04-20-06 Agenda Spec
CITY COMMISSION
CITY OF DELRAY BEACH, FLORIDA
SPECIAL MEETING - THURSDAY. APRIL 20, 2006
DELRAY BEACH
~
A11-AnBit:aClty
11111!
1993
TO BEGIN 2001
UPON COMPLETION OF THE SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD MEETING
(APPROXIMATELY 5:00 P.M. - 6:00 P.M.)
AT
THE SOUTH CENTRAL REGIONAL WASTEWATER TREATMENT PLANT
1801 NORTH CONGRESS AVENUE
DELRAY BEACH, FLORIDA
The City will furnish appropriate auxiliary aids and services where necessary to afford an individual
with a disability an equal opportunity to participate in and enjoy the benefits of a service, program,
or activity conducted by the City. Contact Doug Smith 243-7144, 24 hours prior to the program or
activity in order for the City to reasonably accommodate your request. Adaptive listening devices
are available for meetings in the Commission Chambers.
SPECIAL MEETING AGENDA
Pursuant to Section 3.12 of the Charter of the City of Delray Beach, Mayor Jeff Perlman has
instructed me to announce a Special Meeting of the City Commission to be held for the following
purposes:
1. AGREEMENTS/RELEASES/AUBURN TRACE: Consider approval of Agreements
and Releases regarding the City's purchase of Auburn Trace Land.
2. BLOCK 77 CLOSING: Consider approval of items that may need to be approved
regarding the Block 77 closing.
...............................................................................
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.
,.
[ITY OF DEL
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CITY ATTORNEY'S OFFICE
~'J) ,IV! J;t AVEIH.';CC ;:;ELPAY BEl..CH. FLORIDA 33444
TELEPHONE: 5(,,/2_'?-7:,+), FACSIMILE: 561/278-4755
DELRAY BEACH
f lOR IDA
lI.ttI:II
AII.America City
, III I! DATE:
Writer's Direct Line: 561/243-7091
MEMORANDUM
April 20, 2006
1993
2001
TO:
City Commission
David Harden, City Manager
FROM: Susan A. Ruby, City Attorney
SUBJECT: Auburn Trace Purchase of Tract B/Third Addendum to Contract;
Cross Easement Agreement; Delray Beach Land Use Amendment;
Consent to Transfer Ltd Partnership Agreement; Subordination
Agreement
Please approve the above agreements which will permit the closing on the Auburn
Trace, Tract B properties prior to April 30, 2006.
The first agreement is the Third Addendum and provides for the closing to occur
on April 30, 2006 and requires payment to the City of $356,515.84 in consideration
for the Subordination Agreement.
The second agreement is the Cross Easement Agreement and is also an exhibit to
the Third Addendum. That allows drainage on the site of the School District, the
City and Auburn Trace with Auburn Trace retaining their small lined pond for
irrigation purposes. The City is to install landscaping between Tract B and the
Auburn Trace property and the School District shall construct all drainage
improvements.
The Third Agreement is an agreement required by previous agreements releasing
Tract B from affordable housing requirements.
The fourth agreement results from previous agreements we have with Auburn
Trace which requires our consent to the transfer of the Limited Partnership.
The fifth agreement is the Subordination Agreement which in effect subordinates
our remaining mortgage to the new lenders loan of 8 million dollars. The City's
remaining loans that we are subordinating are approximately one for $340,224 and
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. City Commission
April 20, 2006
Page 2
one for 3 1/2 million dollars. We have subordinated previously and Auburn Trace
is timely with their current payments.
Our office recommends approval of all five agreements.
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Attachments
cc: Chevelle Nubin, City Clerk
ADD~NDUM NO. TH~~~ TO
CONTRACT FOR SALE AND PURCHASE
Buyer:
City of Delray Beach, a Florida municipal corporation
Seller:
Auburn Trace, Ltd., a Florida limited partnership
Property:
Tract B, Auburn Trace, according to the map or plat thereof, recorded in Plat
Book 64, Page 184, of the Public Records of Palm Beach County, Florida.
WHEREAS, on August 4, 2005, Seller and Buyer entered into a Contract for Sale
and Purchase (hereinafter referred to as the "Contract") for the sale and purchase of Tract
B, Auburn Trace, according to the map or plat thereof, recorded in Plat Book 64, Page 184,
of the Public Records of Palm Beach County, Florida (hereinafter referred to as the
"Property"); and
WHEREAS, the Contract was amended on October 12, 2005 and November 30,
2005; and
WHEREAS, Buyer is willing to grant an extension of time for closing upon
consideration of the Seller's execution of a Cross Easement Agreement which includes the
School Board of Palm Beach County ("School Board") with respect to the real property the
School Board owns immediately to the North of this Property on which the Village Academy
is located and in consideration of Seller's joinder and consent to the School Board's
application to the South Florida Water Management District for the issuance of a permit
which is necessary for the construction of an addition to the Village Academy by the School
Board.
NOW. THEREFORE. in consideration of the mutual covenants and Dromises
and ~eller shall have the obligation to close on the date specified in the written notice.
Seller may exercise this option one time. Time is of the essence with respect to closing.
3. Seller acknowledges and agrees that Seller's ability to refinance its first
mortgage or effect the subordination of the FHC Mortgage second mortgage is not a Seller
contingency and Seller is obligated to obtain the release or satisfaction of all mortgages
which presently encumber the Property at or prior to closing.
4. Seller has the affirmative duty to convey good, marketable and insurable title
to Buyer at closing, and at closing, with respect to Attorneys' Title Insurance Fund, Inc.
Title Insurance Commitment No. C-7075437, Seller's Title Agent shall mark all of the items
in Schedule B (I) as "satisfied" and delete the following items on Schedule B II: Items 1,2
3, 5, 11, and 12. Buyer agrees that title to the Property may also be subject to the Cross
Easement Agreement described in paragraph (5) of this Addendum. Seller shall not further
encumber the Property without Buyer's written consent which may be unreasonably
withheld.
5. Simultaneously with or prior to the execution of this Addendum, Seller shall
execute the Cross Easement Agreement in favor of the School Board, the form of which is
attached hereto and made a part hereof as Exhibit "1_, and deliver it to the Buyer. If as of
the date of execution of this Addendum, the Cross Easement Agreement form has not been
approved by the South Florida Water Management District, Seller agrees to execute any
modification to the Cross Easement Agreement which the South Florida Water
Management District requires in connection with the issuance of the South Florida Water
Management District Permit, provided Seller's drainage and irrigation rights under the
Cross Easement Agreement, the form which is attached to this Addendum, are not
materially adversely affected. Prior to closing, Seller shall use good faith to obtain the
subordination of the existing mortgage liens on the Property, TractAJ. Tract C, and Tract D
to the Cross Easement Agreement. Seller represents that it has obtained, as of the date of
execution of this Addendum, the approval of FHC to release the Land Use Agreement
~roperiy. ~e"er~s obllgaHon to cooperate shall Include, without limitation, its obligation to
sign, join in, or consent to any plan, application, process or document, including the
vacation of the Plat or a replat, that may be reasonably necessary for Buyer to construct
the improvements on the Property and the School Board to construct the improvements on
its real property, if deemed necessary and desirable in the reasonable discretion of the
Buyer and School Board respectively, provided such cooperation will not cause the material
terms of the Cross Easement Agreement or the South Florida Water Management District
Permit to be violated. This paragraph shall survive closing.
8. As of the date of execution of this Addendum and continuing after the Closing
Date of this Contract, the parties shall cooperate in good faith with respect to Seller's plan
to construct improvements on Tract A, Tract C, and Tract D. Buyer's obligation to
cooperate shall include, without limitation, its obligation to sign, join in, or consent to any
plan, application, process or document including, vacation of the Plat or a replat, that may
be reasonably necessary for Seller to construct the improvements on Tract AJ. Tract C, and
Tract D if deemed necessary and desirable in the reasonable discretion of the Seller,
provided such cooperation will not cause the material terms of the Cross Easement
Agreement or the South Florida Water Management District Permit to be violated, and the
Buyer's and School Board's present plans for constructing improvements on the Property
would not be adversely affected. Notwithstanding anything to the contrary contained in this
Addendum, since the Buyer is a governmental entity, its obligation to cooperate is subject
to all constraints imposed by law, including without limitation, the prohibition against
contract zoning and the fact that all decisions of Buyer must be made in public and are
subject to the consent and approval of the City Commission and any applicable City Board
or Committee, which consent and approval may be denied. Nothing contained in this
paragraph shall grant Seller any vested rights. This paragraph shall survive closing.
9. Seller and Buyer acknowledge that Buyer holds a certain mortgage in favor of
Buyer for a debt from Seller to Buyer, the security for which is the Property and the
..___=_:__ T..__"'_ __ A. .&..... .__ T..___ nl_.&. '.&.L_ "n... ____,_ .. A1_-L____", ~L _ r""\... .__,,_ .. ._---L___ __ _ !_
10. Buyer hereby approves and consents to the sale of a certain limited
partnership interest owned by Boston Tax Credit Fund, Ltd. to Mr. Tom Hinners (99%),
such limited partnership interest being a limited partnership interest in the Seller. In the
event that there should be a reasonable requirement to execute any additional documents
in furtherance of this approval and consent, the Buyer agrees to sign and deliver same. At
closing, Seller and all other parties to the Buyer's Mortgage shall execute the Consent to
Transfer Limited Partnership Interest Agreement, a copy of which is attached hereto as
Exhibit "4". This paragraph shall survive the closing.
11. At closing, Buyer and Seller shall modify the Land Use Restriction Agreement
which is recorded in Official Record Book 6116, Page 470, of the Public Records of Palm
Beach County, Florida, to release Tract B from the restriction without affecting any other
rights or obligations contained therein.
12. Except as modified by the terms and conditions of this Addendum, Seller and
Buyer hereby ratify the terms and conditions of the original Contract and prior Addenda.
13. In the event of any conflict between the terms of this Addendum and the
Contract and any other Addendum, the terms of this Addendum shall control.
14. This Agreement may not be modified except by a writing signed by all parties.
15. The School Board shall be deemed a third party beneficiary of this Addendum
with respect to the terms which relate to it.
IN WITNESS WHEREOF, the parties have signed this addendum on the dates
stated below.
AUBURN TRACE L TD__ a Florida LimitAd
Oate:
By:
Jeff Perlman, Mayor, Buyer
Attested by:
Printed Name
City Clerk
PREPARED BY AND
RETURN TO:
STEVEN D. RUBIN, ESQ.
980 North Federal Highway, Suite 434
Boca Raton, Florida 33432
CROSS-EASEMENT AGREEMENT
THIS Cross-Easement Agreement is made this _ day of ,2006, by Auburn
Trace, Ltd., a Florida limited partnership, its successors and assigns (hereinafter referred to as
"Auburn Trace"), whose mailing address is 1301 S. .W. 10th Avenue, Building J, Delray Beach,
Florida 33444, and the School Board of Palm Beach County, Florida, its successors and assigns,
whose mailing address is 3318 Forest Hill Boulevard, C-214, West Palm Beach, Florida 33406,
(hereinafter referred to as "School Board").
WITNESSETH:
For Ten Dollars ($10.00) and other good and valuable consideration in hand paid by the
School Board to Auburn Trace, the adequacy and receipt of which are hereby acknowledged,
Auburn Trace hereby grants, bargains and conveys to the School Board a non-exclusive drainage
easement, for the purposes described in this Agreement, in, over, across, on, under and through the
real property located in Palm Beach County, Florida described in Exhibit "A" attached hereto and
incorporated herein by reference and hereinafter referred to as "Easement Parcel One", and for Ten
Dollars ($10.00) and other good and valuable consideration in hand paid by Auburn Trace to the
c. "Tract AC Owner" shall mean the record owner of Tract A, Tract C, and
Tract D as of the date ofthe execution of this Easement Agreement and any
successor or assign of the owner of Tract A, Tract C, or Tract D as a result
oftransfer or conveyance of Tract A, Tract C, or Tract D by Auburn Trace,
or Auburn Trace's successors and assigns.
d. "Tract B Owner" shall mean the record owner of Tract B, as of the date of
the execution of this Easement Agreement and any successor or assign ofthe
owner of Tract B as a result of a transfer or conveyance of Tract B by
Auburn Trace, or Auburn Trace's successors and assigns.
e. "Easement Parcel One" means the real property described in Exhibit "A"
which is attached hereto and made a part hereof.
f. "Easement Parcel Two" means the real property described in Exhibit "B"
which is attached hereto and made a part hereof
g. "School Board Property" means the real property described in Exhibit "C"
which is attached hereto and made a part hereof.
h. "Tract A", "Tract C", and "Tract D" means Tract A, Tract C, and Tract D of
Auburn Trace, according to the Plat thereof, recorded in Plat Book 64, Page
184-186, of the Public Records of Palm Beach County, Florida.
1. "Tract B" means Tract B of Auburn Trace, according to the Plat thereof,
recorded in Plat Book 64, Page 184-186, of the Public Records of Palm
Beach County, Florida, on which Easement Parcel One is located.
J. "South Florida Water Management District Permit" means the Surface Water
Maintenance Permit to be issued by the South Florida Water Management
District for the surface water management of the School Board Property,
Tract A" Tract B, Tract C, and Tract D. In the event the South Florida
Water Management District Permit has not been issued as of the date of the
execution of this Agreement, Exhibit "D" shall consist of the SFWMD
Permit Application No. 051110-12 which is jointly signed by Tract Owner
AC, the School Board, and the City of Delray Beach. When the Permit is
issued, it shall be attached as a substitute Exhibit "D"to this Agreement.
k. "SFWMD" means the South Florida Water Management District.
1. "Surface Water Management System" is the system for surface water
drainage described in the SFWMD Permit.
m. The word "maintenance" or "maintain", where the context applies" includes
the requirement to allow the proper and efficient flow of surface water
through the surface water system within Easement Parcel One and Easement
Parcel Two and to perform the necessary maintenance to allow access and
proper operation of the surface water management system within said
Easement Parcels.
n. "Easement Agreement" or "Agreement" mean this Cross Easement
Agreement.
2. This Easement Agreement is given for the purpose of allowing surface water to drain
from the School Board Property, Tract A" Tract B, Tract C, and Tract D into the dry retention area
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within Easement Parcel One, for the School Board to construct an underground culvert from the
School Board Property into Easement Parcel One that permits the drainage of storm water from the
School Board Property to the dry retention area within Easement Parcel One, for the School Board
to construct all necessary improvements on Easement Parcel One, Easement Parcel Two, Tract A,
Tract B, Tract C, Tract D, and the School Board Property to comply with the conditions and
requirements contained in the SFWMD Permit, for Tract AC Owner to drain surface water into
Easement Parcel One through existing or replacement underground pipes and conduits, for Tract AC
Owner to utilize water in Easement Parcel One existing lined retention pond for irrigation of
landscaped areas located on Tract A, Tract C, and Tract D and for Tract AC Owner and Tract B
Owner to drain outflow surface water from Easement Parcel One through Easement Parcel Two and
ultimately into the City of Delray Beach's surface water drainage system.
3. The term of this Agreement shall be perpetual.
4.a. School Board, at its sole cost and expense, shall construct all of the drainage facilities
and improvements required for the issuance of the South Florida Water Management District Permit
on the School Board Property, Tract A, Tract B, Tract C , Tract D, Easement Parcel One and
Easement Parcel Two as shown in the SFWMD Application, and any other improvements deemed
necessary or proper to obtain the South Florida Water Management District Permit. The School
Board's construction of the drainage facilities and improvements shall include, without limitation,
the reinstallation of any of Auburn Trace's facilities, pipes, wells or equipment which are damaged
or removed during construction. The reinstallation of such damaged or removed facilities and
equipment shall be with facilities, pipes, wells or equipment of like kind and quality which will
enable Auburn Trace to utilize Tract B in the manner described in paragraph (17) of this Agreement.
School Board shall also be responsible for providing drainage from and irrigation to Tract A and
Tract C during the construction phase ofthe project if during the period of construction~ the drainage
and irrigation facilities and equipment presently located in Tract B which serve Tract A and Tract C
are damaged the result of which temporarily reduces the drainage and irrigation of Tract A and Tract
C to capacities which are less than those which are described in paragraph (17) of this Agreement.
School Board shall construct the improvements necessary for the issuance of the South Florida
Water Management District Permit in a good and workmanlike manner, and in accordance with all
applicable laws, rules, statutes, ordinances, and regulations. School Board warrants that the
facilities, equipment and improvements it constructs shall be free from defects or negligent
construction in labor, materials and services for a period of one (1) year after all ofthe construction
has been completed. School Board shall repair or replace, at its cost and expense, any defective or
negligent labor, services and material, within a reasonable time after written notice is delivered to it
by Tract B Owner.
b. As of the date of the execution of this Agreement, it is anticipated that to obtain the
issuance ofthe SFWMD Permit, portions ofthe existing berm located along the boundary lines of
Tract A, Tract B, Tract C, and Tract D (approximately one thousand five hundred linear feet
(1,500.00') must be raised to a height of approximately fifteen and 73/00 feet (15.73', i.e. the twenty-
five (25) year three (3) day storm level) School Board, at its sole cost and expense, shall raise the
height of the existing berm that is located on said Tracts which will be necessary to obtain the
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issuance of the South Water Management District Permit. The School Board shall have the
temporary right to enter onto said Tracts for the limited purpose of installing materials to raise the
height of the existing the berm. The School Board shall use its best efforts not to disturb the
peaceful and quiet enjoyment of said Tracts during installation, and it shall remove all equipment
and leave said Tracts in a clean and orderly condition when all work is completed. In the event that
there shall be any improvements within the area to be raised to form the berm, the School Board
shall restore the improvements to a condition that is reasonably similar to the condition in which
they existed before the raising of the berm. Such restoration shall be at the sole cost and expense of
the School Board. Notwithstanding anything to the contrary contained in this subparagraph, the berm
shall be raised only where the existing berm is located and existing drives and entryways in said
Tracts shall not be disturbed. The raised berm shall be sodded by the School Board as part of its
installation obligation. School Board shall raise the height of the existing berm necessary for the
issuance of the South Florida Water Management District Permit in a good and workmanlike
manner, and in accordance with all applicable laws, rules, statutes, ordinances, and regulations.
School Board warrants that the improvements it installs shall be free from defects or negligent
construction in labor, materials and services for a period of one (I) year after all of the construction
has been completed. School Board shall repair or replace, at its cost and expense, any defective or
negligent labor, services and material, within a reasonable time after written notice is delivered to it
by Tract AC Owner. However, Tract AC Owner shall be solely responsible for watering the sod
after it is installed.
c. After the initial construction of the facilities and improvements required by the South
Florida Water Management District Permit by the School Board, the City shall construct a landscape
buffer on Tract B between the Auburn Trace housing development and Tract B. The City shall have
the responsibility to maintain, repair and replace such landscaping at its cost and expense and to
obtain such permits as may be necessary. Such construction of the landscape buffer shall be
completed within ninety (90) days of the completion of the construction of the facilities and
improvements required by the South Florida Water Management District Permit.
5. After initial construction of the facilities and improvements required by the South
Florida Water Management District Permit by the School Board, and except as otherwise provided
in this Agreement, Tract B Owner hereby shall and does accept responsibility for the operation and
maintenance, repair and replacement of the surface water management system described in the
South Florida Water Management District Permit to the extent the facilities and improvements are
located on Easement Parcel One or Tract B (expressly excluding the irrigation improvements
described in paragraph (17) ofthis Agreement which remain the responsibility of Tract AC Owner).
Tract B Owner shall have the responsibility to maintain, repair and replace such facilities and
improvements at its cost and expense to comply with the SFWMD Permit and to maintain a free
flowing, unobstructed drainage system.
6. After initial construction of the facilities and improvements required by the South
Florida Water Management District Permit by the School Board, and except as otherwise provided
in this Agreement, School Board hereby shall and does accept responsibility for the operation and
maintenance, repair and replacement of the surface water management system described in the
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South Florida Water Management District Permit to the extent the facilities and improvements are
located on Easement Parcel Two or the School Board Property. School Board shall have the
responsibility to maintain, repair and replace such facilities and improvements at its cost and
expense to comply with the SFWMD Permit and to maintain a free flowing, unobstructed drainage
system.
7. After initial construction of the facilities and improvements required by the South
Florida Water Management District Permit by the School Board, and except as otherwise provided
in this Agreement, Tract AC Owner hereby shall and does accept responsibility for the operation and
maintenance, repair and replacement of the surface water management system described in the South
Florida Water Management District Permit to the extent the facilities and improvements are located
on Tract A, Tract C, or Tract D. Tract AC Owner shall have the responsibility to maintain, repair
and replace such facilities and improvements at its cost and expense to comply with the SFWMD
Permit and to maintain a free flowing, unobstructed drainage system.
8. Tract AC Owner, Tract B Owner and School Board shall not modify the surface
water management system without first obtaining approval of the South Florida Water Management
District.
9. Tract AC Owner, Tract B Owner and School Board shall not violate any of the
conditions, terms or covenants described in the South Florida Water Management District Permit.
10. The easements granted in this Agreement are non-exclusive.
11. In the event any material provision contained in the South Florida Water
Management District Permit is violated, the South Florida Water Management District shall have the
right to take enforcement action, including a civil action for an injunction and penalties, against the
party who has violated the Permit provision to compel such party to correct any outstanding
violations.
12. Tract AC Owner, Tract B Owner, and School Board shall have reasonable ingress and
egress to, from, by, through, under and across Easement Parcel One and Easement Parcel Two to
construct and thereafter maintain, repair and replace the drainage facilities and improvements
required by the South Florida Water Management District Permit in accordance with their respective
responsibilities described in this Agreement.
13. Tract AC Owner, at its sole cost and expense, shall maintain, repair and replace the
drainage equipment, improvements, pipes, conduits, and other facilities located on Tract A, Tract C,
and Tract D which serve the purpose of draining surface water from Tract A, Tract C, and Tract D
into Easement Parcel One.
14.a. Should Tract AC Owner fail to construct, repair or maintain the portion of the surface
water management system located on Tract A, Tract C, or Tract D for which it is responsible so that
water will not flow in an efficient manner or in a manner in violation of the South Florida Water
Management District Permit, the School Board or Tract B Owner, after not less than seven (7) days
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written notice to Tract AC Owner to cure the default, (except no notice shall be required in the event
of an emergency) may, but it is not obligated to, enter onto Tract A, Tract C, or Tract D to perform
all necessary construction, repair, maintenance and operating work and may assess Tract AC Owner
for the cost of said work. The assessment shall be lien against all of Tract A, Tract C, and Tract D.
The lien shall attach to the property owned by the defaulting party effective upon recording of a
notice thereof in the Public Records of Palm Beach County, Florida. The lien rights granted herein
will not affect the easements and other rights granted herein to other Owners of any property and
such rights shall continue in full force and effect. Such lien may be foreclosed in the same manner as
a mortgage and in accordance with law. Such costs shall also be the personal obligation of Tract AC
Owner at the time the costs are incurred, and may be collected accordingly_
b. Should School Board fail to construct, repair or maintain the portion of the surface
water management system located on School Board Property for which it is responsible so that water
will not flow in an efficient manner or in a manner in violation of the South Florida Water
Management District Permit, Tract AC Owner or Tract B Owner, after not less than seven (7) days
written notice to School Board to cure the default (except no notice shall be required in the event of
an emergency), may, but it is not obligated to, enter onto any Easement Parcel to perform all
necessary construction, repair, maintenance and operating work and may assess School Board for the
cost of said work. If at the time the cost of the work is assessed the Owner of the School Board
Property is not a governmental entity, the assessment shall be lien against all of the School Board
Property. The lien shall attach to the property owned by the defaulting party effective upon
recording of a notice thereof in the Public Records of Palm Beach County, Florida. The lien rights
granted herein will not affect the easements and other rights granted herein to other Owners of any
property and such rights shall continue in full force and effect" Such lien may be foreclosed in the
same manner as a mortgage and in accordance with law. Such costs shall also be the personal
obligation of School Board Property Owner at the time the costs are incurred, and may be collected
accordingly.
c. Should Tract B Owner fail to construct, repair or maintain the portion of the surface
water management system located on Tract B for which it is responsible so that water will not flow
in an efficient manner or in a manner in violation of the South Florida Water Management District
Permit, the School Board or Tract AC Owner, after not less than seven (7) days written notice to
Tract B Owner to cure the default (except no notice shall be required in the event of an emergency),
may, but it is not obligated to, enter onto any Easement Parcel to perform all necessary construction,
repair, maintenance and operating work and may assess Tract B Owner for the cost of said work. If
at the time the cost of the work is assessed the Owner of Tract B is not a governmental entity, the
assessment shall be lien against all of Tract B. The lien shall attach to the property owned by the
defaulting party effective upon recording of a notice thereof in the Public Records of Palm Beach
County, Florida. The lien rights granted herein will not affect the easements and other rights granted
herein to other Owners of any property and such rights shall continue in full force and effect. Such
lien may be foreclosed in the same manner as mortgage and in accordance with law. Such costs
shall also be the personal obligation of Tract B Owner at the time the costs are incurred, and may be
collected accordingly.
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15. The School Board and Tract AC Owner shall indemnify and save harmless Tract B
Owner from any and all suits, actions, claims, judgments, obligations, or liabilities of every nature
and description which arise from School Board's or Tract AC Owner's use, respectively, of
Easement Parcel One, or with respect to the construction, installation, maintenance, repair or
replacement of the surface water management drainage facilities, equipment, and improvements for
which School Board or Tract AC Owner are responsible, respectively. The School Board's
indemnification obligations shall be limited to the extent and limits provided in Florida Statutes S
768.28, and this indemnification obligation shall not be construed as a waiver of any right or defense
that the School Board has under said Statute.
16. Tract AC Owner and Tract B Owner shall indemnify and save harmless the School
Board from any and all suits, actions, claims, judgments, obligations, or liabilities of every nature
and description which arise from the use by Tract AC Owner or Tract B Owner of Easement Parcel
Two, respectively, or with respect to the construction, installation, maintenance, repair or
replacement ofthe surface water management drainage facilities, equipment, and improvements for
which Tract AC Owner or Tract B Owner is responsible, respectively. In the event Tract B is owned
by the City of Del ray Beach, the City of Del ray Beach's indemnification obligations shall be limited
to the extent and limits provided in Florida Statutes S 768.28, and this indemnification obligation
shall not be construed as a waiver of any right or defense that the City of Delray Beach has under
said Statute.
17.a. Subject to the limits set forth in this subparagraph, Tract AC Owner shall be entitled
to utilize the surface water which drains or is pumped into or otherwise collects in the existing lined
concrete retention pond located in Easement Parcel One (and such pond shall not be removed during
construction of improvements in Easement Parcel One) for irrigation of the landscaped and sodded
areas on Tract A, Tract C, and Tract D (hereinafter referred to as the "pervious areas") The parties
acknowledge that Tract D is presently not an irrigated area but is itself a water retention area (but
nothing herein requires such area to remain in such a condition). Subject to paragraph (4) of this
Agreement and except as otherwise provided therein, Tract AC Owner shall maintain, repair and
replace, at its sole cost and expense, the pump station, the irrigation pipes and any other equipment
or facilities now or hereinafter located in Easement Parcel One which relate to the irrigation of
pervious areas on Tract A, Tract C, and Tract D. The parties acknowledge that a precise
measurement of the volume of water which is presently needed to irrigate the existing pervious areas
on Tract A, Tract C, and Tract D cannot be calculated. However, the parties agree that for purpose
of this Agreement, Tract AC Owner shall be limited to utilizing up to a volume amount of water
from the existing lined concrete retention pond which does not exceed the volume amount of water
presently needed to irrigate the pervious areas located on Tract A and Tract C (and not including
Tract D) as shown in the aerial photograph, a copy of which is attached hereto and made a part
hereof as Exhibit "E".
Tract AC Owner shall have no right to place any additional pipes, conduit, pumps, facilities,
equipment or improvements (collectively the "irrigation improvements") on, over, under or through
Easement Parcel One than what is presently located on Easement Parcel One as shown on the
7 of 16
Survey prepared by A vrom & Associates, Inc., Job No. 7893, updated on January 13,2006, which is
attached hereto and made a part hereof as Exhibit "F", except: (1) if the irrigation improvements are
replaced as a result of the removal or damage ofthe irrigation improvements by the School Board in
connection with its construction of the drainage facilities as described in paragraph (4) of this
Agreement, then those replaced irrigation improvements may be located on Easement Parcel One;
or (2) Ifthere are technological advances or changes in the manner in which water from the retention
pond located on Easement Parcel One is pumped to Tract A or Tract C, in which event, Tract AC
Owner shall have the right to replace the irrigation improvements, or any portion thereof, with such
other technologically advanced irrigation improvements, provided the location of such irrigation
improvements is within three feet (3') of their location existing as of the date the SFWMD Permit is
issued, provided further, that such placement does not violate the terms of the South Florida Water
Management District Permit.
b. Notwithstanding anything to the contrary contained in this Agreement, in no event
shall Tract AC Owner be impeded, limited, or stopped from being able to drain an amount of surface
water into Easement Parcel One which does not exceed the amount surface water Tract AC Owner
drained into Tract B as of August 5, 2005. The parties acknowledge and agree that a precise
calculation of the volume amount of surface water which drained from Tract A and Tract C into
Tract B as of August 5, 2005 cannot be made. However, the parties acknowledge and agree that the
SFWMD Permit, when issued, will be based upon three (3) benchmark elevations which take into
account all of the surface water which will drain into Easement Parcel One from Tracts A, B, C, and
D and the School Board Property with respect to the improvements presently located on Tracts A, C,
and D, and the improvements which the County of Palm Beach intends to construct on a portion of
Tract B (i.e. the Head Start facility), and the improvements the School Board intends to construct on
the School Board Property. The three benchmark elevations are the twenty five (25) year, three (3)
day storm for the perimeter berm elevation, the one hundred (100) year storm for the finished floor
elevation, and the five (5) year storm for the road grade elevation (hereinafter referred to as the
"benchmark elevations"). Accordingly, the improvements, calculations, conditions and other
matters set forth in the SFWMD Permit describe conditions that presently approximate such amount
of surface water drainage and any change to the SFWMD Permit could result in an impediment,
limitation, or stoppage of the water drainage rights granted to any party to this Agreement.
After the SFWMD Permit has been issued, no improvements or modifications may be
made to Tracts A, B, C, or D, or the School Board Property unless the party which then owns the
property which is to be improved or modified, submits an application to the SFWMD for approval of
the proposed improvement or modification. Ifthe proposed modification or improvement does not
result in a change in any of the three benchmark elevations, no additional surface water will drain
into Easement Parcel One, and the other parties to this Agreement would not be required to make
any change to their respective property or improvements (which are subject to this Agreement), then
the other parties to this Agreement shall, within twenty (20) business days after delivery of a written
request ("written request"), and except as otherwise provided herein, join in the SFWMD application
for approval of the proposed modifications or improvements. The written request shall be
accompanied by engineering data, surveys, architectural plans and drawings, and such other
documents which are reasonably necessary for the other parties to this Agreement to verify that the
8 of 16
proposed modifications or improvements will not result in a change in the three benchmark
elevations or additional surface water to drain into Easement Parcel One, or would require a change
or improvement to their respective properties which are subject to this Agreement. Notwithstanding
anything to the contrary contained in this subparagraph, if the proposed modifications or
improvements would result in a change in one or more ofthe three benchmark elevations, additional
surface water to drain into Easement Parcel One, or would require a change or improvement to the
other parties' properties or improvements which are subject to this Agreement, then the other parties
to this Agreement may, but are not obligated to, join in the SFWMD application. A party who
asserts that it is not obligated to join in the SFWMD application shall notify the other parties to this
Agreement of such assertion within twenty (20) business days after the delivery of the written notice
and accompanying documents. The failure to timely notify the other parties to this Agreement of
such assertion shall be deemed a waiver of the right to refuse to join in the SFWMD application.
Nothing contained in this subparagraph shall relieve a party who is proposing the
modification or improvement from obtaining any necessary approval or permit from any other
governmental agency or political subdivision which has jurisdiction over the property, including if a
party to this Agreement is such governmental agency or political subdivision. To the extent such
approval or permit is required and the other party to this Agreement is the governmental agency or
political subdivision which may grant or deny such approval or permit, nothing contained herein
limits the authority of said party to grant or deny such approval or permit in accordance with
applicable law, and no party to this Agreement shall have any vested rights.
c. Anything herein to the contrary notwithstanding, nothing herein grants South Florida
Water Management District the right to modify, limit, or otherwise change the rights granted to
Tract AC Owner in paragraph (17) of this Agreement.
18. All parties shall pay before delinquency all taxes and assessments levied against
their respective properties.
19. The School Board shall not charge Tract AC Owner or Tract B Owner for the use of
Easement Parcel Two and Tract B Owner shall not charge the School Board or Tract AC Owner for
the use of Easement Parcel One. Easement Parcel One is an easement appurtenant to the School
Board Property, Tract A, Tract C and Tract D, and is intended to benefit such properties and shall
run in favor of the School Board, Tract A, Tract C, and Tract D, and shall be binding upon Tract B
Owner's interest in Easement Parcel One and its successors and assigns with Tract B being the
serviant estate. Easement Parcel Two is an easement appurtenant to Tract B, Tract A, Tract C, and
Tract D, and is intended to benefit such properties and shall run in favor of Tract AC Owner and
Tract B Owner, respectively, and their successors and assigns and shall be binding upon the School
Board, and its successor and assigns, with the School Board's interest in Easement Parcel Two being
the serviant estate.
20. This Easement Agreement is a covenant running with the land and shall be binding
upon and shall inure to the benefit of the heirs, legal personal representatives, successors and assigns
of the parties hereto, and shall bind all present and subsequent owners of Tract A, Tract B, Tract C,
9 of 16
Tract D and the School Board Property.
21.a. Tract AC Owner shall procure and maintain liability insurance protecting Tract B
Owner and School Board with respect to Tract AC Owner's use of Easement Parcel One and
Easement Parcel Two, respectively, whereby injury or death is covered to the extent of
$1,000,000.00/$1,000,000.00, and Tract B Owner and School Board shall be named as additional
insureds and loss payees in Tract AC Owner's policy. Tract AC Owner shall pay premiums and
shall deliver proof of insurance to Tract B Owner and School Board on an annual basis. School
Board shall only use properly licensed Florida contractors who have adequate workers'
compensation and liability insurance coverage for purposes of carrying on any of its responsibilities
under this Agreement with respect to Easement Parcel One.. Tract A, Tract C or Tract D. In the
event the City of Del ray Beach is the Owner of Tract B, it shall only use properly licensed Florida
contractors who have adequate workers' compensation and liability insurance coverage for purposes
of carrying on any of its responsibilities under this Agreement with respect to Easement Parcel Two..
Tract A, Tract C, or Tract D.
b. Provided the Owner of Tract B is not then a governmental entity, Tract B Owner shall
procure and maintain liability insurance protecting Tract AC Owner and School Board with respect
to Tract B Owner's use of Easement Parcel Two, whereby injury or death is covered to the extent of
$1,000,000.00/$1,000,000.00, and Tract AC Owner and School Board shall be named as additional
insureds and loss payees in Tract AC Owner's policy. Tract B Owner shall pay premiums and shall
deliver proof of insurance to Tract B Owner and School Board on an annual basis.
c. Provided the Owner of the School Board Property is not then a governmental entity,
the Owner of the School Board Property shall procure and maintain liability insurance protecting
Tract B Owner and Tract AC Owner with respect to the Owner of the School Board Property's use
of Easement Parcel One whereby injury or death is covered to the extent of
$1,000,000.00/$1,000,000.00, and TractB Owner and TractAC Owner shall be named as additional
insureds and loss payees in the Owner of the School Board Property policy. The Owner of the
School Board Property shall pay premiums and shall deliver proof of insurance to Tract B Owner
and Tract AC Owner on an annual basis.
22. All work performed in Easement Parcel One shall be performed only by properly
licensed Florida or Palm Beach County contractors and in compliance with all applicable building
codes and zoning ordinances and the contractor's performing the work shall be reasonably insured
and without cost to Tract B Owner, insured for any claim arising out of the work and that Tract B
Owner will be indemnified and held harmless for any claims that may arise out of the work.
23. This Agreement only contemplates the drainage of surface water from Tract A, Tract
B, Tract C, TractD, and the School Board Property into Easement Parcel One resulting from natural
rainwater and no use of Easement Parcel One shall be made for drainage of sewage, industrial waste,
or any hazardous materials.
24. School Board warrants that it is seized of the School Board Property and has the right
10 of 16
to convey Easement Parcel Two, that there are no encumbrances other than the existing Ground
Lease and the School Board's Certificates of Participation; and that Tract AC Owner and Tract B
Owner shall have quiet enjoyment in Easement Parcel Two.
25. Tract B Owner warrants that it is seized of Tract B and has the right to convey
Easement Parcel One, that there are no encumbrances other than mortgages of record; and that the
School Board and Tract AC Owner shall have quiet enjoyment in Easement Parcel One. Tract AC
Owner warrants that it is seized of Tract AC and has the authority to execute this Agreement without
the consent or joinder of any third person or entity.
26. All notices under this Agreement shall be mailed to the parties at the following
respective addresses:
To School Board Property Owner:
School Board of Palm Beach County, Florida
Chief of Facilities Management
3 318 Forest Hill Boulevard, C- 214
West Palm Beach, Florida 33406
To Tract AC Owner:
Auburn Trace, Ltd., a Florida limited partnership
1301 S. W. 10th Avenue, Building J
Delray Beach, Florida 33444
With a copy to:
City of Delray Beach
City Attorney
200 N. W. 1st Avenue
Delray Beach, Florida 33444
All notices, consents or other instruments or communications provided for
under this Agreement shall be in writing, signed by the party giving the same, and shall be
deemed properly given and received (a) when actually delivered and received personally,
by messenger service, or by fax or telecopy delivery; (b) on the next business day after
deposited to delivery in an overnight courier service such as Federal Express; of ( c) three
(3) business days after deposit in the United States mail, by registered or certified mail with
return receipt requested. All notices or other instruments shall be transmitted with delivery or
postage charges prepaid, addressed to the parties at the address above for the party( s) or to such
other address as such party(s) may designated by written notice to the other party (8).
27. In connection with any litigation, arbitration, or dispute arising out of this Agreement,
11 of 16
each party shall bear its own attorneys' fees and costs.
28. This Agreement 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 ofthe fact
that it may have been physically prepared by one party or by its attorneys, all parties (and their
respective attorneys, where applicable) having participated in the negotiation of this Agreement.
29. In the event any term or provision of this Agreement 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
Agreement shall be construed to be in full force and effect.
30. The parties agree to execute all future instruments and take all further action that may
be reasonably required by any party to fully effectuate the terms and provisions of this Agreement
and the transactions contemplated herein.
31. This Agreement supersedes any and all understandings and agreements between the
Parties hereto whether oral or written, and this Agreement 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 Agreement shall be of any force and effect.
This Agreement may be amended, altered or modified only by a written agreement executed by the
parties.
32. Any dispute relating to this Agreement shall only be filed in a court of competent
jurisdiction in Palm Beach County, Florida, and each of the parties to this Agreement submits itself
to the jurisdiction of such court.
33. Any party to this Agreement shall within a reasonable period of time and from time to
time, upon not less than ten (10) days prior written request by any other party, execute, acknowledge
and deliver to such party a statement in writing certifying that this Agreement is unmodified and in
full force and effect, or ifthere has been any modification thereofthat the same is in full force and
effect as modified and stating the modification or modifications and that there are no defaults
existing, or ifthere is any claimed default stating the nature and extent thereof; and stating that costs
and charges have been paid or if not, the amount claimed due, from whom, and the basis of the
claim. It is expressly understood and agreed that any such statement delivered pursuant to this
paragraph may be relied upon by any prospective purchaser of the requesting party's property or any
lender or prospective lender on the security of the property or the fee estate of any part thereof, and
any third person.
34. Provided the record owner of Tract B is not then a governmental entity, Tract B
Owner shall indemnify and save harmless Tract AC Owner from any and all suits, actions, claims,
judgments, obligations, or liabilities of every nature and description which arise from Tract B
Owner's use of Easement Parcel One or Easement Parcel Two, or with respect to the construction,
installation, maintenance, repair or replacement of the surface water management drainage facilities,
12 of 16
equipment, and improvements for which Tract B Owner is responsible.
35. Provided the record owner of School Board Property is not then a governmental
entity, the School Board Property Owner shall indemnify and save harmless Tract AC Owner from
any and all suits, actions, claims, judgments, obligations, or liabilities of every nature and
description which arise from School Board's Owner's use of Easement Parcel One or Easement
Parcel Two, or with respect to the construction, installation, maintenance, repair or replacement of
the surface water management drainage facilities, equipment, and improvements for which School
Board Owner is responsible.
36. No breach of the provisions of this Agreement shall entitle any party to cancel,
rescind or otherwise terminate this Agreement or the applicability to it; but such limitation shall not
affect, in any manner, any other rights or remedies which any party may have hereunder by reason of
any breach of the provisions ofthis Agreement. No breach ofthe provisions of this Agreement shall
affect or render invalid the lien of any mortgage or deed of trust made in good faith and for value
covering any part of any property. Notwithstanding the foregoing provisions, this Agreement shall
be binding upon and effective against any party whose title is acquired by foreclosure or trustee's
sale or any grantee by deed in lieu of foreclosure or trustee's sale.
37. In the event ofa breach, or attempted or threatened breach, of any obligation ofthis
Agreement, the other party(ies) shall be entitled forthwith to obtain an injunction to specifically
enforce the performance of such obligation, acknowledging the inadequacy of legal remedies the
irreparable harm which would be caused by any such breach being hereby acknowledged and/or to
relief by all other available legal and equitable remedies from the consequences of such breach.
38. No delay or omission of any party in the exercise of any right accruing upon any
default or violation hereof, or any other party shall impair any such right or be construed to be a
waiver thereof, and every such right may be exercised at any time during the continuance of such
default or violation. A waiver by any party of a breach of, or a default in, any of the terms and
conditions of this Agreement by any other party shall not be construed to be a waiver of any
subsequent breach of this Agreement.
39. Any lien so created by this Agreement shall be effective only upon the recording of
such lien and shall be subordinate to any previously recorded mortgage applicable to such property.
40. Northing contained in this Agreement shall be deemed to be a gift or dedication of
any portion to the general public or for any public use or purpose whatsoever, it being the intention
of the parties hereto that nothing in this Agreement expressed or implied, shall confer upon any
person, except as specifically set forth in the terms and conditions of this Agreement. Rights to a
third party beneficiary are neither intended nor granted.
41. Nothing in this Agreement shall be construed to make the parties hereto partners or
joint venturers or render any of said parties liable for the debts or obligations of the other.
42. Wherever in this Agreement it is provided that an action shall be subject to the
13 of 16
consent or approval of the other, such consent or approval shall not be unreasonably withheld or
delayed.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hand and seals on this
day of
Witness
Print name of witness
Witness
AUBURN TRACE, LTD., a Florida Limited
Partnership
By: Auburn Trace Joint Venture, its General
Partner
Print name of witness
By: Auburn Management, Inc., a Florida
Corporation, its Managing Partner
Witness
Print name of witness
BY:
Thomas Hinners, President and Chief Executive
Officer
Witness
THE SCHOOL BOARD OF PALM BEACH
COUNTY, FLORIDA
By:
Thomas E. Lynch, Chairman
Date:
Print name of witness
ATTEST:
BY:
Arthur C. Johnson, Ph.D. Superintendent
REVIEWED AND APPROVED AS TO
LEGAL FORM
Board Approval Date:
School Board Attorney
Date:
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _ day of
14 of 16
2006, by Auburn Trace, Ltd., a Florida Limited Partnership, by Auburn
Trace Joint Venture, its General Partner, by Thomas Hinners, President and Chief
Executive Officer of Auburn Management, Inc., a Florida Corporation, its Managing Partner,
who
(please check one)
is (are) personally known to me OR
has (have) produced as
identification and he/she/they
(please check one)
did take an oath
x did not take an oath.
My Commission Expires:
Notary Public
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _ day of ,2006
by and Thomas E. Lynch, the Chairman of The School Board of Palm Beach County, Florida, who
(please check one)
are personally known to me OR
have produced as
identification and he/she/they
(please check one)
did take an oath
x did not take an oath.
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PALM BEACH
Notary Public
The foregoing instrument was acknowledged before me this _ day of , 2006
by Arthur C. Johnson, the Superintendent of The School Board of Palm Beach County, Florida, who
(please check one)
are personally known to me OR
have produced as
identification and he/she/they
(please check one)
did take an oath
x did not take an oath.
15 of 16
My Commission Expires:
Notary Public
16 of 16
FROM :RUBIN-SCUTTI
FAX NO. :5613470828
Apr. 20 2006 02:16PM P2
SKETCH AND DESCRIP110N
EASEMENT PARCEL ONE
.. - ...
w""Jj
>~fi!
4I(~a...
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~ir.~l
~~I
,
Lor 17 12' rPL EASEMENT
~WOC~'RNER Of TRACT B (P.Il. 1, PG. 4, P.Il.C.R.) ~~:C~R.?012/HI27.
N 89'43'47" E ..y {J,g...
(',.t?,- . 9,?OO"
300.00' N 89.4.3"47" E 359.4" "Itj1"fi:.J-__iI'
. .~. ..... -~'5" F~~ EASEMENT ---., -=--e~2' U.E. FOR S:~ITARY ~-wJ.: M:'~ --.,/ -
~ (P.8. 6-1/184-186. P.B.C:R.)' (P.8. 64/H~~-186o P.B.C.R.) .
0:: .
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TRACT B
AUBURN TRACE
(P.8. 64. Pes. '8~-'86. P.Fl.C.R.)
89.43'47" W
40.00' .
3=
S 89-43'47" W
120.00'
.......
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00
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S 89'43'47" W
140.00'
S 00'09'33"
70.00'
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R=210,OO'
~18.03'OO"
L~66.16'
S27'00'00"W
160.91'
S89'29'2~"W I
130.16
..... S.W. 7th AVENUE
(~~. .~UBL.\C; ~/W PEn r.ll. ll/l/.~~:.'.lO. P.R.C.R.
2:
~
>-
NOT VALID WITHOUT
SHEET 1
REVISIONS
A VIROM & ASSOCIATES. INC.
SURVEYING & MAPPING
SO s.w. 2Nt)'AV~ SUITE 102
BOCA RATON, FLORDA 334$2
TEL. (881) 802-2S84, FAX (881) 884-71215
@2oOe AIIIROIol.. ASSOCIAlt$. Itlc. AlL RIGHts RaERVEO.
JOB NO. 789.3-2
SCALE: 1" ~ 1 00'
DATE: 03 22 06
DRAWN BY: N. I.
SHEET: 2 OF: 2
-
.
EXHIBIT
A
I
FROM :RUBIN-SCUTTI
FAX NO. :5613470828
Apr. 20 2006 02:16PM P3
SKETCH AND OESCRIPllON
EASEMENT PARCEL ONE
LAND DESCRIPll0N:
Tract B, Auburn Trace, occording to the plat thereof, CIS recorded in Plot Book 64, Pages 184
through 186 of the Public Records of Palm Beach County, Florida, less and except the
following:
Begin at the northwest corner of said Tract B, Auburn Trace; thence NB9.43'47"E olong the north
line of said tract 300.00 feet: thence SOO'09'33"E 280.00 feet: thence S89.43'47"W, 120.00 feet;
thence SOO.09'JJ"[ 70.00 feet; thence S89'43'47"W, 140.00 feet; thence NOO.09'33"W 70.00 feet;
thence S89.43'47"W 40.00 feet; to the west line of said Tract B; thence NOO'09'JJ"W along said
west line 280.00 feet to the Point of Beginning_
Said lond situate in th6 City of Delray Beach, Palm Beach County, Florida and containing 168,440
square feet (3.87 Acres) more or less.
NOTES:
1. Reproductions of this Sketch are not valid without the signature and lhe original raised seal of
a Florida licensed surveyor and mapper.
2. No Title Opinion or Abstract to the subject property has been provided. It is possible that
there ore Deeds, Easements, or other instruments (recorded or unrecorded) which may affect the
subject property. No search of the Public Records has been mode by the Surveyor.
3, The 1000d description shown hereon wos prepared by the Surveyor.
4. Bearings shown hereon are based on said plot with the west line of said tract. having a
bearing of NOO.09' 33"W,
5. Data shown hereon was compiled from instrument(s) of record and does not constitute 0
boundary survey.
6. Abbreviation Legend: Coo Centerline: L.B.... Licen:>ed Busine~; PG. ... Page; P .l.S.= Professional
Land Surveyor; P.B.C.R.= Palm Beach County Records; P.O.B.~ Point of Beginning; P.8.= Plat Book;
~ Centrol Angle; L~ Arc Length; R::o: Radius.
CERTlFICA 110N:
I HEREBY CERTIFY thot the attached Sketch and Description of the hereon described property is
true end correct to the best of my knowledge and belief os prepared under my direction. I
FURTHER CERTIFY that this Sketch and Description meets the Minimum Technical Standards set
forth in Chapter 61G17- 6, Florida Administrative Code, pUrii;uant to Section 472.027, Florida
Statutes.
Dote: ____
I NOT VAUD WITHOUT
SHEET 2
MICHAEL D. AVIROM, P.L.S.
Florida Registration No. 3268
AVlROM & ASSOCIATES. INC.
L.B. No. .3.300
REVISIONS
A VIROM & ASSOCIA TES. INC.
SURVEYING & MAPPING
GO e:w. 2ND - A VENUE, SUITE 102
BOCA RATON. FLORIDA aa.sz
TEL. C&tm 3.2-2&84, FAX (Den 89.-712&
@2008 A\/IROW a: ASSOCIATES, lie. AU. RlCHTS RESER\'ED.
JOB NO.7893-2
SCALE: 1" = 1 00'
DA TE: 03 22 06
DRAWN BY: N. I.
SHEET: 1 OF: 2
FROM :RUBIN-SCUTTI
FAX NO. :5613470828
Apr. 20 2006 02:16PM P4
AUBI.JRN JRACE
lRACT'lr
P.P. 64, pes 184-1.
Sf<ETCH Of DESCRIPTION
C.. SCHO()CDiSlf"LlA~ ~~~Cf1 COUN~ mD '- NO
SECllON 20
TOWNSHIP 46 SOUTIi
RANGE 43 EAST
~. 3RD STREET
~ R.O..
I I ;U~.. ;R) SIftEET
I
OIOOD
D
QOO
.
/-
i
~ N.:N1iJlf
o
E3
~
FaA
~
@
SCALE: 1=200"
i
~
-
t.aW. OESCAI-IJ(If
A 20 FDOT 1&: S1IF CE LAND LVINC '0 FEET (lII f.l1HER
9IE CF lIE Rl10IIIG lEDIQ C9flERLN'. NI) ALSO
lQfG A PMlI~ <<' SEClOf 20, lOYIfSHlP 4& SW1H. RANCE
4J EAST. All) BEING MORE PARlJauRl. Y 0Esa&D AS
RlJ.0W&
aMENCIIG AT 1HE NORlIOST CXRCER CE TRACT Y ~
1HE PlAT CF AUIUIf 1RACE AS RmRlED IN PlAT BOa( 14.
PAlB 184 1HRU fll&. 1HENCE RUN EIERl. Y ~ THE
NafHJI. Y LN: (E $AI) TRACT. S88'S4'srw A ElSTANCE rE
158.29 FEET 10 THE PONT (F BEGINNING;
'HNCE NJr48"J4."'E A lXSTANCE rF 185.48 flU;
ltUCE Nlnr1n A DISTANCE CF 165.02 fEET;
lJoENCE NJr.....OS-r A OfSTANCE CF 11Il.21 FEET:
ltetCE N16"4TCM... A ~ANC( CF 130.07 fEET;
'DOC[ NOO"33'WW A DlSTANa: (F 123.11 fEET:
noa: S77'42'J6'"[ A DISTANCE OF 62.18 FEET;
1lDCE Nt2"lS'2t"W A DISTANCE OF 1OJ.05 fEET;
1lENCE '"2'45'34"[ A IISTNlCE CF 89.71 FEET;
HJrICE N24......21.. A DISTANCE a: 42.'3 FEET;
'DENCE f<<)t"'1t~ A DISTANCE <F 465.42 FEET
10 1lE: Pl>>IT CF ltJIMUS.
SAD C9fItJU€ 1ERUINA'JtH; CE THE SOOTH RKJfT-fF-WAY
lItE (E s.w. _ SlJUT.
11115 IS NOT A SUR~
]
ORA
BY:
. ~ -- -.
---- ~ - -
- - - .
.
Hn~
E.'9iIOtUS. Survuyori. ~
1201 1IIl_ _ cst p_ __ ftaIIM ~
At (YrJl>>-lI" -rAll t>>t__.--.car
Y: \Land Projects R2\5015.01\dwg\5015_02Bketeh.dwg 3/20/2006
-
.,; EXHIBIT
I (3
FROM : RUB I N-SCUTT I
FAX NO. :5613470828
Apr. 20 2006 02:17PM P5
VILLAGE ACADEMY
The East half(E 1/2) of Lot Seventeen (17), of the Subdivision of Section 20, Township
46 South. Range 43 East, as recorded in Plat Book I, Page 4, of the Public Records of
Palm Beach County, Florida, Less and Except the East 2S feet and the West 30 feet
thereof.
AND
The South half (S 1/2) of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of
the Southwest Quarter (SW 1/4) of Section 17, Township 46 South, Range 43 East; Less and
Except the East 2S feet and the West 30 feet thereof.
AND
The North half (N 1/2) of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of
the Southwest Quarter (SW 1/4) of Section 17, Township 46 South, Range 43 East; Less and
Except thc North 2S feet, the East 25 feet and the West 30 feet thereof.
Said lands situate within the City of Delray Beach, Palm Beach County, Florida.
-
j EXHIBIT
I ~
FROM : RUB IN-SCUTT I FAX NO. :5613470828
Apr. 20 2006 02:17PM P6
Od.18. 2005 2: 30PM flYNN ENG1NHRING SERVICES
No. 3360 P. 2
I'omI ""
.IN
6Jv~" ~
~ jJJ>J:
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTIONI
WATER MANAGEMENT DISTRICTSI
U,S. ARMY CORPS OF ENGINEERS
..
JOINT APPUCATION FOR
ENVIRONMENTAL RESOURCE PERMIT/
AUTHORIZATION TO USE
STATE OWNED SUB:MERGED LANDSI
FEDERAL DREDGE AND FILL PERMIT
1
OCT 18,2005 15:13
~54 522 7630
..;
z EXHIBIT
, D
FROM : RUB I N-SCUTT I
FAX NO. :5613470828
Apr. 20 2006 02:17PM P7
OeL 18. 2005 2~31PM
FLYNN ENGINEERING SERVICES
No. 3360 Y.,
Descril:)& in general terms the PfOposed project. system, or activity. The purpose of this permit
package Is to construct a new Village Academy Middle' High SChool Bullcflng within an existing
permitted dry detention pond. To compensate for tne loss of th& dry detention area, we. are
proposing to re-route the V1naga Academy drainage south offgffe to an existing dry ret&ntion area
thElt Is proposed to be I!Ixcavatad Into a lake. The addltlanal storage created by the new lake will
serve an existing multi-family (Aubum Trace) site, a future City of Defray Belch (Head start Facility),
and the Village Academy I Full 581V1ee site.
If ther. have ~n Rny pre..sppllcatton meetings, Including at the pr1;JJecl aK.. wfth regulatory staff,
please fist the date(s), location(s), and names of key staff and projeet reptes&Otatlves.
Plaase Identify by nlJmber any MSSWIWBtland re8OU1'MIE~P/ACOE Permits pending, Issued or
denIed for projects at the location, .nd any r8l3tad enforcement .ctIons.
Agency
SEWMD
Date
~
No.\TyPe of Application
~4SD7-P ~
Action Taken
Note:)be fQllowlna Irnormstion-Ja.requirecl onlY for p~lect!I orooosecl to occur in.on or over WetiBTl9B
tna1 need a f9Qel'lill rJredge and fill oermlt and/or authortzation to use mte awoeU!&rnerQed IIn.ds
and J9 not necessanf whee abl')\vina solely fQt iD. Envlron,!,entJ'l' Resoun:e !'ermlt. Please provide the
nameB. addresses and zip oodes of property owners whose property directly adjoins the project
(excluding applicant). Please attach B plitn view showing the owr1er's names and adjoining property.
JInes. Attach ~dditlOnal shtlels If necessary.
1. 2.
3.
4.
3
OCT 18,2005 15:14
954 .522 7630
Pllge S
FROM : RUBIN-SCUTT I
FAX NO. :5613470828
Apr. 20 2006 02:17PM P8
Oct. 18. 2005 2:31PM
FLYNN ENGINEERING SERVICES
No. 3360 P. 4
OWNERlS) OF !..AND ENTITY TO Receve PERMIT In< OtHER THAN OWNER)
NAME khClOI DIstrict of Palm Seae" C~nt NAME
ADDRESS 330D ForMr I-illl BouleYllrd. C.331 ADDRESS
CITY. STATE, ZIP west p.lm Eleach. FL3J401 cm'. STATE, ZIP
COMPANY AND TmE COMPANY f<N:J TIltS
TElEPHONE Jr1) ~888. 'TaEPHONE ( )
FAA ( 801 ) 8884 Ft-tJ. ( )
AGENT ~UTl'lORtl;ED TO SECURE PERMIT liP AN cotfSULT.lNT (IF DIFFERENT FROM. AGENT)
AG!!~ 18 USeD)
NAME NAME KeIth Me..
COMPANY AND TITUi COMPAtN' A.NO '1'TlUE FIyrm Engln..rlng Servlee.
AOOR!;SS ADDRESs 1512 I!.lfl:7lIItIII'd Brvd., Suite 10GA
CITY, STA-re, ZIP CI'TY. ST"TE. ZIP II't. ~l.. P'L 33301
~HON~ ( ) ~ ('''') 6U-1004
FAX He \ S22-'7S30
Name of project, inctud'lng phBSe If applicable mTlIQ. ~~demv Mid"" , ffigh Schoo!
15 this application for part of a multJ-ph~se project? yes t8J no
Total appllcant-owned arCB configuclJ$ to the project 18.91: ac
Total prc}ect .rea for which a pt!:M'I"IIt is sought HJl ac
Il1'lpeNlOUS area fOr Which a permit Is sought ~ ac
What 18 tn, total are! (metrlc equlvllkint fer federally funded projects) of work In, on. or over wetlands
or other surface wateT1i?
_acres _ square feet _ hectares _ square m&te1'5
Number of new boat sUps proposed. nl.l
proj8Ct location (UY additional sheets. If needed~
Cm.rnty(ies) Palm SeBch .
Sectlon(s) ~ Township 48 South, Range 43 e..t
Sect)on(li) _ Tawnship _ Range _
Land Grant name, if applioable _
Tax PaAAllldentfflcation Number _
Street 8ddrflu. road. or other location _
CIty I Zip Code If applicable pelrav Be.ch, florid.
2
OCT 19,20DS 15:14
954 522 7630
P8g-e 4
FROM : RUBIN-SCUTT I
FAX NO. :5613470828
Apr. 20 2006 02:17PM P9
Oct. 18. 2005 2: 30PM
FLYNN ENGINEERING SERVICES
No. 3360 P. 3
SECTlON A
Are any of the activities described In this applleatfon p~ to occur in, on. or over wetland. or other liUrface waters?
Dyes 181 no
Is this ap~tIon beIng flied by or on behalf of Q govemrnf:nt entity or drainago dlstrlct1
15<1' ves 0 no
A. Type of en"ironmental Resouree Permit Requelrled (check at least one)
o Noticed General - Include InfDnnation requested in Section B.
o Standard General (Single Family Dwelliog)-incfude information reQuest&c2 in Sections C Elnd D.
IgJ Standard General (all other projects) - include Information requested In SectIOns C and E.
o Individual (Single Family CWel6ng) -Include Information requested in Sections C and D.
o Individual (all other projects) - include lnfonnation reqUtisted fn Sections C and e,
o Conceptual - Include Information requested in SectIons C and E-
D Mitlgaflon Bank Permit (col'lstnJctlon) -Include information requesteCI in Section C and F.
( If the proposed mitigation bilOk involVe. the construc:tlon of a surface water management system
requiring another parmlt deflned above, check the appropl1ate box end submit the Information
requested by the appUcabll!l sectlon. )
o Mitigation Bank (conceptual) -Include Information requested In section C and F.
B. Type of activity for which you are applying (cheok at least one)
CJ Construction or operation of a new system Including dl"Adglng or fillIng in, on or over wetland$ 1I1"1d
other surface watel'19.
~ Alteration or operation of an existing system which was not previously p8l'l'\"1itted by a WMD or
DEP.
o ModificatIon of a systl!m previously permitted by a WMD or DEP. Provide prevlous permit
numbers. _
18I Alteration of a system 0 extension of permit duration 0 AbandOnment of &I system
o construction o( additional phases of a system 0 Removal of a system
C. Are you reqLlsstlng autho~tion 10 use State OWned Lands. 0 yes ~ no
(If yes IncludB the Information r&quested in Section G.)
D. For actiVIties In, on or ovs(wetlands or oftter Slurface waters. Check type of federal dred!1fJ
and fill permit requested:
o IndIVIdual 0 Prngl'1lmmatk: General
_0 General 0 Nationwide ~ Not AppflCable
E. Are you claIming to qU1I11fy for an sxamption? []yes ~ no
Jf yes pr'QVlde rule number If known._
OCT 18,2005 15:13
954 522 7630
Page :3
FROM :RUBIN-SCUTTI
FAX NO. :5613470828
Apr. 20 2006 02:18PM P10
Oct. lB. 2005 2: 31PM
FLYNN ENGINEERING SERVICES
No, 3360 P. 6
'By signing this application form, I am applying, or I am applying on benatr of the applicant, for the permit ana any
proprietary authorizations Identified above, ac:cording to the supporting data and -other Incldentallnformatlcn filed wIttI thl~
application. I am familiar with the Information oonlained In this application and repretent that sueh Information is trllo,
complete and accurate. I understand this Is an application and not a permit, and that work prior to approval 18 a violation. I
understand that th19 application and any permit issued or proprietaty authorizatioh issued pursuant thereto, does not
relieve. me of an)' oblleatlon for obtaining any other required federal, st!rte, water management district or looal permit plior
to oommencement of ccllstruction. I agres, or I agree on behalf' of my c:orporstion, to opei'ata and maintain the permItted
system unless the permitting 8gency authorizes transfer of the permit to a respons:lblQ operation entity. I undarstatld that
knowingly making any false ljtatement or repmsentatlon in this application is a violatIon of Sectlon 373.430, F.S. and 16
U.S.C, Section 1001.
SIElnli\N gen Date
Assis1ant ~irector
~te Title If &1ppllcable)
AN AGENT MAY SIGN ABOVE.Q.MJ:I IF THE APPUCANT COMPLETES ntE FOLLOWlNG:
I hereby d81!11gnate and authorize !hit agent rlSted abo~ to .ct on my behalf. or on behalf of my corporation. es the agent
In tht processing of this IiIppllca"on for the permit and/or proprietary lIuthOrtMJtion Indicated above; and to fumish, on
reql,lest, supplementallnformatloo in support of the appllcation. In adcfltion. I authorize the above-listed agent to bin a me,
or my corporation, to perform any requirement which may be necessary to procure the permit or authorization Indicated
eboV9. I undGrstand that knowingly making any mise statement or representatlon In this applfoation Is a violation of
Section 313.430, F.B. and 16 U.S,C. SectIon 1001.
'TYiif;dlPrlnted Name of Applicant
Signature of Applicant/Agent
Dilte
(Corporate 11tle if applicable)
PlIIHII nnt.: 'fhA :::I"m~.~r;/ftlnl!l' Jllnn.~ InnI II _!MJ' .. .......Itowf -bG1cI.
PERSON AUTHORIZING ACCESS TO TI-lE PROPERTY MUST COMPLETE THE FOLLOWING:
I either own the property deaoribact in this BPptle8tion or I havs legE authority to allow access to the property, and I
consent, after receiving prlQr notlflca~on, to any s1t8 v15ft on the property by agel'lts or penaonnel from the Department of
Env\ronmental Protectlon. the Water ~nagam&nt District and th& U.S. Army COrps of Engineers necessary for th8 TUVlew
and iM&pectlon of me proPOSed pro}eet epecifl8d In thl$ app1lcatiot1. I authoriz. these agents or personnel to enter the
property as many times all may be necessary to make such rsvtew and inspection. Further. I agree to provide entry to th~
project site for tluCl't agents or pereonnel to monttor permitted work If a permit Is gl'&nted.
rnWd~.~~
l.t~< ~~
WaucnHaan
(COiPo~~=)
~~~6-
r Date
4.
OCT 18,2005 15:15
5154 522 76JO
P!lge I>
FROM : RUBIN-SCUTT I
Od.18. 2005 2:31PM
FAX NO. :5613470828
Apr. 20 2006 02:18PM P11
FLYNN ENGiNEERING SERVICES
No. j)~U 1', I
SECTION C
Environmental Resource Pennit Notice of Receipt of Application
Thle Information Is required in addition to that required in other seotlons of the application. Please submit fIVe
ooples of this notice of receipt of appncatlon and alf attachments with the other required information. PLEASE
SUBMIT ALL INFORM~TlON ON PAPER NO LAaGER THAN~2" X 3':
Project Name: VJllaR8 Academv Middle I Hfat- School
County: ea1m BaaeD
Owner. Schoof DI"tric:t of Palm a..c;h County
Applicant: Sc~ooLDJstric;t of Palm Beach County
Applicant's Address: 3300 Forest Hill Blvd.. ~1. West Palm Beach. Fl, 33406
1. Indicate the project boundaries on a USGS quadrangle map, Attach II looation map showing the boundary
of the proposed activity. The map should also contain a north arrow and a graphic scale; show Section(s),
Townshlp(s;), and Range(s); and must be of suffICient detail to allow a person unfamiliar with the site to find
It.
2. Provide the nameR of all wetlands, or other surface wet.... that would be dredgad, filled, Impounded,
diverted, drained, or would receive discharge (either dlrec:tty or indirec;tJy), or would otherwls8 be impacted
by tha proposed activity, and specify tf they are In an O~nding Florida Water or Aquatic Preserve:
3. Attach a depiction (plen and section views). whiCh clearly shows the works or other facilities propos~d to b~
constructed. US9 multiple sheets, if necessary. Use B scale sufficient to show the location and type of
works. . . .
... Briefly describe the propOlled project (such as "construct a deck with boat&helter" I "replace two eXisting
culverts", "construct surface water management system to serve 150 acre residential development"):
6. Specify the acreage of wetlands or other surface waters, if any, that ara proposed to be disturbed, filled,
e)Ccavat~. or otherwise Impacted by the proposed activity:
6, Provide a brlef statement describing any proposed mitigation for Impacts to wetlands and other BUtface
waters (attach additional sheets if necessary):
OC7 18.2005 15:15
~54 5Z2 7630
p l:l(Je 7
FROM :RUBIN-SCUTTI
FAX NO. :5613470828
Apr. 20 2006 02:19PM P13
~ I L . f d .:1' 'I
,~n, I &;:;:.
-
I~ EXHIBIT
e-
FROM :RUBIN-SCUTTI
FAX NO. :5613470828
Apr. 20 2006 02:19PM P14
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. FROM : RUB I N-SCUTT I FAX NO. : 561347121828
Apr. 2121 21211216 1212: 17PM P6
Od.18. 2005 2:30PM FLYNN ENGINHRING SERVICES
No. 3360 P. 2
fIomI OIM
DaII'
6J);'~
\j'y;;-b
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTIONI
WATER MANAGEMENT DISTRICTSI
U,SA ARMY CORPS OF ENGINEERS
-
JOINT APPLICATION FOR
ENVIRONMENTAL RESOURCE PERMIT/
AUTHORIZATION TO USE
STATE OWNED SUB:MERGED LANDSI
FEDERAL DREDGE AND FILL PERMIT
1
.;;
· EXHIBIT
I ~-
OCT 18,2005 15:13
954 522 7&30
FROM : RUBIN-SCUTT I
FAX NO. :5613470828
Apr. 20 2006 02:17PM P7
Oct. 1 8. 2005 2 : 31 PM
FLYNN ENGINEERING SERVICES
No, 3360 r. ~
Descril)& in general terms the prgpDSed project, system. or activity. The purpose of this permIt
package Is to oonstruct a new VIIIBgfl Academy Middle' High School Butldlng wlthln an existing
permitted dry detention pond. To compensate for tne loss of !hit dry detention area, we. are
prOposlnel to re.routa the VJnage Academy dminag8 south offslte to an existing dry re~ention area
that Is proposed to be l!Ixcavatad Into a lalce- The addltlanal storage oreatec:l by the new 11'1I<:a will
serve 8n existing mufti-family (AlIbum Tntce) site, a future City of Delray Besch (Head Start Facility),
and the Village Academy I Full Servlee site. .
If t/'I&ra have ~6n any pre..eppllcatlon meetiogs, Including at the pwject altl!l, with I'&gulatory staff,
please fist the date(s), loeation(s), and names of key staff and project repr&ssntatlves.
Please Identify by number 8"Y MSSWNVetland resourc&'E({P'^COE Permits pending, IS$ued or
denied for projeota at the IDeation, .nd any fela18d enforcement actions.
Arlene)'
S~W
Oat.
Z:i:m!
No.\Type of Application
~4SD7..p .::.--
Action Taken
Note:J1)e fQllowfna Irtformstion I' required onl1 for P~Ject!l Drooosed to OCClIr in.on or over WetlartstB
tha1 need III fe~eT'iil1 ~redge land fill oermft and/or authorization to use mte owtI~ ~lIpmerQ8d len.as
and 19 not n~enafY wh~ aDDlvin9 solely fQ[ ~rJ Envlron,!,enta' Resource Permit.. Please provide the
names. addresses and zip codes of property owners whose property dlrectty adjoins the project
(exoluding applicant). Please aUad1 a plan view $howlng the owner's names and adJotnlng property.
Ilnes_ AttAch additIonal sheets If necessary.
1. z.
3.
4.
3
OCT lS,200S 15:14
954 .522 7630
Page 5
. FROM :RUBIN-SCUTTI
FAX NO. :5613470828
Apr. 20 2006 02:17PM P8
Oct. 16. 2005 2:31PM
FLYNN ENGINEERING SERVICES
~o. 3360 P. 4
OWN5:::RlS) OF l.AND ENTITY TO Rr;CaVe PERMIT lW O'll1ER THAN OWNER)
NAME Sdlpol District of Palm Oeae" C~nt NAME
ADDRESS 3300 Forest Hili Boulevard, C-331 ADDRESS
CITY, STATE. ZIP weat Ptlrn eaaeh. FL 3S408 cm". STATE, ZIP
COMPANY AND Tm.E COMPANY /IN:J 'ITIt.!
TELEPHONE~1) ~ 1a.EPHONl! ( )
F~ (S01) 884 FAX ( )
AOENT .AUTl'lORi4:ED TO 8ECURE PERMIT lIP AN CONSULTANT (0= DIFFERENT FROM AGENT)
AG!!flI1' 18 USeD)
NAME NAME KeIth Me..
COMPAWr AND TJTl.J:: COMPANY .\NO Tm.E ~ EnglnHrtno S.rvle..
AOORES9 1IDi)~ 1512 E. BfCMtlI'd BMt., Suite 100A
CI1Y. $TATE, ZIP CITY. STATE, ZIP P't. .....rdal.. FL ~ao1
~ON~ ( ) iELEI'HO~ ('51) &u.10c.4
FAX (1M 522-7130
Name of project, inctudlng phase If appJlcable YiRlIQ. ~demv M!tfIIe' ffiQh School
16 this application for part of a multJ-phue Pft)ject? yes ~ no
Total appllcant-owned arca contiguous to the project 38.91 ac
Total proJect .rea for whIch a ~It is sought H:ll. ac
lt1'lpeMOua area fOr which iiI parmlt 18 sought ~ Be
What la the total area (metric equivalent for federaOy funded projects) of work In, on. or over wetlands
or ctner surface waters?
_acres _ square fMt _ hectares _ square metel'5
Nurnber of new boat slIps proposed. nll
Project location {use additional sheets. If needecl~
COLUlty(ies} Palm Beach .
Sectlon(s) ~ TOlNnshlp 48Soutb, Range 43 e..t
Seot!on(s} _ Township _ Range _
Land Grant name, if ilpplioable _
Tax Pa~ Identification Numbllr _
Street aclclr&at, read, or other location _
CIty, ZIp Codelf applioable peJrav Be.ch. F10tlda
2
OCT 19,2005 15:14
954 522 7630
page 4
, FROM : RUB I N-SCUTT I
FAX NO. :5613470828
Apr. 20 2006 02:17PM P9
Del. 18, 2005 2: 30PM
FLYNN ENGINEERING SERVICES
No. 3360 P. 3
~"
~2 :~t.
SECTION A
AnI any of the actMtle$ described In this application propohd to l:ICCUf" in. on. or over wetlands or othar 5Urlace waters?
Dyes ~ no
Ie this ap~lIleatton being tiled by or on behalf of II gQVemm&nt entity or drainage dlstrlct1
fxiI'ves n no
A Type of environmental Rssoun:e Pennit Requested (check at least one)
[J Noticed General - Include Infonnatlon requested in Section B.
CJ Standard G~neral (Single Family Dwelling)-indude Infol'l'l'l8tion reEluest&tJ In Sectfons C and D.
Igj Standard General (ell other projects) -Inelude InformatiOn requested In SectIOns C and E.
o Indlvldual (SIogle Family Dwelling) . Include Il1fonnatlon requested in sections C and D.
o lndtvldual (all other projects) - inclUde Information requested In Sections C and e.
D Conceptual - tnctude Information requested in SectIons C and E-
D Mitigation Banlc Permit (constroctlon) -Include information requested in Section C and F.
( If the proposed mitigation bMk invo!Vu the constructlorl of a surface water management system
requiring enothe.r permit defined above, check the appropriate box and submit the Information
requested by the applicable sectlon. )
o Mitigation Bank (conoeptual) -Include Information requested In section C and F.
B. Type of actIVity for which you a..- applying (chec:k at least one)
CI ConstrucUon or operation of a new system Including dredging or 1lIllng in. on or over wetland$ and
other surface wale""
~ AJte;.ltion or operation of an existing systam which was not previously permitted by a WMD or
DEP.
CJ Modlfl~tlon of a system previously perm1tled by a WMD or PEP. Provide previous permit
numbers. _
18I Alteration of a system 0 Ex19ns1on of permit duratiDO 0 Abandonment of Ii ~tem
o construction of additional phases of a system 0 Removal of a system
C. Are you requesting autho~tion to use State OWned Lands. 0 yes ~ no
(If yes Include the Information rsquestad in Sectlon G.)
D. For actiVItIes In, on or over-WlStJands or other surface waters. Cl1eck type of federal dredliJe
and fill permit reQuested:
o IndIVidual 0 Pmgl"llmmatic General
o General 0 Nationwide ~ Not Appfteable
c. Are you claiming to qU.llfy for an exemptioll? [}yes 181 no
lf yes provide rule number if known._
OC~ 18,2005 15:13
954 522 7630
Page 3
FROM :RUBIN-SCUTTI
FAX NO. :5613470828
Apr. 20 2006 02:18PM P10
Ocl. 18. 2005 2:31PM
FLYNN ENGINEERING SERVICES
No. 3360 P. 6
. By signing this applleatJon form, I am applying, or I am applying on b&nalf of the applicant, for the pennlt ana any
proprIetary authorizations Identified above, according to the supporting data and -other Incldentallnformatlon filed wI1tI thfs
application. I am familiar with tha Information contained In this applie;,lton and represent that such Information is true,
complete and aOClJrate. I understand thIs Is an application and not a permit, and that work prior to approval Is a violation. I
und&rStand that this application and any permit issued or proprietary lilufhorization issued pursuant thereto, does not
relieve me of an)' obligation for obtaining any other required f&deml, st!rtl!l, water management distrlct or local permit prior
to oommancement of construction. I agree, or I agree on behalf of my corporation, to opetata and maIntain tnft p9rmltted
system unless lhl!! permitting agency authorizes transfer of the permit to a responsible operation entity. f understand that
knowingly makil'lg any false lftatement or representation in this applJcation is a violation of Section 373.430, F.S. and 16
U.S.C. SectIon 1001,
SlgnaN gen Dale
Assis1ant ..)irecfDr
~tl!l TitIB If eppllcabla)
AN AGENT MA.Y SIGN ABOVE.Q.HbY IF THE APPucANT COMPLETES THE FOLLOWING:
, hereby desIgnate and authorize thlt agent rlSted above to act on my behalf, or OIl behalf 01 my corporation. 8$ the ag&nt
In thl!! processing of thlB IIppl1ca6on for the permit and/or proprietary authoriMrtlon IndlcQted above: and to fumish, on
request. 8upplementallnformatlon in support of 1he application. In aacfltion. I author1ze the above-listed agent to bInd me,
or my corporation. to perfoml any I'8Qulrement which may be necessary to procura the permit or authorization Indicated
B1boV9. I understand that knowl~gly making any false s1atement or representation In this apptroatlon Is a vlolatlon Qf
Section 373.430, F.8. and 18 U.S.C. Section 1001.
;:yp;dlPrtnted Name of Applicant
Dilte
SIgnature of Applicant/Agent
(Corporate Title if applicable)
P1l1l1l!111 not.: Tl\1!J :lI~nfll!l'rQJIpr.lnlllldtlnllft_ 1_ . flftM'l .. .....oIt.d ~
PERSON AUTHORIZING ACCESS TO THI! PROPERTY MUST COMPLETE THE FOLLOWING:
I either own the property delJcribltd in this B1Pplle8tton or I hB'V1t leglll authority to allow access to the property, rand I
~nsent, after receIving prior notlflca~on. to sny site vt511 on Ihe property by agetJtS or personnel from the Department of
Envlmnmental Protection, the Water M.na!ilem&nt D1mct and th& U.S. ~y Cofl)S of Engineers necessary for tha TBVIew
and inspection of tne proPOSed proJect specifl8d In this apptlcatiot1. 'authorize these agents or pitrsonnel to enter the
property as many times as may be n~ry to make such ntvtRw aJ'ld lr'lspectIon. Further, I egree to provide entry to the
project site for ~ueh agents or pereonne\ to monitor pel'TT\itted work If a permit Is granted,
i~nmdN~~~
It,~< ~~
Wam::nHaan
'(COrponiI~"_)
~~~6-
, Daw
4
OCT lB,200S 15:15
954 522 7630
Pllg_ 6
FROM : RUB I N-SCUTT I
FAX NO. :5613470828
Apr. 20 2006 02:18PM Pll
Oct. 18, 2005 2:31PM
FLYNN ENGiNEERING SERVICES
No. 'JbU 1'. I
SECTION C
EnvIronmental Resource Permit Notice of Receipt of Application
This Informatfon Is requirea in addition to that reqUired in other semlons of the application. Please submit fIVe
ooples of this notice of receipt of appncatlon and an attachments with the other required information. PLEASE
SUBMIT ALL INFORMA nON ON PAPER NO LAaGER THAN 2" x 3',
Project Name: v:;na~e Academv Midd.& I Hlab $c:hool
County: ,ealm Beaet)
Owner. School District of Palm B..c:h County
Applicant: School District of Palm Beach County
Applleanfa Addresa: 3300 Forest Hill Blvd.. ~1. Weal Palm Beach. FL. 33406
1, Indicate the project boundaries on a USGS quadrangle map. Attach a looation map showing the boundary
of the proposed activlty. The map should also contain a north arrow and a graphic scal&; show Section(s),
Townshlp(B), iilnd Range(s); and must be of sufficient detail to anow a person unfamiliar with the site to find
It.
2. PrcMde the names of all wetlands, or other surface waters that would be dredgad, filled, Impounded,
diverted, drained, or would receive discharge (either directly or indirec;tJy), or woula otherwise be impacted
by the proposed activity, and specify tf they are In an ~nding Florida Water or Aquatic Preserve;
3. Attach 8 depiction (plsn and section views). whiCh clearly shows the works or other facilities propos~d to bE)
cons~ed, Use multiple sheets, if necessary" Use 8 .scale Sufficient to show the location and type of
works.
4. Briefly describa the proposed proj&ct (such as "construct a deck with boat&helterfl, "replace two existing
culverts", "construct BUrface water management system to serve 150 acre residential development"):
5. Specify the acreage of watlands or other surface waters, if any, that Bitt proposod to bo disturbed, filled,
eXC8vat&d, or otherwise Impacted by the proposed activity:
6, Provide a brief statement describIng any proposed mttigation for Impacts to wetlands and other BUtface
watera (attach additional sheets if necessary):
oe~ 18,2005 lSrlS
~54 5.22 7630
PlllJe '1
03-21-2006 12:29PM FROM-VlEINERARONSON + Hel P.004/013 F-Q72
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Mllrch 20. 2006
Mr. Thomas .Hinners
Mr. Brian Hinners
Auburn Truc~ Ltd.
1301 SW 1 Olh Avenue, aldg 1
Delmy Belich, FL 33444
RE: OJUON BANK, ;1' Florida Brmkint: Corprtttltion (rllc '(h(lIrk") loan to A IIb/U'n TrR(;ff, LId,
r'BOrrDt\lI'lI"'~ ItJ the amOllnt of S8,200,OOfJ.oo (Ure "/..OfU1 '?
Dellt BritAn:
ORTON B~.K Is pleased to in1'onn yO" that the Bank has agtflCld to malee a loan in tlle \.Cl~1 f1ll1011nt of
$8,200,000.00 to Aubum Trace. Ltd, ~-ubJcct to tile fnllowing terms and conditions:
), Terms oft/Ie J.,(JtllJ:
A. Amclmt: Eight m.iIIion two hundred lI'Q~and Ellld 00/100 dollars ($8,200,000.00).
B. Interest Rate: The lniulll rulO for the Iniun! 24-rnonths wDll:le the Wall Street Journal
Prime Rate plull one-quarter ot' a. poroont (0.25%) i1dju:ltcd claily. Cormnencing 01'1 till!! dny
lU'lcr the 24 month lI1Iniv(:rsary of the note date~ the interest rate will be reset to Lila then
previl-iling 48 momh SWAP rate plus 275 basis.points IlIld rel1'l"il1 rmed far the m:ltt 48
months. Commencing on Lbo c;(IIY cdtef the 12 mtmth ann Iversary orull: note date, tbe Jnraro::iL
rate will be reset QnCo again to th~ men prc'VlliIing 48 month SWAP rllte pl\ls 275 baals points
and rema.in filli~ for the finn148 months of the Dote ~erm,
C. IsJ:m: 11\c L~nn will mamre and be fully due lIiI~ pAyable in one hundred tweuly (120)
months.&om the olosing date.
O. ~BVl11ent: InlOrcs~ on ly paymenl:S mcmth ly during the initi~124 months oflbe IOlln lenn,
Beglnnrng with the dllY a~rthc 24--month anniverslUj' cfihe note date IUld comnllmStIJ'\l.te
WiLh the Initial 48 month filcinB of the note ralc. and continuing for Iho d\lrlUion of 'the nOLe
tenn, rep:\.ymont will include prfnclp~1 and Interest payments bnsod on tlJt: prl)vai ling note I'ntc
and a 300 month umol'tluth;m, All unpaid prlnl,l.ipal pillS Dccrut!d but unpaid InttlrusL will be:
due on the maturity dale.
ORlON BANK. (l fI'lorltla bankiflg corporation
Pace 1
B~l'rO)iJer'9 and Gmlramor hrilia1s
-
Ii EXHIBIT
13
nS-2H006 12:2BPIol FROM-f/EIHERARONSON + T-6BI P.OOS/OIS F-972
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.'
E. EEE!i: As consideration tbr thll issuance of this commltmClnt, Bon-owcr agrees to 1'11)' to
BDJ1k 31'1onrefi:mdn.ble commitment tee oF$41 ,000. of.whlch $14,000.00 will be oollected
Ll('em l1~ctlptance ofthl9 commitment letter. And the remaining $27,000 wllI'be collo.cted on
th!l date cfclosinB ofthls LOIl1l. l3orrower agreeri Ulal no parr of such ccmmltmentfee will be
rctunll~d to .Borrower In any event, either by cmli~ upinlit CDsts or.ex.pcnses., or otherwise.
Borrower agrees thill this cot'llmitment (tiC Is not intere:ll or pll.)'mllnt far lilt:! us~ of meney.
The commitmi:nt fee is paid to Bank rn con!lidan;llon efBanlt's promise to hold or reserve me
amotlnr afthis oom mitment nnd will b~ full)' ~nm~d by ll1e Issunnce Oflhis commhrnmt Il:~tor,
F. Security: 'l'hc 'Loan will be secured by a fil.'llt mortgage lien and a1irsc lIen security interest
in fa.vor of the Banlc on tlle followIng described real property, lI:nd a.1I Improvements,
ilSsigmncnt of leQSeB and personal properly (lI1I1glble and imunglblc:) thereon or with respect
tbereto (thl: '~ropertyt.): n1fol25o..un It opnrtment complexand smnd.alone day llt\t'e ~l-Cr on
apptox'imntely 30 acres known Q5 Auburn ~pl\ramm\S located ot 625 Auburn Circle West,
Delroy 'Beach. f'J., 33444.
G. I.oan Pum050: The p~rpg,'1C afmis loan is to rcfIllancCllln existing first l.1nd socond
mortguge, p8)' down the City of Oelroy Bench, &ncl pay ether Wtpensell on the 256,unit
;\ubun, TruQe Aparrment complo~ located in Del",>, Beach, FL.
'!-T.. ~unl'lmlor(s1:. Joint and SCVCI'8.1 \labilities for the IndividullI and entity noted billow:
· Thom:LS Hinners
01 Auburn Management, !nc.
'" ~lQrldl& lI.n'ordablc Housing. (nc.
T. Disbursement efLonn proeoocls: The LoM prooocas shall be lllloeatcd, disbursed and
\.I~iIIzcd for the refln~ce of ~lsting indcbu:dness, pny D prepayment pel1tllty l1llliO~illtcd with
the loan payoff, pay closins- ":'\pcns~ und other o"p~n$e$ approved by the Bank..
2. C,mt;truerlm. iJt:]nrprtWamenLi: Intentionally left blank.
.$. Tltld InsuranCf!: "Itle 1I1S1l1'MCC, IJ~ borrower's sole COllt IU1d ekponsC!, will br1 ordered by Borrower's
c,,,u,.<;t!/ and will be provided by 0 title insurer lUlcl:ptabIl to th<tl3Llnk. Said title iruiurlincc shall be in IIn
lUT101.l"~ not less Than the JOlin amount, !Munng ~hc Bank's lien on thr: rnortaaged propert)r us ~ valid lien of n
priotit')' required by this ~ommimll::nt letter, subject only to such =xel:p~lons a;; approved at lhe: sole d Iscrction
of1he BlU1k.
A commitment for such insurance. aCt:ompanled by caples ofatl cjo~uments noted or listed iIS requirements or
exceptions, mU:ll be submItted to me SlUlk at lCll5rthree (3) d~ys prier to closing. Both the commitm~nt I{nd
the policy must be on !.he lillest revision or 1m :ALTA 10lln po Ii!;)' fonn. .
OlUON &JNK, II J1'/DrllJa ballk/nt: c(JrporatJ()I1
Pace 2
Burro,lIur't ,utI. Guaruntor IlIltilrls _ _
03~21~2006 12:28PM FROM-WEINERARONSON
+
T~681 P.006/0Ia F-S72
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4. /nsurancf'': Borrower 511011 furnIsh to Bank:
A. ql1bnity in~"Uranol;l [n I\Il amoun~ satisfilc;tol)' to the Bank, flood inSutallCe Ilnd flJ'C and
ei'mmdecl covorage imiutance with each polioy coDmining rnort8~gce los!i payable clD\lseli
satillfllCtory to Bank and EII1 agreement to notfiY Blink In wrlt[ng nt leQSnhl11y (30) du.)'lI prior
to IIn)' canoellation or reduction in coveragc of such policy, covering such har.arcl&t in s\lch
amounts, in such form, and issu~cl by Eiuch company as shnll have bcen ap!)roved by Bank.
'rhQ orl~lnnl of the nood, fire Dnd e1tumdcQ coverilge policies shall be d~livcrcd to Blink /.It the
time of me Closing DE Ihe Loan.
B. If required, ~ oertiticmte from i.\n Insurance com puny satlsfoctory \0 Banlc lndicnting lhul
8orrower EII1d Borrower's gcnerul contractor ll1'Q covorecl by public lillbllity ancl workmon's
l:C1mpensmlon insurance to the su.tisfllcrion ofBMk.
It'the Lo8l\ Is fer consLrucrlQn, II builder's rillk Insurance. polley In compli:mCi!: wilh the
requlremcltlS ofsubpnragrnph 4{a); in such (;USe, the fire and D:dended coverage insurance
shall not be required until the Improvements are complotcQ IInd the !1ood Insul'l1nce pelicy
shall nol bo required until the roofl1nd the wn!ls are b~\nt, or such earlier thnD lIS required by
applfc!lblc, I~ws and regulations. .
All policies 511.11 ndl.,ct the Bank's interest thel'Cin 115 "f0511 pAyee" as fanOWll:
ORION lM.NK. ISAOAlA.TIMA P.O, Bul' 41~040 Naples, P'L ~4101-3040
~ Thl,l tlolTQwer witllllso provide Bank cDples and an l1llsignml)nt of Its Interc!llln any and nil
in)'U\1\nce propc:rtillS coverini the Jlubject prcm I$es including, but not limited te, the liabillty policy
covering me o~site dn)'-cm-c conter.
. .
S. SUTI1t!v; Sl!lnk will be furnished three (3) oMJ:,rinals of II current survc)' ofthll Property, ptcpared, sealed, Itnd
emiBed to OrlQIl Bnnlt, IL'S SUQQes~or's und/or Assigns and the 'title Company by It dulY reall.tered land
surveyor or enGineer, which. survey wnI reflect tho l:crrcct legal description Qftl1e Property, wlll show the
loclltion IlI\d perimeter boundaries of tho Property, will dl$olQSO nccess, elevations, .!lil nnprovomClnlS.
onoronchments. euscmonts Bnd rights.of-way, and wm rl!f1,o~no conditions 1II1!1utill.r~lOr.v to "Blink, its counsel
or tll~ 'ritle Company. .
IS. ArmraJ,flll: An BpplUililll hi'll been orde~d und prcplU'Cd l;ly CatluWllY 8r. "Pricl!l,lnc. The 1'l:perL concludes nil
ns-is value of$19, 120,000. The uppmlsal is considerud accCJmwle by tho Bank.
7. LnQn D(Jcurmmrs: l.4mder's COUl\!lal will propare the nllcesliuJ}' documentation in onlBr to comply with all
tho Lorms and conditions ofLhis commitment IlI\d to comply witb npplicublo law. All docum~nlll\ion must be
satisfuelory TO Lender. Legul costs will be bome b)' .Borrower. Documentation wlll include. but Dot be: 11m lted
to, the following. ins1rumen~ \0 be executed nt ololi!ng PromiSSOlyNote, MOrlll:lgC' and Security Agrat.mcnt.
ORION BANK, It Flar/rla hal/klllg corpDratitJlt
Page j
. B"l'rOlfle:r's and ORurrm(Or Ittitials
03-21-2008 12:29PM FRaM-WEINERARONSON
+
T-681 P.007/013 F-9T2
UCC-I Financing Stullmlents,. Collafm'al Asslgnm~nt of ROl11s and l.eeses. "Loan Agreement. Ousrantles,
'Borrower's Affidavit and Jndcmnlty (1'0: liUZllf(JOUS or Toxic Msterials), and .Borrower's Aff"wl1vit (rl:: no
liens, possession, sap, etc.). L~ndcr reserv~ the right to r.quire additionl11 documlmtll.tlOll at its discretion.
8. Olller Cln:rlnt 1let1U;,.eml!n1G~ ~nDr to tlw Closing Date, Bank must raecive lh~ fbllowing:
A. Subordinntlon 10 the LQnn ofnll loans payable by Borrower 10 any SUlckllolder, or uny
other lender including bllt not limited to "FHFA, the CIty of Delmy BUIlCh, or IIny
Borrower' or OUarnnlQr affilll1te or Subhidiary company. or any general or limited
parmersbip !,'T91.1p In whIch BOTTOlWr or OUlU'lt.tl1\'1r is II parmer or stookholder.
B. 'Evidence thill ~hc prop~rty Is zoned 10 penult the Irnpro'loment5 thereon and thalthey are
in 1\111 furce and effect valid approvlllli. varlllncc!i and p,..rmit, Including any r~quiJ'Cd
buildit'lS pel'lDlts and l:onQUrrenc)' i1pprovals, issued by all gOYOl'l'lIl1entnlllUthorltles
hll.ving jurlsdictlQIl tJlereoE.
C. 'Bank will require tho receipt IInd revIew ofa Pl1nse l.Environmentnl Sllrvl!Y indicptlne. no
adverse envlrcnmCmtll1 h!l:W'ds i1sliocla.Tcd whh tile subject prapen:y.
D. Copies orld! existing lo.ms nnd mortgages encumberlnl10 1l1e property.
E. Copy of the leu:;!: with tile day-cafe ccntcrtenant.
F. Completo tPX ~wrn$ fur yelltS 2002-2004 for eaoh OUf1nmtor.
Ci. BorrOWer will mninUsin tenant escrow, tax, and Insurance r:scroWI/ with Banle.
H. BLUlk review lll1d approval arBorroWat I:Ilrueturt and ownership.
1. Such other matters may bo rcqlllred by Bunk.
9. AttOfnflll's Onilriom At Closing, Bol'tOwcr1s cou\1sel shnll dl:lfllor an opinion ildcl~d TO T3!\Jlk ill fbm'l.
:soope Inti subsmncc satiiilf'al)tOlYto BlUlk, coneornlng all !lSp~c\'S oflbQ T..oan including, but nD~ limited to, the
duo authorlzntlol'l., leplit)', va.lIdlty, nnd bU1dins; elTcct of all required IOBf! documcl\'I2l. the Jo~Ii()' of any
proposed impro1Jl:ment and lhat the LOM does Dol viola~ a.ny applicabllllaw.
10. ftnt.r; ond EXfJCll.\'e.': 'Borro~r will pay all coStS nnd expenses lTlQurrocIln cannelOtion wIth the
preparation for and t~O Closing oflh~ Loan, whethenbe LOlU1 fs closed or not, including, without'lImltation,
appraisal fc~, inspection tees, survcys. lesal '!tI:lS (Including the fetlS of 'Bank's counsell), inlangiblc ta."(es,
docwnental)' stnmp taxes, all recording COS\.s. aU license and pel1ni~ NeB. Md 11.11 title insurnm:c and other
insuratlce pr!mhlms.
ORiON BANK. a Florida bunking corpo/'Qdorz
Pace"
JItJrr(1w/Jr's and Gml1'tlnrOr Initials _ _
03-21-2006 IZ:2BPY FROM-WEINERARONSON
+
i-S81 P,DD8/013 F-BTZ
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J 1, Re.ftridioll on Cl,allfle ofOWnen/r/n and FlU'the1' EnC!umhr.m.C!tls: Borrower a8l'cc5 thAt Borrower's
rishlS \.Inderthls cOlnmilmontand t11e Lann will be personal sincc Bllnk.l1lUl cVi11Uilte:d this LollIlIll.~d bws ~'fl;ed
to make lh ill Loan based on lhe unique qua1iflc~tions ofBorrower and gueruntono, both 'Onanelal and oth"rwls~.
So long ~ U1 Is cot'I'Unrtment ot MY pan Oft1UI Loan is outstanding, rhe Property will nmtsin ftl:e and cleW' of all
other encumbrnnces. liens. mOJ'lgaBes. secLlri1y mlCl'CSts flnd second:uy financing, llnd Borrower wiU nol:,
without the prior written consent of Bank, sell. trlln&ftrr, encumber or I;onvey all or any part of its interest in the
Propeny ar any portloD thmof. Additionally, any change in tho present stock ownershIp of the borrowinG
corpollltion or ohanse in pnrtnershlp structure or othcr brCl1Cn oftbe foregoing provisions will commnrte n
defuult under the nOle 3nd mortgage, or if prior ~o closing, will constiMe b'fOunds fur tCrnUnI~ng this
commitment.
12. 1l1!/JI'e.fenllltiorr:,' af BDrJ'Dwer~ This commitment is subject tl) the Ill;:~\lmc)' of all inibnnation,
represenlutlons and mnterinls lil1bm Itted wIth or in IlUpport of the appl;clLtion for the loan or the issuance oflilhi
oommltment Jo the "vent oiinllccurMY or moterial chlangcs 111 the info1Tllation, representarlonsllnd mat8riEl!s
submitted to Bnnk or. In the financi;ll oondltion of Borrower or any gUlIl'lantor, BQJ1k will, In Irs sole nnd
:.lbsolute discretion, hl1vc the right,to te'lTninalC this COJ'lunitmcntand nIl of'BlUlk'g obligations berl\lundcr and In
so doinf;\. 'Bank wlll.lltl"e no liability wluttsoQver to Borrower, guaramors or any third pnn:y.
13. N(Jnn.~fJ';f{mrhilitv.: Naithet this commitment nor any ofthCl proceeds of'Ehe l..CIm will be assignable by
Borrower, and MY attempt to m~o sL\eh assIgnment will bc void. .
14. Timet Time Is of the es$en~o with respect to 1111 datos and periods or time serforth in this commitment.
IS. Terml'",n;01'I hftlrls Commitment: Upon the oCl:UmmCO of any afth. /bUoY/Ins events Bunk ma.y. at its
option. terminnt= this commltlnClntwithour further notice or obllgntion and without any lInbiJity WhltlSOOVer to
Borrower. guar~ntors orany third party.
A. If all aPplicable conditions contained herein have not beCln met to the repsDnQblo
SMlsfhctlon ofB:tnk or the Loan has not b~T1 closed within'thirty (30) days from Ute llii~lnnce
of this comn1itmenL .
B. Upon 'Borrower l1UIlcing I\. ~"eral nssigl1rn~t ror the benefh or creditors, or If there is .filod
by OJ' llJrolinsr Borrower II pelition 111 bankruptcy, Dr l'or the a.ppoitrtmemt of a. recelvel'. or if
there commonces under nn)' bankruptcy or insolvency lawprooe-edlngs fer Borrower's relllllfor
the I;!cmposition, ex;tenliion, arrnnglmltm!:. acijustment cfamy ori1S obligations, orifBorrower's
business is dist;ontinued as a.Bolng CDncern, or ifthere Is n suspeflslon of business, Dr defllult
on nny oLh~ obligation Borrower may havD to ~nk. or .In ClISC of tho issuane~ ofany wamnt
or attachment nSl~inst any of Borrow oris propert,y crthe tllking ofpossessicn of or assumption
of control of nll or any 6Llbstanrlnl pm of the.property of Borrower's buslnmes b)' any
gOY~l'l1mDntal ~genl:)'.
C. Upon an~ mat~rlal adverslJ chanBc in the financial condirlon of Borrower or upon tlte
defllultby Borrower ohny material obliSAtion of Borrower to any third plU1.y.
ORION BANK, it Florida bunking corporlltloll
PQg~ S
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BorrO)tlerJs anll GlltI,.m,lr1r 11111iol$
03-21-2006 t2:2SPM FROM-WEINERARONSON
+
T-6Bt P.ooS/oti F-S72
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D. If any I~I or admiJiit,1ratlve ~lttlol1. suit or proc~edinl:t wi" be InltiMed or threaft'll'llld
aga.ln,t me Borrower or fUly judgment is entered Or tax lien is IiI.,d against the Borrower.
The occurrence of any of the ovents described in subpnrngr:tphs (~) to Cd) abovo ~ any pel'Son nnmed ELS 11
guarantor ofth~ Loan wl1l nlso give Bank the tight, ttllts option, to tenninate tbis commitmcntwithoul further
notice or obligntion. tll1d without any liability whntsoevClr to Borrower. guarantors or any third party.
] 6. Ph/mia/III StDrell1811rs: If necessary, prior 10 closing Borrower and t".ach Gl.lIlTLmtor wl11 providll Bl.ln~
vue, ~ccUrate E1i1d completQ cl1rrenttmanclal ~Btemems Wlcl.finlU1cinl reportil In.form and conLCnUlcceP.tllble 10
Bank ilnd will there.r pro1ide saine to BllI1k from time to time ~ requeSted by Bank, It shull be:1 condition'
precec1~nt to Bunk'g obligntion to close thotthera bo no mAterial ndversc chnnge in tho financial condiLion of
Borrower of ony suaranTor. Over tho term oEme lo'!n. th~ Borrower will provide the BunK annual tinanci~1
statemel\ts. M.annual taX retl.lm, periodic rent rolls, IQ1d an annunl bud~l'(ll. The glIlInunOI'S will provEd; an
nnnl.ll~1 pcrsol1nl financial stalement and tux returns.
17. Brt'lket-'j,' Fet:: The 'Bank will not be obllgllted to pay any fee. cblll'ge or commission in connection with
1he Loan and Borrower agro~ by the acceptance hereo{to indcmni1Y EIIld hold Bank hl1l'TTlless fi'Omany and an
clt1ims, Including, but hot nocl:Sllarily limited to brokerage !:llllms arising Ollt of or in connection with this
tmnsacdon.
lB. HIU:tudou!1 ~lIJ'tl!l lfreqliired, prior to closing borrowerwiil al Borrow~rts exptnse. provldetllc BAnk l1
report certipad by an envlronml.\nt~l ol1sineer, Dcceptublc to tIle Bank, ev1dtmoins tl1auherc nr= no ha?.ardOU5
waste or rnaterlals. as definl;d by federol, state or loeal law, of lII'I)' kind stored, kopt. disposed upon or
otherwise ariceting the Prop8fly or B.I'Iy !,on:ion thereof. rn the event saiel report Indicmcs 1b~ I$TC any such
hQZ8tdous wastes or mllterlnls. Blmk may, rn fts solt and absolute discretion, either (l) require as a condilion fQ
closing thtlt all approprIate corrective /lOtion be tDken,.or [Ii) cancel and t=lminate U119 commitment, eilher
courscfof action without f'unhcr liability or obligation to BlIIlk, BOlTower uxpressly repl'l::.9OJ1IS to Ban~ thatthe
Property and l.hlf Improvements thereon h3ve not In the past bt.-cn \.\Sed. are not presc:ntly being used, and will
not in tho future be used fgr me nandllng, storagc.,.lmnsportntlon, or disposal ofllazurdous or toxic maTerlllh,
'Borrower llgrCC$, to Indemnify, defend. Mr;J hold Iiannl~~s from and ngqbut any loss to BlUlk, incll.lding,
without limiuulOn, attorneys' fl'ClI. incurred by Ennk as a relllllt of such past, proiiCl'lt or fumre US", hMdlins;
Slott\glll. trunspClrtatloll. or dlsp'oslll of ha4'.ardou!i or toxic n:Ul.LC:rials: tlll: foregoing indemni1ication llI1d other
provisions Dr this p8nlSJ'Bph will sl.Irvive repayment of the LC!l.Ifl.
19. Flood rn.vllranfl~ NoriDC
Netic!: to Borrower ofSR.llcirll Flood H~.ard Area: Notil:~ is hcrcby Biven tQ the Borrower
thlltthe ImpI1JV~ real csmc d~5Cribed above is or will be located in lU1 madesignllled by the
Director ofth;: 'Federal Emergancy Management Agency :IS a sPQcill-1 t100d hozt1rd itrea.
Notice 10 BDITD~r "bout Federal DI58~C1r ~~Ii(lr Assistnnce; TIUl lmpfOvod real CStll~
sootiring your JODn is or wilJ be 1000tccl rn II commfJni~y ~hat is now PlllTicipnting in lho
Nl\.tional Flood Insurance Progrnm. In the event StIch pl'Opel't1 is damaged by flOOding in u
Federally.declared disostar, Federnt dl:ll'lSter relief lIS$istnnce may bo available. J..lowever,
ORION BANK, a Florlr/u fJrmkl", cDJ'pormirm
p."lld -6
BOrfftllJlfr'S mId GlI"ra1l1or 1,,1,,'o/s
03-21-20D6 lZ:3DP~ FRDM-WEINERARDNSDN
+
i-G81 P.Dl0/D13 F-97Z
'1".' '- I j..~U",\......., "y,....
"'t,..,.., nr u \.unn&...""'.&.II'- L.L..IUJUU"
\1 "t\I.JUILJU.,JUIULl
I. IWIIJUI U I U
. such oss!sUincc will be unllvailablr: If the community hIlS been Identified tar u.t least one yenr
Ps III flood baznrd area Bnd Is not participating in the N adonal FIlJod ~nsurance Progrom ntthe '.
Liml:: tha:'IlSSistuJCll would be Dpprovpd. TIlls nssistnnoc, \4SQl1lly in tho rorm ofa IIJIlI1 wi\.h II
fUvoTablc imlllrlll5t I1i~C, may be l1Vldlablc fol' c:llU1'l~C$ l",;lurred in exccs~ of' your flood
Insurance.
2U. Ct)mf!.Uance: Bank's obligQt1ons undor this eommitmen~ are subject to ~c requirenumts af\hc supel'YlsoI'Y
authorities tej;ullltlng .Blink. and a.ll Dpplicllble fe:deral IlJ1d sUltc laws and rcgulllIlons, Includins Without
limilation those rela10d to lending limiLS, Tfthc fenns of1his oomminnent or the obllgnlions ofBanTc hmundcr
contl1cL with any apPUcllble Ia.w or regulution, such la.w or regulation will control o"~r end supersedo all)' 5\lch
conflicting umn I;lr obligation. Borrower agrees thl\t 'Bank will hl\v~ no liability Ylha1soevel' to Borrower.
su~nTots or uny l"hird parry, including MY intend;d ~J' iT1ciclental benolicl~ry hereof, iI.\I it result ofnny such
connlct. and BorrOVo'or and gunrnnlon) wllllndemnify and c,'(culpnte Bank from all liilbilitie9. COstS nnd
attomeys' fl)c$ rC$ulting from any 5Ul::h conflict.
21. lrttirructlons ttJ B,'~rn"'.r: Upon accoptanCe of this ccmm itment by Borrower, ~nnk l'J1ny fOl'Wll.I'd a letter
gt'insl\'UctlOl1S t(:l Borrower supplementing ccr~ln terms set forth In this 'commhmQnt. and BlJrrcwor and
gllumnlors 8&I1'lC 10 clJmply with tlle terms ofSlme.
22. Entire A I!Tf!I!Int!IU: M,qdificQtJr>n.'i aJzdAmentlment$1 TI\ Is commitmont contains The enliro agreement 01
Borrower and Bank with respeor1o the LOlln. No ohlmgein the provisions of this commltmentwill be blncllns
unll:ss in writing and e:...cured In 1he name of and by two ofiicOl'S of Bank. AU obligations flncl auties or
BorrowIJj-,hcrcundcr not nccomplishl;d or ~omplctcd at or before closing will survive the ~lo5ing I\lld QOntillue
to remoin ob1ip~IQns and dlmO:i of130ITower.
23. Survival: This comrnltment I1I\d 1111 turms and provisions heroofwllT survive the'closing of the Lonn Ilnd
$hall nClt be merged Into M)' erE thG loan documenl.$. In the event of un)' conflict among the terms and
pl'ovisions of this otlmmiLmcnt, and the NOlO and Mortguge provided for llerell1,.them Lho torm!' nnd provisions
of the Note and MoTtk'i\ge will conO'ol. .
24. ACCl!llrllnC~ o[Cpm/;Utlnlmt: BorTowcrmny BCCCpllhls eomminn~nt by rocumlng to Bank cin~ fully
cxectned copy with partial ~Cl1't\Qlitmllnt reo by March 21, 2006.
25. Accf1Imts: The SOTTOWCT will maintain II depository account, with thtl 'Bl\n1cfor the dumtion orthc lolUl.
36. SiJms, ETe: Borrower ag;reeslhar Bank mllY reteus" un)' pub licit)' desired by .Bank cono~m Ing the Lonn.
27. WA~R OF RIGHT TO mRy;'TRTA/.; BANK, BORROWER ^ 'NO GUARANTOR(S) HeR.EBY
KNOWTNaLY~ VOLUNTARILY, ANDlNTENTIONALLV) WAlVET11'B RTOHTWHICI-IANY MAY
l-LAVE TO'TR.1AL BY JURY iN RESPECT OF ANY ACTION, PROCEEDING, t.mOATION OR
COUN:nm.CT..AlM BASED HEREON, OR ARISIN.G our OF, UNDER. ON ORlN CO'NNHCTION WIlli
n.ns COMMl'fMENTTIlE LO..l\.N, AND ANY AGREEMENT CONTEMPLATED TO.BE EXECQTED
IN CONJUNCTION lih'1tF.WITH, OR ANY COr..mSR OF CONDUCT, COURSE OF DEALING,
SiA'I'EMENTS (WHETHr:R. VERBAL OR WlUTI'EN) OR ACTIONS OF El11lER PARTY. TJ:ilS
OMON BANK, n FI~rirlu bUI,~/ltg corprmul~/1
Page 7
.BurrOIl'erJs ~d GUlU'f1ntor J"itiu/$
.......4.UI1 ft, IJ ",,"'nn..,.,-'u,- LL.,U~nU
T-&81
\lnl\l.lUIUU.JUIUU
P.Oll/013 F-872
l'.uU':lfUIU
03-21-200& 12:30PM
F ROLl-WE I NERARON SON +
PltOVlSlON 1S A MA'/'ER1AL lNDLfCE~T FON. 1'1-1E BANK TSSUING 'ffllS COMMrrMENT TO
BORROWER,
~ ?dd J(a.mp;(&~
ORlON BAN~ u Florida banking corpo",1I011
Puge 8
B"rr(JllJer's anti G""runlnr r"jrirds _ _
D3-21-2DO& 12:30PU FROM-WEINERARONSON
+
1-681 P.012/013 F-9T2
" 1"'/ oIW I ""''''..II., t "'U
, t "I "', UI '"
YI ~
The undersignod hCn'lby uccopt this CDlllmRmcnt and agreo to tbe tl:rm!l El1lr;1 I:ondhions hereo~ thill.
of 2006.'
BORROWER~
Auburn Tr;Ce, Ltc1,
By: 'l'homas Hinners, Auburn Join~ Vcn1-\1rr::. Gen~l Parmer
GUARANTOR (5'):
. Thomas T'Iinners. IndividunllY
Auburn M'QnagcmcDt, {PC,
By: 11101n1lS Hinners, CEO
J/'IOl'ltb A1Tol'tluJ)le Rousing
By: Thom!l!l HiMcrs, President
ORlON BANK, " Pfol'lda banking c(lrparQtio1J
Paga 9
BOrrOll1Br'S arId Guarantor Initiuls
03-21-2006 12:30PM FROM-WEINERARONSON
SOURCSS & USES: AUBURN TRACE LTD.
SOURCES
New LoQn Amount
Deposit in escrow for Boston Capital
Sale ofland to City ofDelray Beach
Total Sources
~
Continental Willga1e Payout
SAlL 10lI.l1 Payout
City ofDoby Beacl1 Paydown
Loan Costs:
Points.Oriol) Bank
Attorney Fees-Lendar
Attornoy Fees-Borrower
UndcrwritloS Foo.ltirst Housing
~g cSt FiliDgFees
Dooumentary Stamps
lntangl'ble TW5
Title lDs1Jn\nce
Surveys
EnvironmentDl-Pbaso 2
Appmisals
Miscellaneous/Office
Total Loan Costs
To be Applied to Reserves
:aoston Capital PayODt
Total Uses
0.004
0.002
0.004
41,000
10,000
15,000
10,694
1.500
32.800
16.400
25,000
5,500
12,500
6,SOO
18,813
+
1-681 P.013/013 F-972
3/1711006 13:11
8,200,000
200,000
1,500,000
$9,900,000
(J.197.IOJ) ;
(2.387,874)
(356.5 I 6)
(195.707)
(412,800) - r..(;p'l1P r.;?
(3,350.000) -f'7'~~
($9.900.00Q)
FffiST AMENDMENT TO LAND USE RESTRICTION AGREEMENT
This First Amendment to Land Use Restriction Agreement amends that certain Land Use
Restriction Agreement dated as of June 29, 1989 between Auburn Tract, Ltd. (the "Developer") and
the City of Delray Beach (the "City") as recorded in Official Record Book 6116, Page 470, ofthe
Public Records of Palm Beach County, Florida (the "LURA")
THIS FIRST AMENDMENT TO LAND USE RESTRICTION AGREEMENT (this
"Agreement") is made and entered into as of ,2006, by and between AUBURN
TRACE, LTD., a Florida limited partnership (hereinafter called the "Developer"), and the CITY OF
DELRA Y BEACH, FLORIDA, a municipal corporation, (hereinafter called the "City") (which
terms as used in every instance shall include the City's and Developer's respective successors and
assigns).
RECITALS
WHEREAS, on June 29, 1989 the City issued a loan to the Developer in connection with
Developer's construction of a residential rental project known as Auburn Trace Apartments (the
"Project") located in Palm Beach County, Florida (the "County") on the real property more
particularly described in the LURA; and
WHEREAS, in connection with the loan, the Developer executed and delivered the LURA
which sets forth certain requirements and restrictions pertaining to the Property; and
WHEREAS, Developer and City have agreed to release the LURA from a portion of the
Property which the City is purchasing from the Developer, to wit, Tract B of Auburn Trace,
according to the Plat thereof, recorded in Plat Book 64, Page 184-186, of the Public Records of Palm
Beach County, Florida
("Tract B"); and
WHEREAS, the Developer and the City have agreed to amend the LURA in order to
substitute and replace the legal description of the real property upon which the LURA will remain in
full force and effect in accordance with its terms after the sale of Tract B to the City.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the City and the Developer do hereby contract and agree as follows:
ARTICLE I
Definitions and Interpretation. The above recitals are true and correct and are incorporated
herein and made a part hereof. Unless otherwise expressly provided herein or unless the context
clearly requires otherwise, the capitalized terms used herein shall have the meanings set forth in the
LURA.
1 of 4
ARTICLE II
Amendment of LURA. The legal description ofthe real property and improvements set forth
on Exhibit "A" of the LURA is hereby deleted in its entirety and replaced with EXHIBIT "A"
attached hereto and made a part hereof. Any and all references to or use with the LURA of the terms
"Project" or "Improvements" shall mean and refer to the real property and improvements
constructed on EXHIBIT "A" attached to this Agreement. Tract B shall not be subject to the LURA.
ARTICLE III
Ratification. Developer and the City hereby agree that LURA, as modified and amended by
this Agreement, is hereby ratified and confirmed, and shall be and remain in full force and effect
from and after the ful execution ofthis Agreement. Except as expressly set forth in this Agreement,
the LURA is not otherwise modified or amended.
ARTICLE IV
Recording and Filing; Covenants to Run with the Land.
4.1 Upon execution and delivery by parties hereto, the City shall cause this Agreement
and all amendments and supplements hereto to be recorded and filed in the Official Public Records
ofthe County and in such manner and in such other places as the City may reasonably request, and
shall pay all fees and charges incurred in connection therewith.
4.2 This Agreement and the covenants contained herein shall run with the land and shall
bind, and the benefits shall inure to, respectively, the Developer and the City and their respective
successors and assigns during the Term of this Agreement.
ARTICLE V
Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida, both substantive and governing remedies.
ARTICLE VI
Miscellaneous
6.1 This Agreement may be simultaneously executed in multiple counterparts, all of
which shall constitute one and the same instrument and each of which shall be deemed to be an
original.
IN WITNESS WHEREOF, the City and the Developer have caused this Agreement to be
executed and delivered on their behalf by their duly authorized representatives as of the date first set
forth above.
2 of 4
Witness
Print name of witness
Witness
AUBURN TRACE, LTD., a Florida Limited
Partnership
By: Auburn Trace Joint Venture, its General
Partner
Print name of witness
By: Auburn Management, Inc., a Florida
Corporation, its Managing Partner
Witness
Print name of witness
BY:
Thomas Hinners, President and Chief Executive
Officer
CITY OF DELRA Y BEACH, FLORIDA
Witness
Print name of witness
By:
JEFF PERLMAN, its Mayor, City
Date:
ATTEST:
BY:
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _ day of
2006, by Auburn Trace, Ltd., a Florida Limited Partnership, by Auburn
Trace Joint Venture, its General Partner, by Thomas Hinners, President and Chief
Executive Officer of Auburn Management, Inc., a Florida Corporation, its Managing Partner,
who
(please check one)
is (are) personally known to me OR
has (have) produced as
identification and he/she/they
(please check one)
did take an oath
x did not take an oath.
My Commission Expires:
Notary Public
3 of 4
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this _ day of
,2006 by and Jeff Perlman, Mayor, City of Delray Beach, Florida, who
(please check one)
are personally known to me OR
have produced as
identification and he/she/they
(please check one)
did take an oath
x did not take an oath.
-
My Commission Expires:
Notary Public
4 of 4
~
CONSENT TO TRANSFER
LIMITED PARTNERSHIP INTEREST AGREEMENT
This Consent to Transfer Limited Partnership Interest Agreement (hereinafter
referred to as "Agreement") is made by and between the City of Delray, a political
subdivision of the State of Florida (hereinafter referred to as "Mortgagee") and Auburn
Trace, Ltd., a Florida Limited Partnership (hereinafter referred to as "Mortgagor").
WHEREAS, on June 29, 1989, Mortgagor executed a Mortgage Deed in favor of
Mortgagee, securing repayment of the principal amount of $5,328,000.00, which was
recorded in Official Record Book 6116, Page 521 of the Public Records of Palm Beach
County, Florida (hereinafter referred to as the "Mortgage"). The Mortgage was
subsequently amended in Official Record Book 9883, Page 1596, as affected by
subordinations recorded in Official Record Book 9883, Page 1620, Official Record Book
9913, Page 141, Official Record Book 9883, Page 1636 and Official Record Book 9883,
Page 1652, all of the Public Records of Palm Beach County, Florida (the Mortgage and all
the amendments referenced herein shall collectively be referred to as the "Mortgage"); and
WHEREAS, the Mortgage presently encumbers the real property described in the
attached Exhibit "A" which is made a part hereof (hereinafter referred to as the "Property");
and
WHEREAS, the Mortgage secures three (3) Notes in favor of Mortgagee; and
WHEREAS, Mortgagor has requested Mortgagee to approve of a transfer of a
ninety-nine percent (99%) limited partnership interest in the Mortgagor ("Interest") from
Boston Tax Credit Fund, Ltd. ("Transferor") to Tom Hinners ("Transferee"); and
WHEREAS, Mortgagee has consented to and has approved the transfer of the
Interest in the Mortgagor subject to the terms and conditions stated in this Agreement; and
WHEREAS, Mortgagor and Mortgagee have entered into a Contract for Sale and
Purchase dated August 4,2005, as amended, wherein Mortgagee is purchasing Tract B of
Auburn Trace Plat ("Tract B") from Mortgagor and in connection with Mortgagee's
purchase of Tract B from Mortgagor, Mortgagee has agreed to permit the transfer of the
Interest upon closing of the purchase transaction ("Closing"); and
WHEREAS, as of the date of the execution of this Agreement, the General and
Limited Partners of Mortgagor, and their respective ownership interests
are:
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt whereof is hereby
10 4
acknowledged, Mortgagee and Mortgagor agree as follows:
1. Mortgagor agrees and acknowledges that as of March 1, 2006, the following
sums are due to Mortgagee under the three (3) Notes secured by the Mortgage.
a. $3,449,729.42 plus accrued interest from January 1, 2006 plus
deferred interest of $850,742.10 with respect to the original Note dated June 29,1989, in
the original principal amount of $3,840,000.00 as revised through March 1, 2006.
b. $340,224.00, plus no accrued interest with respect to the original Note
dated June 29, 1989, in the original principal amount of $720,000.00, as revised through
March 1, 2006.
c. $356,515.84, plus no accrued interest with respect to the original Note
dated June 29, 1989, in the original principal amount of $768,000.00, as revised through
March 1, 2006.
The Notes described in paragraphs 1 (a), 1 (b), and 1 ( c) are hereinafter collectively
referred to as the "Notes".
2. Mortgagor represents, warrants, acknowledges and agrees that the amounts
stated in paragraph (1) of this Agreement are accurate and that Mortgagor has the
obligation to repay said amounts in accordance with the terms of the Mortgage and Notes
secured thereby.
3. The principal payment by the Mortgagor in the amount of $356,515.84 to
Mortgagee at Closing shall be applied to satisfy and payoff the unpaid principal balanceand
accrued interest, if any, of the Note referenced in paragraph (1)( c) above.
4. Mortgagee hereby consents to the transfer of the Interest owned by Boston
Tax Credit Fund, Ltd. to Tom Hinners, provided the transfer is effected within thirty (30)
days after the Closing and Mortgagor delivers to Mortgagee within thirty (30) days after
Closing written notice that the transfer has occurred, together with a certificate executed
under oath by the Mortgagor stating the current name and address of each general partner
and limited partner of Mortgagor, and the respective percentage ownership interest of each
limited and general partner of Mortgagor.
5. Mortgagee's consent to the transfer of the Interest from Transferor to
Transferee shall not constitute a waiver of its right to prohibit any further transfers of any
limited partnership interest or ownership interest in the Mortgagor, unless the transfer is
permitted by the Mortgage.
6. Mortgagor acknowledges and agrees that Mortgagee's approval of the
transfer of the Interest shall not constitute a release, novation, revocation or modification of
204
the Mortgage, the Notes or any other loan documents which are secured by it or executed
in connection therewith and the same remain valid and enforceable according to their
terms.
8. Mortgagor acknowledges and agrees that the transfer of such Interest shall
not constitute the release or loss of priority of the Mortgage lien.
9. This Agreement is governed by Florida Law.
10. No delay by Mortgagee in exercising any right or remedy thereunder, or
otherwise afforded by law, shall operate as a waiver thereof or preclude the exercise
thereof during the continuance of any default hereunder. No waiver by Mortgagee of any
default shall constitute a waiver of or consent to subsequent defaults. No failure of
Mortgagee to exercise any option therein given to accelerate maturity of the debt hereby
secured, no forbearance by Mortgagee before or after the exercise of such option and no
withdrawal or abandonment of foreclosure proceeding by Mortgagee shall be taken or
construed as a waiver of its right to exercise such option or to accelerate the maturity or the
debt thereby secured by reason of any past, present or future default on the part of
Mortgagor; and, in like manner, the procurement of insurance or the payment of taxes or
other liens or charges by Mortgagee shall not be taken or construed as a waiver of its right
to accelerate the maturity of the debt thereby secured.
11. The Mortgagor hereby reaffirms all of its obligations set forth in the Notes
and Mortgage and agrees to perform and be bound by each and all of the covenants,
agreements and obligations in the Mortgage and Notes.
12. All of the Property described in the Mortgage shall in all respects be subject to
the lien, charge and encumbrance of the Mortgage and nothing contained herein or done
shall affect the lien, charge or encumbrance effected by the Mortgage or the priority thereof
over other liens, charges, encumbrances or conveyances.
13. Nothing contained herein invalidates or shall impair or release any covenants,
conditions, agreements or stipulations in the Notes and Mortgage and the same shall
continue in full force and effect. The undesigned Mortgagor further covenants and agrees
to perform and comply with and abide by each of the covenants, agreements, conditions
and stipulations of the Notes and Mortgage.
14. This Agreement shall be binding upon and shall inure to the benefit of the
heirs, personal representatives, administrators and assigns, or successors and assigns of
the respective parties hereto.
15. The parties hereto intend that this Agreement shall not disturb the existing
priority of the Mortgage. Mortgagor agrees to cooperate with Mortgagee so that the
interests of Mortgagee are fully protected and the intent of this Agreement can be
effectuated.
304
16. The recitals contained in this Agreement are true and correct.
17. Mortgagee has no obligation to refinance the terms and conditions of the
Notes and shall be entitled to the remedies provided to it under the terms of this Agreement
and the Notes and Mortgage, and as provided by law, in collecting the entire unpaid
principal balance plus accrued interest, if any, which becomes due and payable.
18. Mortgagor agrees that Mortgagee has not made any statement, promise or
agreement, or taken upon itself any engagement whatsoever, verbally or in writing, in
conflict with the terms of this Agreement or in which any modifies, varies, alters, enlarges or
invalidates any of its provisions. This Agreement sets forth the entire understanding
between Mortgagor and Mortgagee, and shall not be changed, modified or amended except
by an instrument in writing signed by the party against whom the enforcement of any
change, modification or amendment is sought.
AUBURN TRACE, LTD., a Florida Limited
Partnership
BY: Auburn Trace Joint Venture, its
General Partner
BY: Auburn Management, Inc., a Florida
Corporation, its Managing Partner
Date:
By:
Thomas Hinners, President, Seller
CITY OF DELRA Y BEACH
Date:
By:
Jeff Perlman, Mayor, Buyer
Attested by:
Printed Name
City Clerk
40 4
Prepared By:
Ryan P. Aiello, Esquire
Nason, Yeager, Gerson, White & Lioce, P.A
1645 Palm Beach Lakes Blvd., Suite 1200
West Palm Beach, Florida 33401
SUBORDINATION AGREEMENT
THIS AGREEMENT, made this _ day of . 2006, by and among
AUBURN TRACE, LTD., a Florida limited partnership (the "Borrower") and the CITY OF
DELRA Y BEACH, a Florida municipal corporation (the "Subordinating Lender") in favor of
ORION BANK, a Florida banking corporation (the "Bank");
W!TNE~~ETH:
WHEREAS, the Borrower gave to the Subordinating Lender a Mortgage which was
recorded in Official Records Book 6116, page 521, as modified by that certain Mortgage
Modification Agreement recorded in Official Records Book 9883, page 1596, and those certain
Subordination Agreements recorded in Official Records Book 9883, page 1620, Official Records
Book 9913, page 141, Official Records Book 9883, page 1636, and Official Records Book 9883,
page 1652, all in the Public Records of Palm Beach County, Florida (collectively, the
"Subordinating Lender Mortgage"), which Subordinating Lender Mortgage encumbers that certain
parcel of real property lying and situate in Palm Beach County, Florida, described on attached
Exbibit "A" (the "Property");
WHEREAS, on the date hereof the Borrower has obtained a loan (the "Loan") from the
Bank, which Loan is evidenced by that certain Promissory Note of even date herewith in the amount
of $8,200,000 and is secured by that certain Mortgage, Security Agreement and Assignment of
Rents of even date herewith (the "Bank Mortgage") to be recorded in the Public Records of Pahn
Beach County, Florida, and which Mortgage shall encumber the a portion of the Property, described
on attached Exhibit "B" (the "Bank Mortgage Property");. and
WHEREAS, as a condition to the Loan, the Bank has required that the Subordinating
Lender subordinate the lien and operation of the Subordinating Lender Mortgage to the lien and
operation of the Bank Mortgage and the Borrower and the Subordinating Lender have agreed to
provide this Agreement to evidence such subordination as hereinafter set forth, such that the Bank's
Mortgage shall constitute a first lien upon the Bank Mortgage Property.
NOW, THEREFORE, for and in consideration of the sum of TEN AND NOIlOO'S
($10.00) DOLLARS and other good and valuable consideration. the receipt and sufficiency whereof
are hereby aclrnowledged, the Borrower and the Subordinating Lender agree as follows:
1. The foregoing recitals are true.
2. The lien and operation of the Subordinating Lender Mortgage and all rights and
obligations created thereunder are hereby subordinated to the lien and operation of the Bank
Mortgage and all rights and obligations created thereunder, such that the Bank: Mortgage shall
constitute a first lien upon the Bank Mortgage Property.
3. The Borrower hereby covenants as follows:
a. To keep the Subordinating Lender Mortgage in good standing without
default, according to the terms and conditions thereof.
b. That any default under the promissory note or other loan document executed
in connection with the Subordinating Lender Mortgage, shall constitute a default under the Bank
Mortgage, entitling the Bank to all remedies set forth therein, or otherwise available at law or in
equity.
c. The Bank shall have the right, but not the obligation, to cure any default
under the Subordinating Lender Mortgage, and any amount expended by the Bank in connection
therewith shall be added to the indebtedness secured by the Bank: Mortgage.
d So long as any indebtedness remains outstanding under the promissory note
or other indebtedness secured by the Bank Mortgage. no future advances shall be made under the
Subordinating Lender Mortgage nor shall the Subordinating Lender Mortgage be extended or
otherwise modified in any manner without the prior written consent of the Bank.
e. The Borrower and the Subordinating Lender shall provide the Bank: with
copies of notices of default under the Subordinating Lender Mortgage not later than three (3) days
after receipt of same.
f. If foreclosure proceedings on the Subordinating Lender Mortgage shall be
instituted, the Bank, subject to the Subordinating Lender's right to cure a default in the Bank
Mortgage, may at its option, immediately or thereafter declare the Bank Mortgage and the
indebtedness secured thereby due and payable forthwith, and may at its option proceed to foreclose
the Bank Mortgage. Bank shall not be entitled to accelerate the debt secured by its Mortgage solely
because Subordinating Lender has filed a foreclosure proceeding.
g. To keep the Bank Mortgage in good standing without default, according to
the terms and conditions thereof; and
h. So long as any indebtedness remains outstanding under the Notes or other
indebtedness secured by the Subordinating Lender Mortgage, no future advances shall be made
2
under the Bank Mortgage. Notwithstanding the foregoing, the Bank may make any advances
necessary in its reasonable judgment to protect the Bank Mortgage Property, including but not
limited to advances to pay real estate taxes, insurance premiums, or necessary repair, maintenance
or construction costs ("Protective Advances").
4. The Subordinating Lender hereby agrees to comply with and consents to the terms
and provisions of paragraphs 3b.. c., d., e. and f. ofthis Agreement.
5. This Agreement shall be governed by and construed in accordance with the laws of
the State of Florida, and shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, personal representatives. successors and assigns.
6. The Subordinating Lender's permission for the placement of the Bank Mortgage
does not constitute the Subordinating Lender as a joint venturer or partner of the Bank. No party
hereto shall hold itself out as a partner, agent or affiliate of any other party hereto.
7. The Borrower, Bank and Subordinating Lender agree to execute and deliver all
additional instruments and/or documents required to further evidence the intent of this Agreement.
8. This Agreement shall not be amended except by written instrument signed by all
parties hereto.
9. If any provision of this Agreement shall be invalid or unenforceable to any extent,
then the other provisions of this Agreement shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
10. The term of this Agreement shall commence on the date hereof and shall continue
until the earliest to occur of the following events: (i) the payment of all of the principal of, interest
on and other amounts payable under the Bank Mortgage; (ii) the payment of all of the principal of,
interest on and other amounts payable under the Subordinating Lender Mortgage; (ill) the
acquisition by the Bank of title to the Property pursuant to a foreclosure, or a deed in lieu of
foreclosure (or the exercise of a power of sale contained in) with respect to the Bank Mortgage; or
(iv) the acquisition by the Subordinating Lender of title to the Property pursuant to a foreclosure or a
deed in lieu of foreclosure of (or the exercise of a power of sale contained in) with respect to the
Subordinating Lender Mortgage.
11. If a Bank Mortgage default occurs and is continuing, the Bank agrees that, without
the Subordinating Lender prior written consent. it will not commence foreclosure proceedings with
respect to the Property under the Bank's Mortgage or exercise any other rights or remedies it may
have under the Bank Mortgage. including, but not limited to accelerating the Bank Mortgage,
collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights
or remedies thereunder, unless and until it has given the Subordinating Lender at least thirty (30)
days prior written notice.
12. The Borrower and the Bank agree that a Default under the Bank Mortgage. after
expiration of any applicable notice and cure periods provided therein, shall constitute a default
3
under the Subordinating Lender Mortgage and the Subordinating Lender shall have the right to
exercise all rights or remedies under the Subordinating Lender's Mortgage in the same manner as in
the case of any other default thereunder.
13. The Bank shall deliver written notice to the Subordinating Lender simultaneously
upon the delivery to Borrower of written notice of each Bank Mortgage default in each case where
the Bank has given written notice of default to the Borrower. The Subordinating Lender shall have
the right, but not the obligation, to cure any such Bank Mortgage default within thirty (30) days
following the date of such notice. All amounts paid by the Subordinating Lender to the Bank to
cure a Bank Mortgage default shall be deemed to bave been advanced by the Subordinating Lender
pursuant to, and shall be secured by the lien of, the Subordinating Lender Mortgage.
14: All notices, consents or other instruments or communications provided for under this
Agreement shall be in writing, signed by the party giving the same, and shall be deemed properly
given and received (a) when actually delivered and received personally, by messenger service, or by
fax or telecopy delivery; (b) on the next business day after deposited to delivery in an overnight
courier service such as Federal Express; of (c) three (3) business days after deposit in the United
States mail, by registered or certified mail with return receipt requested. All notices or other
instruments shall be transmitted with delivery or postage charges prepaid, addressed to the parties at
the address above for the parties or to such other address as such parties may designated by written
notice to the other parties:
15. Borrower and Bank agree that nothing contained in this Agreement shall be deemed
a novation, modification or release of the Subordinating Lender Mortgage of Mortgage Lien, or
Notes secured thereby.
16. The Borrower and the Bank each agree that, except as otherwise provided herein,
until the principal of, interest on and all other amounts payable under the Subordinating Lender
Mortgage have been paid in full, it will not, without the prior written consent of the Subordinating
Lender in each instance amend, modify, increase, extend, renew or replace the Bank Mortgage or
note secured thereby. Any amendment of the Bank Mortgage or note secured thereby without the
Subordinating Lender's prior written consent shall be void ab initio and of no effect whatsoever.
Notwithstanding the foregoing, the Bank may assign the Bank Mortgage without the Subordinating
Lenders prior written consent.
17. Borrower shall be obligated to pay and otherwise comply with Subordinating
Lender's Mortgage notwithstanding a default in the Bank Mortgage.
18. Bank, Borrower and Subordinating Lender agree that the liens of the Bank Mortgage
and Subordinating Lender Mortgage shall be subordinate to the terms and conditions of the Cross
Easement Agreement executed or which will be executed (and subsequently recorded) by and
between Borrower, Subordinating Lender and the School Board of Palm Beach County, Florida,
which provides for drainage easements and other rights for surface water drainage and irrigation
with respect to the Bank Mortgage Property.
4
19. Notices, All notices, statements, demands or other communications ("noticefs)")
to be given under or pursuant to this Agreement, or which a party hereto may wish to give, must
be in writing, addressed to the other party at its address as provided below, and delivered in
person, by facsimile transmission or by certified or registered mail, return receipt requested and
postage prepaid. Such notice will be deemed to have been delivered on the date of hand
delivery, on the date of delivery by facsimile transmission (unless such delivery is made on a
non-business day or on any day after 5 p.m., in which event delivery will be deemed to have
been made on the following business day) or on the day of delivery when mailed as aforesaid
(which would also be the day receipt is rejected), as the case may be. Any party may from time
to time change its address or facsimile number for receipt of notices by sending a notice to the
other parties specifying such new information.
To Bank:
Orion Bank
Attn: Peter J. Kampine
Phillips Point West Tower
777 South Flagler Drive, Suite 1701
West Palm Beach, Florida 33401
(561) 653-5029 (phone)
(561) 653-5044 (facsimile)
To Subordinating Lender:
Susan A. Ruby, City Attorney
City ofDelray Beach
200 NW 1 sl Ave.
Delray Beach, FL 33444
(561) 243-7091 (phone)
(561) 278-4755 (facsimile)
[SIGNATURE(S) ON FOLLOWING PAGE]
5
IN WITNESS WHEREOF, this Agreement was executed as of the day and year first
above written.
Signed, sealed and delivered
in the presence of:
BORROWER:
AUBURN TRACE, LTD., a
F~ridalinrlredp~~mp
By: Auburn Trace Joint Venture,
a Florida general partnership,
its General Partner
By: Auburn Management, Inc.,
a Florida corporation,
its General Partner
By:
Brian 1. Hinners
Its: President
SUBORDINATING LENDER:
CITY OF DELRA Y BEACH,
By:
I etrPerIman, Mayor
BANK.:
ORION BANK.
By:
Its:
[NOTARY BLOCK(S) ON FOLLOWING PAGE]
6
.
STATE OF FLORIDA )
COUNTY OF PALM BEACH )
The foregoing Subordination Agreement was acknowledged before me this _ day of .
2006, by Brian J. Hinners, the President of Auburn Management, Inc., a Florida corporation, General Partner of Auburn
Trace Joint Venture, a Florida general partnership, General Partner of Auburn Trace, Ltd., a Florida limited partnership,
on behalf of the corporation, the general partnership and the limited partnership, ( ) who is personally known to me OR
( ) who produced as identification.
Notary Signature
Print Notary Name
NOTARY PUBLIC
State of Florida at Large
My Commission Expires:
STATE OF FLORIDA )
COUNTY OF PALM BEACH )
The foregoing Subordination Agreement was acknowledged before me this _ day of .
2006, by Jeff Perlman, the Mayor of the City of Delray Beach, a Florida municipal corporation, an behalf of the
corporation, ( ) who is personally known to me OR ( ) who produced as
identification.
Notary Signature
Print Notary Name
NOTARY PUBLIC
State of Florida at Large
My Commission Expires:
STATE OF FLORIDA )
COUNTY OF PALM BEACH )
The foregoing Subordination Agreement was acknowledged before me this _ day of
2006, by the of ORION BANK. a
. on behalf of the . ( ) who is personally known to me OR ( ) who
produced
as identification.
Notary Signature
Print Notary Name
NOTARY PUBLIC
State of Florida at Large
My Commission Expires:
H:\B022\18469\DSubordinlllionAgreementAubumTtlIceCityDclruy2RP Alwcincr & aronsDn, pI
7
'!:
Tms INSTRUMENT PREPARED BY AND
WHEN RECORDED RETURN TO:
Bert R. Oliver, Esquire
Bert R. Oliver, P.A.
2060 NW Boca Raton Blvd.
Suite 6
Boca Raton, FL 33431
(561) 869-3000
SPACE ABOVE THIS LINE FOR RECORDING DATA
QUIT CLAIM DEED
THIS QUIT CLAIM DEED made this _ day of April, 2006, between City of Delray
Beach, Florida, a municipal corporation of the State of Florida ("Grantor"), whose post office
address is 100 NW 1st Avenue, Delray Beach, FL 33444, to Block 77 Development Group, L.C.,
a Florida limited liability company ("Grantee") whose post office address is 900 East Atlantic
Avenue, Delray Beach, FL 33483.
WITNESSETH
1. That Grantor is the fee simple title owner of the real property described as:
The North 80.18 feet of Lots 4,5 and 6, Block 77, Map ofthe Town of Linton, Florida (now
Delray Beach), according to the map or plat thereof as recorded in Plat Book 1, Page(s) 3,
Public Records of Palm Beach County, Florida.
(The "Grantor's Property".)
2. That Grantor by virtue of said ownership of the Grantor's Property is the beneficiary of
certain private easement rights over certain alleyways described as follows:
That part of the 16 foot alley lying South of and adjacent to Lots 4, 5 and 6, Block 77, Map
of the Town of Linton (now Delray Beach), as recorded in Plat Book 1, Page 3, Public
Records of Palm Beach County, Florida, bounded as follows: on the North by the South line
of said Lots 4,5 and 6, Block 77; on the West by the Southerly extension of the West line of
said Lot 4, Block 77; on the South by the North line of Lot 13, Block 77 and its Westerly
extension, Map of the Town of Linton (now Delray Beach), as recorded in Plat Book 1, Page
3 and on the East by the Southerly extension of said Lot 6, Block 77.
And
That part of the 16 foot alley lying east of and adjacent to Lots 7, 8, 9,10 and North 50.5 feet
of Lot 11, Block 77, Map of the Town of Linton (now Delray Beach), as recorded in Plat
Book 1, Page 3, Public Records of Palm Beach County, Florida, bounded as follows: on the
~~\5..R 6~~\ ~~~
~ ~f,~
West by the East line of said Lots 7,8,9,10 and North 50.5 feet of Lot 11, Block 77; on the
South by the Easterly extension of the South line of the North 50.5 feet of said Lot 11, Block
77; on the East by the West line of Lots 13, 14, 15, 16 and the North 50.5 feet of Lot 17,
Block 77; and on the North by the Westerly extension of the North line of said Lot 13.
(The "Alley")
3. That Grantor, for and in consideration of the sum ofTen ($10.00) Dollars and other good and
valuable consideration to said Grantor in hand paid by said Grantee, the receipt whereof is hereby
acknowledged, does hereby remise, release and quit claim unto said Grantee, and Grantee's heirs and
assigns forever, all the right, title, interest, claim and demand which Grantor has in and to the Alley.
TO HA VE AND TO HOLD the same together with all and singular the appurtenances
thereunto belonging or in anywise appertaining, and all the estate, right, title, interest, lien, equity
and claim whatsoever of the Grantor, either in law or equity, for the use, benefit and profit of the
said Grantee forever.
IN WITNESS WHEREOF, the Grantor has signed and sealed these presents the day and
year first above written.
Signed, sealed and delivered in the presence of: City of Delray Beach, Florida, a municipal
corporation of the State of Florida,
Witness Name:
By:
Name:
Title:
Witness Name:
ST ATE OF FLORIDA
)
) ss:
)
COUNTY OF
The foregoing document was acknowledged before me this _ day of April 2006 by _
, of City ofDelray Beach, Florida, a municipal corporation of the State
of Florida, who D is personally known to me or D produced as identification.
Notary Public
My commission expires:
Seal: