolution, (ii) investment income received from the investment of moneys in the Debt Service Fund and accounts established thereunder and (iii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the payment of interest on the 2013 Notes; (b) with respect to the payment of the principal of the 2013 Notes on the Maturity Date, or earlier prepayment date (i) the Non -Ad Valorem Revenue deposited in the Debt Service Fund pursuant to the City's Covenant, (ii) the proceeds from the Grant Moneys, (iii) the net proceeds of the Take -Out Bonds, and (iv) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the repayment of the 2013 Notes. "Registrar" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Registrar hereunder. "Resolution" shall mean this Resolution as the same may from time to time be amended and supplemented in accordance with the terms hereof. "Take -Out Bonds" shall mean the Bonds, the City may, but shall not be required to issue, under the Bond Resolution to retire the 2013 Notes on the Maturity Date, whether or not the City has elected to adopt the Term -Out Period for the 2013 Notes. "Taxable Rate" shall mean an adjustable rate of interest on the 2013 Notes which after a Determination of Taxability will result in the same after -tax yield to the Bank of the 2013 Notes as before said Determination of Taxability. "Term -Out Period" shall mean an option offered by the Bank to the City that the City may elect to adopt. The City must notify the Bank in writing not later than April 1, 2016 if the City elects to adopt the Term -Out Period. The Bank shall have thirty (30) days after receipt of the City's election to either accept or reject the City's election which the Bank may do in its sole discretion. "Term -Out Period Interest Rate" shall be a fixed rate of interest on the 2013 Notes if the City elects to adopt the Term -Out Period for the 2013 Notes determined not later than three (3) Business Days prior to June 1, 2016 and shall be equal to the greater of the sum of (i) the 10 year H.15 Federal Reserve Swap Date plus 0.92 %) times .75 or (ii) the sum of the 10 -year U.S. Treasury Note rate plus 1.00 %) times .75. rJ Resolution No. 23 -13 "2013 Notes" shall mean the not to exceed $22,250,000 aggregate principal amount of Bond Anticipation Revenue Improvement Notes, Series 2013, authorized by the Bond Resolution and this Resolution. Words importing singular number shall include the plural number and vice versa, as the case may be and words importing persons shall include firms and corporations. Section 1.4 RESOLUTION AND BOND RESOLUTION CONSTITUTE CONTRACT. In consideration of the acceptance of the 2013 Notes authorized to be issued hereunder by those who shall own the same from time to time, this Resolution and the Bond Resolution shall be deemed to be and shall constitute a contract between the City and the Noteholders and the covenants and agreements herein and therein set forth to be performed by said City shall be for the benefit, protection and security of the Noteholders. ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 2013 NOTES Section 2.1 AUTHORIZATION OF 2013 NOTES. Subject and pursuant to the provisions of this Resolution and the Bond Resolution, obligations of the City of Delray Beach, Florida, to be known as "Bond Anticipation Revenue Improvement Notes, Series 2013" are hereby authorized to be issued in the aggregate principal amount of not exceeding Twenty -Two Million Two Hundred Fifty Thousand Dollars ($22,250,000) for the purpose of financing the costs of the 2013 Projects. Section 2.2 DESCRIPTION OF 2013 NOTES. Notwithstanding the form of Bonds set forth in the Bond Resolution, the text of the 2013 Notes shall be substantially in the form attached hereto as Exhibit B with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. The 2013 Notes (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance of such 2013 Notes. The 2013 Notes shall be issued in registered form. Unless the interest rate on the 2013 Notes is adjusted in accordance with Section 3.7 hereof, the 2013 Notes shall bear interest on the outstanding principal amount of the 2013 Notes at the Interest Rate and shall be payable on each Payment Date, commencing June 1, 2013. Unless all or a portion of the 2013 Notes is optionally prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2013 Notes shall be payable on the Maturity Date. The 2013 Notes shall be issued in a not to exceed principal amount of $22,250,000, but the actual principal amount of the 2013 Notes outstanding will be determined by the amount of proceeds advanced by the Bank to the City by the sum of the principal amount of such Draws that have not been repaid. Principal and interest on the 2013 Notes shall be payable at the office of the Paying Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department is not the Paying Agent). The 2013 Notes shall be numbered in such manner as may be prescribed by the Registrar. The 2013 Notes shall be payable, with respect to interest and principal, in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. Subject to the next succeeding paragraphs, the City may prepay the 2013 Notes in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of the 2013 Notes, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such 6 Resolution No. 23 -13 principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the 2013 Notes is to be paid, upon presentation and surrender of the 2013 Notes to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of the 2013 Notes is to be paid, upon presentation of such 2013 Notes at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement 2013 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2013 Notes are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, without surrender of the 2013 Notes. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of the 2013 Notes shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. Notwithstanding the provisions of clause (i) or (ii) above, if all of the 2013 Notes are registered in the name of the Bank, payments shall be effected by payment to the Bank of the principal and interest then due without surrender of the 2013 Note; such payment to be evidenced by the records of the City and the Bank and such records shall be conclusive and binding upon the City and the Owner absent manifest error. Upon a prepayment in whole, the City understands that the Bank will promptly thereafter surrender the 2013 Notes to the City marked "satisfied" or "paid in full." If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with interest to the prepayment date on such principal amount, shall have been provided to the Owner, as above provided, then from and after the prepayment date interest on such principal amount of the 2013 Notes which are prepaid shall cease to accrue. If said funds shall not have been so paid on the prepayment date, the principal amount of such 2013 Notes shall continue to bear interest until payment thereof at the applicable Interest Rate. Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, any payments of interest due hereunder on the unpaid principal of the 2013 Notes. Once the City prepays a principal amount of the 2013 Notes, the Bank shall have no obligation to repurchase such amount if the City shall subsequently issue a like amount. Section 2.3 EXECUTION OF THE 2013 NOTES. The 2013 Notes shall be executed in the name of the City by the signature of the Mayor or Vice Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of the Mayor or Vice Mayor of the City and City Clerk on the 2013 Notes may be manual or facsimile signatures. In case any one or more of the officers who shall have signed or sealed the 2013 Notes shall cease to be such officer of the City before the 2013 Notes so signed and sealed shall have been actually sold and delivered, such 2013 Notes may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2013 Notes had not ceased to hold such office. The 2013 Notes may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2013 Notes shall hold the proper office, although at the date the 2013 Notes shall be actually delivered such person may not have held such office or may not have been so authorized. The 2013 Notes shall bear thereon a certificate of authentication, in the form set forth on Exhibit B attached hereto, executed manually by the Registrar (when the City's Finance Department shall act as Registrar, the certificate of authentication shall be manually executed by the City's Finance Director). Only the 2013 Notes as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2013 Notes shall be valid or obligatory for any purpose until such certificate of 7 Resolution No. 23 -13 authentication shall have been duly executed by the Registrar. The certificate of authentication of the Registrar upon the 2013 Notes executed on behalf of the City shall be conclusive evidence that the 2013 Notes so authenticated have been duly authenticated and delivered under this Resolution and that the Owner thereof is entitled to the benefits of this Resolution. Section 2.4 NEGOTIABILITY, REGISTRATION AND CANCELLATION. The Registrar shall keep books for the registration of the 2013 Notes and for the registration of transfers of the 2013 Notes. The 2013 Notes shall be transferable at the option of the registered Owner thereof to an institutional holder, but subject to the prior written approval of the City's Director of Finance (which shall not be unreasonably withheld if the intended transferee provides a suitability letter addressed to the City as to the sophistication of the investor) unless such institutional holder is a bank or trust company, or unless such institutional holder, which is not a bank or trust company, certifies in writing to the City prior to the transfer that it is an "accredited investor" within the meaning of Rule 501 of the Securities Act of 1933, as amended and supplemented (the "33 Act ") or a qualified institutional buyer under Rule 144A of the 33 Act, in which case such approval shall not be required and upon surrender thereof at the office of the Registrar (the designated corporate trust office of the Registrar if the City's Finance Department is not the Registrar) with a written instrument of transfer satisfactory to the Registrar duly executed by the registered Owner or his duly authorized attorney. Upon the transfer of such 2013 Bond, the City shall issue in the name of the transferee a new 2013 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2013 Notes shall be registered upon the books kept by the Registrar as the absolute Owner of such 2013 Notes, whether such 2013 Notes shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2013 Notes as the same become due and for all other purposes. All such payments so made to any such Owner or upon his /her order shall be valid and effectual to satisfy and discharge the liability upon such 2013 Notes to the extent of the sum or sums so paid and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the 2013 Notes is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2013 Notes in accordance with the provisions of this Resolution. The 2013 Notes surrendered in any such transfers shall forthwith be delivered to the Registrar and canceled by the Registrar in the manner provided in this Section. The City or the Registrar (if not the City's Finance Department) may require the payment of a sum sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such transfer. The 2013 Notes paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar within a reasonable period of time after the payment or redemption is made and such 2013 Notes shall thereupon be canceled upon written acknowledgement from the Owner that the 2013 Notes have been paid in whole. The 2013 Notes so canceled may at any time be destroyed by the Registrar, who shall execute a certificate of destruction in duplicate by the signature of one of its authorized officers describing the 2013 Notes and one executed certificate shall be filed with the City and the other executed certificate shall be retained by the Registrar (if not the City's Finance Department). Section 2.5 MUTILATED, DESTROYED, STOLEN OR LOST 2013 NOTES. In case any 2013 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2013 Bond of like date, maturity and denomination as the 2013 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2013 Bond, such mutilated 2013 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2013 Bond, there shall first be furnished to the City and the Registrar (if not the City's Finance Department) evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the 2013 Notes shall be about to mature or have matured, instead of issuing a duplicate 2013 Bond, the City may pay the same without surrender thereof. The City and the Registrar (if not the 8 Resolution No. 23 -13 City's Finance Department) may charge the Owner of such 2013 Bond their reasonable fees and expenses in connection with this transaction. Any 2013 Notes surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2013 Bond issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed 2013 Bond be at any time found by anyone and such duplicate 2013 Notes shall be entitled to equal proportionate benefits and rights as to hen on the source and security for payment from Pledged Revenues with the 2013 Bond issued hereunder. Section 2.6 CONDITIONS FOR ISSUANCE OF THE 2013 NOTES.Prior to the initial issuance of the 2013 Notes, the City shall comply with the following conditions: (a) On the initial Closing Date, deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2013 Notes, the Line of Credit and the Agreement and the due adoption of this Resolution and the Bond Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like) and that the interest on the 2013 Notes is excludable from gross income for federal income tax purposes; and (b) Deliver to the Bank one or more certificates of the City in form satisfactory to the Bank certifying, among other things, that the City is in compliance with the terms of the Bond Resolution, including the anti - dilution test set forth in Section 4.E of Article III of the Bond Resolution. Section 2.7 INCORPORATION OF TERMS OF BOND RESOLUTION; EXCEPTIONUnless otherwise provided in this Resolution, the terms and provisions of the Bond Resolution applicable to the 2013 Notes are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF Section 3.1 2013 NOTES NOT TO BE INDEBTEDNESS OF THE CITY. The 2013 Notes shall not be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other limitation of indebtedness, but shall be secured and payable solely by the Pledged Revenues. No Noteholder shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any real property therein, to pay said 2013 Notes or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City including any Non -Ad Valorem Revenues which have not been deposited into the Debt Service Fund other than the Grant Moneys and the net proceeds of any Take -Out Bonds when such proceeds are delivered to the City. Section 3.2 2013 NOTES. The lien of the 2013 Notes on the Pledged Revenues constituting the Non -Ad Valorem Revenues deposited in the Debt Service Fund shall be on parity with any of the Bonds issued pursuant to the requirements of the Bond Resolution. Section 3.3 2013 NOTES SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of the 2013 Notes and continuing until the payment of all 2013 Notes as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said 2013 Notes. Section 3.4 COVENANTS OF THE CITY. As long as any of the principal of or interest on the 2013 Notes shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 4.H of Article III of the Bond Resolution a sum sufficient to pay, when due, 9 Resolution No. 23 -13 the entire principal of the 2013 Notes remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Noteholders as follows: (a) Debt Service Fund The Debt Service Fund created and established under the Bond Resolution shall constitute a trust fund for the benefit of the Noteholders and shall be held by the City and shall be kept separate and distinct from all other funds of the City and shall be used only for the purpose and in the manner provided in this Resolution. Notwithstanding the provisions of the next preceding sentence, the City may deposit the Pledged Revenues in a single bank account for the City, provided that adequate accounting procedures are maintained to reflect and control the restricted allocations of the funds on deposit therein for the various purposes of such funds. The 2013 Notes shall have a co -equal lien on the Non -Ad Valorem Revenues deposited in the Debt Service Fund created under the Bond Resolution with respect to any Bonds issued or to be issued under the Bond Resolution (the "Parity Debt "). The Parity Debt shall not have a hen on the net proceeds of the Take -Out Bonds or the Grant Moneys. The designation and establishment of the Debt Service Fund in and by the Bond Resolution shall not be construed to require the establishment of any completely independent self - balancing fund, as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for certain purposes and to establish certain priorities for application of such revenues as provided herein. Any excess amounts remaining in the Debt Service Fund constituting Non -Ad Valorem Revenues after payment has been made on the 2013 Notes and any Parity Bonds on any Payment Date, may be withdrawn and deposited at the direction of the City to be used for any lawful municipal purpose. Moneys on deposit in the Debt Service Fund may be invested in Permitted Investments as authorized pursuant to the Bond Resolution, provided such investments mature not later than the next succeeding Payment Date. All income and earnings received from the investment and reinvestment of the moneys on deposit in the Debt Service Fund shall remain on deposit in the Debt Service Fund and be used in the same manner as other moneys on deposit therein. (b) Non Ad Valorem Revenues. The City will not repeal, amend or modify any resolution or ordinance or take any action within its power to take relating to the imposition and collection of Non -Ad Valorem Revenues in any manner so as to impair or adversely affect in any manner the availability of such Non -Ad Valorem Revenues to pay debt service on the 2013 Notes in the manner provided herein. (C) Budget and Other Financial Information. The City shall demonstrate in each annual budget that there are sufficient Non -Ad Valorem Revenues to pay the interest on the 2013 Notes coming due in such Fiscal Year and sufficient Non -Ad Valorem Revenues to pay the outstanding principal in the Fiscal Year the Maturity Date occurs and to meet the City's other obligations hereunder and under the Bond Resolution. The City shall provide the Bank with a copy of its annual budget within thirty (30) days of adoption, a copy of its Comprehensive Annual Financial Report ( "CAFR'�, within two hundred and seventy (270) days after the end of the City's Fiscal Year and, upon the request of the Bank, such other financial information regarding the City as the Bank may reasonably request. (d) Compliance with Bond Resolution. The City shall comply with the terms of the Bond Resolution and shall not amend or supplement the Bond Resolution in any way that would have a materially adverse effect on the Noteholders. (e) Financial Covenants. The City covenants annually that based on the City's most recent CAFR that the net available General Fund Non -Ad Valorem Revenues shall be at least equal to 1.30 times the annual debt service on the 2013 Notes and any Parity Debt. Notwithstanding the foregoing covenant, the term "debt service" shall not include the principal due on the 2013 Notes or any other balloon debt or bond anticipation obligations. The term "net available General Fund Non -Ad Valorem Revenues" 10 Resolution No. 23 -13 means all of the Non -Ad Valorem Revenues of the City, including any surplus or excess from prior fiscal years available for general use, minus the cost of the portion of essential governmental services that are payable from Non -Ad Valorem Revenues. The term "essential governmental services" means general governmental and public safety expenses. The City further covenants that so long as the 2013 Notes are Outstanding and notwithstanding the provisions of clause (ii) of the first paragraph of Section 4.E. of Article III of the Bond Resolution, the coverage shall be "1.30 times average annual debt service" rather than "1.10 times average annual debt service," as set forth in such section. (f) Late Charges. If any payment due the Bank is more than fifteen (15) days overdue, a late charge of six percent (6 %) of the overdue payment shall be payable by the City to the Bank. Section 3.5 REMEDIES OF NOTEHOLDERS. Subject to the equal rights of any registered owner of Parity Bonds issued pursuant to the provisions of the Bond Resolution, should the City default in any obligation created by this Resolution, the Noteholders may, in addition to any remedy set forth in this Resolution, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this Resolution and the Bond Resolution and may enforce and compel the performance of all duties required by this Resolution and the Bond Resolution or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Noteholders that the filing of any bankruptcy or insolvency under any federal or state law by or against the City which is not dismissed with prejudice within thirty (30) days of such filing shall give the Noteholders the right to exercise any of the remedies provided to them under this Section 3.5 and Section 4.G of Article III of the Bond Resolution. Notwithstanding anything in this Section 3.5 to the contrary the Noteholders' right to exercise any remedy permitted hereunder shall be consistent with the rights afforded all registered owners of Parity Debt issued pursuant to the provisions of the Bond Resolution, except that the holders of the Parity Debt shall have no rights or remedies with respect to the Grant Moneys or the net proceeds of the Take -Out Bonds. Section 3.6 APPLICATION OF 2013 NOTE PROCEEDS. The proceeds of the 2013 Notes received by the City from the Bank shall be used to finance the costs of the 2013 Projects. Section 3.7 ADJUSTMENTS TO INTEREST RATE. Upon any default by the City under this Resolution, the interest rate on the 2013 Notes shall be converted to the Default Rate. In the event a Determination of Taxability shall have occurred, the rate of interest on the 2013 Notes shall be increased to the Taxable Rate, effective retroactively to the date on which the interest payable on the 2013 Notes is includable for federal income tax purposes in the gross income of the Owner thereof. In addition, the Owner of the 2013 Notes or any former Owners of the 2013 Notes, as appropriate, shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that are required to be paid to the United States of America by the Owner or former Owners of the 2013 Notes as a result of such Determination of Taxability. All such additional interest, additions to tax, penalties and interest shall be paid by the City within sixty (60) days following the Determination of Taxability and written demand by the Owner. A Determination of Taxability shall not include inclusion of interest on the 2013 Notes in the income of the Owner for purposes of any alternative minimum tax, or branch profits tax if the Term -Out Period is elected, the Interest Rate on the 2013 Notes will be adjusted to the Term -Out Interest Period Interest Rate from June 1, 2016 to the final Maturity Date, or sooner, if the 2013 Notes are optionally prepaid in full. Notwithstanding any of the foregoing, it is the intention of the Bank (and any subsequent Owner of any of the 2013 Notes) and the City that the interest rate on the 2013 Notes never exceed the maximum rate 11 Resolution No. 23 -13 permitted by law (the "Maximum Rate "). In the event any adjustment provided for in this Section 3.7 with respect to the 2013 Notes would produce an interest rate on the 2013 Notes in excess of the Maximum Rate, the Owner shall not be entitled to receive interest in excess of the Maximum Rate (herein, such amount is referred to as "Excess Interest "). At any time thereafter, if the 2013 Notes shall bear interest at an Interest Rate, which is less than the Maximum Rate, the City shall also pay to the Owner the unpaid Excess Interest until the earlier of (i) the Maturity Date, (ii) the date all of the Excess Interest has been paid, or (iii) any date the combination of the Interest Rate on the 2013 Notes, plus the Excess Interest, would exceed the Maximum Rate. ARTICLE IV MISCELLANEOUS PROVISIONS Section 4.1 MODIFICATION OR AMENDMENT. No modification or amendment of this Resolution or of any resolution amendatory thereof or supplemental thereto, may be made without the consent in writing of all of the Noteholders. Section 4.2 ADDITIONAL AUTHORIZATION. The Mayor, the Vice - Mayor, the City Manager, the Finance Director, the Treasurer and any other proper official of the City, be and each of them is hereby authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Resolution. Section 4.3 SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions of this Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions of this Resolution or of the 2013 Notes issued hereunder. Section 4.4 REPEALER. All resolutions and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed and this Resolution shall take effect upon its passage in the manner provided by law. In the event of a conflict between the provisions of this Resolution and the Bond Resolution, the provisions of this Resolution shall control. Section 4.5 EFFECTIVE DATE. This Resolution shall be effective immediately upon its adoption. PASSED AND ADOPTED in regular session on this 161h day of April, 2013. FLORIDA ATTEST: By: City Clerk The foregoing resolution is hereby approved by me as to form this 16th day of April, 2013. THE CITY OF DELRAY BEACH, By: Mayor 12 Resolution No. 23 -13 By: City Attorney 13 Resolution No. 23 -13 EXHIBIT A NOTE PURCHASE AGREEMENT THIS NOTE PURCHASE AGREEMENT (the "Agreement's dated April _, 2013, by and between TD Bank, N.A., a national banking association organized under the laws of the United States (herein the `Bank' and the City of Delray Beach, Florida, a municipal corporation of the State of Florida (together with its successors and assigns, the "City'. WITNESSETH: WHEREAS, pursuant to the Act, as such term is defined in Resolution No. 76 -99, as supplemented by Resolution No. 23 -13 (collectively, the "Resolution', adopted by the City Commission of the City on December 14, 1999 and April 16, 2013, respectively, the City authorized the issuance of $22,250,000 in aggregate principal amount of City of Delray Beach Florida Bond Anticipation Revenue Improvement Notes, Series 2013 (the "Notes'; and WHEREAS, any capitalized term used in this Agreement and not otherwise defined shall have the meaning ascribed to such term in the Resolution; and WHEREAS, the Bank has reviewed the Resolution and hereby finds the terms acceptable; and WHEREAS, on this date, the City has, pursuant to provisions of the Act, the Resolution, the Line of Credit and this Agreement, agreed to issue and sell to the Bank and the Bank has, pursuant to the terms of this Agreement, the Line of Credit and the terms and provisions of the Resolution, agreed to purchase from time to time upon each draw, all of the Notes; and WHEREAS, on the date hereof, the Bank shall purchase the Notes in the principal amount equal to the first Draw; and WHEREAS, the City and the Bank have heretofore negotiated the terms of the Notes and the Resolution and by execution of this Agreement each will have confirmed that such are acceptable. NOW THEREFORE, the City and the Bank hereby agree as follows: 1. Purchase and Sales. Upon the terms and conditions set forth herein and in the Notes, the Line of Credit and the Resolution and upon the representations and warranties of the City set forth in the Resolution, the Line of Credit and other closing certificates, the City agrees to sell on this date the Notes on a negotiated basis to the Bank and the Bank agrees on this date to purchase, with immediately available funds, the principal amount of the Notes issued by the City from time to time in connection with Draws. The purchase price for the Notes shall be equal to the principal amount of the Notes so issued by the City from time to time. Since the dated date of the Notes is the date the Notes are issued, there will be no accrued interest as part of the purchase price. 2. Private Placement Negotiated Sale. The Bank hereby acknowledges that the purchase of the Notes from the City is and will be on a negotiated private placement basis and that there has been no offering document prepared by the City in connection with such sales. 3. Conditions for Purchase. The Bank's agreement to purchase the Notes on this date is subject to the satisfaction of the conditions set forth in Section 2.6 of Resolution No. 23 -13 and the terms of the Line of Credit. The Bank's purchase of the Notes will constitute full evidence that such conditions have been satisfied or waived. Resolution No. 23 -13 A -1 4. Section 218.385 Florida Statutes. On or before the purchase of the initial issue of the Notes, the Bank has provided the City with the disclosure and truth -in- bonding statements required by and in accordance with, Section 218.385, Florida Statutes, as amended and supplemented. The above - referenced statements are attached to this Agreement as Schedule A. 5. Expenses. As between the City and the Bank, the Bank shall not be liable for any expenses incurred by the City in connection with the issuance of the Notes. The Bank represents to the City that it has not employed or used the services of any attorney or other professional in connection with the Bank's negotiations with the City and its purchase of the Notes other than Gray Robinson, P.A., which fee, in the amount of $4,000 shall be paid by the City. 6. Trial b3� Tury Waived. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement, the Line of Credit or the Resolution. 7. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. 8. Headings. The headings set forth in this Agreement are inserted for convenience only and shall not be deemed to be a part hereof. 9. Amendment. No modification, alteration or amendment to this Agreement shall be binding upon any party until such modification, alternation or amendment is reduced to writing and executed by all parties hereto. 10. Governing Law. The laws of the State of Florida shall govern this Agreement. 11. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were signatories upon the same instrument. [Signature page follows] Resolution No. 23 -13 A -2 IN WITNESS WHEREOF, the City and the Bank has caused this Agreement to be executed by its respective duly authorized officers all as of the date hereof. (SEAL) TD BANK, N.A. By: Title: Date: April , 2013 CITY OF DELRAY BEACH, FLORIDA By: Title: Date: April , 2013 Resolution No. 23 -13 A -3 EXHIBIT B FORM OF 2013 NOTE No. R- (not to exceed) $22,250,000 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA BOND ANTICIPATION REVENUE IMPROVEMENT NOTE, SERIES 2013 Interest Rate Maturity Date Initial Dated Date (unless extended) Variable REGISTERED OWNER:-------- - - - - -- June 1, 2016 April 23, 2013 TD BANK, N.A.--------- - - - - -- PRINCIPAL AMOUNT:- - - - - -- -NOT TO EXCEED TWENTY TWO MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS - -- KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach (the "City' in Palm Beach County, Florida, for value received, hereby promises to pay from the sources herein mentioned, to the Registered Owner specified above or registered assigns on the Maturity Date specified above or on June 1 2026, if such Maturity Date is extended in accordance with the provisions of Resolution No. 23 -13, or earlier upon optional prepayment as provided below, upon the presentation and surrender hereof at the City's Finance Department or (if so determined by the City) the designated trust office of the bank or trust company appointed by the City to act as paying agent (said City's Finance Department or such bank or trust company and any bank or trust company becoming successor paying agent being herein called the "Paying Agent', the Principal Amount outstanding and not previously prepaid with interest thereon at the stated interest rate calculated on the basis of a 360 -day year of 12 thirty -day months, on each Payment Date in the manner specified in the within described Note Resolution to the registered owner. The interest rate on the Note may be converted to the Default Rate or is otherwise adjusted as provided in the Resolution No. 23 -13. The principal amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public and private debts. This Note is authorized to be issued in a principal amount of not exceeding $22,250,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Delray Beach, Florida, as amended and supplemented and other applicable provisions of law (the "Act' and Resolution No. 76 -99 duly adopted on December 14, 1999 and Resolution No. 23 -13 duly adopted on April 16, 2013 (collectively, the "Note Resolution', as such resolutions may be further amended and supplemented from time to time and is subject to all terms and conditions of said resolution. Any term used in this Note and not otherwise defined, shall have the meaning ascribed to such term in the Note Resolution. It is hereby certified and recited that all acts, conditions and things required to exist, to happen and to be performed, precedent to and in the issuance of this Note exist, have happened and have been performed in regular and due form and time as required by the Laws and Constitution of the State of Florida and the Charter of the City applicable thereto and that the issuance of this Note is in full compliance with all constitutional or statutory limitations or provisions. Resolution No. 23 -13 B -1 This Note shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Note Resolution until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. This Note shall bear interest at the Interest Rate, as such rate may be adjusted in accordance with the terms of the Resolution No. 23 -13. Upon the occurrence of a default by the City under Resolution No. 23- 13, this Note shall bear interest at the Default Rate. Interest shall be payable on June 1, 2013 and each December 1 and June 1 thereafter and principal on the Notes, unless prepaid, shall be payable on the Maturity Date, provided that, in either case, if such payment date is not a Business Day, the payment shall be made on the next succeeding Business Day (each a "Payment Date "). The principal of and interest on the Notes shall be secured and payable solely by the Pledged Revenues (as defined in the Note Resolution), all in the manner provided in the Note Resolution. Subject to the terms and provisions of the Section 2.2 of Resolution No. 23 -13 of the City, the City may prepay this Note in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of this Note, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Note is to be paid, upon presentation and surrender of such Note to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of this Note is to be paid, upon presentation of such Note at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Note in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Notes are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, without surrender of this Note. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of this Note shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, any payments due hereunder. This Note shall not be and shall not constitute an indebtedness of the City within the meaning of any constitutional, statutory, charter or other limitations of indebtedness but shall be secured and payable solely by the Pledged Revenues. No Holder of this Note shall ever have the right to compel the exercise of ad valorem taxing power of the City, or taxation in any form of any real property therein to pay the Note or the interest thereon. No holder shall have a lien on any Non -Ad Valorem Revenues until deposited into the Debt Service Fund created and established under the Note Resolution. The terms and provisions of the Note Resolution are incorporated in this Note as though such terms and provisions have been set out in full herein. IN WITNESS WHEREOF, the City of Delray Beach, Florida, has caused this Note to be signed by its Mayor, either manually or with his facsimile signature and the seal of the City Commission of the City of Delray Beach, Florida, to be affixed hereto or imprinted or reproduced hereon and attested by the Clerk of the City, either manually or with her facsimile signature and this Note to be dated the Dated Date set forth above. Resolution No. 23 -13 B -2 (SEAL) ATTEST: City Clerk CITY OF DELRAY BEACH, FLORIDA By: Mayor Resolution No. 23 -13 B -3 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: 12013 This Note is the Note delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: Authorized Officer Resolution No. 23 -13 B -4 ASSIGNMENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name and address of assignee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Note on the books kept for registration thereof, with full power of substitution in the premises. Signature Guaranteed: In the presence o£ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement, or any change whatever. Resolution No. 23 -13 B -5 EXHIBIT C CLOSED -END LINE OF CREDIT AGREEMENT Dated as of April 1, 2013 WHEREAS, TD Bank, N.A., a national banking corporation organized under the laws of the United States (the `Bank', has offered to make a closed -end line of credit (the "Line of Credit') available to the City of Delray Beach, Florida, a municipal corporation (the "City' created and established pursuant to the laws of Florida, as amended and supplemented, in the principal amount of not exceeding $22,250,000 under which the City may, from time to time, make drawings provided that the maximum principal amount of unpaid drawings shall not exceed $22,250,000; and WHEREAS, the City, on April 16, 2013, adopted Resolution No. 23 -13 (the "Resolution' authorizing the issuance of not exceeding $22,250,000, in aggregate principal amount of City of Delray Beach, Florida Bond Anticipation Revenue Improvement Notes, Series 2013 (the "2013 Notes' which 2013 Notes shall represent the City's obligation to reimburse the Bank for drawings made under the Line of Credit; WHEREAS, the City and the Bank find it necessary to enter into this Closed -End Line of Credit Agreement (the "Agreement', to acknowledge the terms and provisions of the Resolution adopted by the City and the extension of the Line of Credit by the Bank; and WHEREAS, capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Resolution or to the extent applicable, the Bond Resolution No. 76 -99 adopted by the City on December 14, 1999 (the "Bond Resolution', as the case may be. NOW THEREFORE, the City and the Bank hereby agree as follows: Line of Credit. That the Bank shall make available to the City, pursuant to the terms and provisions of the Resolution, the Bond Resolution, the Note Purchase Agreement and this Agreement, the Line of Credit in a maximum principal amount of not exceeding $22,250,000 outstanding, which shall be available to the City in one or more drawings prior to the Final Draw Date as defined below. Final Draw Date; Maturity Date. That the outstanding principal amount of the drawings with interest thereon, shall become due and payable in accordance with the terms and provisions of the Resolution. The Final Draw Date shall be not later than May 1, 2016, unless the City notifies the Bank in writing prior to such date that they will not request further Draws under the Line of Credit. Principal of and interest on the 2013 Notes shall be payable at the times and in the amounts set forth in the Resolution. The outstanding principal and accrued and unpaid interest of the 2013 Notes shall mature and be due and payable in full on the Maturity Date. 3. Bank's Agreement to Pay Draws. Draws. From the date hereof until the Final Draw Date, subject to the terms and conditions of this Agreement and the City's performance of and compliance with each of the Resolution, the Bond Resolution (to the extent applicable) and the Note Purchase Agreement, and so long as no event of default (including, without limitation, the breach of any warranty or representation) hereunder or under any of the Resolution, the Bond Resolution and Note Purchase Agreement shall have occurred, be continuing or would result, the Bank agrees to extend to the City the Line of Credit in an amount not to exceed $22,250,000 (the `Borrowing Base'. Within such limits and subject to the terms of this Agreement, the Bond Resolution (to the extent applicable) and the Resolution, the City may borrow and repay without penalty or premium, from the Closing Date until the Final Draw Date in an aggregate principal amount of not exceeding Resolution No. 23 -13 C -1 $22,250,000. It is expressly understood and agreed that the Bank shall have no obligation to pay a Draw requested by the City under the Line of Credit if the amount of such Draw together with the amount outstanding under the Line of Credit exceeds or would exceed $22,250,000. The City, through an authorized representative, shall provide the Bank with written notification of its request for a Draw and instructions for the disbursement of the proceeds thereunder. Subject to the terms hereof, all Draw requests made by the City prior to 2:00 p.m. on a Business Day shall be funded that same business day and Draw requests made after 2:00 p.m. on a Business Day or on a non - Business Day shall be funded on the subsequent Business Day. City's Loan Account. All Draws made under the Line of Credit shall be evidenced by the 2013 Notes and by entering such Draws on the books and records of the Bank (herein, the "City's Loan Account ") which unpaid amounts in the City's Loan Account shall be conclusive and binding against the City absent manifest error. The Bank shall also record in the City's Loan Account all other charges, expenses and items properly chargeable to the City hereunder, all payments made by the City on account of indebtedness under the Line of Credit and other appropriate debits and credits. The debit balance of the City's Loan Account shall also be evidenced by the 2013 Notes and shall reflect the amount of the City's indebtedness to the Bank from time to time hereunder and under the Resolution. Duration. The Line of Credit shall terminate on the Final Draw Date, at which time all unpaid principal of and accrued interest on the 2013 Notes shall be payable on the Maturity Date. No modification or amendment of this Agreement or extension of the Maturity Date shall be effective unless placed in writing and duly executed by the Bank and the City and Bond Counsel delivers its opinion that such extension shall not adversely affect the tax status of the 2013 Notes. It is expressly agreed that this Agreement shall survive the maturity or termination of the Line of Credit in all respects necessary for the Bank to exercise its rights and remedies hereunder and the Bond Resolution. The City covenants that it will use its best efforts to submit Draws in accordance with the estimated draw schedule attached hereto as Exhibit A. If the City fails to Draw at least the amount set forth on such attached draw schedule, and such failure continues for 30 days after receipt of written notice from the Bank, the Bank may charge the City a penalty in the amount of .50% of the un -drawn principal amount, which penalty shall be deducted from the next succeeding Draw. This penalty may be charged for each successive failure to Draw at least the amount set forth on the attached Draw schedule. In lieu of such penalty, the Bank may deposit the un -drawn amount under the Line of Credit into an interest bearing account established with the Bank. The City shall have complete dominion and control over such account, except that prior to the City utilizing such moneys, the Owner of the 2013 Notes shall have a hen thereon. The maturity or termination of the Line of Credit shall in no way affect any transactions entered into or rights created or obligations incurred prior to such maturity or termination; rather, such rights and obligations shall be fully operative until the same are fully disposed of, concluded and /or liquidated. Without limitation to the generality of the foregoing, such maturity or termination shall not release nor diminish any of (i) the City's obligations and agreements relating to the Line of Credit, or (ii) the Bank's rights and remedies arising hereunder or in connection herewith until full and final payment and performance of all of the liabilities of the City to the Bank under this Agreement, the Resolution, the Bond Resolution (to the extent applicable) and the Note Purchase Agreement. This Agreement shall be a continuing agreement in every respect. Acceptance of Terms. That the Bank hereby accepts the terms and conditions set forth in the Resolution applicable to the Line of Credit. Waiver of Jury Trial. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement and the Note Purchase Agreement. Resolution No. 23 -13 C -2 7. Amendment. No modification, alteration or amendment to this Agreement shall be binding upon any party until such modification, alternation or amendment is reduced to writing and executed by all parties hereto. 8. Governing Law. The laws of the State of Florida shall govern this Agreement. 9. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were signatories upon the same instrument. [SEAL] Attest By: Name: Title: TB BANK, N.A. By: Name: Title: Date: CITY OF DELRAY BEACH, FLORIDA By: Name: Title: Dated: Resolution No. 23 -13 C -3 EXHIBIT A Estimated Draw Schedule N FEDERAL BEACH TOTAL HIGHWAY RENOURISHENT DATE OF CLOSING 9,144,000 9,144,000 APRIL 2013 - MAY 2013 - JUNE 2013 503,403 503,403 JULY 2013 503,403 503,403 AUG 2013 503,403 503,403 SEPT 2013 789,403 306,000 1,095,403 OCT 2013 417,653 417,653 NOV 2013 569,353 569,353 DEC 2013 569,353 569,353 JAN 2014 569,353 50,000 619,353 FEB 2014 853,103 853,103 MAR 2014 567,103 567,103 APR 2014 567,103 567,103 MAY 2014 415,403 415,403 JUNE 2014 415,403 415,403 JULY 2014 415,403 415,403 AUG 2014 415,403 415,403 SEPT 2014 415,403 415,403 OCT 2014 191,500 191,500 NOV 2014 191,500 191,500 DEC 2014 708,122 708,122 JAN 2015 708,122 708,122 FEB 2015 1,978,108 1,978,108 MAR 2015 116,500 116,500 APR 2015 116,500 116,500 MAY 2015 250,000 250,000 12,750,000 9,500,000 22,250,000 Resolution No. 23 -13 C -4 EXHIBIT D 2013 Projects (1) "Beach Renourishment Project ": the engineering, construction, and fill placement as well as environmental monitoring of the City's 2.7 mile long beach. (2) "Federal Highway Beautification Project ": The enhancing of pedestrian safety and beautification of Federal Highway through downtown. The entire corridor will be reduced from three through lanes in each direction to two through lanes in each direction. The first two blocks north and south of E. Atlantic Avenue will include wider sidewalks and decorative street lights. The entire corridor will include additional landscaping and the intersections of southbound Federal Highway and SE 1s, St., E. Atlantic Avenue and NE 1sr Street will have signalized intersections upgraded. (3) All related, necessary and incidental engineering, design, labor, contingency relating to such capital projects and costs of issuing the 2013 Notes. W/71B 383009399v6/999903.426594 Resolution No. 23 -13 D -1 z U « w � � � � w 0 LL O 2 A U) 2 O U) � « a � O U CL LL � m D 2 O � w 2 w LU � > w CL � w D 2 w > w w 2 O � « CL Q � 2 « D 2 O � k 2 C4 q 6e. \ % < 9 R 9 2 2 2 2 e¥ a 2 m 2 U Lo / 9 / 0- Q- LU % * o 0 « j t / � � o Q- E /\ 2 @ \ ® � 1 D % b or) 2 / 2 / § o k u > 2 » § ' § E � o ° 2 y w 2 z « \ \ rr 2 0 Q ® / 7 a 2 9 E y m / a L a o _ « 70 o /kk 2 /jo / k 2 % 2 U \ R£ $ , C C % Q- LU t * a o B LU j 2/ 6 � o Q- w 2 @ \ ® � 1 D % b § a 2 / 2 / § > § 2 [ k / > E y ' § E � ® E h ° > E 4 ® ° 2 y w 2 z « \ \ rr » C/) 0 ® / 7 a 2 9 E \ ƒ a k E § / Lo \ 7 � y m / a L a o o / o % � % ƒ 9 R 9 7 2 2 U � ƒ / % % d % ® LU * f @ 0 m q CN 5® a t® LU j 6 70 \ m m o j 2 \ @ >ƒ j § « 3 n D m m CL E a) b \ / > 2 / 2 / § 2 [ k > E y ' § E � ® E h ° > E 4 ® ° 2 y w 2 @ « cu y « / / \ rr » C/) 0 ® / 7 a 2 9 E W ■ ƒ ƒ a k E § / Lo \ 7 � 2 CO 2 0 0 - E o ® ± w » q ± ® \ 0 D » @ D 2 § 2 [ k > ■ ' § E � ° 2 w 2 \ rr 0 ® / 7 a 2 E W ■ ƒ ƒ a k E � 2 CO 2 0 0 - E o ® ® (n LL � ® � ■ 2 2 m m -■ CL 2 m m CL m c U D c o =) w a o -i ■ m O 2 U Q W 00 J W 0 LL O 2 T U) Z U) Q a O U CL LL 0 Z O m H Z W W O w CL LU D Z W > W w Z O H CL U H Z Q 0 Z O 00 0 0 0 0 N N N o Q 00 00 T U -0 O o a M Z jo � N O 0 C �Z N m� w Ln rn O O c6 O Ln LO N N d O O cr — C 2 70 60} 60} O Z 0 4-- Q J J O Cl O Q c6 c6 J -2 O 0 O M Q 0 � O Z U NI'- I'- m E O U) N N D X ° +, N N CD o u) E E do LO LU 'O CD Q LPL/ O � Z 72 .-. O O •� � r a a) E C O� O -0 D J o N N N N LL O? O T LL N _ O O .� � U 0 Go N N m N O >+ U N � U CD- o Q C N >+ O Q -0 O N 1- U Cfl CD Z O O Z Z N Z v cm c6 JO O N X O N I— N cr `o M d N N cu Cl O Q N J -2 O 0 O N o LO � O Z N U co o c M O 70 > + 0 +, N N O do `o LU 'O d O — Z 72 .-. O O •� � r a O � O D J o c6 cu T LL N _ O O c O 0 Go N N m N O >+ o L m a 3: L 3 O E 3 O Q d +m+ v ++ t3 3 O U > O 0 > �3 a o -i Q O o Q mjo rn >• O Q _0 U) -0 .� N U a) Z v fl cv Z O O N N _--. Z Z N N N i s o N O N N d O m p N -0 o -0 Ef} EA O Q N J -2 O 0 z N J M � O N U -F � O c > +, N � O do E LU 'O U O — .-. O O •� � r a O � O o Z cu L LL N LL N _ O O 0 Go N N m N O >+ C L m a 3: L 3 O 0 0 0 � O O O � O > +, N O � LU 'O .-. O O •� � r a � O o E L LL N LL N _ O O > N Go N N m N O >+ a� L m a 3: L 3 O ui L 3 3 O Q d +m+ v ++ t3 3 O U > O 0 > �3 a o -i cn O MEMORANDUM TO: Mayor and City Commissioners FROM: Lula Butler, Director, Community Improvement THROUGH: Louie Chapman, Jr., City Manager DATE: April 8, 2013 SUBJECT: AGENDA ITEM 10.B. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 APPEAL OF SPRAB'S DECISION REGARDING ENTERPRISE RENT -A -CAR ITEM BEFORE COMMISSION Review an appeal of the decision by the Site Plan Review and Appearance Board to deny a flat wall sign with corporate colors for Enterprise Rent -A -Car, located 14832 S. Military Trail, pursuant to LDR Section 2.4.7(E). BACKGROUND On September 12, 2012, the Site Plan Review and Appearance Board voted 6 to 0 to table a request to allow an amendment to the Master Sign Program for the "Bed Bath and Beyond Plaza ", to allow a flat wall sign with corporate colors of green and white for the Enterprise Rent -A -Car sign. The current Master Sign Program requires that all non - anchor tenants to have Red PMS #185 channel letters. After a long discussion, the Board recommended that the applicant return to SPRAB, when there was a full Board, to vote on the amendment as they could not come to a consensus. The applicant returned to the Board on November 28, 2012 with a different amendment request to the Master Sign Program to allow corporate colors for any business located within the plaza. After a short discussion, the Board unanimously agreed to table the item and directed the applicant to look at the antiquated Master Sign Program in its entirety and not "piecemeal" the plan to just meet his needs. The applicant returned to the Board on February 13, 2013, with his original proposal from September 12th to allow corporate colors of green and white for Enterprise Rent -A -Car's sign. The Board voted 7 to 0 to disapprove the amendment request based on a failure to make positive findings pursuant to LDR Section 4.6.7 F(2)(b) Master Sign Program. The applicant for Enterprise Rent -A -Car is appealing this decision and seeking approval to allow the use of its corporate colors of green and white on the building. A copy of the minutes, building elevation identifying the sign and location, and the applicant's waiver request are attached for reference. RECOMMENDATION Staff recommends Commission uphold SPRAB's decision to support the Master Sign Program pursuant to LDR 4.6.7(F)(b) established for the Bed Bath and Beyond Plaza and deny the request to allow corporate colors for Enterprise Rent A- Car located at 14832 S. Military Trail. IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This appeal of the Site Plan Review and Appearance Board's denial of a request to amend the Master Sign Program at Bed Bath & Beyond Plaza located at 14832 S. Military Trail came before the City Commission on April 16, 2013. 2. The Appellee and City staff presented documentary evidence and testimony to the City Commission pertaining to the appeal of the Site Plan Review and Appearance Board's denial of the request to amend the Master Sign Program associated with Bed Bath & Beyond Plaza. All of the evidence is part of the record in this case. Required findings are made in accordance with Subsection I. LDR REQUIREMENTS A. Pursuant to LDR Section 4.6.7(F)(2)(b), "Master Sign Program ", 1. Master Sign Program: A Master Sign Program shall be approved by the Site Plan Review and Appearance Board or if the project is in a historic district or historically designated site, by the Historic Preservation Board. After approval of a Master Sign Program, individual signs consistent therewith shall be administratively approved. The applicant appeared before SPRAB, requesting an amendment to the approved Master Sign Program for the Plaza (attached hereto as Exhibit "A "), on February 13, 2013 not acting as an agent for the plaza and proposed a sign with a height of 2'1 Y4 ", length of 10' 3 ", and total square footage of 21'6 ". While the size of the sign is allowed by code, the applicant's proposed corporate colors green, black and white do not meet the approved Master Sign color of red. The "E" in the proposed sign for the word "Enterprise" is green with the balance of the letters being white with black returns. SPRAB voted to deny this sign by a vote of 7 -0. It is now before you on appeal. Is the Applicant's proposal consistent with the approved Master Sign Program for the Bed Bath & Beyond Plaza? Yes No 3. The City Commission has applied the LDR requirements in existence at the time the original site plan was submitted. 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves denies the appeal and hereby adopts this Order this 16th day of April, 2013, by a vote of in favor and opposed. ATTEST: Chevelle Nubin City Clerk 2 Cary D. Glickstein, Mayor M 0 I I 00 0 I I Qo ^N Y i i' Iii III i i i m U U NII IIo � NI, NI o o �� o w �I w III I N �I o,Il o z uj a C O CL co - T J Q d O U z ° m O� IHHHM 0 0 M M O° 0 00 0 0 0 11 N w w J d C R U o c s .. fA - � n C d x R w W V/ ) ol 0 00 o 0 C O N C O C� O 3 Lx N W C �'^II Al L— Of C VI W O R d M W y 3 m w U Z N w O v; o� 00 m O �> vo O`er a p N N N (6 L U m C .0 N O n f/1 0 rT � O y Q� O Z �NLL C m ` W �O K El 3 �aaa E�3o _ o3a zama....oH z all 0 m 0 t Q T A \L Wu Lm a LM w 0 w N_ O N Pd O O �> v0 O m N a p U L Q n J. C - N % N �aaa E�3o L z ID 2 QNLL C m ` W �O K V K El L Q' O . 3 es o. � � r •R d d V Q Q _ ❑ ❑ ¢ O 0 N �aaa E�3o L Q z �o O M R d � es R d U W fA Below is the draft transcription of a portion of the Minutes for the Site Plan Review and Appearance Board meeting of February 13, 2013 on: II. SIGNS A. Enterprise Rent -A -Car (postponed from the 91-121-12 and 111281-12 meetings) 14832 S. Military Trail Denise Williams: Phone: (9541 644 -2011, Email: denisewilliams123natt.net Amendment to the Master Sign Program for the Bed Bath & Beyond Plaza. Mr. Korthals then said, regarding the intent of the sign code, and quoted again from the Land Development Regulations, Section 4.6.7(A): "The purposes of these sign regulations are: to encourage the effective use of signs as a means of communications in the City; to maintain and enhance the aesthetic environment and the City's ability to attract sources of economic development and growth" He said by not allowing national corporations who want to bring their business into the City to have their federally trademarked signs and signage the Board is not meeting the intent set forth in the LDRs. Mr. Korthals concluded his presentation by saying that was why he was asking the Board again for approval, based upon interpretation based on intent. Public Comments There were none. Board Discussion Chair Porten asked if there had been any ex -parte communication on this item and Ms. Finst said she had driven by the location. There was further discussion about the Ma gn Program for the shop enter and Mr. Korthals said that the owner of the shopping center w of allow him to act as age is behalf and stated the owner said he would probably come in wi wn re amend the in a couple of years. He said that if the Board would prefer he lettering but h ght the white letters looked better because tey ch the "Bed Beyond" letters. Mr. Po n said that the "E" alone did not look good. Mr. G stated that th Board approved the proposal a dozen others would be coming back be IV the B anting the thing. Ms. Finst said it w unfortunate that they did not check the riteria in the plaza before they moved in and ould not use t e red 1 ttering they sho o elsewhere. Mr. Aguila said there is no r rio is proble d aroval won Wdlord ke opening Pandora's box. Mr. Bregman s e hoped rthals wo d be *1e to get to change the Master Sign Program. Mr. o en said r. Korthal needs to advise the landlord that, if he wants national tenants in his plaza needs date and re e is Master Sign Program. by Mr. y for of equest for an amendment to the Master Sign ogram fo terprise R -Car, 14 . Mih ary Trail based on positive findings pursuant to I-DR Section 4.6.7(F)(2)(b). otion was seconded by Mr. Bregman and failed by a zero to seven SITE PLAN REVIEW AND APPEARANCE BOARD Project Name: The Bed Bath & Beyond Plaza Project Location: 14832 S. Military Trail Contact Person: "Enterprise Rent -A -Car" ITEM BEFORE THE BOARD The item before the board is consideration to amend the Master Sign Program established November 8, 2006 for The Bed Bath & Beyond Plaza. BACKGROUND The Master Sign Program for the Bed Bath & Beyond Plaza was amended on November 8, 2006. Enterprise Rent - A -Car moved into the Bed Bath & Beyond Plaza several months ago. In September of 2012, the applicant appeared before the board to amend the Master Sign Program in order to allow their corporate colors. The Board could not come to a general consensus and suggested that the applicant return to SPRAB when there was a full board to vote on the amendment. On November 23, 2012 the applicant returned to the Board acting as the agent to amend the Master Sign Program for the Bed Bath & Beyond Plaza with the following criteria changes: B. (2) The Landlord reserves the right to enforce or relax any provisions of these sign criteria at its discretion, with the approval of the Site Plan Review Board. D. (11) Registered trademarks or logos may be permitted for non - anchor tenants provided that the proposed sign does not disrupt the uniformity of the building architecture. The logo shall not exceed 30" in height and 48" long. Federally registered Trademarks will be allowed in corporate colors conforming to the size restrictions listed in Section D. The Board felt the Master Sign Program needed to be looked at as an entire package. They asked the applicant to return with a completed Master Sign Program and not just modifications to meet his needs in order to receive his sign. For this reason they deferred with a vote of 7 -0. In December of 2012, the applicant applied for a green and white logo sign that was approved by staff administratively. It is 2'6" x 2'6" for a total of 6'25" and is illuminated. This sign fits the criteria of the Master Sign Program for the Bed Bath & Beyond Plaza. The applicant is returning with their original sign that the Board first saw on September 12 2012 and not acting as agent to amend the Master Sign Program for the plaza. The sign height is 2'1 '/4 ", sign length 10' 3 ", total square footage 21'6 ". While the size of the sign is allowed by code, their proposed corporate colors green, black and white Meeting Date: February 13, 2013 Agenda Item: do not meet the approved Master Sign color of red. The "E" in Enterprise is green with the balance of the letters being white with black returns. Under the current submission the applicant has made no changes suggested by the board. Staff is recommending denial for the request for the amendment to the Master Sign Program for Enterprise Rent -A -Car. ALTERNATIVE ACTIONS 1. Deny the request for an amendment to the Master Sign Program for Enterprise Rent -A -Car, 14832 S. Military Trail based on failure to make positive findings to LDR Section 4.6.7(F)(2)(b). 2. Approve the request for an amendment to the Master Sign Program for Enterprise Rent -A -Car, 14832 S. Military Trail based on positive findings pursuant to LDR Section 4.6.7(F)(2)(b). 3. Boards Discretion RECOMMENDATION Staff recommends denial of an amendment to the Master Sign Program for Enterprise Rent -A -Car, 14832 S. Military Trail based on failure to make positive findings to LDR Section 4.6.7 (F)(2)(b). Meeting Date: February 13, 2013 Agenda Item: February 28, 2013 Ms. Chevelle Nubin City Clerk City of Delray Beach 100 NW lst Avenue Delray Beach, Florida 33444 Re: Enterprise Rent -A -Car 14832 South Military Trail Delray Beach, FL 33484 Dear Chevelle: On behalf of Enterprise Rent -A -Car we are respectfully requesting an Appeal of the Site Plan Review and Appearance Board's decision from the February 13'x', 2013: meeting in regards to an amendment to the Master Sign Plan to allow exterior wall signage in'the "Bed, Bath and'.Beyond Plaza at 14832 South Military Trail for Enterprise Rent -A -Car. The SPRAB panel failed to use the LDR in their interpretation and as a basis for their findings in making their decision. We are seeking approval of the matter presented to SPRAB on 2/13/2013 as it is compliant with LDR, the Comprehensive Plan and the City's Five Year Plan. If you have any questions, please contact me at 954- 354 -5235 Respectfully submitted, Enterprise Leasing Company. of Florida, LLC, a Delaware limited liability co., d/b /a Enterprise Rent -A- Car Name: Jake Korthals Title: Re riog Regional Operations Supervisor October 16, 2012 City of Delray Beach Site Plan Review and Appearance Board 100 NW 1 st Avenue Delray Beach, FL 33444 Re: Bed Bath & Beyond Plaza, 14820 -22 Military Trail, Delray Beach, Florida 33445, identified as Unit 15 Dear Sir/Madam: This letter authorizes Jake Korthals and Enterprise Rent -A -Car and its representatives to act as agents on our behalf to amend the Master Sign Criteria for the Bed Bath and Beyond Plaza in reference only to the changes set forth herein and for no other changes than what are specifically set forth herein. Paragraph B 2. of the Master Sign Criteria is to be replaced in its entirety with the following: "The Landlord reserves the right to enforce or relax any provisions of these sign criteria at its discretion, with the approval of the Site Plan Review and Appearance Board." The following text shall be added to the end of Paragraph D 11. of the Master Sign Criteria: "Federally Registered Trademarks will be allowed in corporate colors conforming to the size restrictions listed in Section D." No additional changes may be made pursuant to this grant of authority without the written consent of the undersigned or his designate. Sincerely, B.B.B. PLAZA ASSOCIATES, LTD. David S. Novoseller, General Partner 6111 Bioken.Sound Parkway, Office of'the B14.., Boca Raton, Florida, 33,187 Phone: 561 -994 -3223 - Far:.561- 994-32.21 Enterprise Rent a Car Pf 14832 S. Military Trail Delray Beach, Florida I To Whom It May Concern, This letter authorizes Joseph Dillard and Art Sign Company to install a sip(s) at the above referenced location, and Art Sign Company representatives to act: as agents on our behalf to sign permit applications and obtain any necessary permits related ,nly to the above mentioned tenant, Enterprise Rent a Car only. Sincerely, Lz:nC �w Property Owner Property Owner's Owner's Name Printed or Typed Stateof RoE1 (Aq, County of _2? to C h Before me personally appeared n oy'J to me well known to be the person described in and vvho has executed the foregoing instr � ent and acknowledged to and before me that he /she executed said instruinent for the purposes therc"M express WITNESS nay hand and official seal, this 125 day of I'u1 V year U D t Irtz fl `0� Ew%`'`r`p3��� a 0C�f. T ��!¢ s 'RRYP B !!dldl l l ll11� A. SIGNS IN THE .PLAZA WITHOLT CHANGE- Signage for the two out parcel buildings will not-be altered at this time. Any future signage inust be approved. by the landlord axid the C. ty of De.1r3ay Beach Site Plan Review and Appearance Board', 2. In addition to those mentioned, the following flat wall si nago is currently owned and operated by existing Tenants, and therefore will not be required to change signage: "Zion" "Jacks NYC Pizza Restaurant", "Optical", "Office .Products ", "Hairspray Salon and Color Studio ", "SAS ", "Gaspard Shoes ", `:Stitches Needlepoint" "Medical Chiro Rehab''; "JN Nails ", `TLC Nursing" "CVSfpharirnacy ", "Atlantic Fish Grill ", "La PavillorC, "Greek Taverna ". Prior to any lease renewal with the above mentioned tenants, the Landlord will negotiate with. Tenant to replace any signage that does not conform to this new criterion. A rent roll and lease expiratjoh sheet is attached for raf fence. All Future Tenant signage shall be designed, constructed, and located in accordance with the following design criteria and shall be subject to the written approval of the Landlord and approved by the City of Delray Beach. 'Phis criterion has been established to govern the design, fabrication and installation of the Tenant signage and is intended to provide all Tenants with good visual identification., 2. 'Me Landlord reserves the right to enforce or relax any provisions of these sign criteria at its discretion. C. FLAT "WALL SI.GNAGE (Anchor Tenant3): _..: 1 Anchor Tenant is defined as any tenant .. _ .... . . .. Want corztairair,g 10,000 square feet of floor area or greater. Currently only Bed Bath and Beyond and C VS Pharmacy are defined as anchor tenants. 2. In order to provide .the Anuh'or Tenant with a distinct sense. of individuality, the Anchor Tenant may use a prototypical sign that includes; registered logos, registered trademarks, corporate foi.ts, .corporate logos, or corporate colors. Provided that such prototypical signage incorporates channel letters and such signage must be designed, installed and maintained to a l"irst- class appearance. Since the fayade renovation architecture was devised from Tied Bath and B:eyond's prototypical building elevations, Bed. Bath and Beyond will be using their prototypical / corporate sign. If the future anchor Tenant. has no such prototypical sign4ge then. the following Will govern the design of such signage: 3. All letters shall he individual, internally illuminated channel letters with white lamps. ..4. .Consist of :a. maximum of two (2) lines of copy being xed- in color_ (PMS .## 185) with 4 maximum letter height of 35 ". 5. A vai ety of fonts shall be allowed pending Landlord approval. 6. If the sign consists of only one (1) lime of copy the.:max murn letter height shall be 48 ". 7. The trim cap must match the letter faces (Red. BM5 4185). 8. The maximum depth of letter returns shall be 9" and made of a bronze material. 9. The raceway color shall match the existing building face color on which it is installed. 10. The maximum sign area shall not exceed 160 square .feet or 10% of the total square footage of the building face:, whichever is less. 1.1. The ,sign wait shall be centered between the demising walls and the maximum span shall not exceed 80% of the total store width. 1.2. A] I eleetrioal components must be, UL, listed and comply with all NEC and Florida Building Code: . D. FLAT WALL SIG1VAGF, (N€ -n- Anchor Tenants): 1, All letters shall be individual, internally illuminated channel letters with white Iamps. : ,_...Consist of a'maxim of- one: °(1) °Tine of copy being red n.. color (PIM # 185) with a maximum letter be ght of 18 ". 3. if two (2) lir)es of copy is proposed; the, total sign height shall not exceed 32 ". 4. A variety, of fonts shall be allowed pending landlord approval. 5, The maxi'in"Um depth of letter returns shall be 6" and made of a bronze matc-Tia:l. 6. The trim cap must match the letter faces (Red P'M.5 4185). i. A raceway must be used and the color shall match the existing building face on which it is installed. S. TEe maximum sign area shall not exceed 10% of the total square footage of the building face or 80 square feet, whichever is less. 9, Tha sign_can not be, located with in- oue_faot_of the vertical architectural reveals. _. 10 The sigii unit shall be centered betwe:ert the demising...... walls and the maximum .span shall not exceed 80% 0 of the total store width.. 11. Registered trademarks or logos may be pennitted for non - anchor tenants provided that the proposed -sign does not disrupt the uniformity of the building: architecture. The loge shall not exceed 3-0 ":.in height and 48" long. 12. Alt electrical components must be 13L Mted and comply with. all NEC and Florida Building Codes. E. FREESTANDING SIGNAGE. 1. As stated in Sectl6n A above, there are two (7) plaza identification signs at the Plaza Entrances on South Military Trail and Atlantic Avenue. 2. The current shopping center's logo located on the top sigh faOC of the plaza identification signs will be removed and replaced with "Bed Bath and Beyond. Plaza" as shown on the attached documents, This will renarne the shopping center from Delray West Plaza to Bed Bath and Beyond Plaza. 3. Any future changes must be approved by the City of Delray Beach. 4. To allow a sense of individuality for out-parcel tenants, they may use the current allotted size letters and signage area currently provided. Any future changes must be approved by the City of Delray Beach. F. END -CAP SIGNAGE: L Tenants located on end -caps are allowed a maximum of two (2) exterior signs. 2. The secondary sign design must be in accordance with the requirements as outlined in Section D above.. In addition the secandar)< sign must be installed at the same .elevation as thy; pritary sign. 3. If the building is currently? designed with ail Awning on the end cap then tenant may elect to use the Awaing as a second piece of sign age if the proposed s °ignage is accepted by the City of Delray Beach. . WINDOW AND DOOR SIGNAGE: 1. All window and door lettering shall be white vinyl applied to the inside of the space. 2. Each tonant will be permitted to place upon each entrance of its demised _ premises, l) 8' x....12.'.'.. sign hours of business, emergency numbers, address, etc> _ ._. ... . 3 Ea0b tenant having a non - customer dear for receiving, merchandise may have one (1) 6"x 12" sign indicating the. tenant's name and address. 4. Each tenant shall be allowed to have their company name centered on each customer door. This lettering. shall not exceed 15% of the door area. H, INSTALLATION REQUIREMENTS. 1. All installation components. such as, but not limited to, fasteners, clips, bolts, a;te,, shall be of.n.on- corrosive. stainless steel, al:uminurit, .bass; bronze or carbon bearing steel with painted finish. No black iron. material of any type shall be permitted. 2. All penetrations of the fascia small be neatly sealed in a watertight manner using a single component polyurethane sealant as approved by Landlord. Tenant is responsible for fascia penetrations and damage that may .result, including but not limited to water damage. 3. Location of all penetrations of the building fascia for conduit, 'sleeves etc. shall be shown on the approved. detailed drawing submitted by Tenant. 4. No exposed :labels are permitted on the. signage that. is visible from the. ground, except as requi:rcd by local ordinance. 5. Allfaqtentrs for the sign installation shall be concealcd. Method of installation to the building fascia shall be approved by the landlord in Writing. b' l:ristallation §Ball coritply Stith all local codes and artfinances: Electrical work ..._...._ _ ,...... shall be performed by a licensed electrician. Signage shall have an individual circuit and controlled by a dine clock. Priinlaly electric to the signage is the Tenant's responsibility. I. IN URAME REQUIRE 1. All signage contractors installing signs at the Bed B:ath,and'Beyond Plaza shall be requ.i -ed to have a current insurance policy in force with limits of no less than one million dollars ($1,000;000,00) for Commercial General Liability and Workers Compensatioa and Employer's liability in compliance with applicable legal requirements of the State of Florida, . PROCEDURAL REQUIREMENTS: 1, Prior to 'sigynage fabrication, Tenant shall submit, or cause to be submitted to Landlord for approval, Three (3) sets of detailed drawings indicating t)e location, size, layout, fabrication and installation method, design, .copy style and color of ., the proposed signage, including window /door lettering and/or gralihics. Drawings shall show. futl_ fascia ,wt.rbte al faus. oie_ih c ee specific domis'ed promise. 2, Tenant's Signage Contractor shall be a reputable signage fabricator, whose principal business is the fabric;.ation of similar internally illuminated channel letter signs; who has been in business for a .minimum of three (3) years. Additionally, Tenant shill submit,, or cause to be submitted to Landlord a Certificate of Insurance of type coverage and lin is as approved by Landlord in writing. Certificate of.Insurance shall ;name Landlord and its agents as additional insured. No work on premise may commence without a Certificate of Insurance delivered to the Landlord. Tenant. shall be responsible for all required permits for their signage and the installation thereof, including but not, limited to, those by the City of Delray Beach, County of Palm. Beach, or State of Florida. In addition to those requirements listed herein, Tenant must adhere to any municipal code requirements that may further restrict signage size, design or fabricai:ion. Tenant must submit evidence in writing to the Landlord that all approvals and permits have been- secured prior to erecting signage 4. ; ?abrie:ation installation and permit costs: shall be at the Tenant's sole expense. 5. Tenant shall be responsible for the maintenance and repair of its signage. If, after fftien (15) days notification to repair signage, no action has been taken by the Tenant, the Landlord will contract to repair or maintain signage and the cost. of repair or maintenance will be invoiced plus t:en percent (1 do /o) to the Tenant as additional cent. K NOT PERMITTED: 1.. Any si.gm:s that contain a cabinet or box, , flashing, audible, moving, blinking or animated characters. 2. Under Canopy signage is not permitted. FRANCES L7 3e � x c7 J= Q ELLWOOD 40 � F FRANWOOD CANAL I CANAL L -33 0 z a 0 O 3 <a� 0_ Q F1 J t� WEST A T L A N T I C A V E N U E w z ¢ 0 0 Q PlIPIT z Y r JEFFERSON ROAD o y J z ¢ Y o Q z = U � ¢ o oz 3 r W LINCOLN ROAD x iLLLLM ESTATES DRIVE DAMS ROAD HER CIRCLE ASHINGTON ROAD w O O o¢ ESTATES DRIVE 0 3 MADISON ROTD w Y N SUBJECT PROPERTY ENTERPRISE RENT -A -CAR 0 14832 S. MILITARY TRAIL PLANNING TMEN ZONING LOCATION MAP -- DIGITAL BASE MAP SYSTEM -- MAP REF: S: \Planning & Zoning \DBMS \File— Cab \Z —LM 1001- 1500 \LM1385 — Enterprise Rent —A —Car l/Ilot - MEMORANDUM 'A Z TO: Mayor and City Commissioners FROM: Janice Rustin, Assistant City Attorney THROUGH: R. Brian Shutt, City Attorney DATE: April 10, 2013 SUBJECT: AGENDA ITEM N.C. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 PROPOSAL FOR SETTLEMENT IN THE CASE OF ELIZABETH BROWN AND BARRETT BROWN V. CITY OF DELRAY BEACH ITEM BEFORE COMMISSION Proposal for Settlement filed by Plaintiffs Elizabeth A. Brown and Barrett Brown. BACKGROUND This is an offer by the Plaintiff to settle a case pending against the City. The case involves a complaint wherein Plaintiff alleges she injured her jaw, wrists and right leg on December 20, 2011 when she tripped and fell on the sidewalk at or near 1118 East Atlantic Avenue in front of Boheme Bistro. Plaintiff alleges that she tripped over uplifted brick pavers on the sidewalk. Plaintiff claims she has incurred medical expenses in the treatment of the injuries, faces the possibility of future surgery, and has lost wages as a result of her fall. Plaintiff's husband has a consortium claim for the loss of companionship that occurred as a result of Plaintiff's fall. Plaintiffs have made a proposal for settlement in the amount of $225,000.00. RECOMMENDATION The City Attorney's Office recommends denial at this time. MEMORANDUM TO: Mayor and City Commissioners FROM: Louie Chapman, Jr., City Manager DATE: April 10, 2013 SUBJECT: AGENDA ITEM 10.D. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 APPOINTMENT TO THE PUBLIC ART ADVISORY BOARD ITEM BEFORE COMMISSION This item is before the City Commission for an appointment to the Public Art Advisory Board. BACKGROUND There is a vacancy on the Public Art Advisory Board. The term is unexpired ending July 31, 2013. An appointed is needed for one (1) regular member. Per Ordinance No. 15 -12, the appointed member shall be allowed to serve the following full regular term without reappointment because the unexpired term is for a period of time less than six months. On February 1, 2005, the Delray Beach City Commission adopted Ordinance No. 77 -04 establishing the Public Art Advisory Board for the purpose of advising and making recommendations to the City Commission with respect to public art policy and related issues including, but not limited to, the selection, construction and placement of public art in/on City right -of -way and City owned property. The Public Art Advisory Board shall consist of seven (7) members. Three (3) seats on the Board must be filled with either an artist, architect, landscape architect or engineer. Laypersons of knowledge, experience and judgment who have an interest in public art shall make up the balance of the Board. The following individuals have submitted an application and would like to be considered for appointment: Geraldine Biller Museum Curator /Retired Mary- Elizabeth Cohn Educator /Consultant /Sales Representative Shirl Fields Retired/Jewelry Designer (currently serving on the Neighborhood Advisory Council) Chris Stray Landscape Designer A check for code violations and /or municipal liens was conducted. None were found. Voter registration verification was completed and they are registered. Based on the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2) for one (1) regular member to serve an unexpired term plus a two (2) year term ending July 31, 2015. RECOMMENDATION Recommend appointment of one (1) regular member to serve an unexpired term plus a two (2) year term ending July 31, 2015. PUBLIC ART ADVISORY BOARD 03/13 TERM EXPIRES REGULAR MEMBERS OCCUPATION 07/31/13 Daniel Bellante Business Owner Unexp Appt 03/20/12 07/31/14 Sharon Koskoff Artist Appt 07/17/12 07/31/13 Jerry Rabinowitz Photographer Unexp Appt 11/06/12 07/31/14 Sandi Franciosa Appt 07/20/10 Administrative Reappt07 /17/12 Asst /Retired 07/31/14 Kevin Rouse Artist /Photographer Appt 07/17/12 07/31/14 Carolyn Pendelton- Parker Landscape Architect Appt 08/07/12 07/31/15 Vacant Unexp Appt + 2 y MEMORANDUM 'A z TO: Mayor and City Commissioners FROM: Louie Chapman, Jr., City Manager DATE: April 10, 2013 SUBJECT: AGENDA ITEM 10.E. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 APPOINTMENT TO THE POLICE AND FIREFIGHTERS RETIREMENT SYSTEM BOARD "1P TRTTCTFFC ITEM BEFORE COMMISSION This item is before the City Commissin for an appointment to the Police & Firefighters Retirement System Board of Trustees. BACKGROUND The term for Mr. Alan Kirschenbaum, regular member on the Police & Firefighters Retirement System Board of Trustees, will expire on April 22, 2013. Mr. Kirschenbaum will have served one (1) full term, is eligible, and would like to be considered for reappointment. In accordance with Section 33.65 (A)(2) of the City Code, the City Commission appoints two (2) public members of the Board of Trustees. All members must be either a resident of, own property, own a business or be an officer, director or manager of a business located within the City of Delray Beach. All appointees must take an oath of office. The following individual has submitted an application and would like to be considered for appointment: Alan Kirschenbaum Incumbent A check for code violations and /or municipal liens was conducted. None were found. Voter registration verification was completed and he is registered. Based on the rotation system, the appointment will be made by Commissioner Jacquet (Seat #2) for one (1) regular member to serve a two (2) year term ending April 22, 2015. RECOMMENDATION Recommend appointment of one (1) regular member to serve a two (2) year term ending April 22, 2015. POLICE & FIRE FIGHTERS RETIREMENT SYSTEM BOARD OF TRUSTEES 05/12 (No Term Limits) TERM EXPIRES REGULAR MEMBERS APPT BY Indefinite Danielle Connor, Fire Chief Serving as Fire Appt01/01/12 Chief Indefinite Anthony Strianese, Police Chief Serving as Police Chief 04/22/2013 Alan Kirschenbaum City Appt 04/21/11 Commissioners 2 yr term 04/22/2013 Lieutenant Scot Privitera Police Dept Appt12 /2011 06/30/2014 Adam Frankel, Vice Chair City unexp 05/05/09 Commissioners Reappt05 /25/10 Reappt05 /15/12 04/22/2014 John Palermo Police Dept Appt04 /10 Reappt03 /12 04/22/2013 Lt. Joe Ligouri, Chair Fire Dept Appt04 /99 Reappt04 /01 Reappt04 /03 Reappt04 /05 Reappt04 /07 Reappt04 /09 Reappt 04/11 04/22/2014 Gregory Giaccone Fire Dept Appt03 /12 Doug Smith (sitting member) Mayor MEMORANDUM TO: Mayor and City Commissioners FROM: Louie Chapman Jr., City Manager DATE: April 12, 2013 SUBJECT: AGENDA ITEM 11.A. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 ORDINANCE NO. 06-13 ITEM BEFORE COMMISSION This ordinance is before Commission for second reading and quasi-judicial hearingto consider a privately initiated Future Land Use Map amendment — small scale from MD (Medium Density Residential 5 -12 du /ac) to GC (General Commercial) and rezoning from RM (Medium Density Residential) to GC (General Commercial) for MD Now Delray Beach, located on the north side of Linton Boulevard, west of S.W. 4th Avenue at 601 Linton Boulevard. BACKGROUND At the first reading on April 2, 2013, the Commission passed Ordinance No. 06 -13. RECOMMENDATION Recommend approval of Ordinance No. 06 -13 on second and final reading. ORDINANCE NO. 06 -13 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA ADOPTING A SMALL -SCALE FUTURE LAND USE MAP AMENDMENT FROM MD (MEDIUM DENSITY RESIDENTIAL 5 -12 DU /AC) TO GC (GENERAL COMMERCIAL), PURSUANT TO THE PROVISIONS OF THE "COMMUNITY PLANNING ACT ", FLORIDA STATUTES SECTION 163.3187, FOR A PARCEL OF LAND LOCATED ON THE NORTH SIDE OF LINTON BOULEVARD 660 FEET WEST OF SW 4TH AVENUE, AS MORE PARTICULARLY DESCRIBED HEREIN, AND REZONING AND PLACING SAID LAND PRESENTLY ZONED RM (MEDIUM DENSITY RESIDENTIAL) DISTRICT TO GC (GENERAL COMMERCIAL) DISTRICT; AMENDING "ZONING MAP OF DELRAY BEACH, FLORIDA, JANUARY 2012 "; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach exercised the authority granted pursuant to the provisions of Florida Statutes Sections 163.3161 through 163.3248, inclusive, known as the "Community Planning Act "; and WHEREAS, via Ordinance No. 82 -89, the City Commission adopted the document entitled "Comprehensive Plan - Delray Beach, Florida "; and WHEREAS, Lee Burke, is the fee simple owner of a 0.49 acre parcel of land located on the north side of Linton Boulevard, 660 feet west of SW 4m Avenue. WHEREAS, the subject property hereinafter described has an existing Future Land Use Map (FLUM) designation of MD (Medium Density Residential 5- 12du /ac); and WHEREAS, the owner of the property requested to change the Future Land Use Map designation from MD (Medium Density Residential 5- 12du /ac) to GC (General Commercial); and WHEREAS, the property hereinafter described is shown on the "Zoning District Map of the City of Delray Beach, Florida, dated January 2012 ", as being zoned RM (Medium Density Residential) District; and WHEREAS, at its meeting of March 18, 2013, the Planning and Zoning Board for the City of Delray Beach, as Local Planning Agency, considered this item at a public hearing and voted 4 to 0 to recommend that the Future Land Use Map designation and zoning classification be changed for the property hereinafter described, based upon positive findings; and WHEREAS, pursuant to Florida Statutes 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the changes are consistent with and further the objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the Comprehensive Plan; and WHEREAS, it is appropriate that the Future Land Use Map of the City of Delray Beach, Florida be amended to reflect the revised Future Land Use Map designation; and WHEREAS, it is appropriate that the Zoning District Map of the City of Delray Beach, Florida 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: Section 1. That the recitations set forth above are incorporated herein. Section 2. That the Future Land Use Map designation of the subject property is hereby officially affixed as GC (General Commercial). Section 3. That the City Commission of the City of Delray Beach, Florida, hereby declares its intent to exercise the authority granted pursuant to the provisions of Florida Statutes Sections 163.3161 through 163.3248, inclusive, known as the "Community Planning Act." Section 4. That the Zoning District Map of the City of Delray Beach, Florida, be, and the same is hereby amended to reflect a zoning classification of GC (General Commercial) District for the following described property: That part of the South half of the South half of the Southwest Quarter of the Southeast Quarter of Section 20, Township 46 South, Range 43 East, Palm Beach County, Florida, more particularly described as follows: 2 ORD NO. 06 -13 Commence at the Southwest corner of the South half of the Southwest Quarter of the Southeast Quarter of Section 20, Township 46 South, Range 43 East; thence run Easterly along the South boundary of said tract (same being the South line of Section 20) a distance of 499 feet; thence Northerly parallel to the West boundary of said Tract, a distance of 30 feet to the Point of Beginning of this description: thence continue Northerly, along the same course, a distance of 178 feet; thence Easterly parallel to the South boundary of said tract, a distance of 139 feet; thence Southerly parallel to the Westerly boundary of said tract a distance of 178 feet; thence Westerly parallel to the South boundary of said tract and 30 feet therefrom a distance of 139 feet to the Point of Beginning; less the South 23 feet deeded to the County of Palm Beach as recorded in Official Records Book 1694, Page 803, of the Public Records of Palm Beach County, Florida. Section 5. That the Planning and Zoning Director of the 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. Section 8. That this ordinance shall become effective as follows: thirty -one (3 1) days after adoption, unless the Comprehensive Plan amendment is timely challenged. If timely challenged, the effective date of this Ordinance shall be the date a final order is issued by the State Land Planning or the Administration Commission, finding the adopted amendment to be in compliance. 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 state land planning agency. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 2013. ATTEST MAYOR 3 ORD NO. 06 -13 City Clerk First Reading Second Reading ORD NO. 06 -13 Coversheet MEMORANDUM TO: Mayor and City Commissioners FROM: Jasmin Allen, Planner Paul Dorling, AICP, Director Planning and Zoning THROUGH: Douglas E. Smith, Interim City Manager DATE: March 27, 2013 SUBJECT: AGENDA ITEM 12.A. - REGULAR COMMISSION MEETING OF APRIL 2, 2013 ORDINANCE NO. 06-13 ITEM BEFORE COMMISSION Page 1 of 2 Consideration of a privately- initiated Future Land Use Map (FLUM)- Small Scale amendment and Rezoning for MD Now Delray Beach. The proposed requests include changing the existing FLUM designation from MD (Medium Density Residential 5 -12 du /ac) to GC (General Commercial) and rezoning from RM (Medium Density Residential) District to GC (General Commercial) District. BACKGROUND On January 9, 1978, the 0.49 acre property which contained a single family residence was annexed into the City with the R -1 -A zoning designation. The property contains 0.49 acres. With the adoption of the Southridge /S.W. 4th Avenue Redevelopment Plan on June 13, 1999, the property was designated Redevelopment Area 93 on the Future Land Use Map however the R -1 -A (Single Family Residential) zoning designation was retained as a "holding" zone until a specific development proposal was submitted. On January 3, 2006, the City Commission approved a City- initiated rezoning, Ordinance 59- 06 rezoning the property from R -1 -A (Single Family Residential) district to RM (Medium Density Residential) district. The proposal for redevelopment of the property is to accommodate a 4,795 sq. ft. medical office building which is not allowed under the current Future Land Use Map designation or within the RM zoning district. REVIEW BY OTHERS At its meeting of March 18, 2013, the Planning and Zoning Board held a public hearing associated with the GC (General Commercial) Future Land Use Map amendment, and GC (General Commercial) rezoning request. They had no concerns with the requested Future Land Use and Zoning designations. After a brief discussion, the Board recommended approval of the proposed FLUM and Rezoning on a 4- 0 vote. http:// itwebapp / Agendalntranet /Bluesheet.aspx ?ItemID= 6647 &MeetingID =444 4/12/2013 Coversheet RECOMMENDATION Page 2 of 2 Approve on first reading Ordinance 06 -13 for a Future Land Use Map amendment from MD (Medium Density Residential 5 -12 du /ac) to GC (General Commercial) District and Rezoning from RM (Medium Density Residential) to GC (General Commercial) District, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan and does meet the criteria set forth in LDR Sections 3.1.1 (Required Findings), 3.2.2 (Standards for Rezoning Actions), 2.4.5(D)(5)(Rezoning Findings). Attachments: - Location Map - Ordinance No. 06 -13 - Planning & Zoning Board Staff Report of March 18, 2013 http:// itwebapp/ AgendaIntranet /Bluesheet.aspx ?ItemID= 6647 &MeetingID =444 4/12/2013 PLANNING AND ZO BOARD CITY OF DELRAY BEACH -- -STAFF REPORT-- - MEETING March 18, 2013 DATE: AGENDA ITEM: VLA ITEM: Privately- initiated Future Land Use Map amendment (small scale) from MD (Medium Density Residential 5 -12 dulac) to GC (General Commercial) and Rezoning from RM (Medium Density Residential) District to GC (General Commercial) District for a 0.49 acre parcel of land located on the north side of Linton Boulevard, 660 feet West of SW 41h Avenue (Quasi- Judicial Hearing). GENERAL DATA: Owner .......... ............................... Lee Burke Applicant ...... ............................... MD Now Agent.- ...... ........ ...... Christopher P. Barry, Jon E. �C Em Schmidt & Associates, Inc. Location ....... ............................... Located on the north side of i Linton Boulevard, 660 feet west of SW 4th Property Size .............................. am ME. ME ME, 0.49 acres Existing FLUM.. .......... ............ MD (Medium Density Residential 5 -12 ��� du /ac) Proposed FLUM .................. GC (General Commercial) Adjacent FLUM ......... North: GC (General Commercial) East: GC (General Commercial) South: GC (General Commercial West: CF (Community Facilities) Current Zoning ............................ RM (Medium Density Residential) , District Adjacent Zoning ..................North: GC (General Commercial) East: GC ( General Commercial) South: GC (General Commercial) West: CF (Community Facilities) Existing Land Use ...................... Single Family Residence Proposed Land Use .................... Medical Office Water Service... .......................... Via main along Linton Boulevard Sewer Service ................ Extension of sewer main from SW 40 Avenue to be coordinated with the proposed shopping center to the east. ul.A.. �C Em =p l i 7 am ME. ME ME, If1111111111111111���� ��� llllll ltlllll , 1, 1 ;�Ii ■i ■ilwn- ■ ul.A.. ITEMS BEF`OR;E: THE BOARD The item before the Board is that of making a recommendation to the City Commission on a privately - initiated small -scale Future Land Use Map (FLUM) amendment and rezoning for MD Now Delray Beach, located on the north side of Linton Boulevard, 660 feet west of SW 4 t Avenue (601 Linton Boulevard). The proposed requests include changing the existing FLUM designation from MD (Medium Density Residential 6 -12 du/ac) designation to GC (General Commercial) and rezoning from RM (Medium Density Residential) District to GC (General Commercial) District. Pursuant to Section 2.22(E)(6) of the Land Development Regulations, the Planning and Zoning Board shall review and make a recommendation to the City Commission with respect to Future Land Use Map changes or the rezoning of any property within the City. "B A.0 K'G R O lJ N >D` ANAL 1(S k S On January 9, 1978, the property containing a single family residence was annexed into the City with the R-1 -A zoning designation. The property contains 0.49 acres. With the adoption of the Southridge /S.W. 4t" Avenue Redevelopment plan on June 13, 1999, the property was designated Redevelopment Area ##3 on the Future Land Use Map however the R -1 -A (Single Family Residential) zoning designation was retained as a "holding" zone until a specific development proposal was submitted. On January 3, 2006, the City Commission approved a City - initiated rezoning, Ordinance 59 -06 rezoning the property from R -1 -A (Single Family Residential) district to RM (Medium Density Residential) district. The proposal for development of the property is to accommodate a 4,795 sq. ft. medical office building which is not allowed under the current Future Land Use Map designation or within the RM zoning district. Thus the small -scale Future Land Use Map amendment and rezoning, currently before the Board, are necessary to accommodate the proposed use. FUTURE.;;L?AND U.S E.M`AP AM:EiVD.MENT ANALYSIS:',' Current Land Use Designation: The current Future Land Use Map designation for the property is MD (Medium Density 5 -12 du /acre). Requested Land Use Designation: The requested Future Land Use Designation is GC (General Commercial). REQUIRED FINDINGS LAND DEVELOPMENT REGULATIONS CHAPTER 3 -- PERFORMANCE STANDARDS: Pursuant to LDR Section 3.1.1, prior to approval of Land Use 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, written materials submitted by the applicant, the staff report, or minutes. Findings shall be made by the body which has the authority to approve or deny the development Planning & Zoning Board Staff Report — March 18, 2013 MD Now Delray Beach — Small -Scale Comprehensive Plan Amendment and Rezoning Page 2 application. These findings relate to the Future Land Use Map (PLUM), Concurrency, Comprehensive plan Consistency, and Compliance with the Land Development Regulations. ❑ Future Land Use Map The resulting use of land or structures must be allowed in the zoning district within which the land is situated and said zoning must be consistent with the applicable land use designation as shown on the Future Land Use Map. The proposed Future Land Use Map amendment is being processed as a small scale Comprehensive Plan amendment. Florida Statutes F.S. 103.3187 provides a small scale development amendment may be adopted under the following conditions: (a) The proposed amendment involves a use of 10 acres or fewer; (b) The cumulative annual effect of the acreage for all small scale development amendments adopted by the local government does not exceed a maximum of 120 acres in a calendar year; (c) The proposed amendment does not involve a text change to the goals, policies, and objectives of the local government's comprehensive plan, but only proposes a land use change to the future land use map for a site - specific small scale development activity. However, text changes that relate directly to, and are adopted simultaneously with, the small scale future land use map amendment shall be permissible under this section; (d) The property that is the subject of the proposed amendment is not located within an area of critical state concern, unless the project subject to the proposed amendment involves the construction of affordable housing units meeting the criteria of s. 420.0004(3), and is located within an area of critical state concern designated by s. 380.0552 or by the Administration Commission pursuant to s. 380.05(1). The proposal involves a 0.49 acre parcel, and as this is the first amendment for 2013 there is no cumulative annual acreage for all small scale amendment, and thus the maximum of 120 acres has not been exceeded. The proposed FLUM amendment does not involve a text change to the goals, policies, and objectives of the Comprehensive Plan. The request is to process a change to the Future Land Use Map for a site - specific medical office development. The subject property is not located within an area of critical state concern, and does not include the construction of affordable housing units. Thus, the proposed FLUM amendment can be processed as a small scale amendment because it complies with all of the above conditions, The proposed land use change is to accommodate General Commercial uses for future development of the parcel. The existing RM (Medium Density Residential) zoning accompanied with the existing MD (Medium Density Residential) FLUM designation does not allow commercial uses. The GC (General Commercial) zoning allows more flexibility in the development of the property. Development under the proposed zoning and land use designation would be more in line with existing developments and associated land use patterns along Linton Boulevard. Planning & Zoning Board Staff Report -- March 18, 2013 MD Now Delray Beach — Small -Scale Comprehensive Plan Amendment and Rezoning Page 3 ❑ Concurrency: Development at the highest intensity possible under the requested designation can meet the adopted concurrency standards. Concurrency as defined pursuant to Objective B -2 of the Future Land Use Element of the Comprehensive Plan must be met and a determination made that the public facility needs (including public schools), of the requested land use and/or development application, will not exceed the ability of the City and The School District of Palm Beach County to fund and provide, or to require the provision of needed capital improvements to maintain the Levels of Service Standards established in Table CI -GOP -1 of the adopted Comprehensive Plan of the City of Delray Beach. Traffic: An analysis of the traffic impacts associated with the maximum development potential of both the existing and proposed Future Land Use Map designations were conducted. The existing development potential under the Medium Density Residential is 5 dwelling units. This would result in 35 adt (average daily trips) with a 5 peak hour (a.m.) traffic generation and 6 peak hour (p.m.) traffic generation. The traffic to be generated by the proposed development (4,795 sq. ft. medical office facility) is 156 daily trips with 10 peak hour (a.m.) traffic generation and 18 peak hour (p.m,) traffic generation. Based on these traffic peak hour volumes only the directly accessed link is in the radius of development influence. The traffic study concludes that the redevelopment will have an insignificant impact on all links within the project's radius of development influence. Water The site is already served by water. Municipal water service is provided via connection to an 8" water main located on the south side of the property within the Linton Boulevard right -of -way. Fire protection is provided by one fire hydrant located at the southwest corner of the adjacent Fire Station parcel to the west. Water treatment is provided by the City of Delray Beach at the Water Treatment Plant_ Water demand projections for the City's Water Service Area were calculated based on the City's population projections multiplied by the projected per capita demands. Potable water demand projections, credits for the use of reclaimed water and the total excess /deficit for the years 2010 through 2030 are given in the following table. The City's Utilities Department has indicated that adequate capacity exists to service the subject property at its maximum development potential with the FLUM Amendment to GC (General Commercial). Planning & Zoning Board Staff Report — March 18, 2013 MD Now Delray Beach — Small -Scale Comprehensive Plan Amendment and Rezoning Page 4 Potable Water Demand Projections Year 2010 2015 2020 2025 2030 Service Area Population 69,335 74,504 81,114 82,233 82,556 Per Capita Use ( pd) 240 240 240 240 240 -Avg. Daily Demand (MG) 16.64 17.88 19.47 19.74 19.81 Permit Base Condition (MGD ) 19.00 19.00 19.00 19.00 19.00 Excess /(Deficit) (MGD) 1 2.36 1 1.12 1 (0.47) (0.74) (0.81) Alternative sources Reclaimed Water Credits for Ground Water Demand Removal 1.08 1.895 1.895 1.895 1.895 Potable demand removal 0.39 0.84 0.84 0.84 0.84 Total Excess /Deficit 3.83 3.85__t_ 2.27 2.00 1.92 Notes 1. Population projections based on Palm Beach County 2007 Population Allocation Model using March 2008 BEBR Population Projections. 2. Per capita use assumes a 10% reduction from current permitted values achieved through conservation. 3. Permit base condition as provided by SFWMD per ground water availability rule. Sewer: Sewer service is not readily available to the subject property and will involve either the extension of the sewer main from SW 4h Avenue and/or coordination of the sewer main extension proposed with the development of the Lintco property to the east. Wastewater from the City is treated at the South County Regional Wastewater Treatment Plant (SCRWWTP). The current plant has adequate capacity to service the City's projected population beyond the year 2025. The City's Utilities Department has indicated that adequate wastewater treatment capacity exists to service the subject property at its maximum development potential with the PLUM amendment and associated rezoning. Since adequate capacity is available in the City's water and wastewater systems to meet the increased demand, the proposed FLUM amendment will not impact the level of service standard for these facilities. Drainage: The adopted LOS standards for drainage is the SFWMD standard to meet storm water quality and quantity requirements for a minimum of a 10 yr. /24 hr. storm event. Further sites with parking lots are required to retain a 5 year 1 hour storm (3.2 ") in addition to meeting the water quality criteria (1" or 2.5 x % impervious). Drainage is reviewed during the site plan application process for individual projects. Within this area of the City, drainage is usually accommodated on site via exfiltration trench systems or swale retention areas. There are no problems anticipated with obtaining South Florida Water Management District permits within Planning & Zoning Board Staff Report -- March 18, 2013 MD Now Delray Beach — Smail -Scale Comprehensive Plan Amendment and Rezoning Page 5 the area and any additional impacts caused by increased impervious area will not affect the level of service standard. Parks & Recreation: The Open Space and Recreation Element of the City's Comprehensive Plan indicates in its conclusion that `The City will have sufficient recreation facilities at build -out to meet the adopted standards." The LOS standard for open space and recreation in the city is 3 acres per 1,000 residents. The amount of land currently provided in activity based recreation facilities, the municipal beaches, and the two public golf courses, establishes a level of service of 6.2 acres per 1,000 residents (2007), far exceeding the general guideline. A park impact fee is collected to offset any impacts that new development may have on the City's recreational facilities. Pursuant to LDR Section 5.3.2, a park impact fee of $500.00 per dwelling unit will be collected prior to issuance of a building permit for each residential unit. The potential density under the MD (Medium Density Residential 5 -12 du /ac) and GC (General Commercial) land use designations are 12 units per acre so there will be no net increase in the potential number of residential units that could be accommodated. Since there is no net increase in the residential development potential on this site with the proposed FLUM Amendment, this level of service standard is not affected. Education School Concurrent : Since there is no net increase in the residential development potential on this site with the proposed FLUM Amendment, this level of service standard is not affected. Solid Waste: As shown on the following table, with the proposed amendment, the development of the property would result in a net increase of 8.42 tons per year in solid waste generation. Ekis' ingL. Maximum, Development Proposed;Office Development PiDtential 5 MF Units @.52 tons /year = 2.6 tons /y 4,795 SF Medical Office @4.6 Ibs /sf = 11.02 tons) ear In its annual capacity letter, dated January 7, 2013, the Solid Waste Authority indicates that it has sufficient capacity for concurrency management and comprehensive planning purposes. As stated in the letter, "Capacity is available for both the coming year, and the five and ten year planning periods specified in 9J -5- 005(4)." Based on population projections, waste generation rate projections, waste reduction, and recycling, the Solid Waste Authority forecasts that capacity will be available at the existing landfill through approximately the year 2046. Based on the above analysis, positive findings can be made at this time with regard to concurrency for all services and facilities. ❑ Consistency: The requested designation is consistent with the goals, objectives and policies of the most recently adopted Comprehensive Plan. Planning & Zoning Board Staff Report — March 18, 2613 MD Now Delray Beach — Small - Scale Comprehensive Plan Amendment and Rezoning Page 6 The following applicable Comprehensive Plan objective and policies are noted: Future Land Use Element Policy A-1.7: Amendments to the FLUM must be based upon the findings listed below, and must be supported by data and analysis that demonstrate compliance with these findings: Demonstrated Need -- That there is a need for the requested land use. The need must be based upon circumstances such as shifts in demographic trends, changes in the availability of land, changes in the existing character and FLUM designations of the surrounding area, fulfillment of a comprehensive plan objective or policy, annexation into the municipal boundaries, or similar circumstances. The need must be supported by data and analysis verifying the changing demographics or other circumstances. This requirement shall not apply to requests for the FLUM designations of Conservation or Recreation and Open Space; nor shall it apply to FLUM changes associated with annexations when the City's Advisory FLUM designation is being applied, or when the requested designation is of a similar intensity to the Advisory designation. However, the findings described in the remainder of this policy must be addressed with all FLUM . amendments, The Applicant has provided the following statement "First, based on the population projections found in the Future Land Use Element it appears that the population of the City of Delray Beach will increase by 11,316 between 2010 and 2020 (from 65,781 in 2010 to 77,097 in 2020). As such there will be an increased demand for non - residential uses to support the growing population. Amending the FLUM designation to GC will provide additional non- residential square footage to service the current and future residents of the City of Delray Beach. Next, the subject property is the only property fronting Linton Boulevard between SW 4th Avenue to the east and 1 -95 to the west that supports a single family residence. While the property's FLUM designation is for Medium Density Residential it is unlikely that the property would be development for multi- family residential given its size. As such, it would be timely and appropriate to change the FLUM designation to GC to be consistent with the majority of other properties fronting on Linton Boulevard." The requested GC FLUM designation will allow commercial uses, whereas only residential uses are currently allowed on the subject parcel. The proposed land use map change is more consistent with the existing character of the commercial nature of Linton Boulevard. These circumstances demonstrate a need for the requested zoning and FLUM change. Future Land Use Element Objective A -1: Property shag be developed or redeveloped, in a manner so that the future use, intensity and density are appropriate in terms of soil, topographic, and other applicable physical considerations; encourage affordable goods and services; are complementary to and compatible with adjacent land uses; and fulfill remaining land use needs. Planning &Zoning Board Staff Report — March 18, 2013 MD Now Delray Beach — Small -Scale Comprehensive Plan Amendment and Rezoning. .Page 7 There are no significant environmental characteristics to the subject property. The existing use of the property is a single family residence. The proposed medical office use will be compatible with the adjacent land uses, which consists of a proposed shopping center to the east and north, retail to the south and the Fire Station to the west. Polic y C -1.13 The following pertains to the Linton Boulevard area, from 1.95 east to Federal Highway. In FY 2010111, the City's Planning & Zoning Department shall review existing land uses in this area and shall create a redevelopment plan, overlay district or other development tool to promote and guide future redevelopment of the area. Redevelopment of the parcel to commercial /office use is more appropriate than the existing single family use given its location and surrounding land uses. ❑ Compliance with LDRs: Development under the requested designation will comply with the provisions and requirements of the Land Development Regulations. Whenever an item is identified elsewhere in these Land Development Regulations (LDRs), it shall specifically be addressed by the body taking final action on a land development application /request. Such items are found in Section 2.4.5 and in special regulation portions of individual zoning district regulations. The applicant has submitted a development proposal for a medical office buildirrg which will be reviewed for compliance with the provisions and requirements of the Land Development Regulations_ ❑ Compatibility: The requested designation will be compatible with the existing and future land uses of the surrounding area. As demonstrated in the following "Rezoning Analysis" section, the requested GC (General Commercial) zoning and FLUM designation will be compatible with existing and future land uses of the surrounding area. REZONING k ALY-sr Future Land Use Map Consistency, Concurrency, Comprehensive Plan Consistency and Compliance with the development criteria of the LDR were previously discussed under the "Future Land Use Map Amendment Analysis" section of this report. Compliance with the Land Development Regulations with respect to Standards for Rezoning Actions and Rezoning Findings are discussed below. Section 3.2.2 (Standards for Rezoninq Actions): Standards "A ", "B ", and "I`" are not applicable with respect to this rezoning request. Standard "C" requires that zoning changes that would result in strip commercial development shall be avoided. Where strip commercial developments or zoning currently exists along an arterial street, consideration should be given to increasing the depth of the commercial zoning in order to provide for better project design. With the proposed GC zoning district there is a potential that the property could be developed as a strip commercial center. However, give the small size of the property Planning & Zoning Board Staff Report --- March 18, 2013 MD Now Delray Beach --- Small - Scale Comprehensive Plan Amendment and Rezoning Page 8 is it unlikely that a strip commercial center is a viable development option. Additionally, the property owners have submitted a site plan request to redevelop the property for a medical office. The property to the north of the site is also zoned commercial however, it is under different ownership and subject to development as a shopping center (recently approved). Therefore increasing the depth for this commercial development is not an option. Standard "D" requires that the rezoning shall result in allowing land uses which are deemed compatible with adjacent and nearby land use 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 following identifies the surrounding land uses: LAND USE ANALYSIS: Existing land uses Subject Property - Residential (Zoning District: RM; FLUM: MD) North —Vacant, (Proposed Commercial) (Zoning District: GC; FLUM: GC) South — Retail (Zoning District: PC; FLUM: GC) East —Vacant, Proposed Commercial (Zoning District: GC; FLUM: GC) West — Fire Station (Zoning District: CF; FLUM: CF) Proposed land uses Subject Property — Commercial (Zoning District: GC; FLUM: GC) North — Vacant, (Proposed Commercial) (Zoning District: GC; FLUM: GC) South — Retail (Zoning District: PC; FLUM: GC) East —Vacant, Proposed Commercial (Zoning District: GC; FLUM: GC) West — Fire Station (Zoning District: CF; FLUM: CF) The subject property is bordered on the north and east by vacant parcels which are proposed to be developed as a commercial shopping center (Lintco). Across Linton Boulevard, to the south is a compatible retail and commercial uses (New Century Commons) that includes tenants such as Pet Smart, Sports Authority, PNC Bank). Located to the west is the Delray Beach Fire Station. It is noted that the proposed Future Land Use Designation of GC (General Commercial) is shared with the proposed retail shopping center to the north and east along with the existing shopping center to the south. Based upon the above, this request does not result in an incompatible land use, thus, the proposed development can be found to be in compliance with LDR Section 3.2.2 (D). Section 2.4.5 (D) (5) (Rezoning Findings): Pursuant to Section 2.4.5 (D) (5), Pursuant to LDR Section 2.4.5(D)(5), in addition to provisions of Chapter Three, 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; or Planning & Zoning Board Staff Report -- March 18, 2013 MD Now Delray Beach — Small -Scale Comprehensive Plan Amendment and Rezoning Page 9 (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. The Applicant has provided the following justification statement: Per Section 2.4.5(D)(2) of the City of Delray Beach Land Development Regulations (LDR's) a Rezoning application must be justified based on one of the reasons in the code. The agent feels that the requested rezoning to GC is justified since there has been a change in circumstances which_ makes the current zoning (R -1 -A) inappropriate. The subject property is the only property fronting Linton Boulevard between SW 4th Avenue to the east and 1 -95 to the west that supports a single family residential use. It is likely that at one time single family residential was more prevalent along Linton Boulevard but the stretch upon which the subject property fronts is primarily a commercial (with the exception of properties that support institutional and multi - family residential uses). As such, it would be timely and appropriate to change the zoning designation to GC to be consistent with the majority of other properties that front Linton Boulevard between SW 4th Avenue to the east and 1 -95 to the west. Furthermore, the rezoning will not negatively impact existing services and facilities and concurrency will be met. Additionally, the basis for which the rezoning should be granted relates to the item (c) above, indicating that the requested zoning of GC is of similar intensity as allowed under the proposed Future Land Use Map Designation of GC which is also being requested. Further, a GC zoning designation is more appropriate for the property given its location along a major east -west commercialized thoroughfare. Because of its location, the parcel would better serve the needs of the general public as a commercial use. The existing single family residence brings to question its appropriateness as an isolated residential use along Linton Boulevard. Under these circumstances the rezoning to GC is more appropriate. Based upon these positive findings, the proposed development is in compliance with LDR Section 2.4.5(D)(5). R E V I E W; B, Y. G T HE R S The proposed land use and rezoning request is not in a geographic area requiring review by either the Downtown Development Authority (DDA), or the Community Redevelopment Agency (CRA). Courtesy Notices: A special courtesy notice was provided to the following homeowners and civic associations: • Neighborhood Advisory Council • Southridge • Delray Citizens' Coalition . Southridge Village • Linton Ridge • The Vinnings IPARC Notice: On February 21, 2013, notice of the Comprehensive Plan Amendment was provided to the Interlocal Plan Amendment Review Committee ( IPARC) which distributes the information to adjacent municipalities. No objections have been received to date. Planning & Zoning Board Staff Report — March 18, 2013 MD Now Delray Beach -- Small -Scale Comprehensive Plan Amendment and Rezoning Page 10 Public Notices: Formal public notice has been provided to property owners within a 500' radius of the subject property. Letters of objection and/or support, if any, will be presented at the Planning and Zoning Board meeting. ASSES'SM>EN- T!.AN`D` CONC"L`USION Positive findings can be made with respect to LDR Section 3.1.1 (Required Findings), LDR Section 3.2.2 (Standards for Rezoning Actions), LDR Section 2.4.5(D)(5) (Rezoning Findings), and the Goals, Objectives, and Policies of the Comprehensive Plan. Therefore, rezoning of the subject property from RM to GC, and a small scale FLUM amendment from MD to GC, can be recommended for approval, based on the findings outlined herein. AL,T "E.RN:ATIVE ACT "IO;NS A_ Postpone with direction. B. Move a recommendation of approval to the City Commission for the request for the small scale Future Land Use Map amendment from MD (Medium Density Residential 5 -12 dulac) to GC (General Commercial) and rezoning from RM (Medium Density Residential) to GC (General Commercial) for the subject property, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan, and meets the criteria set forth in Sections 2.4.5(D)(5), 3.1.1 and 3.2.2 of the Land Development Regulations. C. Move a recommendation of denial to the City Commission for the request for the small scale Future Land Use Map amendment from MD (Medium Density Residential 5 -12 dulac) to GC (General Commercial) and rezoning from RM (Medium Density Residential) to GC (General Commercial) for the subject property, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is inconsistent with the Comprehensive Plan, and does not meet the criteria set forth in Sections 2.4.5(D)(5), 3.1.1 and 3.2.2 of the Land Development Regulations. STAFF RECOMME "N;'DATI"ON Staff recommends that the Planning and Zoning Board move to recommend approval to the City Commission for the request for the small scale Future Land Use Map amendment from MD (Medium Density Residential 5 -12 du /ac) to GC (General Commercial) and rezoning from RM (Medium Density Residential) to GC (General Commercial) for the subject property, by adopting the findings of fact and law contained in the staff report, and finding that the request and approval thereof is consistent with the Comprehensive Plan, and meets the criteria set forth in Sections 2.4.5(D)(5), 3.1.1 and 3.2.2 of the Land Development Regulations. Attachments: ■ Location Map = Applicant's Rezoning Justification Statement ■ Existing and Proposed Zoning Maps ■ Existing and Proposed Future Land Use Maps CHURCH Q PINE GROVE UE MAP ELEMENTARY SCHOOL o J W O 3 N j < < S. LON AL ALM OR S.W. 13TH ST. REIGLE' o FALL RIDGE o OF DELRA Y s I G E � vi vi STERLING AVENUE SETTIA DRfVE THE DOUGLAS AVENUE GROVES SOUTHRIDGE ROAD OF DELRAY w z EET w JJF' GULF STREAM a BESSIE sr. i CDMMERCIAL CENTRE o� o JE RD °� WATERPROOF ELLA ST.`S HOLDINGS LlNTON RIDGE z P CONDO " COUNTY SUtsOY �1RC SANITATfON [� XCAVATIO ,y�oE SOUiWRIDGE RD. ZEDER AVE. BENJAMIN AVE. __j - �� SECURITY PRECIS WALLACE SOUTHRIDGE Q SELF STORAGE TUN DODGE VILLAGE co CONDO 16 ALLACE OUTHRIDGE v NISSAN CONDO - TIRES XOTI C L I N T O N B O U L E V A R D a � a LAVER'S C J H P � Vi .S a ate' w vj 4 • N SUBJECT NOW DELRAY BEACH PLANNING AND ZONING DEPARTMENT LOCATION -- DIGITAL RASE MAP SYSTEM --- MAP REF: S: \Plonning & Zoning \DBMS \FI— Ca6 \Z —LM 1001 - 1500 \LM1363_MD Now Delray Beach PROPERTY MAP _ CHURCH ~ FINE GROVE 0 ELEMENTARY SCHOOL F o - v z S. LONG AL LM DR. S.W. 11TH 7. o� FALL RIDGE 3 OF v v STERUNG AVENUE $EYTIA DRIVE MD THE GROVES DOUGLAS AVENUE OF DELRAY SOUTHRIDGE ROAD w z P a GULF STREAM a RESSIE ST. z y °P COMMERCIAL CENTRE a R\o�E WATERPROOF h vi Q ELLA S7. LINTON HOLDINGS RIDGE CONDO L & A �XC LA' COUNTY SANITATION TIO C SOUTHRID .SECURITY PRECIS WALLACE SOUTHRIDGE SELF STORAGE TUN ALLACE DODGE VILLAGE CONDO 3 OUTHRIDGE" CMR NISSAN CONDO �:" TIRES XOTIC L f N T G N B O U L E V A R D N LAVER'S a P GC GC IND o c/R F C a' y- MD C1f'tiE G� RAI o N SUBJECT MD NOW DELRAY BEACH PROPERTY PLANNING AND ZONING DEPARTMENT EXISTING FUTURE LAND USE MAP DIGITAL BASE MAP SYSTEM -- MAP REF: S: \Planning & Zoning \DBMS \Rl — Cab \Z —LM 1001 - 1500 \LM1383_.MD Now Delray Beach FLUM N PLANNING AND ZONING DEPARTMENT SUBJECT PROPERTY 0 MD NOW DELRAY BEACH PROPOSED FUTURE LAND USE MAP -- DIGITAL BASE MAP SY57EM -- MAP REF: S: \Plonning & Zoning \DBMS \F1 — Cab \Z —LM 1001- 1500 \LM1383_MD Now Wray Beach Zoning N SUBJECT MD NOW DELRAY BEACH PLANNING AND ZONING PROPERTY EXISTING ZONING MAP DEPARTMENT -- DIGITAL BASE MAP SY57EM -- MAP REF: S: \Plonning & Zoning \DBMS \F1 — Cab \Z —LM 1001- 1500 \LM1383_MD Now Wray Beach Zoning 'lei N —2911111,1111— PLANNING AND ZONING DEPARTMENT SUBJECT PROPERTY D MD NOW DE LRAY BEACH PROPOSED ZONING MAP -- DIGITAL BASE MAP SYSTEM -- MAP REF: S* \Planning & Zoninq \DBMS \Fl - Cab \Z -LM 1001 -- 1500 \LM1383_MD Now Delray Beach Zoning G r,. Jon E. Schmidt and Associates Land Planning and Landscape Architecture Justification Statement MD Now Delray Beach City of Delray Beach Rezoning Application Submittal Original Submittal: February 1, 2013 Request The 0.49 -acre subject property (PCN 12- 43- 46- 20- 01- 008 -0080) is located on the north side of Linton Boulevard approximately 670 lineal fee west of SW 4th Avenue and 1,150 lineal feet east of SW 10th Avenue. Currently the subject property supports a Future Land Use (FLU) designation of Medium Density 5 -12 dwelling units per acre (MD) and is currently within the Single Family Residential (R -1 -A) Zoning District. The property is currently occupied by a 2,405 square foot (according to the Property Appraiser of Palm Beach County's [PBC] web site), 2 -story single - family residence_ MD Now is requesting a Rezoning from the R -1 -A Zoning District to the General Commercial (GC) Zoning District for the purposes of constructing a 4,795 square foot medical office on the subject property. Concurrent applications are being filed for (1) FLUM Amendment from MD to General Commercial (GC) and (2) Site Plan Review & Appearance Board ( SPRAB) (Class V) with a Waiver. Justification Per Section 2.4.5(D) (2) of the City of Delray Beach Land Development Regulations (LDR's) a Rezoning application must be justified based on one of the reasons in the code. The agent feels that the requested rezoning to GC is justified since there has been a change in circumstances which makes the current zoning (R-1 -A) inappropriate. The subject property is the only property fronting Linton Boulevard between SW 4th Avenue to the east and 1 -95 to the west that supports a single family residential zoning district. It is likely that at one time single family residential was more prevalent along Linton Boulevard but the stretch upon which the subject property fronts is primarily a commercial (with the exception of properties that support institutional and multi - family residential uses). As such, it would be timely and appropriate to change the zoning designation to GC to be consistent with the majority of other properties that front Linton Boulevard between SW 4th Avenue to the east and 1 -95 to the west. Furthermore, the rezoning will not negatively impact existing services and facilities and concurrency will be met as detailed below. a. Traffic: Please see Insignificant Traffic Statement prepared by Simmons & White dated January 31, 2013. b. Mass Transit: The nearest Palm Tran bus routes are Route 70 and Route 80 and the closest Tri -Rail connection is the Delray Beach Tri -Rail Station. c. Potable Water and Wastewater: The property will connect to the water main that runs in the Linton Boulevard right -of -way. For wastewater the proposal is to connect to the gravity sewer that will be installed on the property to the east and north. Please refer to the Conceptual Paving, Drainage, Water & Wastewater Plan prepared by Simmons & White dated January 28, 2012 that is being included in the SRPAB (Class V) application 2247 Palm Beach Lakes Blvd. Suite 101 West Palm Beach, Florida 33409 Tel. (561) 684 -6141 Pax. (561) 684 -6142 E- mail:Jschmidt @jesla.com Justification Statement MD Now Delray Beach City of Delray Beach Rezoning Application Submittal Original Submittal: February 1, 2093 Page 2 of 2 submittal package. Drainage: Legal positive outfall is available to the site via discharge to the Linton Boulevard drainage system along the south side of the property. The proposed project will meet all applicable rules and regulations for that outfall. Please refer to the Conceptual Paving, Drainage, Water & Wastewater Plan prepared by Simmons & White dated January 28, 2012 that is being included in the SRPAB (Class V) application submittal package. Fire Rescue: The nearest City of Delray Beach Fire - Rescue station is Station 3 located at 651 W. Linton Boulevard, which is directly adjacent to the subject property. CHURCH � HrT PINE GROVE ELEMENTARY SCHOOL DR. I I J,`�� I S. W. 11 FALL RIDGE OF DELRAY 3i THE GROVES OF DELRAY LIN TON RIDGE CONDO CiRC<f SOUTHRIDGE RD. Z EDE v R AVE. BENJ WALLACE ^ SOUTHRIDGE Q DODGE VILLAGE 3 CONDO co N N ALLACE SOUTHRIDGE W NISSAN CONDO L I N T 0 N M 3 GULF STREAM COMMERCIAL CENTRE WATERPROOF HOLDINGS COUNTY ^A VA TIO SANITATION FAVA T SECURITY SELF STORAGE TIRES XOTIC B O U L E V A R D _ N PLANNING AND ZONING DEPARTMENT SUBJECT PROPERTY D MD NOW DELRAY BEACH LOCATION MAP -- DIGITAL BASE MAP SYSTEM -- MAP REF: S: \Planning & Zoning \DBMS \Fil — Cab \Z —LM 1001 - 1500 \LM1383_MD Now Delray Beach From: Connor, Danielle Sent: Tuesday, April 16, 2013 1:09 PM To: McDonnell, Mark Cc: Allen, Jasmin; Dorling, Paul Subject: RE: MD Now on Linton Blvd. Mark, As discussed, Fire - Rescue does not have any issues, concerns, or objections with the MD Now project slated for Linton Boulevard. We have no issues or concerns with the associated land use change or rezoning, either. Through TAC, we had minor concerns with the actual building plans, but in the overall scheme of things, these were minor. I would like to address the matter of the land acquisition request. In 2009, we applied for an ARRA grant to rebuild Fire Station #3. This grant would have provided 100% funding to rebuild this station, which is very much in need. One of the stipulations of the grant application was that all projects had to be "shovel ready." In other words, if awarded the grant, construction needed to commence almost immediately. To apply, we needed to have architectural plans already done, so we used the plans from Fire Station #4 at Lake Ida and Barwick, and configured them to fit on the lot at Station #3. In order to accommodate this building, it would have been necessary (at that time) to encroach approximately 10 -15' into the property line on the immediate east of Fire Station #3. As it turned out, we were not awarded the grant, and at present, rebuilding Fire Station #3 is not in the CIP. At this time, I would consider this a nonissue, and would hope that this is not a hindrance to this project. As always, give me a call if you have any questions. Thanks, DC Danielle Connor Fire Chief Dc,&ayBeach Fire Rescue cormor@mvdehaybeach.com www.mydehaybeach. com (561) 24S-7410 - Office CHI kA} ■Uk I! 4Sa� From: McDonnell, Mark Sent: Tuesday, April 16, 2013 11:40 AM To: Connor, Danielle Cc: Allen, Jasmin; McDonnell, Mark; Dorling, Paul Subject: MD Now on Linton Blvd. Importance: High Chief Connor- My early conversation with Paul Dorling indicated that you had no objection to the land use and rezoning for the property immediately east of Fire Station #3 on the north side of Linton Blvd, just west of SW 4t" Ave. I was sent a list of the TAC comments that were generated but they were specific to the site plan review (being processed concurrently). At our weekly staff meeting this morning, I was told that there is talk of requesting the property owner to offer a slice of the western portion of the property for acquisition by the City for future planned improvements to Fire Station #3. I will be attending the CC meeting tonight for the 2nd reading of the land use change and rezoning ordinance. The CC wanted to learn if the Fire Dept had any concerns. Please respond to this email offering any concerns you have on the land use change and rezoning, or other issues, so I am able to share those with the CC. Thank you. Mark McDonnell, AICP Assistant Director, Planning and Zoning Dept. City of Delray Beach 100 NW 1 st Avenue Delray Beach, FL 33444 P* 561 - 243 -7046 F* 561- 243 -7221 E* mcdonnell(o-)mydelraybeach.com MEMORANDUM TO: Mayor and City Commissioners FROM: Louie Chapman, Jr., City Manager DATE: April 8, 2013 SUBJECT: AGENDA ITEM 11.B. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 ORDINANCE NO. 08-13 ITEM BEFORE COMMISSION This ordinance is before Commission Land Development Regulations (LDR 4.4.13 (G)(1), "Central Core and Be regulations governing call centers. BACKGROUND for second readingto consider a city- initiated amendment to the Section 4.4.13, "Central Business (CBD) District ", Subsection ach Area Supplemental Regulations ", to provide for parking At the first reading on April 2, 2013, the Commission passed Ordinance No. 08 -13 with direction to remove the West Atlantic Overlay District from the increased parking requirement. This change in reflected in the attached ordinance for second reading. RECOMMENDATION Recommend approval of Ordinance No. 08 -13 on second and final reading. ORDINANCE NO. 08 -13 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SECTION 4.4.13 "CENTRAL BUSINESS (CBD) DISTRICT ", SUBSECTION 4.4.13 (G)(1) "CENTRAL CORE AND BEACH AREA SUPPLEMENTAL REGULATIONS" TO PROVIDE FOR PARKING REGULATIONS GOVERNING CALL CENTERS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on March 18, 2013, and voted 4 to 0 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2. That Section 4.4.13 "Central Business (CBD) District ", Subsection 4.4.13 (G), "Supplemental District Regulations ", Subsection (1) "Central Core and Beach Area Supplemental Regulations" of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (1) Central Core And Beach Area Supplemental Regulations (a) Within that portion of the CBD bounded by Swinton Avenue on the west, N.E. 2nd Street on the north, the Intracoastal Waterway on the east and S.E. 2nd Street on the south, the parking requirements for all non - residential uses, except restaurants, hotels and motels, aad business and professional offices, and call centers, shall be one space for each 300 square feet of gross floor area or fraction thereof. The parking required for the creation of new floor area, shall also include the replacement of any previously required parking which may be eliminated. Within all other geographic areas of the Central Core and Beach Area within the CBD Zone District, the provisions of Section 4.6.9(C) shall apply, as further modified within this Subsection (G)(1). (b) When the parking requirements are applied to either new development, expansion of an existing use or a change in use, which results in the requirement of only one new parking space, a one space exemption shall be allowed. This exemption may only occur once per property. (c) If the required parking is not or cannot be provided on -site or off -site, the in -lieu fee option provided in Section 4.6.9(E)(3) may be applied. (d) For all property located from Swinton Avenue on the west to NE /SE 5th Avenue to the east, between Atlantic Avenue and the east -west alleys on the north and south sides of Atlantic Avenue, as shown on the Town of Linton Plat (P.B. 1, P.G. 3), the parking requirement for restaurants is established at 12 spaces per 1,000 square feet of gross floor area up to 6,000 sq. ft. and then 15 spaces per 1,000 sq. ft. of gross floor area over the initial 6,000 sq. ft., with the exception of Old School Square. The parking requirement for restaurants in the balance of the Central Core and Beach Area is established at six (6) spaces per 1,000 sq. ft. of gross floor area. (e) The parking requirement for hotels and motels within that portion of the CBD bounded by Swinton Avenue on the west, N.E. 2nd Street on the north, the Intracoastal Waterway on the east and S.E. 2nd Street on the south is established at 0.7 of a space for each guest room plus one (1) space per 300 sq. ft. of floor area devoted to ballrooms, meeting rooms, and shops and 12 spaces per 1,000 square feet of gross floor area up to 6,000 sq. ft. and then 15 spaces per 1,000 sq. ft. of gross floor area over the initial 6,000 sq. ft., for restaurants and lounges within a hotel or motel on property located from Swinton Avenue on the west to NE /SE 5th Avenue to the east, between Atlantic Avenue and the east -west alleys on the north and south sides of Atlantic Avenue, as shown on the Town of Linton Plat (P.B. 1, P.G. 3). In the balance of the Central Core and Beach Area, the minimum parking requirement is six (6) spaces per 1,000 sq. ft. of gross floor area devoted to restaurants and lounges within the hotel or motel. (f) The parking requirements for residential units in multi - family structures and mixed -use buildings shall be as follows: 2 ORD. NO. 08 -13 • Efficiency dwelling unit 1.0 space /unit • One bedroom dwelling unit 1.25 Spaces /unit • Two or more bedroom dwelling unit 1.75 spaces /unit • Guest parking shall be provided cumulatively as follows: - for the first 20 units 0.50 spaces /unit - for units 21 -50 0.30 spaces /unit - for units 51 and above 0.20 spaces /unit (g) Within Townhouse and Townhouse type developments, parking may be provided in front of garage units provided that such parking does not result in the space for one unit impeding access to a space of the other unit. (h) Location of Guest Parking Spaces: Guest parking spaces must be accessible to all visitors and guests and may be centralized or located near recreational features within a development project. (i) The parking requirement for business and professional offices within the following portions of the CBD is established at one (1) space per 300 sq. ft. of net floor area. 1. The portion of the CBD bounded by Swinton Avenue on the west, N.E. 2nd Street on the north, the Intracoastal Waterway on the east and S.E. 2nd Street on the south; 2. The portion of the CBD bounded by N.E. 5th Avenue on the west, N.E. 6th Avenue on the east, N.E. 2nd Street on the south and George Bush Blvd. on the north; and 3. The portion of the CBD bounded by S.E. 5th Avenue on the west, S.E. 6th Avenue on the east, S.E. 2nd Street on the north and S.E. 4th Street on the south. 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 all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 5. That this ordinance shall become effective immediately upon its passage on second and final reading. 3 ORD. NO. 08 -13 PASSED AND ADOPTED in regular session on second and final reading on this the day of 2013. ATTEST City Clerk First Readi Second Reading MAYOR ORD. NO. 08 -13 Coversheet MEMORANDUM TO: Mayor and City Commissioners FROM: Mark McDonnell, AICP, Assistant Director Planning and Zoning Paul Dorling, AICP, Director Planning and Zoning THROUGH: City Manager DATE: March 27, 2013 SUBJECT: AGENDA ITEM 12A - REGULAR COMMISSION MEETING OF APRIL 2, 2013 ORDINANCE NO. 08-13 ITEM BEFORE COMMISSION Page 1 of 2 Approval of a city- initiated amendment to the Land Development Regulations (LDRs) that will require the same parking requirement for call centers located in the CBD commensurate with those allowed elsewhere throughout the city. BACKGROUND Call centers can fit as many as eight (8) or more agents per 1,000 sq. ft., where a conventional office has an average of four (4) employees per 1,000 sq. ft. Where these facilities have opened up, it has become clear that the conventional office use parking requirement that existed was inadequate. An LDR amendment was approved (Ord. 22 -11) in mid 2011 that created a definition of Call Center, and further specified a parking ratio of two (2) spaces per 1,000 sq. ft. of gross floor area, plus one (1) space per work station as shown on the related floor plan. When the initial amendment for Call Centers was processed, the requirement did not apply to all areas of the CBD. For example, in the Central Core of the CBD, minimum required parking in the area bounded by Swinton Ave to the west, North 2nd Street and South 2nd Street to the north and south, respectively, and the Intracoastal Waterway to the east, is one (1) space per 300 sq. ft. of gross floor area, except for restaurants, hotels and motels, and business and professional offices. The same situation occurs in the West Atlantic Overlay District, where call centers have the same one (1) space per 300 sq. ft. of gross floor area. In each of these areas, call centers were not added to the list of uses that are to be considered under higher requirements. Given the intensity of this type of use it should have been, and this amendment addresses this. The proposed amendment will require the same parking requirement for call centers wherever they are located, including the Central Core and West Atlantic Neighborhood sections of the CBD. REVIEW BY OTHERS The Planning and Zoning Board reviewed the item at their March 18, 2013 meeting and a unanimous recommendation of approval was made. http: // itwebapp/ AgendaIntranet /Bluesheet.aspx ?ItemID= 6644 &MeetingID =444 4/8/2013 Coversheet RECOMMENDATION Page 2 of 2 By motion, approve Ordinance No. 08 -13 on first reading for a city - initiated amendment to the Land Development Regulations, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. http:// itwebapp/ AgendaIntranet /Bluesheet.aspx ?ItemID= 6644 &MeetingID =444 4/8/2013 PLANNING AND ZONING BOARD STAFF REPORT MEETING DATE: MARCH 18, 2013 AGENDA NO: VI. C. AGENDA ITEM: CONSIDERATION OF A CITY- INITIATED AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS (LDR), BY AMENDING SECTION 4.4.13(G) "SUPPLEMENTAL DISTRICT REGULATIONS ", SUBSECTIONS (1) AND (2), TO APPLY THE SAME PARKING REQUIREMENT FOR CALL CENTERS IN THE CBD AS THEY ARE REQUIRED THROUGHOUT THE CITY. ITEM BEFORE THE BOARD The item before the Board is to make a recommendation to the City Commission regarding a city - initiated amendment to Land Development Regulations (LDRs) that will require the same parking requirement for call centers located in the CBD commensurate with those allowed elsewhere throughout the city. Pursuant to Section 1.1.6, an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. BACKGROUND /ANALYSIS On June 20, 2011, the Planning and Zoning Board recommended approval of an amendment that added a definition for Call Center, and assigned a ratio of two (2) spaces per 1,000 s. ft. of gross floor area, plus one (1) space per work station as shown on the related floor plan. Ordinance 22- 11 was subsequently adopted by the City Commission on July 19, 2011. The amendment was processed because such uses were known to house an increased number of employees in smaller office spaces (cubicles) than more typical office uses. Call centers can fit as many as eight (8) or more agents per 1,000 sq. ft., where a conventional office has an average of four (4) employees per 1,000 sq. ft. Where these facilities have opened up, it has become clear that the conventional office use parking requirement that existed was inadequate. When the initial amendment for Call Centers was processed, the requirement did not apply to all areas of the CBD. For example, in the Central Core of the CBD, minimum required parking in the area bounded by Swinton Ave to the west, North 2nd Street and South Second Street to the north and south, respectively, and the ICW to the east, is one (1) space per 300 sq. ft. of gross floor area, except for restaurants, hotels and motels, and business and professional offices. The same situation occurs in the West Atlantic Overlay District, where call centers have the same one (1) space per 300 sq. ft. of gross floor area. In each of these areas, call centers were not added to the list of uses that are to be considered under higher requirements. Given the intensity of this type of use it should have been, and this amendment addresses this. The proposed amendment will require the same parking requirement for call centers wherever they are located, including the Central Core and West Atlantic Neighborhood sections of the CBD. Planning and Zoning Board Meeting, March 18, 2013 LDR Amendment - Parking for Call Centers in the CBD REQUIRED FINDINGS Comprehensive Plan Conformance LDR Section 2.4.5(M)(5) (Findings) requires that the City Commission make a finding that the text amendment is consistent with and furthers the Goals, Objectives and Policies of the Comprehensive Plan. A thorough review of the Comprehensive Plan was conducted and the following objective supports this proposed amendment: Future Land Use Element Objective A -5 states that "the City shall maintain its Land Development Regulations, which shall be regularly reviewed and updated, to provide timely, equitable and streamlined processes including, but not limited to, building permit processes for residential developments and to accommodate mixed -use developments, and other innovative development practices." This amendment will add the parking requirements specific for call centers to the Central Core and the West Atlantic Neighborhood consistent with what has been enacted for the balance of the city. REVIEW BY OTHERS Courtesy Notices Courtesy notices were provided to the following homeowner and civic associations: • Neighborhood Advisory Council • Progressive Residents of Delray (PROD) Letters of objection and support, if any, will be provided at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION Adoption of this ordinance will clarify the original intent to include the same parking requirements for call centers throughout the entire city. The use will continue to be permitted in the CBD, but will have to provide sufficient parking based upon that specific use. The omission of these increased parking requirements within the CBD area, where parking is limited, was an oversight which is being corrected with this amendment. ALTERNATIVE ACTIONS A. Continue with direction. B. Move a recommendation of approval to the City Commission of the amendment to Land Development Regulations, Section 4.4.13(G) "Supplemental District Regulations ", Subsections (1) And (2), To Apply The Same Parking Requirement For Call Centers In the CBD As They Are Required Throughout The City, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M) 2 Planning and Zoning Board Meeting, March 18, 2013 LDR Amendment - Parking for Call Centers in the CBD C. Move a recommendation of denial to the City Commission of the amendment to Land Development Regulations, Section 4.4.13(G) "Supplemental District Regulations ", Subsections (1) And (2), To Apply The Same Parking Requirement For Call Centers In the CBD As They Are Required Throughout The City, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is inconsistent with the Comprehensive Plan and does not meet the criteria set forth in LDR Section 2.4.5(M) (motion to be made in the affirmative). RECOMMENDED ACTION Recommend approval of the amendment to Land Development Regulations, Section 4.4.13(G) "Supplemental District Regulations ", Subsections (1) And (2), To Apply The Same Parking Requirement For Call Centers In the CBD As They Are Required Throughout The City„ by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M). Attachment: • Ordinance No. 08 -13 3 MEMORANDUM TO: Mayor and City Commissioners FROM: R. Brian Shutt, City Attorney DATE: April 10, 2013 SUBJECT: AGENDA ITEM 11.C. - REGULAR COMMISSION MEETING OF APRIL 16, 2013 PURCHASE AND SALE AGREEMENT: OLD SCHOOL SQUARE GARAGE RETAIL SPACE ITEM BEFORE COMMISSION The items before the City Commission are three Resolutions each of which adopts and includes a proposed Contract for Sale and Purchase of the Old School Square retail space. Resolutions 8 -13 and 24 -13 provide for the sale to the Law Offices of Kanner & Pintaluga, P.A. while Resolution 9 -13 provides for the sale to S &F Acquisitions, Inc., a related entity of Schmier & Feurring Properties, Inc. BACKGROUND Resolution No. 08 -13 adopts and includes the Contract for Sale and Purchase between the City of Delray Beach, Florida and The Law Offices of Kanner & Pintaluga, P.A. for the interior space on the first floor of the Old School Square Parking Garage located on the S.W. corner of Pineapple Grove Way and Northeast 1St Street. The cost of the purchase is Two Million Five Hundred Thousand Dollars ($2,500,000.00). The City will provide the Buyer with 20 assigned parking spaces and 30 parking passes. The Buyer will pay the City a closing charge of 1.3% of the total purchase price as well as the documentary stamps on closing. The City shall pay the broker fees of 6 %. The Buyer shall take title subject to the City's lease agreement with the CRA. Resolution No. 09 -13 adopts and includes the Contract for Sale and Purchase between the City of Delray Beach, Florida and S & F Acquisitions, Inc. a related entity of Schmier & Feurring Properties, Inc. for the interior space on the first floor of the Old School Square Parking Garage located on the S.W. corner of Pineapple Grove Way and Northeast 1St Street. The cost of the purchase is Two Million Five Hundred Thousand Dollars ($2,500,000.00). The City will provide the Buyer with 15 assigned parking spaces and 25 parking passes. The Buyer will pay the City a closing charge of 1.3% of the total purchase price as well as the documentary stamps on closing. The City shall pay the broker fees of 6 %. The Buyer shall take title subject to the City's lease agreement with the CRA. This contract is contingent upon the Buyer providing the CCC the ability to occupy the space (Arts Garage Space) for a period of 10 years, with the option to purchase by the CCC at the end of the 10 year period, and providing the City evidence of such agreement. Resolution No. 24 -13 adopts and includes the Contract for Sale and Purchase between the City of Delray Beach, Florida and The Law Offices of Kanner & Pintaluga, P.A. for the interior space on the first floor of the Old School Square Parking Garage, currently occupied by the Puppetry Center, located on the S.W. corner of Pineapple Grove Way and Northeast 1St Street. The cost of the purchase is One Million Dollars ($1,000,000.00). The City will provide the Buyer with 10 assigned parking spaces and 15 parking passes. The Buyer will pay the City a closing charge of 1.3% of the total purchase price as well as the documentary stamps on closing. The City shall pay the broker fees of 6 %. The Buyer shall take title subject to the City's lease agreement with the CRA. I have also attached a letter from the Arts Garage, dated November 29, 2012, providing that they would like to purchase the entire space for an amount up to $2,500,000.00. A contract has not been drafted regarding this proposal as it is my understanding that a payment plan would need to be developed regarding this offer. RECOMMENDATION City Commission discretion. RESOLUTION NO. 08-13 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO SELL TO BUYER CERTAIN REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, AS DESCRIBED HEREIN, HEREBY INCORPORATING AND ACCEPTING THE CONTRACT STATING THE TERMS AND CONDITIONS FOR THE SALE AND PURCHASE BETWEEN THE BUYER AND THE CITY OF DELRAY BEACH. FLORIDA. WHEREAS, the City of Delray Beach, Florida, wishes to sell certain property located at the S.W. corner of Pineapple Grove Way and Northeast 1St Street; and WHEREAS, the Buyer hereinafter named desires to buy the property for public purposes hereinafter described from the City of Delray Beach Florida; and WHEREAS, it is in the best interest of the City of Delray Beach, Florida, to sell said property. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City Commission of the City of Delray Beach, Florida, as Seller, hereby agrees to sell to The Law Offices of Kanner & Pintaluga, P.A., as Buyer, interior space on the first floor of the Old School Square Parking Garage, for the purchase price of Two Million Five Hundred Thousand and 00 /100 Dollars ($2,500,000.00), and other good and valuable consideration; said property being more particularly described as follows: See Exhibit "A" Section 2. That the terms and conditions contained in the contract for sale and purchase and addenda thereto between the City of Delray Beach, Florida, and the Buyer as hereinabove named are incorporated herein as Exhibit `B ". ATTEST: City Clerk PASSED AND ADOPTED in regular session on the day of , 2013. MAYOR EXHIBIT "A" OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE SURVEY, PLOT PLAN AND GRAPHIC DESCRIPTION OF IMPROVEMENTS LOCATION MAP SECTION 16, TOWNSHIP 46S. RANGE 43E. N.T.S. TABLE OF CONTENTS: REAL PROPERTY DESCRIPTION .............. SHEET 2 SKETCH OF SURVEY AND PLOT PLAN .............. SHEET 3 VERTICAL BOUNDARIES .............. SHEET 4 AIR CONDITIONING EASEMENT AREAS (2ND FLOOR) .............. SHEET 5 SKETCH OF AIR CONDITIONING EASEMENT AREAS (2ND FLOOR) .............. SHEET 6 SURVEYOR'S NOTES .............. SHEET 7 SURVEYOR'S CERTIFICATE .............. SHEET 8 a DATE: 21113 1-24-13-PER a�I";-COMME SCALE: NIA Heller - Weaver and Sheremetat InV� 24-13-PER ATTORNEYS DRAWN BY: W.ROLLE COMMENTS Engineers ... Surveyors BfIC� Mappers CHECKED BY: D.LAAK _ 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33483 SHEET: 1 OF 8 L.S. NO.'o0D3W (561) 243-8700 - Phone (5611243-8777-Fax Fu F Pin 71_16109 441.— OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE AIR CONDITIONING EASEMENT AREA (2ND FLOOR) DESCRIPTION: AIR CONDITIONING EASEMENT AREAS (2ND FLOOR) THAT PORTION OF REAL PROPERTY LYING ABOVE THE FINISHED FLOOR OF THE SECOND FLOOR GARAGE PARKING AREA HAVING AN APPROXIMATE ELEVATION OF 35.7, NATIONAL GEODETIC VERTICAL DATUM (NGVD) 1929 AND BELOW THE TOP OF THE PARAPET WALL OF THE SECOND FLOOR GARAGE AREA HAVING AN APPROXIMATE ELEVATION OF 39.2, NATIONAL GEODETIC VERTICAL DATUM (NGVD) 1929 LYING WITHIN A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 111, AT PAGE 46, AS RECORD IN THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULAR DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHEAST CORNER OF TRACT "A", OLD SCHOOL SQUARE PARKING GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE S00'00'00 "1N ALONG THE EAST LINE OF SAID TRACT "A" FOR A DISTANCE OF 20.77 FEET; THENCE DEPARTING FROM THE EAST LINE OF SAID TRACT "A" N90'00'00 "W FOR A DISTANCE OF 11.13 FEET; THENCE S00'00'00 "W FOR 51.08 FEET TO A POINT TO BE KNOWN HEREINAFTER AS POINT "A "; THENCE CONTINUE S00'00'00 "W FOR 4.92 FEET; THENCE N90'00'00 "W FOR 1.67 FEET TO THE POINT OF BEGINNING; THENCE S00'00'00 "W FOR 9.00 FEET; THENCE N90 °00'00 "W FOR 16.25 FEET; THENCE N00'00'00 "E FOR 9.00 FEET; THENCE S90'00'0 "E FOR 16.25 FEET TO THE POINT OF BEGINNING. TOGETHER WITH EASEMENT AREA 2 COMMENCE AT THE AFOREMENTIONED POINT "A "; THENCE N90'00'00 "W FOR 45.92 FEET TO THE POINT OF BEGINNING; THENCE S00'00'00 "W FOR 9.00 FEET; THENCE N90'00'00 "W FOR 9.00 FEET; THENCE N00'00'00 "E FOR 9.00 FEET; THENCE S90'00100 "E FOR 9.00 FEET TO THE POINT OF BEGINNING. TOGETHER WITH EASEMENT AREA 3 COMMENCE AT THE NORTHEAST CORNER OF TRACT "A", OLD SCHOOL SQUARE PARKING GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE S00'00'00 "W ALONG THE EAST LINE OF SAID TRACT A FOR A DISTANCE OF 20.77 FEET; THENCE DEPARTING FROM THE EAST LINE OF SAID TRACT "A" N90'00'00 "W FOR A DISTANCE OF 11.13 FEET TO THE POINT OF BEGINNING, THENCE S00'00'00 "W FOR 15.66 FEET; THENCE N90'00'00 "W FOR 18.92 FEET; THENCE N00'00'00 "E FOR 17.33 FEET; THENCE S90'00'00 "E FOR 17.25 FEET;THENCE S00'00'00 "W FOR 1.67 FEET; THENCE S90'00'00 "E FOR 1.67 FEET TO THE POINT OF BEGINNING. SAID LANDS SITUATE WITHIN THE CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA. NOTE: VERTICAL ELEVATIONS ARE REFERENCED TO THE NATIONAL GEODATIC VERTICAL DATUM OF 1929 (NGVD 1929) 1-24-13-PER CITYS 2 413PERA O NEOYS'SENT �t Heller - Weaver and Sheremeta, inc, DRAWN BY: WROLLE COMMENTS j Engineers ... Surveyors and Mappers CHECKED BY: D. LARK 310 S,E.1st Street, Suite 5 Delray Beach, Florida 33483 SHEET: 160F 8 L.B. NO.'BG:3M9 (561) 243 -8700 - Phone (561) 243 -8777 - Fax FILE N0. Iml.m.11rissis OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE REAL PROPERTY DESCRIPTION A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE (PLAT BOOK 111, PAGE 46) BEING IN SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA REAL PROPERTY DESCRIPTION: THAT PORTION OF REAL PROPERTY LYING ABOVE A VERTICAL ELEVATION OF 11.9 FEET, NATIONAL GEODETIC VERTICAL DATUM OF 1929 (NGVD 1929) AND BELOW A VERTICAL ELEVATION OF 30.6 FEET NATIONAL GEODETIC VERTICAL DATUM OF 1929 (NGVD 1929) LYING WITHIN A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULAR DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHEAST CORNER OF TRACT "A", OLD SCHOOL SQUARE PARKING GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE S00 °00'00 "W ALONG THE EAST LINE OF SAID TRACT "A" FOR A DISTANCE OF 20.77 FEET; THENCE DEPARTING FROM THE EAST LINE OF SAID TRACT " A" N90 °00'00 "W FOR A DISTANCE OF 10.97 FEET TO THE POINT OF BEGINNING; THENCE S00 "00'00 "E FOR 59.50 FEET; THENCE N90 °00'00 "W FOR 1.83 FEET TO A POINT TO BE KNOWN HEREINAFTER AS POINT "A "; THENCE S00 °00'00 "W FOR 2.00 FEET; THENCE S90 °00'09,E FOR 1.83 FEET; THENCE S00 "00'00 "W FOR 59.00 FEET; THENCE N90 °00'00 "W FOR 1.83 FEET TO A POINT TO BE KNOW HEREINAFTER AS POINT "B'; THENCE S00 "00'00 "W FOR 2.00 FEET; THENCE S90 °00'00 "E FOR 1.83 FEET; THENCE S00 °00'00 "W FOR 16.75 FEET; THENCE N90 °00'00 "W FOR 55.42 FEET; THENCE N00 "00'00 "E FOR 2.75 FEET; THENCE S90 "00'00 "E FOR 0.33 FEET; THENCE N00 "00'00 "E FOR 14.58 FEET; THENCE S90 "00'00 "E FOR 9.00 FEET; THENCE S00 "00'00 "W FOR 0.58 FEET; THENCE S90 "00'00 "E FOR 2.00 FEET; THENCE N00 "00'00 "E FOR 2.00 FEET; THENCE N90 °00'00 "W FOR 2.00 FEET; THENCE S00 °00'00 "W FOR 0.58 FEET; THENCE N90 °00'00 "W FOR 9.00 FEET; THENCE N00 °00'00 "E FOR 4.58 FEET; THENCE N90 "00'00 "W FOR 1.00 FEET; THENCE S00 "00'00 "W FOR 4.58 FEET; THENCE N90 °00'00 "W FOR 7.35 FEET; THENCE N00 °00'00 "E FOR 60.17 FEET; THENCE S90 "00'00 "E FOR 7.35 FEET; THENCE S00 "00'00 "W FOR 4.58 FEET; THENCE S90 °00'00 "E FOR 1.00 FEET; THENCE N00 "00'00 "E FOR 4.58 FEET; THENCE S90 "00'00 "E FOR 9.00 FEET; THENCE S00 °00'00 "W FOR 0.58 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 "00'00 "E FOR 2.00 FEET; THENCE N90 °00'00 "W FOR 2.00 FEET; THENCE S00 °00'00 "W FOR 0.58 FEET; THENCE N90 "00'00 "W FOR 9.00 FEET; THENCE N00 "00'00 "E FOR 14.58 FEET; THENCE N90 "00'00 "W FOR 1.00 FEET; THENCE S00 "00'00 "W FOR 5.83 FEET; THENCE N90 °00'00 "W FOR 38.00 FEET; THENCE N00 °00'00 "E FOR 53.16 FEET; THENCE S90 °00'00 "E FOR 13.00 FEET; THENCE S00 "00'00 "W FOR 1.83 FEET; THENCE S90 "00'00 "E FOR 2.00 FEET; THENCE N00 "00'00 "E FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 34.00 FEET; THENCE S00 °00'00 "W FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 "00'00 "E FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 22.00 FEET; THENCE SOOTM0D "W FOR 1.83 FEET; THENCE S90 "00'00 "E FOR 2.00 FEET; THENCE N00 "00'00 "E FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 17.25 FEET; THENCE S00 °00'00 "W FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 1.83 FEET; TO THE POINT OF BEGINNING. LESS THE FOLLOWING AREAS CONTAINING STRUCTURAL COMPONENTS; COMMENCE AT THE AFOREMENTIONED POINT "A "; THENCE N90 "00'00 "W FOR 16.25 FEET TO THE POINT OF BEGINNING; THENCE S00 "00'00 "W FOR 2.00 FEET; THENCE N90 "00'00 "W FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 2.00 FEET; THENCE S90 "00'00 "E FOR 2.00 FEET TO THE POINT OF BEGINNING. AND LESS COMMENCE AT THE AFOREMENTIONED POINT "B'; THENCE N90 °00'00 "W FOR 16.25 FEET TO THE POINT OF BEGINNING; THENCE S00 °00'00 "W FOR 2.00 FEET; THENCE N90 "00'00W FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 2.00 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET TO THE POINT OF BEGINNING. SAID LANDS SITUATE WITHIN THE CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA. CONTAINING 10,289 SQUARE FEET OR 0.24 ACRES OF LAND, MORE OR LESS. 1-24-13-PER ��NS�OMMEI PER ATTORNEYS'S T%F Heller - Weaver and Sheremeta, inc. �BY; WROLLE COMM COMMENTS Engineers ... Surveyors and Mappers CHECKED BY: D,LAAK 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33483 SHEET: 2 OF 8 LB. NO. "90W49 (561) 243 -8700 - Phone (561) 243 -8777 - Fax FILE NO. 13- 15396.115 -SS11 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE SURVEYOR'S NOTES NOTES: 1) THIS SKETCH AND LEGAL DESCRIPTION DOES NOT REPRESENT A FIELD SURVEY ( "THIS IS NOT A SURVEY "). 2) THIS SKETCH AND LEGAL DESCRIPTION IS NOT VALID WITHOUT THE ORIGINAL SIGNATURE AND RAISED EMBOSSED SEAL OF A FLORIDA REGISTERED LAND SURVEYOR. 3) BEARINGS SHOWN HEREON ARE BASED UPON THE CENTERLINE OF N.E. 1ST AVENUE HAVING AN ASSUMED BEARING OF N00 °00'00 "E. 4) ELEVATIONS SHOWN HEREON ARE BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929. 5) BENCH MARKS USED: PALM BEACH COUNTY BENCH MARK "D -32" ELEVATION 20.353' 6) SYMBOLS SHOWN HEREON ARE NOT TO SCALE. 7) DISTANCES SHOWN HEREON WERE DERIVED FROM ARCHITECTURE PLANS PREPARED BY PGAL ARCHITECTURE UNDER PGAL PROJECT NO. 718 - 04014.00, DATE OF ISSUE 4/12106. THESE DISTANCES WERE FIELD VERIFIED 10/15/07 UNDER W.O. 15396.110 AND SAID DISTANCES WERE FOUND TO BE WITHIN 0.2t' OF THE DIMENSIONING SHOWN HEREON. LEGEND: HWS HELLER- WEAVER AND SHEREMETA, INC. O.R.B. OFFICIAL RECORD BOOK P.B. PLAT BOOK PG. PAGE P.O.B. POINT OF BEGINNING EL. ELEVATION N.T.S. NOT TO SCALE S.F. SQUARE FEET REVISIONS p P NVId HG�IIeEefWeas Weaver d Sh erm tl inc. IL 310 S.E. 1st Street, Suite 5 Delray Beach, Florida Mappers 3483 DATE: 24.2013 0 NEOYS'SENTS DRAWN ROLLE COMMENTS K Y: D LAAK SHEET' 70F8 L.B. Ho.'oW3W (561) 243.8700 - Phone (561) 243 -8777 - Fax FILE NO. 13- 15396.115SS16 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE SKETCH OF SURVEY N A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE (PLAT BOOK 111, PAGE 46) BEING IN SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA OD INDICATES LOCATION OF THE ELEVATION AT THE BOTTOM SKETCH OF SURVEY: OF THE STRUCTURAL BEAM NORTH WITHIN THE UNIT, SEE VERTICAL 20 15 10 5 0 10 20 BOUNDARY SHEET 6 OF 8 � i � r •s, sr r �, r: N E 1ST STREET r- --.-_ .- 47691' ,� <�• AN 6,,. TE 41r ¢ea6 Tx yl j> S` i ! S `5 ._.' _. _- - - i - . _ .! -?'! ' t,r..,•, _ f� c �, f, �� i� N ORTHEA§T CORNER , 890'00'00 "E 590'00 00^E S90100'00 IE L II pF TRACT A" 34.00' 22.00' 17.25 } 4 OLD SC IO L SQUAR� �ARI�INI3- 300 *00,00, r YN00*00'00"IE 500.00.001A1 ri ter} I GARAGE A D PARK 5r`TE 1.83' 7.83'i. '., I, (PLAT BO 111, PAGE�46) ,,. S90'00.00"E 890.00'00 ^E s r` % r�0 °0010 'w 2.00' 2.00' n ; a!swr AA s 3 Y 10.97' I! I N00.00'00"E W 1.83' 1.83' ; INTO BEGINNI "?5 N00'00'00"E 5001001001 MY $ ; `i1 ,i 1 ✓ ' 8 m 1.83• 1.93' o ° coo 890100100"E S90.00'0o"E Ib 2.00' 1.83• a 'r ✓� i 71 ?. Y i soolooloo"w I ! I I ' EAST LIN OF TRACT "A "�, y >> 1.83' p ?� (PLAT SO K 111, PAGE 46) ` 890'00'00"E N90-00-00 "W NOT INCLUDED r LIMITS F RETAIL WAGO. 13.00' 1 .001 p O.B.11 17' j N90.0000'1N N90'00'OD"W III S00o'00"W 19 9.00' 38.34" 5.83' 1.84' N9000100'1N gib 800'00ro0'91Y II f 0.55• 5 oroaoo"w.` y��{ M90.00.00 -W 2.00' P:• 2.00' NBO °00'00 "W J v N00'00'00"E MIT OF RETAIL SPAC 2A0' it ,7 C 200• 390.00'00 "E {{ � o 11100 •00"w 800.00.00 0.58' 4 W 2.00' } m '00"E P _[fG� II 1;� m 890 *00 N90'OOroO W,. 9.00• z.00• S I *., , c eo 40800'00 E ?100'00'00"E d 2.00' J / S90.00'00"E 8801001001E R p I Y yy yn' J C e 1.00' 2.00' o ?' r> I;� S 0 Z 800'00'00^w I ( <, t - - -- y 4.58. I I� 590.00.00 -E I : gl r e N90.0woo"w y 1, ' 7.35' 1.84 - > G 0 I POINT "B" by' o o Soo'oovo "w Socroa p b ba 0.58• 0.B 2.00'J nI.1 1 , * r ° 8901001M.-w- 890'00'00^ R m 2.00' N 90'00100' W N_90'00100 2.00' ..._ -. ~_ �. J � 18.25. - >•"r F 1'!^ i� 1 ( 1 I i �.� Y '� G. It19G 80'00' W -! No0'o0'00 E 3 300100180 Ct�QO 80�b"E� PC 890'00110 ^E 2A0• 2.00' N90.00.00"W `� IOTAN. 'UDI jl, 4 590 0Q Qom' 80010O.00"W 2.00' 0.58' N00'ODroO E r x .a i i i t iL ITiSiIF�JdL, i` 1 i it 11 � L I I I f��y INDICATES LIMITS OF RETAIL SPACE ® INDICATES SERVICE CORRIDOR EASEMENT AREA REVISIONS C Heller - Weaver and Sheremeta inc. DAB' 2' =20' 1 -2413 PER CITY'S COMMENTS ,, ;- -. • SCALE; 1' = 20' 2.4.13- PERATTORNEYS'S ( 1 DRAWN BY: W,ROLLE COMMENTS , ... Engineers ... Surveyors and Mappers CHECKED BY: D.LAAK 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33483 SHEET: 3 DF 8 L.S. NO.'D003M (561) 243.8700 - Phone (561) 243 -8777 - Fax FILE N0. 13- 15396.115 SS17 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE SURVEYOR'S CERTIFICATE THIS CERTIFICATE MADE THE 24th DAY OF JANUARY, 2013 BY THE UNDERSIGNED SURVEYOR IS MADE PURSUANT TO THE PROVISIONS OF SECTION 718.104 OF THE FLORIDA STATUES, AS AMENDED, AND IS A CERTIFICATION THAT SHEETS 1 THROUGH 9 ARE AN ACCURATE REPRESENTATION OF THE IMPROVEMENTS DESCRIBED THEREIN AND THAT THE CONSTRUCTION OF SAID IMPROVEMENTS IS SUBSTANTIALLY COMPLETE SO THAT SUCH MATERIAL, TOGETHER WITH THE WORDING IN THE DECLARATION OF RETAIL SPACE FOR OLD SCHOOL SQUARE GARAGE RETAIL NORTHEAST CODOMINIUM IS AN ACCURATE REPRESENTATION OF THE LOCATION AND DIMENSIONS OF THE IMPROVEMENTS DESCRIBED AND THAT THE IDENTIFICATION, LOCATION AND DIMENSIONS OF THE COMMON ELEMENTS AND EACH UNIT CAN BE DETERMINED FROM THESE MATERIALS HELLER- WEAVER AND SHEREMETA, INC. FLORIDA STATE L.B. NO. 3449 BY: DANIEL C. LAAK PROFESSIONAL SURVEYOR AND MAPPER FLORIDA REG. NO. 5118 Heller - Weaver and Sheremeta inc. DAB 2 -0 "2D13 1- 2413 -PER CI1Y'S COMMENTS { SCALE: WA 24- 13.PER ATTORNEYS'S 'r (fry t DRAWN BY: W.ROLLE COMMENTS k �` - Engineers ... Surveyors and Mappers CHECKED BY: D. LAAK 310 S. E. 1st Street, Suite 5 Delray Beach, Florida 33483 �a. No. 000saos (561 243.8700 - Phone SHEET: B -1 B (561) 243 8777 -Fax FILE N0. 13 15396.115-SS17 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE AIR CONDITIONING EASEMENT AREA (2ND FLOOR) 10' 5' 0 5' 10' GRAPHIC SCALE IN FEET POINT OF COMMENCEMENT N NORTH NORTHEAST CORNER OF TRACT "A" OLD SCHOOL SQUARE PARKING — — — GARAGE AND PARK SITE (PLAT BOOK 111, PAGE 46) I 17.25' 390'00'00 "E --- - - - - -� W i 800'00.00"W h 6 1 1.67' I A b EL. = 35.7' to ° S90 °00'00 "E rah Z 1.67' I AIR CONDITIONING EASEMENT AREA 3 - N90'00'00"W 18.92' 0 P: °I o, 1 �I I c: U 11.13' N 1 9 N90 °00'00'r j w 1 z J Q w I POINT "A" o •o AIR CONDITIONING $ EASEMENT AREA 2 o0 S90'00'00 "E I 9.00' POINT OF BEGINNING CD I_ POINT OF BEGINNING �, I I 45.92 N90 °00'00 "W 16.25' S00 °00100 "W i--- S00.00.00 -W 390.00'00 "E 4.92' 9.00' r- - - - - -- L N60'00'00"W N00.00'00 "E 1 �— 300°00100 "W N90 °00'00 'W 9.00' L _ _ J 9.00' 9.00' N90 °00.00 "W N00 "00'00 "E 16.25' 9.00' AIR CONDITIONING EASEMENT AREA i Heller - Weaver and Sheremeta inc. SCALE: L'L13 1- 24- 13-PER CITY'S COMMENT 2.4.13 -PER ATTORNEYS'S _ I DRAWN BY: W.ROLLE COMMENTS �.�`4 - Engineers ... Surveyors and Mappers CHECKED BY: D.LAAK 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33483 SHEET: 4 OF 8 �.a. No.`000a„e (561) 243 -8700 - Phone (561) 243 -8777 - Fax FILE N0. 13 159911155513 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE VERTICAL BOUNDARIES EL. = 39.2' 2ND FLOOR TOP OF PARAPET WALL EL. = 35.7' 2ND FLOOR AIR CONDITIONING EL. a 30.6' UPVER LIMIT OF tO i 1glgo■■ ���� ■i II - 1MINNI■ 11111 OF 111111■ nommon VERTICAL BOUNDARIES N.T.S. ELEVATION OF STRUCTURAL BEAM SCHEDULE EL = 29.3' EL = 30.8' EL = 29.3' EL = 30.8' NOTE: 1) ELEVATIONS SHOWN HEREON ARE BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929. 2) BENCH MARKS USED: PALM BEACH COUNTY BENCH MARK "D -32" ELEVATION 20.353' DATE: 2-0 -2013 1-24-13-PER CITY'SCOMME Heller - Weaver and Sheremeta inc. SCALE: N.T.S. 2-0 13 PER ATTORNEYS'S - -; -:.; t DRAWN BY: W.ROLLE COMMENTS �. Engineers ... Surveyors and Mappers CHECKED BY: 0.LAAK 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33483 SHEET: 5 OF 8 L.B. NO. 00133"D (561)243-8700 -Phone (561)243 -6777 -Fax EXHIBIT "B" FIGURES CONTAINED IN ANY BUDGET DELIVERED TO THE BUYER PREPARED IN CONNECTION WITH THIS CONTRACT ARE ESTIMATES ONLY AND REPRESENT AN APPROXIMATION OF FUTURE EXPENSES BASED ON FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF THE PREPARATION OF THE BUDGET BY THE SELLER. ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH CHANGES IN COST DO NOT CONSTITUTE MATERIAL OR ADVERSE CHANGES IN THIS CONTRACT. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS CONTRACT AND THE DOCUMENTS REFERENCED HEREIN. CONTRACT FOR PURCHASE AND SALE OF OLD SCHOOL SQUARE GARAGE RETAIL AIRSPACE 1. PURCHASE AND SALE This Contract fgr Sale and Purchase of OLD SCHOOL SQUARE GARAGE RETAIL AIRSPACE, ( "Contract ") is made and entered into by and between CITY OF DELRAY BEACH, a Florida Municipal Corporation whose address is c/o City Attorney, 200 N. W. I" Avenue, Delray Beach, Florida 33444 (561) 243 -7090 ( "Seller "), and THE LAW OFFICES KANNER & PINTALUGA, P.A., a Florida corporation ( "Buyer "). Purchase and Sale. Purchaser hereby agrees to purchase and Seller hereby agrees to sell and convey to Purchaser all of that certain parcel of real property being situated in Palm Beach County, Florida comprising a portion of the subsurface land and a portion of the airspace on and above a portion of the land ( "Unit "), together with easements for ingress, egress, and physical support for the improvement which has been developed within and adjacent to the airspace legal description, as more particularly set forth in the Declaration of Covenants, Easements and Restrictions for Old School Square ( "Declaration "), which shall be recorded in the Public Records of Palm Beach County, Florida prior to the conveyance of the Unit by the Seller to Buyer. The Unit is located in the airspace of the Old School Square Garage ( "Garage ") from just below the surface of the land upward to just below the underside of the second floor parking slab, as more particularly described in the legal description of the Unit which is attached hereto and made a part hereof as Exhibit "1 ", and has a street address of Delray Beach, Palm Beach County ( "County"), Florida 33444. 2. DESCRIPTION OF PROPERTY 2.1 The Unit contains approximately ten thousand four hundred (10,400) gross square feet of space. There is no personal property included in this sale. 3. PURCHASE PRICE 3.1 Purchase Price of the Unit (a) Base Purchase Price, including $ 2,060,000.00 Easements, Licenses for Storage, Generator, A/C, and Garbage Disposal Areas (b) Parking Rights $ 440,000.00 "Total Purchase Price" of the Unit $ 2,500,000.00 3.2 Payment Schedule. Total Purchase Price of the Unit shall be payable as follows: (A) A deposit in the amount of Fifty Thousand and no /100ths Dollars ($50,000.00) paid to Escrow Agent upon Buyer's execution of this Contract $ 50,000.00 (B) Additional deposit to be made to Escrow Agent within 47 days after Effective Date $ 200,000.00 ( C) Balance of the Total Purchase Price of the Unit shall be due at closing ( "Final Payment "), subject to adjustments and prorations and shall be paid in the form of a U. S. Bank wire transfer in United States funds $ 2,250,000.00 The foregoing sums deposited by Buyer hereunder are collectively referred to herein as the "Deposit ". 3.3 This is a cash transaction with no contingencies for financing. 4. CLOSING, CLOSING EXPENSES AND OTHER EXPENSES 4.1 Closing Date and Possession. The "Closing" is the conveyance of the Unit to Buyer as evidenced by the delivery of the deed transferring title. The closing date ( "Closing Date ") shall be on or before thirty (30) days after the expiration of the Inspection Period which is defined in Section 13 of this Contract. Buyer shall close on such Closing date. Seller is authorized to postpone the date of the closing for not more than thirty (30) days at its discretion. Seller must, however, give Buyer at least five (5) days notice of the new Closing Date. Any new notice of Closing may be given by telefax, mail, or other means of written communication at Seller's option. An affidavit of one of Seller's employees or agents that such notice was given will be conclusive for purposes of proving that notice was given. All notices will be given to Buyer at the address or by use of the telefax number(s) specified in this Contract unless Seller has received written notice from Buyer of any change therein prior to the date notice of Closing is given. The fact that Buyer fails to receive the new Closing notice because Buyer has failed to advise Seller of any changes of address or phone number, or because Buyer has failed to pick up a letter when Buyer has been advised of an attempted delivery or for any other reason, shall not relieve Buyer of Buyer's obligation to close on the scheduled date, unless Seller otherwise agrees in writing to postpone the Closing Date. If Seller agrees in writing to reschedule the Closing Date at Buyer's request or because Buyer has failed to produce all corporate documents requested by Seller, or for any other reason (except for delay caused by Seller), Seller may impose a late charge equal to One Thousand One Hundred Dollars ($1,100.00) per day for every day from and after the original Closing Date through the date that the transaction closes, and prorations shall be as of the original Closing Date. Buyer agrees the late charge is appropriate in order to cover Seller's administrative and other expenses resulting from a delay in Closing. Seller is not required to agree to reschedule the Closing Date, but Seller may reschedule Closing in Seller's sole discretion. Buyer shall be in default of this Contract if Buyer fails to close as scheduled. Buyer shall be given possession of the Unit, subject to existing leases and parties presently in possession, at Closing after Final Payment is received. Until such time, Buyer shall not be entitled to possession of the Unit or store any property therein. The Closing shall take place at an office designated by Seller which is located in Palm Beach County, Florida. 4.2(i) Closing and Other Costs. On the Closing Date, Buyer shall pay the balance of the Total Purchase Price of the Unit, any and all sums due and owing sums under this Contract, and the following sums: (A) A prorated monthly Assessment payable to Seller, if Seller has prepaid the same, based upon the Unit's share of total costs of maintenance, repair and replacement of the Shared Facilities as described in the Declaration. Buyer understands and acknowledges that the Seller's Annual Budget for the Shared Facilities is only an estimate of what it presently costs to maintain, repair and replace the Shared Facilities. (B) The monthly Assessment, payable to the Seller for the Unit for the next monthly assessment period commencing after Closing, based upon the Unit's share of the total Assessment as described in the Declaration and determined by the Seller's Annual Budget. ( C) If Buyer executes a mortgage or other loan, Buyer shall be obligated to pay all mortgage or loan costs and expenses, including but not limited to, points, lender's origination fee, private mortgage insurance costs, intangible tax, documentary stamp tax, survey charge, credit report, recording charges, prepaid items such as taxes, insurance, interest and escrow, mortgagee's abstract of title insurance costs, mortgagee's attorneys' fees, and all sums deducted from the gross amount of the mortgage by the lender. This Contract is not contingent on Buyer obtaining a mortgage or any other financing. (D) A closing charge, payable to Seller, in a sum equal to one and three tenths percent (1.3 %) of the Total Purchase Price of the Unit, a portion of which will be used to pay the cost of recording the Special Warranty Deed, and a portion of Seller's legal and administrative expenses associated with the transaction. (E) Real estate taxes, Solid Waste Authority tax assessments, special tax assessments, and other proratable items shall be prorated as of the date of Closing. Ad valorem taxes are prorated from January through December 31 of the same calendar year. Non ad- valorem assessments are prorated from October 1 through September 30 of the following calendar year. Such taxes and assessments shall be prorated based on the current year's tax with allowance made for discount and exemptions. If Closing occurs on a date when the current year's millage is not fixed, and the current year's assessment is available, taxes shall be prorated based upon such assessment and the prior year's millage. If the current year's assessment is not available, then taxes shall be prorated based on the prior year's tax. Any tax proration based on an estimate shall at the request of either Seller or Buyer be subsequently readjusted upon receipt of the current year's tax bill. (F) Expenses incurred and /or advanced by Seller, if any, with the written consent of the Buyer, on behalf of Buyer, and all other costs and expenses for which Buyer is obligated under this Contract or the Declaration. (G) Additional out -of- pocket costs incurred by Seller as the result of Buyer's failure to close on the Closing Date as scheduled herein, or in the manner contemplated in this Contract, including but not limited to a document re- preparation fee and additional reasonable costs associated with closing the transaction by mail. (IT) Utility connection fees, impact fees, utility deposits, permit fees and any other additional costs imposed by governmental authority. (I) Documentary stamp taxes on the Deed. 4.2(ii) Seller shall pay the following closing costs: (A) All real estate broker's fees, including without limitation, broker's fees which are due pursuant to Seller's right of sale listing agreement with Broker as provided in paragraph (7) of this Contract. (B) Recording of the Deed. 4.3 Deposits. Any reference to Deposit or Deposits herein shall refer collectively to all amounts deposited with Escrow Agent under this Agreement and under any addendum or amendment hereto, except for any deposits or payments made by Buyer to Seller for options, extras and/or upgrades. All monies deposited under the terms of this Agreement, except for the balance due at Closing, may be made by check drawn on a Florida bank, subject to collection. All payments must be made in United States funds. 4.3.1 Buyer understands that Steven D. Rubin, Esq. ( "Escrow Agent "), whose address is 980 North Federal Highway, Suite 434, Boca Raton, Florida, and whose telephone number is (561) 391 -7992, will hold the Deposit in an escrow account (the "Escrow Account "), pursuant to the terms of this Agreement. Buyer may obtain a receipt for its Deposit from the Escrow Agent upon request. Unless Buyer is in default of this Contract, interest shall be paid to Buyer on the Deposit if it is deposited in an interest bearing account. Escrow Agent may deposit monies held in the Escrow Account in a savings or time deposit account at a bank or savings and loan association insured by an agency of the United States Government, with interest if any, paid to Buyer at Closing or to Seller if Seller is entitled to retain the Deposit as provided in this Contract. By signing this Agreement, Buyer expressly authorizes Escrow Agent to disburse Buyer's deposits held in the Escrow Account to Buyer's account at Closing, or to Seller upon Buyer's default. Escrow Agent shall not be responsible for any act or omission to act, unless occurring due to his sole gross negligence or willful malfeasance, and upon making delivery of the monies that Escrow Agent holds in accordance with the terms hereof, Escrow Agent shall have no further liability. 4.4 Closing Agent. Buyer acknowledges that Seller utilizes the services of Steven D. Rubin, Esq. ( "Closing Agent ") for this purchase and sale which services include, but are not limited to (i) pre - closing coordination with Seller, Buyer, Broker (defined below), Co- Broker, if any (defined below), Association, taxing authorities, and any applicable lender; (ii) preparation of the Special Warranty Deed and other closing documents; (iii) preparation of the closing statement; and (iv) conducting the Closing. The Closing Agent does not represent the Buyer as an attorney at law. The terms of this Paragraph 4 shall survive closing. 5. TITLE CONVEYANCE AND TITLE INSURANCE 5.1 Conveyance and Permitted Exceptions. Seller will convey to Buyer marketable and insurable title to the Property by Special Warranty Deed, subject only to the following "Permitted Exceptions ": encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey (unless such survey exception is removed by the title insurer upon certification of a survey meeting requirements for such removal); all applicable laws, zoning ordinances and regulations and other requirements imposed by governmental authorities; taxes for the year of closing and subsequent years, including taxes or assessments of any special taxing district; the Declaration, and all matters referenced in the Declaration and any supplements or amendments thereto; covenants, conditions, restrictions, limitations, reservations, and easements of record and matters shown or reflected on any recorded plat underlying the Unit as of the Closing Date (whether recorded by Seller, or any other person or entity), and any supplements and amendments thereto; any mortgage, construction loan and/or related security instruments executed by Buyer; any easements in connection with the providing of cable television services or utilities, or as may be required by the City of Delray Beach, Florida; any water, sewer or utility service agreement required by the City of Delray Beach, Florida; the Title Documents referenced in the Declaration; riparian and littoral rights of adjoining land owners; rights of the public, United States and Florida to the use of navigable water ways; and parties presently in possession under written leases, which the Buyer agrees to assume and perform, and for which the Buyer shall indemnify and hold Seller harmless from and after the Closing Date by instrument in form which is reasonably satisfactory to Seller's counsel. Buyer specifically gives authority to Seller to file and place among the Public Records of Palm Beach County, Florida all documents and instruments of any type or manner reasonably necessary to provide easements for ingress, egress, support, utilities and parking rights, provided the same shall not render title to the Unit unmarketable or prevent the use of the Unit as a law office. 5.2 Title Insurance. Within a reasonable time after Closing, Seller, at Seller's cost, shall furnish to Buyer a policy of owners' title insurance insuring that the recorded conveyance from Seller to Buyer has vested marketable title in Buyer subject to those matters set forth in this Contract; provided, however, that such policy will not insure title to any interest in personal property, riparian rights, littoral rights or sovereign rights. The owners' title insurance policy will be issued by a duly licensed title insurer of Seller's choosing. A commitment for the policy of title insurance will be furnished to Buyer at least seven (7) days prior to closing. Seller will pay the cost to record the Deed. 5.3 Defects; Title; Acceptance of Deed. Buyer shall have seven (7) days upon receipt of the title insurance commitment to review the same and report, in writing, any defects in title to Seller. In the event that any defects in title are timely reported to Seller, if necessary, the Closing Date shall be postponed and Seller shall make a good faith effort to cure such defects in title. If such defects in title are not cured within sixty (60) days after the date that the Buyer gives notice of such defects to the Seller, then Buyer shall either (i) accept title in its then existing condition, but without any reduction in the Total Purchase Price, or (ii) terminate this Contract. If this Contract is terminated under this paragraph, the Deposit shall be returned to Buyer and the Parties shall have no further rights or obligations hereunder. It is expressly agreed and understood that the Permitted Exceptions shall not be considered defects in title. It is further expressly agreed and understood that Seller shall not be obligated to expend funds in excess of $1,000.00 or to bring any lawsuits for the purpose of curing any defects in title. Buyer's acceptance of the aforementioned Special Warranty Deed shall be deemed to be full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Contract, except those which are herein specifically deemed to survive the Closing or which survive by operation of law. The terms of this Paragraph 5 shall survive Closing. 6. CONSTRUCTION OF THE UNIT 6.1 Buyer Acknowledgments. Buyer acknowledges and agrees that Buyer has not relied upon any statements, verbal or written, published by or under the authority of Seller in advertising and promotional matter, including but not limited to newspaper, radio or television advertisements, but has based the decision solely to purchase solely upon Buyer's personal investigation and observation, and the other documents provided herewith. 6.2.1 Build -Out of Unit. The Unit is substantially complete as of the Effective Date of this Agreement. The Unit consists of partially unfinished space. Buyer shall, after the Closing Date, but at such time as it shall determine, at its sole cost and expense, furnish, construct, install, and improve the Unit for Buyer's intended office use with the plans and specifications (the `Build- Out "). The Build -Out may include, without limitation: (a) Interior walls, partitions and wall coverings of the Unit. (b) The ceiling and all ceiling coverings of the Unit; and (c) Any utility connections, electrical, plumbing, heating and air conditioning wires, conduits, pipes and fixtures, vents, generator, air conditioning and heating systems, and garbage disposal area and containers. 6.3 No Warranties. SELLER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, INTENDED USE, WORKMANSHIP OR CONSTRUCTION RESPECTING THE UNIT, OR RELATED TO INGRESS, EGRESS AND SUPPORT OF THE UNIT, AND ALL FIXTURES OR ITEMS OF PERSONAL PROPERTY SOLD PURSUANT TO THIS AGREEMENT, OR ANY OTHER REAL OR PERSONAL PROPERTY WHATSOEVER CONVEYED HEREBY, OR LOCATED WITHIN THE UNIT WHETHER ARISING FROM THIS AGREEMENT, USAGE, TRADE, IMPOSED BY STATUTE, COURSE OF DEALING, CASE LAW, OR OTHERWISE SELLER SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER RESPECTING ANY DISCLAIMED WARRANTY, WHETHER SUCH DAMAGES ARE COMPENSATORY, GENERAL, SPECIAL, DIRECT, INDIRECT, SECONDARY, INCIDENTAL OR CONSEQUENTIAL. AS TO ANY IMPLIED WARRANTY THAT CANNOT BE DISCLAIMED ENTIRELY, ALL SECONDARY, INCIDENTAL AND CONSEQUENTIAL DAMAGES ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. SELLER GIVES NO EXPRESS WARRANTY ON THOSE ITEMS DEFINED AS "CONSUMER PRODUCTS" BY THE MAGNUSON- MOSS WARRANTY ACT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SELLER DISCLAIMS ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR (I) DAMAGE DUE TO OR MADE WORSE BY BUYER'S NEGLECT, MISUSE, ABNORMAL USE, IMPROPER UNIT MAINTENANCE AND /OR PREVENTATIVE MAINTENANCE; (II) DAMAGE DUE TO ORDINARY WEAR AND TEAR; (III) LOSS OR INJURY CAUSED IN ANY WAY BY THE ELEMENTS; (I`) IRREGULARITIES AND CONDITIONS RESULTING FROM OR THAT ARE CHARACTERISTIC OF AND COMMON TO THE MATERIALS USED; (V) CONDITIONS RESULTING FROM CONDENSATION ON, OR THE EXPANSION OR CONTRACTION OF MATERIALS; (VI) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PERSONAL INJURIES ARISING FROM A BREACH OF THIS OR ANY WARRANTY; AND (VII) ANY DISCOLORATION TO ANY PROPERTY THAT MAY BE CAUSED BY WATER WITHIN THE UNIT OR BUILDING. NORMAL SWELLING, EXPANSION AND CONTRACTION OF MATERIALS AND CONSTRUCTION, AND ANY CRACKS APPEARING AS A RESULT THEREOF OR AS A RESULT OF SETTLEMENT OF, IN OR ON THE UNIT SHALL NOT BE DEEMED TO BE CONSTRUCTION DEFECTS. UPON CLOSING, SELLER SHALL DELIVER TO BUYER ALL MANUFACTURERS' WARRANTIES, IF ANY. BUYER ACKNOWLEDGES THAT IT IS NOT A "CONSUMER" AS DEFINED UNDER ANY APPLICABLE CONSUMER PROTECTION LAW AND SELLER DOES NOT ADOPT OR ASSUME LIABILITY FOR ANY MANUFACTURER'S WARRANTY. THE UNIT IS SOLD "AS IS, WHERE IS ". Except as otherwise pro-6ded in this Agreement, the Seller does not make any warranty or representation regarding the title to the Unit except as to any warranties which will be contained in the Deed and in the other instruments to be delivered by Seller at Closing in accordance with this Agreement, and Seller does not make any representation or warranty either expressed or implied regarding condition, operability, safety, fitness for intended purpose, use, governmental requirements, development potential, utility availability, legal access, economic feasibility or any other matters whatsoever with respect to the Unit or the Garage, as defined in the Declaration. The Buyer specifically acknowledges and agrees that the Seller shall sell and Buyer shall purchase the Unit on an "AS IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except for the Seller's representations and warranties specifically set forth in this Agreement, Buyer is not relying on any representations or warranties of any kind whatsoever, express or implied, from Seller, or its respective agents, officers, or employees, as to any matters concerning the Unit, the Garage or related real property including, without limitation, any matters relating to (1) the quality, nature, adequacy, or physical condition of the Unit,(2) the quality, nature, adequacy or physical condition of soils, fill, geology, or any groundwater, (3) the existence, quality, nature, adequacy or physical condition of utilities serving the Unit, (4) the development potential, income potential, expenses of the Unit, (5) the Unit's value, use, habitability, or merchantability, (6) the fitness, suitability, or adequacy of the Unit for any particular use or purpose, (7) the zoning or other legal status of the Unit, (8) the compliance of the Unit or its operation with any applicable codes, laws, rules, regulations, statutes, ordinances, covenants, judgments, orders, directives, decisions, guidelines, conditions, or restrictions of any governmental or quasi - governmental entity or of any other person or entity, including, without limitation, environmental person or entity, including without limitation, environmental laws, (9) the presence of Hazardous Materials (as defined herein) or any other hazardous or toxic matter on, under, or about the Unit or adjoining or neighboring property, (10) the freedom of the Unit from latent or apparent defects, (11) peaceable possession of the Unit, (12) environmental matters of any kind or nature whatsoever relating to the Unit, (13) any development order or agreement, or (14) any other matter or matters of any nature or kind whatsoever relating to the Unit or any improvements located near, adjacent to, or thereon. Seller shall have no obligation to repair, replace, or remediate the Unit, or any portion thereof, Buyer understands that the Unit is sold and conveyed "AS IS." As used herein, the term "Hazardous Materials" means (i) those substances included within the definitions of "hazardous substances ", "hazardous materials ", "toxic substances" or "solid waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §960 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S. C. §1801 et seq., or the Clean Water Act, 33 U.S.C. §1321 et seq., as amended, and in the regulations promulgated pursuant thereto; (ii) those substances listed in the United States Department of Transportation Table (49 CFR §172.101) or by the Environmental Protection Agency as "hazardous substances ", "hazardous materials ", "toxic substances" or "solid waste ", ( iii ) such other substances, materials and wastes which are regulated, or classified as hazardous or toxic, under applicable local, state or federal laws, ordinances or regulations; and any material, waste or substance which is petroleum, asbestos, polychlorinated, biphenyls, flammable explosives or radioactive materials. 6.4 Closing Inspection. In addition to the inspections permitted during the Inspection Period as defined in Section 13 of this Contract, prior to making the Final Payment and at a reasonable time established by Seller, Seller shall accompany Buyer on a personal inspection of the Unit also known as a "Final Walk- Through Inspection ", for the purpose of orienting Buyer with Buyer's Unit and, if necessary, to confirm the condition of the Unit as represented herein. Seller shall be obligated to correct such items that do not conform to the condition of the Unit as represented by this Contract within a reasonable period of time after the Walk- Through Inspection. Seller's obligation to correct such items shall not be a ground for postponing the Final Payment or Closing Date, nor for the imposition of any condition upon the Final Payment. Failure to make the Final Walk - Through Inspection at the time established by Seller shall not delay the Final Payment or Closing Date and shall be deemed a waiver of Buyer's right to inspect the Unit and correction of the above described deficiencies. 6.5 Final PMent. The making of the Final Payment by Buyer shall constitute acceptance of the Unit "AS IS" and a waiver of any and all claims against Seller for any defects in the Unit or Garage. 6.6 Damage to Unit. If between the date of this Agreement and the Closing the Unit is damaged by fire, natural disaster, acts of terrorism or other casualty, the following shall apply: 6.6.1 Risk of loss to the Unit by fire, natural disaster, acts of terrorism or other casualty until the Closing is assumed by Seller, but without any obligation by Seller to repair or replace the Unit except that if Seller elects to repair or replace such loss or damage to the Unit this Agreement shall continue in full force and effect and Buyer shall not have the right to reject title or receive a credit against or abatement of the Total Purchase Price. If Seller elects to repair or replace such loss or damage, Seller shall be entitled to a reasonable period of time within which to complete such repairs or replacement. Any proceeds received from insurance or in satisfaction of any claim or action in connection with such loss or damage shall belong entirely to Seller. If such proceeds shall be paid to Buyer, Buyer agrees that such funds are the property of Seller and Buyer shall promptly upon receipt thereof turn the same over to Seller. 6.6.2 If Seller notifies Buyer that Seller does not elect to repair or replace any such loss or damage to the Unit then this Agreement shall be deemed cancelled and of no further force or effect. Seller shall refund to Buyer all monies deposited hereunder whereupon the parties shall be released and discharged of all claims and obligations hereunder, except that if Buyer is then otherwise in default hereunder, Seller shall retain the Deposit as and for agreed upon liquidated damages. 6.6.3 Risk of loss to the Unit by fire, natural disaster, acts of terrorism or other casualty from and after Closing is assumed by Buyer. Buyer should be aware that the Unit and Garage however well constructed, may be subject to damage or destruction by naturally occurring events such as hurricanes and sinkholes. While Seller has no knowledge of sinkholes or naturally occurring gases such as radon in the immediate vicinity of the Garage all risks associated with all natural occurrences shall be borne by Buyer from and after Closing. 7. Real Estate Brokers. Listing and Cooperating Brokers, if any, named below (collectively, `Broker "), are the only Brokers entitled to compensation in connection with this Contract. Jim Knight Cooperating Sales Associate, if any The Knight Grou Cooperating Broker, if any (single agent) Ingrid Kennemer Listing Sales Associates Coastal Commercial Group, LLC Listing Broker (single agent) Seller shall pay a total of six percent (6 %) commission to Listing Broker per Listing Agreement, and Cooperating Broker shall be paid a three percent (3 %) commission (fifty percent (50 %) of the total commission) by Listing Broker. The terms of this Paragraph 7 shall survive Closing and/or the termination of this Contract. S. DEFAULT 8.1 Default by Seller. In the event Seller fails to perform any of Seller's obligations or covenants under this Contract, through no fault of Buyer, and Buyer is not in default, Seller shall have fifteen (15) days from the date written notice of breach is received by Seller from Buyer within which to cure such breach. If Seller fails to cure same within fifteen (15) days or, with respect to any matter which cannot reasonably be cured within fifteen (15) days, Seller fails to commence to cure within fifteen (15) days, Buyer may (i) have the Deposit, together with any interest earned thereon, returned to Buyer if such default occurs prior to Closing, in which case this Contract shall be terminated and the parties shall have no further rights or obligations hereunder; or (ii) pursue an action for specific performance. 8.2 Default buyer. If Buyer fails to perform any one or more of Buyer's obligations under this Contract, including but not limited to Buyer's obligation to Close, then Seller shall have the right to either (i) retain the Deposit together with any interest earned thereon, together with any other funds paid by Buyer to Seller hereunder in consideration for the execution of this Contract as liquidated damages, in full settlement of any claims under this Contract, in which case this Contract shall be terminated and the parties shall have no further rights or obligations hereunder, or (ii) seek any remedies available in equity, including but not limited to specific performance. Notwithstanding the foregoing to the contrary, Buyer shall be provided written notice by Seller of its failure to perform under the Contract and shall have fifteen (15) days from the date such written notice is received by Buyer in which to perform and, thereafter if Buyer fails to perform same within fifteen (15) days with respect to any matter, except a failure of its obligation to Close, which performance cannot reasonably be cured within fifteen (15) days, Buyer fails to commence to perform within fifteen (15) days, then the Seller shall have such remedies as set forth above in this Paragraph 8.2. If, subsequent to Closing, Buyer fails to perform any one or more of its obligations that survive Closing under this Contract, then Seller shall have the right to seek, after the foregoing notice and opportunity to cure such failure to perform, any remedy available at law or equity. 9. FEES Buyer shall pay for all water, telephone, cable television, sewer, gas, and electric deposit fees, including without limitation, water meter deposits, for the Unit, to place such accounts in Buyer's name. 10. EFFECTIVE DATE The Effective Date of this Contract, for purposes of performance, shall be regarded as the date when the last one of Seller and Buyer has signed this Contract. 11. MISCELLANEOUS 11.1 All of the provisions set forth in this Paragraph 11 and all the representations, duties and obligations of Buyer pursuant to this Contract shall survive Closing. 11.2 Contract Documents, Entire Agreement and Amendments. This Contract shall consist of this Contract document, all modifications, change orders, and written interpretations of the Contract documents issued by Seller, Specifications, Exhibits, and all addenda executed by both parties subsequent to the execution of this Contract. This Contract supersedes any and all understandings and agreements between the Parties hereto whether oral or written, and this Contract represents the entire agreement between the Parties hereto with respect to the subject matter hereof. No representations or inducements made prior hereto which are not included and embodied in this Contract shall be of any force and effect, including but not limited to any brochure, advertising representation, illustrations or materials, or oral statements of Seller or Broker, and all such representations, statements and agreements are null and void and shall have no effect. This Contract may be amended, altered or modified only by a written agreement executed by the Parties. 11.3 Conflicting Terms. In the event of conflict, typewritten provisions will control over printed form language, and handwritten provisions will control over both typewritten and printed form language. 11.4 Gender and Number. All terms and words used in this Contract, regardless of the number and gender used, shall be deemed to include any other gender or number as the context or use thereof may require or permit. 11.5 Governing Law and Venue. Buyer certifies that Buyer is executing this Contract while in the State of Florida of Buyer's own volition and that this purchase was not solicited either by telephone or mail in another state. This Contract shall be construed under and interpreted according to the laws of the State of Florida, and venue with respect to any litigation arising hereunder shall be Palm Beach County, Florida. 11.6 Radon Gas. Pursuant to Section 404.056(6), Florida Statutes, Buyer is hereby notified as follows: RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 11.7 Intentionally omitted. 11.8 Attorneys' Fees and Costs. In connection with any litigation or dispute arising out of this Contract, each party shall bear its own attorney's fees and costs. 11.9 Delinquent Payment. If Buyer is delinquent in the payment of any sums due under this Contract, including without limitation the Deposit, and Seller has not elected to hold Buyer in default under this Contract or impose the daily administrative late fee, then Buyer shall pay to Seller interest (commencing as of the date that the delinquent sum becomes due) on all delinquent sums at a rate of 18% per annum, or at the then highest rate allowed by law, whichever is less, and the prorations for taxes, assessment charges, and other proratable items shall be calculated based on the herein scheduled Closing Date rather than the actual date of Closing. 11.10 Recording. Buyer shall not record this Contract nor any notice thereof in the Public Records of Palm Beach County, Florida, or in any other Public Records. Such recording shall constitute a material breach hereof by Buyer. 11. 11 Notices. Except as otherwise provided in Paragraph 4.1 of this Contract, all notices and other communications required or permitted to be given under or in connection with this Contract shall be in writing, and shall be deemed given to Buyer when hand delivered to Buyer (which includes but is not limited to delivery by courier or Federal Express), or when deposited in the United States mail, postage prepaid, return receipt requested, addressed to Buyer at Buyer's mailing address as set forth in this Contract, and shall be deemed given to Seller when deposited in the United States mail, postage prepaid, return receipt requested, addressed to Seller at its address set forth in this Contract, or to such other address as either Seller or Buyer shall designate by notice in accordance with this Subparagraph. 11.12 Captions. The captions contained herein are included solely for the convenience of the Parties and do not, in any way, modify, amplify or give full notice of any of the terms, covenants, or conditions of this Contract. 11.13 Waiver. Seller's waiver of any condition or provision of this Contract shall not be construed as a waiver of any other application of that same condition or provision, nor as a waiver of any other condition or provision herein. 11.14 Interpretation. This Contract shall be construed and interpreted in accordance with Florida law and shall not be more strictly construed against one Party, than against the other by virtue of the fact that it may have been physically prepared by one Party or by its attorneys, both Parties (and their respective attorneys, where applicable) having participated in the negotiation of this Contract. 11.15 Time of Essence. Time is of the essence with respect to Buyer's performance hereunder, except where otherwise specifically provided for herein. Any reference in this Agreement to the time periods of less that six (6) days, shall in the computation thereof, exclude Saturdays, Sundays and legal holidays. Any reference in the Agreement to time periods of six (6) days or more shall, in the computation thereof, include Saturday, Sundays and legal holidays. If the last day of any such period is a Saturday, Sunday or legal holiday, the period shall be extended to 5:00 P.M. on the next full business day. 11.16 Successors and Assigns. This Contract shall be binding upon and shall inure to the benefit of the respective heirs, personal representatives, successors and assigns of the Parties hereto. This Contract may not be assigned by Buyer. 11.17 Partial Invalidity. In the event any term or provision of this Contract is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning, or be construed as deleted as such authority determines, and the remainder of this Contract shall be construed to be in full force and effect. 11.18 Counterparts. This Contract may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. 11.19 Further Assurances. The Parties agree to execute all future instruments and take all further action that may be reasonably required by any Party to fully effectuate the terms and provisions of this Contract and the transactions contemplated herein. 11.20 Total Purchase Price and Additional Tax. Notwithstanding anything herein to the contrary, the Total Purchase Price of the Unit is established and agreed upon by Seller and Buyer based upon all taxes in existence at the time of execution. All newly created taxes, or any increase in taxes, beyond the control of Seller, shall be Buyer's responsibility and shall be passed directly on to the Buyer. Taxes include but are not limited to taxes imposed pursuant to Chapter 212, Florida Statutes, as amended. The terms of this Subparagraph 11.20 shall survive Closing. 11.21 Seller's Easements. Buyer grants authority to Seller to file and place among the Public Records of Palm Beach County, Florida, all documents and papers reasonably required to be filed in order to create easements, licenses, and agreements reasonably necessary for the conveyance of the Unit to Buyer which have been approved in writing by the Buyer during the Inspection Period. Buyer acknowledges that Seller shall be placing of record the Declaration and Buyer's title shall be subject to such covenants, restrictions and easements. 11.22 Telefaxed Signatures. Signatures may be given via telefax transmission and shall be deemed given as of the date and time of the transmission of this Agreement by telefax to the other party. 11.23 Additional Changes. No changes to this Contract are binding or effective unless the party to be charged has accepted the change in writing. 11.24 Not Binding. This Agreement shall not be binding on Seller until executed by the Mayor of the City of Delray Beach, Florida. 11.25 The Seller and Buyer shall comply with the Florida Investment in Real Property Tax Act. 11.26 SELLER'S GOVERNMENTAL FUNCTIONS. Notwithstanding anything to the contrary contained in this Agreement: a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agreement from complying with all applicable governmental regulations, rules, laws, and ordinances. b. To- the extent approval or permission must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested rights. C. The City has not waived its sovereign immunity and the limits of tort liability set forth in F. S. § 768.28 (5)(2008) of $100,000.00 per person and $200,000.00 per occurrence shall apply; and d. Any action by City shall be without prejudice to, and shall not constitute a limit or impairment or waiver of, or otherwise affect City's right to exercise its discretion in connection with its governmental or quasi - governmental functions. 11.27 Leases. Seller shall, within the Inspection Period, furnish to Buyer copies of all written leases and estoppel letters from the tenants specifying nature and duration of tenant's occupancy, rental rates, advanced rent and security deposits paid by tenant, and income and expense statements for preceding twelve (12) months. If Seller is unable to obtain estoppel letters from tenant(s), the same information shall be furnished by Seller to Buyer within that time period in the form of a Seller's affidavit, and Buyer may thereafter contact tenant(s) to confirm such information. Seller shall, at Closing, deliver and assign all original leases to Buyer who shall assume Seller's obligations thereunder. 11.28 Time for Acceptance of Offer and Counter- Offers. If not signed by Buyer and Seller, and an executed copy delivered to all parties on or before thirty (3 0) days after the date of this offer, this offer shall be deemed withdrawn and the Deposit, if any, will be returned to Buyer. Unless otherwise stated, time for acceptance of any counter- offers shall be within five (5) days after the day the counter -offer is delivered. 11.29 Survey. Buyer may have the Unit surveyed, at Buyer's expense during the Inspection Period. Unless Buyer cancels the Contract as permitted in Section 13 of this Contract, Buyer shall take title subject to all matters shown on the survey, and Seller shall have no obligation to remedy any survey matters shown on the survey. 12. IMPORTANT ADDITIONAL DISCLOSURES 12.1 PROPERTY TAX DISCLOSURE SUMMARY: BUYER SHOULD NOT RELY ON THE SELLER'S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT THE BUYER MAY BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE, A CHANGE OF OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES, IF YOU HAVE ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY APPRAISER'S OFFICE FOR INFORMATION. 12.2 Seller hereby discloses and Buyer hereby acknowledges that the lower horizontal boundary limit of the Unit lies approximately three (3) feet below the existing surface of the floor of the Unit and the upper horizontal boundary limit lies approximately six (6) inches below the existing pipes and other conduit which are located underneath the second level floor slab of the Garage. Notwithstanding anything to the contrary contained in this Contract, the Declaration, or any other Title Document or the common law, the Buyer, shall not have any other air rights or subsurface rights in connection with or arising out of the ownership, management, or operation of the Unit which are not expressly contained in the Declaration. Such other air rights and subsurface rights have been expressly retained by the Seller. This paragraph shall survive closing. 13. Conditions Prior to Closing 13.1 Buyer's Inspections and Due Diligence. Buyer shall, within sixty (60) days from the Effective Date ( "Inspection Period ") determine: (a) whether or not the Unit is satisfactory for Buyer's purposes, (b) whether or not the Unit has adequate services available; (c) that all federal, state, county and local laws, rules and regulations have been and are currently being complied with relative to the Unit; and (d) whether to accept all matters which may be shown by a survey of the Unit. During the Inspection Period, it shall be the responsibility of the Buyer to determine that utility services including, water, waste water, electric, telephone and all other utilities are available in the proper size and capacity to serve the Unit. Furthermore, it shall be the responsibility of the Buyer to determine whether or not the existing zoning classification of the Unit will permit Buyer to construct, develop and utilize the Unit as a law office. At all times during the Inspection Period, Buyer and its agents shall be provided with reasonable access during normal business hours to the Unit for purposes of on -site inspections. The scope of the inspections shall be determined by the Buyer as deemed appropriate under the circumstances, and may include, at Buyer's option, an environmental audit. In the event that any inspections and any review of documents conducted by the Buyer relative to the Unit during the Inspection Period prove unsatisfactory to the Buyer, in its sole discretion, the Buyer shall be entitled to cancel this Agreement by providing written notice of cancellation to Seller prior to 5:00 p.m. Florida time on that date which is the second business day next following the expiration of the Inspection Period. If the Buyer timely cancels this Agreement, Buyer shall receive a prompt refund of the Deposit plus interest earned thereon. The failure of Buyer to timely notify the Seller of Buyer's cancellation of this Agreement shall constitute its waiver of its right to cancel based upon this Section 13. 1, time being of the essence. Buyer does hereby agree to hold Seller harmless with respect to all inspection activities Buyer conducts on the real property and Buyer's review of any and all documents. Buyer shall indemnify and hold harmless the Seller and its members, agents, employees, officers, commissioners, and directors from and against any and all claims, liabilities, injuries, liens, costs, damages, losses, and expenses, including but not limited to, attorney's fees, arising out of or resulting from Buyer's inspection activities and document review. The Buyer's indemnification obligation shall survive cancellation or Closing of this Agreement. Upon written request of Buyer during the Inspection Period, Seller shall provide to Buyer (or provide reasonable access) to any plans and specifications surveys, and studies it may have in its possession or control relating to the real property. Buyer's right to inspect and enter onto the real property during the Inspection Period is expressly conditioned upon Buyer's covenant to protect the Seller from the filing of any liens against the real property. In the event that any claims of lien are filed against the real property as a result of labor or services performed or materials furnished to the real property which are requested or ordered by Buyer, the Buyer shall either pay the sum claimed by the lienor or bond such claim of lien in the manner permitted by law within five (5) business days after Buyer receives written notice of the existence of the lien. This Buyer obligation shall survive cancellation of this Agreement. From the Effective Date through Closing Date, Seller shall maintain the Unit in its AS IS condition, reasonable wear and tear accepted. Buyer, at its sole cost and expense, shall return the condition of the real property to the condition which existed at the time of the Effective Date of this Agreement at the conclusion of any inspections it performs. This obligation shall survive the cancellation of this Agreement. Notwithstanding anything in the contrary contained in this Contract which entitled Buyer to receive the return of its Deposit, the Seller shall be entitled to retain the Deposit, or portion thereof, in the event and to the extent Buyer fails to comply with its indemnification and restoration obligations contained in this Section of the Contract. 13.2 Intentionally omitted. 13.3 Governing Documents. During the Inspection Period, Seller and Buyer shall negotiate the terms, covenants, conditions, and other requirements contained in the Declaration and other instruments which are necessary to define the Buyer's use rights in the real property, including license and easement agreements with respect to appurtenances to the Unit, such as parking spaces, storage areas, air conditioning and heating areas, venting, and garbage collection area. Prior to the expiration of the Inspection Period, Seller and Buyer shall enter into the required license and easement agreements, and agree to the form and substance of the Declaration, proposed operating budget for the Garage. The form and substance of each of the above described documents shall be satisfactory to the Seller's and Buyer's counsel, respectively, in their sole and absolute discretion. In the event Seller and Buyer fail to agree upon the form and substance of the aforedescribed documents before the expiration of the Inspection Period, then either Seller or Buyer may cancel this Contract by delivering to the other party written notice of cancellation within fourteen (14) calendar days after the expiration of the Inspection Period, whereupon the Deposit and accrued interest, if any, shall be promptly be paid to Buyer. Notwithstanding anything to the contrary in this Section 13.3, Buyer acknowledges that the Unit is located within the Seller's public parking garage and that the upper boundary limit of the Unit also serves as the second floor of the Garage on and upon which there will be public vehicular and pedestrian access and traffic. Buyer agrees that, at minimum, the following use restrictions will be included in the Declaration. 1. Buyer's use of the Unit shall be restricted to any use permitted by the applicable zoning code and occupancy regulations imposed by governmental authority, unless otherwise agreed upon by Buyer and Seller. However, Seller makes no representation or warranty that the Unit can be utilized in the manner which is contemplated by Buyer and such use shall be subject to all applicable governmental rules, laws, regulations and ordinances. 2. The times of operation of the Buyer's business and deliveries to the Unit shall be regulated to protect the peaceful and quiet enjoyment of adjoining property owners, consistent with applicable governmental rules, laws, ordinances, and regulations. 3. Intentionally omitted. 4. Buyer shall have no right to use the name "Old School Square" except to identify the physical street address of the Unit. 5. Buyer's use of and activities in the Unit and Garage shall not, directly or indirectly, cause the bonds which were utilized by Seller to finance the Garage to lose their present exemption or qualified status. 6. Buyer to be provided with the permanent right to twenty (20) assigned parking spaces and thirty (30) parking passes in the Garage, such rights to run with the land and be incorporated with the ownership of the Unit. 13.4 This Contract is contingent upon the Seller's determination during the Inspection Period, through the opinion of Seller's bond counsel, that the covenants, terms, conditions, and responsibilities contained in this Contract and the documents referenced in Section 13.3 of this Contract, shall not cause, either directly or indirectly, cause the bonds which were utilized by Seller to finance the Garage to lose their present exemption or qualified status. In the event Seller determines that any of the aforedescribed agreed upon conditions, restrictions, covenants, responsibilities or obligations will, directly or indirectly, the bonds to lose their exemption or qualified status, then Seller, at Seller's option, may cancel this Contact during the Inspection Period by delivering to Buyer written notice of cancellation. 14. Buyer represents the it has the authority to enter into this Agreement, and the financial ability to close this transaction in accordance with its terms, and it has been properly organized and is in good standing as a Florida corporation. 15. Seller agrees to cooperate should Buyer elect to purchase the Unit as part of a like -kind exchange under IRC Section 1031. Buyer's contemplated exchange shall not impose upon Seller any additional liability or financial obligation, and Buyer agrees to hold Seller harmless from any liability that might arise from such exchange. This Agreement shall not be subject to or contingent upon Buyer's ability to effectuate the exchange. In the event any exchange contemplated by Buyer should fail to occur, for whatever reason, the Contract shall nonetheless be consummated as provided herein. 16. Any notice, request, demand, instruction or other communication to be given to either party hereunder, except where required to be delivered at the Closing, shall be copied as set forth below: Seller: R. Brian Shutt, Esq. City Attorney City of Delray Beach 200 N. W. 1St Avenue Delray Beach, Florida 33444 Telephone: (561) 243 -7091 Facsimile: (561) 278 -4755 With a copy to: Steven D. Rubin, Esq. 980 North Federal Highway, Suite 434 Boca Raton, Florida 33432 Telephone: (561) 391 -7992 Facsimile: (561) 347 -0828 e -mail: rubinlawflorida.com Buyer's Counsel: Jane C. Rankin, Esq. Kubicki Draper One East Broward Boulevard, Suite 1600 Fort Lauderdale, Florida 33301 Telephone: (954) 768 -0011 Facsimile: (954) 768 -0111 IN WITNESS WHEREOF, the Parties have executed this Contract on the dates set forth under their respective signatures. SELLER: Witness Witness BUYER: Witness Witness CITY OF DELRAY BEACH, Florida Municipal Corporation M Address: 200 N. W. I` Avenue Delray Beach, Florida 33444 (561) Date: The Law. Offices of Kanner Pantaluga, P.A., a Florida Corporation Address: 101 Pugliese Way, 1St Floor Delray Beach, FL 33444 Fax: 561- I: Date: RESOLUTION NO. 09 -13 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO SELL TO BUYER CERTAIN REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, AS DESCRIBED HEREIN, HEREBY INCORPORATING AND ACCEPTING THE CONTRACT STATING THE TERMS AND CONDITIONS FOR THE SALE AND PURCHASE BETWEEN THE BUYER AND THE CITY OF DELRAY BEACH, FLORIDA. WHEREAS, the City of Delray Beach, Florida, wishes to sell certain property located at the S.W. corner of Pineapple Grove Way and Northeast 1 st Street; and WHEREAS, the Buyer hereinafter named desires to buy the property for public purposes hereinafter described from the City of Delray Beach Florida; and WHEREAS, it is in the best interest of the City of Delray Beach, Florida, to sell said property. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City Commission of the City of Delray Beach, Florida, as Seller, hereby agrees to sell to S &F Acquisitions, Inc. a related entity of Schmier & Feurring Properties, Inc., as Buyer, interior space on the first floor of the Old School Square Parking Garage, for the purchase price of Two Million Five Hundred Thousand and 00 /100 Dollars ($2,500,000.00), and other good and valuable consideration; said property being more particularly described as follows: See Exhibit "A" Section 2. That the terms and conditions contained in the contract for sale and purchase and addenda thereto between the City of Delray Beach, Florida, and the Buyer as hereinabove named are incorporated herein as Exhibit `B ". ATTEST: City Clerk PASSED AND ADOPTED in regular session on the day of , 2013. MAYOR EXHIBIT "A" OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE SURVEY, PLOT PLAN AND GRAPHIC DESCRIPTION OF IMPROVEMENTS LOCATION MAP SECTION 16, TOWNSHIP 46S, RANGE 43E, N.T.S. TABLE OF CONTENTS- REAL PROPERTY DESCRIPTION .............. SHEET 2 SKETCH OF SURVEY AND PLOT PLAN .............. SHEET 3 VERTICAL BOUNDARIES .............. SHEET 4 AIR CONDITIONING EASEMENT AREAS (2ND FLOOR) .............. SHEET 5 SKETCH OF AIR CONDITIONING EASEMENT AREAS (2ND FLOOR) .............. SHEET 6 SURVEYOR'S NOTES .............. SHEET 7 SURVEYOR'S CERTIFICATE .............. SHEET 8 —_ =_ Heller - Weaver and Sheremeta inc. SCALE: NIAZU13 1- 24.13 -PER CITI° COMME TTORNEYS DRAWN BY; WADE En ineers ... Surveyors and Mappers COMMENTS 310 S.E.1 st Street, Suite 5 Delray Beach, Florida 33483 CHECKED BY: SHEET: D. LAAK 1 OF 8 L.B. NO. 0003W (561) 243 -8700 - Phone (561) 243 -8777 - Fax FILE NO. 13- 15396.115 -SS10 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE AIR CONDITIONING EASEMENT AREA (2ND FLOOR) DESCRIPTION: I AIR CONDITIONING EASEMENT AREAS (2ND FLOOR) THAT PORTION OF REAL PROPERTY LYING ABOVE THE FINISHED FLOOR OF THE SECOND FLOOR GARAGE PARKING AREA HAVING AN APPROXIMATE ELEVATION OF 35.7, NATIONAL GEODETIC VERTICAL DATUM (NGVD) 1929 AND BELOW THE TOP OF THE PARAPET WALL OF THE SECOND FLOOR GARAGE AREA HAVING AN APPROXIMATE ELEVATION OF 39.2, NATIONAL GEODETIC VERTICAL DATUM (NGVD) 1929 LYING WITHIN A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 111, AT PAGE 46, AS RECORD IN THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULAR DESCRIBED AS FOLLOWS: EASEMENT AREA 1 COMMENCE AT THE NORTHEAST CORNER OF TRACT "A-, OLD SCHOOL SQUARE PARKING GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE S00 °00'00 "W ALONG THE EAST LINE OF SAID TRACT "A' FOR A DISTANCE OF 20.77 FEET; THENCE DEPARTING FROM THE EAST LINE OF SAID TRACT "A" N90 °00'00 "W FOR A DISTANCE OF 11.13 FEET; THENCE S00 °00'00 "W FOR 51.08 FEET TO A POINT TO BE KNOWN HEREINAFTER AS POINT "A "; THENCE CONTINUE S00 °00'00 "W FOR 4.92 FEET; THENCE N90 °00'00 "W FOR 1.67 FEET TO THE POINT OF BEGINNING; THENCE S00 °00'00 "W FOR 9.00 FEET; THENCE N90 °00'00 "W FOR 16.25 FEET; THENCE N00 °00'00 "E FOR 9.00 FEET; THENCE S90 °00'0 "E FOR 16.25 FEET TO THE POINT OF BEGINNING. TOGETHER WITH EASEMENT AREA 2 COMMENCE AT THE AFOREMENTIONED POINT "A "; THENCE N90 °00'00 "W FOR 45.92 FEET TO THE POINT OF BEGINNING; THENCE S00 "00'00 "W FOR 9.00 FEET; THENCE N90 °00'00 "W FOR 9.00 FEET; THENCE N00 °00'00 "E FOR 9.00 FEET; THENCE S90 "00'00 "E FOR 9.00 FEET TO THE POINT OF BEGINNING. TOGETHER WITH EASEMENT AREA 3 COMMENCE AT THE NORTHEAST CORNER OF TRACT -A", OLD SCHOOL SQUARE PARKING GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE S00 °00'00 "W ALONG THE EAST LINE OF SAID TRACT A FOR A DISTANCE OF 20.77 FEET; THENCE DEPARTING FROM THE EAST LINE OF SAID TRACT "A" N90 °00'00 "W FOR A DISTANCE OF 11.13 FEET TO THE POINT OF BEGINNING, THENCE SOO- 00'00 "W FOR 15.66 FEET; THENCE N90 °00'00 "W FOR 18.92 FEET; THENCE N00 °00'00 "E FOR 17.33 FEET; THENCE S90 °00'00 "E FOR 17.25 FEET;THENCE S00 "00'00 "W FOR 1.67 FEET; THENCE S90 °00'00 "E FOR 1.67 FEET TO THE POINT OF BEGINNING. SAID LANDS SITUATE WITHIN THE CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA. NOTE: VERTICAL ELEVATIONS ARE REFERENCED TO THE NATIONAL GEODATIC VERTICAL DATUM OF 1929 (NGVD 1929) HtvISIONS I DATE: 1013 1-24-13-PER CITYS COMMENT =-_- Heller - Weaver and Sheremetat Inc, SWNBY: WROLLE 24- 13-PERATTORNEYS'S ;� .', Y ' -- COMMENTS Engineers ... Surveyors and Mappers CHECKED BY: D. LAAK 310 S.E.1 st Street, Suite 5 Delray Beach, Florida 33483 SHEET: 6 OF 8 L.B. na 000ma® (561) 243-8700 - Phone (561) 243 -8777 - Fax FILE NO. 13. 15396,115 -SS15 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE REAL PROPERTY DESCRIPTION A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE (PLAT BOOK 111, PAGE 46) BEING IN SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA REAL PROPERTY DESCRIPTION: THAT PORTION OF REAL PROPERTY LYING ABOVE A VERTICAL ELEVATION OF 11.9 FEET, NATIONAL GEODETIC VERTICAL DATUM OF 1929 (NGVD 1929) AND BELOW A VERTICAL ELEVATION OF 30.6 FEET NATIONAL GEODETIC VERTICAL DATUM OF 1929 (NGVD 1929) LYING WITHIN A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULAR DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHEAST CORNER OF TRACT "A", OLD SCHOOL SQUARE PARKING GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE S00 °00'00 "W ALONG THE EAST LINE OF SAID TRACT "A" FOR A DISTANCE OF 20.77 FEET; THENCE DEPARTING FROM THE EAST LINE OF SAID TRACT " A" N90 °00'00 "W FOR A DISTANCE OF 10.97 FEET TO THE POINT OF BEGINNING; THENCE S00 °00'00 "E FOR 59.50 FEET; THENCE N90 °00'00 "W FOR 1.83 FEET TO A POINT TO BE KNOWN HEREINAFTER AS POINT "A "; THENCE S00 °00'00 "W FOR 2.00 FEET; THENCE S90 °00'00 "E FOR 1.83 FEET; THENCE S00 °00'00 "W FOR 59.00 FEET; THENCE N90 °00'00 "W FOR 1.83 FEET TO A POINT TO BE KNOW HEREINAFTER AS POINT "B'; THENCE S00 °00'00 "W FOR 2.00 FEET; THENCE S90 °00'00 "E FOR 1.83 FEET; THENCE S00 °00'00 "W FOR 16.75 FEET; THENCE N90 °00'09'W FOR 55.42 FEET; THENCE N00 °00'00 "E FOR 2.75 FEET; THENCE S90 °00'00 "E FOR 0.33 FEET; THENCE N00 °00'00 "E FOR 14.58 FEET; THENCE S90 °00'00 "E FOR 9.00 FEET; THENCE S00 °00'00 "W FOR 0.58 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 2.00 FEET; THENCE N90 °00'00 "W FOR 2.00 FEET; THENCE SOO °00'00 "W FOR 0.58 FEET; THENCE N90 °00'00 "W FOR 9.00 FEET; THENCE N00 °0900 "E FOR 4.58 FEET; THENCE N90 °00'00 "W FOR 1.00 FEET; THENCE S00 °00'00 "W FOR 4.58 FEET; THENCE N90 °00'00 "W FOR 7.35 FEET; THENCE N00 °00'00 "E FOR 60.17 FEET; THENCE S90 °00'00 "E FOR 7.35 FEET; THENCE S00 °00'00 "W FOR 4.58 FEET; THENCE S90 °00'00 "E FOR 1.00 FEET; THENCE N00 °00'00 "E FOR 4.58 FEET; THENCE S90 °00'00 "E FOR 9.00 FEET; THENCE S00 °00'00 "W FOR 0.58 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 2.00 FEET; THENCE N90 °00'00 "W FOR 2.00 FEET; THENCE S00 °00'00 "W FOR 0.58 FEET; THENCE N90 °00'00 "W FOR 9.00 FEET; THENCE N00 °00'00 "E FOR 14.58 FEET; THENCE N90 °00'00 "W FOR 1.00 FEET; THENCE SOO °00'00 "W FOR 5.83 FEET; THENCE N90 °00'00 "W FOR 38.00 FEET; THENCE N00 °00'00 "E FOR 53.16 FEET; THENCE S90 °00'00 "E FOR 13.00 FEET; THENCE SOW00'00 "W FOR 1.83 FEET; THENCE S90 °0900 "E FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 34.00 FEET; THENCE S00 °00'00 "W FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 22.00 FEET; THENCE S00 °00'00 "W FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 1.83 FEET; THENCE S90 "00'00 "E FOR 17.25 FEET; THENCE SOO °00'00 "W FOR 1.83 FEET; THENCE S90 °00'00 "E FOR 1.83 FEET; TO THE POINT OF BEGINNING. LESS THE FOLLOWING AREAS CONTAINING STRUCTURAL COMPONENTS; COMMENCE AT THE AFOREMENTIONED POINT "A "; THENCE N90 "00'OWW FOR 16.25 FEET TO THE POINT OF BEGINNING; THENCE S00 "00'00 "W FOR 2.00 FEET; THENCE N90 °00'00 "W FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 2.00 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET TO THE POINT OF BEGINNING. AND LESS COMMENCE AT THE AFOREMENTIONED POINT "B'; THENCE N90 °00'00 "W FOR 16.25 FEET TO THE POINT OF BEGINNING; THENCE S00 °00'00 "W FOR 2.00 FEET; THENCE N90 °00'00 "W FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 2.00 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET TO THE POINT OF BEGINNING. SAID LANDS SITUATE WITHIN THE CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA. CONTAINING 10,289 SQUARE FEET OR 0.24 ACRES OF LAND, MORE OR LESS. REVISIONS 1 DATE: 21113 1-24-13-PER CIT."S 213- 13 NEYS'SE Heller - Weaverand Sheremetat inc. DRAWN BY: WROLLE COMMENTS :.i 4:t ;:; Engineers ... Surveyors and Mappers CHECKED BY: D.LAAK - 310 S.E. list Street, Suite 5 Delray Beach, Florida 33483 SHEET: z OF e L.S. NO. 0003W (561) 243 -8700 - Phone (561) 243-8777 - Fax FILE NO. 13- 15395.115-SS11 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE SURVEYOR'S NOTES NOTES: 1) THIS SKETCH AND LEGAL DESCRIPTION DOES NOT REPRESENT A FIELD SURVEY ( "THIS IS NOT A SURVEY "). 2) THIS SKETCH AND LEGAL DESCRIPTION IS NOT VALID WITHOUT THE ORIGINAL SIGNATURE AND RAISED EMBOSSED SEAL OF A FLORIDA REGISTERED LAND SURVEYOR. 3) BEARINGS SHOWN HEREON ARE BASED UPON THE CENTERLINE OF N.E. 1ST AVENUE HAVING AN ASSUMED BEARING OF N00 °00'00 "E. 4) ELEVATIONS SHOWN HEREON ARE BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929. 5) BENCH MARKS USED: PALM BEACH COUNTY BENCH MARK "D -32" ELEVATION 20.353' 6) SYMBOLS SHOWN HEREON ARE NOT TO SCALE. 7) DISTANCES SHOWN HEREON WERE DERIVED FROM ARCHITECTURE PLANS PREPARED BY PGAL ARCHITECTURE UNDER PGAL PROJECT NO. 718 - 04014.00, DATE OF ISSUE 4/12106. THESE DISTANCES WERE FIELD VERIFIED 10/15/07 UNDER W.O. 15396.110 AND SAID DISTANCES WERE FOUND TO BE WITHIN 0.21' OF THE DIMENSIONING SHOWN HEREON. LEGEND: . HWS HELLER- WEAVER AND SHEREMETA, INC. O.R.B. OFFICIAL RECORD BOOK P.B. PLAT BOOK PG. PAGE P.O.B. POINT OF BEGINNING EL. ELEVATION N.T.S. NOT TO SCALE S.F. SQUARE FEET REVISIONS _� - -, Heller - Weaver and Sheremetal inc. I c -a' <�; _ r :: _ Engineers ... Surveyors and Mappers - - 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33483 L.B. ao'0003W (561) 243 -8700 - Phone (561) 243 -8777 - Fax DATE: 24 -2013 1- 2413- PERCITr'SCOMh1ENTS 24- 13- PER ATTORNEYS'S p�VyNBY: WROLLE COMMENTS CHECKED BY: D.LAAK SHEET: 701`8 FILE NO. 13- 15396.115 -SS16 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE SKETCH OF SURVEY N A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE (PLAT BOOK 111, PAGE 46) BEING IN SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA O INDICATES LOCATION OF THE ELEVATION AT THE BOTTOM SKETCH OF SURVEY: OF THE STRUCTURAL BEAM NORTH WITHIN THE UNIT, SEE VERTICAL 20 15 10 5 0 10 20 BOUNDARY SHEET 6 OF 8 I j � > � N.E. 9 ST STREET �� , �• � � �� � t 6 � f�TT dN ' ;� .._ � - X78 -87' - 889°OB'� �yc�'� ♦ •� ,� J r ` , y" a �. •I�� I,.,. W Ob r Oy i MIT OF RETAIL S90.00.00"E 590.00.00" 34.00• 22.00' 800'01 0o w 30D•00'o0"w 1.83' 1.83' 00'00"E-/ 390.00'00 "E. 2.00' 2.00' N00 °00'00 "E N00°00.00"E 1.83' 1.83' N00'00'00 "E 300'00'00"W 1.83' 1.63' S90'00100"E 590'00'00 "E 2.00• 1.83' S00100100"W 1.63' - 590.00'00 "E N90100100"w 13.00' 1.00' N90.00'00"w 8001001001W W 9.00' 34' 5.83' o iWO01w g m S00100'0w%V - 0 v 0.58' �r g N90.001001W Z 2.00' NOO'00'00 "E 2.00' s90 b0' , 2.00' 300.08100will11 0.58' 390'00'00 "E 9.00' N00.00'OCrE 4.88' 1.00' 900'00100•'W 4.69' 390.00'00"E 7.36' 800,00,00"W 0.58' P.O.B. 390.00'00 "E - 2.00' N 90.00'00' W 2.00' `NOO'DO'DO "E 2.00' - 890'00.00 "E 17x6• �,: � °. N NOTINCLUDED P.O.B. N90100100•W 1.84' POINT "A" 1500.00'00• 2.00' N90 00'00 "W 16.25 S90'0 0'00"E 1.84' Soo'oo'09'W 2.00' N90'00'00"W 2.00' N00.00'00"E 2.00' 390.00'00 "E 2.00' N90'00'00 -W 1.84' POINT "B 800'00100'W 2.00 590.00.99• 1.84 N_90'00'00 16.25' 800°00'0 2.00' c t�< . i ` I o C! -. 3 -" o v YjIL i - �I 1� i s90 b0' , 2.00' 300.08100will11 0.58' 390'00'00 "E 9.00' N00.00'OCrE 4.88' 1.00' 900'00100•'W 4.69' 390.00'00"E 7.36' 800,00,00"W 0.58' P.O.B. 390.00'00 "E - 2.00' N 90.00'00' W 2.00' `NOO'DO'DO "E 2.00' - 890'00.00 "E 17x6• �,: � °. N NOTINCLUDED P.O.B. N90100100•W 1.84' POINT "A" 1500.00'00• 2.00' N90 00'00 "W 16.25 S90'0 0'00"E 1.84' Soo'oo'09'W 2.00' N90'00'00"W 2.00' N00.00'00"E 2.00' 390.00'00 "E 2.00' N90'00'00 -W 1.84' POINT "B 800'00100'W 2.00 590.00.99• 1.84 N_90'00'00 16.25' 800°00'0 2.00' } 0 2.00 300.00'00 " o 1 e 'W � i 0 0.58' N00'" 00'00 E e i INDICATES LIMITS OF RETAIL SPACE 3ARAGE AND PARK S9' ;PLAT BOOK 111, PAGE-' N90 °00'0 "W 10.97' DINT O BE JNNINID v EAST LINq OF TRACT "A�' \',. (PLAT B09K 111, PAGE 46j�',, LIMITS OF RETAIL SPA ;5 I III !%ti Z (. i I , JDED r �4 ® INDICATES SERVICE CORRIDOR EASEMENT AREA 1 -2413 PER CITY 5 COMMENTS =- ' -- - -� Heller - Weaver and Sheremeta inc. SCALE: ; -0 =20' fir. -T �. 2 -0.13 -PER ATTORNEYS'S _,. �••, � „� „A :'��^ , I DRAWN BY: W.ROLLE COMMENTS Engineers ... Surveyors and Mappers CHECKED BY: D, LAAK 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33463 SHEET: 3 OF B L.B. NO. 0003"9 (561) 243 -8700 - Phone (561) 243 -8777 - Fax FILE NO. 13- 15396.115-SS12 c t�< . i ` I o C! -. 3 -" o v YjIL } 0 2.00 300.00'00 " o 1 e 'W � i 0 0.58' N00'" 00'00 E e i INDICATES LIMITS OF RETAIL SPACE 3ARAGE AND PARK S9' ;PLAT BOOK 111, PAGE-' N90 °00'0 "W 10.97' DINT O BE JNNINID v EAST LINq OF TRACT "A�' \',. (PLAT B09K 111, PAGE 46j�',, LIMITS OF RETAIL SPA ;5 I III !%ti Z (. i I , JDED r �4 ® INDICATES SERVICE CORRIDOR EASEMENT AREA 1 -2413 PER CITY 5 COMMENTS =- ' -- - -� Heller - Weaver and Sheremeta inc. SCALE: ; -0 =20' fir. -T �. 2 -0.13 -PER ATTORNEYS'S _,. �••, � „� „A :'��^ , I DRAWN BY: W.ROLLE COMMENTS Engineers ... Surveyors and Mappers CHECKED BY: D, LAAK 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33463 SHEET: 3 OF B L.B. NO. 0003"9 (561) 243 -8700 - Phone (561) 243 -8777 - Fax FILE NO. 13- 15396.115-SS12 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE SURVEYOR'S CERTIFICATE THIS CERTIFICATE MADE THE 24th DAY OF JANUARY, 2013 BY THE UNDERSIGNED SURVEYOR IS MADE PURSUANT TO THE PROVISIONS OF SECTION 718.104 OF THE FLORIDA STATUES, AS AMENDED, AND IS A CERTIFICATION THAT SHEETS 1 THROUGH 9 ARE AN ACCURATE REPRESENTATION OF THE IMPROVEMENTS DESCRIBED THEREIN AND THAT THE CONSTRUCTION OF SAID IMPROVEMENTS IS SUBSTANTIALLY COMPLETE SO THAT SUCH MATERIAL, TOGETHER WITH THE WORDING IN THE DECLARATION OF RETAIL SPACE FOR OLD SCHOOL SQUARE GARAGE RETAIL NORTHEAST CODOMINIUM IS AN ACCURATE REPRESENTATION OF THE LOCATION AND DIMENSIONS OF THE IMPROVEMENTS DESCRIBED AND THAT THE IDENTIFICATION, LOCATION AND DIMENSIONS OF THE COMMON ELEMENTS AND EACH UNIT CAN BE DETERMINED FROM THESE MATERIALS HELLER- WEAVER AND SHEREMETA, INC. FLORIDA STATE L.B. NO. 3449 BY: DANIEL C. LAAK PROFESSIONAL SURVEYOR AND MAPPER FLORIDA REG. NO. 5118 1- 24-13 -PER QTY'S COMMENT — — Heller - Weaver and Sheremeta inc. SCALE: �"` ` -0� °" WA 2A-13-PER ATTORNEYS'S COMMENTS °.�. 1i�= 1 Engineers ... Surveyors and Mappers DRAWN BY: W.ROLLE 310 S. E.1 st Street, Suite 5 Delray Beach, Florida 33483 CHECKED BY: D.LAAK SHEEP. 8 OF 8 LB. NO. 00,-5W (561) 243 -8700 - Phone (561) 243-8777 - Fax FILE NO. 13- 15396.115SS17 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE AIR CONDITIONING EASEMENT AREA (2ND FLOOR) 10' GRAPHIC SCALE IN FEET POINT OF COMMENCEMENT NORTHEAST CORNER OF TRACT "A" OLD SCHOOL SQUARE PARKING — GARAGE AND PARK SITE (PLAT BOOK 111, PAGE 46) 10' 17.25' S90 °00'00 "E r---- - - - - -- I W I S00 °00'00 '11V I h6 m c I EL. =35.7' io ° I S90 °00'00 "E �i c °o °z I 1.67' �I 0 I i AIR CONDITIONING EASEMENT AREA 3 - N90100100•'W 18.92' I POINT "A" o 0 AIR CONDITIONING °o EASEMENT AREA 2 I °o N NORTH I 0 o: °ol 1 °I I rz CS: U 11.13' NI 9 N90 °00'00yV w 1 Z J U) u� S90 °00'00 "E 9.00' POINT OF BEGINNING all POINT OF BEGINNING „� I I 45.92 N90 °00'00 "W I I 16.25' S001001001W -- S00 °00'00 "W S90 °00'00 "E 4.92' I I 9.00' r- - - - - -- I L _ J N90 °00'00"W I - -- I 1.60 N00 °00.00"E - -I 300 °00100"W 7-1 N90 °00'00"VY 9.00• L _ J 9.00' 9.00' N90 °00100 "W N00 °00.00 "E 16.25' 9.00' AIR CONDITIONING EASEMENT AREA 1 1.24.13�ER CITY'S COMMENTS —. ' �r ' Heller - Weaver and Sheremeta inc. = E -i ' `', l' "' 1 T-;t -,; + .. Engineers ... Surveyors and Mappers ... : _ -, ,,. g Y 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33483 L.B. No.'oauaae (561) 243 -6700 - Phone (561) 243 -8777 - Fax `/A SCALE: SCALE: NIA 24- 13- PERATTORNEYS'S DRAWN BY: W.ROLLE COMMENTS CHECKED BY: D. LAAK SHEET: 4 OF 8 FILE NO. 13- 15396.115 -SS13 OLD SCHOOL SQUARE GARAGE RETAIL EAST RETAIL SPACE VERTICAL BOUNDARIES EL. = 39.2' 2ND FLOOR TOP OF PARAPET WALL EL. = 35.7' 2ND FLOOR AIR CONDITIONING EASEMENT AREA EL. = 30.6' AND UPPER LIMITS OF RETAIL SPACE Iloilo ■ ■II■ gnomon 111111 NINON■ 11011 FLOOR EL. = 16.2' FLOOR EL. m 17.9' EL. = 11.9' LOWER LIMIT OF UNIT AND LOWER LIMITS OF RETAIL SPACE VERTICAL BOUNDARIES N.T.S. ELEVATION OF STRUCTURAL BEAM SCHEDULE EL = 29.3' EL = 30.8' EL = 29.3' EL = 30.8' NOTE: 1) ELEVATIONS SHOWN HEREON ARE BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929. 2) BENCH MARKS USED: PALM BEACH COUNTY BENCH MARK "D -32" ELEVATION 20.353' fitCITY'S — — � ,� _ Heller - Weaver and Sheremeta inc. r, ;= 4r1�'' =- Engineers ... Surveyors and Mappers 310 S. E. 1st Street, Suite 5 Delray Beach, Florida 33483 L.B. NO.'WnA? (561) 243 -8700 - Phone (561) 243 -8777 - Fax DATE. 2.T.S. 1- 24- 13-PER CITY'S COMI•.1E SCALE: N.T.S. 2-013- PERATTORNEYS'S DRAWN BY: W.ROLLE COMMENTS CHECKED BY: D. LARK SHEET: 5 OF 8 FILE NO. 13- 15395.115•SS14 EXHIBIT "B" FIGURES CONTAINED IN ANY BUDGET DELIVERED TO THE BUYER PREPARED IN CONNECTION WITH THIS CONTRACT ARE ESTIMATES ONLY AND REPRESENT AN APPROXIMATION OF FUTURE EXPENSES BASED ON FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF THE PREPARATION OF THE BUDGET BY THE SELLER. ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH CHANGES IN COST DO NOT CONSTITUTE MATERIAL OR ADVERSE CHANGES IN THIS CONTRACT. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS CONTRACT AND THE DOCUMENTS REFERENCED HEREIN. CONTRACT FOR PURCHASE AND SALE OF OLD SCHOOL SQUARE GARAGE RETAIL AIRSPACE 1. PURCHASE AND SALE This Contract for Sale and Purchase of OLD SCHOOL SQUARE GARAGE RETAIL AIRSPACE, ( "Contract ") is made and entered into by and between CITY OF DELRAY BEACH, a Florida Municipal Corporation whose address is c/o City Attorney, 200 N. W. 1 St Avenue, Delray Beach, Florida 33444 (561) 243 -7090 ( "Seller "), and S & F Acquisitions, Inc., a Florida corporation (a related entity of SCHMIER & FEURRING PROPERTIES INC.) ( "Buyer "). Purchase and Sale. Purchaser hereby agrees to purchase and Seller hereby agrees to sell and convey to Purchaser all of that certain parcel of real property being situated in Palm Beach County, Florida comprising a portion of the subsurface land and a portion of the airspace on and above a portion of the land ( "Unit "), together with easements for ingress, egress, and physical support for the improvement which has been developed within and adjacent to the airspace legal description, as more particularly set forth in the Declaration of Covenants, Easements and Restrictions for Old School Square ( "Declaration "), which shall be recorded in the Public Records of Palm Beach County, Florida prior to the conveyance of the Unit by the Seller to Buyer. The Unit is located in the airspace of the Old School Square Garage ( "Garage ") from just below the surface of the land upward to just below the underside of the second floor parking slab, as more particularly described in the legal description of the Unit which is attached hereto and made a part hereof as Exhibit "1 ", and has a street address of 180 N. E. 1St Street, Delray Beach, Palm Beach County ( "County "), Florida 33444. 2. DESCRIPTION OF PROPERTY 2.1 The Unit contains approximately ten thousand four hundred (10,400) gross square feet of space. There is no personal property included in this sale. 3. PURCHASE PRICE 2013 02 04 Schmier Contract Q Clean Page 1 of 20 3.1 3.2 Purchase Price of the Unit (a) Base Purchase Price, including Easements, Licenses for Storage, Generator, A/C, and Garbage Disposal Areas (b) Parking Rights "Total Purchase Price" of the Unit $ 2,250,000.00 $ $250,000.00 $ 2,500,000.00 Payment Schedule. Total Purchase Price of the Unit shall be payable as follows: (A) A deposit in the amount of Fifty Thousand and no /100ths Dollars ($50,000.00) paid to Escrow Agent upon Buyer's execution of this Contract $ 50,000.00 (B) Additional deposit to be made to Escrow Agent within 47 days after Effective Date $ 200,000.00 ( C) Balance of the Total Purchase Price of the Unit shall be due at closing ( "Final Payment "), subject to adjustments and prorations and shall be paid in the form of a U. S. Bank wire transfer in United States funds $ 2,250,000.00 The foregoing sums deposited by Buyer hereunder are collectively referred to herein as the "Deposit ". 3.3 This is a cash transaction with no contingencies for financing. 4. CLOSING, CLOSING EXPENSES AND OTHER EXPENSES 4.1 Closing Date and Possession. The "Closing" is the conveyance of the Unit to Buyer as evidenced by the delivery of the deed transferring title. The closing date ( "Closing Date ") shall be on or before sixty (60) days after the expiration of the Inspection Period which is defined in Section 13 of this Contract. Buyer shall close on such Closing date. Seller is authorized to postpone the date of the closing for -not more than thirty (30) days at its discretion. Seller must, however, give Buyer at least thirty (30) days notice of the new Closing Date. Any new notice of Closing may be given verbally, by telephone, telegraph, telex, telefax, mail, or other means of communication at Seller's option. An affidavit of one of Seller's employees or agents that such notice was given will be conclusive for purposes of proving that notice was given. All notices will be given to Buyer at the address or by use of the telephone number(s) specified in this 2013 02 04 Schmier_Contract v2 Clean Page 2 of 20 Contract unless Seller has received written notice from Buyer of any change therein prior to the date notice of Closing is given. The fact that Buyer fails to receive the new Closing notice because Buyer has failed to advise Seller of any changes of address or phone number, or because Buyer has failed to pick up a letter when Buyer has been advised of an attempted delivery or for any other reason, shall not relieve Buyer of Buyer's obligation to close on the scheduled date, unless Seller otherwise agrees in writing to postpone the Closing Date. If Seller agrees in writing to reschedule the Closing Date at Buyer's request or because Buyer has failed to produce all corporate documents requested by Seller, or for any other reason (except for delay caused by Seller), Seller may impose a late charge equal to One Thousand One Hundred Dollars ($1,100.00) per day for every day from and after the original Closing Date through the date that the transaction closes, and prorations shall be as of the original Closing Date. Buyer agrees the late charge is appropriate in order to cover Seller's administrative and other expenses resulting from a delay in Closing. Seller is not required to agree to reschedule the Closing Date, but Seller may reschedule Closing in Seller's sole discretion. Buyer shall be in default of this Contract if Buyer fails to close as scheduled. Buyer shall be given possession of the Unit, subject to existing leases and parties presently in possession, at Closing after Final Payment is received. Until such time, Buyer shall not be entitled to possession of the Unit or store any property therein. The Closing shall take place at an office designated by Seller which is located in Palm Beach County, Florida. 4.2(i) Closing and Other Costs. On the Closing Date, Buyer shall pay the balance of the Total Purchase Price of the Unit, any and all sums due and owing sums under this Contract, and the following sums: (A) A prorated monthly Assessment payable to Seller, if Seller has prepaid the same, based upon the Unit's share of total costs of maintenance, repair and replacement of the Shared Facilities as described in the Declaration. Buyer understands and acknowledges that the Seller's Annual Budget for the Shared Facilities is only an estimate of what it presently costs to maintain, repair and replace the Shared Facilities. (B) The monthly Assessment, payable to the Seller for the Unit for the next monthly assessment period commencing after Closing, based upon the Unit's share of the total Assessment as described in the Declaration and determined by the Seller's Annual Budget. ( C) If Buyer executes a mortgage or other loan, Buyer shall be obligated to pay all mortgage or loan costs and expenses, including but not limited to, points, lender's origination fee, private mortgage insurance costs, intangible tax, documentary stamp tax, survey charge, credit report, recording charges, prepaid items such as taxes, insurance, interest and escrow, mortgagee's abstract of title insurance costs, mortgagee's attorneys' fees, and all sums deducted from the gross amount of the mortgage by the lender. This Contract is not contingent on Buyer obtaining a mortgage or any other financing. (D) A closing charge, payable to Seller, in a sum equal to one and three tenths 2013 02 04 Schmier Contract Q Clean Page 3 of 20 percent (1.3 %) of the Total Purchase Price of the Unit, a portion of which will be used to pay the cost of recording the Special Warranty Deed, and a portion of Seller's legal and administrative expenses associated with the transaction. (E) Real estate taxes, Solid Waste Authority tax assessments, special tax assessments, and other proratable items shall be prorated as of the date of Closing. Ad valorem taxes are prorated from January through December 31 of the same calendar year. Non ad- valorem assessments are prorated from October 1 through September 30 of the following calendar year. Such taxes and assessments shall be prorated based on the current year's tax with allowance made for discount and exemptions. If Closing occurs on a date when the current year's millage is not fixed, and the current year's assessment is available, taxes shall be prorated based upon such assessment and the prior year's millage. If the current year's assessment is not available, then taxes shall be prorated based on the prior year's tax. Any tax proration based on an estimate shall at the request of either Seller or Buyer be subsequently readjusted upon receipt of the current year's tax bill. (F) Expenses incurred and/or advanced by Seller, if any, with written consent of Buyer, and all other costs and expenses for which Buyer is obligated under this Contract or the Declaration. (G) Additional out of pocket or costs incurred by Seller as the result of Buyer's failure to close on the Closing Date as scheduled herein, or in the manner contemplated in this Contract, including but not limited to a document re- preparation fee and additional costs associated with closing the transaction by mail. (H) Utility connection fees, impact fees, utility deposits, permit fees and any other additional costs imposed by governmental authority. (I) Documentary stamp taxes on the Deed. 4.2(ii) Seller shall pay the following closing costs: (A) All real estate broker's fees, including without limitation, broker's fees which are due pursuant to Seller's right of sale listing agreement with Broker as provided in paragraph (7) of this Contract. (B) Owners' title insurance premium, title evidence and title examination fees. (C) Recording of Deed. 4.3 Deposits. Any reference to Deposit or Deposits herein shall refer collectively to all amounts deposited with Escrow Agent under this Agreement and under any addendum or 2013 02 04 Schmier_Contmd v2 Clean Page 4 of 20 amendment hereto, except for any deposits or payments made by Buyer to Seller for options, extras and/or upgrades. All monies deposited under the terms of this Agreement, except for the balance due at Closing, maybe made by check drawn on a Florida bank, subject to collection. All payments must be made in United States funds. 4.3.1 Buyer understands that Steven D. Rubin, Esq. ( "Escrow Agent "), whose address is 980 North Federal Highway, Suite 434, Boca Raton, Florida, and whose telephone number is (561) 391 -7992, will hold the Deposit in an escrow account (the "Escrow Account "), pursuant to the terms of this Agreement. Buyer may obtain a receipt for its Deposit from the Escrow Agent upon request. Unless Buyer is in default of this Contract, interest shall be paid to Buyer on the Deposit if it is deposited in an interest bearing account. Escrow Agent may deposit monies held in the Escrow Account in a savings or time deposit account at a bank or savings and loan association insured by an agency of the United States Government, with interest if any, paid to Buyer at Closing or to Seller if Seller is entitled to retain the Deposit as provided in this Contract. By signing this Agreement, Buyer expressly authorizes Escrow Agent to disburse Buyer's deposits held in the Escrow Account to Buyer's account at Closing, or to Seller upon Buyer's default. Escrow Agent shall not be responsible for any act or omission to act, unless occurring due to his sole gross negligence or willful malfeasance, and upon making delivery of the monies that Escrow Agent holds in accordance with the terms hereof, Escrow Agent shall have no further liability. 4.4 Closing Agent. Buyer acknowledges that Seller utilizes the services of Steven D. Rubin, Esq. ( "Closing Agent ") for this purchase and sale which services include, but are not limited to (I) pre - closing coordination with Seller, Buyer, Broker (defined below), Co- Broker, if any (defined below), Association, taxing authorities, and any applicable lender; (ii) preparation of the Special Warranty Deed and other closing documents; (iii) preparation of the closing statement; and (iv) conducting the Closing. The Closing Agent does not represent the Buyer as an attorney at law. The terms of this Paragraph 4 shall survive closing. 5. TITLE CONVEYANCE AND TITLE INSURANCE 5.1 Conveyance and Permitted Exceptions. Seller will convey to Buyer marketable and insurable title to the Property by Special Warranty Deed, subject only to the following "Permitted Exceptions ": encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey (unless such survey exception is removed by the title insurer upon certification of a survey meeting requirements for such removal); all applicable laws, zoning ordinances and regulations and other requirements imposed by governmental authorities; taxes for the year of closing and subsequent years, including taxes or assessments of any special taxing district; the Declaration, and all matters referenced in the Declaration and any supplements or amendments thereto; covenants, conditions, restrictions, limitations, reservations, and easements of record and matters shown or reflected on any recorded plat underlying the Unit as of the Closing Date (whether recorded by Seller, or any other person or entity), and any supplements and amendments thereto; any mortgage, construction loan and/or related security instruments executed by Buyer; any easements in connection with the providing of cable television services or 2013 02 04 Schmier_Contract Q Clean Page 5 of 20 utilities, or as may be required by the City of Delray Beach, Florida; any water, sewer or utility service agreement required by the City of Delray Beach, Florida; the Title Documents referenced in the Declaration; riparian and littoral rights of adjoining land owners; rights of the public, United States and Florida to the use of navigable water ways; and any adverse ownership claim by the State of Florida by right of sovereignty- to any portion of the lands underlying the Unit including submerged, filled and artificially exposed lands, and lands accreted to such lands; and parties presently in possession under written or oral leases, which the Buyer agrees to assume and perform, and for which the Buyer shall indemnify and hold Seller harmless from and after the Closing Date by instrument in form which is reasonably satisfactory to Seller's counsel. Buyer specifically gives authority to Seller to file and place among the Public Records of Palm Beach County, Florida all documents and instruments of any type or manner reasonably necessary to provide easements for ingress, egress, support, utilities and parking rights, provided the same shall not render title to the Unit unmarketable or prevent the use of the Unit as a law office. 5.2 Title Insurance. Within a reasonable time after Closing, Seller, at Seller's cost, shall furnish to Buyer a policy of owners' title insurance insuring that the recorded conveyance from Seller to Buyer has vested marketable title in Buyer subject to those matters set forth in this Contract; provided, however, that such policy will not insure title to any interest in personal property, riparian rights, littoral rights or sovereign rights. The owners' title insurance policy will be issued by a duly licensed title insurer of Seller's choosing. A commitment for the policy of title insurance will be furnished to Buyer at least seven (7) days prior to closing. Seller will pay the cost to record the Deed. 5.3 Defects; Title, Acceptance of Deed. Buyer shall have seven (7) days upon receipt of the title insurance commitment to review the same and report, in writing, any defects in title to Seller. In the event that any defects in title are timely reported to Seller, if necessary, the Closing Date shall be postponed and Seller shall make a good faith effort to cure such defects in title. If such defects in title are not cured within sixty (60) days after the date that the Buyer gives notice of such defects to the Seller, then Buyer shall either (I) accept title in its then existing condition, but without any reduction in the Total Purchase Price, or (ii) terminate this Contract. If this Contract is terminated under this paragraph, the Deposit shall be returned to Buyer and the Parties shall have no further rights or obligations hereunder. It is expressly agreed and understood that the Permitted Exceptions shall not be considered defects in title. It is further expressly agreed and understood that Seller shall not be obligated to expend funds in excess of $1,000.00 or to bring any lawsuits for the purpose of curing any defects in title. Buyer's acceptance of the aforementioned Special Warranty Deed shall be deemed to be full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Contract, except those which are herein specifically deemed to survive the Closing or which survive by operation of law. The terms of this Paragraph 5 shall survive Closing. 6. CONSTRUCTION OF THE UNIT 6.1 Buyer Acknowledgments. Buyer acknowledges and agrees that Buyer has not 2013 02 04 Schmier_ contract v2 Clean Page 6 of 20 relied upon any statements, verbal or written, published by or under the authority of Seller in advertising and promotional matter, including but not limited to newspaper, radio or television advertisements, but has based the decision solely to purchase solely upon Buyer's personal investigation and observation, and the other documents provided herewith. 6.2.1 Build -Out of Unit. The Unit is substantially complete as of the Effective Date of this Agreement. The Unit consists of partially unfinished space. Buyer shall, after the Closing Date, at its sole cost and expense, furnish, construct, install, and improve the Unit for Buyer's intended use with the plans and specifications which are subject to the prior written approval of City of Delray Beach and in accordance with all municipal codes. (the "Build- Out "). The Build -Out may include, without limitation: (a) Interior walls, partitions and wall coverings of the Unit. (b) The ceiling and all ceiling coverings of the Unit; and ( c) Any utility connections, electrical, plumbing, heating and air conditioning wires, conduits, pipes and fixtures, vents, generator, air conditioning and heating systems, and garbage disposal area and containers. (d) Buyer also acknowledges and agrees that Buyer may not make any changes to the physical appearance of the exterior of the Garage or the Unit without the express prior written approval of Seller, which approval may be withheld in Seller's absolute discretion. 6.2.2 Improvements to Exterior Facade, Buyer may, after the Closing Date, at its sole cost and expense, furnish, construct, install, and improve the Exterior Facade for Buyer's intended use with the plans and specifications which are subject to the prior written approval of City of Delray Beach as the owner and in accordance with all municipal codes. The Improvement may include, without limitation: (a) The addition of Signage on the NE 2nd Avenue and NE 1St Street Exterior Facades (b) Replacing the knee walls (c) Replacing the glass 6.3 No Warranties. SELLER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, INTENDED USE, WORKMANSHIP OR CONSTRUCTION RESPECTING THE UNIT, OR RELATED TO INGRESS, EGRESS AND SUPPORT OF THE UNIT, AND ALL FIXTURES OR ITEMS OF PERSONAL PROPERTY SOLD PURSUANT TO THIS AGREEMENT, OR ANY OTHER REAL OR PERSONAL PROPERTY WHATSOEVER CONVEYED HEREBY, OR LOCATED WITHIN THE UNIT WHETHER ARISING FROM THIS AGREEMENT, USAGE, TRADE, IMPOSED BY STATUTE, COURSE OF DEALING, CASE LAW, OR 2013 02 04 Schmier Contract v2 Clean Page 7 of 20 OTHERWISE SELLER SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER RESPECTING ANY DISCLAIMED WARRANTY, WHETHER SUCH DAMAGES ARE COMPENSATORY, GENERAL, SPECIAL, DIRECT, INDIRECT, SECONDARY, INCIDENTAL OR CONSEQUENTIAL. AS TO ANY IMPLIED WARRANTY THAT CANNOT BE DISCLAIMED ENTIRELY, ALL SECONDARY, INCIDENTAL AND CONSEQUENTIAL DAMAGES ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. SELLER GIVES NO EXPRESS WARRANTY ON THOSE ITEMS DEFINED AS "CONSUMER PRODUCTS" BY THE MAGNUSON -MOSS WARRANTY ACT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SELLER DISCLAIMS ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR (I) DAMAGE DUE TO OR MADE WORSE BY BUYER'S NEGLECT, MISUSE, ABNORMAL USE, IMPROPER UNIT MAINTENANCE AND /OR PREVENTATIVE MAINTENANCE; (II) DAMAGE DUE TO ORDINARY WEAR AND TEAR; (III) LOSS OR INJURY CAUSED IN ANY WAY BY THE ELEMENTS; (IV) IRREGULARITIES AND CONDITIONS RESULTING FROM OR THAT ARE CHARACTERISTIC OF AND COMMON TO THE MATERIALS USED; (V) CONDITIONS RESULTING FROM CONDENSATION ON, OR THE EXPANSION OR CONTRACTION OF MATERIALS; (VI) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PERSONAL INJURIES ARISING FROM A BREACH OF THIS OR ANY WARRANTY; AND (VII) ANY DISCOLORATION TO ANY PROPERTY THAT MAY BE CAUSED BY WATER WITHIN THE UNIT OR BUILDING. NORMAL SWELLING, EXPANSION AND CONTRACTION OF MATERIALS AND CONSTRUCTION, AND ANY CRACKS APPEARING AS A RESULT THEREOF OR AS A RESULT OF SETTLEMENT OF, IN OR ON THE UNIT SHALL NOT BE DEEMED TO BE CONSTRUCTION DEFECTS. UPON CLOSING, SELLER SHALL DELIVER TO BUYER ALL MANUFACTURERS' WARRANTIES, IF ANY. BUYER ACKNOWLEDGES THAT IT IS NOT A "CONSUMER" AS DEFINED UNDER ANY APPLICABLE CONSUMER PROTECTION LAW AND SELLER DOES NOT ADOPT OR ASSUME LIABILITY FOR ANY MANUFACTURER'S WARRANTY. THE UNIT IS SOLD "AS IS, WHERE IS ". Except as otherwise provided in this Agreement, the Seller does not make any warranty or representation regarding the title to the Unit except as to any warranties which will be contained in the Deed and in the other instruments to be delivered by Seller at Closing in accordance with this Agreement, and Seller does not make any representation or warranty either expressed or implied regarding condition, operability, safety, fitness for intended purpose, use, governmental requirements, development potential, utility availability, legal access, economic feasibility or any other matters whatsoever with respect to the Unit or the Garage, as defined in the Declaration. The Buyer specifically acknowledges and agrees that the Seller shall sell and Buyer shall purchase the Unit on an "AS IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except for the Seller's representations and warranties specifically set forth in this Agreement, Buyer is not relying on any representations or warranties of any kind whatsoever, express or implied, from Seller, or its respective agents, officers, or 2013 02 04 Schmier_Contract Q Clean Page 8 of 20 employees, as to any matters concerning the Unit, the Garage or related real property including, without limitation, any matters relating to (1) the quality, nature, adequacy, or physical condition of the Unit,(2) the quality, nature, adequacy or physical condition of soils, fill, geology, or any groundwater, (3) the existence, quality, nature, adequacy or physical condition of utilities serving the Unit, (4) the development potential, income potential, expenses of the Unit, (5) the Unit's value, use, habitability, or merchantability, (6) the fitness, suitability, or adequacy of the Unit for any particular use or purpose, (7) the zoning or other legal status of the Unit, (8) the compliance of the Unit or its operation with any applicable codes, laws, rules, regulations, statutes, ordinances, covenants, judgments, orders, directives, decisions, guidelines, conditions, or restrictions of any governmental or quasi - governmental entity or of any other person or entity, including, without limitation, environmental person or entity, including without limitation, environmental laws, (9) the presence of Hazardous Materials (as defined herein) or any other hazardous or toxic matter on, under, or about the Unit or adjoining or neighbouring property, (10) the freedom of the Unit from latent or apparent defects, (11) peaceable possession of the Unit, (12) environmental matters of any kind or nature whatsoever relating to the Unit, (13) any development order or agreement, or (14) any other matter or matters of any nature or kind whatsoever relating to the Unit or any improvements located near, adjacent to, or thereon. Seller shall have no obligation to repair, replace, or remediate the Unit, or any portion thereof, Buyer understands that the Unit is sold and conveyed "AS IS." As used herein, the term "Hazardous Materials" means (I) those substances included within the definitions of "hazardous substances ", "hazardous materials ", "toxic substances" or "solid waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 U.S.C. §960 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S. C. §1801 et seq., or the Clean Water Act, 33 U.S.C. §1321 et seq., as amended, and in the regulations promulgated pursuant thereto; (ii) those substances listed in the United States Department of Transportation Table (49 CFR §172.101) or by the Environmental Protection Agency as "hazardous substances ", "hazardous materials ", "toxic substances" or "solid waste ", (iii) such other substances, materials and wastes which are regulated, or classified as hazardous or toxic, under applicable local, state or federal laws, ordinances or regulations; and any material, waste or substance which is petroleum, asbestos, polychlorinated, biphenyls, flammable explosives or radioactive materials. 6.4 Closing Inspection. In addition to the inspections permitted during the Inspection Period as defined in Section 13 of this Contract, prior to making the Final Payment and at a reasonable time established by Seller, Seller shall accompany Buyer on a personal inspection of the Unit also known as a "Final Walk - Through Inspection ", for the purpose of orienting Buyer with Buyer's Unit and, if necessary, to confirm the condition of the Unit as represented herein. Seller shall be obligated to correct such items that do not conform to the condition of the Unit as represented by this Contract within a reasonable period of time after the Walk - Through Inspection. Seller's obligation to correct such items shall not be a ground for postponing the Final Payment or Closing Date, nor for the imposition of any condition upon the Final Payment. Failure to make the Final Walk - Through Inspection at the time established by Seller shall not delay the Final Payment or Closing Date and shall be deemed a waiver of Buyer's right to inspect the Unit and correction of the above described deficiencies. 2013 02 04 Schmier_Contract v2 Clean Page 9 of 20 6.5 Final Payment. The making of the Final Payment by Buyer shall constitute acceptance of the Unit "AS IS" and a waiver of any and all claims against Seller for any defects in the Unit or Garage. 6.6 Damage to Unit. If between the date of this Agreement and the Closing the Unit is damaged by fire, natural disaster, acts of terrorism or other casualty, the following shall apply: 6.6.1 Risk of loss to the Unit by fire, natural disaster, acts of terrorism or other casualty until the Closing is assumed by Seller, but without any obligation by Seller to repair or replace the Unit except that if Seller elects to repair or replace such loss or damage to the Unit this Agreement shall continue in full force and effect and Buyer shall not have the right to reject title or receive a credit against or abatement of the Total Purchase Price. If Seller elects to repair or replace such loss or damage, Seller shall be entitled to a reasonable period of time within which to complete such repairs or replacement. Any proceeds received from insurance or in satisfaction of any claim or action in connection with such loss or damage shall belong entirely to Seller. If such proceeds shall be paid to Buyer, Buyer agrees that such funds are the property of Seller and Buyer shall promptly upon receipt thereof turn the same over to Seller. 6.6.2 If Seller notifies Buyer that Seller does not elect to repair or replace any such loss or damage to the Unit then this Agreement shall be deemed cancelled and of no further force or effect. Seller shall refund to Buyer all monies deposited hereunder whereupon the parties shall be released and discharged of all claims and obligations hereunder, except that if Buyer is then otherwise in default hereunder, Seller shall retain the Deposit as and for agreed upon liquidated damages. 6.6.3 Risk of loss to the Unit by fire, natural disaster, acts of terrorism or other casualty from and after Closing is assumed by Buyer. Buyer should be aware that the Unit and Garage however well constructed, may be subject to damage or destruction by naturally occurring events such as hurricanes and sinkholes. While Seller has no knowledge of sinkholes or naturally occurring gases such as radon in the immediate vicinity of the Garage all risks associated with all natural occurrences shall be borne by Buyer from and after Closing. 7. Real Estate Brokers. Listing and Cooperating Brokers, if any, named below (collectively, `Broker "), are the only Brokers entitled to compensation in connection with this Contract. Brian Rosen Cooperating Sales Associate, if any Marcus & Millichap Cooperating Broker, if any (single agent) Ingrid Kennemer Listing Sales Associates Coastal Commercial Group, LLC Listing Broker (single agent) Seller shall pay a total of six percent (6 %) commission to Listing Broker per Listing Agreement, and the Cooperating Broker shall be paid a three percent (3 %) commission (fifty percent (50 %) of the total commission). 2013 02 04 Schmier_Contract v2 Clean Page 10 of 20 The terms of this Paragraph 7 shall survive Closing and/or the termination of this Contract. 8. DEFAULT 8.1 Default by Seller. In the event Seller fails to perform any of Seller's obligations or covenants under this Contract, through no fault of Buyer, and Buyer is not in default, Seller shall have thirty (3 0) days from the date written notice of breach is received by Seller from Buyer within which to cure such breach. If Seller fails to cure same within thirty (30) days or, with respect to any matter which cannot reasonably be cured within thirty (30) days, Seller fails to commence to cure within thirty (30) days, Buyer may (I) have the Deposit, together with any interest earned thereon, returned to Buyer if such default occurs prior to Closing, in which case this Contract shall be terminated and the parties shall have no further rights or obligations hereunder; or (ii) pursue an action for specific performance. 8.2 Default by Buyer. If Buyer fails to perform any one or more of Buyer's obligations under this Contract, including but not limited to Buyer's obligation to Close, then Seller shall have the right to retain the Deposit together with any interest earned thereon, together with any other funds paid by Buyer to Seller hereunder in consideration for the execution of this Contract as liquidated damages, in full settlement of any claims under this Contract, in which case this Contract shall be terminated and the parties shall have no further rights or obligations hereunder. Notwithstanding the foregoing to the contrary, Buyer shall be provided written notice by Seller of its failure to perform under the Contract and shall have fifteen (15) days from the date such written notice is received by Buyer in which to perform and, thereafter if Buyer fails to perform same within fifteen (15) days with respect to any matter, except a failure of its obligation to Close, which performance cannot reasonably be cured within fifteen (15) days, Buyer fails to commence to perform within fifteen (15) days, then the Seller shall have such remedies as set forth above in this Paragraph 8.2. If, subsequent to Closing, Buyer fails to perform any one or more of its obligations that survive Closing under this Contract, then Seller shall have the right to seek, after the foregoing notice and opportunity to cure such failure to perform, any remedy available at law or equity. 9. FEES Buyer shall pay for all water, telephone, cable television, sewer, gas, and electric deposit fees, including without limitation, water meter deposits, for the Unit, to place such accounts in Buyer's name. 10. EFFECTIVE DATE The Effective Date of this Contract, for purposes of performance, shall be regarded as the date when the last one of Seller and Buyer has signed this Contract. 11. MISCELLANEOUS 11.1 All of the provisions set forth in this Paragraph 11 and all the representations, duties and obligations of Buyer pursuant to this Contract shall survive Closing. 11.2 Contract Documents, Entire Agreement and Amendments. This Contract shall 2013 02 04 Schmier_Contract Q Clean Page 11 of 20 consist of this Contract document, all modifications, change orders, and written interpretations of the Contract documents issued by Seller, Specifications, Exhibits, and all addenda executed by both parties subsequent to the execution of this Contract. This Contract supersedes any and all understandings and agreements between the Parties hereto whether oral or written, and this Contract represents the entire agreement between the Parties hereto with respect to the subject matter hereof. No representations or inducements made prior hereto which are not included and embodied in this Contract shall be of any force and effect, including but not limited to any brochure, advertising representation, illustrations or materials, or oral statements of Seller or Broker, and all such representations, statements and agreements are null and void and shall have no effect. This Contract may be amended, altered or modified only by a written agreement executed by the Parties. 11.3 Conflictinlz Terms. In the event of conflict, typewritten provisions will control over printed form language, and handwritten provisions will control over both typewritten and printed form language. 11.4 Gender and Number. All terms and words used in this Contract, regardless of the number and gender used, shall be deemed to include any other gender or number as the context or use thereof may require or permit. 11.5 Governing Law and Venue. Buyer certifies that Buyer is executing this Contract while in the State of Florida of Buyer's own volition and that this purchase was not solicited either by telephone or mail in another state. This Contract shall be construed under and interpreted according to the laws of the State of Florida, and venue with respect to any litigation arising hereunder shall be Palm Beach County, Florida. 11.6 Radon Gas. Pursuant to Section 404.056(6), Florida Statutes, Buyer is hereby notified as follows: RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 11.7 Attorneys' Fees and Costs. In connection with any litigation or dispute arising out of this Contract, each parry shall bear its own attorney's fees and costs. 11.8 Delinquent Payment. If Buyer is delinquent in the payment of any sums due under this Contract, including without limitation the Deposit, and Seller has not elected to hold Buyer in default under this Contract or impose the daily administrative late fee, then Buyer shall pay to Seller interest (commencing as of the date that the delinquent sum becomes due) on all delinquent sums at a rate of 18% per annum, or at the then highest rate allowed by law, whichever is less, and the prorations for taxes, assessment charges, and other proratable items shall be calculated based on the herein scheduled Closing Date rather than the actual date of Closing. 2013 02 04 Schmier_ contract v2 Clean Page 12 of 20 11.9 Recording. Buyer shall not record this Contract nor any notice thereof in the Public Records of Palm Beach County, Florida, or in any other Public Records. Such recording shall constitute a material breach hereof by Buyer. 11.10 Notices. Except as otherwise provided in Paragraph 4.1 of this Contract, all notices and other communications required or permitted to be given under or in connection with this Contract shall be in writing, and shall be deemed given to Buyer when hand delivered to Buyer (which includes but is not limited to delivery by courier or Federal Express), or when deposited in the United States mail, postage prepaid, return receipt requested, addressed to Buyer at Buyer's mailing address as set forth in this Contract, and shall be deemed given to Seller when deposited in the United States mail, postage prepaid, return receipt requested, addressed to Seller at its address set forth in this Contract, or to such other address as either Seller or Buyer shall designate by notice in accordance with this Subparagraph. 11.11 Captions. The captions contained herein are included solely for the convenience of the Parties and do not, in any way, modify, amplify or give full notice of any of the terms, covenants, or conditions of this Contract. 11.12 Waiver. Seller's waiver of any condition or provision of this Contract shall not be construed as a waiver of any other application of that same condition or provision, nor as a waiver of any other condition or provision herein. 11.13 Interpretation. This Contract shall be construed and interpreted in accordance with Florida law and shall not be more strictly construed against one Party, than against the other by virtue of the fact that it may have been physically prepared by one Party or by its attorneys, both Parties (and their respective attorneys, where applicable) having participated in the negotiation of this Contract. 11.14 Time of Essence. Time is of the essence with respect to Buyer's performance hereunder, except where otherwise specifically provided for herein. Any reference in this Agreement to the time periods of less that six (6) days, shall in the computation thereof, exclude Saturdays, Sundays and legal holidays. Any reference in the Agreement to time periods of six (6) days or more shall, in the computation thereof, include Saturday, Sundays and legal holidays. If the last day of any such period is a Saturday, Sunday or legal holiday, the period shall be extended to 5:00 P.M. on the next full business day. 11.15 Successors and Assigns. This Contract shall be binding upon and shall inure to the benefit of the respective heirs, personal representatives, successors and assigns of the Parties hereto. This Contract may not be assigned by Buyer. 11.16 Partial Invalidity. In the event any term or provision of this Contract is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning, or be construed as deleted as such authority determines, and the remainder of this Contract shall be construed to be in full force and effect. 2013 02 04 Schmier Contract v2 Clean Page 13 of 20 11.17 Counterparts. This Contract maybe executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. 11.18 Further Assurances. The Parties agree to execute all future instruments and take all further action that may be reasonably required by any Party to fully effectuate the terms and provisions of this Contract and the transactions contemplated herein. 11.19 Total Purchase Price and Additional Tax. Notwithstanding anything herein to the contrary, the Total Purchase Price of the Unit is established and agreed upon by Seller and Buyer based upon all taxes in existence at the time of execution. All newly created taxes, or any increase in taxes, beyond the control of Seller, shall be Buyer's responsibility and shall be passed directly on to Buyer. Taxes include but are not limited to taxes imposed pursuant to Chapter 212, Florida Statutes, as amended. The terms of this Subparagraph 11.20 shall survive Closing. 11.20 Seller's Easements. Buyer grants authority to Seller to file and place among the Public Records of Palm Beach County, Florida, all documents and papers reasonably required to be filed in order to create easements, licenses, and agreements reasonably necessary for the conveyance of the Unit to Buyer which have been approved in writing by the Buyer during the Inspection Period. Buyer acknowledges that Seller shall be placing of record the Declaration and Buyer's title shall be subject to such covenants, restrictions and easements.. 11.21 Telefaxed Si nom. Signatures maybe given via telefax transmission and shall be deemed given as of the date and time of the transmission of this Agreement by telefax to the other party. 11.22 Additional Changes. No changes to this Contract are binding or effective unless the party to be charged has accepted the change in writing. 11.23 Not Binding. This Agreement shall not be binding on Seller until executed by the Mayor of the City of Delray Beach, Florida. 11.24 The Seller and Buyer shall comply with the Florida Investment in Real Property Tax Act. 11.25 SELLER'S GOVERNMENTAL FUNCTIONS. Notwithstanding anything to the contrary contained in this Agreement: a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agreement from complying with all applicable governmental regulations, rules, laws, and ordinances. b. To the extent approval or permission must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested 2013 02 04 Schmier_Contract Q Clean Page 14 of 20 rights. C. The City has not waived its sovereign immunity and the limits of tort liability set forth in F. S. § 768.28 (5)(2008) of $100,000.00 per person and $200,000.00 per occurrence shall apply; and d. Any action by City shall be without prejudice to, and shall not constitute a limit or impairment or waiver of, or otherwise affect City's right to exercise its discretion in connection with its governmental or quasi - governmental functions. 11.26 Leases. Seller shall, upon execution of the contract, furnish to Buyer copies of all written leases and estoppel letters from the tenants specifying nature and duration of tenant's occupancy, rental rates, advanced rent and security deposits paid by tenant, and income and expense statements for preceding twelve (12) months. If Seller is unable to obtain estoppel letters from tenant(s), the same information shall be furnished by Seller to Buyer within that time period in the form of a Seller's affidavit, and Buyer may thereafter contact tenant(s) to confirm such information. Seller shall, at Closing, deliver and assign all original leases to Buyer who shall assume Seller's obligations thereunder. 11.27 Time for Acceptance of Offer and Counter - Offers. If not signed by Buyer and Seller, and an executed copy delivered to all parties on or before thirty (30) days after the date of this offer, this offer shall be deemed withdrawn and the Deposit, if any, will be returned to Buyer. Unless otherwise stated, time for acceptance of any counter -offers shall be within five (5) days after the day the counter -offer is delivered. 11.28 Survev. Buyer may have the Unit surveyed, at Buyer's expense during the Inspection Period. Unless Buyer cancels the Contract as permitted in Section 13 of this Contract, Buyer shall take title subject to all matters shown on the survey, and Seller shall have no obligation to remedy any survey matters shown on the survey. 12. IMPORTANT ADDITIONAL DISCLOSURES 12.1 PROPERTY TAX DISCLOSURE SUMMARY: BUYER SHOULD NOT RELY ON THE SELLER'S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT THE BUYER MAY BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE, A CHANGE OF OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES, IF YOU HAVE ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY APPRAISER'S OFFICE FOR INFORMATION. 12.2 Seller hereby discloses and Buyer hereby acknowledges that the lower horizontal boundary limit of the Unit lies approximately three (3) feet below the existing surface of the floor of the Unit and the upper horizontal boundary limit lies approximately six (6) inches below the existing pipes and other conduit which are located underneath the second level floor slab of the Garage. Notwithstanding anything to the contrary contained in this Contract, the Declaration, or any other Title Document or the common law, the Buyer, shall not have any other air rights or 2013 02 04 Schmier_Contract v2 Clean Page 15 of 20 subsurface rights in connection with or arising out of the ownership, management, or operation of the Unit which are not expressly contained in the Declaration. Such other air rights and subsurface rights have been expressly retained by the Seller. This paragraph shall survive closing. 13. Conditions Prior to Closing 13.1 Buyer's Inspections and Due Diligence. Buyer shall, within fifty -five (55) days from the Effective Date ( "Inspection Period ") determine: (a) whether or not the Unit is satisfactory for Buyer's purposes, (b) whether or not the Unit has adequate services available; (c)that all federal, state, county and local laws, rules and regulations have been and are currently being complied with relative to the Unit; and (d) whether to accept all matters which may be shown by a survey of the Unit. During the Inspection Period, it shall be the responsibility of the Buyer to determine that utility services including, water, waste water, electric, telephone and all other utilities are available in the proper size and capacity- to serve the Unit. Furthermore, it shall be the responsibility of the Buyer to determine whether or not the existing zoning classification of the Unit will permit Buyer to construct, develop and utilize the Unit. At all times during the Inspection Period, Buyer and its agents shall be provided with reasonable access during normal business hours to the Unit for purposes of on -site inspections. The scope of the inspections shall be determined by the Buyer as deemed appropriate under the circumstances, and may include, at Buyer's option, an environmental audit. In the event that any inspections and any review of documents conducted by the Buyer relative to the Unit during the Inspection Period prove unsatisfactory to the Buyer, in its sole discretion, the Buyer shall be entitled to cancel this Agreement by providing written notice of cancellation to Seller prior to 5:00 p.m. Florida time on that date which is the second business day next following the expiration of the Inspection Period. If the Buyer timely cancels this Agreement, Buyer shall receive a prompt refund of the Deposit plus interest earned thereon. The failure of Buyer to timely notify the Seller of Buyer's cancellation of this Agreement shall constitute its waiver of its right to cancel based upon this Section 13. 1, time being of the essence. Buyer does hereby agree to hold Seller harmless with respect to all inspection activities Buyer conducts on the real property and Buyer's review of any and all documents. Buyer shall indemnify and hold harmless the Seller and its members, agents, employees, officers, commissioners, and directors from and against any and all claims, liabilities, injuries, liens, costs, damages, losses, and expenses, including but not limited to, attorney's fees, arising out of or resulting from Buyer's inspection activities and document review. The Buyer's indemnification obligation shall survive cancellation or Closing of this Agreement. Seller shall provide to Buyer (or provide reasonable access) to any plans and specifications surveys, and studies it may have in its possession or control relating to the real property at the time the contract is executed. Buyer's right to inspect and enter onto the real property during the Inspection Period is expressly conditioned upon Buyer's covenant to protect the Seller from the filing of any 2013 02 04 Schmier_Contrw Q Clean Page 16 of 20 liens against the real property. In the event that any claims of lien are filed against the real property as a result of labor or services performed or materials furnished to the real property which are requested or ordered by Buyer, the Buyer shall either pay the sum claimed by the lienor or bond such claim of lien in the manner permitted by law within five (5) business days after Buyer receives written notice of the existence of the lien. This Buyer obligation shall survive cancellation of this Agreement. From the Effective Date through Closing Date, Seller shall maintain the Unit in its AS IS condition, reasonable wear and tear accepted. Buyer, at its sole cost and expense, shall return the condition of the real property to the condition which existed at the time of the Effective Date of this Agreement at the conclusion of any inspections it performs. This obligation shall survive the cancellation of this Agreement. Notwithstanding anything in the contrary contained in this Contract which entitled Buyer to receive the return of its Deposit, the Seller shall be entitled to retain the Deposit, or portion thereof, in the event and to the extent Buyer fails to comply with its indemnification and restoration obligations contained in this Section of the Contract. 13.3 Governing Documents. During the Inspection Period, Seller and Buyer shall negotiate the terms, covenants, conditions, and other requirements contained in the Declaration and other instruments which are necessary to define the Buyer's use rights in the real property, including license and easement agreements with respect to appurtenances to the Unit, such as parking spaces, storage areas, air conditioning and heating areas, venting, and garbage collection area. Prior to the expiration of the Inspection Period, Seller and Buyer shall enter into the required license and easement agreements, and agree to the form and substance of the Declaration, proposed operating budget for the Garage. The form and substance of each of the above described documents shall be satisfactory to the Seller's and Buyer's counsel, respectively, in their sole and absolute discretion. In the event Seller and Buyer fail to agree upon the form and substance of the aforedescribed documents before the expiration of the Inspection Period, then either Seller or Buyer may cancel this Contract by delivering to the other party written notice of cancellation within fourteen (14) calendar days after the expiration of the Inspection Period, whereupon the Deposit and accrued interest, if any, shall be promptly be paid to Buyer. Notwithstanding anything to the contrary in this Section 13.3, Buyer acknowledges that the Unit is located within the Seller's public parking garage and that the upper boundary limit of the Unit also serves as the second floor of the Garage on and upon which there will be public vehicular and pedestrian access and traffic. Buyer agrees that, at minimum, the following use restrictions will be included in the Declaration. 1. Buyer's use of the Unit shall be restricted to any use permitted by the applicable zoning code and occupancy regulations imposed by governmental authority, unless otherwise agreed upon by Buyer and Seller. However, Seller makes no representation or warranty that the Unit can be utilized in the manner which is contemplated by Buyer and such use shall be subject to all applicable governmental rules, laws, regulations and ordinances. 2. The times of operation of the Buyer's business and deliveries to the Unit shall be regulated to protect the peaceful and quiet enjoyment of adjoining property owners, 2013 02 04 Schmier_Contract Q Clean Page 17 of 20 consistent with applicable governmental rules, laws, ordinances, and regulations. 3. Buyer shall have no right to use the name "Old School Square" except to identify the physical street address of the Unit. 4. Buyer's use of and activities in the Unit and Garage shall not, directly or indirectly, cause the bonds which were utilized by Seller to finance the Garage to lose their present exemption or qualified status. 5. Buyer to be provided with the permanent right to fifteen (15) assigned parking spaces and twenty -five (25) parking passes in the Garage, such rights to run with the land and be incorporated with the ownership of the Unit. 13.4 This Contract is contingent upon the Seller's determination during Inspection Period, through the opinion of Seller's bond counsel, that the covenants, terms, conditions, and responsibilities contained in this Contract and the documents referenced in Section 13.3 of this Contract, shall not cause, either directly or indirectly, cause the bonds which were utilized by Seller to finance the Garage to lose their present exemption or qualified status. In the event Seller determines that any of the aforedescribed agreed upon conditions, restrictions, covenants, responsibilities or obligations will, directly or indirectly, the bonds to lose their exemption or qualified status, then Seller, at Seller's option, may cancel this Contact by delivering to Buyer written notice of cancellation during Inspection Period and returning Buyer's Deposit in full. 13.5 This Contract is contingent upon Buyer providing the Creative City Collaborative the ability to occupy the approximate 5,400 square feet currently being used by the Arts Garage, for a 10 year period from closing date. This will be accomplished through a mutually acceptable lease to be entered into between the Tenant and Landlord. In addition, the Lease will provide an Option to Purchase for the tenant at the end of ten years. Evidence of such Lease with Option to Purchase will be provided by Memorandum or other document executed by Landlord and Tenant. 14. Buyer represents the it has the authority to enter into this Agreement, and the financial ability of its principals to close this transaction in accordance with its terms, and it has been properly organized and is in good standing as a Florida corporation. -16. Any notice, request, demand, instruction or other communication to be given to either party hereunder, except where required to be delivered at the Closing, shall be copied as set forth below: Seller: R. Brian Shutt, Esq. City Attorney City of Delray Beach 200 N. W. I" Avenue Delray Beach, Florida 33444 Telephone: (561) 243 -7091 Facsimile: (561) 278 -4755 2013 02 04 Schmier Contract Q Clean Page 18 of 20 With a copy to: Steven D. Rubin, Esq. 980 North Federal Highway, Suite 434 Boca Raton, Florida 33432 Telephone: (561) 391 -7992 Facsimile: (561) 347 -0828 e -mail: rubinlawflorida.com Buyer's Counsel: Jeffery Deutch Corporate Centre of Boca Raton 7777 Glades Road Suite 300 Boca Raton, FL 33434 Tel: 561.483.7000 Fax: 561.483.7321 Email: jdeutch@broadandcassel.com With a copy to: Robert Schmier, President S & F Acquisitions, Inc. 2200 Butts Road Suite 300 Boca Raton, Florida 33431 Tel: 561- 483 -8400 Fax: 561-482-0181 Email: bschmier @sfrealty.com (THE REMAINDER OF THIS PAGE INTENTIANALLY LEFT BLANK) 2013 02 04 Schmier_Contract v2 Clean Page 19 of 20 IN WITNESS WHEREOF, the Parties have executed this Contract on the dates set forth under their respective signatures. SELLER: Witness Witness Witness Witness CITY OF DELRAY BEACH, Florida Municipal Corporation NAME TITLE: Address: 200 N. W. V Avenue Delray Beach, Florida 33444 (561) Date: BUYER: S & F Acquisitions Inc. a Florida corporation Robert J. Schmier, President Date: January 31, 2013 2013 02 04 Schmier_Contract v2 Clean Page 20 of 20 RESOLUTION NO. 24-13 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO SELL TO BUYER CERTAIN REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, AS DESCRIBED HEREIN, HEREBY INCORPORATING AND ACCEPTING THE CONTRACT STATING THE TERMS AND CONDITIONS FOR THE SALE AND PURCHASE BETWEEN THE BUYER AND THE CITY OF DELRAY BEACH, FLORIDA. WHEREAS, the City- of Delray Beach, Florida, wishes to sell certain property located at the S.W. corner of Pineapple Grove Way and Northeast 1St Street; and WHEREAS, the Buyer hereinafter named desires to buy the property for public purposes hereinafter described from the City of Delray Beach Florida; and WHEREAS, it is in the best interest of the City of Delray Beach, Florida, to sell said property. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City Commission of the City of Delray Beach, Florida, as Seller, hereby agrees to sell to The Law Offices of Kanner & Pintaluga, P.A., as Buyer, interior space on the first floor of the Old School Square Parking Garage, for the purchase price of One Million and 00 /100 Dollars ($1,000,000.00), and other good and valuable consideration; said property being more particularly described as follows: See Exhibit "A" Section 2. That the terms and conditions contained in the contract for sale and purchase and addenda thereto between the City of Delray Beach, Florida, and the Buyer as hereinabove named are incorporated herein as Exhibit `B ". ATTEST: City Clerk PASSED AND ADOPTED in regular session on the day of , 2013. MAYOR EXHIBIT "A" OLD SCHOOL SQUARE GARAGE RETAIL SOUTHEAST RETAIL SPACE REAL PROPERTY DESCRIPTION A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE (PLAT BOOK 111, PAGE 46) BEING IN SECTION 16, TOWNSHIP 46 SOUTH, RANGE 43 EAST, CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA REAL PROPERTY DESCRIPTION: THAT PORTION OF REAL PROPERTY LYING ABOVE A VERTICAL ELEVATION OF 11.9 FEET, NATIONAL GEODETIC VERTICAL DATUM OF 1929 (NGVD 1929) AND BELOW A VERTICAL ELEVATION OF 30.6 FEET NATIONAL GEODETIC VERTICAL DATUM OF 1929 (NGVD 1929) LYING WITHIN A PORTION OF TRACT "A ", OLD SCHOOL SQUARE GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED I PLAT BOOK 111, AT PAGE 46 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, BEING MORE PARTICULAR DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHEAST CORNER OF TRACT "A", OLD SCHOOL SQUARE PARKING GARAGE AND PARK SITE, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 111, AT PAGE 46 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE S00 "00'00"W ALONG THE EAST LINE OF SAID TRACT "A" FOR A DISTANCE OF 20.77 FEET; THENCE DEPARTING FROM THE EAST LINE OF SAID TRACT " A" N90 °00'00 "W FOR A DISTANCE OF 10.97; THENCE S00 °00'00 "E FOR 61.50 FEET TO THE POINT OF BEGINNING; THENCE S00 "00'00 "W FOR 59.00 FEET; THENCE N90 °00'00 "W FOR 1.84 FEET TO A POINT TO BE KNOW HEREINAFTER AS POINT "A "; THENCE S00 °00'00 "W FOR 2.00 FEET; THENCE S90 °00'00 "E FOR 1.84 FEET;THENCE S00 °00'00 "W FOR 16.75 FEET; THENCE N90 °00'00 "W FOR 55.42 FEET; THENCE N00 °00'00 "E FOR 2.75 FEET; THENCE S90 °00'00 "E FOR 0.33 FEET; THENCE N00 °00'00 "E FOR 14.58 FEET; THENCE S90 °00'00 "E FOR 9.00 FEET; THENCE S00 °00'00 "W FOR 0.58 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 2.00 FEET; THENCE N90 °0900 "W FOR 2.00 FEET; THENCE 800 °00'00 "W FOR 0.58 FEET; THENCE N90 °00'00 "W FOR 9.00 FEET; THENCE N00 °00'00 "E FOR 4.58 FEET; THENCE N90 °00'00 "W FOR 1.00 FEET; THENCE S00 °00'00 "W FOR 4.58 FEET; THENCE N90 °00'00 "W FOR 7.35 FEET; THENCE N00 °00'00 "E FOR 60.17 FEET; THENCE S90 °00'00 "E FOR 7.35 FEET; THENCE S00 °00'00 "W FOR 4.58 FEET; THENCE S90 °00'00 "E FOR 1.00 FEET; THENCE N00 °00'00 "E FOR 4.58 FEET; THENCE S90 °00'00 "E FOR 9.00 FEET; THENCE S00 °00'00 "W FOR 0.58 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 0.70 FEET; THENCE S90 °00'00 "E FOR 24.00 FEET; THENCE S00 °00'00 "W FOR 0.70 FEET; THENCE S90 °00'00 "E FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 0.70 FEET THENCE S900 00'00 "E FOR 16.25 FEET TO THE POINT OF BEGINNING. LESS THE FOLLOWING AREAS CONTAINING STRUCTURAL COMPONENTS; COMMENCE AT THE AFOREMENTIONED POINT "A "; THENCE N90 °00'00 "W FOR 16.25 FEET TO THE POINT OF BEGINNING; THENCE S00 °00'00 "W FOR 2.00 FEET; THENCE N90 °00'00 "W FOR 2.00 FEET; THENCE N00 °00'00 "E FOR 2.00 FEET; THENCE S90 "00'00 "E FOR 2.00 FEET TO THE POINT OF BEGINNING. SAID LANDS SITUATE WITHIN THE CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA CONTAINING 5,384.66 SQUARE FEET OR 0.12 ACRES OF LAND, MORE OR LESS. Exhibit "A" CITYSJ Heller - Weaver and Sheremeta inc, SATE: 2-0.2D,3 1.24.13�ER CITYS COMMENT , SCALE: NIA 24-13-PER ATTORNEYS'S t DRAWN BY: CARD COMMENTS ! ! Engineers ... Surveyors and Mappers CHECKED BY: D. LAN( 3.29.13 PER CITY'S COMMENTS 310 S.E. 1st Street, Suite 5 Delray Beach, Florida 33483 SHEET: 2. L 8 L.B. NO.'D003W (561) 243-8700 - Phone (561) 243- 8777 - Fax FILE NO_ 1 3 -1 FIIQR 11 5 SC11 EXHIBIT "B" FIGURES CONTAINED IN ANY BUDGET DELIVERED TO THE BUYER PREPARED IN CONNECTION WITH THIS CONTRACT ARE ESTIMATES ONLY AND REPRESENT AN APPROXIMATION OF FUTURE EXPENSES BASED ON FACTS AND CIRCUMSTANCES EXISTING AT THE TIME OF THE PREPARATION OF THE BUDGET BY THE SELLER. ACTUAL COSTS OF SUCH ITEMS MAY EXCEED THE ESTIMATED COSTS. SUCH CHANGES IN COST DO NOT CONSTITUTE MATERIAL OR ADVERSE CHANGES IN THIS CONTRACT. ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS CONTRACT AND THE DOCUMENTS REFERENCED HEREIN. CONTRACT FOR PURCHASE AND SALE OF OLD SCHOOL SQUARE GARAGE RETAIL AIRSPACE 1. PURCHASE AND SALE This Contract for Sale and Purchase of OLD SCHOOL SQUARE GARAGE RETAIL AIRSPACE, ("Contract") , is made and entered into by and between CITY OF DELRAY BEACH, a Florida Municipal Corporation whose address is c/o City Attorney, 200 N. W. Is' Avenue, Delray Beach, Florida 33444 (561) 243 -7090 ("Seller"), and THE LAW OFFICES KANNER & PINTALUGA, P.A., a Florida corporation ( "Buyer "). Purchase and Sale. Purchaser hereby agrees to purchase and Seller hereby agrees to sell and convey to Purchaser all of that certain parcel of real property being situated in Palm Beach County, Florida comprising a portion of the subsurface land and a portion of the airspace on and above a portion of the land ( "Unit "), together with easements for ingress, egress, and physical support for the improvement which has been developed within and adjacent to the airspace legal description, as more particularly set forth in the Declaration of Covenants, Easements and Restrictions for Old School Square ("Declaration "), which shall be recorded in the Public Records of Palm Beach County, Florida prior to the conveyance of the Unit by the Seller to Buyer. The Unit is located in the airspace of the Old School Square Garage ( "Garage ") from just below the surface of the land upward to just below the underside of the second floor parking slab, as more particularly described in the legal description of the Unit which is attached hereto and made a part hereof as Exhibit "I", and has a street address of N. E. 2 °d Avenue, Delray Beach, Palm Beach County ( "County"), Florida 33444. 2. DESCRIPTION OF PROPERTY 2.1 The Unit contains approximately forty-six hundred (4,600) gross square feet of space. There is no personal property included in this sale. 3. PURCHASE PRICE 3.1 Purchase Price of the Unit (a) Base Purchase Price, including $ 820,000.00 Easements, Licenses for Storage, Generator, A/C, and Garbage Disposal Areas (b) Parking Rights $ 180.000.00 "Total Purchase Price" of the Unit $ 1,000,000.00 3.2 Payment Schedule. Total Purchase Price of the Unit shall be payable as follows: (A) A deposit in the amount of Fifty Thousand and no /100ths Dollars ($50,000.00) paid to Escrow Agent upon Buyer's execution of this Contract $ 50,000.00 (B) Additional deposit to be made to Escrow Agent within 47 days after Effective Date $ 100.000.00 ( C) Balance of the Total Purchase Price of the Unit shall be due at closing ("Final Payment "), subject to adjustments and proration and shall be paid in the form of a U. S. Bank wire transfer in United States funds $ 850.000.00 The foregoing sums deposited by Buyer hereunder are collectively referred to herein as the "Deposit ". 3.3 This is a cash transaction with no contingencies for financing. 4. CLOSING, CLOSING EXPENSES AND OTHER EXPENSES 4.1 Closing Date and Possession. The "Closing" is the conveyance of .the Unit to .Buyer as evidenced by the delivery of the deed transferring title. The closing date ( "Closing Date ") shall be on or before June 14, 2013 and Buyer shall close on such Closing date. Seller is authorized to postpone the date of the closing for not more than five (50) days at its discretion. Seller must, however, give Buyer at least five (5) days notice of the new Closing Date. Any new notice of Closing may be given by telefax, mail, or other means of written communication at Seller's option. An affidavit of one of Seller's employees or agents that such notice was given will be conclusive for purposes of proving that notice was given. All notices will be given to Buyer.at the address or by use of the telefax number(s) specified in this Contract unless Seller has received written notice from Buyer of any change therein prior to the date notice of Closing is given. The fact that Buyer fails to receive the new Closing notice because Buyer has failed to advise Seller of any changes of address or phone number, or because Buyer has failed to pick up a letter when Buyer has been advised of an attempted delivery or for any other reason, shall not relieve Buyer of Buyer's obligation to close on the scheduled date, unless Seller otherwise agrees in writing to postpone the Closing Date. If Seller agrees in writing to reschedule the Closing Date at Buyer's request or because Buyer has failed to produce all corporate documents requested by Seller, or for any other reason (except for delay caused by Seller), Seller may impose a late charge equal to One Thousand One Hundred Dollars ($1,100.00) per day for every day from and after the original Closing Date through the date that the transaction closes, and prorations shall be as of the original Closing Date. Buyer agrees the late charge is appropriate in order to cover Seller's administrative and other expenses resulting from a delay in Closing. Seller is not required to agree to reschedule the Closing Date, but Seller may reschedule Closing in Seller's sole discretion. Buyer shall be in default of this Contract if Buyer fails to close as scheduled. Buyer shall be given possession of the Unit, subject to existing leases and parties presently in possession, at Closing after Final Payment is received. Until such time, Buyer shall not be entitled to possession of the Unit or store any property therein. The Closing shall take place at an office designated by Seller which is located in Palm Beach County, Florida. 4.2(i) Closing and Other Costs. On the Closing Date, Buyer shall pay the balance of the Total Purchase Price of the Unit, any and all sums due and owing sums under this Contract, and the following sums: (A) A prorated monthly Assessment payable to Seller, if Seller has prepaid the same, based upon the Unit's share of total costs of maintenance, repair and replacement of the Shared Facilities as described in the Declaration. Buyer understands and acknowledges that the Seller's Annual Budget for the Shared Facilities is only an estimate of what it presently costs to maintain, repair and replace the Shared Facilities. (B) The monthly Assessment, payable to the Seller for the Unit for the next monthly assessment period commencing after Closing, based upon the Unit's share of the total Assessment as described in the Declaration and determined by the Seller's Annual Budget. ( C) If Buyer executes a mortgage or other loan, Buyer shall be obligated to pay all mortgage or loan costs and expenses, including but not limited to, points, lender's origination fee, private mortgage insurance costs, intangible tax, documentary stamp tax, survey charge, credit report, recording charges, prepaid items such as taxes, insurance, interest and escrow, mortgagee's abstract of title insurance costs, mortgagee's attorneys' fees, and all sums deducted from the gross amount of the mortgage by the lender. This Contract is not contingent on Buyer obtaining a mortgage or any other financing. (D) A closing charge, payable to Seller, in a sum equal to one and three tenths percent (1.3 %) of the Total Purchase Price of the Unit, a portion of which will be used to pay the cost of recording the Special Warranty Deed, and a portion of Seller's legal and administrative expenses associated with the transaction. (E) Real estate taxes, Solid Waste Authority tax assessments, special tax assessments, and other proratable items shall be prorated as of the date of Closing. Ad valorem taxes are prorated from January through December 31 of the same calendar year. Non ad- valorem assessments are prorated from October 1 through September 30 of the following calendar year. Such taxes and assessments shall be prorated based on the current year's tax with allowance made for discount and exemptions. If Closing occurs on a date when the current year's millage is not fixed, and the current year's assessment is available, taxes shall be prorated based upon such assessment and the prior year's millage. If the current year's assessment is not available, then taxes shall be prorated based on the prior year's tax. Any tax proration based on an estimate shall at the request of either Seller or Buyer be subsequently readjusted upon receipt of the current year's tax bill. (F) Expenses incurred and/or advanced by Seller, if any, with the written consent of the Buyer, on behalf of Buyer, and all other costs and expenses for which Buyer is obligated under this Contract or the Declaration. (G) Additional out -of- pocket costs incurred by Seller as the result of Buyer's failure to close on the Closing Date as scheduled herein, or in the manner contemplated in this Contract, including but not limited to a document re- preparation fee and additional reasonable costs associated with closing the transaction by mail. (I) Utility connection fees, impact fees, utility deposits, permit fees and any other additional costs imposed by governmental authority. (I) Documentary stamp taxes on the Deed. 4.2(ii) Seller shall pay the following closing costs: (A) All real estate broker's fees, including without limitation, broker's fees which are due pursuant to Seller's right of sale listing agreement with Broker as provided in paragraph (7) of this Contract. (B) Recording of the Deed. 4.3 Deposits. Any reference to Deposit or Deposits herein shall refer collectively to all amounts deposited with Escrow Agent under this Agreement and under any addendum or amendment hereto, except for any deposits or payments made by Buyer to Seller for options, extras and/or upgrades. All monies deposited under the terms of this Agreement, except for the balance due at Closing, may be made by check drawn on a Florida bank, subject to collection. All payments must be made in United States funds. 4.3.1 Buyer understands that Steven D. Rubin, Esq. ("Escrow Agent "), whose address is 980 North Federal Highway, Suite 434, Boca Raton, Florida, and whose telephone number is (561) 391 -7992, will hold the Deposit in an escrow account (the "Escrow Account "), pursuant to the terms of this Agreement. Buyer may obtain a receipt for its Deposit from the Escrow Agent upon request. Unless Buyer is in default of this Contract, interest shall be paid to Buyer on the Deposit if it is deposited in an interest bearing account. Escrow Agent may deposit monies held in the Escrow Account in a savings or time deposit account at a bank or savings and loan association insured by an agency of the United States Government, with interest if any, paid to Buyer at Closing or to Seller if Seller is entitled to retain the Deposit as provided in this Contract. By signing this Agreement, Buyer expressly authorizes Escrow Agent to disburse Buyer's deposits held in the Escrow Account to Buyer's account at Closing, or to Seller upon Buyer's default. Escrow Agent shall not be responsible for any act or omission to act, unless occurring due to his sole gross negligence or willful malfeasance, and upon making delivery of the monies that Escrow Agent holds in accordance with the terms hereof, Escrow Agent shall have no further liability. 4.4 Closing Agent. Buyer acknowledges that Seller utilizes the services of Steven D. Rubin, Esq. ( "Closing Agent") for this purchase and sale which services include, but are not limited to (i) pre- closing coordination with Seller, Buyer, Broker (defined below), Co- Broker, if any (defined below), Association, taxing authorities, and any applicable lender; (ii) preparation of the Special Warranty Deed and other closing documents; (iii) preparation of the closing statement; and (iv) conducting the Closing. The Closing Agent does not represent the Buyer as an attorney at law. The terms of this Paragraph 4 shall survive closing. 5. TITLE CONVEYANCE AND TITLE INSURANCE 5.1 • Conveyance and Permitted Exceptions. Seller will convey to Buyer marketable and insurable title to the Property by Special Warranty Deed, subject only to the following "Permitted Exceptions ": encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey (unless such survey exception is removed by the title insurer upon certification of a survey meeting requirements for such removal); all applicable laws, zoning ordinances and regulations and other requirements imposed by governmental authorities; taxes for the year of closing and subsequent years, including taxes or assessments of any special taxing district; the Declaration, and all matters referenced in the Declaration and any supplements or amendments thereto; covenants, conditions, restrictions, limitations, reservations, and easements of record and matters shown or reflected on any recorded plat underlying the Unit as of the Closing Date (whether recorded by Seller, or any other person or entity), and any supplements and amendments thereto; any mortgage, construction loan and/or related security instruments executed by Buyer; any easements in connection with the providing of cable television services or utilities, or as may be required by the City of Delray Beach, Florida; any water, sewer or utility service agreement required by the City of Delray Beach, Florida; the Title Documents referenced in the Declaration; riparian and littoral rights of adjoining land owners; rights of the public, United States and Florida to the use of navigable water ways; and parties presently in possession under written leases, which the Buyer agrees to assume and perform, and for which the Buyer shall indemnify and hold Seller harmless from and after the Closing Date by instrument in form which is reasonably satisfactory to Seller's counsel. Buyer specifically gives authority to Seller to file and place among the Public Records of Palm Beach County, Florida all documents and instruments of any type or manner reasonably necessary to provide easements for ingress, egress, support, utilities and parking rights, provided the same shall not render title to the Unit unmarketable or prevent the use of the Unit as a law office. 5.2 Title Insurance. Within a reasonable time after Closing, Seller, at Seller's cost, shall furnish to Buyer a policy of owners' title insurance insuring that the recorded conveyance from Seller to Buyer has vested marketable title in Buyer subject to those matters set forth in this Contract; provided, however, that such policy will not insure title to any interest in personal property, riparian rights, littoral rights or sovereign rights. The owners' title insurance policy will be issued by a duly licensed title insurer of Seller's choosing. A commitment for the policy of title insurance will be furnished to Buyer at least seven (7) days prior to closing. Seller will pay the cost to record the Deed. 5.3 Defects; Title; Acceptance of Deed. Buyer shall have seven (7) days upon receipt of the title insurance commitment to review the same and report, in writing, any defects in title to Seller. In the event that any defects in title are timely reported to Seller, if necessary, the Closing Date shall be postponed and Seller shall make a good faith effort to cure such defects in title. If such defects in title are not cured within forty-five (45) days after the date that the Buyer gives notice of such defects to the Seller, then Buyer shall either (i) accept title in its then existing condition, but without any reduction in the Total Purchase Price, or (ii) terminate this Contract. If this Contract is terminated under this paragraph, the Deposit shall be returned to Buyer and the Parties shall have no further rights or obligations hereunder. It is expressly agreed and understood that the Permitted Exceptions shall not be considered defects in title. It is further expressly agreed and understood that Seller shall not be obligated to expend funds in excess of $1,000.00 or to bring any lawsuits for the purpose of curing any defects in title. Buyer's acceptance of the aforementioned Special Warranty Deed shall be deemed to be full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Contract, except those which are herein specifically deemed to survive the Closing or which survive by operation of law. The terms of this Paragraph 5 shall survive Closing. 6. CONSTRUCTION OF THE UNIT 6.1 Buyer Acknowledgments. Buyer acknowledges and agrees that Buyer has not relied upon any statements, verbal or written, published by or under the authority of Seller in advertising and promotional matter, including but not limited to newspaper, radio or television advertisements, but has based the decision solely to purchase solely upon Buyer's personal investigation and observation, and the other documents provided herewith. 6.2.1 Build -Out of Unit. The Unit is substantially complete as of the Effective Date of this Agreement and consists of finished space for the existing tenant. Buyer shall, after the Closing Date, but at such time as it shall determine, at its sole cost and expense, furnish, construct, install, and improve the Unit for Buyer's intended office use with the plans and specifications (the "Build- Out "). The Build -Out may include, without limitation: (a) Interior walls, partitions and wall coverings of the Unit. (b) The ceiling and all ceiling coverings of the Unit; and (c) Any utility connections, electrical, plumbing, heating and air conditioning wires, conduits, pipes and fixtures, vents, generator, air conditioning and heating systems, and garbage disposal area and containers. 6.3 No Warranties. SELLER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, INTENDED USE, WORKMANSHIP OR CONSTRUCTION RESPECTING THE UNIT, OR RELATED TO INGRESS, EGRESS AND SUPPORT OF THE UNIT, AND ALL FIXTURES OR ITEMS OF PERSONAL PROPERTY SOLD PURSUANT TO THIS AGREEMENT, OR ANY OTHER REAL OR PERSONAL PROPERTY WHATSOEVER CONVEYED HEREBY, OR LOCATED WITHIN THE UNIT WHETHER ARISING FROM THIS. AGREEMENT, USAGE, TRADE, IMPOSED BY STATUTE, COURSE OF DEALING, CASE LAW, OR OTHERWISE SELLER SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER RESPECTING ANY DISCLAIMED WARRANTY, WHETHER SUCH DAMAGES ARE COMPENSATORY, GENERAL, SPECIAL, DIRECT, INDIRECT, SECONDARY, INCIDENTAL OR CONSEQUENTIAL. AS TO ANY IMPLIED WARRANTY THAT CANNOT BE DISCLAIMED ENTIRELY, ALL SECONDARY, INCIDENTAL AND CONSEQUENTIAL DAMAGES ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. SELLER GIVES NO EXPRESS WARRANTY ON THOSE ITEMS DEFINED AS "CONSUMER PRODUCTS" BY THE MAGNUSON- MOSS WARRANTY ACT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SELLER DISCLAIMS ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR (I) DAMAGE DUE TO OR MADE WORSE BY BUYER'S NEGLECT, MISUSE, ABNORMAL USE, IMPROPER UNIT MAINTENANCE AND /OR PREVENTATIVE MAINTENANCE; (II) DAMAGE DUE TO ORDINARY WEAR AND TEAR; OM LOSS OR INJURY CAUSED IN ANY WAY BY THE ELEMENTS; (IV) IRREGULARITIES AND CONDITIONS RESULTING FROM OR THAT ARE CHARACTERISTIC OF AND COMMON TO THE MATERIALS USED; (V) CONDITIONS RESULTING FROM CONDENSATION ON, OR THE EXPANSION OR CONTRACTION OF MATERIALS; (VI) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PERSONAL INJURIES ARISING FROM A BREACH OF THIS OR ANY WARRANTY; AND (VIP ANY DISCOLORATION TO ANY PROPERTY THAT MAY BE CAUSED BY WATER WITHIN THE UNIT OR BUILDING. NORMAL SWELLING, EXPANSION AND CONTRACTION OF MATERIALS AND CONSTRUCTION, AND ANY CRACKS APPEARING AS A RESULT THEREOF OR AS A RESULT OF SETTLEMENT OF, IN OR ON THE UNIT SHALL NOT BE DEEMED TO BE CONSTRUCTION DEFECTS. UPON CLOSING, SELLER SHALL DELIVER TO BUYER ALL MANUFACTURERS' WARRANTIES, IF ANY. BUYER ACKNOWLEDGES THAT IT IS NOT A "CONSUMER" AS DEFINED UNDER ANY APPLICABLE CONSUMER PROTECTION LAW AND SELLER DOES NOT ADOPT OR ASSUME LIABILITY FOR ANY MANUFACTURER'S WARRANTY. THE UNIT IS SOLD "AS IS, WHERE IS ". Except as otherwise provided in this Agreement, the Seller does not make any warranty or representation regarding the title to the Unit except as to any warranties which will be contained in the Deed and in the other instruments to be delivered by Seller at Closing in accordance with this Agreement, and Seller does not make any representation or warranty either expressed or implied regarding condition, operability, safety, fitness for intended purpose, use, governmental requirements, development potential, utility availability, legal access, economic feasibility or any other matters whatsoever with respect to the Unit or the Garage, as defined in the Declaration. The Buyer specifically acknowledges and agrees that the Seller shall sell and Buyer shall purchase the Unit on an "AS IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except for the Seller's representations and warranties specifically set forth in this Agreement, Buyer is not relying on any representations or warranties of any kind whatsoever, express or implied, from Seller, or its respective agents, officers, or employees, as to any matters concerning the Unit, the Garage or related real property including, without limitation, any matters relating to (1) the quality, nature, adequacy, or physical condition of the Unit,(2) the quality, nature, adequacy or physical condition of soils, fill, geology, or any groundwater, (3) the existence, quality, nature, adequacy or physical condition of utilities serving the Unit, (4) the development potential, income potential, expenses of the Unit, (5) the Unit's value, use, habitability, or merchantability, (6) the fitness, suitability, or adequacy of the Unit for any particular use or purpose, (7) the zoning or other legal status of the Unit, (8) the compliance of the Unit or its operation with any applicable codes, laws, rules, regulations, statutes, ordinances, covenants, judgments, orders, directives, decisions, guidelines, conditions, or restrictions of any governmental or quasi - governmental entity or of any other person or entity, including, without limitation, environmental person or entity, including without limitation, environmental laws, (9) the presence of Hazardous Materials (as defined herein) or any other hazardous or toxic matter on, under, or about the Unit or adjoining or neighboring property, (10) the freedom of the Unit from latent or apparent defects, (11) peaceable possession of the Unit, (12) environmental matters of any kind or nature whatsoever relating to the Unit, (13) any development order or agreement, or (14) any other matter or matters of any nature or kind whatsoever relating to the Unit or any improvements located near, adjacent to, or thereon. Seller shall have no obligation to repair, replace, or remediate the Unit, or any portion thereof, Buyer understands that the Unit is sold and conveyed "AS IS." As used herein, the term "Hazardous Materials" means (i) those substances included within the definitions of "hazardous substances ", "hazardous materials ", "toxic substances" or "solid waste" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §960 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S. C. §1801 et seq., or the Clean Water Act, 33 U.S.C. §1321 et seq., as amended, and in the regulations promulgated pursuant thereto; (ii) those substances listed in the United States Department of Transportation Table (49 CFR §172.101) or by the Environmental Protection Agency as "hazardous substances ", "hazardous materials ", "toxic substances" or "solid waste ", (iii) such other substances, materials and wastes which are regulated, or classified as hazardous or toxic, under applicable local, state or federal laws, ordinances or regulations; and any material, waste or substance which is petroleum, asbestos, polychlorinated, biphenyls, flammable explosives or radioactive materials. 6.4 Closing Inspection. In addition to the inspections permitted during the Inspection Period as defined in Section 13 of this Contract, prior to making the Final Payment and at a reasonable time established by Seller, Seller shall accompany Buyer on a personal inspection of the Unit also known as a "Final Walk- Through Inspection ", for the purpose of orienting Buyer with Buyer's Unit and, if necessary, to confirm the condition of the Unit as represented herein. Seller shall be obligated to correct such items that do not conform to the condition of the Unit as represented by this Contract within a reasonable period of time after the Walk- Through Inspection. Seller's obligation to correct such items shall not be a ground for postponing the Final Payment or Closing Date, nor for the imposition of any condition upon the Final Payment. Failure to make the Final Walk - Through Inspection at the time established by Seller shall not delay the Final Payment or Closing Date and shall be deemed a waiver of Buyer's right to inspect the Unit and correction of the above described deficiencies. 6.5 Final Payment. The making of the Final Payment by Buyer shall constitute acceptance of the Unit "AS IS" and a waiver of any and all claims against Seller for any defects in the Unit or Garage. 6.6 Damage to Unit. If between the date of this Agreement and the Closing the Unit is damaged by fire, natural disaster, acts of terrorism or other casualty, the following shall apply: 6.6.1 Risk of loss to the Unit by fire, natural disaster, acts of terrorism or other casualty until the Closing is assumed by Seller, but without any obligation by Seller to repair or replace the Unit except that if Seller elects to repair or replace such loss or damage to the Unit this Agreement shall continue in full force and effect and Buyer shall not have the right to reject title or receive a credit against or abatement of the Total Purchase Price. If Seller elects to repair or replace such loss or damage, Seller shall be entitled to a reasonable period of time within which to complete such repairs or replacement. Any proceeds received from insurance or in satisfaction of any claim or action in connection with such loss or damage shall belong entirely to Seller. If such proceeds shall be paid to Buyer, Buyer agrees that such funds are the property of Seller and Buyer shall promptly upon receipt thereof turn the same over to Seller. 6.6.2 If Seller notifies Buyer that Seller does not elect to repair or replace any such loss or damage to the Unit then this Agreement shall be deemed cancelled and of no further force or effect. Seller shall refund to Buyer all monies deposited hereunder whereupon the parties shall be released and discharged of all claims and obligations hereunder, except that if Buyer is then otherwise in default hereunder, Seller shall retain the Deposit as and for agreed upon liquidated damages. 6.6.3 Risk of loss to the Unit by fire, natural disaster, acts of terrorism or other casualty from and after Closing is assumed by Buyer. Buyer should be aware that the Unit and Garage however well constructed, may be subject to damage or destruction by naturally occurring events such as hurricanes and sinkholes. While Seller has no knowledge of sinkholes or naturally occurring gases such as radon in the immediate vicinity of the Garage all risks associated with all natural occurrences shall be borne by Buyer from and after Closing. 7. Real Estate Brokers. Listing and Cooperating Brokers, if any, named below (collectively, `Broker "), are the only Brokers entitled to compensation in connection with this Contract. Jim Knight Cooperating Sales Associate, if any The Knight Group Cooperating Broker, if any (single agent) Ingrid Kennemer Listing Sales Associates Coastal Commercial Group, LLC Listing Broker (single agent) Seller shall pay a total of six percent (6 %) commission to Listing Broker per Listing Agreement, and Cooperating Broker shall be paid a three percent (3 %) commission (fifty percent (50 %) of the total commission) by Listing Broker. The terms of this Paragraph 7 shall survive Closing and/or the termination of this Contract. 8. DEFAULT 8.1 Default by Seller. In the event Seller fails to perform any of Seller's obligations or covenants under this Contract, through no fault of Buyer, and Buyer is not in default, Seller shall have fifteen (15) days from the date written notice of breach is received by Seller from Buyer within which to cure such breach. If Seller fails to cure same within fifteen (15) days or, with respect to any matter which cannot reasonably be cured within fifteen (15) days, Seller fails to commence to cure within fifteen (15) days, Buyer may (i) have the Deposit, together with any interest earned thereon, returned to Buyer if such default occurs prior to Closing, in which case this Contract shall be terminated and the parties shall have no further rights or obligations hereunder; or (ii) pursue an action for specific performance. 8.2 Default by Buyer. If Buyer fails to perform any one or more of Buyer's obligations under this Contract, including but not limited to Buyer's obligation to Close, then Seller shall have the right to either (i) retain the Deposit together with any interest earned thereon, together with any other funds paid by Buyer to Seller hereunder in consideration for the execution of this Contract as liquidated damages, in full settlement of any claims under this Contract, in which case this Contract shall be terminated and the parties shall have no further rights or obligations hereunder, or (ii) seek any remedies available in equity, including but not limited to specific performance. Notwithstanding the foregoing to the contrary, Buyer shall be provided written notice by Seller of its failure to perform under the Contract and shall have fifteen (15) days from the date such written notice is received by Buyer in which to perform and, thereafter if Buyer fails to perform same within fifteen (15) days with respect to any matter, except a failure of its obligation to Close, which performance cannot reasonably be cured within fifteen (15) days, Buyer fails to commence to perform within'fifteen (15) days, then the Seller shall have such remedies as set forth above in this Paragraph 8.2. If, subsequent to Closing, Buyer fails to perform any one or more of its obligations that survive Closing under this Contract, then Seller shall have the right to seek, after the foregoing notice and opportunity to cure such failure to perform, any remedy available at law or equity. 9. FEES Buyer shall pay for all water, telephone, cable television, sewer, gas, and electric deposit fees, including without limitation, water meter deposits, for the Unit, to place such accounts in Buyer's name. 10. EFFECTIVE DATE The Effective Date of this Contract, for purposes of performance, shall be regarded as the date when the last one of Seller and Buyer has signed this Contract. 11. MISCELLANEOUS 11.1 All of the provisions set forth in this Paragraph 11 and all the representations, duties and obligations of Buyer pursuant to this Contract shall survive Closing. 11.2 Contract Documents, Entire Agreement and Amendments. This Contract shall consist of this Contract document, all modifications, change orders, and written interpretations of the Contract documents issued by Seller, Specifications, Exhibits, and all addenda executed by both parties subsequent to the execution of this Contract. This Contract supersedes any and all understandings and agreements between the Parties hereto whether oral or written, and this Contract represents the entire agreement between the Parties hereto with respect to the subject matter hereof. No representations or inducements made prior hereto which are not included and embodied in this Contract shall be of any force and effect, including but not limited to any brochure, advertising representation, illustrations or materials, or oral statements of Seller or Broker, and all such representations, statements and agreements are null and void and shall have no effect. This Contract may be amended, altered or modified only by a written agreement executed by the Parties. 11.3 Conflicting Terms. In the event of conflict, typewritten provisions will control over printed form language, and handwritten provisions will control over both typewritten and printed form language. 11.4 Gender and Number. All terms and words used in this Contract, regardless of the number and gender used, shall be deemed to include any other gender or number as the context or use thereof may require or permit. 11.5 Governing Law and Venue. Buyer certifies that Buyer is executing this Contract while in the State of Florida of Buyer's own volition and that this purchase was not solicited either by telephone or mail in another state. This Contract shall be construed under and interpreted according to the laws of the State of Florida, and venue with respect to any litigation arising hereunder shall be Palm Beach County, Florida. 11.6 Radon Gas. Pursuant to Section 404.056(6), Florida Statutes, Buyer is hereby notified as follows: RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 11.7 Intentionally omitted. 11.8 Attorneys' Fees and Costs. In connection with any litigation or dispute arising out of this Contract, each party shall bear its own attorney's fees and costs. 11.9 Delinquent Payment. If Buyer is delinquent in the payment of any sums due under this Contract, including without limitation the Deposit, and Seller has not elected to hold Buyer in default under this Contract or impose the daily administrative late fee, then Buyer shall pay to Seller interest (commencing as of the date that the delinquent sum becomes due) on all delinquent sums at a rate of 18% per annum, or at the then highest rate allowed by law, whichever is less, and the prorations for taxes, assessment charges, and other proratable items shall be calculated based on the herein scheduled Closing Date rather than the actual date of Closing. 11.10 Recording. Buyer shall not record this Contract nor any notice thereof in the Public Records of Palm Beach County, Florida, or in any other Public Records. Such recording shall constitute a material breach hereof by Buyer. 11. 11 Notices. Except as otherwise provided in Paragraph 4.1 of this Contract, all notices and other communications required or permitted to be given under or in connection with this Contract shall be in writing, and shall be deemed given to Buyer when hand delivered to Buyer (which includes but is not limited to delivery by courier or Federal Express), or when deposited in the United States mail, postage prepaid, return receipt requested, addressed to Buyer at Buyer's mailing address as set forth in this Contract, and shall be deemed given to Seller when deposited in the United States mail, postage prepaid, return receipt requested, addressed to Seller at its address set forth in this Contract, or to such other address as either Seller or Buyer shall designate by notice in accordance with this Subparagraph. 11.12 Captions. The captions contained herein are included solely for the convenience of the Parties and do not, in any way, modify, amplify or give full notice of any of the terms, covenants, or conditions of this Contract. 11.13 Waiver. Seller's waiver of any condition or provision of this Contract shall not be construed as a waiver of any other application of that same condition or provision, nor as a waiver of any other condition or provision herein. 11.14 Interpretation. This Contract shall be construed and interpreted in accordance with Florida law and shall not be more strictly construed against one Party, than against the other by virtue of the fact that it may have been physically prepared by one Party or by its attorneys, both Parties (and their respective attorneys, where applicable) having participated in the negotiation of this Contract. 11.15 Time of Essence. Time is of the essence with respect to Buyer's performance hereunder, except where otherwise specifically provided for herein. Any reference in this Agreement to the time periods of less that six (6) days, shall in the computation thereof, exclude Saturdays, Sundays and legal holidays. Any reference in the Agreement to time periods of six (6) days or more shall, in the computation thereof, include Saturday, Sundays and legal holidays. If the last day of any such period is a Saturday, Sunday or legal holiday, the period shall be extended to 5:00 P.M. on the next full business day. 11.16 Successors and Assigns. This Contract shall be binding upon and shall inure to the benefit of the respective heirs, personal representatives, successors and assigns of the Parties hereto. This Contract may not be assigned by Buyer. 11.17 Partial Invalidity. In the event any term or provision of this Contract is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning, or be construed as deleted as such authority determines, and the remainder of this Contract shall be construed to be in full force and effect. 11.18 Counteroarts. This Contract may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. 11. 19 Further Assurances. The Parties agree to execute all future instruments and take all further action that may be reasonably required by any Party to fully effectuate the terms and provisions of this Contract and the transactions contemplated herein. 11.20 Total Purchase Price and Additional Tax. Notwithstanding anything herein to the contrary, the Total Purchase Price of the Unit is established and agreed upon by Seller and Buyer based upon all taxes in existence at the time of execution. All newly created taxes, or any increase in taxes, beyond the control of Seller, shall. be Buyer's responsibility and shall be passed directly on to the Buyer. Taxes include but are not limited to taxes imposed pursuant to Chapter 212, Florida Statutes, as amended. The terms of this Subparagraph 11.20 shall survive Closing. 11.21 Seller's Easements. Buyer grants authority to Seller to file and place among the Public Records of Palm Beach County, Florida, all documents and papers reasonably required to be filed in order to create easements, licenses, and agreements reasonably necessary for the conveyance of the Unit to Buyer which have been approved in writing by the Buyer during the Inspection Period. Buyer acknowledges that Seller shall be placing of record the Declaration and Buyer's title shall be subject to such covenants, restrictions and easements. 11.22 Telefaxed Si ngnatures. Signatures may be given via telefax transmission and shall be deemed given as of the date and time of the transmission of this Agreement by telefax to the other party. 11.23 Additional Changes. No changes to this Contract are binding or effective unless the party to be charged has accepted the change in writing. 11.24 Not Binding. This Agreement shall not be binding on Seller until executed by the Mayor of the City of Delray Beach, Florida. 11.25 The Seller and Buyer shall comply with the Florida Investment in Real Property Tax Act. 11.26 SELLER'S GOVERNMENTAL FUNCTIONS. Notwithstanding anything to the contrary contained in this Agreement: a. Even though the City has certain contractual obligations under this Agreement such obligations shall not relieve any person subject to this Agreement from complying with all applicable governmental regulations, rules, laws, and ordinances. b. To the extent approval or permission must be obtained from the City, such approval or permission shall be granted or denied in accordance with applicable governmental regulations, rules, laws, and ordinances, and no person shall have any vested rights. C. The City has not waived its liability set forth in F. S. § 768.28 $200,000.00 per occurrence shall apply; and sovereign immunity and the limits of tort (5)(2008) of $100,000.00 per person and d. Any action by City shall be without prejudice to, and shall not constitute a limit or impairment or waiver of, or otherwise affect City's right to exercise its discretion in connection with its governmental or quasi - governmental functions. 11.27 Leases. Seller shall, within the Inspection Period, furnish to Buyer copies of all written leases and estoppel letters from the tenants specifying nature and duration of tenant's occupancy, rental rates, advanced rent and security deposits paid by tenant, and income and expense statements for preceding twelve (12) months. If Seller is unable to obtain estoppel letters from tenant(s), the same information shall be furnished by Seller to Buyer within that time period in the form of a Seller's affidavit, and Buyer may thereafter contact tenant(s) to confirm such information. Seller shall, at Closing, deliver and assign all original leases to Buyer who shall assume Seller's obligations thereunder. 11.28 Time for Acceptance of Offer and Counter- Offers. If not signed by Buyer and Seller, and an executed copy delivered to all parties on or before thirty (30) days after the date of this offer, this offer shall be deemed withdrawn and the Deposit, if any, will be returned to Buyer. Unless otherwise stated, time for acceptance of any counter -offers shall be within five (5) days after the day the counter -offer is delivered. 11.29 Survey. Buyer may have the Unit surveyed, at Buyer's expense during the Inspection Period. Unless Buyer cancels the Contract as permitted in Section 13 of this Contract, Buyer shall take title subject to all matters shown on the survey, and Seller shall have no obligation to remedy any survey matters shown on the survey. 12. IMPORTANT ADDITIONAL DISCLOSURES 12.1 PROPERTY TAX DISCLOSURE SUMMARY: BUYER SHOULD NOT RELY ON THE SELLER'S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT THE BUYER MAY BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE, A CHANGE OF OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES, IF YOU HAVE ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY APPRAISER'S OFFICE FOR INFORMATION. 12.2 Seller hereby discloses and Buyer hereby acknowledges that the lower horizontal boundary limit of the Unit lies approximately three (3) feet below the existing surface of the floor of the Unit and the upper horizontal boundary limit lies approximately six (6) inches below the existing pipes and other conduit which are located underneath the second level floor slab of the Garage. Notwithstanding anything to the contrary contained in this Contract, the Declaration, or any other Title Document or the common law, the Buyer, shall not have any other air rights or subsurface rights in connection with or arising out of the ownership, management, or operation of the Unit which are not expressly contained in the Declaration. Such other air rights and subsurface rights have been expressly retained by the Seller. This paragraph shall survive closing. 13. Conditions Prior to Closing 13.1 Buyer's Inspections and Due Diligence. Buyer shall, within forty five (45) days from the Effective Date ("Inspection Period ") determine: (a) whether or not the Unit is satisfactory for Buyer's purposes, (b) whether or not the Unit has adequate services available; (c) that all federal, state, county and local laws, rules and regulations have been and are currently being complied with relative to the Unit; and (d) whether to accept all matters which may be shown by a survey•ofthe Unit. During the Inspection Period, it shall be the responsibility of the Buyer to determine that utility services including, water, waste water, electric, telephone and all other utilities are available in the proper size and capacity to serve the Unit. Furthermore, it shall be the responsibility of the Buyer to determine whether or not the existing zoning classification of the Unit will permit Buyer to construct, develop and utilize the Unit as a law office. At all times during the Inspection Period, Buyer and its agents shall be provided with reasonable access during normal business hours to the Unit for purposes of on -site inspections. The scope of the inspections shall be determined by the Buyer as deemed appropriate under the circumstances, and may include, at Buyer's option, an environmental audit. In the event that any inspections and any review of documents conducted by the Buyer relative to the Unit during the Inspection Period prove unsatisfactory to the Buyer, in its sole discretion, the Buyer shall be entitled to cancel this Agreement by providing written notice of cancellation to Seller prior to 5:00 p.m. Florida time on that date which is the second business day next following the expiration of the Inspection Period. If the Buyer timely cancels this Agreement, Buyer shall receive a prompt refund of the Deposit plus interest earned thereon. The failure of Buyer to timely notify the Seller of Buyer's cancellation of this Agreement shall constitute its waiver of its right to cancel based upon this Section 13. 1, time being of the essence. Buyer does hereby agree to hold Seller harmless with respect to all inspection activities Buyer conducts on the real property and Buyer's review of any and all documents. Buyer shall indemnify and hold harmless the Seller and its members, agents, employees, officers, commissioners, and directors from and against any and all claims, liabilities, injuries, liens, costs, damages, losses, and expenses, including but not limited to, attorney's fees, arising out of or resulting from Buyer's inspection activities and document review. The Buyer's indemnification obligation shall survive cancellation or Closing of this Agreement. Upon written request of Buyer during the Inspection Period, Seller shall provide to Buyer (or provide reasonable access) to any plans and specifications surveys, and studies it may have in its possession or control relating to the real property. Buyer's right to inspect and enter onto the real property during the Inspection Period is expressly conditioned upon Buyer's covenant to protect the Seller from the filing of any liens against the real property. In the event that any claims of lien are filed against the real property as a result of labor or services performed or materials furnished to the real property which are requested or ordered by Buyer, the Buyer shall either pay the sum claimed by the lienor or bond such claim of lien in the manner permitted by law within five (5) business days after Buyer receives written notice of the existence of the lien. This Buyer obligation shall survive cancellation of this Agreement. From 'the Effective Date through Closing Date, Seller shall maintain the Unit in its AS IS condition, reasonable wear and tear accepted. Buyer, at its sole cost and expense, shall return the condition of the real property to the condition which existed at the time of the Effective Date of this Agreement at the conclusion of any inspections it performs. This obligation shall survive the cancellation of this Agreement. Notwithstanding anything in the contrary contained in this Contract which entitled Buyer to receive the return of its Deposit, the Seller shall be entitled to retain the Deposit, or portion thereof, in the event and to the extent Buyer fails to comply with its indemnification and restoration obligations contained in this Section of the Contract. 13.2 Intentionally omitted. 13.3 Governing Documents. During the Inspection Period, Seller and Buyer shall negotiate the terms, covenants, conditions, and other requirements contained in the Declaration and other instruments which are necessary to define the Buyer's use rights in the real property, including license and easement agreements with respect to appurtenances to the Unit, such as parking spaces, storage areas, air conditioning and heating areas, venting, and garbage collection area. Prior to the expiration of the Inspection Period, Seller and Buyer shall enter into the required license and easement agreements, and agree to the form and substance of the Declaration, proposed operating budget for the Garage. The form and substance of each of the above described documents shall be satisfactory to the Seller's and Buyer's counsel, respectively, in their sole and absolute discretion. In the event Seller and Buyer fail to agree upon the form and substance of the aforedescribed documents before the expiration of the Inspection Period, then either Seller or Buyer may cancel this Contract by delivering to the other party written notice of cancellation within fourteen (14) calendar days after the expiration of the Inspection Period, whereupon the Deposit and accrued interest, if any, shall be promptly be paid to Buyer. Notwithstanding anything to the contrary in this Section 13.3, Buyer acknowledges that the Unit is located within the Seller's public parking garage and that the upper boundary limit of the Unit also serves as the second floor of the Garage on and upon which there will be public vehicular and pedestrian access and traffic. Buyer agrees that, at minimum, the following use restrictions will be included in the Declaration. 1. Buyer's use of the Unit shall be restricted to any use permitted by the applicable zoning code and occupancy regulations imposed by governmental authority, unless otherwise agreed upon by Buyer and Seller. However, Seller makes no representation or warranty that the Unit can be utilized in the manner which is contemplated by Buyer and such use shall be subject to all applicable governmental rules, laws, regulations and ordinances. 2. The times of operation of the Buyer's business and deliveries to the Unit shall be regulated to protect the peaceful and quiet enjoyment of adjoining property owners, consistent with applicable governmental rules, laws, ordinances, and regulations. 3. Intentionally omitted. 4. Buyer shall have no right to use the name "Old School Square" except to identify the physical street address of the Unit. 5. Buyer's use of and activities in the Unit and Garage shall not, directly or indirectly, cause the bonds which were utilized by Seller to finance the Garage to lose their present exemption or qualified status. 6. Buyer to be provided with the permanent right to ten (10) assigned parking spaces and fifteen (15) parking passes in the Garage, such rights to run with the land and be incorporated with the ownership of the Unit. 13.4 This Contract is contingent upon the Seller's determination during the Inspection Period, through the opinion of Seller's bond counsel, that the covenants, terms, conditions, and responsibilities contained in this Contract and the documents referenced in Section 13.3 of this Contract, shall not cause, either directly or indirectly, cause the bonds which were utilized by Seller to finance the Garage to lose their present exemption or qualified status. In the event Seller determines that any of the aforedescribed agreed upon conditions, restrictions, covenants, responsibilities or obligations will, directly or indirectly, the bonds to lose their exemption or qualified status, then Seller, at Seller's option, may cancel this Contact during the Inspection Period by delivering to Buyer written notice of cancellation. 14. Buyer represents the it has the authority to enter into this Agreement, and the financial ability to close this transaction in accordance with its terms, and it has been properly organized and is in good standing as a Florida corporation. 15. Seller agrees to cooperate should Buyer elect to purchase the Unit as part of a like -kind exchange under IRC Section 1031. Buyer's contemplated exchange shall not impose upon Seller any additional liability or financial obligation, and Buyer agrees to hold Seller harmless from any liability that might arise from such exchange. This Agreement shall not be subject to or contingent upon Buyer's ability to effectuate the exchange. In the event any exchange contemplated by Buyer should fail to occur, for whatever reason, the Contract shall nonetheless be consummated as provided herein. 16. Any notice, request, demand, instruction or other communication to be given to either party hereunder, except where required to be delivered at the Closing, shall be copied as set forth below: Seller: R. Brian Shutt, Esq. City Attorney City of Delray Beach 200 N. W. 1 St Avenue Delray Beach, Florida 33444 Telephone: (561) 243 -7091 Facsimile: (561) 278 -4755 With a copy to: Steven D. Rubin, Esq. 980 North Federal Highway, Suite 434 Boca Raton, Florida 33432 Telephone: (561) 391 -7992 Facsimile: (561) 347 -0828 e -mail: rubinlawflorida.com Buyer's Counsel: Jane C. Rankin, Esq. Kubicki Draper One East Broward Boulevard, Suite 1600 Fort Lauderdale, Florida 33301 Telephone: (954) 768 -0011 Facsimile: (954) 768 -0111 IN WITNESS WHEREOF, the Parties have executed this Contract on the dates set forth under their respective signatures. SELLER: Witness Witness BUYER: ess % l412C5 ---ol ^iv r6 t+]'- Witness J�-,ev t'vi . d6C- CITY OF DELRAY BEACH, Florida Municipal Corporation BY: Address: 200 N. W. 1" Avenue Delray Beach, Florida 33444 (561) Date: The Law Offices of Kanner & Pintaluga, P.A., a Florida Corporation Address: 101 1St Floor Delrayl3e 33444 Fax: 56 BY: -� Date: �� ARTS GARAGE 180 NE 1st Street Delray Beach, FL 33444 April 10, 2013 Commissioners & City Attorney City of Delray Beach 100 NW 1stAvenue Delray Beach, FL 33444 Dear Commissioners & Mr. Shutt; In February, 2006 the City of Delray Beach adopted the Delray Beach Cultural Plan, a community driven blueprint designed to identify and leverage Delray's unique character. The plan called on Delray Beach to develop cultural assets that were "creative, authentic and intimate" noting that Delray Beach was one of the only places in Florida where you "can park your car - -or leave it at home and walk to the beach, to 50 great restaurants, to galleries, parks, museums, historic districts and businesses." Two years ago, the Creative City Collaborative with the help of the CRA launched "Arts Garage" which has embodied the Cultural Plan's creative, authentic and intimate principles. By quickly becoming a valuable cultural asset for Delray Beach, The Arts Garage has become a cultural beacon in South Florida drawing in standing room only crowds, earning publicity, connecting with the youth of this community though education and outreach programs and driving economic development in Pineapple Grove, downtown, and the entire Delray Beach community. We and all of our patrons have grown to love and appreciate our success in our current location. We would like this letter to serve as a nonbinding letter of intent for our organization, The Creative City Collaborative of Delray Beach, Inc., to purchase the space (approximately 10,000 square feet) in the City's Garage Building at a price up to $2,500,000. Our board is strongly committed to Arts Garage and its current location. We are prepared to immediately embark on a capital campaign to remain in the garage and to develop the Arts Warehouse as incubator space. We feel confident in our ability to raise the necessary funds for this facility and it would also substantially reduce the investment cost needed at the Warehouse location initially. We feel that our success at this location has been so great for our entire community and we do not want to lose that for our town. We have been fortunate to have people travel in specifically for our programing from areas as far as Miami, Tampa, and even out of the State. Arts Garage continues to fulfill important aspects of the Cultural Plan by offering educational classes in our facility during the day to make Delray Beach a "learning city ", an aspect of the plan that its authors felt would position the city strongly on a national basis. We have been able to offer classes to people of all ages, but have great programs specifically for youth in the community. We strongly believe Arts Garage is the highest and best use of this space. The Arts Garage's strategic location near the Delray Beach Center for the Arts and in the heart of Pineapple Grove brings vibrancy and culture to the area helping local businesses, hotels and restaurants. It also helps tie the downtown into Pineapple Grove by offering vibrant activities at all times of the day and into the night. The CCC has strived to develop partnerships with nearby businesses in an effort to drive business to our neighbors. In return, we have received enormous support from residents, visitors and the Pineapple Grove Association. Arts Garage has delighted audiences and has become a popular place for the community to gather and enjoy a wide variety of experiences. Based on this tremendous support from the community over the past two years, we are confident in our ability to succeed and to pay the city a fair market value for the site. We believe we bring both tangible and intangible benefits to Delray Beach that can best be developed and amplified if we stay in our current location. We have proven our viability as a cultural asset and we are poised for an even brighter future. We are willing to work with the city on capital raising benchmarks to ensure that taxpayer's interests are served. In general this location being the bridge between East Atlantic Avenue and the Pineapple Grove Arts District is too important of a location to put an office use in. There are many reasons why office is not permitted on the ground floor of East Atlantic Avenue and feel those same reasons apply to this space too. As the Bridge between Pineapple Grove and East Atlantic Avenue we as well as the community believe it is important to keep the area brimming with excitement at night and be inviting to locals and tourists. A dark office space does not accomplish this. We ask that the City take the time and look at this from a perspective of land planning and future use looking 10 years into the future. The fact the City is in a position to control what the next uses are to occupy a property as important to the City as this location will need your deepest considerations. Proposed Terms: • A Purchase Price not to exceed 2.5 million dollars for the entire 10,000 square feet Work with City and CRA to provide a total of five years of continued lease term • Currently we have 2 years of term left and are asking for 3 additional years • The Organization would be able to develop a capital campaign for both the Garage Space as well as the Warehouse at one time. • The security of having the space for 5 years is quintessential to being able to set up a true capital campaign • Move into a Purchase and Sale contract and provide this organization the time to secure the capital needed as a contingency. o Having the property on the market sends mixed messages to possible donors. We appreciate your consideration and are happy to discuss this further or answer any questions. We are being represented by the following: Brian L. Rosen Marcus & Millichap Phone: 954 - 245 -3513 Cell: 305 - 753 -0808 brian.rosen @marcusmillichap.com Best Regards, Allen Glass President on behalf of the Board Creative City Collaborative /Arts Garage