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04-10-07 Agenda/WSc-,~ DELRAY BEACH ~ CITY COMMISSION ~~ ~ ~, CITY OF DELRAY BEACH FLORIDA ~ I WORKSHOP -TUESDAY, APRIL 10, 2007 6:00 P.M. FIRST FLOOR CONFERENCE ROOM 1993 2001 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 at 243-7010, 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. WORKSHOPAGENDA 1. Update on Delray Beach Historical Society Archives Relocation Project 2. Discussion regarding a contract for Wi-Fi Services. 3. Discussion regarding the current Capital Improvement Program. 4. Commission Comments 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. MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER SUBJECT: DELRAY BEACH HISTORICAL SOCIETY ARCHIVES RELOCATION PROJECT DATE: APRIL G, 2007 Representatives of the Historical Society will update the Commission on their plans for relocating the archives out of Old School Square. S:\City Clerk\AGENDA COVER MEMOS\City Manager Memos\Delray Beach Historical Society Hunt House Project Update 04.10.07.doc Delray Beach Historical Society Hunt House Project Update April 2007 Attached are documents associated with the following: • Formal acquisition of Hunt House • Notice of potential funding from the State Historic Preservation Small Matching Grants -in-aid program ($50,000) • Meeting with Mary McCarty's office to discuss the contract associated with the up to $200,000 in County funding contingent upon a City match • Revised timeline for restoration • Cost estimates included in the state grant application • Sun-Sentinel Article outlining the project Funding to Date Source Amount Process Grant Period Scheifley Gift $50,000 Restricted Gift County Funding $200,000 Contingent upon City match; reimbursement FL Dept. of State Preservation Grant-in-Aid $50,000 Reimbursement July 2007- July 2008 TOTAL funding acquired b DBHS $300,000 MADISON AT DEL.RAY, L.L.G. i i7ANE5THAYENUE DELRAY BEACH, FLORIDA 33~L83 March 13, 2007 Mr. Robert W. Ganger President, Delray Beach Historical Society 3 N.E. 1gt Street Delray Beach, FL 33444-3707 Dear Mr. Granger: Effectively immediately, Madison At Delray, L.L.C. will donate the currently unoccupied and empty primary dwelling that we now own at 124 NE 5~' Avenue in Delray Beach, Florida, to the Delray Beach Historical Society. It is our understanding that you plan to move the building to property owned by the City of Delray Beach at 3 NE 18t Street as quickly as practical, but probably no sooner than July, 2007. It is your further intention to prepare the house for the move, and therefore you wish to have free access by your architect and contractor. We cannot make any kind of warranty or representation as to the building, including, but not limited to its suitability to be moved. This agreement to allow for the moving of the building exdusive relates to one building, and not to any land or secondary improvements on the. property. From the time you begin preparations forward you shall obtain and maintain commercially reasonable amounts of insurance to cover all your activities in connection with the moving of the building. In consideration for being allowed to move the building currently located at 124 NE 5~' Avenue to the property owned by the City of Delray Beach at 3 NE 1~ Street, the Delray Beach Historical Society agrees that it will indemnify, defend, save and hold harmless Madison At Delray, L.L.C., and its agents, employees and officers from any and all obligations, daims, rents, liabilities, damages, losses, demands, payments and expenses of.~any kind or nature whatsoever, including any and all attorney's fees which may be incurred as a result of the Delray Beach Historical Society's acts or omissions with respect to the building currently located at 124 NE 5"' Avenue. This agreement shall cover all your acts or omissions from the time you begin preparations forward. This agreement shall be construed in accordance with the laws of the State of Florida. The Delray Beach Historical Society shall execute any and all other documents, ensure conformance with all legal obligations, including but not O:ICARV00211.etter to Robert Granger.Ma~tt 13, 2007.doc r'` ~~ Mr. Robert W. Granger March 13, 2007 Page 2 of 2 limited to obtaining all permits andlor approvals from the City of Delray Beach, and perform any other act or acts which may be required or which may be reasonably necessary to carry out and effectuate any of the purposes and provisions of this letter. This indemnification shall survive the termination of this agreement. In the event of litigation concerning this agreement, the prevailing party shall be reimbursed for all costs and expenses, including attorney's fees. We are pleased to make this building available to you so that a historic Delray Beach farmhouse can be restored and enjoyed by future generations. Please understand that if the building is not moved by January 31, 2008, your right to move the house shall lapse. Please countersign below indicating your acceptance. Very truly yours, Madison At Delray, LLC By: ~ c~~b 0:1CARV002U.etter to Robert Granger.Marctt 13, 2007.doc ,~ C 'O .~t ~ ~ C C v ~ ~ ~ O Vl d N O. ~ V q ~_ ~ ~ ~ $ S zs .!9 <" ~~ $ E rs E y .~ •_ m ~ ~ ~ ~ ~; T.d KHd 13C213Ski1 dH WdTT~Z LDOZ OE ~~W P.O. Box 1989 West Palm Beach, FL 33402-1989 (561)355-2001 FAX: (561) 355-3990 www pbcgov.com ^ raLn seach county Board o! county co~~~r~ Addie L. Greene, Chairperson jell lcoons, Vice Chair Karen T Marcus Warren H. Newell Mary McCarty Burt Aaronson Jess R. Santamaria county Admlalsastor Robert Weisman .!~- squa! opparuniry .~fimati-ie.rcYarwr kirpJoyer' DATE: January 10, 2007 MEMO TO: Robert W. Ganger, President FROM: Mary McCarty Commissioner, District IV RE: DELRAY BEACH HISTORICAL SOCIETY There is a time sensitive opportunity to preserve one of Delray's historic cottages. It would be used to house archives and provide additional museum reseazch space for the Historical Society. It is estimated that the cost of moving and "situating" the house will be approximately $500,000. The City of Delray Beach has committed to match all funds raised. The Delray Beach Historical Society is applying for a state grant for $50,000. The city's match of $50,000 leaves $400,000 to be funded. Therefore, the County will commit to reimburse up to $200,000 provided the City of Delray Beach match that amount. This is subject to the existing bond allocations by the Palm Beach County Board of County Commissioners. * The County is hopeful that the historic tours now being conducted in the city can be better coordinated between Spady, Dekay Beach Historical Society and the Museum of Lifestyle & Fashion History. prAnMd on recyalsd Asper Attachment 1 Hunt House Project-Timeline For Restoration Prepared 11/5/2006 (Revised 2/13/2007) Start Completion Target (Actual*) Ez lorato Sta e Ex lore options for Research Center/Archives Recommend Hunt House Move as Preferred Option (Cit Commission) 2/1/06 6/15/06* 6/20/02* Plannin Sta e Review Prelim. Plan with Ci Commission 6/21/06 11/14/06* "with Community Redevelopment Agency 11/21/06* "with P&Z and Historic Preservation Board 12/13/06* Stabilize Hunt House ongoing A ly for State Restoration Grant (Div Historical Res) Review Plans with Coun Commission 11/15/06 12/1/06 12/15/06* 12/28/06* Complete Site Assessment: Soil test, new surve ,structural en ineerin 2/26/07 3/15/07 Com lete Design and Cost Estimates 12/1/06 3/15/07 Review Co rehensive Plan with Ci Commission 4/9/07 Obtain City Buildin Permits 4/1/07 5/15/07 Order Pre-cast storage facility 5/15/07 8/15/07 Move and Secure Site Pre are footin sand under ound utilities 5/15/07 7/1/07 Remove later add-ons from Hunt House exterior 6/16/07 7/15/07 Move Hunt House 7/22/07 Secure Hunt House on new site re-restoration} 7/22/07 8/15/07 Install Precast Stor a facili 8/15/07 Install construction utilities and pour ADA Ramp Construct connectin entry, roof, and floor 8/25/07 9/25/07 Com lete Exterior Restoration io/i/o~ 1/31/08 Discretionary Replace asphalt shingles Replace original chimney Reo n rch and restore on final wooden floor Stri and re air windows, reset lass and sashes Construct new wall for expanded wder room Re lace dams ed storm shutters and holdbacks Build du licate shutters and holdbacks Build du licate shutters for stor a facili Re air/re lace damaged dormer Re air dams ed sidin R lace exterior doors Restore Interior S ace in/os s/i/os Rebuild owder room to ADA standards Restore damaged bead board ceilin sand walls Stri ,sand, and refinish floors, baseboards Stri and refinish interior doors, frames, moldin Restore on final late and library shelves Re air brick fire lace as neces Paint interior walls, columns, shelving Com lete Utili Connections 5ll/os 6/1/08 Install a/c and backu enerator Install lu s, switches, lays, sink, etc. Paint Exterior and Install Period Decorative Touches 6/1/08 7/1/08 Post Restoration ~/i/o8 10/2o/os Install archival storage and information retrieval ui ment Decorate interior to eriod style Landsca a rounds La aths and ar ' aces Move archives O en Hunt House to the Public 11/1/08 HISTORICAL RESOURCES GRANTS-IN-AID APPLICATION 29} PROJECT BUDGET PAGE 9 BUDGET ITEMS GRANT MATCHIIYG FUNDS or SUB-TOTAL FUNDS LOCAL COST SHARE Repair existing roof $ 10,500.00 $ $ 10,500.00 Repair degraded wood siding $ 9,000 00 $ $ 9,000.00 Repair/replace bead board shutters $ 6,000.00 $ $ 6,000.00 Restore original open porch $ 15,300.00 $ $ 15,300.00 Insulate/access attic crawl space $ 3,200.00 $ $ 3,200.00 Refinish windows/reset glass $ 6,000.00 $ $ 6,000.00 Remove and rewire electrical $ $ 21,100.00 $ 21,100.00 Strip,sand and refinish floors $ $ 9,000.00 $ 9,000.00 Repair/repoint brick flatwc~ic $ $ 6,000.00 $ 6,000.00 Refinish doors, repair hardware $ $ 2,800.00 $ 2,800.00 Upgrade existing A/C $ $ 8,000.00 $ 8,000.00 Construct disabled ramp $ $ 10,000.00 $ 10,000.00 Painting 8c prep $ $ 26,000.00 $ 26,000.00 Plumbing and lavs $ $ 15,800.00 $ 15,800.00 Lighting fixtures $ $ 1,500.00 $ 1,500.00 Material, general $ $ 5,000.00 $ 5,000.00 Trash haul $ $ 4,800.00 $ 4,800.00 Contingency*/profit $ $ 90,000.00 $ 90,000.00 *roof, floors support system, hurricane protection $ $ $ 0.00 $ $ $ 0.00 $ $ $ 0.00 $ $ $ 000 TOTALS $ 50,000.00 $ 200,000.00 $ 250,000.00 Society rescues one of Delray's oldest buildings PalmBeac~Fbst.com Society rescues one of Delray's oldest buildings By Filar Ulibarri De Rivera Palm Beach Post Staff Writer Wednesday, March 28, 2007 DELRAY BEACH -Bob Ganger got a tip about a vacant building at 124 N.E. Fifth Ave. in Delray Beach. Gay Bridges told the Delray Beach Historical Society president that she believed it was one of the oldest buildings in the city. Bridges is the wife of the building's last tenant, architect Digby Bridges. Hunt House highlights: Page 1 of 4 C~ PRINTTHIS 1892: Speculator Simeon Brinson buys a 160-acre parcel of land where Delray Beach now stands and later sells amile-long by 100-foot strip to Henry Flagler for $1 for a future railroad. 1902: Local shopkeeper Lester Lyman buys a plot of land and flips it the same day by selling it to Frank McDuff. 1906: Pioneers John Alm and Warren Blackmer buy parcels from McDuff. 1908: Alm builds a house, early records suggest. 1910: New Jersey newlywed Horace Hunt and his wife buy the house and farm the land (possibly 3 acres). 1915: Delray residents Ella Reed and her husband Charles buy the house and continue to farm the land. 1918: German salesman, Charles Walter Voth from Cleveland, buys the house. 1935: Railroad station agent Joseph Strange and his wife buy the house. 1977: The Stranges' daughter moves in with her husband, R.C. Croft, son of Delray Beach's last marshal and first police chief. Croft deeds a parcel of the land to his brother, Roy, who was mayor of the city in 1958. http://palmbeachpost.printthis.clickability.com/pt/cpt?action--cpt&title=Societv+rescues+o... 3/28/2007 Society rescues one of Delray's oldest buildings Page 2 of 4 1986: Architectural Firm Bridges & Marsh buys the house and converts it into a studio and office. 2006: Developer Microliviano International Inc. buys the Hunt House and four neighboring bungalows to demolish and make room for condominiums. 2007: Delray Beach Historical Society acquires house. It will be moved to society grounds, restored and used as a learning center. TBA eniarae This artist's rendering shows what Hunt House will look like when it is restored. Special to Neighborhood Post Eliza Gutierrez/The Post enlarge Archivist Dorothy Patterson and Bob Ganger, president of the Delray Beach Historical Society, are excited about the move and restoration of the Hunt House, which dates to 1908. Neighborhood Post Delray Beach Click here for the latest news, sports, neighbor profiles and calendars. Community Forum Share your opinion about current Delray issues. • Best of the Blotters, 2006 More neighbors, area news: • Boca (Boynton I Delrav • LW/Lantana I West Palm • Jupiter I PBG/NPB • Martin I St. Lucie • RPB I Wellington http://palmbeachpost.printthis.clickability.com/pt/cpt7action=cpt&title=Society+rescues+o... 3/28/2007 Society rescues one of Delray's oldest buildings • Communii~Guide • Recent PropertX Sales • Traffic 8 Live Cams • Weather 8 Radar More Resources you want to be involved with the very history of a place." Page 3 of 4 A concrete bunker made to withstand fire, flooding and hurricanes, will be placed behind the building an~ house the society's archives. "For the past 15 years we've had our archival collection in the Cornell Museum," Ganger said of the seco comer office of the Old School Square building at 51 N. Swinton Ave. "We have stuff from as far back a before there was a Delray and stuff ever since, including minutes of all town meetings since (Delray) wa incorporated in 1911." In July, the society's lease at the museum expired and Old School Square said it wanted to occupy the spy historical society started to look for alternatives and the simple building seemed to be the right fit. Microliviano International, inc., a Delray Beach development company, was going to demolish the buildi neighboring wooden cottages, to put up "just what Delray Beach needs most," Ganger said jokingly, "mo condos." The society asked if it could have the old house. "They told us they were going to preserve it and move it to their grounds, so we told them they could hay Luis Carballo, sales and marketing manager for the company. Ganger spent hours in the West Palm Beach courthouse trying to learn the house's history. Its story micro the city's recent history. In the early part of the 20th century, Henry Flagler built his railroad through the area and people began tc from the North, buy property and flip it, Ganger said. "Someone would buy a piece of property on Monday and sell it on Wednesday," he said. The larger piece of land the house sat on was flipped in one day in 1906. Early records suggest a Town o~ pioneer, John Alm, built the house on a parcel of the land in 1908. Two years later Alm sold the house and land to Horace Hunt, at 23-year-old newlywed from New Jersey; farmed the possibly 3 acres of land with his wife. "Everything around it was planted with beans, tomatoes and possibly pineapples," Ganger said, adding th access to records of the local farmers accounts at the Sundy Feed House, it is possible to get a mental pic what the land looked like. Between the year the Hunts took residence in the house and 1986, the year it became Digby Bridges' offi• house and the land changed ownership about eight times. http://palmbeachpost. printthis.clickability.com/pt/cpt?action=cpt&title=Society+rescues+o... 3!28/2007 Society rescues one of Delray's oldest buildings Page 4 of 4 Voth" and Joseph Strange, a railroad station agent, who transferred the house to his daughter and son-in- law in 1977. Strange's son-in-law was R.C. Croft, son of the city's last marshal and first police chief. Croft then split the property and deeded a parcel to his brother Roy, who was mayor in 1958. "We not only got to save one of the oldest buildings in town," Ganger said. "We got to save its story." The society will conduct tours through the house and tell its history, tying it in to the history of the city and Palm Beach County. Once the house is moved around the corner, past Flaglet's railroad tracks and west a few blocks, it will be renovated, fittingly, by Digby Bridges, Marsh & Associates, now of Palm Beach. This week, Ganger and historical society Executive Director Karen Preston, are in Tallahassee trying to get a $50,000 state grant to help pay for the $500,000 renovation. They've already received $200,000 from County Commissioner Mary McCarty, through a parks and recreation bond, for the restoration and the windowless bunker. Besides removing layers of paint from the walls and Dade pine floors of the pastel yellow building with Been doors and white trim, Bridges also will expose the front porch. Restoration work might be finished in 2008, during what is believed to be the house's 100th birthday. The bunker will be connected to the back by a roof and will be made to look like it has always belonged to the house. "We are not really about the preservation of buildings but of stories, but with this, we are able to do both," Ganger said. "When you think about it the story of this house is the soul of Delray." Find this article at: http://www.palmbeachpost.comldelray_bead/conterrtlneighbofioodldelray_beach/epaper2007/03/26/npd6 historical 0328.html ^ Check the box to include the list of links referenced in the article. http://palmbeachpost. printthi s.clickability. com/ptlcpt?action=cnt&title=Society+rescues+o... 3/28/2007 City Commission Workshop April 10, 2007 Update on DBHS Archives Relocation Project Purpose --Secure "go ahead'' approval and grant support for the "Hunt House" Learning Center Background --Cornell Museum Archives Room Lease expired 7/06; OSS provided time to relocate --DBHS met with Commission 6/20/06 to review options --Follow up meeting 11/14/06 to recommend Preliminary Plan ---Save Historic Cottage and attach "bunker" for archival storage ---Project cost estimated at $500-600K ---Finance project through city, county and state grants ---Cover incremental operating costs though a capital campaign endowment Current Status --Hunt House "acquired" to satisfy State condition for historic restoration grant --Design Phase 95% complete; City recommendation for "bunker" module confirmed --$300K in gifts/conditional grants secured --Targeting Hunt House move and commencement of construction this summer --Endowment Capital Campaign kickoff upon "go" decision --11/1/08 Ribbon Cutting Review Financials --Project cost still within $500-600K range, with a $40K contingency --Owner's Rep will be retained to oversee the project Next Stens --Formal application for CRA/City funding --Commence Historic Preservation Board and P&Z permitting process --Execute County Parks and Recreation contract --Coordinate plan timeline with Old School Square --Execute initial contracts 4~~O~trl ~.~~~ ~~~ C ~Q -'~,.. ws. ~. DBHS Learning Center Activi Cost Timin Plan & Site Pre $ 85,000.00 Aril -Jul '07 Move Hunt House $ 50,000.00 Summer'07 Restore Hunt House $ 225,000.00 Jul '07 to June '08 Deliver Archival Module $ 75,000.00 Summer'07 Construct Connector & Matchin Exterior $ 35,000.00 Au to Oct'07 Com lete interior Desi n & S stems $ 30,000.00 Summer '08 Sub Total Construction $ 500,000.00 Lan ca in , Back u ower, arkin $ 50,000.00 Summer'08 Movin Costs $ 10,000.00 October'08 Contin enc $ 40,000.00 Total Pro'ect $ 600,000.00 Grand Opening November'08 Proposed Funding Amount Available DBHS Cash $ 50,000.00 NOW Line of Credit TBD As Needed Ci CRA $ 50,000.00 2007 Ca ital Funds $200 - $250,000 2007-08 Coun Parks & Rec Bond $ 200,000.00 Invoice/90 da State Div of Hist. Resources $ 50,000.00 Jul 07-June '08 Federal Ci Grant $ 200 000.00 TBD, 2008 Gross Pro'ect Fundin $550 - 600,000.00 12:13 PM Delray Beach Historical Society, Inc. oaroslo7 Profit & Loss cash Basis October 2005 through September 2006 Oct 'OS -Sep 06 Ordinary Income/Expense Income Books 703.00 Miscellaneous Income Plants/Flowers 270.50 Tota! Miscellaneous Income 270.50 Program Fees General Admission 0.00 Preview Party 0.00 Total Program Fees 0.00 Reimbursed Expenses 320.00 4015 • Contributions -Unrestricted 4015.1 • Special Event 725.00 4015 • Contributions -Unrestricted -Other 92,271.87 Tota14015 • Contributions -Unrestricted 92,996.87 4016 • Restricted Contributions 2,500.00 4021 • Consulting 225.80 4030 • Membership Dues 18,415.00 4040 • Antiques Show Income 4040.0 • Sponsors 500.00 4040.1 • Preview Party Income 4040.11 • Preview Party Tickets 17,300.00 Total 4040.1 • Preview Party Income 17,300.00 4040.2 • Advertising Income 11,600.00 4040.4 • Main Gate 9,200.00 4040.5 • Raffle Ticket Sales 1,480.00 4040.7 • Plant Resale 324.00 4040.8 • Food Sales 696.55 4040.9 • Dealer Fees 14,506.05 Total 4040 • Antiques Show Income 55,606.60 4042 • Lecture Income 4042.2 • Lecture Tickets 2,970.00 4042 • Lecture Income -Other 3,330.00 Tota14042 • Lecture Income 6,300.00 4058 • Tours 4058.1 • Trolley Tour 2,997.50 4058.2 -School Tour 892.00 4058.3 • Ride 8 Remember Trolley Tour 60.00 Total 4058 • Tours 3,949.50 4060 • Gift ShoplPhoto Sales 4060.1 • Book Sales -Archive Room 491.69 4060.2 • Photo Sales 2,693.62 4060.3 • Notecardslother 174.50 4080 • Gift ShoplPhoto Sales -Other 59.54 Total 4060 • Gift ShoplPhoto Sales 3,419.35 4070 • Interest Income 7,959.03 4090 • Rental Income 850.00 4099 • Other Income 3,404.54 Total Income 196,920.19 Cost of Goods Sold 6500 • Purchases for Resale 2,957.00 Total COGS 2,957.00 Gross Profit 193,963.19 Expense 7901 Employee Benefits 3,219.63 5001 • Donations 720.00 5500 • Exhibit Expense 1,056.99 5503 • Conservation Expense 10,503.77 5505 • Special Events 1,281.00 12:13 PM Delray Beach Historical Society, Inc. oa/osro7 Profit & LOSS casn Basis October 2005 through September 2006 Oct'05 -Sep O6 6002 • Book Purchases 6004 • Volunteer Expense 8007 • Event Costs 6007.1 • Trolley Tour 6007 • Event Costs -Other Total 6007 • Event Costs 6016 • Preview Party 6030 • Antiques Show Expenses 6030.1 • Accomodations 6030.10 • Advertising 8030.13 • PrintinglCopy 6030.14 • Public Relations 8030.2 • Dealers 8030.3 • FlorallPlants 8030.4 • Labor 6030.6 • Rental/Facilities Expense 8030.7 • Lecture 8030.8 • Security 8030.9 • Preview Party Tota18030 • Antiques Show Expenses 7003 • Accounting/Legal Services 7006 • Donor Appreciation 7012 • Bldg. Maintenance ~ Repairs 7014 • Photography 7017 • Security 7020 • Storage 7220 • Dues 7230 • Board Meetings 7231 • Membership Meeting 7380 • Insurance 7380.1 • Property Insurance 7380.3 • Workers Comp. Insurance 7540 • Miscellaneous 7550. Office Supplies 8~ Expense 7551 • Bank/Credit Card Fees 7561 • Taxes -Other 7810 • Postage and Delivery 7620 • Printing 8~ Copying 7625 • Public Relations 7840 • Computer Repairs 8~ Upgrades 7845 • Equipment Repairs 8 Maintenance 7690 • Rent Expense 7880 • Telephone 7900 • Wages/Salary 7902 • Taxes/payroll 7940 • Utilities Total Expense Net Ordinary Income Net Income 1,737.43 292.88 328.00 2,029.29 2,357.29 0.00 2,639.00 9,654.68 13,911.00 4,678.44 487.62 3,335.75 10,500.00 5,563.67 12,087.26 3,017.40 8,800.15 74,674.97 1,416.73 418.08 5,479.62 731.76 604.47 1,247.50 s2o.oo 371.68 923.64 2,328.79 1,086.00 640.00 800.00 1,929.70 427.35 534.28 2,327.29 6,938.75 500.00 1,145.25 446.23 6,330.38 5,734.62 60,866.59 4,656.30 7,550.99 211,899.96 -17,936.77 -17,936.77 12:32 PM Delray Beach Historical Society, Inc. 04,09107 Profit & Loss casn Basis October 2006 through March 2007 Ordinary IncomelExpense Income Books 4015 • Contributions -Unrestricted 4015.2 • Heritage Month 4015 • Contributions -Unrestricted -Other Total 4015 • Contributions -Unrestricted 4016 • Restricted Contributions 4016.1 • Heritage Month Sponsorship 4016.3 • Archives/Research Center Total 4016 • Restricted Contributions 4030 • Membership Dues 4040 • Antiques Show Income 4040.0 • Sponsors 4040.1 • Preview Party Income 4040.11 • Preview Party Tickets Total 4040.1 • Preview Party Income 4040.2 • Advertising Income 4040.3 • Lecture Series 4040.32 • Lecture tickets 4040.33 • Lecture books 4040.34•Lecture/Read Total 4040.3 • Lecture Series 4040.4 • Main Gate 4040.5 • Raffle Ticket Sales 4040.6 • Book Sales 4040.7 • Plant Resale 4040.8 • Food Sales 4040.82 • Pastry Cafe 4040.8 • Food Sales -Other Total 4040.8 • Food Sales 4040.9 • Dealer Fees Total 4040 • Antiques Show Income 4042 • Lecture Income 4058 • Tours 4058.1 • Trolley Tour 4058.2 • School Tour 4058.3 • Ride ~ Remember Trolley Tour Total 4058 • Tours 4060 • Gift ShoplPhoto Sales 4060.1 • Book Sales -Archive Room 4060.2 • Photo Sales 4060.3 • Notecardslother 4060 • Gift ShoplPhoto Sales -Other Tota14060 • Gift ShoplPhoto Sales 4070 • Interest Income 4090 • Rental Income Total Income Cost of Goods Sold 6500 • Purchases for Resale Total COGS Gross Profit Expense 7901 Employee Benefits 5000 • Restricted Funds 5000.3 • Lecture Expense Tota15000 • Restricted Funds Oct '06 -Mar 07 259.95 114.00 1,555.79 1,669.79 1,050.00 50,000.00 51,050.00 4,500.00 59,495.00 19,980.00 19,980.00 8,770.00 11,805.00 30.00 1,120.00 12,955.00 8,866.00 1,080.00 580.00 286.00 689.60 10.00 699.60 16,573.23 129,284.83 120.00 1,270.00 64.00 782.00 2,116.00 165.00 2,969.95 63.12 250.00 3,448.07 4,100.94 2,000.00 198,549.58 360.00 360.00 198,189.58 4,576.50 1, 549.49 1, 549.49 12:32 PM Delray Beach Historical Society, Inc. oa/oslo7 Profit & LOSS casn Basis October 2006 through March 2007 5500 • Exhibit Expense 5502 • Educational Expenses 5505 • Special Events 5505.1 • Heritage Month Expense 5505 • Special Events -Other Total 5505 • Special Events 6002 • Book Purchases 6004 • Volunteer Expense 6007 • Event Costs 6007.1 • Trolley Tour 6007.2 • Ride & Remember Trolley Tour 6007 • Event Costs -Other Total 6007 • Event Costs 6030 • Antiques Show Expenses 6030.1 •Accomodations 6030.10 • Advertising 6030.11 • Postage 6030.13 • Printing/Copy 6030.14 • Public Relations 6030.15 • Photography 6030.2 • Dealers 6030.3 • FloraUPlants 6030.4 • Labor 6030.6 • Rental/Facilities Expense 6030.7 • Lecture 6030.73 • Lecturer -Transportation 6030.74 • Lecturer -Accomodations 6030.75 • Lecturer -Equipment Rental 6030.76 • Lecturer -Food Total 6030.7 • Lecture 6030.8 • Security 6030.9 • Preview Party Total 6030 • Antiques Show Expenses 6999 • Uncategorized Expenses 7006 • Donor Appreciation 7012 • Bldg. Maintenance 8~ Repairs 7014 • Photography 7017 • Security 7020 • Storage 7220 • Dues 7230 • Board Meetings 7231 • Membership Meeting 7380•Insurance 7380.1 • Property Insurance 7380.3 • Workers Comp. Insurance 7550 •Office Supplies 8 Expense 7551 • Bank/Credit Card Fees 7561 • Taxes -Other 7610 • Postage and Delivery 7620 • Printing & Copying 7625 • Public Relations 7640 • Computer Repairs & Upgrades 7690 • Rent Expense 7860 • Telephone 7900 • WageslSalary 7902 • Taxes/payroll 7940 • Utilities Total Expense Net Ordinary Income Oct'06 -Mar 07 481.08 880.21 2,239.50 63.92 2,303.42 378.98 552.48 1,959.43 300.00 425.00 2,684.43 3,558.08 8,170.00 4t 1.17 12,955.47 6,100.00 300.00 373.26 3,178.00 12,000.00 3,564.33 309.00 259.00 450.00 184.43 1,202.43 3,017.40 12,820.00 67,650.14 3,000.00 50.00 3,704.32 1,374.91 324.84 620.00 292.00 44.09 1,560.64 1,056.45 880.00 -56.09 1,022.64 256.00 485.59 986.27 1,636.26 100.00 249.96 1,808.68 2,917.77 38,199.96 2,922.30 3,047.72 147.541.04 50,648.54 Net Income 50,646.54 ~N MEMORANDUM TO: MAYOR AND CTTY COMMISSIONERS FROM: Brian Shutt, Assistant City Attorney THROUGH: CITY ATTORNEY DATE: Apri16, 2007 SUBJECT: AGENDA ITEM # -WORKSHOP MEETING OF APRIL 10 2007 PROPOSED WIFI AGREEMENT ITEM BEFORE COMMISSION Discussion of an Agreement between the City and Delray Beach WiFi regarding wife. BACKGROUND The item had previously been scheduled for the March 6, 2007 meeting but was pulled by Delray Beach WiFi prior to the meeting, since that meeting we have worked with Delray Beach WiFi and the agreement has been modified where for the most part the terms are acceptable. It is expected that there will be further changes after a conference call to be held Monday morning. If there is we will email you updated agreements. The major terms are as follows: - initial term of 10 years with 2 - 5 year renewal terms upon approval of both parties - free service for a period not to exceed 4 hours per day for the area 3 blocks north and south of Atlantic Ave. from I-95 to the Ocean at a minimum speed of 512 kbs - the City will allow DB WI-FI to place its antennae on facilities owned by the City, however, DB WI- FI shall pay for all electricity and their use of the facilities shall be non-exclusive - the City will waive its permit fees, if required - DB WI-FI shall provide 100 free new computers and free Internet service, at 512 kbs, to 200 households that are below the Federal poverty level and as determined by the City - DB WI-FI shall provide 512 kbs Internet service to all City households, with school age children, that fall below the Federal poverty level at the rate of $9.99 per month for a one year period with increases thereafter limited to 5% per year - DB WI-FI shall bear all of the risk of placing its equipment in the City right-of--way - DB WI-FI shall upgrade its system in order to ensure that its services are competitive - the City shall not charge DB WI-FI for the use of its facilities - DB WI-FI will have 180 days to implement Phase I which is the Atlantic Avenue free service area; thereafter DB WI-FI shall provide wife service to the rest of the City, east of I-95, 60 days after completion of Phase I; after Phase II is completed DB WI-FI shall complete wife coverage for the rest of the City within 60 days - the agreement may also be terminated by the City or DB WI-FI if 90 days after the effective date of this Agreement DB WI-FI has not secured the necessary approvals to proceed - DB WI-FI shall have certain service levels to meet, as provided by Exhibit F to the Agreement FUNDING SOURCE N/A RECOMMENDATION Commission discretion. WS.2 WIRELESS BROADBAND AGREEMENT THIS WIRELESS BROADBAND AGREEMENT ("Agreement"), dated for purposes of identification only this day of 2007 ("Effective Date") is entered between the CITY OF DELRAY BEACH, a municipal corporation ("City") and DELRAY BEACH WI-FI, INC ("Delray Beach Wi-Fi") incorporated in the state of Delaware. Capitalized terms shall have the meaning ascribed in the body of the Agreement or as set forth in the attached Exhibit A. WHEREAS, City sought proposals through an Invitation to Negotiate dated October 17, 2006 for municipal wireless broadband; WHEREAS, following evaluation, ATC International, Inc. ("ATCI") was selected as the most qualified responder; WHEREAS, ATCI, E-Path Communications, Inc. ("E-Path") or their respective affiliates, as the current principals of Delray Beach Wi-Fi, desire to provide its Services (as hereinafter defined), through Delray Beach Wi-Fi, consistent with its proposal made to the City Commission in the City; WHEREAS, in connection with the provision of Services hereunder Delray Beach Wi-Fi desires to mount, install, operate and maintain certain of its equipment on certain City- owned Assets, and on streetlights, traffic signal poles, and other structures owned and controlled by third parties, in accordance with the terms, provisions and conditions contained in this Agreement and subject to any agreement with third party owners, if any ("Network"); WHEREAS, City has requested and Delray Beach Wi-Fi shall provide Free Service, as defined in Exhibit A in the Free Service Zone, as defined in Exhibit A; WHEREAS, City recognizes the benefits of a citywide deployment of a wireless broadband network and Delray Beach Wi-Fi agrees to provide same for the entire City with the Free Service Zone as the first priority; WHEREAS, ATCI has established a new and separate entity, Delray Beach Wi-Fi, to meet the terms and conditions of this Agreement and to accommodate its stockholders and investors; and WHEREAS, City desires to have the Services provided by Delray Beach Wi-Fi available for use by City and its citizens, businesses and guests in accordance with applicable law, and the terms, provisions, and conditions contained in this Agreement. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS SET FORTH ABOVE AND AS FOLLOWS: DBWF DRAFT 4-6-07 1. TERM OF AGREEMENT -The Term of this Agreement shall be for ten (10) years and will upon approval of City it may be renewed for two additional renewal terms of five (5) years each (collectively "Term"). In the event both parties desire to extend the Term, City and Delray Beach Wi-Fi shall execute a written extension of this Agreement no later than ninety (90) days prior to the expiration date of the term. 2. PLANS AND SPECIFICATIONS-Delray Beach Wi-Fi will obtain from City approvals of the plans and specifications for the Network prior to any installation under this Agreement, including without limitation any upgrades or enhancements, which approval will not be unreasonably withheld, conditioned or delayed; provided, however, that any review or comment by City shall in no way relieve Delray Beach Wi-Fi of any duties or obligations set forth in this Agreement, or limit Delray Beach Wi-Fi's ability to provide the Services in accordance with applicable law. City will notify Delray Beach Wi-Fi in writing of any objection and the evidence for such objection within sixty (60) calendar days of Delray Beach Wi-Fi's submission of any plans or specifications (including expansions and upgrades to the network). Delray Beach Wi-Fi is not obligated to expend any funds on the Network until all necessary City approvals have occurred (collectively the "Approvals"), and it has obtained all Underlying Rights. If any Approval is in legal dispute or revoked then Delray Beach Wi-Fi will be entitled to suspend performance of all Services dependent on such Approval at its option, until all Approvals are reinstated or no longer in legal dispute. If City does not approve the Plans and Specifications for the Network within sixty (60) calendar days of delivery to the City, or if all Approvals necessary for Delray Beach Wi-Fi to perform under this Agreement are not obtained within ninety (90) calendar days of such delivery, then Delray Beach Wi-Fi and the City shall each, respectfully, be entitled to terminate this Agreement, subject to all applicable law, without any Default or further liability by either Party of any kind. 3. SCHEDULE OF PERFORMANCE -All work to be performed under this Agreement shall be commenced and completed in accordance with the time schedule set forth in Exhibit C, entitled Schedule of Performance and coordinated through the City representative assigned to oversee the City's obligations under this Agreement. 4. DESCRIPTION OF WORK - During the Term of this Agreement, Delray Beach Wi-Fi is authorized and required to mount, install, operate, repair and maintain at Delray Beach Wi-Fi's sole cost and expense, equipment, radios and antennas, or such other comparable equipment. Subject to City's prior approval and all applicable Federal, State, and local ordinances, laws and regulations Delray Beach Wi-Fi may use City owned buildings and towers as each shall be individually approved by City; provided, however, the use is subject to current agreements the City has extended with other parties and any other lawful preexisting communications facilities and must not interfere with any public 2 DBWF DRAFT 4-6-07 safety communications system, and the City's computer network. In addition, if required, the City agrees to cooperate with Delray Beach Wi-Fi's attempts to obtain pole mounting agreements with Palm Beach County, Florida Power and Light and any other entity with mounting assets required to deploy a network that meets the necessary standards. Notwithstanding anything to the contrary, the City shall have no obligation to obtain such rights from third parties for the benefit of Delray Wi-Fi. For the Term of this Agreement, Delray Beach Wi-Fi is authorized to use public rights of way owned by City for access to poles, buildings and towers as individually approved by the City to which communications equipment is or will be attached pursuant to this Agreement. Such access shall be twenty- four (24) hours per day, every day, subject to applicable restrictions and regulations relating to traffic, noise, public safety and other requirements. City agrees to reasonably cooperate with Delray Beach Wi-Fi without cost or obligation to City in obtaining all necessary permissions or permits required to facilitate the installation and maintenance of radios that require the use of right- of-ways that may be controlled by the County or State. Upon completion of each task, installation and phase of work to be performed under this Agreement, Delray Beach Wi-Fi shall promptly restore all work site areas to a clean and safe condition as described in the Statement of Work. City will cooperate with Delray Beach Wi-Fi to identify City-owned assets that may be utilized for the Network. If the City refuses to provide the necessary rights to City assets in any location without reasonable cause, then Delray Beach Wi-Fi will not be responsible to include coverage for such affected location. Delray Beach Wi-Fi's obligations to provide the Network and the Coverage Level are dependent upon Delray Beach Wi-Fi's obtaining the Underlying Rights from the City and Delray Beach Wi-Fi obtaining the necessary approvals from applicable third parties. If Delray Beach Wi-Fi is unable to obtain the Underlying Rights from third parties, including without limitation any pole attachment rights from any utility or other third party, then Delray Beach Wi-Fi's performance obligations may be reduced to the extent the Coverage Level cannot be obtained for a given location. However, in the event of any such reduction in coverage level, the City may declare a Default of this Agreement immediately upon written notice to Delray Beach Wi-Fi. Notwithstanding the foregoing, this Agreement shall in no way limit or interfere with apre-existing provider's rights nor the network owned and operated by the City. In addition, notwithstanding anything in this Agreement, nothing in this Agreement is intended to diminish Delray Beach Wi-Fi's rights to provide wireless broadband services apart from this Agreement under any state or federal law. 5. WORK SCHEDULE DELAYS - If City requests in writing for a delay in performance of the installation by Delray Beach Wi-Fi and its contractors then such delay shall not be unreasonable in length and all milestones and deadlines shall be extended by the same number of days as the number of days in the delay. 6. CHANGE IN SERVICES. If Delray Beach Wi-Fi intends to reduce services then, after reasonable prior notice to the City of Delray Beach Wi-Fi's intentions, City 3 DBWF DRAFT 4-6-07 will either, (1) accept the proposed change in service on such terms and conditions as the parties find mutually agreeable in which case Exhibit F shall be revised appropriately and be substituted for the then current version of Exhibit F, (2) require that the then-existing service levels, to the extent not beyond the reasonable control of Delray Beach Wi-Fi, continue to be provided as contemplated in the then current version of the Exhibit F (Service Level Agreement), or (3) declare a Default of this Agreement. This Section 6 shall only apply to Material Changes of Service which shall require the consent of the City whose consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, Delray Beach Wi-Fi shall not be required to obtain consent from the City for any non Material Change of Services. The term "Material Change of Service" as used in this Section 6 means (1) a reduction in broadband Internet access bandwidth by Delray Beach Wi-Fi to speeds consistently below 512 Kbps or (2) a reduction in the coverage level as set forth in Exhibit C.' 7. AVAILABILITY OF POWER -City and Delray Beach Wi-Fi acknowledge that the Network requires a 24 hour, reliable source of power. In the instances where the Network will be mounted on City assets, the City agrees to provide reasonable access to its power sources in a manner authorized by City where power is currently available. Notwithstanding the foregoing, City has no obligation under this Agreement to provide new power source to Delray Beach Wi-Fi. The cost of any and all power required by Delray Wi-Fi shall be the sole responsibility of Delray Wi-Fi. 8. SERVICE LEVEL AGREEMENT AND CUSTOMER SERVICE GUIDELINES. a. Delray Beach Wi-Fi shall perform in accordance with the Service Level Agreement ("SLA") set forth in Exhibit F. City will appoint a person with whom Delray Beach Wi-Fi will interact with respect to technical, maintenance and service issues with respect to this Agreement, including the Service Levels set forth in Exhibit F. Delray Beach Wi-Fi will provide the name and contact information for the project manager, regular status reports, and updates to the City in a manner to be determined. b. Delray Beach Wi-Fi further acknowledges the importance of quality customer service and ongoing Network monitoring and performance review. Delray Beach Wi-Fi thus shall make customer service representatives available 24 hours per day, 7 days per week and shall monitor Network performance and respond to customer service inquiries in accordance with the requirements set forth on Exhibit F-1. Delray Beach Wi-Fi shall further provide City with monthly summary reports outlining its compliance with each of the reporting metrics in accordance with the SLA attached as Exhibit F. 9. MARKETING COOPERATION -Delray Beach Wi-Fi will be responsible for marketing and administering the operations of the Network. City will cooperate, 4 DBWF DRAFT 4-6-07 as determined by the City, in marketing, advertising and promotional plans, schedules and materials regarding the Network. City will appoint a person designated to work with Delray Beach Wi-Fi's designated marketing coordinator. 10. PERMITS. -Delray Beach Wi-Fi and City further agree as follows: a. Delray Beach Wi-Fi shall obtain, with City's reasonable assistance, all applicable permits, licenses, and authorizations as are required for Delray Beach Wi-Fi to comply with applicable laws, regulations and ordinances. b. In consideration for the free services provided to non-business users for a cumulative four (4) hours per day in the Free Service Zone subject to the restrictions under this Agreement, the City agrees to waive any and all permit fees charged by the City in connection with this Agreement. This waiver of permit fees shall not apply to regulatory fees or taxes. 11. WORK STANDARDS -Delray Beach Wi-Fi agrees to perform the Services in accordance with all applicable ordinances, laws and regulations, including all traffic laws and regulations (including, without limitation, those set forth as Florida DOT standards) and in accordance with the Plans and Specifications and Schedule of Performance. Delray Beach Wi-Fi will comply with applicable laws, ordinances and regulations. Delray Beach Wi-Fi will use commercially reasonable efforts to notify affected residents, property owners and businesses prior to commencement of work that can be reasonably anticipated to adversely affect the quiet enjoyment of their property. Delray Beach Wi-Fi acknowledges that City has made no warranties or representations regarding the fitness, safety, or suitability of any of City's property for the installation of Delray Beach Wi- Fi's equipment or for this Network and that any performance of work or costs incurred by Delray Beach Wi-Fi or provision of Services contemplated under this Agreement by Delray Beach Wi-Fi is at Delray Beach Wi-Fi's sole risk. Further, Delray Beach Wi-Fi's work under this Agreement will be fully in compliance with the requirements set forth in Exhibit G. 12. EMERGENCY/HURRICANE - In order to properly prepare for hurricanes or other emergencies, Delray Beach Wi-Fi and the City may form a working group within a reasonable period of time after the execution of this Agreement that will determine ways in which, if possible, the Network can be used to support the City. If feasible, and if expressly permitted by the City, the Network will utilize the City's alternative energy sources to ensure that the Network stays operational subject to prior approval which may be withheld in the City's sole and absolute discretion. 13. DIGITAL DIVIDE -The City wishes to utilize the Network to reach residents who may not be able to afford commercial high speed Internet access. Delray Beach Wi-Fi agrees to work with the City, the City's CRA and interested parties to establish a model program for the City that includes training (to those receiving 5 DBWF DRAFT 4-6-07 free computers), computers and Internet access to families who fall below the federal poverty level with school-age children, in accordance with terms below. Delray Beach Wi-Fi agrees to provide: a. 100 free, new, or reconditioned computers, provided all reconditioned computers are of a quality, and provided with warranties, reasonably equivalent to new computers, containing at a minimum, a Windows OS, 512 MB RAM, and Pentium III processors; b. 200 households with free high speed Internet access at a minimum rate of 512 kbs ("Free Digital Divide Households"); c. all households that fall below the federal poverty rate with school- age children, high speed Internet access at a minimum rate of 512 kbs at a special rate of $9.99 per month for a minimum of a one-year period, with any increases thereafter limited to no more than 5% per annum, provided however, the group of households required to pay the special rate shall not include the Free Digital Divide Households referenced in subsection b. above, which are to receive free high speed Internet access. The families which are entitled to receive the free computers set forth in subsection a. above, and free Internet access set forth in subsection b. above, shall be selected by the City in its sole discretion and promptly communicated to Delray Beach Wi-Fi prior to the Free Service going active. The City and Delray Beach Wi-Fi will formulate a process of selecting families entitled to the Digital Divide special rate. Delray Beach Wi-Fi shall provide a report to the city monthly detailing the number of families taking advantage of the special rate. 14. REMOVAL OF EQUIPMENT -Unless City and Delray Beach Wi-Fi enter into an agreement that provides otherwise, upon the expiration, completion or earlier termination of the Term of this Agreement, Delray Beach Wi-Fi shall promptly, safely and carefully remove all equipment installed by Delray Beach Wi-Fi from all City property and return City property to the condition in which the property existed immediately prior to Delray Beach Wi-Fi's installation. Delray Beach Wi-Fi acknowledges and agrees that it bears all risk of loss or damage of its equipment and materials installed on City property or in City's public rights of way, except for damages arising from the negligence or wrongful acts of City or its employees, agents or contractors. The removal will be according to a mutually agreed schedule over a time period that shall not exceed two (2) months from the earlier of the expiration, completion or earlier termination of this Agreement, provided however, that the Parties shall work together to ensure a smooth transition of any affected customers on the Network. The foregoing notwithstanding, nothing in this Agreement is intended to modify or limit Delray Wi-Fi's rights to provide the Services pursuant to any applicable state of federal law or regulation. 6 DBWF DRAFT 4-6-07 15. RELOCATION OF NETWORK -City may from time to time require Delray Beach Wi-Fi to remove or relocate a Network element installed on City property, and at City's direction, remove or relocate the specified piece of equipment upon a request from City based on the specific configuration or re-configuration of the right of way or roads in the right of way, including for example a removal or relocation caused by widening of the road, provided that where a removal or relocation is required the City shall reasonably assist to locate a suitable alternative for Delray Beach Wi-Fi to re-locate the equipment of Delray Beach Wi-Fi, and Delray Beach Wi-Fi shall not be considered in Default of this Agreement or Service Levels to extent any customers are so affected by the removal or relocation of equipment. City shall notify Delray Beach Wi-Fi immediately of any Underlying Rights known to City related to the City owned assets that may interfere with the Network or Delray Beach Wi-Fi's obligations in connection with this Agreement. Upon the expiration, non-recognition or other termination of an Underlying Right of which the City has been given notice in writing that is necessary in order to grant, continue or maintain an Underlying Right required for any portion of the Network or provision of the Services, City will use its best efforts to notify Delray Beach Wi-Fi in writing. 16. PAYMENT OF TAXES -Subject to all provisions of this Agreement, Delray Beach Wi-Fi will pay all taxes, assessments and fees applicable to Delray Beach Wi-Fi's installation and operation of the Network. Delray Beach Wi-Fi will pay any and all taxes, assessments and fees which may be levied against Delray Beach Wi-Fi by any tax authority or other governmental or quasi-governmental authority. 17. INDEPENDENT CONTRACTOR - To the extent applicable, Delray Beach Wi- Fi, in the performance of the work and Services agreed to be performed pursuant to this Agreement, shall act as and be an independent contractor and not an agent or employee of City. Delray Beach Wi-Fi shall operate the Network as Delray Beach Wi-Fi determines, in its sole discretion, provided that such operation shall at all times be in accordance with the requirements of this Agreement. 18. FORCE MAJEURE -Neither Party shall be responsible for any of its obligations under this Agreement prevented or delayed by reasons which are not reasonably foreseeable, not reasonably avoidable, or otherwise outside the reasonable control of the Parties, including but not limited to Acts of God, floods, fires, hurricanes, tornadoes, earthquakes or other unavoidable casualty, acts of public enemy, insurrection, war, riot, sabotage, act of terrorism, epidemic, strike, freight embargoes, severe weather conditions, concealed and unknown conditions below the surface of the ground differing materially from those ordinarily encountered and generally recognized as inherent in construction work or which are not reflected on current maps or drawings of underground conditions, wrongful physical obstruction by any Person at any installation site, any law, order, regulation, direction, action, or request of the United States government or of any 7 DBWF DRAFT 4-6-07 governmental, judicial, regulatory, or civil or military authority having jurisdiction over the Parties; national emergencies; or failure of any common carrier or third parry facility not affiliated with Delray Beach Wi-Fi ("Force Majeure Event"). The time within which any obligation must be performed under the terms of this Agreement shall be extended for a reasonable period to be determined jointly by the City and Delray Beach Wi-Fi where timely performance is prevented due to a Force Majeure Event. Delray Beach Wi-Fi or the City shall promptly notify in writing the other Party of any Force Majeure event described in this Section and, in such notice, shall indicate the anticipated extent of such delay and shall indicate whether, and to what extent, if any, the delayed Party anticipates that such event shall affect the timely performance of such Party's obligations under this Agreement. 19. ASSIGNABILITY -Neither Party shall have the right to assign or otherwise transfer this Agreement, in whole or in part, without the prior, written consent of the other Party which consent shall not be unreasonably withheld, conditioned or delayed, provided however, that after the Network is operating then Delray Beach Wi-Fi will be entitled to transfer the Network and its operations to entities in the future, provided the City determines in its sole and reasonable discretion that the transferee is sufficiently capitalized in order to perform the Services hereunder and will in the City's reasonable discretion be able to promptly provide services hereunder. Notwithstanding the foregoing, Delray Beach Wi-Fi may assign this Agreement as part of any financing arrangement, or otherwise in connection with a restructuring of Delray Beach Wi-Fi upon approval by the City, which approval shall not be unreasonably withheld, conditioned, or delayed, that the assignment is to an entity that can perform, has experience to perform, and the financial wherewithal to perform the Services hereunder to the reasonable satisfaction of the City. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. In addition, Delray Beach Wi- Fi shall have the right to subcontract Services provided any and all such subcontractors are approved by the City prior to the commencement of work. 20. INDEMNIFICATION - As respects bodily injury, death, personal injury, or third-party property damage, Delray Beach Wi-Fi agrees to indemnify, defend, and hold harmless City, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with Delray Beach Wi-Fi's (or Delray Beach Wi-Fi's contractors' or subcontractors', if any) (i) acts, errors, omissions, or unsafe acts, or (ii) work performed by, or on behalf of, Delray Beach Wi-Fi, relative to this Agreement; except for those Claims which arise out of the sole negligence or willful misconduct of City. As respects any damage or loss which does not arise out of bodily injury, death, personal injury, or third-party property damage, Delray Beach Wi-Fi agrees to indemnify, defend, and hold harmless City, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind 8 DBWF DRAFT 4-6-07 or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with Delray Beach Wi-Fi's (or Delray Beach Wi-Fi's contractors' or subcontractors', if any) negligent or wrongful performance under this Agreement; except to the extent that such Claims arise out of the sole negligence of City. The obligations set forth in this Indemnification provision (i) shall be in effect without regard to whether or not City, Delray Beach Wi-Fi, or any other person maintains, or fails to maintain, insurance coverage, or aself-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement. Nothing herein shall prevent Delray Beach Wi-Fi's insurer(s) from satisfying Delray Beach Wi-Fi 's obligations under this Section. This Section shall survive the termination of this Agreement. 21.OWNERSHIP Notwithstanding any provision of this Agreement or any attachment, in all circumstances, Delray Beach Wi-Fi shall retain title to the Network and each device and components thereof. No portion of the Network shall become a fixture unless Delray Beach Wi-Fi expressly agrees otherwise in writing. In no event shall City gain any ownership rights in or to the Network in whole or in part, pursuant to this Agreement or otherwise. In no event will City translate, modify, disassemble, or reverse engineer the Network or create derivative works based on any portion of the Network or the Design Control Documents or authorize others to do so. The Agreement in no way establishes any ownership rights in the City's network. 22. INSURANCE- Without limiting City's right to indemnification, it is agreed that Delray Beach Wi-Fi shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows: Workers' Compensation Insurance as required by State statutes and Employers Liability in an amount not less than $500,000 per occurrence. Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent Contractor's Liability (if applicable), in an amount not less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) annual aggregate, written on an occurrence form, provided this coverage may be maintained by Delray Beach Wi-Fi combining primary and excess policies to meet these requirements. Comprehensive Automobile Liability Coverage including - as applicable - owned, non-owned and hired autos, in an amount not less than One Million Dollars ($1,000,000) per occurrence, combined single limit, provided this coverage may be maintained by Delray Beach Wi-Fi combining primary and excess policies to meet these requirements. 9 DBWF DRAFT 4-6-07 City's Risk Manager is hereby authorized to reduce the requirements set forth herein in the event he/she determines that such reduction is in City's best interest. Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions: "This insurance policy shall not be cancelled until after thirty (30) days prior written notice has been given to the City Clerk, City in the event of cancellation for non-payment of premium." Each insurance policy required by this Agreement, except policies for Workers' Compensation, shall contain the following clauses or shall otherwise provide for the following conditions: "It is agreed that insurance provided by this policy shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City." "The City its officers, agents, employees, and representatives are added as additional insureds as respects the acts, omissions, operations, and activities of, or on behalf of, the named insured, in regard to products supplied, or work or services performed for, or under an agreement with the City." Prior to commencing any work under this Agreement, Delray Beach Wi-Fi shall deliver to City insurance certificates confirming the existence of the insurance required under this Agreement, including the applicable clauses and/or provisions referenced above. Also, within thirty (30) days of the execution date of this Agreement, Delray Beach Wi-Fi shall provide City (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation reasonably acceptable to City evidencing that the coverage, terms, and conditions set forth in the above- referenced clauses are otherwise provided for in said insurance policies. Said endorsements shall be signed by an authorized representative of the insurance company and shall include the signatory's company affiliation and title. Should it be deemed necessary by City, it shall be Delray Beach Wi-Fi's responsibility to see that City receives documentation acceptable to City which evidences that the individual signing said endorsements is indeed authorized to do so by the insurance company. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in the State of Florida and (ii) possessing an A. M. Best's rating of A-VII or higher, or (iii) otherwise acceptable to City, with prior written permission from City. Also, in the event that (i) a claim is filed against City, or its officers, employees, agents, or representatives, for which City believes, in good faith, there may be coverage under an insurance policy required by this Agreement, and (ii) City has tendered such claim to the insurer that issued such policy, and (iii) such insurer has not agreed, within ninety (90) days, to cover such claim, including defense and indemnity, without reservation, then City has the right to demand of Delray Beach Wi-Fi, and to receive within thirty (30) days, a copy of such insurance policy. 10 DBWF DRAFT 4-6-07 In addition to other remedies City may have if Delray Beach Wi-Fi fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, declare a Default hereunder, until Delray Beach Wi-Fi demonstrates compliance with the requirements hereof. Exercise of any of the above remedies, however, in addition to other remedies City may have and is not the exclusive remedy for Delray Beach Wi-Fi's failure to maintain insurance or secure appropriate endorsements. Delray Beach Wi-Fi shall list the City as an additional insured under all of the insurance policies referenced in Section 22 herein. 23. GOVERNING LAW -This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida, without regard to the conflict of law provisions thereof. Any action brought relating to the interpretation or enforcement of this Agreement may be brought in any court located in Palm Beach County, Florida, unless otherwise required by law. 24. COMPLIANCE WITH LAWS -Delray Beach Wi-Fi and the City each agree to comply with all applicable laws, ordinances and regulations, including the recent Declaratory Ruling issued by the Federal Communications Commission, dated March 23, 2007, entitled In the Matter of Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket No. 07- 53, ("Wireless Broadband Order"), which among other things, declares wireless broadband Internet access services, which would include the Service, as Information Services pursuant to 47 U.S.C. § 153(20), preserves the applicability of 47 U.S.C. § 332(c)(7) regarding local zoning and land use decisions to wireless broadband information service providers that utilize the same infrastructure to provide personal wireless services, and determines that wireless broadband information services are jurisdictionally interstate. Notwithstanding any obligation or agreement made in this Agreement, each Party hereto agrees to comply with all requirements of the Wireless Broadband Order, and in all applicable law, and nothing in this Agreement is intended, nor shall be interpreted, to modify each of the respective Party's rights and obligations under the Wireless Broadband Order, or other applicable law. In addition, City agrees to facilitate the process of approvals by departments of City to ensure that the obtaining of such approvals in no way creates delays inconsistent with the implementation timeframes set forth in Exhibit C, and the Service Level Agreement in Exhibit F. 25. APPROVAL - If the approval or consent of any Party is required under this Agreement, such approval or consent may only be given in writing, and shall not be unreasonably withheld, conditioned or delayed. 11 DBWF DRAFT 4-6-07 26. MISCELLANEOUS -The failure of a Party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a Party of any condition or of any breach of any term, covenant, representation or warranty contained in this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty. The headings preceding the text of articles and sections included in this Agreement and the headings to schedules attached to this Agreement are for convenience only and shall not be deemed part of this Agreement or be given any effect in interpreting this Agreement. Unless otherwise indicated, words describing the singular number shall include the plural and vice versa, and words denoting each gender shall include the other gender and words denoting natural persons shall include corporations and partnerships and vice versa. The use of the terms "including" or "includes" shall in all cases herein mean "including, without limitation" or "include, without limitation," respectively. Unless otherwise indicated, references to articles, sections, subsections or schedules shall refer to those portions of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. 27. Intentionally Deleted. 28. RESERVATION OF RIGHTS -This Agreement grants Delray Beach Wi-Fi the non-exclusive right to use poles, buildings, towers, other assets identified by the City and rights-of--way owned by City in the manner provided herein, for the Services utilizing the Network during the Term and to mount approved devices as set forth in Exhibit D for use in connection with creating and maintaining the Network for the provision of the Services at the expense of Delray Beach Wi-Fi. In recognition of the considerable financial investment made to service the businesses and residents of the City and its commitment to provide discounted service to certain low income residents of the City, the City will grant to Delray Beach Wi-Fi the non-exclusive opportunity to provide the Services, including, without limitation, Internet connectivity and other communications services to the City, as requested by the City. The City will negotiate with Delray Beach Wi-Fi for services at the time the service is desired or requested provided, however, if the City determines in its sole discretion that such services are better performed by others for no reason or any reason, the City shall not be required to grant Delray Beach Wi Fi the privilege or right to provide such services. City may grant to any other Party during the Term the right to use of City poles, buildings, towers or other approved mounting assets for the provision of services competitive with the Services authorized by this Agreement, provided such third- party's mounting assets and services do not interfere with the Services. In the event City enters into a subsequent agreement with any other third party concerning offering Wi-Fi services to residents of the City ("Competitive 12 DBWF DRAFT 4-6-07 Agreement") on or after the date hereof that has the effect of establishing rights or otherwise benefits in a manner more favorable in any respect (other than for build out) than the rights and benefits established in favor of Delray Beach Wi-Fi in this Agreement, then Delray Beach Wi-Fi shall submit to the City a request for modification of this Agreement to incorporate benefits and obligations comparable to those in the Competitive Agreement. Except as provided herein, City and Delray Beach Wi-Fi agree that nothing contained in or contemplated by this Agreement is intended to confer, convey, create or grant to Delray Beach Wi- Fi any perpetual real property interest in any City property or in any of City's public rights of way or easements. Nothing in this Agreement shall restrict Delray Beach Wi-Fi from providing the Services in all ways permitted by applicable law. The foregoing general reservation is not intended in any way to diminish Delray Beach Wi-Fi's obligations under the Service Level Agreement set forth on Exhibit F. 29. FREE SERVICE ZONE. City and Delray Beach Wi-Fi acknowledge and agree that a condition precedent for a Person to obtain password access necessary to utilize the Free Service offered in the Free Service Zone shall be the electronic or written acknowledgement and execution of a user access agreement in a form and content prepared by Delray Beach Wi-Fi in its sole and absolute discretion, which shall at a minimum include appropriate limitations of liability and indemnification protections for the benefit of Delray Beach Wi-Fi (the "User Services Agreement"). No Person shall be able to utilize the Free Service under this Agreement without the acknowledgement and execution of a User Services Agreement. Notwithstanding the foregoing, the City expressly reserves the right to review the User Service Agreement to ensure the Services described therein comply with this Agreement. 30. NO WARRANTIES -THE ONLY WARRANTIES CONCERNING THE SERVICES, SYSTEM AND OTHER DELIVERABLES PROVIDED UNDER THIS AGREEMENT ARE THOSE CONTAINED HEREIN, AND ARE MADE FOR THE BENEFIT OF CITY ONLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. DELRAY BEACH WI-FI ALSO SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS RELATED TO THE INTERNET; SECURITY-RELATED FEATURES OF THE SYSTEM AND/OR SERVICES CANNOT GUARANTEE COMPLETE SECURITY VIA THE INTERNET OR WIRELESS SERVICES AND DELRAY BEACH WI-FI SHALL NOT BE LIABLE FOR BREACHES OF SUCH SECURITY OR ANY OTHER RELATED WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, INTERNET FUNCTION AND/OR PERFORMANCE WARRANTIES. DELRAY BEACH WI-FI SHALL HAVE NO LIABILITY FOR THE CONDUCT OF SUBSCRIBERS USING OR ACCESSING THE SYSTEM OR SERVICES. 13 DBWF DRAFT 4-6-07 31. CONFIDENTIALITY -The City is bound by the State Public Records Act which provides for the mandatory disclosure of certain records to the public upon request. Any disclosure by the City pursuant to the Public Records Act shall be exempt from the provisions of this paragraph. The City shall not provide any trade secret that is exempt under the Public Records Act for so long as such information qualifies as a trade secret under applicable law and for three (3) years following the termination of this Agreement. 32. NOTICES -Any notice, request, instruction or other document to be given hereunder by a Party pursuant to this Agreement shall be in writing and shall be deemed to have been given: (a) when received if given in person or by courier or a courier service; (b) on the date of transmission if sent by, facsimile, email or other wire transmission; or (c) three (3) business days after being deposited in the U.S. mail, certified or registered mail, postage prepaid. If to City: City Clerk with a copy to: City Manager If to Delray Beach Wi-Fi: With a copy to: or to such other individual or address as a Party may designate for itself by notice given as herein provided. 33. PRIOR AGREEMENTS AND AMENDMENTS -This Agreement, including all attachments hereto, constitutes the entire agreement between the Parties. Except as set forth herein, there are no promises, representations or understandings between the Parties of any kind or nature whatsoever. Modifications to this Agreement shall be valid only if provided in a separate writing signed by an authorized representative of each Party. 14 DBWF DRAFT 4-6-07 34. EFFECTIVE DATE AND AUTHORITY -This Agreement shall become effective as of the Effective Date of this Agreement upon the authorized execution on behalf of both Parties provided, however, this Agreement shall become effective only upon acceptance by the City as provided in the City's Charter and if signed by the Mayor of the City of Delray Beach. a. This Agreement and other agreements, easements, permits and leases between the Parties as contemplated in this Agreement must be agreed upon by both the City and Delray Beach Wi-Fi and fully authorized and signed on paper by both Parties within 90 days after the date of this Agreement. b. As of the Effective Date of this Agreement, City is not aware of any court actions, City Council ordinances or pending actions, civil actions, challenges, laws, regulations or claims asserted or threatened, that if successful, would result in Delray Beach Wi-Fi not having all of the rights to perform as described in this Agreement. If after 120 days after the effective date of this Agreement, the City or Delray Beach Wi-Fi determines that sufficient progress has not been made or the conditions above have not been satisfied, then either Party may immediately terminate this Agreement, subject to all applicable law, upon written notice to the other. If the Network for Free Service is not operational within 180 days from the Effective Date of this Agreement, the City has the option to immediately terminate this Agreement. 35. DISPUTE RESOLUTION PROCESS Prior to termination of this Agreement or any litigation occurring between the Parties, each party agrees to attempt to informally resolve their dispute by mediation between authorized representatives of each Party. Such mediation shall not be less than two (2) hours in duration, and the Parties shall each act in good faith in attempt to so resolve their dispute. Such costs of mediation shall be equally divided among Delray Beach Wi-Fi and the City. 36. Intentionally deleted. 37. NETWORK UPGRADE. Delray Beach Wi-Fi shall upgrade the Network from time to time in its sole discretion and at its sole expense in order to take advantage of technology improvements and to ensure that its service offerings are competitive in the consumer marketplace. The Parties note that one of Delray Beach Wi-Fi's vendors, Cisco Systems, routinely provides software upgrades; these will be installed timely by Delray Beach Wi-Fi as such upgrades become available, but in no event greater than 90 days after the date such upgrades are made available to Delray Beach Wi-Fi by Cisco Systems. Delray Beach Wi-Fi 15 DBWF DRAFT 4-6-07 acknowledges that it is its intent to upgrade its system speeds as necessary to compete with similarly situated wireless broadband service providers in the market to ensure its end users have competitive product offerings, as determined in Delray Beach Wi-Fi's sole discretion. Delray Beach Wi-Fi agrees that it shall upgrade the Network providing both (i) free high speed Internet Access to the Free Digital Divide Households, and (ii) Free Service in the Free Service Zone on the same basis as it upgrades its remaining Network. 38. DEFAULT/RIGHT TO CURE. In the event Delray Beach Wi-Fi fails to fulfill a material obligation under this Agreement within the time period otherwise provided herein ("Default"), and has received a written notice of Default from the City, then, within thirty (30) days of receipt of such notice, Delray Beach Wi-Fi shall cure such Default, provided however, if such Default is unable to be cured within such third (30) day period, and Delray Beach Wi-Fi is undertaking reasonable efforts to effectuate a prompt cure, then Delray Beach Wi-Fi shall be afforded a period of time, up to an additional thirty (30) days, to complete its cure. If Delray Beach Wi-Fi does not complete its cure in accordance with the foregoing, or to the extent otherwise permitted in this Agreement, City may immediately terminate this Agreement, provided however, that any such termination shall in no way affect Delray Beach Wi-Fi's ability to continue provide, or the manner in which it provides, its Services to users apart from this Agreement. 39. AGREEMENT WITH FLORIDA POWER AND LIGHT. The City and Delray Beach Wi-Fi agree and acknowledge that Delray Beach Wi-Fi shall negotiate and enter into the Pole Sharing Agreements directly with FPL. Within ninety (90) from the Effective Date of this Agreement, Delray Beach Wi-Fi shall provide the City with: (a) evidence that no assets owned by third parties are required for Delray Beach Wi-Fi to perform under this Agreement; or (b) fully executed Pole Sharing Agreements. In the event Delray Beach Wi-Fi is unable to satisfy the requirements under this Section 39, then the City has the right to terminate this Agreement immediately upon delivery of written notice to Delray Wi-Fi. Termination by the City pursuant to this Section 39 shall not be subject to Sections 35 and 38. [Remainder of Page Left Blank Intentionally.] 16 DBWF DRAFT 4-6-07 IN WITNESS WHEREOF, the Parties acknowledge and accept the terms, conditions and obligations of this Agreement as evidenced by the following signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become operative on the Effective Date. CITY By: Name: Title: DELRAY BEACH WI-FI, INC. By: _ Name: Title: 17 DBWF DRAFT 4-6-07 EXHIBITS EXHIBIT A: Definitions Defined terms not otherwise defined in this Agreement will have the meanings set forth below. a. "Commission" or "City Commission" means the City Council of City. b. "Deliverable(s)" means the work and result of the implementation, installation or consulting services that are provided to the City under this Agreement resulting in a component of the Network or the Services. "Delray Beach Wi-Fi" is a Florida corporation whose majority stockholder is e-Path Communications, Inc. and whose minority stockholder is ATC International, Inc. d. "Design Control Documents" means the documents that describe the design of the Network and location of devices in the City that is mutually agreed upon by City and Delray Beach Wi-Fi. e. "Digital Divide" means the supplying of high speed internet access at a minimum rate of 512 kps. f. "Free Digital Divide Households" means those households entitled to receive free high speed Internet access in accordance with Sectionl3 of the Agreement. The Free Digital Divide Households are not subject to the Service restrictions applicable to the Free Service in the Free Service Zone as those terms are defined herein. g. "Free Service" means up to four (4) hours of free public access outdoors per day per user for high speed Internet access in the Free Service Zone. h. "Free Service Zone" means the Atlantic Avenue corridor which shall span three (3) blocks north and three (3) blocks south along Atlantic Avenue from I-95 to the ocean. i. "Material Change of Service" as used in Section 6 means (1) a reduction in broadband internet access bandwidth by Delray Beach Wi-Fi to speeds consistently below 512 Kbps or (2) a reduction in the coverage level as set forth in Exhibit C. j. "Party" means either of City or Delray Beach Wi-Fi. k. "Parties" means both City and Delray Beach Wi-Fi. 18 DBWF DRAFT 4-6-07 1. "Person" means any individual natural person, firm, partnership, joint venture, entity, society, organization, club, association, trustee, trust, corporation, company or organization of any kind. m. "Services" means the voice, data, broadband, video and mobile communications and related products and services offered by Delray Beach Wi-Fi, including those described in any Statement of Work, including without limitation the Wireless Services made available to Subscribers, and the consulting, design, installation, implementation and maintenance services. n. "Schedule of Performance" means any event described in the Schedule of Performance Exhibit. o. "Subscribers" means any Person, that subscribes and pays for the Wireless Services provided pursuant to the Network. p. "Subscriber Access Agreement" means the agreement Delray Beach Wi-Fi requires Subscribers to accept or agree to in order to access and utilize the Services via the Network, a form of which is attached as Exhibit H. q. "Network" is defined on the first page of this Agreement, including the equipment installed by or on behalf of Delray Beach Wi-Fi in the City used to provide the Services described in this Agreement. r. "Underlying Rights" means all deeds, leases, easements, rights-of--way agreements, licenses, franchises, permits, grants and other rights, titles and interests that are necessary for the construction, installation, maintenance, operation, use or repair of the Network. s. "Users" means the individual computers authorized by a Subscriber to access or use the Wireless Services. t. "Wireless Services" means the services that enable communication through a wireless network using the Network without the need for cable or wire lines connecting the peripheral equipment to the Network. 19 DBWF DRAFT 4-6-07 Exhibit B-Network Description The Network shall consist of Wireless nodes, apoint-to-multipoint fixed wireless backhaul network and microwave point-to-point high capacity backhaul links and the Delray Beach Wi-Fi backbone POP and Internet backbone connectivity. The Wireless layer shall initially be in a point to point and mesh configuration and shall include up to 30 mesh Wireless router nodes per square mile which shall be compatible with standard 802.11 b/g networking devices. Nothing herein shall prevent Delray Beach Wi-Fi from upgrading the Network to include emerging industry standards and specifications to meet market demands. Delray Beach Wi-Fi shall specify use of 200 mW 802.11 b/g Wi-Fi equipment with 12 dBi high gain directional antenna in order to achieve indoor coverage. The point to multipoint backhaul connectivity shall include devices that operate in 5.7 GHz, 5.2 GHz, and 900 MHz unlicensed spectrum. Delray Beach Wi-Fi may utilize devices that operate in other unlicensed spectrum bands in order to meet the SLAs in Exhibit F and market demands, provided such use does not cause interference with any pre-existing users. 20 DBWF DRAFT 4-6-07 Exhibit C-Schedule of Performance Delray Beach Wi-Fi shall 1) Complete construction of the Free Service in the Free Service Zone, which shall be operational within 180 days of the Effective Date of this Agreement; 2) Build, activate portion of City east of I95 - 60 days thereafter; 3) Build, activate portion of City that is west of I95 - 60 days thereafter. Free Service Delray Beach Wi-Fi shall offer Free Service outdoors only for up to 4 hours daily per user in the Free Service Zone, as designated in the Agreement. Users enjoying the Free Service shall receive minimum prescribed speeds of 512 kbs and an availability rate of not less 90%. It is Delray Beach Wi-Fi's intention to provide such users with the same quality and excellence in user experience and customer support as other users of the Network. 21 DBWF DRAFT 4-6-07 EXHIBIT D -City-Owned Assets Delray Beach Wi-fi shall be entitled to use City-owned Assets, upon the prior approval of the City, as determined by the City in its sole discretion, and where there are no other conflicting uses. City-owned Assets are defined as City structures that are able to be used for installation of Wi-Fi equipment, including such things as buildings, poles, and retractable towers, but do not include any City network. Failure of the City to permit attachment to any City-owned Asset, where there is no alternative third-party asset to which it is technically or economically feasible for Delray Beach Wi-Fi to attach, which is necessary for the provision of Free Service in the Free Service Zone shall eliminate Delray Beach Wi-Fi's obligations to provide the Free Services in the areas affected by the City's refusal, without any liability or additional obligation to Delray Beach Wi-Fi. 22 DBWF DRAFT 4-6-07 Exhibit F-Service Level Agreement If necessary, the Parties shall work together in good faith to develop and agree upon additional service level agreements as are reasonable and advisable. Such SLAB, if determined necessary, shall be finalized on a schedule to be agreed and appended to this Agreement by Delray Beach Wi-Fi and the City. Targeted SLAB for Wireless Broadband Network Operation CATEGORY DEFINITION SERVICE LEVEL MEASUREMENT Network Coverage FREE SERVICE ZONE Indoor coverage as 90% outdoor coverage measured on ground floor of building in a ALL OTHER AREAS room on outer edge of 70% indoor and outdoor building facing the coverage Access Point utilizing a 12 dBi high gain antenna and 200 mW CPE radio Network Reliability - The reliability of the 95%uptime Mesh Layer connection from the Network Interface Devices, such as mesh Wi-Fi router nodes to Delray Beach Wi-Fi certified customer premises equipment (CPE) Network Reliability - The reliability of the 95 %uptime Measure daily and Backhaul connection from the report monthly. Tool: Network Interface Remedy / Network Devices, such as mesh Management System. Wi-Fi router nodes or Point to Multipoint Tower Access Point equipment, to the Delray Beach Wi-Fi System Facilities. Network Outages Not to exceed 4 To be defined continuous hours Wi-Fi Broadband 90% of outdoor Products Performance locations for FREE Criteria SERVICE ZONE, and 70% of outdoor and indoor locations for ALL OTHER AREAS within coverage area ca able of achievin 23 DBWF DRAFT 4-6-07 Minimum 1 Mbps upstream / 1 Mbps downstream connection. IP Address Pool Availability of IP <=70% utilization per TBD -will determine Addresses within pool or such lower methodology designated IP Address utilization rate resulting pools from ARIN's allocation of IP addresses. Maintenance Mean Time to Response Critical <= 3 hours Measure daily and Major <= 6 hours report monthly. Minor <= 24 hours [TBD] days advance Critical: The condition notification for impacts approximately scheduled maintenance 10% of Service activity. Subscribers. To be defined Major: The condition impacts approximately 5% or more (up to Critical Level) Service Subscribers. Minor: The condition impacts less than 1% Service Subscribers. Customer Care Average Speed to 80% of all inbound calls Measure daily and Answer (ASA) Calls to Service Provider Tier report monthly. Tools: from Subscribers to 1 will be answered ACD Switch Reporting. Service Tier 1 Agents. within 180 seconds Note: All percentages and numbers of performance are subject to r'orce lViajeure Reporting/ Right to Cure. Unless otherwise specified, all Service Levels referenced above shall be calculated and reported on a monthly basis. To the extent Delray Beach Wi-Fi is unable to meet the specified Service Level(s) during more than 25% of the applicable reporting period ("Minimum Performance Threshold"), then Delray Beach Wi-Fi shall cure such deficiency within 30 days of the last reporting period. If Delray Beach Wi-Fi is unable to cure such deficiency within the 30 day period, or if Delray Beach Wi-Fi fails to meet the Minimum Performance Threshold for a given Service Level on a consecutive repeated basis, such that the repeated failure to attain the Minimum Performance Threshold generates a material increase in customer complaints to the City, defined as a minimum of a fifty percent (50%) increase in complaints as measured against the two reporting periods immediately prior to the first of the consecutive reporting periods in which the Minimum Performance Threshold was missed, then City may immediately terminate this Agreement upon written notice to Delray Beach Wi-Fi. The Service Level obligations of Delray Beach Wi-Fi, and the rights of City granted under this Section are fully subject to all Force Majeure Events and the provisions of Section 18 of the Agreement. 24 DBWF DRAFT 4-6-07 25 DBWF DRAFT 4-6-07 EXHIBIT F-1 -- Continuous and Centralized Network monitoring/performance management and Customer Care Using WCS Software network managers design, control, and monitor wireless mesh networks from a centralized network operations center. With the WCS Software, administrators have a solution for RF prediction, policy provisioning, network optimization, troubleshooting, user tracking, security monitoring, and WLAN systems management. Graphical interfaces make wireless LAN deployment and operations simple and cost-effective. The NOC will have the tools to monitor all aspects of the System in real-time, with the tools that will be available to maintain the health of the System. Logs and Reports Pertinent information will be logged, such as who is connected to which node, the amount of traffic any client is transferring, System bandwidth utilization, failed login attempts, etc. • This information will be readily available to System management at all times. • Designated personnel will have access to reports and statistics on the entire System and its use. • Automated reporting is expected, outlining both the state of the equipment (operational and non-operational elements) as well as the full log of customer support issues (no connectivity, low signal, slow speed, blocked ports, etc.), component utilization. • Proactive Capacity Planning, Modeling, and Reporting - Overall System `health' - POP - Network Backhaul - Wireless Broadband Network - Service Models Use and Consumption Alarm and Error Management Support for error/fault prediction, prevention, and correction capabilities. The network devices will be able to send alarms to a central management station and monitoring personnel. Whenever possible, self-healing capabilities are highly desirable to keep the System running healthy. The solution is able to isolate defective components in order to keep the rest of the System operational. • Support for Simple Network Management Protocol (SNMP) industry standards. • Identify and remove abusive nodes and/or consumer • Rogue Access Point or Base Station • Denial of Service Attacks • Attempts to continuously capture/use excessive bandwidth • Failed and failing equipment 26 DBWF DRAFT 4-6-07 Network administrators will use the Cisco Wireless Mesh Networking Solution with access to dynamic, system wide RF management, including a host of features for smooth wireless operations, such as dynamic channel assignment, transmit power control, and load balancing. A single graphical interface is used for system-wide policies, including VLANs, security, and QoS. Delray Beach Wi-Fi engineers can also use Cisco WCS Software to perform wireless mesh planning, configuration, and management. Using WCS Software network managers design, control, and monitor wireless mesh networks from a centralized network operations center. With the Cisco WCS Software, administrators have a solution for RF prediction, policy provisioning, network optimization, troubleshooting, user tracking, security monitoring, and WLAN systems management. NOC Operational Support Services The OSS will perform branded Tier 1 call center services in support of the Delray Beach Wireless Network. Call Center will accept inbound end-user telephone calls to the Call Center 24x7x365. Each customer will be provided with Call Center telephone number for use for end-user related calls. The Call Center provides Level 1 end-user related technical support and addresses customer service issues such as difficulty with sign-up, SSID configuration, log in difficulties and password resets. If the end-user has other questions or his or her questions are outside of the scope of the Call Center, the Call Center staff will direct end-users to the NOC to obtain their answers. Call Center calls will be logged with information on call center tickets including open and closed tickets as well as new user tickets. Best effort is made to resolve any customer concerns immediately. Guaranteed response time is within 6 hours for a residential client and 3 hours for a commercial client. Technical Support: Basic WiFi card driver help The Call Center will attempt to determine if the end-user has a working WiFi Card that is locating a Wireless Signal by using guidelines set for the most common types of WiFi Cards. SSID configuration The Call Center will verify what the correct SSID is for the location that an end user is accessing. The Call Center will attempt to verify that the end-user has the correct SSID set in their Network Connection, using a basic guideline developed for the most common operating systems, and the most common WiFi cards. 27 DBWF DRAFT 4-6-07 Login difficulties The Call Center will review with the end-user the correct format for the username on the log in pages. The Call Center will attempt to verify that the correct settings are enabled in the end-user's browser, and verify that the end-user is not using security software that may be blocking access. Network outage notification The Call Center will email a notice to the network operator if they are unable to ascertain that a location is functioning. This notice will be sent via the system using the trouble ticket system and only after three instances have been received, by the Call Center, on the same issue from the same location. If a network operator is going to be taking a location offline or otherwise is aware of a location not functioning, it is their responsibility to contact Call Center of this outage. Location specific coverage issues The Call Center will verify the Location details of the Hotspot that the end-user is accessing, and will direct the end-user to any specific coverage Location that is listed on the providers directory. E-mail The Call Center will provide the end-user with the settings needed to send and receive email over a wireless connection using the most common email programs. If end-user has any other questions, hey will be directed to the network operator/service provider to obtain their answers. All end-user questions will be directed to the network operator/service provider via an email. Basic Support General questions regarding Service & Locations: The Call Center will answer general questions about how WiFi Service works. For example, "Do I need a wireless card" or "How do I use the service," or "Is my connection secure?" The Call Center will access the network operator/service provider's sign-up page to answer questions about service. The Call Center will also verify for the caller where service is available by accessing the directory. New account sign-up The Call Center will encourage the end-user to access the network operator's sign-up pages to create a new account. The Call Center will determine which sign-up pages to use based on the phone number dialed into by the end-user. The Call Center will only sign-up users that can get to the login page (either by re-direct or entering the direct URL), but are having problems with the sign-up process itself. Password changes The Call Center will reset a password on an existing end-user's account. Usage and roaming questions: 28 DBWF DRAFT 4-6-07 The Call Center will relay any information that they have available to them via the Web Interface regarding the end-user's historical usage. If end-user has any other questions they will be directed to the network operator/service provider to obtain their answers. All end-user questions will be directed to the network operator/service provider via an email sent by the Call Center. Delray Beach Wi-Fi customer care is built from the ground up using service orientated architecture (SOA). Our 24/7/364 call center is United States based. Our customer care representatives have extensive training. They know the answers to our customers' requests and solutions occur quickly. Ease and speed, caring for and responding to our customer's questions, comments and concerns, is the company's high priority. When a customer concern cannot be answered in the initial call, the customer care representative will file a report with the System Administrator within 6 business hours. By way of example: when a member of our Customer Care team (call center) is unable to address the concern, ticket number will be issued and logged. Customer Care member will forward the ticket number to NOC Team and they will work with the client on resolving the issue and closing the ticket. Guaranteed response time is within 6 hours for residential and within 3 hours for a commercial client. Software solutions will be remedied through the Network Operating Center. Hardware issues will be handled on-site by the maintenance team. A service desk that acts proactively is critical to any business customer with e-services. Delray Beach Wi-Fi utilizes the Service Oriented Architecture (SOA) approach as our customer support and Fulfillment OSS standards to ensure prompt response and call tracking. Delray Beach Wi-fi utilizes a comprehensive, scalable IT service desk solution based on a unified configuration management foundation. We can easily streamline IT service processes as well as manage the IT service life cycle through comprehensive service level management capabilities. Built on ITIL principles and leveraging industry best practices, our process enables us to manage IT services and provide effective controls for our critical service support and service delivery processes. Features include: • Complete Help Desk Management solution handles end user calls as well as automated alerts and events from infrastructure management solutions • Comprehensive Change Management solution to control IT infrastructure change and improve service availability 29 DBWF DRAFT 4-6-07 Exhibit G -Additional Work and Safety Requirements This Exhibit G contains minimum requirements and specifications governing use and occupancy of City's mounting assets or those of third parties. Delray Beach Wi-Fi's facilities shall be placed and maintained in accordance with the requirements and specifications of the rules and regulations of the Public Utilities Commission, including General Order No. 95 (G.O. 95), the National Electrical Code (NEC), the National Electrical Safety Code (N.E.S.C.), the rules and regulations of the Occupational Safety and Health Act (OSHA), all of which are incorporated by reference into this Exhibit G, and of any governing authority having jurisdiction over the subject matter. Where difference in specifications may exist, the more stringent shall apply. All requirements of the National Electrical Safety Code referred to in this Agreement shall mean the current edition of such code and shall include any additional requirements of any applicable Federal, State, County or Municipal Code or regulatory body, including the State Public Utilities Commission, with jurisdiction over City. Reference to either the Safety Code, or to N.E.S.C., have the same meaning. Upon completion of work, Delray Beach Wi-Fi shall remove all of its tools, unused materials, wire clippings, cable sheathing and any other similar matter. All of Delray Beach Wi-Fi's wiring, cables, equipment and facilities shall be firmly secured and supported to the satisfaction of City's authorized representative or applicable South Florida Building Code requirements. All of Delray Beach Wi-Fi's cables, equipment and facilities shall be plainly identified with a firmly affixed tag of a type and wording satisfactory to City. Delray Beach Wi-Fi shall require that all its work crews or any of its contractors and subcontractors: (i) are familiar with all power line rules, requirements, regulations, standards and guidelines under G.O. 95 and N.E.S.C.; (ii) survey the area in which work is to be performed before commencing such work and make a determination that the required work can be completed safely; (iii) survey the area in which work is to be performed before commencing work and make a determination that any electrical power lines are in conformance with G.O. 95 and N.E.S.C.; and (iv) proceed with such work only upon making such determinations. If the work crew determines that such work cannot proceed safely, or if such electrical power lines are not in compliance with either G.O. 95 or N.E.S.C., Delray Beach Wi-Fi shall immediately notify City of such condition, in detail, and shall not commence work at such location until so directed by City. It is understood and agreed by Delray Beach Wi-Fi that there is no instance in which it is safe or proper for a Delray Beach Wi-Fi worker (whether working for or on behalf of Delray Beach Wi- Fi), or a worker's equipment, to come into contact with the electrical current from an energized electrical power line. 30 MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER i" .~ SUBJECT: AGENDA ITEM # VU S• 3 -WORKSHOP MEETING OF APRIL 10, 2007 DISCUSSION REGARDING THE CURRENT CAPITAL IMPROVEMENT PROGRAM DATE: APRIL 6, 2007 The backup material for Item WS.3, Discussion Regarding The Currant Capital Improvement Program on Tuesday, April 10, 2007 at the Workshop Meeting. If some of the materials are available on Monday, Apri19, 2007, we will send them to you that evening. S:\City Clerk\AGENDA COVER MEMOS\City Manager Memos\City Manager Discussion reg Wi-Fi Agmt 04.10.07.doc Page 1 of 2 Nubin, Chevelle From: Ruby, Susan Sent: Monday, April 09, 2007 4:43 PM To: Nubin, Chevelle Cc: Smith, Douglas; Harden, David; Shutt, Brian; bbmontague@aol.com; Fred Fetzer (FBFetzer@bellsouth.net); Gary Eliopoplis (GPE@aol.com); rita@climatecontrolservices.com; woodiemcduffie@bellsouth.net Subject: FW: Final Revised Agreement, Summary of Key Terms, and Description of Principals Attachments: Principals.DOC; Delray Beach Wi-Fi Wireless Broadband Agreement (DBWF REV 4-9- 07).doc; City of Delray Beach Agreement Summary of Key Terms (4-9-07).doc Please use these documents for the Wi-Fi agenda item. Thanks Susan .~1. Ru6y City Attorney 200 N.W. 1st Avenue Delray Beach, FL 33444 telephone: 561-243-7091 facsimile: 561-278-4755 email: ruby@ci.delray-beach.fl.us From: Jason karp [mailto:karplegal@verizon.net] Sent: Monday, April 09, 2007 3:20 PM To: Ruby, Susan Cc: Joe.tortoretti@epathcommunications.com; wento@atcsystems.com; 'Wallace,Steven' Subject: Final Revised Agreement, Summary of Key Terms, and Description of Principals Dear Susan, As requested, attached is the final clean version of the Agreement, the description of the principals in Delray Beach Wi-Fi, and the Summary of Key Terms. Please let me know if there is anything else you need. Best regards, Jason R. Karp Karp Legal Services, PLC 19000 Snowberry Ct. Leesburg, VA 20176 Tel/Fax: (703) 669-2408 4/9/2007 ~,., vas . a Page 2 of 2 ~** eSafe scanned this email for malicious content *** ~** IMPORTANT: Do not open attachments from unrecognized senders *** 4/9/2007 Delray Beach Wi-Fi Inc. Principals The Majority Shareholder of Delray Beach Wi-Fi Inc is a-Path Communications Inc. e-Path Communications, Inc. is a developmental stage mobile Wireless Internet Service Provider ("WISP"), providing regional Wireless Broadband ("WBB"), high speed public Internet access, Voice over Internet Protocol ("VoIP"), Local and Long Distance Telephone Service, IP Mobile, Cellular and Enhanced Data Centric value-added fully managed services to residents, visitors, occasional users, municipal government and business customers in densely populated, selected Tier Two and Three metropolitan markets. We are a facilities based "carrier class" communication company that owns, develops and builds in partnership with municipalities, Next Generation Municipal Wireless City-Wide Networks. Our networks are "Built for Mobility," providing Anytime-Anywhere high speed fully mobile Broadband Internet Access to our customers within the markets we serve. Based in Tampa, a-Path Communications and its partners have the financial resources to execute the proposed network deployment in Delray Beach. Providing the technical, supervisory, and management services to the network construction, a-Path, is a privately held company with plans to open an office in Delray Beach. a-Path Communications has secured equity investments from partners, affiliates, and equity investors and equipment financing to fund Delray Beach Wi-Fi. In addition to Delray Beach Wi-Fi, a-Path is also working with Miami and Coral Gables, Florida on the development of Wi-Fi networks. a-Path has received a commitment from Data Sales, a financial services affiliate of Cisco Capital, to provide $7 million for equipment financing that will fund equipment for these projects. e- Path also has executed agreements with Federal Signal Corporation, a company that manufactures and supplies safety, signaling and communications equipment to municipalities, and Key Span Communications, the largest fiber optic transmission company in the greater New York marketplace„ a wholly owned subsidiary of Keyspan Energy, to submit a response to the Long Island Wireless Request for Proposal (RFP). The Long Island project is one of the largest in the US, covering 750 square miles and a population of approximately 3 million residents, including 900,000 households and 80,000 businesses. e-Path's Executive Management Team is comprised of successful and determined leaders with extensive telecommunications and Internet experience. e-Path's executives lead by example, and their influence is key to forging a dynamic atmosphere to generate outstanding business results. The e-Path management team successfully built and operated a very similar business in the early 90's. At FiberNet, Inc. and FiberNet USA, Inc. the a-Path management team built fiber optic Metropolitan Area Networks in Buffalo, Rochester, and Albany that were sold to FTL:2145168:1 MFS/MCI, and in Cincinnati, St. Louis, Huntsville and Raleigh Durham that were sold to Intermedia Communications, by way of acquisition all are now part of Verizon Communications. In addition, FiberNet Telecom Group, Inc., (NASDAQ FTGX) an integrated leader in complex telecommunication interconnection, was founded by members of e-Path's leadership team, who also coordinated its Initial Public Offering (IPO). Working together since 1989 in various successful start-up telecommunications ventures, the a-Path management team is now focused on building similar Metropolitan Area Networks based upon next generation wireless broadband Wi-Fi and WiMAX technology. e-Path's management team includes: • Joseph A. Tortoretti. Founder, President and Chief Executive Officer. Mr. Tortoretti was a founding principal, President and CEO of New Horizons Computer Learning Centers Gulf Coast Florida, the leader in IT training in Tampa, as published by the Tampa Bay Business Journal. Before joining New Horizons, Mr. Tortoretti was the Founder, President /CEO, an a Director of FiberNet, Inc., FiberNet USA, Inc., and FiberNet Telecom Group, Inc. (NASDAQ: FTGX), a metropolitan area network providers and a leader in complex interconnection services, named as a Deloitte Technology Fast 50 company. Prior to his retirement in 1999, Mr. Tortoretti grew the company's market cap to over $500 million. He successfully implemented its Initial Public Offering, and negotiated various private placements and institutional debt and equity financing with ATT, Northern Telecom, Comdisco, Tomen America Corporation and Gerard Klauer Mattison and Company, Inc. He directed the carve-out of the Rochester, Buffalo, Albany, Raleigh-Durham, Huntsville, Cincinnati and St. Louis networks and the subsequent acquisitions of FiberNet, Inc., and FiberNet USA, Inc., by MFS Communications, Inc., and Intermedia Communications, Inc., now a part of Verizon. Mr.Tortoretti directed the development of FiberNet's initial network in Rochester, partnering with Time Warner, which was one of the nation's first initiatives by a competitive local exchange carrier (CLEC) to introduce competition in a second tier local telephone monopoly. Many principles in the business plan became part of the landmark national Telecommunications Reform Act of 1996. The business and technology model was the nation's first in partnership with a cable television company, offering competitive local exchange services. This served as Time Warner's model for national deployment to offer competitive telecommunications services. Prior to FiberNet, Mr. Tortoretti held various management positions at Rochester Telephone Corporation and RCI, now part of Frontier Communications and Citizens Utilities, Inc. Mr. Tortoretti has over 35 years experience in telecommunications and is recognized as an expert in competitive telecommunications ventures. Mr. Tortoretti received his bachelor's degree with honors in Finance from Rochester Institute of Technology. He attended the William E. Simon Graduate School of FTL:2145168:1 Business at the University of Rochester. Mr. Tortoretti has served as a lecturer at the John H. Sykes College of Business at the University of Tampa. David B. Hurwitz, President, Business Development. Mr. Hurwitz has more than 21 years of experience in the competitive telecommunications industry, encompassing business development, general management, strategic sales and marketing initiatives, and Mergers and acquisitions. During the three-and-a - half years prior to joining a-Path, David served as the COO at Yak Communications and President of Yak's VoIP initiatives. Prior to joining Yak, David co-founded an integrated communications provider focused on Internet- based private label systems and distribution of traditional voice, data and Internet services, Intandem Communications, that was acquired by Cognigen Networks, Inc. Prior to co-founding Intandem, David served as President and CEO of Capsule Communications, Inc., a $54 million publicly traded local and long distance carrier that was acquired by Covista Communications, formerly TotalTel. From 1995 to 1996, David served as EVP of Sales and Marketing of Commonwealth Long Distance and for RCN Corporation, when it acquired CLD. Before the position with Commonwealth, David served as EVP and COO of Internet Communications Services, Inc. and as General Manager of FiberNet, Inc. from 1992 to 1999, an affiliated entrepreneurial start-up. From 1985 to 1992 David held sales and sales management positions with RCI Long Distance, a subsidiary of Rochester Telephone, which became Frontier Corporation and then Global Crossing. David has a BA from Hobart College. During his career, David has served on the Board of Directors for several communications companies and currently sits on the Board of Directors of The Hills of Northampton Home Owners Association, Transcard International, LLC, and the Council Rock Lacrosse Association. • Michael E Martin. Chief Operations Officer. Mr. Martin is President of M.E. Martin Enterprises, Inc., a telecommunication management company founded in 1993, where he provides strategic management direction to various telecommunication organizations. Prior to establishing his own firm, Mr. Martin was VP of Engineering & Operations for Network Telephone Corporation (NTC), VP of Engineering at USLEC (CLEC, NASDAQ), VP of Engineering for FiberNet Telecom Group (FTGX, NASDAQ), and VP of Operations & Customer Services for Call-Net Enterprises Inc. (TSX: FON, FON.B), where he was instrumental in establishing a competitive (non-monopoly) telecommunications environment in Canada. In addition, Mr. Martin has held various director and management level positions in engineering and operations with ACC Long Distance (ACCC, NASDAQ), and Rochester Telephone Company (Frontier) now Citizens Utilities (NYSE, CZN). Mr. Martin is also co-founder ofInter-Access, Inc., one of the first ISP's in operation in the United States. Mr. Martin's career in telecom spans 25 years and is rooted in hands-on technical positions such as Switch Technician, Microwave Radio Technician, Fiber Optics Engineer, and Private Line Installer. Mr. Martin spent six years in the United States Army as an NCO Squad Leader in a combat ready infantry unit. Mr. Martin has an A.S. FTL:2145168:1 Degree in Electronics Engineering from Berkshire College as well as countless industry certifications. • Bobbv Ceklic, Vice President of Sales and Marketing. Mr. Ceklic brings extensive experience in the areas of account development, major account management, direct sales, strategic planning and competitive analysis. Mr. Ceklic has more than 10 years of IT sales and consulting experience in large market areas implementing successful and profitable sales programs with start- ups to leading industry companies. Mr. Ceklic was responsible for leading and overseeing wireless deployment projects at GSA, Glaxo Smith Kline, Suny Maritime Museum, Ft. Myers Police Department, City of Largo, and Halifax Health Systems. He is an Industry Certified MCP, CCNA, Security+, Cisco Wireless SE, Cisco Wireless LAN, Certified Wireless Network Administrator, McAfee, WatchGuard, and other leading Industry Certifications. There are two minority Shareholders -The Vision Team LLC and ATC International Inc. The Vision Team LLC is the successor company to Wi-Fi America. Based in South Florida and led by former Palm Beach County Commissioner Carol Roberts, The Vision Team is an affiliation of professionals with extensive and varied public and private sector experience in bringing together groups, organizations, communities, individuals, elected officials, and others to coalesce around a common public policy goal. Our professional staff has been elected officials; political appointees; candidates; and senior management, directors and officers. Recognizing the benefits that Wi-Fi technology can bring to communities, The Vision Team assists municipalities to decrease costs and enhance services to citizens through this new technology. Our longtime participation in and deep knowledge of the public policy process, coupled with the expertise of our technology partners, ensures that community leaders looking to move their towns into the future are able to do so today. The Vision Team is based in West Palm Beach. It's WBE status in both Broward and Palm Beach Counties is pending. The Vision Team's principals include: • Carol Roberts is a former mayor of West Palm Beach and longtime Palm Beach County Commissioner. She was an officer in the National Association of Counties and President of the Florida League of Cities, among other positions in her more than 30 years in public office. Ms. Roberts has served on numerous national boards and commissions, and is known across the country as an effective policymaker. • Linda Hennessee is a former Congressional chief of staff and political consultant with a solid and successful background in management and organization. Ms. Hennessee has served on the boards of numerous community organizations and led successful community projects around the US, with a special emphasis in Florida. FTL:2145188:1 • Steyhen Gaskill has more than 20 years of experience planning and implementing communications projects on a wide variety of subjects. He has held senior positions in political campaigns at the national, state and local levels, including the last four presidential campaigns. Mr. Gaskill has been an advisor to elected officials, political candidates, and corporate CEOs, among others. ATC International Inc. is widely recognized as an innovative leader in the technology integration industry. ATCI is proficient and knowledgeable in voice, video, data and security systems integration including automation, communications, access control, perimeter systems, closed circuit television, gates, radio frequency identification, wired and wireless networks, VOID, fiber optics, biometric identification, wireless mesh networks, video object detection and tracking, alert data management and incident command systems, integration platforms and digital data archiving. ATCI remains at the cutting edge of technological and integration advances, and is consistently ranked in the upper third of SDM's list of the Top 100 technology integrators in the US. ATCI's strength is the integration of complex solutions with particular expertise at working within the stringent requirements of various government regulations and entities. Based in Miami with US offices in Orlando, ATCI has 75 employees and subcontractors in the corporate office, and hosts a Central American operations base in El Salvador. ATC International's premiere projects and clients include Miami River Port for the US Department of Justice; Port of Key West for the US Department of Homeland Security; Port of Jacksonville; Miami International Airport for the US Postal Service; Palm Beach International Airport and Fort Lauderdale-Hollywood International Airport; Aventura, FL Government Center; Miami River Marine Group Project in support of the FTAA Summit; Carnival Cruise Lines' newest passenger terminal in San Juan, Puerto Rico; major South Florida high rises; Miami's American Airlines Arena; and the Broward County Convention Center. ATCI's management team includes: Vincent J. Vento is CEO of ATCI, which in 2001 grew out of its predecessor firm, ACT, which was founded in 1993. Mr. Vento has built a list of reputable customers and projects worth over $50 million by providing integrated electronic technology solutions for businesses and government. Mr. Vento oversees day-to-day functions of the executive committee. Most recently, he has expanded ATCI's services and expertise to South and Central America as well as the European Union. Prior to the establishment of ATCI, Mr. Vento founded VCC Technologies, Inc. in 1975 and served as President. He grew the company to an operation with more than 60 employees and four offices in the state of Florida. VCC Technologies became nationally recognized as a leader in integrated systems. FTL:2145168:1 • Chris Cavallo, became President of ATCI in 2002, bringing 25 years of experience in sales and business development as a reputable security expert. Prior to joining ATCI, he served as Executive Vice President of Record Search International (RSI). He created RSI as a background investigation company for Fortune 500 companies and grew his business from atwo-person operation into an international company with more than 2,500 investigators worldwide and five regional offices. Mr. Cavallo worked for Borg Warner Protective Services, starting out with Wells- Fargo as asecurity officer at the Fort Lauderdale International Airport. In a few short years, he became the number one salesman, growing the business unit by more than 3,200 percent over afive-year period. He left the company as Vice President of Sales for the southeast region. He was awarded the President's Winner Circle Award for 10 consecutive years and the Baker Industry Award, where he was named #1 Salesperson out of 2,500 sales representatives. FTL:2145168:1 WIRELESS BROADBAND AGREEMENT THIS WIRELESS BROADBAND AGREEMENT ("Agreement"), dated for purposes of identification only this day of 2007 ("Effective Date") is entered between the CITY OF DELRAY BEACH, a municipal corporation ("City") and DELRAY BEACH WI-FI, INC ("Delray Beach Wi-Fi") incorporated in the state of Delaware. Capitalized terms shall have the meaning ascribed in the body of the Agreement or as set forth in the attached Exhibit A. WHEREAS, City sought proposals through an Invitation to Negotiate dated October 17, 2006 for municipal wireless broadband; WHEREAS, following evaluation, ATC International, Inc. ("ATCI") was selected as the most qualified responder; WHEREAS, ATCI, E-Path Communications, Inc. ("E-Path") or their respective affiliates, as the current principals of Dekay Beach Wi-Fi, desire to provide its Services (as hereinafter defined), through Delray Beach Wi-Fi, consistent with its proposal made to the City Commission in the City; WHEREAS, in connection with the provision of Services hereunder Delray Beach Wi-Fi desires to mount, install, operate and maintain certain of its equipment on certain City- owned Assets, and on streetlights, traffic signal poles, and other structures owned and controlled by third parties, in accordance with the terms, provisions and conditions contained in this Agreement and subject to any agreement with third party owners, if any ("Network"); WHEREAS, City has requested and Delray Beach Wi-Fi shall provide Free Service, as defined in Exhibit A in the Free Service Zone, as defined in Exhibit A; WHEREAS, City recognizes the benefits of a citywide deployment of a wireless broadband network and Delray Beach Wi-Fi agrees to provide same for the entire City with the Free Service Zone as the first priority; WHEREAS, ATCI has established a new and separate entity, Delray Beach Wi-Fi, to meet the terms and conditions of this Agreement and to accommodate its stockholders and investors; and WHEREAS, City desires to have the Services provided by Delray Beach Wi-Fi available for use by City and its citizens, businesses and guests in accordance with applicable law, and the terms, provisions, and conditions contained in this Agreement. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS SET FORTH ABOVE AND AS FOLLOWS: DBWF DRAFT 4-9-07 1. TERM OF AGREEMENT -The Term of this Agreement shall be for ten (10) years and will upon approval of City it may be renewed for two additional renewal terms of five (5) years each (collectively "Term"). In the event both parties desire to extend the Term, City and Delray Beach Wi-Fi shall execute a written extension of this Agreement no later than ninety (90) days prior to the expiration date of the term. 2. PLANS AND SPECIFICATIONS-Dekay Beach Wi-Fi will obtain from City approvals of the plans and specifications for the Network prior to any installation under this Agreement, including without limitation any upgrades or enhancements, which approval will not be unreasonably withheld, conditioned or delayed; provided, however, that any review or comment by City shall in no way relieve Delray Beach Wi-Fi of any duties or obligations set forth in this Agreement, or limit Delray Beach Wi-Fi's ability to provide the Services in accordance with applicable law. City will notify Delray Beach Wi-Fi in writing of any objection and the evidence for such objection within sixty (60) calendar days of Delray Beach Wi-Fi's submission of any plans or specifications (including expansions and upgrades to the network). Delray Beach Wi-Fi is not obligated to expend any funds on the Network until all necessary City approvals have occurred (collectively the "Approvals"), and it has obtained all Underlying Rights. If any Approval is in legal dispute or revoked then Delray Beach Wi-Fi will be entitled to suspend performance of all Services dependent on such Approval at its option, until all Approvals are reinstated or no longer in legal dispute. If City does not approve the Plans and Specifications for the Network within sixty (60) calendar days of delivery to the City, or if all Approvals necessary for Delray Beach Wi-Fi to perform under this Agreement are not obtained within ninety (90) calendar days of such delivery, then Delray Beach Wi-Fi and the City shall each, respectfully, be entitled to terminate this Agreement, subject to all applicable law, without any Default or further liability by either Party of any kind. 3. SCHEDULE OF PERFORMANCE -All work to be performed under this Agreement shall be commenced and completed in accordance with the time schedule set forth in Exhibit C, entitled Schedule of Performance and coordinated through the City representative assigned to oversee the City's obligations under this Agreement. 4. DESCRIPTION OF WORK - During the Term of this Agreement, Delray Beach Wi-Fi is authorized and required to mount, install, operate, repair and maintain at Delray Beach Wi-Fi's sole cost and expense, equipment, radios and antennas, or such other comparable equipment. Subject to City's prior approval and all applicable Federal, State, and local ordinances, laws and regulations Delray Beach Wi-Fi may use City owned buildings and towers as each shall be individually approved by City; provided, however, the use is subject to current agreements the City has extended with other parties and any other lawful preexisting communications facilities and must not interfere with any public 2 DBWF DRAFT 4-9-07 safety communications system, and the City's computer network. In addition, if required, the City agrees to cooperate with Delray Beach Wi-Fi's attempts to obtain pole mounting agreements with Palm Beach County, Florida Power and Light and any other entity with mounting assets required to deploy a network that meets the necessary standards. Notwithstanding anything to the contrary, the City shall have no obligation to obtain such rights from third parties for the benefit of Delray Wi-Fi. For the Term of this Agreement, Dekay Beach Wi-Fi is authorized to use public rights of way owned by City for access to poles, buildings and towers as individually approved by the City to which communications equipment is or will be attached pursuant to this Agreement. Such access shall be twenty- four (24) hours per day, every day, subject to applicable restrictions and regulations relating to traffic, noise, public safety and other requirements. City agrees to reasonably cooperate with Delray Beach Wi-Fi without cost or obligation to City in obtaining all necessary permissions or permits required to facilitate the installation and maintenance of radios that require the use of right- of-ways that maybe controlled by the County or State. Upon completion of each task, installation and phase of work to be performed under this Agreement, Dekay Beach Wi-Fi shall promptly restore all work site areas to a clean and safe condition as described in the Statement of Work. City will cooperate with Delray Beach Wi-Fi to identify City-owned assets that may be utilized for the Network. If the City refuses to provide the necessary rights to City assets in any location without reasonable cause, then Delray Beach Wi-Fi will not be responsible to include coverage for such affected location. Delray Beach Wi-Fi's obligations to provide the Network and the Coverage Level are dependent upon Delray Beach Wi-Fi's obtaining the Underlying Rights from the City and Delray Beach Wi-Fi obtaining the necessary approvals from applicable third parties. If Delray Beach Wi-Fi is unable to obtain the Underlying Rights from third parties, including without limitation any pole attachment rights from any utility or other third party, then Delray Beach Wi-Fi's performance obligations may be reduced to the extent the Coverage Level cannot be obtained for a given location. However, in the event of any such reduction in coverage level, the City may declare a Default of this Agreement immediately upon written notice to Delray Beach Wi-Fi. Notwithstanding the foregoing, this Agreement shall in no way limit or interfere with apre-existing provider's rights nor the network owned and operated by the City. In addition, notwithstanding anything in this Agreement, nothing in this Agreement is intended to diminish Delray Beach Wi-Fi's rights to provide wireless broadband services apart from this Agreement under any state or federal law. 5. WORK SCHEDULE DELAYS - If City requests in writing for a delay in performance of the installation by Delray Beach Wi-Fi and its contractors then such delay shall not be unreasonable in length and all milestones and deadlines shall be extended by the same number of days as the number of days in the delay. 6. CHANGE IN SERVICES. If Delray Beach Wi-Fi intends to reduce services then, after reasonable prior notice to the City of Delray Beach Wi-Fi's intentions, City 3 DBWF DRAFT 4-9-07 will either, (1) accept the proposed change in service on such terms and conditions as the parties find mutually agreeable in which case Exhibit F shall be revised appropriately and be substituted for the then current version of Exhibit F, (2) require that the then-existing service levels, to the extent not beyond the reasonable control of Delray Beach Wi-Fi, continue to be provided as contemplated in the then current version of the Exhibit F (Service Level Agreement), or (3) declare a Default of this Agreement. This Section 6 shall only apply to Material Changes of Service which shall require the consent of the City whose consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, Delray Beach Wi-Fi shall not be required to obtain consent from the City for any non Material Change of Services. The term "Material Change of Service" as used in this Section 6 means (1) a reduction in broadband Internet access bandwidth by Delray Beach Wi-Fi to speeds consistently below 512 Kbps or (2) a reduction in the coverage level as set forth in Exhibit C. 7. AVAILABILITY OF POWER -City and Delray Beach Wi-Fi acknowledge that the Network requires a 24 hour, reliable source of power. In the instances where the Network will be mounted on City assets, the City agrees to provide reasonable access to its power sources in a manner authorized by City where power is currently available. Notwithstanding the foregoing, City has no obligation under this Agreement to provide new power source to Delray Beach Wi-Fi. The cost of any and all power required by Delray Wi-Fi shall be the sole responsibility of Delray Wi-Fi. 8. SERVICE LEVEL AGREEMENT AND CUSTOMER SERVICE GUIDELINES. a. Dekay Beach Wi-Fi shall perform in accordance with the Service Level Agreement ("SLA") set forth in Exhibit F. City will appoint a person with whom Delray Beach Wi-Fi will interact with respect to technical, maintenance and service issues with respect to this Agreement, including the Service Levels set forth in Exhibit F. Delray Beach Wi-Fi will provide the name and contact information for the project manager, regular status reports, and updates to the City in a manner to be determined. b. Delray Beach Wi-Fi further acknowledges the importance of quality customer service and ongoing Network monitoring and performance review. Delray Beach Wi-Fi thus shall make customer service representatives available 24 hours per day, 7 days per week and shall monitor Network performance and respond to customer service inquiries in accordance with the requirements set forth on Exhibit F-1. Delray Beach Wi-Fi shall further provide City with monthly summary reports outlining its compliance with each of the reporting metrics in accordance with the SLA attached as Exhibit F. 9. MARKETING COOPERATION -Delray Beach Wi-Fi will be responsible for marketing and administering the operations of the Network. City will cooperate, 4 DBWF DRAFT 4-9-07 as determined by the City, in mazketing, advertising and promotional plans, schedules and materials regarding the Network. City will appoint a person designated to work with Delray Beach Wi-Fi's designated marketing coordinator. 10. PERMITS. -Delray Beach Wi-Fi and City further agree as follows: a. Delray Beach Wi-Fi shall obtain, with City's reasonable assistance, all applicable permits, licenses, and authorizations as aze required for Delray Beach Wi-Fi to comply with applicable laws, regulations and ordinances. b. In consideration for the free services provided to non-business users for a cumulative four (4) hours per day in the Free Service Zone subject to the restrictions under this Agreement, the City agrees to waive any and all permit fees chazged by the City in connection with this Agreement. This waiver of permit fees shall not apply to regulatory fees or taxes. 11. WORK STANDARDS -Delray Beach Wi-Fi agrees to perform the Services in accordance with all applicable ordinances, laws and regulations, including all traffic laws and regulations (including, without limitation, those set forth as Florida DOT standazds) and in accordance with the Plans and Specifications and Schedule of Performance. Delray Beach Wi-Fi will comply with applicable laws, ordinances and regulations. Delray Beach Wi-Fi will use commercially reasonable efforts to notify affected residents, property owners and businesses prior to commencement of work that can be reasonably anticipated to adversely affect the quiet enjoyment of their property. Delray Beach Wi-Fi acknowledges that City has made no warranties or representations regazding the fitness, safety, or suitability of any of City's property for the installation of Delray Beach Wi- Fi's equipment or for this Network and that any performance of work or costs incurred by Dekay Beach Wi-Fi or provision of Services contemplated under this Agreement by Delray Beach Wi-Fi is at Delray Beach Wi-Fi's sole risk. Further, Delray Beach Wi-Fi's work under this Agreement will be fully in compliance with the requirements set forth in Exhibit G. 12. EMERGENCY/HURRICANE - In order to properly prepaze for hurricanes or other emergencies, Delray Beach Wi-Fi and the City may form a working group within a reasonable period of time after the execution of this Agreement that will determine ways in which, if possible, the Network can be used to support the City. If feasible, and if expressly permitted by the City, the Network will utilize the City's alternative energy sources to ensure that the Network stays operational subject to prior approval which may be withheld in the City's sole and absolute discretion. 13. DIGITAL DIVIDE -The City wishes to utilize the Network to reach residents who may not be able to afford commercial high speed Internet access. Delray Beach Wi-Fi agrees to work with the City, the City's CRA and interested parties to establish a model program for the City that includes training (to those receiving DBWF DRAFT 4-9-07 free computers), computers and Internet access to families who fall below the federal poverty level with school-age children, in accordance with terms below. Delray Beach Wi-Fi agrees to provide: a. 100 free, new, or reconditioned computers, provided all reconditioned computers are of a quality, and provided with warranties, reasonably equivalent to new computers, containing at a minimum, a Windows OS, 512 MB RAM, and Pentium III processors. For purposes of the foregoing commitment by Delray Beach Wi-Fi, the provision of computers shall also include the respective provision of monitors, printers, and required cabling; b. 200 households with free high speed Internet access at a minimum rate of 512 kbs ("Free Digital Divide Households"); c. all households that fall below the federal poverty rate with school- age children, high speed Internet access at a minimum rate of 512 kbs at a special rate of $9.99 per month for a minimum of a one-year period, with any increases thereafter limited to no more than 5% per annum, provided however, the group of households required to pay the special rate shall not include the Free Digital Divide Households referenced in subsection b. above, which are to receive free high speed Internet access. The families which are entitled to receive the free computers set forth in subsection a. above, and free Internet access set forth in subsection b. above, shall be selected by the City in its sole discretion and promptly communicated to Delray Beach Wi-Fi prior to the Free Service going active. The City and Delray Beach Wi-Fi will formulate a process of selecting families entitled to the Digital Divide special rate. Delray Beach Wi-Fi shall provide a report to the city monthly detailing the number of families taking advantage of the special rate. 14. REMOVAL OF EQUIPMENT -Unless City and Delray Beach Wi-Fi enter into an agreement that provides otherwise, upon the expiration, completion or earlier termination of the Term of this Agreement, Delray Beach Wi-Fi shall promptly, safely and carefully remove all equipment installed by Delray Beach Wi-Fi from all City property and return City property to the condition in which the property existed immediately prior to Delray Beach Wi-Fi's installation. Delray Beach Wi-Fi acknowledges and agrees that it bears all risk of loss or damage of its equipment and materials installed on City property or in City's public rights of way, except for damages arising from the negligence or wrongful acts of City or its employees, agents or contractors. The removal will be according to a mutually agreed schedule over a time period that shall not exceed two (2) months from the earlier of the expiration, completion or earlier termination of this Agreement, provided however, that the Parties shall work together to ensure a smooth transition of any affected customers on the Network. The foregoing notwithstanding, nothing in this Agreement is intended to modify or limit Delray 6 DBWF DRAFT 4-9-07 Wi-Fi's rights to provide the Services pursuant to any applicable state of federal law or regulation. 15. RELOCATION OF NETWORK -City may from time to time require Delray Beach Wi-Fi to remove or relocate a Network element installed on City property, and at City's direction, remove or relocate the specified piece of equipment upon a request from City based on the specific configuration or re-configuration of the right of way or roads in the right of way, including for example a removal or relocation caused by widening of the road, provided that where a removal or relocation is required the City shall reasonably assist to locate a suitable alternative for Delray Beach Wi-Fi to re-locate the equipment of Dekay Beach Wi-Fi, and Delray Beach Wi-Fi shall not be considered in Default of this Agreement or Service Levels to extent any customers aze so affected by the removal or relocation of equipment. City shall notify Delray Beach Wi-Fi immediately of any Underlying Rights known to City related to the City owned assets that may interfere with the Network or Delray Beach Wi-Fi's obligations in connection with this Agreement. Upon the expiration, non-recognition or other termination of an Underlying Right of which the City has been given notice in writing that is necessary in order to grant, continue or maintain an Underlying Right required for any portion of the Network or provision of the Services, City will use its best efforts to notify Delray Beach Wi-Fi in writing. 16. PAYMENT OF TAXES -Subject to all provisions of this Agreement, Delray Beach Wi-Fi will pay all taxes, assessments and fees applicable to Delray Beach Wi-Fi's installation and operation of the Network. Delray Beach Wi-Fi will pay any and all taxes, assessments and fees which maybe levied against Delray Beach Wi-Fi by any tax authority or other governmental or quasi-governmental authority. 17. INDEPENDENT CONTRACTOR - To the extent applicable, Delray Beach Wi- Fi, in the performance of the work and Services agreed to be performed pursuant to this Agreement, shall act as and be an independent contractor and not an agent or employee of City. Delray Beach Wi-Fi shall operate the Network as Delray Beach Wi-Fi determines, in its sole discretion, provided that such operation shall at all times be in accordance with the requirements of this Agreement. 18. FORCE MAJEURE -Neither Party shall be responsible for any of its obligations under this Agreement prevented or delayed by reasons which aze not reasonably foreseeable, not reasonably avoidable, or otherwise outside the reasonable control of the Pazties, including but not limited to Acts of God, floods, fires, hurricanes, tornadoes, earthquakes or other unavoidable casualty, acts of public enemy, insurrection, waz, riot, sabotage, act of terrorism, epidemic, strike, freight embazgoes, severe weather conditions, concealed and unknown conditions below the surface of the ground differing materially from those ordinarily encountered and generally recognized as inherent in construction work or which aze not reflected on current maps or drawings of underground conditions, wrongful 7 DBWF DRAFT 4-9-07 physical obstruction by any Person at any installation site, any law, order, regulation, direction, action, or request of the United States government or of any governmental, judicial, regulatory, or civil or military authority having jurisdiction over the Parties; national emergencies; or failure of any common carrier or third party facility not affiliated with Delray Beach Wi-Fi ("Force Majeure Event"). The time within which any obligation must be performed under the terms of this Agreement shall be extended for a reasonable period to be determined jointly by the City and Delray Beach Wi-Fi where timely performance is prevented due to a Force Majeure Event. Delray Beach Wi-Fi or the City shall promptly notify in writing the other Party of any Force Majeure event described in this Section and, in such notice, shall indicate the anticipated extent of such delay and shall indicate whether, and to what extent, if any, the delayed Party anticipates that such event shall affect the timely performance of such Party's obligations under this Agreement. 19. ASSIGNABILITY -Neither Party shall have the right to assign or otherwise transfer this Agreement, in whole or in part, without the prior, written consent of the other Party which consent shall not be unreasonably withheld, conditioned or delayed, provided however, that after the Network is operating then Delray Beach Wi-Fi will be entitled to transfer the Network and its operations to entities in the future, provided the City determines in its sole and reasonable discretion that the transferee is sufficiently capitalized in order to perform the Services hereunder and will in the City's reasonable discretion be able to promptly provide services hereunder. Notwithstanding the foregoing, Delray Beach Wi-Fi may assign this Agreement as part of any financing arrangement, or otherwise in connection with a restructuring of Delray Beach Wi-Fi upon approval by the City, which approval shall not be unreasonably withheld, conditioned, or delayed, that the assignment is to an entity that can perform, has experience to perform, and the financial wherewithal to perform the Services hereunder to the reasonable satisfaction of the City. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. In addition, Delray Beach Wi- Fi shall have the right to subcontract Services provided any and all such subcontractors are approved by the City prior to the commencement of work. 20. IlvDEMNIFICATION - As respects bodily injury, death, personal injury, or third-party property damage, Dekay Beach Wi-Fi agrees to indemnify, defend, and hold harmless City, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with Delray Beach Wi-Fi's (or Delray Beach Wi-Fi's contractors' or subcontractors', if any) (i) acts, errors, omissions, or unsafe acts, or (ii) work performed by, or on behalf of, Delray Beach Wi-Fi, relative to this Agreement; except for those Claims which arise out of the sole negligence or willful misconduct of City. As respects any damage or loss which does not arise out of bodily injury, death, personal injury, or third-party property damage, Delray Beach Wi-Fi agrees to indemnify, defend, and hold harmless 8 DBWF DRAFT 4-9-07 City, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with Dekay Beach Wi-Fi's (or Dekay Beach Wi-Fi's contractors' or subcontractors', if any) negligent or wrongful performance under this Agreement; except to the extent that such Claims arise out of the sole negligence of City. The obligations set forth in this Indemnification provision (i) shall be in effect without regard to whether or not City, Delray Beach Wi-Fi, or any other person maintains, or fails to maintain, insurance coverage, or aself-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement. Nothing herein shall prevent Delray Beach Wi-Fi's insurer(s) from satisfying Delray Beach Wi- Fi's obligations under this Section. This Section shall survive the termination of this Agreement. 21.OWNERSHIl' Notwithstanding any provision of this Agreement or any attachment, in all circumstances, Delray Beach Wi-Fi shall retain title to the Network and each device and components thereof. No portion of the Network shall become a fixture unless Delray Beach Wi-Fi expressly agrees otherwise in writing. In no event shall City gain any ownership rights in or to the Network in whole or in part, pursuant to this Agreement or otherwise. In no event will City translate, modify, disassemble, or reverse engineer the Network or create derivative works based on any portion of the Network or the Design Control Documents or authorize others to do so. The Agreement in no way establishes any ownership rights in the City's network. 22. INSURANCE- Without limiting City's right to indemnification, it is agreed that Delray Beach Wi-Fi shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows: Workers' Compensation Insurance as required by State statutes and Employers Liability in an amount not less than $500,000 per occurrence. Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent Contractor's Liability (if applicable), in an amount not less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) annual aggregate, written on an occurrence form, provided this coverage may be maintained by Delray Beach Wi-Fi combining primary and excess policies to meet these requirements. Comprehensive Automobile Liability Coverage including - as applicable - owned, non-owned and hired autos, in an amount not less than One Million Dollars ($1,000,000) per occurrence, combined single limit, provided this coverage may be maintained by Delray Beach Wi-Fi combining primary and excess policies to meet these requirements. 9 DBWF DRAFT 4-9-07 City's Risk Manager is hereby authorized to reduce the requirements set forth herein in the event he/she determines that such reduction is in City's best interest. Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions: "This insurance policy shall not be cancelled until after thirty (30) days prior written notice has been given to the City Clerk, City in the event of cancellation for non-payment of premium." Each insurance policy required by this Agreement, except policies for Workers' Compensation, shall contain the following clauses or shall otherwise provide for the following conditions: "It is agreed that insurance provided by this policy shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City." "The City its officers, agents, employees, and representatives are added as additional insureds as respects the acts, omissions, operations, and activities of, or on behalf of, the named insured, in regard to products supplied, or work or services performed for, or under an agreement with the City." Prior to commencing any work under this Agreement, Delray Beach Wi-Fi shall deliver to City insurance certificates confirming the existence of the insurance required under this Agreement, including the applicable clauses and/or provisions referenced above. Also, within thirty (30) days of the execution date of this Agreement, Delray Beach Wi-Fi shall provide City (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation reasonably acceptable to City evidencing that the coverage, terms, and conditions set forth in the above- referenced clauses are otherwise provided for in said insurance policies. Said endorsements shall be signed by an authorized representative of the insurance company and shall include the signatory's company affiliation and title. Should it be deemed necessary by City, it shall be Dekay Beach Wi-Fi's responsibility to see that City receives documentation acceptable to City which evidences that the individual signing said endorsements is indeed authorized to do so by the insurance company. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in the State of Florida and (ii) possessing an A. M. Best's rating of A-VII or higher, or (iii) otherwise acceptable to City, with prior written permission from City. Also, in the event that (i) a claim is filed against City, or its officers, employees, agents, or representatives, for which City believes, in good faith, there may be coverage under an insurance policy required by this Agreement, and (ii) City has tendered such claim to the insurer that issued such policy, and (iii) such insurer has not agreed, within ninety (90) days, to cover such claim, including defense and indemnity, without reservation, then City has 10 DBWF DRAFT 4-9-07 the right to demand of Delray Beach Wi-Fi, and to receive within thirty (30) days, a copy of such insurance policy. In addition to other remedies City may have if Delray Beach Wi-Fi fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, declare a Default hereunder, until Delray Beach Wi-Fi demonstrates compliance with the requirements hereof. Exercise of any of the above remedies, however, in addition to other remedies City may have and is not the exclusive remedy for Delray Beach Wi-Fi's failure to maintain insurance or secure appropriate endorsements. Delray Beach Wi-Fi shall list the City as an additional insured under all of the insurance policies referenced in Section 22 herein. 23. GOVERNING LAW -This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida, without regard to the conflict of law provisions thereof. Any action brought relating to the interpretation or enforcement of this Agreement may be brought in any court located in Palm Beach County, Florida, unless otherwise required by law. 24. COMPLIANCE WITH LAWS -Delray Beach Wi-Fi and the City each agree to comply with all applicable laws, ordinances and regulations, including the recent Declaratory Ruling issued by the Federal Communications Commission, dated March 23, 2007, entitled In the Matter of Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket No. 07- 53, ("Wireless Broadband Order"), which among other things, declares wireless broadband Internet access services, which would include the Service, as Information Services pursuant to 47 U.S.C. § 153(20), preserves the applicability of 47 U.S.C. § 332(c)(7) regarding local zoning and land use decisions to wireless broadband information service providers that utilize the same infrastructure to provide personal wireless services, and determines that wireless broadband information services are jurisdictionally interstate. Notwithstanding any obligation or agreement made in this Agreement, each Party hereto agrees to comply with all requirements of the Wireless Broadband Order, and in all applicable law, and nothing in this Agreement is intended, nor shall be interpreted, to modify each of the respective Party's rights and obligations under the Wireless Broadband Order, or other applicable law. In addition, City agrees to facilitate the process of approvals by departments of City to ensure that the obtaining of such approvals in no way creates delays inconsistent with the implementation timeframes set forth in Exhibit C, and the Service Level Agreement in Exhibit F. 25. APPROVAL - If the approval or consent of any Party is required under this Agreement, such approval or consent may only be given in writing, and shall not be unreasonably withheld, conditioned or delayed. 11 DBWF DRAFT 4-9-07 26. MISCELLANEOUS -The failure of a Party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a Party of any condition or of any breach of any term, covenant, representation or warranty contained in this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or wazranty. The headings preceding the text of articles and sections included in this Agreement and the headings to schedules attached to this Agreement aze for convenience only and shall not be deemed part of this Agreement or be given any effect in interpreting this Agreement. Unless otherwise indicated, words describing the singular number shall include the plural and vice versa, and words denoting each gender shall include the other gender and words denoting natural persons shall include corporations and partnerships and vice versa. The use of the terms "including" or "includes" shall in all cases herein mean "including, without limitation" or "include, without limitation," respectively. Unless otherwise indicated, references to articles, sections, subsections or schedules shall refer to those portions of this Agreement. This Agreement shall be construed without regazd to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. 27. Intentionally Deleted. 28. RESERVATION OF RIGHTS -This Agreement grants Delray Beach Wi-Fi the non-exclusive right to use poles, buildings, towers, other assets identified by the City and rights-of--way owned by City in the manner provided herein, for the Services utilizing the Network during the Term and to mount approved devices as set forth in Exhibit D for use in connection with creating and maintaining the Network for the provision of the Services at the expense of Delray Beach Wi-Fi. In recognition of the considerable financial investment made to service the businesses and residents of the City and its commitment to provide discounted service to certain low income residents of the City, the City will grant to Delray Beach Wi-Fi the non-exclusive opportunity to provide the Services, including, without limitation, Internet connectivity and other communications services to the City, as requested by the City. The City will negotiate with Delray Beach Wi-Fi for services at the time the service is desired or requested provided, however, if the City determines in its sole discretion that such services are better performed by others for no reason or any reason, the City shall not be required to grant Delray Beach Wi Fi the privilege or right to provide such services. City may grant to any other Party during the Term the right to use of City poles, buildings, towers or other approved mounting assets for the provision of services competitive with the Services authorized by this Agreement, provided such third- party's mounting assets and services do not interfere with the Services. In the event City enters into a subsequent agreement with any other third party 12 DBWF DRAFT 4-9-07 concerning offering Wi-Fi services to residents of the City ("Competitive Agreement") on or after the date hereof that has the effect of establishing rights or otherwise benefits in a manner more favorable in any respect (other than for build out) than the rights and benefits established in favor of Delray Beach Wi-Fi in this Agreement, then Delray Beach Wi-Fi shall submit to the City a request for modification of this Agreement to incorporate benefits and obligations comparable to those in the Competitive Agreement. Except as provided herein, City and Delray Beach Wi-Fi agree that nothing contained in or contemplated by this Agreement is intended to confer, convey, create or grant to Delray Beach Wi- Fi any perpetual real property interest in any City property or in any of City's public rights of way or easements. Nothing in this Agreement shall restrict Delray Beach Wi-Fi from providing the Services in all ways permitted by applicable law. The foregoing general reservation is not intended in any way to diminish Delray Beach Wi-Fi's obligations under the Service Level Agreement set forth on Exhibit F. 29. FREE SERVICE ZONE. City and Delray Beach Wi-Fi acknowledge and agree that a condition precedent for a Person to obtain password access necessary to utilize the Free Service offered in the Free Service Zone shall be the electronic or written acknowledgement and execution of a user access agreement in a form and content prepared by Delray Beach Wi-Fi in its sole and absolute discretion, which shall at a minimum include appropriate limitations of liability and indemnification protections for the benefit of Delray Beach Wi-Fi (the "User Services Agreement"). No Person shall be able to utilize the Free Service under this Agreement without the acknowledgement and execution of a User Services Agreement. Notwithstanding the foregoing, the City expressly reserves the right to review the User Service Agreement to ensure the Services described therein comply with this Agreement. 30. NO WARRANTIES -THE ONLY WARRANTIES CONCERNING THE SERVICES, SYSTEM AND OTHER DELIVERABLES PROVIDED UNDER THIS AGREEMENT ARE THOSE CONTAINED HEREIN, AND ARE MADE FOR THE BENEFIT OF CITY ONLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IlVIPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. DELRAY BEACH WI-FI ALSO SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS RELATED TO THE INTERNET; SECURITY-RELATED FEATURES OF THE SYSTEM AND/OR SERVICES CANNOT GUARANTEE COMPLETE SECURITY VIA THE INTERNET OR WIRELESS SERVICES AND DELRAY BEACH WI-FI SHALL NOT BE LIABLE FOR BREACHES OF SUCH SECURITY OR ANY OTHER RELATED WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, INTERNET FUNCTION AND/OR PERFORMANCE WA,ItRANTIES. DELRAY BEACH WI-FI SHALL HAVE 13 DBWF DRAFT 4-9-07 NO LIABILITY FOR THE CONDUCT OF SUBSCRIBERS USING OR ACCESSING THE SYSTEM OR SERVICES. 31. CONFIDENTIALITY -The City is bound by the State Public Records Act which provides for the mandatory disclosure of certain records to the public upon request. Any disclosure by the City pursuant to the Public Records Act shall be exempt from the provisions of this paragraph. The City shall not provide any trade secret that is exempt under the Public Records Act for so long as such information qualifies as a trade secret under applicable law and for three (3) years following the termination of this Agreement. 32. NOTICES -Any notice, request, instruction or other document to be given hereunder by a Party pursuant to this Agreement shall be in writing and shall be deemed to have been given: (a) when received if given in person or by courier or a courier service; (b) on the date of transmission if sent by, facsimile, email or other wire transmission; or (c) three (3) business days after being deposited in the U.S. mail, certified or registered mail, postage prepaid. If to City: City Clerk with a copy to: City Manager If to Delray Beach Wi-Fi: With a copy to: or to such other individual or address as a Party may designate for itself by notice given as herein provided. 33. PRIOR AGREEMENTS AND AMENDMENTS -This Agreement, including all attachments hereto, constitutes the entire agreement between the Parties. Except as set forth herein, there are no promises, representations or understandings between the Parties of any kind or nature whatsoever. 14 DBWF DRAFT 4-9-07 Modifications to this Agreement shall be valid only if provided in a separate writing signed by an authorized representative of each Party. 34. EFFECTIVE DATE AND AUTHORITY -This Agreement shall become effective as of the Effective Date of this Agreement upon the authorized execution on behalf of both Parties provided, however, this Agreement shall become effective only upon acceptance by the City as provided in the City's Charter and if signed by the Mayor of the City of Delray Beach. a. This Agreement and other agreements, easements, permits and leases between the Parties as contemplated in this Agreement must be agreed upon by both the City and Delray Beach Wi-Fi and fully authorized and signed on paper by both Parties within 90 days after the date of this Agreement. b. As of the Effective Date of this Agreement, City is not aware of any court actions, City Council ordinances or pending actions, civil actions, challenges, laws, regulations or claims asserted or threatened, that if successful, would result in Delray Beach Wi-Fi not having all of the rights to perform as described in this Agreement. If after 120 days after the effective date of this Agreement, the City or Delray Beach Wi-Fi determines that sufficient progress has not been made or the conditions above have not been satisfied, then either Party may immediately terminate this Agreement, subject to all applicable law, upon written notice to the other. If the Network for Free Service is not operational within 180 days from the Effective Date of this Agreement, the City has the option to immediately terminate this Agreement. 35. DISPUTE RESOLUTION PROCESS Prior to termination of this Agreement or any litigation occurring between the Parties, each party agrees to attempt to informally resolve their dispute by mediation between authorized representatives of each Party. Such mediation shall not be less than two (2) hours in duration, and the Parties shall each act in good faith in attempt to so resolve their dispute. Such costs of mediation shall be equally divided among Delray Beach Wi-Fi and the City. 36. Intentionally deleted. 37. NETWORK UPGRADE. Delray Beach Wi-Fi shall upgrade the Network from time to time in its sole discretion and at its sole expense in order to take advantage of technology improvements and to ensure that its service offerings are competitive in the consumer marketplace. The Parties note that one of Delray Beach Wi-Fi's vendors, Cisco Systems, routinely provides software upgrades; these will be installed timely by Delray Beach Wi-Fi as such upgrades become 15 DBWF DRAFT 4-9-07 available, but in no event greater than 90 days after the date such upgrades are made available to Delray Beach Wi-Fi by Cisco Systems. Delray Beach Wi-Fi acknowledges that it is its intent to upgrade its system speeds as necessary to compete with similarly situated wireless broadband service providers in the market to ensure its end users have competitive product offerings, as determined in Delray Beach Wi-Fi's sole discretion. Delray Beach Wi-Fi agrees that it shall upgrade the Network providing both (i) free high speed Internet Access to the Free Digital Divide Households, and (ii) Free Service in the Free Service Zone on the same basis as it upgrades its remaining Network. 38. DEFAULT/RIGHT TO CURE. In the event Delray Beach Wi-Fi fails to fulfill a material obligation under this Agreement within the time period otherwise provided herein ("Default"), and has received a written notice of Default from the City, then, within thirty (30) days of receipt of such notice, Delray Beach Wi-Fi shall cure such Default, provided however, if such Default is unable to be cured within such third (30) day period, and Delray Beach Wi-Fi is undertaking reasonable efforts to effectuate a prompt cure, then Delray Beach Wi-Fi shall be afforded a period of time, up to an additional thirty (30) days, to complete its cure. If Delray Beach Wi-Fi does not complete its cure in accordance with the foregoing, or to the extent otherwise permitted in this Agreement, City may immediately terminate this Agreement, provided however, that any such termination shall in no way affect Delray Beach Wi-Fi's ability to continue provide, or the manner in which it provides, its Services to users apart from this Agreement. 39. AGREEMENT WITH FLORIDA POWER AND LIGHT. The City and Delray Beach Wi-Fi agree and acknowledge that Delray Beach Wi-Fi shall negotiate and enter into the Pole Sharing Agreements directly with FPL. Within ninety (90) from the Effective Date of this Agreement, Delray Beach Wi-Fi shall provide the City with: (a) evidence that no assets owned by third parties are required for Delray Beach Wi-Fi to perform under this Agreement; or (b) fully executed Pole Sharing Agreements. In the event Delray Beach Wi-Fi is unable to satisfy the requirements under this Section 39, then the City has the right to terminate this Agreement immediately upon delivery of written notice to Delray Wi-Fi. Termination by the City pursuant to this Section 39 shall not be subject to Sections 35 and 38. [Remainder of Page Left Blank Intentionally.] 16 DBWF DRAFT 4-9-07 IN WITNESS WHEREOF, the Parties acknowledge and accept the terms, conditions and obligations of this Agreement as evidenced by the following signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become operative on the Effective Date. CITY By: _ Name: Title: DELRAY BEACH WI-FI, INC. By: _ Name: Title: 17 DBWF DRAFT 4-9-07 EXHIBITS EXHIBIT A: Definitions Defined terms not otherwise defined in this Agreement will have the meanings set forth below. a. "Commission" or "City Commission" means the City Council of City. b. "Deliverable(s)" means the work and result of the implementation, installation or consulting services that are provided to the City under this Agreement resulting in a component of the Network or the Services. c. "Delray Beach Wi-Fi" is a Florida corporation whose majority stockholder is a-Path Communications, Inc. and whose minority stockholder is ATC International, Inc. d. "Design Control Documents" means the documents that describe the design of the Network and location of devices in the City that is mutually agreed upon by City and Delray Beach Wi-Fi. e. "Digital Divide" means the supplying of high speed internet access at a minimum rate of 512 kps. f. "Free Digital Divide Households" means those households entitled to receive free high speed Internet access in accordance with Sectionl3 of the Agreement. The Free Digital Divide Households are not subject to the Service restrictions applicable to the Free Service in the Free Service Zone as those terms are defined herein. g. "Free Service" means up to four (4) hours of free public access outdoors per day per user for high speed Internet access in the Free Service Zone. h. "Free Service Zone" means the Atlantic Avenue corridor which shall span three (3) blocks north and three (3) blocks south along Atlantic Avenue from I-95 to the ocean. i. "Material Change of Service" as used in Section 6 means (1) a reduction in broadband internet access bandwidth by Delray Beach Wi-Fi to speeds consistently below 512 Kbps or (2) a reduction in the coverage level as set forth in Exhibit C. j. "Party" means either of City or Delray Beach Wi-Fi. k. "Parties" means both City and Delray Beach Wi-Fi. 18 DBWF DRAFT 4-9-07 1. "Person" means any individual natural person, firm, partnership, joint venture, entity, society, organization, club, association, trustee, trust, corporation, company or organization of any kind. m. "Services" means the voice, data, broadband, video and mobile communications and related products and services offered by Delray Beach Wi-Fi, including those described in any Statement of Work, including without limitation the Wireless Services made available to Subscribers, and the consulting, design, installation, implementation and maintenance services. n. "Schedule of Performance" means any event described in the Schedule of Performance Exhibit. o. "Subscribers" means any Person, that subscribes and pays for the Wireless Services provided pursuant to the Network. p. "Subscriber Access Agreement" means the agreement Delray Beach Wi-Fi requires Subscribers to accept or agree to in order to access and utilize the Services via the Network, a form of which is attached as Exhibit H. q. "Network" is defined on the first page of this Agreement, including the equipment installed by or on behalf of Delray Beach Wi-Fi in the City used to provide the Services described in this Agreement. r. "Underlying Rights" means all deeds, leases, easements, rights-of--way agreements, licenses, franchises, permits, grants and other rights, titles and interests that are necessary for the construction, installation, maintenance, operation, use or repair of the Network. s. "Users" means the individual computers authorized by a Subscriber to access or use the Wireless Services. t. "Wireless Services" means the services that enable communication through a wireless network using the Network without the need for cable or wire lines connecting the peripheral equipment to the Network. 19 DBWF DRAFT 4-9-07 Exhibit B-Network Description The Network shall consist of Wireless nodes, apoint-to-multipoint fixed wireless backhaul network and microwave point-to-point high capacity backhaul links and the Delray Beach Wi-Fi backbone POP and Internet backbone connectivity. The Wireless layer shall initially be in a point to point and mesh configuration and shall include up to 30 mesh Wireless router nodes per square mile which shall be compatible with standard 802.11 b/g networking devices. Nothing herein shall prevent Delray Beach Wi-Fi from upgrading the Network to include emerging industry standards and specifications to meet market demands. Delray Beach Wi-Fi shall specify use of 200 mW 802.11 b/g Wi-Fi equipment with 12 dBi high gain directional antenna in order to achieve indoor coverage. The point to multipoint backhaul connectivity shall include devices that operate in 5.7 GHz, 5.2 GHz, and 900 MHz unlicensed spectrum. Delray Beach Wi-Fi may utilize devices that operate in other unlicensed spectrum bands in order to meet the SLAB in Exhibit F and market demands, provided such use does not cause interference with any pre-existing users. 20 DBWF DRAFT 4-9-07 Exhibit C-Schedule of Performance Delray Beach Wi-Fi shall 1) Complete construction of the Free Service in the Free Service Zone, which shall be operational within 180 days of the Effective Date of this Agreement; 2) Build, activate portion of City east of I95 - 60 days thereafter; 3) Build, activate portion of City that is west of I95 - 60 days thereafter. Free Service Delray Beach Wi-Fi shall offer Free Service outdoors only for up to 4 hours daily per user in the Free Service Zone, as designated in the Agreement. Users enjoying the Free Service shall receive minimum prescribed speeds of 512 kbs and an availability rate of not less 90%. It is Delray Beach Wi-Fi's intention to provide such users with the same quality and excellence in user experience and customer support as other users of the Network. 21 DBWF DRAFT 4-9-07 EXHIBIT D -City-Owned Assets Delray Beach Wi-fi shall be entitled to use City-owned Assets, upon the prior approval of the City, as determined by the City in its sole discretion, and where there are no other conflicting uses. City-owned Assets are defined as City structures that are able to be used for installation of Wi-Fi equipment, including such things as buildings, poles, and retractable towers, but do not include any City network. If there is no asset available, whether a City-owned Asset or third-party asset, to which it is technically or economically feasible for Delray Beach Wi-Fi to attach, which is necessary for the provision of Free Service in the Free Service Zone, then Delray Beach Wi-Fi shall have no obligation to provide the Free Services in those areas where coverage is affected by Delray Beach Wi-Fi's inability to attach its equipment, without any liability or additional obligation to Delray Beach Wi-Fi. 22 DBWF DRAFT 4-9-07 Exhibit F-Service Level Agreement If necessary, the Parties shall work together in good faith to develop and agree upon additional service level agreements as are reasonable and advisable. Such SLAs, if determined necessary, shall be finalized on a schedule to be agreed and appended to this Agreement by Delray Beach Wi-Fi and the City. Targeted SLAs for Wireless Broadband Network Operation CATEGORY DEFINITION SERVICE LEVEL MEASUREMENT Network Coverage FREE SERVICE ZONE Indoor coverage as 90% outdoor coverage measured on ground floor of building in a ALL OTHER AREAS room on outer edge of 70% indoor and outdoor building facing the coverage Access Point utilizing a 12 dBi high gain antenna and 200 mW CPE radio Network Reliability - The reliability of the 95% uptime Mesh Layer connection from the Network Interface Devices, such as mesh Wi-Fi router nodes to Delray Beach Wi-Fi certified customer premises equipment (CPE) Network Reliability - The reliability of the 95 % uptime Measure daily and Backhaul connection from the report monthly. Tool: Network Interface Remedy / Network Devices, such as mesh Management System. Wi-Fi router nodes or Point to Multipoint Tower Access Point equipment, to the Delray Beach Wi-Fi System Facilities. Network Outages Not to exceed 4 To be defined continuous hours Wi-Fi Broadband 90% of outdoor Products Performance locations for FREE Criteria SERVICE ZONE, and 70% of outdoor and indoor locations for ALL OTHER AREAS within coverage area ca able of achievin 23 DBWF DRAFT 4-9-07 Minimum 1 Mbps upstream / 1 Mbps downstream connection. IP Address Pool Availability of IP <=70% utilization per TBD -will determine Addresses within pool or such lower methodology designated IP Address utilization rate resulting pools from ARIN's allocation of IP addresses. Maintenance Mean Time to Response Critical <= 3 hours Measure daily and Major <= 6 hours report monthly. Minor <= 24 hours [TBD] days advance Critical: The condition notification for impacts approximately scheduled maintenance 10% of Service activity. Subscribers. To be defined Major: The condition impacts approximately S% or more (up to Critical Level) Service Subscribers. Minor: The condition impacts less than 1% Service Subscribers. Customer Care Average Speed to 80% of all inbound calls Measure daily and Answer (ASA) Calls to Service Provider Tier report monthly. Tools: from Subscribers to 1 will be answered ACD Switch Reporting. Service Tier 1 Agents. within 180 seconds Note: All percentages and numbers of performance are subject to Force Majeure Reuorting/ Right to Cure. Unless otherwise specified, all Service Levels referenced above shall be calculated and reported on a monthly basis. To the extent Delray Beach Wi-Fi is unable to meet the specified Service Level(s) during more than 25% of the applicable reporting period ("Minimum Performance Threshold"), then Delray Beach Wi-Fi shall cure such deficiency within 30 days of the last reporting period. If Delray Beach Wi-Fi is unable to cure such deficiency within the 30 day period, or if Delray Beach Wi-Fi fails to meet the Minimum Performance Threshold for a given Service Level during two (2) reporting periods (each reporting period is monthly) within any six (6) month period, then City may immediately terminate this Agreement upon written notice to Delray Beach Wi-Fi. The Service Level obligations of Delray Beach Wi-Fi, and the rights of City granted under this Section are fully subject to all Force Majeure Events and the provisions of Section 18 of the Agreement. 24 DBWF DRAFT 4-9-07 EXHIBIT F-1 -- Continrcons and Ceiatralized Network monitoring/performance management and Customer Care Using WCS Software network managers design, control, and monitor wireless mesh networks from a centralized network operations center. With the WCS Software, administrators have a solution for RF prediction, policy provisioning, network optimization, troubleshooting, user tracking, security monitoring, and WLAN systems management. Graphical interfaces make wireless LAN deployment and operations simple and cost-effective. The NOC will have the tools to monitor all aspects of the System in real-time, with the tools that will be available to maintain the health of the System. Logs and Reports Pertinent information will be logged, such as who is connected to which node, the amount of traffic any client is transferring, System bandwidth utilization, failed login attempts, etc. • This information will be readily available to System management at all times. • Designated personnel will have access to reports and statistics on the entire System and its use. • Automated reporting is expected, outlining both the state of the equipment (operational and non-operational elements) as well as the full log of customer support issues (no connectivity, low signal, slow speed, blocked ports, etc.), component utilization. Proactive Capacity Planning, Modeling, and Reporting - Overall System `health' - POP - Network Backhaul - Wireless Broadband Network - Service Models Use and Consumption Alarm and Error Management Support for error/fault prediction, prevention, and correction capabilities. The network devices will be able to send alarms to a central management station and monitoring personnel. Whenever possible, self-healing capabilities are highly desirable to keep the System running healthy. The solution is able to isolate defective components in order to keep the rest of the System operational. • Support for Simple Network Management Protocol (SNMP) industry standards. • Identify and remove abusive nodes and/or consumer • Rogue Access Point or Base Station • Denial of Service Attacks • Attempts to continuously capture/use excessive bandwidth • Failed and failing equipment 25 DBWF DRAFT 4-9-07 Network administrators will use the Cisco Wireless Mesh Networking Solution with access to dynamic, system wide RF management, including a host of features for smooth wireless operations, such as dynamic channel assignment, transmit power control, and load balancing. A single graphical interface is used for system-wide policies, including VLANs, security, and QoS. Delray Beach Wi-Fi engineers can also use Cisco WCS Software to perform wireless mesh planning, configuration, and management. Using WCS Software network managers design, control, and monitor wireless mesh networks from a centralized network operations center. With the Cisco WCS Software, administrators have a solution for RF prediction, policy provisioning, network optimization, troubleshooting, user tracking, security monitoring, and WLAN systems management. NOC Operational Support Services The OSS will perform branded Tier 1 call center services in support of the Delray Beach Wireless Network. Call Center will accept inbound end-user telephone calls to the Call Center 24x7x365. Each customer will be provided with Call Center telephone number for use for end-user related calls. The Call Center provides Level 1 end-user related technical support and addresses customer service issues such as difficulty with sign-up, SSID configuration, log in difficulties and password resets. If the end-user has other questions or his or her questions are outside of the scope of the Call Center, the Call Center staff will direct end-users to the NOC to obtain their answers. Call Center calls will be logged with information on call center tickets including open and closed tickets as well as new user tickets. Best effort is made to resolve any customer concerns immediately. Guaranteed response time is within 6 hours for a residential client and 3 hours for a commercial client. Technical Support: Basic WiFi card driver help The Call Center will attempt to determine if the end-user has a working WiFi Card that is locating a Wireless Signal by using guidelines set for the most common types of WiFi Cards. SSID configuration The Call Center will verify what the correct SSID is for the location that an end user is accessing. The Call Center will attempt to verify that the end-user has the correct SSID set in their Network Connection, using a basic guideline developed for the most common operating systems, and the most common WiFi cards. 26 DBWF DRAFT 4-9-07 Login difficulties The Call Center will review with the end-user the correct format for the username on the log in pages. The Call Center will attempt to verify that the correct settings are enabled in the end-user's browser, and verify that the end-user is not using security software that may be blocking access. Network outage notifcation The Call Center will email a notice to the network operator if they are unable to ascertain that a location is functioning. This notice will be sent via the system using the trouble ticket system and only after three instances have been received, by the Call Center, on the same issue from the same location. If a network operator is going to be taking a location offline or otherwise is aware of a location not functioning, it is their responsibility to contact Call Center of this outage. Location specific coverage issues The Call Center will verify the Location details of the Hotspot that the end-user is accessing, and will direct the end-user to any specific coverage Location that is listed on the providers directory. E-mail The Call Center will provide the end-user with the settings needed to send and receive email over a wireless connection using the most common email programs. If end-user has any other questions, hey will be directed to the network operator/service provider to obtain their answers. All end-user questions will be directed to the network operator/service provider via an email. Basic Support General questions regarding Service & Locations: The Call Center will answer general questions about how WiFi Service works. For example, "Do I need a wireless card" or "How do I use the service," or "Is my connection secure?" The Call Center will access the network operator/service provider's sign-up page to answer questions about service. The Call Center will also verify for the caller where service is available by accessing the directory. New account sign-up The Call Center will encourage the end-user to access the network operator's sign-up pages to create a new account. The Call Center will determine which sign-up pages to use based on the phone number dialed into by the end-user. The Call Center will only sign-up users that can get to the login page (either by re-direct or entering the direct LTRL), but are having problems with the sign-up process itself. Password changes The Call Center will reset a password on an existing end-user's account. Usage and roaming questions: 27 DBWF DRAFT 4-9-07 The Call Center will relay any information that they have available to them via the Web Interface regarding the end-user's historical usage. If end-user has any other questions they will be directed to the network operator/service provider to obtain their answers. All end-user questions will be directed to the network operator/service provider via an email sent by the Call Center. Delray Beach Wi-Fi customer care is built from the ground up using service orientated architecture (SOA). Our 24/7/364 call center is United States based. Our customer care representatives have extensive training. They know the answers to our customers' requests and solutions occur quickly. Ease and speed, caring for and responding to our customer's questions, comments and concerns, is the company's high priority. When a customer concern cannot be answered in the initial call, the customer care representative will file a report with the System Administrator within 6 business hours. By way of example: when a member of our Customer Caze team (call center) is unable to address the concern, ticket number will be issued and logged. Customer Care member will forward the ticket number to NOC Team and they will work with the client on resolving the issue and closing the ticket. Guaranteed response time is within 6 hours for residential and within 3 hours for a commercial client. Software solutions will be remedied through the Network Operating Center. Hazdwaze issues will be handled on-site by the maintenance team. A service desk that acts proactively is critical to any business customer with e-services. Delray Beach Wi-Fi utilizes the Service Oriented Architecture (SOA) approach as our customer support and Fulfillment OSS standards to ensure prompt response and call tracking. Delray Beach Wi-fi utilizes a comprehensive, scalable IT service desk solution based on a unified configuration management foundation. We can easily streamline IT service processes as well as manage the IT service life cycle through comprehensive service level management capabilities. Built on ITIL principles and leveraging industry best practices, our process enables us to manage IT services and provide effective controls for our critical service support and service delivery processes. Features include: • Complete Help Desk Management solution handles end user calls as well as automated alerts and events from infrastructure management solutions • Comprehensive Change Management solution to control IT infrastructure change and improve service availability 28 DBWF DRAFT 4-9-07 Exhibit G -Additional Work and Safety Requirements This Exhibit G contains minimum requirements and specifications governing use and occupancy of City's mounting assets or those of third parties. Delray Beach Wi-Fi's facilities shall be placed and maintained in accordance with the requirements and specifications of the rules and regulations of the Public Utilities Commission, including General Order No. 95 (G.O. 95), the National Electrical Code (NEC), the National Electrical Safety Code (N.E.S.C.), the rules and regulations of the Occupational Safety and Health Act (OSHA), all of which are incorporated by reference into this Exhibit G, and of any governing authority having jurisdiction over the subject matter. Where difference in specifications may exist, the more stringent shall apply. All requirements of the National Electrical Safety Code referred to in this Agreement shall mean the current edition of such code and shall include any additional requirements of any applicable Federal, State, County or Municipal Code or regulatory body, including the State Public Utilities Commission, with jurisdiction over City. Reference to either the Safety Code, or to N.E.S.C., have the same meaning. Upon completion of work, Delray Beach Wi-Fi shall remove all of its tools, unused materials, wire clippings, cable sheathing and any other similar matter. All of Dekay Beach Wi-Fi's wiring, cables, equipment and facilities shall be firmly secured and supported to the satisfaction of City's authorized representative or applicable South Florida Building Code requirements. All of Dekay Beach Wi-Fi's cables, equipment and facilities shall be plainly identified with a firmly affixed tag of a type and wording satisfactory to City. Delray Beach Wi-Fi shall require that all its work crews or any of its contractors and subcontractors: (i) are familiar with all power line rules, requirements, regulations, standards and guidelines under G.O. 95 and N.E.S.C.; (ii) survey the area in which work is to be performed before commencing such work and make a determination that the required work can be completed safely; (iii) survey the area in which work is to be performed before commencing work and make a determination that any electrical power lines are in conformance with G.O. 95 and N.E.S.C.; and (iv) proceed with such work only upon making such determinations. If the work crew determines that such work cannot proceed safely, or if such electrical power lines are not in compliance with either G.O. 95 or N.E.S.C., Dekay Beach Wi-Fi shall immediately notify City of such condition, in detail, and shall not commence work at .such location until so directed by City. It is understood and agreed by Delray Beach Wi-Fi that there is no instance in which it is safe or proper for a Delray Beach Wi-Fi worker (whether working for or on behalf of Delray Beach Wi- Fi), or a worker's equipment, to come into contact with the electrical current from an energized electrical power line. 29 MEMORANDUM To: Susan A. Ruby Esq., Delray Beach City Attorney From: Delray Beach Wi-Fi Re: Summary of Key Terms in Wireless Broadband Agreement Date: Apri19, 2007 DISCLAIMER The following is a summary of certain key terms of the Broadband Wireless Agreement proposed to be entered into between Delray Beach Wi-Fi, inc., and the City of Delray Beach (~~Agreement"). It is neither intended to (a) reference all material terms, nor (b) be used in any way to provide any legal interpretation of the Agreement. Rather it is being provided solely for purposes of convenience to the readers. All terms of the Agreement are to be solely governed by the Agreement, and this Memorandum shall have no legal or binding effect, nor create any agreement between or among the parties to the Agreement regarding the subject matter thereof. Summary of Key Terms 1. Term: 10 year term, with two 5 year renewal periods, upon approval of City. 2. Network Implementation/Uy_~rades: City to approve Network plans prior to implementation; all City and third-party approvals to be obtained prior to implementation; City will reasonably assist with permitting and other approval processes, and waive all permit fees in recognition of Free Services to be offered by Delray Beach Wi-Fi (See Sections 4 & 5 below); Free Service Zone shall be operational within 6 months of Effective Date; build-out east of I95 to occur within 60 days thereafter (total of 240 days); build-out west of I95 to occur within 60 days thereafter (total of 300 days). Delray Beach Wi- Fi to upgrade Network in Free Service Zone on same basis as all other parts of its Network. 3. Service Levels/Customer Service: Delray Beach Wi-Fi to offer 24x7 customer service, and performance levels in accordance with agreed upon metrics to be reported to City at least monthly. 4. Digital Divide: Delray Beach Wi-Fi to provide (a) 100 free computers, monitors, printers, and necessary cabling, containing at a minimum, a Windows OS, 512 MB RAM, and Pentium III processors, to households with children below federal poverty level; (b) free high speed Internet access at minimum speeds of 512 kbs to 200 households with children below the federal poverty level; and (c) high speed Internet access at a minimum speed of 512 kps at the special monthly rate of $9.99 to all other households with children below the minimum federal poverty level; annual increases limited to 5%. City to identify recipients of free computers and Internet access. Delray Beach Wi-Fi to report monthly number of families taking advantage of special rate. 5. Free Service: In addition to the Digital Divide obligations, Delray Beach Wi- Fi agrees to provide up to four (4) hours of free public access outdoors per day per user for high speed Internet access in the Free Service Zone, which includes the Atlantic Avenue corridor spanning three (3) blocks north and three (3) blocks south along Atlantic Avenue from I-95 to the ocean. 6. DefaultlTermination: City has right to terminate or declare Default of Agreement (a) if Delray Wi-Fi is unable to obtain necessary third-party agreements and other Approvals within prescribed time frames (90 days from Effective Date), (b) in the case of repeated performance level deficiencies, (c) due to change in Service coverage or performance levels, (d) for lapse in insurance requirements, and (e) delays in implementation of Network in Free Service Zone. 2 J DELRA~ BEACH [ITS OF CITY ATTORNEY'S OFFICE ~~t, ~~ } ~~~~~~~'~; ;`,' ,' ,i~ ~'a~~--~ --:'FF ~°R~° ~~554~ DELRAY BEACH All-America City 1 'DATE: ® TO: 1993 tool FROM: SUBJECT Writer's Direct Line: 561/243-7091 MEMORANDUM April 5, 2007 David Harden, City Manager Susan A. Ruby, City Attorn Analysis of Contractual Obligations for Capital Improvements have reviewed our Consulting Contracts, Standard Construction Contracts and Construction Manager at Risk Contracts regarding termination consequences. Below is a summary of the contract requirements and effects: Architectural/Engineering Contracts Professional Consulting Services 1. The City's form contracts provide for a phased approach and affords the City the right to terminate during any phase of the project. Cancellations for convenience are allowed and if implemented require the City to give thirty (30) days written notice. If the cancellation occurs for work set forth in a service authorization, then the City shall give five (5) days notice and shall compensate the consultant for all professional services provided and reimbursable expenses incurred to the date of termination (see attached Exhibit "A"). Standard Construction Contracts 1. To begin the work, the contractor must issue a Notice to Proceed (within sixty (60) days of the effective date of the contract). 2. If there is a change in the work, it must be accomplished by written amendment, change order or work directive. The City may at any time order deletions or revisions in the work. ~k ~'~~ 2--~e,t~ ~S . 3 David Harden, City Manager Apri15, 2007 Page 2 3. Changes in the contract price can occur in accordance with the methods set forth in the contract (i.e. per unit prices, mutual acceptance of a lump sum (which shall include overhead and profit) or cost of the work, plus overhead and profit). 4. The City may also suspend the work for up to ninety (90) days without additional compensation. 5. The City may terminate for cause or without cause. Termination without cause requires the City to give seven (7) days prior written notice to the contractor. If the City terminates without cause on the part of the contractor, the City is required to pay the contractor for the portion of the contract sum (less previous payments) allocated to the work completed as of the date of termination, plus reasonable termination expenses and also reimbursement to the contractor for costs incurred in the stoppage of the work (not to include overhead, general expenses or profit). The City will not be required to reimburse subcontractors, etc. as their contracts contain this clause)(see attached Exhibit "B"). Construction Manager at Risk Contracts Once a Guaranteed Maximum Price (GMP) is accepted in writing, by the owner, it becomes part of the contract and sets the contract time and price and liquidated damages. If the GMP is not accepted, then adjustment in the work may occur. However, if within 14 days an acceptable GMP is not developed, the City may initiate negotiations with another construction manager or separately bid the project. 2. The City may order deletions or other revisions in the work. 3. The City may terminate for cause or without cause. If the City terminates without cause, the City shall pay the construction manager for any unpaid cost due manager. The details of the costs due to the contractor are set forth in Article 7, attached hereto. These costs include the unpaid balance of the construction fee as it relates to the cost of the project at the time of termination and includes costs of rental equipment if any and for subcontractors commitments. If, however, the contract is terminated after the establishment of a GMP but before the completion of the design phase, and if the final cost or lack of "legislative" funding exists such that the project is no longer feasible from the standpoint of the City, then the City may terminate the agreement and pay the Construction Manager his David Harden, City Manager Apri15, 2007 Page 3 proportionate fee for preconstruction services plus any cost incurred (see Exhibit "C"). I have copied each of the contracts and relevant pages to give you further information. Generally, it appears the expenses of termination would not be great, except for projects where construction has commenced or in the event the GMP has been established but there have been commitments beyond the design stages. Each project however must be analyzed to give exact costs. SAR:ci cc: Richard Hasko, Director of Environmental Services Weaver, Jo Page 1 of 2: From: Inglese, Cathy Sent: Wednesday, April 04, 2007 11:41 AM To: Weaver, Jo Subject: FW: Consultant Agreement.DOC From: Ruby, Susan Sent: Monday, April 02, 2007 2:59 PM To: Inglese, Cathy Subject: Consultant Agreement.DOC AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES THIS AGREEMENT, made and 20 , by and between hereinafter referred to as "CITY", and referred to as "CONSULTANT". entered into this day o: the CITY of Delray Beach, Florida hereinafter WITNESSETH: WHEREAS, the CITY has provided notice of the desired professiona. services and carried out the proper selection process pursuant to and is accordance with the Consultant's Competitive Negotiation Act; and, WHEREAS, the CITY represents that it is a Florida municipa corporation with the authority to engage the CONSULTANT and accept th~ obligation for payment for the services desired; and, WHEREAS, the CITY desires to engage the CONSULTANT to perform certai: professional services pertinent to such work in accordance with this AGREEMEN' and with SERVICE AUTHORIZATIONS to be issued at the time of or subsequent t execution of this AGREEMENT; and WHEREAS, this AGREEMENT does not entitle the CONSULTANT to any fee for any particular project without first receiving a Service Authorization; and WHEREAS, the CONSULTANT desires to provide such professional service in accordance with this AGREEMENT and SERVICE AUTHORIZATIONS. NOW, THEREFORE, in consideration of the premises and the mutua benefits which will accrue to the parties hereto in carrying out the terms o this AGREEMENT, it is mutually understood and agreed as follows: I. DEFINITIONS; GENERAL CONDITIONS Exhibit A A:\C(3N5ULT.AGT Page 2 of 2` A. THE SCOPE OF WORK is to be implemented in phases as set forth by thi: Agreement and by SERVICE AUTHORIZATIONS, which are attached heretc and made a part hereof, and as also may be added as approved by the City from time to time. B. A SERVICE AUTHORIZATION is a form to be used to authorize work, projects, and services. The form shall be executed by the CITY'S anc CONSULTANT'S representatives. A CITY purchase order number shall bE identified on the form. The purchase order authorization is established in the CITY Code of Ordinances with provisions foz expenditure levels of approval authorizations. A sample form of the service authorization is attached as Exhibit "A" to this AGREEMENT. The projects, work, and services to be performed by the CONSULTANT, and time for completion of the particular phase of the work b} CONSULTANT, shall be authorized by a SERVICE AUTHORIZATION. ThE SERVICE AUTHORIZATION shall include the scope of work to bE performed; the budget cost, complete with an itemization of man- hours, wage rates, reimbursable expenses, and other related costs; schedule for completion and name of project manager. The SERVICE AUTHORIZATION shall be signed by the CITY and the CONSULTANT': authorized representative. A CITY purchase order shall be issuec with authorization identifying funds and amount of expenditures. ThE terms of this AGREEMENT supersede the terms stated on the purchasE order. C. PHASES: A phased approach may be utilized. The City and the Consultant shall have the right to negotiate the terms of each phasE as contained within each service authorization, and to reject and service authorization, if the parties cannot agree to the terms of the service authorization. In the event the parties cannot agree, the city may select the next ranked proposer or go out for additiona] proposals in order to complete the subsequent phase(s) of the project. This phased approach shall not waive the City's right tc terminate the Consultant's contract during any phase of the project. II. GENERAL DUTIES OF CONSULTANT A. The relationship of the CONSULTANT to the CITY will be that of professional CONSULTANT, and the CONSULTANT will provide the professional and technical services required under this AGREEMENT it accordance with acceptable professional practices and ethica] standards. No employer/employee relationships shall be deemed to bE established and the CONSULTANT, its agents, subcontractors, anc employees shall be independent contractors at all times. B. Professional and Technical Services. It shall be the responsibility of the CONSULTANT to work with the CITY and apprise it of solution to problems and the approach or technique to be used toward; accomplish- ment of the CITY'S objectives as set forth in SERVICE A /A /^1AA^7 A:\CONSULT.AGT Page 14 of 2_` company or person, other than a bona fide employee working solely for the CONSULTANT, to solicit or secure this AGREEMENT, and that he hay not paid or agreed to pay any persons, company, corporation, individual or firm, other than a bona fide employee working solely for the CONSULTANT any fee, commission, percentage, gift, or and other consideration, contingent upon or resulting from the award oz making of this AGREEMENT. Q. Termination• This AGREEMENT may be terminated by either party by seven (7} calendar days prior written notice, in the event of substantia] failure to perform in accordance with the terms hereof by the other party through no fault of the terminating party. The CITY shall havE the right to terminate this AGREEMENT for convenience at any time b~ thirty (30) calendar days written notice to the consultant. In the event the project described in any SERVICE AUTHORIZATION, or the services of the CONSULTANT called for under any SERVICE AUTHORIZATION, is or are suspended, canceled, or abandoned by the CITY, the CONSULTANT shall be given five days prior written notice of such action and shall be compensated for the professional service: provided and reimbursable expenses incurred up to the date of suspension, cancellation or abandonment. The CONSULTANT agrees tc provide all documents to the CITY (specifically those referenced it paragraph IX.A. Further, prior to the CONSULTANT'S destruction of any of the above referenced documents, the CITY shall be notified anc allowed a reasonable period to gain access to and make copies of any such documents. Upon any termination of this AGREEMENT, the CONSUL- TANT agrees that it shall use its best efforts to work harmoniously with any successor who enters an AGREEMENT to provide services foi the CITY in order to provide for a smooth transition period. R. Indemnification: n consi era. ion of ten dollars ($10.00) and other valuablE consideration, the CONSULTANT will at all times indemnify, save anc hold harmless and defend the CITY, its officers, agents (the terr agents shall not include the contractor(s), any subcontractors, any materialmen or others who have been retained by the City o~ Contractor, or materialmen to supply goods or services to the project} and employees, from and against all liability, any claim, demand, damage, loss, expense or cause of action and costs (includinc attorney's fees at trial or appellate levels) arising out of error, omission, or negligent act of CONSULTANT, its agents, servants o~ employees in the performance of services under this agreement. ThE CONSULTANT further agrees to indemnify, hold harmless and defend the City,its officers, agents and employees from and against any claim, demand or cause of action arising out of any negligence or misconduct of CONSULTANT for which the City, its agents, servants or employee: are alleged to be liable. The indemnification's contained here ii shall survive the expiration or earlier termination of thi: Agreement. Nothing in this AGREEMENT shall be deemed to affect thf .TABLE OF CONTENTS Weaver, Jo Page 1 of 9l From: Inglese, Cathy Sent: Wednesday, April 04, 2007 11:41 AM To: Weaver, Jo Subject: FW: Standard Form CONSTRUCTION Contract 10-05.doc From: Ruby, Susan Sent: Monday, April 02, 2007 2:54 PM To: Inglese, Cathy Subject: Standard Form CONSTRUCTION Contract 10-05.doc Copy on color printer. Thanks TABLE OF CONTENTS TO SPECIFICATIONS AND CONTRACT DOCUMENTS FOR TITLE City of Delray Beach Project No. gz Bid No.xx ADDENDA ADVERTISEMENT FOR BIDS INSTRUCTIONS TO BIDDERS PROPOSAL (BID FORM) BID BOND AGREEMENT FLORIDA PERFORMANCE BOND FLORIDA PAYMENT BOND CERTIFICATES OF INSURANCE LIMITED POWER OF ATTORNEY NOTICE OF TENTATIVE AWARD NOTICE TO PROCEED CERTIFICATE OF SUBSTANTIAL COMPLETION WARRANTY OF TITLE FINAL RECEIPT -RELEASE OF LIEN GENERAL CONDITIONS TECHNICAL SPECIFICATIONS DIVISION 1 -GENERAL REQUIREMENTS 01010 SUMMARY OF WORK 01020 ALLOWANCE 01025 MEASUREMENT AND PAYMENT 01041 PROJECT COORDINATION 01045 CUTTING AND PATCHING 01050 FIELD ENGINEERS 01090 REFERENCE STANDARDS 01152 APPLICATION FOR PAYMENT 01153 CHANGE ORDER PROCEDURES 01200 PROJECT MEETINGS Exhibit B n in i~nm TABLE.OF CONTENTS of Tentative Award. Page 9 of 9: 16.4. The CITY may conduct such investigations as it deems necessary to assist in the evaluation of any Bid and t~ establish the responsibility qualifications and financial ability of the Bidders, proposed Subcontractors, Supplier: and other persons and organizations to perform and furnish the work in accordance with the Contract Document: to the CITY'S satisfaction within the prescribed time. 16.5. If the contract is to be awarded, the contract will be awarded to the most responsible, responsive Bidder whose evaluation indicates that the award will serve the highest public interest and be in the best interest of the CITY. 16.6. The CITY reserves the right to reduce the quantities of work to be done and to completely eliminate any items c the work listed in the Proposal in order that the work can be completed within the amount of available funds. 16.7. If the contract is to be awarded, the CITY will give the successful Bidder a Notice of Tentative Award within sixfi (60) days after the day of the Bid opening. 16.8. In the event of irregularity in the bidding procedure, the CITY reserves the right to reject an unopened Bid, o receive and record it, if in the CITY'S best judgment such action accrues to the best interest of the CITY. Receiving and recording a Bid does not constitute a waiver of irregularities by the CITY._ 16.9. The CITY shall have the right to reject Bids from Bidders whom the CITY has determined to be Non-Responsible. A Bidder determined to be Non-Responsible shall be prohibited from bidding or receiving Contracts for any futun work for the CITY until the CITY, upon Bidder's application, declares the Bidder once again responsible. 16.10. Upon the CITY'S award of the Contract, the Bidder's failure to execute the Contract within fifteen (15) calends days from the date of the notification of award shall be just cause and the CITY may annul and void the swan and declare forfeiture of the bid security or good faith deposit in liquidation of all damages sustained. 16.11. Within fifteen (15) calendar days of the tentative Award of the Contract, Bidder shall submit to the CITY any Consultant in writing a list of all subcontractors, principal suppliers and fabricators, persons or entities propose for the principal portions of the Work. 16.12. Upon execution of the Contract by the CITY and the successful Bidder, submittal of the required performance any payment bonds, certificates of insurance, and receipt and approval of the required post-bid information, the CIT` will issue the Notice to Proceed. 17. Contract Security and Insurance. Article 6 of the General Conditions sets forth the CITY'S requirements as to performance and payment Bonds. When the successful Bidder delivers the executed Agreement to the CITY, it must be accompanied by the required performance any payment Bonds and required insurance certificates and policies if applicable. The surety on such bonds shall be a dul authorized Nationally recognized surety company satisfactory to the CITY. Such bond shall be executed and issued by ; resident agent licensed and having an officer in Palm Beach, Dade, Broward or Martin County, Florida, representing sucl corporate surety. Attorney-in-fact who signs bonds must file with such bond a certified copy of their Power-of-Attorney t. sign said bonds. All bonds and insurance must meet the requirements of Article 6 of the General Conditions. 18. Signing of Agreement. When CITY gives a Notice of Tentative Award to a successful Bidder, it will be accompanied by the required number c unsigned counterparts of the Agreement with all other written Contract Documents attached. Within fifteen days there after, Contractor shall sign and deliver the required number of counterparts of the Agreement and attached documents t~ CITY with the required bonds and insurance certificates. Within thirty days thereafter, the CITY upon final award by the City Commission shall deliver one fully signed counterpart to CONTRACTOR. Each counterpart is to be accompanied b' a complete set of the Drawings with appropriate identification. 19. Qualification of Surety. See paragraph 6.1 of the General Conditions for the CITY'S requirements. 20. ~nrentices. In the event this Contract is in excess of $25,000.00, the apprentice employment requirements of Chapter 446.011(3; a~ai~nm TABLE ~OF CONTENTS Contractor's Continuing Obligation GC-41 16. SUSPENSION OF WORK AND TERMINATION GC-42 City May Suspend Work GC-42 City May Terminate GC-42 Contractor May Stop Work or Terminate GC-43 17. MISCELLANEOUS GC-44 Giving Notice GC-44 Computation of Time GC-44 No Limitation of Rights and Remedies GC-44 Accident and Prevention GC-44 Florida Products and Labor GC-45 Employees GC-45 Non-Discrimination GC-45 Drug-Free Workplace GC-45 Assignment GC-45 Venue GC-45 Asbestos GC-45 Right to Audit GC-46 Page 53 of 9: aiai~nm TABLE.OF CONTENTS DELIVERY OF DOCUMENTS: Page 57 of 9: 3.1. When the CONTRACTOR delivers the signed Agreements to the CITY, the CONTRACTOR shall also deliver to the CITI such Bonds and Insurance Policies, Certificates or other documents as the CONTRACTOR may be required to furnish it accordance with the Contract Documents. COPIES OF DOCUMENTS: 3.2. The CITY shall furnish to CONTRACTOR five copies (unless otherwise specified in the Supplementary Conditions) of the Contract Documents or as are reasonably necessary for the execution of the Work. Additional copies will be furnished, upor request, at the cost of reproduction. COMMENCEMENT OF CONTRACT TIME; NOTICE TO PROCEED: 3.3. The Contract Time will commence to run on the day indicated in any Notice to Proceed. A Notice to Proceed may bE given at any time within sixty days after the Effective Date of the Agreement. STARTING THE PROJECT: 3.4. CONTRACTOR shall start to perform the Work on the date when the Contract Time commences to run, but no Work shal be done at the site prior to the date on which the Contract time commences to run. BEFORE STARTING CONSTRUCTION: 3.5. Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Contract Document: and check and verify pertinent figures shown thereon and all applicable field measurements. CONTRACTOR shall promptly report in writing to CONSULTANT any conflict, error, ambiguity or discrepancy which CONTRACTOR may discover and shat obtain a written interpretation or clarification from CONSULTANT before proceeding with any Work affected thereby CONTRACTOR shall have a continuing obligation to promptly report any conflicts, errors, ambiguities or discrepancies in the Contract Documents to the CONSULTANT over the duration of the Project. 3.5.1 The CONTRACTOR and Subcontractor have fully examined and compared all Drawings, Specifications and othe Contract Documents and have compared and reviewed all general and specific details on the Drawings and the various technics and administrative requirements of the Specifications. 3.5.2 With respect to all construction materials, labor, methods, means, techniques and sequence of procedure: required to carry out the Work or safety precautions and programs required in connection with carrying out the Work, all conflicts discrepancies, errors and omissions that CONTRACTOR is aware of as a result of the examination and comparison of the Contract Documents have been either corrected or clarified to the satisfaction of the CONTRACTOR prior to execution of thi; Construction Contract. 3.5.3 The Contract Sum is reasonable compensation and represents the total lump sum cost for the Work and that al systems and Work shall be functional and in accordance with the requirements of the Contract Documents. 3.5.4 The Contract Time is adequate for the performance of the Work. 3.5.5 The CONTRACTOR is responsible for all means, methods, techniques and sequencing of construction. 3.5.6 If, after execution of this Construction Contract, the CONTRACTOR detects a conflict, discrepancy, error o omission in the Contract Documents then it shall immediately notify CONSULTANT and CITY prior to proceeding with the specific potion of the Work. 3.5.7 CONTRACTOR shall have a continuing duty to read, examine, review, compare and contrast each of thE documents which make up this Contract and shall immediately give written notice to the CITY and CONSULTANT of any conflict ambiguity, error or omission which the CONTRACTOR may find with respect to these documents before proceeding with the affected Work. aiai~nm TABLE OF CONTENTS ARTICLE 11 -CHANGES IN THE WORK Page 76 of 91 11.1 A "Change Order° is defined, for purposes of the Contract Documents, as a written order to the CONTRACTOR executes by the CITY and the CONSULTANT after execution of the Contract, directing a change in the Work and may include a change it the Contract Price or the time for the CONTRACTOR'S performance, or any combination thereof. 11.2 Without invalidating the Agreement and without notice to any surety, the CITY may, at any time or from time to time, order additions, deletions or revisions in the Work; these will be authorized by a Written Amendment, a Change Order, or a World Directive Change. Upon receipt of any such document, CONTRACTOR shall promptly proceed with the Work involved which wil be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). If the CITY and CONTRACTOR are unable to agree as to the extent, if any, of an increase or decrease in the Contract Price or ar extension or shortening of the Contract Time that should be allowed as a result of a Work Directive Change, a claim may be made therefore as provided in Article 12 or Article 13. 11.3. CONTRACTOR shall not be entitled to an increase in the Contract Price or an extension of the Contract Time with respes to any Work performed that is not required by the Contract Documents as amended, modified and supplemented as provided it paragraphs 4.4 and 4.5, except in the case of an emergency as provided in paragraph 7.21 and except in the case of uncoverinc Work as provided in paragraph 14.9. 11.4. The CITY and CONTRACTOR shall execute appropriate Change Orders (or Written Amendments) covering: 11.4.1. Changes in the work which are ordered by the CITY pursuant to paragraph 11.2, are required because o' acceptance of defective Work under paragraph 14.13 or correcting defective Work under paragraph 14.14, or are agreed to by the parties. 11.4.2. Changes in the Contract Price or Contract time which are agreed to by the parties 11.4.3. Changes in the Contract Price or Contract Time which embody the substance of any written decision rendered b~ CONSULTANT pursuant to paragraph 10.11; provided that, in lieu of executing any such Change Order, an appeal may be taker From any such decision in accordance with the provision of the Contract Documents and applicable Laws and Regulations, bu~ during any such appeal, CONTRACTOR shall carry on the Work and adhere to the progress schedule as provided in paragrapF 7.27. 11.4.4. Execution of a Change Order by the CONTRACTOR constitutes conclusive evidence of the CONTRACTOR'S agreement to the ordered changes in the Work and the change in the Contract Price and the time for performance by the CONTRACTOR. The CONTRACTOR, by executing the Change Order, waives and forever releases any claim against the CITI~ For additional time or compensation for issues or matters relating to or arising out of or resulting from the Work included within of affected by the executed Change Order. 11.4.5. All Change Orders and adjustments shall be in writing and executed by the CONTRACTOR and CITY; otherwise no claim for additional compensation or time will be permitted. 11.4.6. All Change Orders in which the CONTRACTOR seeks additional time must include a Time Impact Analysis whist includes an analysis of how the change shall be incorporated into the construction schedule; the status of construction at that time and the start/finish dates of all affected activities utilizing the dates included in the latest construction schedule. Where the CONTRACTOR fails to append a Time Impact Analysis to the Change Order, it agrees that the delay has no affect on Contras Time. 11.5. It is distinctly agreed and understood that any changes made in the Contract Documents for this Work (whether sucf changes increase or decrease the amount thereof) or any change in the manner or time of payments or time of performance made by the CITY to the CONTRACTOR shall in no way annul, release or affect the liability and surety on the Bonds given by the CONTRACTOR. If notice of any change affecting the general scope of the Work or the provisions of the Contract Document: (including, but not limited to, Contract Price or contract Time) is required by the provisions of any bond to be given to a surety, the giving of any such notice will be CONTRACTOR'S responsibility, and the amount of each applicable Bond will be adjustec accordingly. 11.6. Notwithstanding, anything to the contrary contained within the contract documents, all change orders involving additiona cost or extensions of time, shall be governed by the ordinances of the City of Delray Beach. ARTICLE 12 -CHANGE OF CONTRACT PRICE aiai~nm TABLE.OF CONTENTS Page 77 of 9: 12.1. The Contract Price constitutes the total compensation (subject to authorized adjustments) payable to CONTRACTOR fo performing the Work. All duties, responsibilities and obligations assigned to or undertaken by CONTRACTOR shall be at hi: expense without change in the Contract Price. 12.2. The Contract Price may only be changed by a Change Order or by a Written Amendment. Although the CONTRACTOF acknowledges the "no damages for delay" provision set forth in Article 9 of the Contract Agreement, should it be entitled to am claim for additional compensation under any circumstances, any claim for an increase or decrease in the Contract Price shall bE based on written notice delivered by the party making the claim to the other party and to CONSULTANT promptly (but in no even later than ten (10) days} after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice of the amount of the claim with supporting data shall be delivered within thirty (30) days after such occurrence (unless CONSULTANT allows an additional period of time to ascertain more accurate data in support of the claim) and shall bE accompanied by claimant's written statement that the amount claimed covers all known amounts (direct, indirect anc consequential) to which the claimant is entitled as a result of the occurrence of said event. All claims for adjustment in the Contract Price shall be determined solely by CONSULTANT in accordance with paragraph 10.11 if the CITY and CONTRACTOF cannot otherwise agree on the amount involved. No claim for an adjustment in the Contract Price will be valid if not submitted it accordance with this paragraph 12.2. Failure by the CONTRACTOR to strictly comply with such notice requirements shat constitute a complete waiver by the CONTRACTOR of any claim for additional compensation. Furthermore, should the CONTRACTOR be entitled to an increase in the Contract Sum, it shall be strictly limited to the direct cost of labor and material: incurred by the CONTRACTOR at the jobsite and shall in no event include indirect costs, overhead, lost profits or consequentia damages incurred by the Contractor. Furthermore, the CITY shall not be liable to the CONTRACTOR for claims of third parties including, but not limited to, subcontractors, suppliers, laborers, etc. 12.3. The value of any Work covered by a Change Order or of any claim for an increase or decrease in the Contract Price shal be determined in one of the following ways: 12.3.1. Where the Work involved is covered by unit prices contained in the Contract Documents, by application of uni prices to the quantities of the items involved (subject to the provisions of paragraphs 12.9.1. and 12.9.2.). 12.3.2. By mutual acceptance of a lump sum (which shall include an allowance for overhead and profit in accordance with paragraph 12.6.2.1). 12.3.3. On the basis of the Cost of the Work (determined as provided in paragraphs 12.4 and 12.5) plus CONTRACTOR'S Fee for overhead and profit (determined as provided in paragraphs 12.6 and 12.7). COST OF THE WORK: 12.4. The term Cost of the Work means the sum of all costs necessary incurred and paid by CONTRACTOR in the grope performance of the Work. Except as otherwise may be agreed to in writing by the CITY, such costs shall be in amounts no highe than those prevailing in the locality of the Project, shall include only the following items and shall not include any of the cost: itemized in paragraph 12.5: 12.4.1. Payroll costs for employees in the direct employ of CONTRACTOR in the performance of the Work unde schedules of job classification agreed upon by the CITY and CONTRACTOR. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall include, but not be limited to salaries and wages plus the cost of fringe benefits which shall include social security contributions, unemployment, excise anc payroll taxes, workers' or workmen's compensation, health and retirement benefits, sick leave, vacation and holiday pad applicable thereto. Such employees shall include superintendents and foremen at the site. The expenses of performing WorE after regular working hours, on Saturday, Sunday or legal holidays, shall be included in the above to the extent authorized by the CITY. 12.4.2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation anc storage thereof, and Suppliers' field services required in connection therewith. All cash discounts shall accrue to CONTRACTOF unless the CITY deposits funds with CONTRACTOR with which to make payments, in which case the cash discounts shall accrue to the CITY. All trade discounts, rebates and refunds and all returns from sale of surplus materials and equipment shall accrue tc the CITY, and CONTRACTOR shall make provisions so that they may be obtained. 12.4.3. Payments made by CONTRACTOR to the Subcontractors for Work performed by Subcontractors. If required b~ the CITY, CONTRACTOR shall obtain competitive bids from Subcontractors acceptable to CONTRACTOR and shall deliver suet bids to the CITY who will then determine, with the advice of the CONSULTANT, which bids will be accepted. If a subcontrac 4/4/2007 TABLE.OF CONTENTS Page 78 of 9l provides that the Subcontractor is to be paid on the basis of Cost of the Work Plus a Fee, the Subcontractor's Cost of the Work shall be determined in the same manner as CONTRACTOR'S Cost of Work. All subcontracts shall be subject to the othe provisions of the Contract Documents insofar as applicable. 12.4.4. Supplemental costs include the following: 12.4.4.1. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery appliances, office and temporary facilities at the site and tools not owned by the workers, which are consumed in the performance of Work, and cost less market value of such items used but not consumed which remain the property o CONTRACTOR. 12.4.4.2. Rentals of all construction equipment and machinery and the parts thereof whether rented fron CONTRACTOR or others in accordance with rental agreements approved by the CITY with the advice of CONSULTANT and the costs of transportation, loading, unloading, installation, dismantling and removal thereof--all in accordance witt terms of said rental agreements. The rental of any such equipment, machinery or parts shall cease when the use thereo is no longer necessary for the Work. For special equipment and machinery such as power driven pumps, concrete mixers, trucks, front end loaders, backhoes, and tractors, or other equipment, required for the economical performance o the authorized Work, the CONTRACTOR shall receive payment based on the weekly rate divided by 40 to arrive at ar hourly cost. The weekly rate shall be from the latest edition of the Rental Rate blue book for Construction Equipment published by Equipment Guide Book Co., reduced by 25 percent. Equipment cost shall be calculated based upon the actual time the equipment is used in the Work. If said Work required the use of machinery not on the Work or not to be used on the Work, the cost of transportation, not exceeding a distance of one hundred (100) miles, of such machinery tc and from the Work shall be added to the fair rental rate; provided, however, that this shall not apply to machinery of equipment already required to be furnished under the terms of the Contract. 12.4.4.3. Sales, consumer, use or similar taxes related to the work and for which CONTRACTOR is liable imposed by laws and regulations. 12.4.4.4. Royalty payments and fees for permits and licenses. 12.4.4.5. The site costs of utilities, fuel and sanitary facilities. 12.4.4.6. Cost of premiums for additional bonds and insurance required because of changes in the Work. 12.5. The term Cost of the Work shall not include any of the following: 12.5.1. Payroll costs and other compensation of CONTRACTOR'S officers, executives, principals (of partnership anc sole proprietorships), general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing anc contracting agents, expediters, timekeepers, clerks and other personnel employed by CONTRACTOR whether at the site or it CONTRACTOR'S principal or a branch office for general administration of the Work and not specifically included in the agreec upon schedule of job classifications referred to in paragraph 11.4.1, which are to be considered administrative costs covered by the CONTRACTOR'S Fee. 12.5.2. Expenses of CONTRACTOR'S principal and branch offices other than CONTRACTOR'S office at the site CONTRACTOR expressly agrees that Home Office Overhead is not included within the costs of the work. 12.5.3. Any part of CONTRACTOR'S capital expenses, including interest on CONTRACTOR'S capital employed for the Work and charges against CONTRACTOR for delinquent payments. 12.5.4. Cost of premiums for all Bonds and for all Insurance whether or not CONTRACTOR is required by the Contrac' Documents to purchase and maintain the same (except for the cost of premiums covered by subparagraph 12.4.4.6 above). 12.5.5. Costs due to the negligence or intentional acts of the CONTRACTOR, any Subcontractor, or anyone whose act: any of them may be liable, including but not limited to, the correction of defective Work, disposal of materials or equipmen' wrongly supplied and making good any damage to property. 12.5.6. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly 4/4/2007 TABLE• OF CONTENTS included in paragraph 12.4. CONTRACTOR'S FEE: Page 79 of 9 12.6. The CONTRACTOR'S Fee allowed to GONTRACTOR for overhead and profits shall be determined as follows: 12.6.1. A mutually acceptable fixed fee; or if none can be agreed upon, 12.6.2. A fee based on the following percentages of the various portions of the Cost of the Work: 12.6.2.1. The cost allowance for overhead and profit shall not exceed fifteen percent (15%) of the nee cost. If the Work is done by a Subcontractor, he may add ten percent (10%) of his net cost for overhead and profit am the Contractor may add five percent (5%) of the net cost for overhead and profit. If all the Work is done by the Contractor he may add fifteen percent (15%) of the net cost for overhead and profit. 12.6.2.2. No fee shall be payable on the basis of costs itemized under paragraphs 12.4.4 and 12.5; 12.6.2.3. The amount of credit to be allowed by CONTRACTOR to the CITY for any such change whic results in a net decrease in cost will be the amount of the actual net decrease plus a deduction in CONTRACTOR'S Fe by an amount equal to ten percent of the net decrease; and 12.6.2.4. When both additions and credits are involved in any one change, the adjustment i CONTRACTOR'S Fee shall be computed on the basis of the net change in accordance with paragraphs 12.6.2.1 throng 11.6.2.3, inclusive. 12.7. Whenever the cost of any Work is to be determined pursuant to paragraph 12.4 or 12.5, CONTRACTOR will submit in forr acceptable to CONSULTANT an itemized cost breakdown together with supporting data. CASH ALLOWANCES: 12.8. It is understood that CONTRACTOR has included in the Contract Price all allowances so named in the Contract Document and shall cause the Work so covered to be done by such Subcontractors or Suppliers and for such sums within the limit of th~ allowances as may be acceptable to the CONSULTANT, CONTRACTOR agrees that: 12.8.1. The allowances include the cost to CONTRACTOR (less any applicable trade discounts) of materials an equipment required by the allowances to be delivered at the site, and all applicable taxes; and 12.8.2. CONTRACTOR'S costs for unloading and handling on the site, labor, installation costs, overhead, profit an other expenses contemplated for the allowances have been included in the Contract Price and not in the allowances. No deman For additional payment on account of any thereof will be valid. Prior to final payment, an appropriate Change order will be issued as recommended by CONSULTANT to reflect actual amount due CONTRACTOR on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. UNIT PRICE WORK: 12.9 12.9.1. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially th Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the established unit prices for eac separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. Th estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of. comparison of Bids an determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed b CONTRACTOR will be made by CONSULTANT in accordance with Paragraph 10.10. 12.9.2. Each unit price will be deemed to include an amount considered by CONTRACTOR to be adequate t cover CONTRACTOR'S overhead and profit for each separately identified item. e.idi~nm TABLE •OF CONTENTS OMITTED WORK: Page 80 of 9 ] 12.10. The City may at any time, by written order, without Notice to the Sureties, require omission of such contract work as it mad find necessary or desirable. An order for omission of work shall be valid only by an executable change order. All work so orderer must be omitted by the CONTRACTOR. The amount by which the contract price shall be reduced shall be determined as follows: 12.10.1. By such applicable unit prices, or rates for work of a similar nature or character as set forth in the contract; or, 12.10.2. By the appropriate lump sum price set forth in the Contract; or, 12.10.3. By the reasonable and fair estimated cost of such omitted work as determined by the CONTRACTOR and the CONSULTANT, and approved by the CITY. ARTICLE 13 -TIME AND DELAYS 13.1 All time in the Contract Documents is calculated on a consecutive calendar day basis. 13.2 Time is of the essence in this Contract, and any breach of same shall go to the essence hereof, and CONTRACTOR, it agreeing to complete the Work within the time herein mentioned, has taken -into consideration and made allowances for al reasonable hindrances and delays incident to his work 13.3 CONTRACTOR agrees to commence the Work when directed by Owner and to diligently and continuously perform sucF Work and to coordinate the Work with other Work being performed on the Project by other trades so that the Owner shall not be delayed by any act or omission of CONTRACTOR in completion of the Project within the time specified above. 13.4 CONTRACTOR shall make payments promptly to its vendors, subcontractors, suppliers and for labor, material anc equipment used by it in the performance of his work. 13.5 The CONTRACTOR shall not be entitled to any claim for damages on account of hindrance or delays from any cause whatsoever; but if caused by any act of God or active interference on the part of the Owner, such act, hindrance, or delay mad only entitle the CONTRACTOR to receive an extension of time as its sole and exclusive remedy. 13.6 Adverse weather such as rain is not to be considered to be an Act of God unless it exceeds the ten (10) year average a: published by the National Weather Service (or equivalent organization acceptable to the Owner at its sole discretion) for that time of year in Palm Beach County. 13.7 An extension of time to complete the Work shall be determined by the Owner provided that the CONTRACTOR provide: the Owner with notice in writing of the cause of said act, hindrance or delay within twenty (20) days after its occurrence. 13.8 In the event the request for extension is not made in writing within that twenty (20) day time period, CONTRACTOF acknowledges and agrees it has forever waived any and all rights to such an extension. 13.9 All extensions of time shall be authorized only by a written change order executed by the Owner and Project Consultant. 13.10 This "no damage for delay" clause, also set forth in Article 9 of the Contract Agreement, will encompass any damages fo delay or disruption even if the CONTRACTOR completes construction of the Work in a timely fashion in accordance with thi: Contract. 13.11 Damages as referenced in this "no damage for delay" shall include any type of damages that are or could be awarded by any court or arbitration panel such as, by way of general example, but not limitation, tort, contract, strict liability, consequentia damages, liquidated damages and/or punitive damages. 13.12 By way of specific example but not limitation, damages as referenced within this clause includes loss of use, loss o profits, labor inefficiency, loss of bonding capacity, overhead and repair costs, costs of capital replacement, loss of wages, pair and suffering, loss of production costs to replace facilities, equipment and/or product loss, increased and/or extended home office TABLE'OF CONTENTS Page 88 of 91 Code), as now or hereafter in effect, or if CONTRACTOR takes any equivalent or similar action by filing a petition or otherwise under any other federal or state law in effect at such timing relating to the bankruptcy or i ARTICLE 16 -SUSPENSION OF WORK AND TERMINATION CITY MAY SUSPEND WORK: 16.1. The CITY may, at any time and without cause, suspend the Work or any portion thereof for a period of not more than ninety days by notice in writing to CONTRACTOR and CONSULTANT which will fix the date on which Work will be resumed. CONTRACTOR shall resume the Work on the date so fixed. In the event of a suspension of the Work, CONTRACTOR i~ expressly limited to seeking an extension of time in accordance with Article 13 of the Contract General Conditions and is expressly precluded from seeking any additional compensation in such circumstance. CITY MAY TERMINATE nsolvency; 16.2.2. If a petition is filed against CONTRACTOR under any chapter of the Bankruptcy Code as now or hereafter it effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief against CONTRACTOR under any other federal or state law in effect at the time relating to bankruptcy or insolvency; 16.2.3. If CONTRACTOR makes a general assignment for the benefit of creditors; 16.2.4. If a trustee, receiver, custodian or agent of CONTRACTOR is appointed under applicable law or under contract, whose appointment or authority to take charge of property of CONTRACTOR is for the purpose of enforcing a Lien against such property or for the purpose of general administration of such property for the benefit of CONTRACTOR'S creditors; 16.2.5. If CONTRACTOR admits in writing an inability to pay its debts generally as they become due; 16.2.6. If CONTRACTOR fails to perform the Work in accordance with the Contract Documents (including, but not limitec to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the progress schedule established under paragraph 3.9 as revised from time to time); 16.2.7. If CONTRACTOR disregards Laws or Regulations of any public body having jurisdiction; 16.2.8. If CONTRACTOR disregards the authority of CONSULTANT; or 16.2.9. If CONTRACTOR otherwise violates any provisions of .the Contract Documents; the CITY may, after givinc CONTRACTOR and Surety seven days written notice of any default and to the extent permitted by Laws and Regulations. terminate the services of CONTRACTOR, exclude CONTRACTOR from the site and take possession of the Work and of al CONTRACTOR'S tools, appliances, construction equipment and machinery at the site and use the same to the full extent they could be used by CONTRACTOR (without liability to CONTRACTOR for trespass or conversion), incorporate in the Work al materials and equipment stored at the site or for which the CITY has paid CONTRACTOR but which are stored elsewhere, anc finish the Work as the CITY may deem expedient. In such case CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds the expense of completing the worN including compensation for additional managerial and administrative services, plus the CITY'S direct, indirect and consequentia losses, damages and costs because of the CONTRACTOR'S default (including but not limited to fees and charges of engineers architects, attorneys, and other professionals and court costs) such excess will be paid to CONTRACTOR. If such expenses anc costs plus the CITY'S losses and damages exceed such unpaid balance, CONTRACTOR shall pay the difference to the CITY promptly on demand. Such costs incurred by the CITY will be approved as to reasonableness by CONSULTANT anc incorporated in a Change Order, but when exercising any rights or remedies under this paragraph the CITY shall not be requirec to obtain the lowest price for the work performed. In addition, failure of the CITY to comply with the seven days' notice provisior to the surety does not render the termination improper, render the termination one for convenience or in any way release surety from liability under its performance bond. 16.3. Where CONTRACTOR'S services have been so terminated by the CITY, the termination will not affect any rights of remedies of the CITY against CONTRACTOR then existing or which may thereafter accrue. Any retention or payment of money: due CONTRACTOR by the CITY will not release CONTRACTOR from liability. TABLE OF CONTENTS Page 89 of 9l 16.4. The CITY may terminate this Contract without cause by giving seven (7) days prior written notice to the Contractor, and it such event, the CITY will pay the CONTRACTOR for that portion of the Contract Sum, less the aggregate of previous payments allocable to the Work completed as of the Date of Termination, plus reasonable termination expenses. The CITY also wil reimburse the CONTRACTOR for all costs necessarily incurred for organizing and carrying out the stoppage of the Work and pair directly by the CONTRACTOR, not including overhead, general expenses or profit. The CITY will not be responsible to reimburse the CONTRACTOR for any continuing contractual commitments to subcontractors or material men or for penalties or damages fo canceling such contractual commitments, (with the exception that the CITY shall reimburse the CONTRACTOR for majo materials or equipment purchased before termination if the CONTRACTOR can show proof of said purchases prior to notice o termination} inasmuch as the CONTRACTOR shall make all subcontracts and other commitments subject to this provision. In the event of termination by the CITY, the CITY may require the CONTRACTOR promptly to assign to it all or some subcontracts construction, plant, materials, tools, equipment, appliances, rental agreements, and other commitments which the CITY, in its sole discretion, chooses to take by assignment, and in such event the CONTRACTOR shall promptly execute and deliver to the CITti written assignments of the same. CONTRACTOR MAY STOP WORK OR TERMINATE: 16.5. If, through no act or fault of CONTRACTOR, the Work is suspended for a period of more than ninety (90) days by the CITI or under an order of court or other public authority, or CONSULTANT fails to act on any Application for Payment within thirty (30 days after it is submitted, or the CITY fails for sixty (60) days to pay CONTRACTOR any sum finally determined to be due, they CONTRACTOR may, upon seven (7) days written notice to the CITY and CONSULTANT, terminate the Agreement and the CITI will pay the CONTRACTOR for that portion of the Contract Sum, less the aggregate of previous payments, allocable to the wort completed as of the Date of Termination plus reasonable termination expenses. The CITY will not be responsible to reimburse the CONTRACTOR for any continuing contractual commitments for canceling such contractual commitments inasmuch as the CONTRACTOR shall make all subcontracts and other commitments subject to this provision. The CITY may require the CONTRACTOR promptly to assign to it all or some subcontracts, construction, plant, materials, tools, equipment, appliances rental agreements, and any other commitments which the CITY, in its sole discretion, chooses to take by assignment, and in suct event the CONTRACTOR shall promptly execute and deliver to the CITY written assignments of the same. In addition and in lien of terminating the Agreement, if CONSULTANT has failed to act on an Application for Payment or the CITY has failed to make am payment as aforesaid, CONTRACTOR may upon seven days written notice to the CITY and CONSULTANT stop the Work unti payment of all amounts then due. The provisions of this paragraph shall not relieve CONTRACTOR of the obligations unde paragraph 7.27 to carry on the Work in accordance with the progress schedule and without delay during disputes anc disagreements with the CITY. ARTICLE 17 -MISCELLANEOUS GIVING NOTICE: 17.1. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have bees validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the give of the notice. COMPUTATION OF TIME: 17.2. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first any include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a leggy holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. NO LIMITATION OF RIGHTS AND REMEDIES: 17.3. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to th~ parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon CONTRACTOf by paragraphs 7.28, 14.1, 14.12, 14.14, 15.3 and 16.2 and all of the rights and remedies available to the CITY and CONSULTAN" thereunder, are in addition to ,and are not to be construed in any way as a limitation of, any rights and remedies available to an' or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee or by othe Pale 1 of 8S Inglese, Cathy From: Ruby, Susan Sent: Monday, April 02, 2007 2:13 PM To: Inglese, Cathy Subject: CM at Risk Standard Contract.doc Please print on colord printer for me thanks CONSTRUCTION MANAGER AT RISK SERVICES THIS CONTRACT, made and entered into ,between the CITY OF DELRAY BEACH, a Florida municipal corporation, hereinafter referred to as "Owner" anc hereinafter referred to as the "Construction Manager". WITNESSETH: That the said Construction Manager having been awarded the contract for the: PROJECT NAME: PROJECT NO. hereinafter referred to as "Project" and in accordance with the Construction Manager's Proposal therefore and for and in consideration of the promises and of the covenants and agreements, and of the payment: herein specified, to be made and performed by the Construction Manager and the Owner, the Constructior Manager hereby covenants and agrees to and with the Owner to undertake and execute all of the saic named work, in a good, substantial and workmanlike manner, and to famish and pay #or al! materials, labor. supervision, equipment, supplies, fees, expertise, and services necessary to fully complete all work it accordance with all requirements of the Contract Documents and in accordance with all applicable code: and governing regulations ARTICLE 1 -The Construction Team and Extent of Agreement 1.1 The Construction Manager agrees to famish its best skill and judgment and to cooperate with the Architect/Engineer in furthering the interests of the Owner. The Construction Manager agrees to fumist efficient business administration and superintendence and to use its best efforts to complete the Project it an expeditious and economical manner consistent with the interests of the Owner. 1.2 The Construction Team: The Construction Manager, the Owner, and the Architect/Engineer (the "Construction Team") will cooperate together through construction completion. The Construction Manages shall provide leadership to the Construction Team on a!I matters relating to construction. The ArchitectJEngineer will provide leadership to the Construction Team on all matters relating to design. Nothing herein is intended to make the Owner liable for the acts or deeds of the Construction Manager. 1.3 Extent of Agreement: This Agreement is complementary to the Conditions of the Contract, anc together with them, represents the entire agreement between the Owner and the Construction Manager anc supersedes all prior negotiations, representations or agreements. What is called for by any one shall be a: binding as if called for by all. Where this Agreement is expressly in conflict with the Conditions of the Contract, the most stringent requirement to the Construction Manager shall control. Where this Agreement is silent, the Condeions of the Contract, and the requirements of the Drawings and Spec cations (to be 4/2!2007 Exhibit C Page 4 of 85 -thre Owner immediately, prior to developing the GMP. All assumptions made by the Construction Manages in the development of the GMP shall be specifically listed in the GMP proposals, and the GMP will not be adjusted due to assumptions made by the Construction Manager, but not included in the GMP Proposal, !/ 2.1.13.1 If the GMP Proposal is accepted, in writing, by the Owner, it will become an Amendment to thi: Agreement which will establish the GMP, Contract Time, and liquidated damages for that phase of the Work. A Construction Bond and Form of Guarantee on the Owner's standard forms and Builder's RisN Insurance Policy shall be provided by the Construction Manager simultaneously with the GMP Amendment. Also, items 14.14 -14.16 shall be provided with this Amendment. 2.1.13.2 If the GMP proposal is not accepted by the Owner, the Owner shall so notify the Con tsivctior Manager in writing. The Construction Manager shall then recommend adjustments to the Work through value engineering. The Construction Team and Owner will discuss and negotiate these recommendations for no mare than 14 calendar days, unless an extension is granted in writing by the Owner. If an acceptable GMP is not developed, negotiations may be terminated, and the Owner may initiate negotiations with another Construction Manager or separately bid the project. 2.1.14 The Construction Manager's personnel to be assigned during the Preconstruction phase and their duties to this project shall be as set forth in the Request for Proposal. 2.1.15 The above named services connected to the Preconstruction Phase shall not exceed the amount sei forth in Exhibit 2.1.46. 2.2 Construction Phase. Unless otherwise authorized by the Owner, all Work shall be performed under Trade Contracts held by the Construction Manager. The Construction Manager shall not bid on any of the Trade Contractor Work or perform such Work with its own forces without the' prior written consent of the Owner. The Construction Manager shall: 2.2.1 Administer the construction phase as provided herein and in the Conditions of the Contract, which include the following: General Conditions, and Special Conditions, and bear full responsibility for any and all acts or omissions of those engaged in the Work on behalf of the Construction Manager. 2.2.2 Commence the Work within 10 days after receipt of the executed Guaranteed Maximum Price Amendment and Notice to Proceed from the Owner. 2.2.3 Promptly award and execute Trade Contracts with approved Trade Contractors. Provide copies of fully executed Trade Contracts, insurance certificates and, if required, bonds to the Owner. 2.2.4 Manage, schedule and coordinate the Work, including the Work of the Trade Contractors, and coordinate the Work with the activities and responsibilities of the Owner, ArchitectlEngineer and Construction Manager in order to complete the Project in accordance with the Owner's objectives of cost, time and quality. Develop and maintain a program, acceptable to the Owner and ArchitectlEngineer, to assure quality control of the construction. Supervise the Work of all Trade Contractors so that the wank conforms to the requirements of the plans and specifications. Provide instructions to each Trade Contractor when its Work does not conform to the requirements of the plans and specifications so that the work conforms to the requirements of the plans and specifications, and continue to manage each subcontractor to ensure that corrections are made in a timely manner so as to not affect the progress of the Work. Should disagreement occur between the Construction Manager and the ArchitectlEngineer over acceptability of Work and conformance with the requirements of the specifications and plans, the Owner shall be the final judge of performance and acceptability. 2.2.5 Maintain exclusively for this Project a competent full-time staff at the Project site to coordinate and direct the Work and progress of the Trade Contractors on the Project. The Construction Manager shall 4/2/2007 Page 9 of 89 6.fi Adjustments to the GMP will be made as described in the Conditions of the Contract. ARTICLE 7 - Payments to Construction Manager 7.1 In consideration of the performance of the Contract, the Owner agrees to pay the Construction Manager, as compensation for its services an amount as set forth below: 7.1.1 For preconstruction services, the total sum amount to be paid in the amounts specified at the satisfactory completion of the following phases 100°rb Schematic Design 100°~ Design Development 50% Const. Docs. 100°~ Const. Does. 7.1.1.1 Upon receipt of the Notice to Proceed, the Construction Manager shall begin providing the indemnification described in the Conditions of the Contract, as part of the fee established for the first phase of preconstruction services. 7.1.2 Upon acceptance of the GMP, the amount established in the GMP Amendment to this Agreement, which includes the Construction Manager's fee as described in Paragraph 7.2 and the Cost of the Work as described in Article 8, to be paid monthly as described in the General Conditions of the Contract. 7.1.2.1 As required by Section 287.0585, F.S., within seven working days from receipt of payment from the Owner, the Construction Manager shall pay each Trade Contractor out of the amount paid to the Construction Manager on account of such Trade Contractor's Work, the amount to which said Trade Contractor is entitled reflecting the percentage actually retained, if any, from payments to the Construction Manager on account of said Trade Contractor's Work. The Construction Manager shall, by appropriate agreement with each Trade Contractor, require each Trade Contractor to make payments to its subcontractors in a similar manner. 7.1.3 Pay requests for preconstruction services and for construction shall be documented in accordance with the General Conditions. 7.2 Construction Manager's Fee during the Construction Phase includes the following: 7.2.1 The cost of its home or branch office employees or consultants not at the Project site, including the cost ofi all benefits, insurance, and taxes attributable to wages and salaries and other company overhead expenses for said home office employees. 7.2.2 The cost of its field employees identified in Subparagraph 2.2.5 herein, or their approved replacements, including the cost of all benefits, insurance, and taxes attributable to wages and salaries for said field employees. 7.2.3 General operating expenses of the Construction Manager's principal and branch offices other than the field office. 7.2.4 Any part of the Construction Manager's. capital expenses, including interest on the Construction Manager's capital employed for the Work. 7.2.5 Overhead and profit, or general expenses of any kind, except as may be expressly included in Article 8, herein, as Cost of the Work. 4/2/2407 Fage 12 of 89 8.2.18 Rental charges of all necessary machinery and equipment, including hand tools used in the performance of the Work, whether rented from the Construction Manager or others, including installation, repairs and replacements, dismantling, removal, costs of lubrication, transportation and delivery costs thereof. 8.2.19 Costs associated with setting up and demobilizing tool sheds, temporary fences, temporary roads, and temporary fire protection. ARTICLE 9 -Changes in the Work 9.1 The Owner, without invalidating this Agreement, may order changes in the Work within the general scope of this Agreement consisting of additions, deletions, or other revisions. All changes in the Work shall be authorized as described in the General Condition of the Contract. Except in cases of emergency endangering life or property, the Construction Manager shall allow no Changes in the Work without the prior written approval of the Owner. ARTICLE 10 -Discounts 10.1 All quantity discounts shall accrue to the Owner. All trade discounts, rebates and refunds, and all returns from the sale of surplus materials and equipment shall be credited to the Owner. ARTICLE 11 -Insurance 11.1 The Construction Manager shall provide insurance as required by the General Conditions of the Gontract. 11.2 The Owner may elect to purchase insurance under an Owner Provided or Controlled Insurance Program, Master Contractor Insurance Program, Municipality Controlled Insurance Program or a Contractor Controlled Insurance Program, in which case the Construction will provide coordination with the Owner and the Owner's insurance broker, as required. The Owner wilt inform the Construction Manager of its intention regarding insurance in sufficient time before the execution of the Guaranteed Maximum Price amendment to allow the Construction Manager to arrange for insurance and include the costs in the GMP, if necessary. 11.3 For insurance coverage, if provided by the Owner in accordance with Paragraph 11.2 above, the Owner shall provide insurance in effect from the issuance of the Notice to Proceed with the Work until Final Completion of the Work, and the Construction Manager shall ensure that each Trade Contractor and Sub-subcontractor are insured under the Owner's insurance programs, in accordance with this Article. ARTICLE 12 -Contract Time: Liauidated Damages 12.1 The work will be substantially completed within calendar days from the date of the issuance of the Notice to Proceed, and completed and ready for fnal payment in accordance with paragraph 15.13 of the General Conditions within calendar days from the date of Substantial Completion. 12.2 Liquidated Damages. The Owner and Construction Manager recognize that time is of the essence of this Agreement and that the Owner will suffer financial loss if the Work is not completed within the times specified in paragraph 12.1 above, plus any extensions thereof allowed in accordance with Article 13 of the General Conditions. 4/2/207 Page 17 of 8~ electrbcal anti roofing) included in the subcontract. In addition, the Sub-Contractor shall assign and name qualified employee for scheduling direction for its work. The supervisory employees of the Sub-Contractor {including field superintendent, foreman and schedulers a# all levels) must have been employed in a supervisory (leadership) capacity of substantially equivalent level on a similar project for at least two years within the last five years. The Sub-Contractor shall include a resume of experience for each employee ident~ed by him to supervise and schedule his work. All subcontracts shall provide: a. LIMITATION OF REMEDY - NO DAMAGES FOR DELAY That the Sub-Contractors exclusive remedy for delays in the performance of the contract caused by events beyond its control, including delays claimed to be caused by the Owner or ArchitectlEngineei or attributable to the Owner or Architect/Engineer and including claims based on breach of contract or negligence, shall be an extension of its contract time. In the event of a change in the work the Sub-Contractors claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus no more than 15% for overhead anc profit and bond costs. Each subcontract shall require the Sub-Contractor to expressly agree that the foregoing constitute the sole and exclusive remedies for delays and changes in the work and thus eliminate any other remedies for claim for increase in the contract price, damages, losses or additional compensation. b. Each subcontract shall require that any claims by Sub-Contractor for delay or additional cost muss be submitted to Construction Manager within the time and in the manner in which the Constructior Manager must submit such claims to the Owner, and #hat failure to comply with the conditions for giving notice and submitting claims shall result in the waiver of such claims. 19.4 Responsibilities for Acts and Omissions: The Construction Manager shall be responsible to the Owner for the acts and omissions of his employees and agents and his Sub-Contractors, their agents and employees, and all other persons performing any of the work or supplying materials under a contract to the Construction Manager. ARTICLE 20 -Termination of the Agreement and Owner's Right to Perform Constnaction Manager's Obli atg ions 20.1 Termination by the Construction Manager ff the Project is stopped for a period of thirty (30} days under an order of any court or other public authority having jurisdiction or as a result of an act of government, such as a declaration of a national emergency making materials unavailable, through no act or fault of the Construction Manager, or the Owner fails tc perform ifs material obligations to the Construction Manager for a period of sixty (60) days after receiving notice from the Construction Manager of its intent to terminate hereunder, then the Construction Manage- may, upon seven days written notice to the Owner, terminate performance under this Agreement by written notice to the Owner and the ArchitectlEngineer. In such event, the Construction Manager shall be entitled tc recover from the Owner as though the Owner had terminated the Construction Manager's performance without cause pursuant to the terms and conditions of this Agreement. 20.2 Owner's Right to Perform Construction Manager's Obligations and Termination by Owner for Cause 1. If the Construction Manager fails to perform any of his obligations under this Agreement, the Owner may, after seven (7) days written notice during which period the Construction Manager fails to perform such obligation, make good such deficiencies. The GMP, or the actual cost of the Project, whichever is less, shall 4/2/2007 Page 18 of 89 be' reduced by the cost to the Owner of making good such deficiencies and the Construction Manager's Construction Phase Fee shall be reduced by an amount required to manage the making good of such deficiencies. 2. if the Construction Manager is adjudged a bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a receiver is appointed on account of his insolvency, or if he persistently or repeatedly refuses or fails, except in case for which extension of time is provided, to supply enough properly skilled workmen or proper materials and fails to maintain an established schedule (failure to maintain schedule shall be defined as any activity on the critical path that falls 45 days or more behind schedule) which has been adopted by the Construction Team, or if he fails to make prompt payment to Sub-Contractors for materials or labor, or persistently disregards laws, rules, ordinances, regulations, or orders of any public authority having jurisdiction, or otherwise is guilty of a substantial violation of a provision of the Agreement, then the Owner may, without prejudice to any right or remedy and after giving the Construction Manager and his surety, if any, seven (7) days written notice, during which period Construction Manager fails to commence to cure the violation, terminate the employment of the Construction Manager and take possession of the site and of all materials, equipment, tools, constnaction equipment and machinery thereon owned by the Construction Manager, and may finish the Project by whatever method Owner may deem expedient. In such case, the Construction Manager shall not be entitled to receive any further payment until the Project is finished nor shall he be relieved from his obligations assumed under Article 6. Reasonable termination expenses incurred by the Owner may be deducted from any payments left owing the Construction Manager . 3. If the Construction Manager refuses to allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the Construction Manager in conjunction with this Agreement, then the Owner may, without prejudice to any right or remedy and after giving the Construction Manager and his surety, if any, seven (7) days written notice, during which period Construction Manager still fails to allow access, terminate the employment of the Construction Manager and take possession of the site and of ail documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statute and all materials, equipment, tools, construction equipment and machinery thereon, owned by the Construction Manager, and may finish the project by whatever method he may deem expedient. In such case, the Construction Manager shall not be entitled to receive any further payment until the Project is finished nor shall he be relieved from his obligations assumed under Article 6. Reasonable termination expenses incur-ed by the Owner may be deducted from any payments left owing the Construction Manager. 4. If the Owner is unable to obtain ownership of all parcels required for this project, as determined by Owner, in its sole discretion, then Owner may terminate this Agreemenrt upon ten (10) days written notice. Owner shall pay Construction Manager only for the fees and costs incurred by the Construction Manager through the date of termination. _ 20.3 Termination by Owner Without Cause 1. If the Owner terminates this Agreement without cause, he shall reimburse the Construction Manager for any unpaid Cost of the Project due him under Article 7, plus that part of the unpaid balance of the Construction Phase Fee in an amount as will increase the payment on account of his fee to a sum which bears the same ratio to the Construction Phase Fee as the Cost of the Project at the time of termination bears to the Guaranteed Maximum Price, if established, otherwise to the Owner's Construction Budget. The Owner shall also pay to the Construction Manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment retained. In case of such termination of Agreement the Owner shall further assume and become liable for obligations, commitments and unsettled contractual ctaims that the Construction Manager has previously undertaken or incurred in goad faith in connection with said 4/2/2007 Page 19 of 85 Project. The Construction Manager shall, as a condition of receiving the payments referred to in this Article 20, execute and deliver all such papers and take all such steps including the legal assignment of hi: contractual rights, as the Owner may require for the purpose of fully vesting in him the rights and benefits o' the Construction Manager under such obligations or commitments. 2. After the establishment of the Guaranteed Maximum Price or at the completion of the Design Phase, if the ftnal cost estimates or lack of legislative funding make the Project no longer feasible from the standpoint o~ the Owner, the Owner may terminate this Agreement and pay the Construction Manager his proportionate fee due for preconstruction services plus any costs incurred. ARTICLE 21 -Assignment and Govemino Law 21.1 Neither the Owner nor the Construction Manager shall assign his interest in this Agreement without the written consent of the other. 21.2 This Agreement shall be governed by the Laws of the State of Florida and venue shall be in Palm Beach County. ARTICLE 22 -Miscellaneous 22.1. Terms used in this Agreement which are defined in Article 1 of the General Conditions and Article 1 of this Agreement will have the meaning indicated. 22.2. The Owner and Construction Manager each binds itself, its partners, its successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. 22.3 Interest. Any monies not paid when due to either party under this contract shall not bear interest except as may be required by law. 22.4 Criminal Acts. Employment by any Construction Manager of any employees or Trade Contractors hired by the Construction Manager with multiple felonies will not be tolerated. The Construction Manager muss provide documented proof of efforts to comply with this requirement, The Owner may declare any non- compliance or lack of diligent effort by the Construction Manager to comply as a breach of contract and immediately terminate the services of the Gonstruction Manager. 22.5 The agreement shall be void if not signed by both the Owner and the Construction Manager. IN WITNESS WHEREOF, the pares hereto have entered into this Agreement as of the day and year first above written. 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Y q ~ W` C~ V a ~ z g R C ° ~ ~ ' ~ ° ` ~ w2 C 4d4: Y ~i y W l ~o '' o ? d. x A p9 O ~ a' . ~~ 3 + ~ o ~~' `o ~ d ~ ~ r a aat g a ;, '~~ ~ ~ 5 E '° ,° ~" 3 .+ a a .. $ a ~' .. ~ u ° a e E Y O '~ G~7 ~' .y "aZ~Ci (per L ~ ~a ~ pq °e a PC e" p= ~b Q ;e Nw~ e~ iC y~y~:: y = ~ ~' ~ y V y ~ ~ ~ C ~ C $ ycp~~ a ~, o. ~ 6o a rt° v ~ + ~ „°, u 6 w r zw~§~z aUe° q c ~aP4w~c°~ ~~~a V \- ~ J c~ a ~-~+ K B a~ L i 3 E E O R ry°ory Fo 0 0 } F w 0 N CITY OF DELRAY BEACH PROPOSED UTILITY TAX BOND ISSUE Original Other Current Current Funding Budget Sources Funding Budget Needed General Obligation Bond Fund (380): Neighborhood Park -Land 3,375,000 3,375,000 1,334,750 (2,040,250) Neighborhood Park -Construction 900,000 900,000 1,280,000 380,000 Soccer Complex 2,725,000 2,725,000 3,250,000 525,000 Bexley Park (1) 500,000 500,000 991,975 491,975 Boy Scout Hut Park 350,000 200,000 550,000 696,811 146,811 Lake Ida Park 425,000 300,000 725,000 911,630 186,630 Cornell Park 150,000 - 150,000 269,200 119,200 Pompey Park/Comm Ctr Connection 300,000 - 300,000 300,000 - Beach Park Improvements ~ 75,000 - 75,000 75,000 - Other Park Improvements (1) 200,000 - 200,000 177,870 (22,130) Western Community Center- Land 800,000 - 800,000 4,750,000 3,950,000 Western Community Center 3,000,000 - 3,000,000 10,852,347 7,852,347 Catherine Strong Park 2,000,000 - 2,000,000 2,035,089 35,089 Swim and Tennis Club Center 700,000 - 700,000 870,003 170,003 Pompey Park Center Expansion 500,000 - 500,000 1,300,000 800,000 Old School Square Park and Garage (2) 7,000,000 10,383,005 17,383,005 27,046,505 9,663,500 Library Furnishings 1,000,000 56,643 1,056,643 1,056,643 - 24,000,000 10,939,648 34,939,648 57,197,823 22,258,175 General Construction Fund (334): ESD Building (3) 2,971,900 2,971,900 2,971,900 3,471,900 500,000 City Hall Expansion -Info Tech Bldg. 974,400 974,400 974,400 City Hall Expansion - N. Wing & Chamber 672,000 672,000 672,000 Intracoastal Park, Ramp (4) 1,000,000 1,301,000 1,301,000 2,301,000 1,000,000 Replacement of Fire Station #4 2,723,500 3,700,000 3,700,000 Old School Square Park Improvements 2,700,000 500,000 500,000 2,700,000 2,200,000 Miller Park Improvement 4,500,000 475,000 475,000 6,000,000 5,525,000 15,541,800 5,247,900 5,247,900 19,819,300 14,571,400 Stormwater Fund (448): Storm Retention -Auburn Trace - 1,000,000 1,000,000 Contingency (based on total project amount - 2,750,000 less the Auburn Trace Retention amount) Total Funding Needed for Construction 40,579,575 Taxable Line of Credit - OSS Pkg Garage (5) 5,000,000 5,000,000 5,000,000 5,000,000 (1) The City has applied for two FRDAP grants, Eagle Park ($200,000) and Bexley Park ($200,000). We will know this spring/summer if we are able to obtain them. (2) The increase is primarily due to the fact that we anticipated receiving $6,560,000 (16,400 sq ft x $400/sq ft.). We now anticipate $3,690,000 (16,400 sq ft x $225/sq ft) in proceeds. (3) The original budget amount of $2,971,900 is accounted for in the Water and Sewer Fund. The revised budget is $3,471,000. The variance ($500,000) will be accounted for in the General Fund. (4) Currently in discussion with PBCO with respect to grant participation. (5) The Taxable Line of Credit will be paid off with sale proceeds from the retail portion of the garage. O ~ ~ ~ ~ ~ o ~ ~ - CC3 ~ °o ~ ~ ~~ ~ ~ ~ o ~ ~ ~ L ~ ~ o ~ ~ d: ~ ~ a°~ V ~ ~ ~ ~ ~ a ~ 's... ~'• ~ ~ - > ~ ~ ~ ~ ~. .- ~ ~ p ~ ., o ~ ~ ~ - ~ ~, C~ ~ ~ ~~ ~ O ~ -- ~V >~~ ocn~ No - ~ ., v ~ ~~ .. V ~-~ Q c~ .. ~ .. o .. ~ ~ o ~ o -- o > ~ -~ r' ~. ~, == ° ~ r- LL O N ~ N N ~- ~ t- ~ C'7 Q C~ C6 ~ ~ ~ ~ • • • • ~ C~ a. a L a emo '~ Ta City Commission,,,, Frone David Harden l;~%~I CC: Dates October S, 2004 Rr. Acquisition of land for Parks and Senior/Community Center Commission din3ction is requested regarding which parcels of land we should seek to acquire with funds from the Parks and Recreation Bond issue. We have in our budget $3,375,000 for acquiring .park land and $900,000 for the Senior/Community Center site. The rapid escalation of land prices since we developed our budget in January of 2002 and the limited amount of vacant or underutilized and in or adjacent to the City have severely limited our choices. AttacFted you will find a packet of information from the City Attorney on parcels of land we are considering for both park sites and for the Senior/Community Center Site. I have also included the text of the Community Enter Needs Assessment. Recommendation: Mr. Weldon recommends that we acquire the three parcels east of Bexley Park to expand that faality by adding 11 acres, and that we place the SeniodCommunity Center there. The advantage i$ that the recreational facilities of the park would supplement those in the building. The disadvantages are that this site is not centrally located and is not on a public transportation route both of which are recommended by the Needs Assessment. It is also in the middle of a residential area. I believe that we should expand Bexley Park by acquiring one or more of the adjacent parcels, but all three will probably take all our park land acquisition money, 1 would also recommend placing the Senior/Community Center on one of the parcels on Atlantic Avenue between Congress and Barwick, or on congress north of Atlantic. Another option is to place the Center and a park on the land west of Military and not expand Bexley Park. There are also other sites identified in the report from the City Attorney. Before we spend more money on appraisals and other work toward acquiring any of these parcels, we would like to have some direction from the Commission. ~tv~• M GF DELRA4 BEp[H CITY ATTORNEY'S 0f FICE TELE HONE 561/2 3 7090 RFACSIMILE 550278 4756 44 DELRAY BFJ~CH MEMORANDUM 1 r DATE: October 7, 2004 TO: City Commission ~~ .2001 David T. Harden, City Manager FROM: .Susan A. Ruby, City Attorney Writers Direct Line: 561!243-7091 SUBJECT: Parks and Community Center Locations/Information The following sites have been identified as potential sites for parks and/or a community center. Appraisals have been conducted on #hese properties. {1) Parcels 1 and 3 in The Commons,- located about one mile west of I-95. Parcel 1 fronts on West Atlantic Avenue and contains 1.87 acres. Parcel 3 is located behind Parcel 1 and contains- 2.72 acres for a total of 4.59 acres. In May, the approximate value was $2,100,000. It is zoned for Commercial Office Use (see attached). {2) Adjacent to Bexley Park are 3 properties -- 3.03 acres, 3.18 acres and 5.0 acres for a total of 11.21 acres. The appraisal for all three as of May, 2004 is $2,225,000 (attached photos}. {3) The third location is west of Military Trail. The two frontage parcels contain 7.81 acres total with a May, 2004 appraised value of $2,800,000. The. . remaining lands contain a total of 10.5 acres within an appraised value of $3,825,000 (see.attached sketch). {4} Additional properties have also been reviewed (see attached). Please schedule this item for a work shop in order to identify sites that should be acquired. AR:ct Attachments cc: Joe Weldon, Director of Parks and Recreation Paul Dorling, Planning Director Joe Safford, Finance Director ` , , c , a c 0 N L a 0 u E ~o 0 a` ~~ ~; ~s ~~ g~ r~ y C 3.E 0 ~~ o ~~ L C E o ~' c 9 G E ~ ~5 c c ~ ~ CN a ~ '~, yO O ~ y V y C 9 o! Y A d ~ a ~ C ~ A 3;~ `o ° ~ v u ~ 4 E E c °' a w ~ E-~ q d ~ N r i ~ ~ A y y m ayV •p ` W C LL L~ A~~ q~ d Q ~. v d C ~~uu 7~ C ~ ~ ° 5 ~Ej q ~ c v y 3vv="~ E> CC `y ~ ~ ~ ~ ~ G •~ 0 0 0 0 N ' LL 3 7 7 7 E C C^ C A 3 •Z d ~ C C C C N ~= A~ m~ C ° ~ EEEEE~~'~BdrnE ~ Q oZZZ°z°O~?~S'i~iz° J V • • • • • • • • • a 0 M. AWARD. OF BIDS AND CONTILACTS; 1. Various bid awards in the amount of ;285,907.00 via the Florida Sheriffs' Association Contract #04.12-0823 and the State of Florida Contract #070-700- 05-1 for the replacement of twelve (12) City vehicles. Funding is avaiLKble from 501-3312-591-64.20 (Central Garage Fund/Automotive). 9. REGULAR AGENDA: A. NEIGHBORHOOD .ACTION PLAN/CHATELAINE STRATEGir TASK 'SEAM (ST'I~: Consider approval and adoption of the Chatelaine Strategic Task Team Neighborhood Action Plan presented by Lola Butler, Director, Community Improvement; Janet Meeks, Education Coordinator; and Jayne King, President, Chatelaine Homeowners' Assoaation. B. RESOLUTION N0.2405: Consider approval of Resolution No. 14-05 authorizing the Community Redevelopment Agency (CRA) to acquire fee simple title by gift purchase or eminent domain for property needed for the Carver Square Neighborhood Plan. C. RE-SOLUT~OT[ NO. I3-Q5: Consider approval of Resolution No. 13-05 authorizing the Community Redevelopment Ageary (CRA) to acquire fee simple title by gift purchase or eminent domain for property needed for the Southwest Neighborhood Plan. D. CONTRACT EXTENSION AND ALT'?'HOR_i7ATIONIBILL PLUM: Consider approval of a contract extension and authorization for payment to Bill Plum in the amount of =15,$83.00. Funding is available from 380-4139-572-39.10 (2004 Bond Fund/Other Professional Services/Neighborhood Parks). E. ;,SETTER .REGARDING ALZHEIMER'S PROPERTY: Consider approval of a letter restating interest in the acquisition of the Alzheimer's property, setting forth prices and proposals. F. ~~TTLEMENT AGREEMENT/BOWMAN: Consider approval of a settlement agreement between the City and William E. Bowman, Jr. in the amount of X3,519.26. Staff recommends acceptance. G. AWARD OF CONTRACT/MORGAN ROOFING. INC.: Consider approval of a contract award to Morgan Roofing, Inc. in the amount of ;142,987.00 for the Old School Square Re-roofing Project; and waive the requirement that the bonds be issued and executed by -an agent with an office in Palm Beach, Dade, Broward, or Martin counties. Funding is available from 334-6112-572-46.12 (General Construction Fund/Old School Square Roof Repaix). 03-15-2005 -4- March 8, 2005 Sam J. Ferrari, AlA S~chenkelstiultz Archi#ecture 13'00 N. Congress Avenue West Palm Beach, FL 33409 Patnck Moran, Esq. Ruden McClo'sky Smith Schuster & Russsell, P.A. 200 E: Broward Bulevard, Suite 1500 Fart Lauderdale, FL 33301-1972 Kathy Kalck 3700 S.E. Jennings Road Port St. Lucie, FL 34952 Subject: Proaerty Purchase Proposal from the City of Delray Beach Dear Mr. Ferrari, Mr. Moran and Ms. Kalck: The voters of the City of Delray Beach authorized the development of a Senior/Community Center within the City. I am, along with the rest of the City Commission, anxious to further our discussions and come to an agreement, if possible, to acquire the Alzheimer's property to establish such a facility that is acceptable to-you and the City. In January, the City Manager, David Harden sent to Mark Pafford, the attached letter expressing its interest in acquiring a portion of the property located on the northwest comer of Lake Ida Road and Congress Avenue for the purpose of developing aSenior/Community Center on the site. VNhile we did not receive a letter in response, I appreciate the graciousness of Mr. Ferrari and Mr. Pafford in discussing .the matter with me, as well as meeting and discussing the matter with Bill Plum. At this time, I am authorized by the City Commission to ask you to consider one of three proposals as outlined herein: City Commission/David Harden, City Manager ' March 8, 2005 Page 2 Proaosal #1 The City would purchase the entire site and lease back to you a portion of the property for your use as a daycare facility. The-City would purchase the entire site for Four Million, Four Hundred and Fifty Thousand Dollars ($4,450,000.00), the appraised value, subject to a lease, the terms of which will be worked out with you so that the Alzheimer's Association can continue to operate the daycare facility. Proposal #2 Th'e City would acquire the entire site for Four M"rllion, Four Hundred and Fifty Thousand Dollars ($4,450,x00.00) and make sure that the buildings currently used on site-as an Alzheimer's daycare facility for persons with Alzheimer's disease rernairti as such with -other entities or the City providing the Alzheimer's daycare component. 'the City would maintain the entire site. Proaosal #3 The City would buy the 5.56 acre site for Three Million Five Hundred Thousand Dollars. ($3,500,000) with the Alzheimer's Association remaining the owner of the 1..22 acre facility (as shown on the attachment) to maintain as an Alzheimer day care facility, with the Alzheimer Association maintaining the building and site on the 1.22 acre site. Summary Thank you, in advance, for addressing this issue and considering one of the above proposals that may be beneficial to your organization, the City and its citizens. It is my understanding that the Lattner Foundation would probably not be opposed to any of the proposals outlined above, so long as an Alzheimer's daycare facility is maintained at its current location. If the City acquires the entire property, the City would maintain the current daycare facility building (subject to lease terms if Proposal #1 is selected). If the Alzheimer's Association selects a proposal that requires them to maintain the building, the Association may be required to make a contribution in the form of an CtyCommission/DavidHardm, City Manager March 8, 2005 Page 3 endowment to maintain the building, subject to approval by the Lattner Foundation. It is my understanding that the Alzheime~s Association's contribution to an endowment would not have to be for the entire cost of the Lattners contributions to the Association, but an amount sufFicient to maintain the building. I appreciate .all the time you have spent on this matter. If we could receive. an artswe~ from you, in writing, soon, we would proceed to negotiate with you, present to you contracts and leases, in accordance with one of the proposals outlined above. I look f~ntiard to hearing from you, hopefully before the end of this month, as to-the desires of the Alzheimer Association. Sincerely, Mayor Jeff Perlman Cc: David Harden, City Manager Susan. Ruby, City Attorney Mark Pafford, Chief Executive Officer, Alzheimer's Association Bill Plum 10. PUBLIC HEARINGS: A. ORDINANCE NO. 39-05 (SECOND READING/SECOND PUBLIC HEARING(: Privately initiated amendment to Land Development .Regulations (I.DR), Section 4.4.21, "Community Facilities (CF)", to add senior housing as a conditional use in the CF (Community Facilities) District; amending Section 4.3.3 "Special Requirements for Specific Uses", to provide specific regulations for "Senior Housing" and Appendix "A", "Definitions" to provide a definition for Senior Housing. B. ORDINANCE NO. 35-05: Rezoning from R-1 A (Single Family Residential) to CF (Community Facilities) associated with the establishment of a Senior Housing Facility at the La France Hotel, located on the west side of N.W. 4d' Avenue, approximately 80 feet south of Martin Luther King Jr. Drive (N.W. 2nd Street). (Quasi Judicial Heating) 1. CONDITIONAL USE REQUEST/LA FRANCE HOTEL: Consider a request to allow the establishment of a Senior Housing Facility which includes the conversion of and a two (2} story addition to the La France Hotel, an existing boarding house, to accommodate eight (8} efficiency units and six (6) 1- bedroom units, located on the west side of N.W. 4`s Avenue between N.W. 1" Street and Martin Luther King, Jr. Drive (N.W. 2nd Street). (Quasi Judicial Hearing) C. ORDINANCE- NO. 40.05 tSECOND READING/SECOND PUBLIC ~EARING~ Privately initiated amendment to Land Development Regulations (LDR), Section 4.4.18(B)(4), "Planned Commerce Center (PCC)" Zoning District, to add vocational and commercial schools within the Service Industry land use category of the Planned Commercial Center (PCC) Zoning District and add Section 4.4.18(E)(5) to provide supplemental regulations regarding vocational schools. D. ORDINANCE NO. 34-05: Privately initiated small scale Future Land Use Map (PLUM) Amendment from OS (Open Space) to LD (Low Density Residential 0-5 dwelling units per acre) and rezoning from OSR (Open Space and Recreation) tv R-1-A (Single Family Residential) fora 0.978 acre parcel of land located south of West Atlantic Avenue, approximately 2,000 feet west of Homewood Boulevard within the Hamlet Residential Development. (Quasi Judicial Hearing) E. RESOLUTION NO. 40-05: Consider approval of Resolution No. 40-05 authorizing the City to purchase property located at 850 North Congress Avenue to provide land fora and Contract for Sale and Purchase between the City and Alzheimer's Disease and' Related Disorders Association -Southeast Florida Chapter, Inc., D/B/A Alzheimer's Association Southeast Florida Chapter in the amount of $4,750,000.00. F. ORDINANCE N0.41-05: An ordinance amending Chapter 100, "Nuisances", of the Code of Ordinances, by amending Section 100.01, "Existence of Weeds, Trash, and Vegetation Upon Lands Prohibited", to provide that vegetation or trees which interfere with traffic flow, safety, or utilities are a nuisance; and to provide for enforcement. 06-21-2005 -5- O ._ -~-+ C6 4) ~ ~ ~ U •- 4) ~ -- ~ m •- ~ C~ -~ ~ ~ ~U U ~ CCS ~ ~ ~ m ~ C~ V- ~ ~ ~ ~ O Ca . ~ i 0 o '- o o ~, ~ ~ ~ ti ~' ~- N ~ `~ o O O N ~ ~' ~ ~ ~ C~ ~ - O ~ U ~ ~ ~ ~ ~_ -~ .- U ~ ~ ~ V c a~ ~ ._ ~ ~ ~ ~. ~ c~ ~ ~ ~ ~ ~~ O ~ O O O V n ~, ~ ~ .- ~ . _ ~ a~ ~ O ~ ~ ~ ~ ~ o ~ o Ca ~ . ~ -~ . ~ O N .. ~ ~ o ~ 0 U Q d- to D ~ .. ~ O O .. C~ ~ ~. O ~ O ~ r- O O O . .+~ ~ ~ N O O ~ ~ ~ O r M O T- V • • • City 4f Delray Beach Department of Environmental Services M E M O R A N D U M wx~w.mydelraybeach.com TO: David T. Harden, City Manager FROM: Richard C. Hasko, P.E., Environmental Services Director SUBJECT: WESTERN/SENIOR ~COMMUNTTY CENTER DATE: August 29, 2005 Attached is Service Authorization # 3 from Robert Walters Architects in the amount of $122,500 for professional consulting services in conjunction with the preliminary site planning and SPRAB submittal preparation for the proposed Western/Senior Community Center. The proposed facility is to be located at the northwest corner of the intersection of Lake Ida Road and Congress Avenue on the site of the existing Alzheimers Center recently approved for purchase by Commission. , The scope of this proposal includes programming of the needs assessment previously performed that determines the types of facilities and activities to be included in the new Community Center. This effort will consider space and proximity requirements for the various functions, activities and proposed occupancy levels resulting in a schematic building layout for review and approval by the City. The existing Alzheimers facility will be analyzed to determine the best programmatic use for the space as well as how it will be .integrated into the site design considering overall site layout and architectural treatment. Building and overall site layout proposals will be prepared for review by the City and, upon approval, will provide the basis for the ensuing preparation of required documents for submittal to SPRAB for Site Plan Approval. A preliminary opinion of cost will be prepared as a part of this scope. Time for performance of the described services is approximately seven (7) months. Funding for this project is available in Parks & Rec Bond account #380-4150-572.62-58, Senior/Western Conununity Center. Please place this item on the September 6, 2005 agenda for consideration by City Commission. Cc: Joe Weldon, Parks & Recreation Director Randal Krejcarek, P.E., City Engineer Jill Skaggs, P.E., Asst. City Engineer Program Administration Task 2 -Existing Building Analysis Robert Walters Architects will review the existing building on site to help the City staff determine best programmatic use for the space. RWA will also review the building ADA code compliance and basic building code compliance. Analysis will include documentation inconsideration for later joining the existing and new building into a single coherent development. Task 3 -Zoning !Site Analysis Robert Walters Architects will review the site's existing zoning and plat to determine if future rezoning or re-platting will be required. City's zoning code will be reviewed to determine the minimum number of parking spaces, maximum building azea and height limitations, impact of setbacks or easements currently in place, amount of pervious area required, minimum lighting levels, 1TLn~mum landscaping requirements, etc. Existing site will be reviewed for existing trees, landscape features, roadway connections, etc. Task 4 -Schematic Site Design Once a current site survey and plat is received from the City, Robert Walters Architects will develop a schematic site plan. Site plan will consider existing building location, new building size, massing, location, pazking, exterior site functions, ingress and egress, pedestrian and vehicular traffic flows, etc. Task 5 -Schematic Building Plan Design Once an approval is received for building program from the City, Robert Walters Architects will develop a schematic building floor plans}. Depending on the program, a single or multi-story building plan may be developed. The schematic plan will layout all the spaces and functions, traffic patterns, spatial relationships, etc. Task 6 -Schematic Building Elevation Design In conjunction with Task 5, Robert Walters Architects will develop schematic building elevations. All exterior elevations for new and existing building will be shown with any proposed connections. Task 7 -City Commission Review 1 Robert Walters Architects, in conjunction with City staff, will meet with City Commission members to receive comments and input on the proposed schematic site plan, schematic floor plans and schematic elevations. Task 8 -Update Schematic Designs . After meeting with City staff and Commissioners, Robert Walters Architects will revise the schematic designs and resubmit them for review and approval. Task 9 -City Commission Review 2 Robert Walters Architects, in conjunction with City staff, will hold public meetings to receive comments on the proposed master plan designs. DELRAYISA3yYESTERN_COMMUNITY CENTER DOC 5. Review of proposed Patks Impr~Qements - Toes Weldon Joe Weldon, Director of Parks and Recreation provided a presentation for upgrading beach front parks and other existing parks. It was the consensus of the Commission that the proposal to upgrade the City Parks looked great, and for Staff to move forward with the project. 6. Direction reg~+'~1~g Weste_r*+ Community Center Joe Weldon, Director of Parks and Recreation provided a presentation for the proposed building program for the U:tL~i3;1/® ®. Priorities were rated on a one to ten scale, and Staff will be looking for direction from the Commission on how to proceed. Elizabeth Lugo from the Mae Volen Senior Center also made a presentation. It was the consensus of the Commission to concentrate on the Senior Citizen aspects, leave in: tli~`Alzheimer's..Care::and:proceed:wththe program. 7. Direction zeg rc ' g Multi-s=Dace Parking Meter Options -Paul Dorling/Scott Aronson Scott Aronson, Planning and Zoning Parking Management Specialist provided information concerning the installation of multi-space parking meter options. It was the consensus of the Commission to proceed with the pay and display parking meter proposal. They also liked the convenience of using credit cards at the meters. 8. Commission Comments Mayor Perlman adjourned the Workshop Meeting at 9:25 p.m. City Clerk ATTEST: Z~ 0 The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information provided herein is the Minutes of the Special/Workshop Meeting of the City Commission held on Tuesday, January 10, 2006, which Minutes were formally approved and adopted by the City Commission on January 17, 2006 4 January 10, 2006 / ti o M O ~ O ~ ~ ~ O ~ ~. .. ~, ~ o CCS I` .~ ~ ~ ~ ~ O o U ~ . ~ -~ ~ v o .. ~ -- +.~ N ~ .~.'' ~ `~ N N N ~ ~ .~ ~ ~ ~ ~ C~ ~ U O + ~ ° O ti -~- ~ N M ~ ~ U ~ M ~ V Q ° + CCf ~ ~ ~ ~ .. c~ ~ ~ O ~ ~ ~ 00 C~ ~ ~ ~ ~, d' _ ~ ~ ~ • ~ C~ ti ~- d' O ~ o ~ M O . = ~ N ~ ~ ~ M O O ~ ~ N ~ ~ a~ ~ ~ t- O ~ oo ~ ~ ~ ~ ~ O ~ O O -~ ~ .. ~ O _ 4~ L '~ ~ ~ ~ ~ > O ~ ~ O ~ .~ ~ ~ .~; ~ L -~ c ~ ~ ~ .O ~ O U ~ - ~ ~ 4~^ U o ~ `~ ~ ~ ~ .. ~ .. ~ C~ ,.,_, I~ O O U O . a.+ 00 ~ • -, O O '~ ~ O N ~ 1 ~. M Q • • • Ta City Commission From City Manager CC: Dsbw April 17, 2006 Rro Western SeniodCommunity Center Design We met today with the architects for the Western Senior/Community Center to review the preliminary design. Elizabeth- Lugo from the Mae Voten Center also participated in the meeting. A Dopy of the preliminary design is attached. In order to not delay this project, I requested the architect to present the preliminary design to the Commission tomorrow evening for your comments and direction. in addition to direction on the design, we need direction on whether to oonstruct the building aN at once or in phases. Recommendation: I reoornmend that we proceed with construction of the entire building, even though this will require issuing probably $5 - 6 million in additional debt. We would propose to issue revenue bonds. We will save both on construction cost by not phasing, and on the inflation of costs which would occur between now and the time the second phase was built. '~_ and recovery. Funding is available from 441-5161-536-64.90 (Water & Sewer New CapitaU Other Machinery & Equipment). 6. Contract award to DCR Engineering Services, Inc. in the amount of $102,712.55 for the purchase and installation of a replacement Fire Station Alerting System for the Fire Department. Funding is available from 334- 6112-526-64.55 (General Construction FundlFire Station Alert System). 7. Purchase award in the total amount of $43,651.73 to Universal Signs & Accessories and 3M Traffic Safety for the purchase of reflective material, aluminum blanks, and sign posts as replacement stock for the City's sign shop. Funding is available from 001-3141-541-52.20 {General Fund/General Operating Supplies}. Mr. Fetzer moved to approve the Consent Agenda as amended, seconded by Mrs. Ellis. Upon roll call the Commission voted as follows: Mayor Perlman -Yes; Mrs. Ellis -Yes; Mr. Fetzer -Yes; Mr. Levinson -Yes. Said motion passed with a 4 to 0 vote. At this point, the Commission moved to Item 7.I., Presentations. 7_I. Western Senior/Community Center Design Presentation (ADDENDUIVI~ Abbas Zackria, Walters Zackria Associates (Architects) gave a brief overview of the needs analysis and schematic design for Phase I of the Western Community Center. This site is located on the corner of Lake Ida Road and Congress Avenue. The Needs Assessment discussed issues about having a senior facility as well as having a fitness center, gymnasium and a youth program. Mr. Zackria stated Phase I is approximately 10,300 square feet and Phase II is approximately 22,000 square feet. He stated the overall building will cost $7,591,000.00 and if this building is constructed in two Phases then Phase I would be $3,175,000:00 and Phase II as $4,937,000.00 for a total of $8,112,000.00. Mr. Levinson asked what kind of time differential was used between Phase I and Phase II. In response, Mr. Zackria stated he put a two year separation with a 15% inflation factor. Mr. Fetzer asked what the construction schedule is for Phase I. In response, Mr. Zackria stated the design will be completed by December 2006 and construction to start in January 2007. Mr. Levinson commented about there being no physical connection between the old building and the new (just through the exterior courtyard). Mr. Zackria stated this is correct. Mr. Levinson stated if the program were changed to not include an Alzheimer's Day Care how would the interior space change. In response, Mr. Zackria stated they can do a lot of programming in the facility without having direct connection. He stated they can connect the two courtyards where one would go back and forth between the new assembly space and the existing facility. -8- 04/18/06 ~a Mayor Perlman inquired about the size of the retention/park area. Mr. Zackria stated approximately 1 '/z acres. Mrs. Ellis stated she likes the design. Mayor Perlman asked if this will have any humcane shelter capacity in the gymnasium. In response, the City Manager stated it would add substantially to the cost and with the capacity the City has at Atlantic High School now it is not really necessary. Brief discussion between the Commission, staff and Mr. Zackria continued regarding parking and transportation. It was the consensus of the Commission to give direction to Mr. Zackria to construct the entire building in one phase per the City Manager's recommendation. At this point, the time being 7:28 p.m., the Commission moved to the duly advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.A. ORDINANCE NO. 14-06 (SECOND READING/SECOND PUBLIC HEARING): Amendment to the Land Development Regulations (LDR) establishing a six (b) month moratorium on demolitions, additions, and new construction in the City's five (5) Historic Districts. Prior to consideration of passage of this ordinance on Second and FINAL Reading, a public hearing has been scheduled to be held at this time. The caption of Ordinance No. 14-06 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY BEACH, ESTABLISHING A TEMPORARY BUILDING MORATORIUM FOR ANY DEMOLITION AND DEVELOPMENT PROPOSAL LOCATED IN ANY OF THE CITY'S FIVE HISTORIC DISTRICTS FOR PROPERTIES NOT ZONED COMMUNITY FACILITIES (CF) OR CENTRAL BUSINESS DISTRICT (CBD) AND WHICH EXCEEDS CERTAIN SQUARE FOOTAGES, AND AS FURTHER DEFINED HEREIN FOR A PERIOD OF SIX (6) MONTHS FROM THE DATE OF ADOPTION OF THIS ORDINANCE; PROVIDING FOR GEOGRAPHIC AREA COVERED; PROVIDING FOR THE DURATION OF MORATORIUM; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 14-Ob is on file in the City Clerk's office.) -9- 04/18/06 MEMORANDUM 'I'O: David T. Harden, City Manager THRU: Richard C. Hasko, Environmental Services Director FROM: Bob Diaz, Construction Manager SUBJECT: .AGENDA ITEM - CITY COMMISSION MEETING OF MARCH 20.2007 GMP PHASE II WESTERN COMMUNITY CENTER/WEITZ COMPANY DATE: March 12, 2007 'This item is before the Commission to approve Phase II of the Guaranteed Maximum Price (GMP) in the amount of $10,123,650.00 to The Weitz Company for the Western Community Center Project. The project consists of the construction of a 32,500 square foot facility along with associated parking. Building components will include a gymnasium with locker facilities, fitness center, daycare center, multipurpose rooms, food preparation facilities, and staff offices. Phase I and Pre-construction costs associated with this project were previously approved by Commission. A total GMP breakdown is detailed below for your reference: Pre-Construction Services: $ 87,740.00 Phase I $ 640,957.00 Phase II $10,123,650.00 Total GMP $10,852,347.00 Detail costs for Phase II are itemized on the attached estimate summary (Schedule A) submitted by the Weitz Company. The all inclusive Schedule (A) includes Pre-Construction Services in the amount of $87,740.00 and Phase I site work costs in the amount of $640,957.00; for a total GMP of $10,852,347.00. The project is scheduled to be completed by April 17, 2008. A project schedule and location map are attached for reference. Funding for Phase II is proposed from 380-4150-572-62.58 {2004 G.O. Bond/Western Community Center). Staff recommends approval of Phase II GMP in the amount of $10,123,650.00 to The Weitz Company. cc: Richard Hasko; Director of ESD Randal Krejcarek, City Engineer Rafael Ballestero; Dep. Director of Construction, ESD Carolanne Kucmerowski, CMT City Clerks Office Agenda File 3/20/07 File 2004-047 (A) S:~Fa~A~~Projats~2004~2004-04TOFFICIAI.12004047 3.20.07AQdt memo weuz GMP pL 2.dot ~ .~ r ~ Q~ O ~ L ~ _ ~ •- ~ ~ ~ ~ O o o ~ O ~ ~ - ~ N O i ~ ~ cn Q. ~ > O ~ o ~ o ~ °~ ~ ~ o o o ~ ~. . _ ~ ca ~ ~ ~ ~ ~ ~ :~ ~ ~ 0 0~ ~ ~ ~ cn ~ -~ -° cn ~ ~- ~ V o ~ L- O CCU ~ o • - ~-- ° `~ o U ~ O . - ~. ~ c~ ~ ~ ~ ~ o ~ ~ ~ ~ ~ O _ ~ ~ M ~ O c~ o ~ U z ~ U o 0 O cn ~ ~.c) ~ . _ ~ N ~ 0 0 0 ~ U ~ - ~ ~ ~ ti O ~ LL ~ M d' Cfl ~ ~ ~ • • • • -- (~ O a. Mr. Levinson moved to approve the Agenda as amended, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mr. Costin -Yes; Mrs. Archer -Yes; Mr. Levinson -Yes; Ms. McCarthy -Yes; Mayor Perlman -Yes. Said motion passed with a 5 to 0 vote. 5. APPROVAL OF MINUTES: Mr. Costin noted a correction to page 5 of the Minutes with regard to the ex parte communications for Item 9.A. (Conditional Use Request/First Avenue Townhomes) and,stated he had a meeting with Mr. Weiner. Mr. Levinson moved to approve the Minutes of the Regular Meeting of February 15, 2005 as amended, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mrs. Archer -Yes; Mr. Levinson -Yes; Ms. McCarthy - Yes; Mayor Perlman -Yes; Mr. Costin -Yes. Said motion passed with a S to 0 vote. 6. PROCLAMATIONS: 6.A. Recognizing and commending Tom Kwiatek - Administration/Recreation Division - Parks and .Recreation Department Emplovee of the Year for 2004, and Jo Wagenhals -Ocean Rescue Division and Jesse Melendez -Parks Maintenance Division as Parks and Recreation Top Emplovees of the Year 2004 Mayor Perlman read a proclamation hereby recognizing and commending Tom Kwiatek, Parks and Recreation Employee of the Year 2004, Jo Wagenhals and Jesse Melendez, Parks and Recreation Top Employees of the Year 2004 on a job well done for the Parks and Recreation Department and the City of Delray Beach. Joe Weldon, Director of Pazks and Recreation, accepted a $100 check and a plaque for Jo Wagenhals. Mr. Weldon presented a $100 check and a plaque to Jesse Melendez and a $300 check and a plaque to Tom Kwiatek. 6.B• Recognizing Lucille and Johnnie Jones' 75`x' Wedding Anniversarv Mayor Perlman read and presented proclamation hereby congratulating Lucille and Johnnie Jones on their 75`~ Wedding Anniversary. Mr. and Mrs. Jones came forward to accept the proclamation. 7. PRESENTATIONS: .~ ~.A. Old School Square Parking Garage Presentation, PGAL/Eliopoulos Richard Hasko, Director of Environmental Services, gave a brief PowerPoint presentation regarding the features and elevations for the Old School Squaze Parking Garage. He stated the parking will have a total of 538 parking spaces and 100 square feet of retail space. -2- 03/01/05 Mrs. Archer expressed concern that if Old School Square has use of the facility they are going to block off the area for tour buses, etc. which requires blocking off the exit/entrance. She stated if there is not a secondary entrance or exit there is no way for people to get in to park. Mr. Hasko stated they have the ability to control at:cess for the loading azea and for the park. Mr. Hasko stated the secondary access was essentially going to be an exit only. Mrs. Archer stated before a layout is approved she feels the City needs to talk to a lazge group that has used this (i.e. Nancy Stewart). Mr. Hasko briefly explained the analysis of the costs for Option # 10. He stated the entire gazage including the site work is estimated to cost approximately $7.5- $8.5 million; the retail shell space is estimated to cost approximately $1.5-$1.7 million; the restrooms are estimated to cost approximately $350,000-$400,000. He stated the overall structure is a little over $220,000 square feet and is estimated to cost approximately $9-$10.5 million. With regard to Mrs. Archer's concern regarding the accommodation for a tour bus in the azea near the entrance, Mr. Costin asked if there is enough maneuverability to accommodate a bus in this area. Ian Nessler stated there is enough room to accommodate a bus; however, Mrs. Archer's concern has been discussed with Mr. Gillie and depending on how many buses and tractor trailers pull into this area; there could be an issue with congestion and service ability. Mr. Nessler stated although one or two vehicles could turn around easily in this area if there aze a multitude of service vehicles this could become an issue. He suggested that staff talk to some of the stakeholders to see exactly how many service vehicles with be coming through during major events. Brief discussion continued between Nancy Stewart and the Commission. It was the consensus of the Commission that staff meet with Joe .Gillie, Nancy Stewart, and the stakeholders to discuss this issue and move as expeditiously as possible for the construction of the ~t ~ ~ ~ 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. ACCEPTANCE OF RIGHT-OF-WAY DEED/136 N.E.1sT AVENUE: Approve and accept aright-of--way deed associated with the Ferrara Duplex, located at 136 N.E. 1St Avenue. 8.B. AMENDMENT TO THE 2002 SUBGRANT AGREEMENTlSTATE OF FLORIDA DEPARTMENT OF' FINANCIAL SERVICES: Approve an amendment to the 2002 Subgrant Agreement with the Florida Department of Financial Services to accept a light duty rescue vehicle valued at $69,587.00 and Hazardous Materials Sustainment Funds in the amount of $10,363.91 for equipment replacement, instrument testing, and calibration. -3- 03/01/05 $12,000 to make the trip a reality and to date the band has raised $3,000 of the amount needed. Staff recommends consideration of approval of the request in the amount of $1,000. Ms. McCarthy moved to approve staff s recommendation of the $1,000.00 contribution, seconded by Mrs. Archer. Upon roll call the Commission voted as follows: Mrs. Ellis -Yes; Mrs. Archer -Yes; Mr. Levinson -Yes; Ms. McCarthy -Yes; Mayor Perlman -Yes: Shid motion passed with a 5 to 0 vote. 9.E. PARING SPACES/THE FRIENDS OF SANDOWAY HOUSE NATURE CENTER. INC./EARTH DAY: Consider a request from The Friends of Sandoway House Nature Center,lnc. to reserve parking spaces in the Sandoway Parking Lot to accommodate their 3rd Annual Earth Day Event. Scott Aronson, Parking Management Specialist, stated the Sandoway Nature Center will be holding their annual Earth Day Event on Saturday, Apri123, 2005 between the hours of 10:00 a.m. and 4:00 p.m. The request is to reserve the south half of the Sandoway Parking Lot to accommodate the Busch Wildlife Sanctuary display, parking for visitors and shuttle bus and trolley vehicles. Staff recommends approval of the applicant's request; and to avoid confusion and possible ticketing to event goers using other parking spaces in the lot, staff recommends waiving pazking fees in the lot for the day. Ms. McCarthy stated seeing that the parking lot will get filled quickly she asked if staff has made any provisions for placing "Lot Full" signs because people who aze not participating in this event may be going to the beach. Mr. Aronson stated staff can look into getting a sign made indicating "Lot Full" and ask the Sandoway House Nature Center in exchange for granting this request that they monitor the parking lot and place a sign on A-1-A. Mrs. Ellis moved to approve the request from Sandoway Nature Center to accommodate the Third Annual Earth Day event to reserve the south half of the Sandoway Parking Lot and waive parking fees in the parking lot on Saturday, Apri123, 2005 and the addition of the "Lot Full" sign, seconded by Ms. ~ McCarthy. Upon roll call the Commission voted as follows: Mrs. Archer -Yes; Mr. Levinson -Yes; Ms. McCarthy -Yes; Mayor Perlman -Yes; Mrs. Ellis -Yes. Said motion passed with a 5 to 0 vote. ~ 9.F. OLD SCHOOL SOUARE PARHING GARAGE: Presentation and discussion of revisions to the Old School Square Parking Garage Project to address event sponsor concerns. •' Richard Hasko, Director of Environmental Services, .gave a brief presentation and stated staff met with the primary stakeholders (Old School Square, Chamber of Commerce, the Joint Venture, and the Garlic Festival} involved with sponsoring events that would be utilizing the gazage. Mr. Hasko announced that the consultants from PGAL for this project are present this evening. Mr. Hasko briefly -11- 04/05/05 reviewed Option #10 and noted the overall garage worked very well with the exception of some issues that were identified as far as maneuverability and access for the event participants, the acts, the event sponsors and the organization particularly relative to interfacing with the gazage traffic which all happens with the access on 1st Avenue: He reviewed Option #13 and staff felt this was a very good compromise for addressing the issues. He briefly reviewed the changes to the parking garage. Mr. Hasko stated he feels staff has addressed the concerns of the event sponsors. Mrs. Archer stated she feels this is super. Mr. Levinson stated this is great. Mrs. Ellis inquired about the design for the parking garage. The City Manager stated in his recent email from Diane Colonna she indicated that Toussaint L'Ouverture High School will move out on November 18, 2005. Mr. Levinson stated he would not be supportive of the school staying beyond the current school year because he feels many things can go on there without impacting the Garlic Festival. Mayor Perlman stated he does not understand what the logic is for Toussaint L'Ouverture High School starting another school year and then in the middle of the semester having to relocate. The City Manager stated it is his understanding that the school will actually relocate as of the beginning of the year, however, they apparently need this extra time to get all their things out. Mr. Levinson stated he does not see how it is affordable to wait to November to start demolition which means construction would start at some point in the middle of season. Mr. Hasko stated the next step for staff is to negotiate the design contract with the consultant and would also be going out for a CM at Risk Proposal. Mrs. Ellis inquired about comments expressed by Mr. Levinson regarding the demolition of the school not impacting the Garlic Festival. Mr. Levinson stated he suspects that the demolition could be done before the Garlic Festival and then there would be a cleared site which may provide to be beneficial for staging or trucks. He stated if the City can have a cleared site before the Garlic Festival then construction could start the Monday or Tuesday following the festival. 9.G. HCR MANOR CARE FOUNDATION GRANTlCOMMUNITY HEALTH IMPROVEMENT PROGRAM (CHIP): Consider approval of the application for anon-matching grant to the HCR Manor Care Foundation in. the amount -12- 04/05/05 9_I. Ci11117 ~ ~ ~ SERVICES• Consider approval of Optional Services 4 and 5 of Service Authorization No. 1 with PGAL, Inc. for preparation and submittal of required documents for the Site Plan Review and Appearance Board's approval, for a total additional amount of $46,740.00. Funding is available from 380- 4150-572-63.29 (2004 G.O. BondlOld School Square). Richard Hasko, Director of Environmental Services, stated this item will allow staff to continue on track with the planning portion for the proposed parking facility at Old School Square. PGAL, Inc. (consultant) is effectively complete with the basic scope of services listed in their contract. Mr. Hasko stated the next step would be to develop the conceptual plan for the facility for the Site Plan Review and Appearance Board's approval. Mr. Levinson asked if we are going to be in range once we get construction documents, etc. Mr. Hasko stated the consultant will be coming back with another proposal for the final design and staff will have the opportunity to negotiate this as well. Mayor Perlman asked what the status of the acquisition at this point. Mr. Hasko stated there will be a meeting with the involved parties to discuss this in approximately. a week or so. Mr. Hasko stated the two variables are: (1) completing the land acquisition process and (2) the supplementation of the funding for the construction of the project. Brief discussion between the City Attorney and the Commission followed. It was the consensus of the Commission to move forward with this. Mr. Levinson moved to approve Optional Services 4 and 5 of Service Authorization No. 1 with PGAL, Inc. for preparation and submittal of required documents for SPRAB's approval, seconded by Ms. McCarthy. Upon roll call the Commission voted as follows: Mrs. Ellis -Yes; Mrs. Archer -Yes; Mr. Levinson -Yes; Ms. McCarthy -Yes;. Mayor Perlman -Yes. Said motion passed with a 5 to 0 vote. 9_J. RESOLUTION NO. 24-OS (1VtID-YEAR BUDGET ADJUSTMENT: Consider approval of a resolution making mid-year adjustments to the adopted budget for FY 2005. This caption for Resolution No. 24-OS is a follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING RESOLUTION NO. 75-04 ADOPTED SEPTEMBER 21, 2004, WHICH MADE APPROPRIATIONS OF SUMS OF MONEY FOR ALL NECESSARY EXPENDITURES OF THE CITY OF DELRAY BEACH, FLORIDA, FOR THE FISCAL YEAR 2004/2005, BY .SETTING FORTH THE ANTICIl'ATED REVENUES AND EXPENDITURES FOR THE OPERATING FUNDS OF THE CITY FOR THE FISCAL YEAR 2004/2005; REPEALING ALL RESOLUTIONS INCONSISTENT HEREWITH. -24- 06/07/05 00 ~- a~ ~ ~ ~ .o ~ 0 0 L ~ ~ Q. ~ ~ ~ ~- c~ o c~ ~ 4- ~- o :~= ._ ~ O ~~ ~ ~ c~ '- U O ~~ ~ ~ O ~ (~ O ~ ~ U~ ~ ._ O ' ' -~ ~ ~ O o ~ ~ ~ .o U ~ _ t- - ~ _ -- ~ 00 ~ i' ~ - CCS o~ O ~~ -o ~~ ~~ ~o ~~ ~~ ~Q a~ ~ ~ o O U I- 0 ._ ~ ~ r .o ~~ ~- c~ 4-- ~ ~ ~ .- > ~ •- ~ ~._ ~~ o ~ '- U ~ ~ cn . _ ._ ~ ~ O ~ U ~- .. ~ ~ ~ o .~..~ ~ O ~ U • 4~ W O- ~ c~ .~ C~ > c~ `~ o °~ o ~o o L' N ~~ ~. ~ c~ ~o .o ~~ ~ ~ .- .~_ ~ ~~ N O r- U d- .. ..~ ~o o~ o~ N ~ ~~ • U 0 0 -~ ~~ a o .o ~Q .~ o -~ ~~ ~ o ~~ ~- ~~ ~ a>~ MEMORANDUM To: City Commission From: David T. Harden, City Manager Subject: Proposed $8,000,000 Tax Exempt Line of Credit Date: August 8, 2005 The Finance Department has analyzed bids received relative to an $8,000,000 Tax. Exempt Line of Credit agreement that shall be executed for the purpose of temporarily financing the cost of land acquisition with respect to the Old School Square Park and Parking Garage Project. The Lihe ofiCredit wilt be~reimbursed-with pemtanent frnancing upcan.completion of the project. The Finance Department recommends Resolution No. 56-05 which authorizes SunTrust as the provider of an $8,000,000 Line of Credit. SunTrust Bank bid a variable rate of the 30-day Libor times 77% plus .285°r6 (adjusted every 30-days) for a three (3) year term. Libor (London Interbank Offered Rate) is a common rate index used in the field of finance. Based on fire current day Libor, the rate would be 3.03°10. The agreement will allow for pre-payment at any time without penalty. I concur with their recommendation. c: R.S. O'Connor, Tn3asurer commiss05taxememptloc.doc C.~ `'~ 7. PRESENTATIONS: 7.A. Old School S,guare Parking Garage Presentation Richard Hasko, Director of Environmental Services, stated this is the final form of the proposals for the Old School Square parking garage. He stated this proposal has been presented to numerous boards and committees and asked for direction from the Commission. Ian. Nessler, Consultant with PGAL, briefly explained the proposal for the parking garage and stated there is operational flexibility in addition to the garage functions. Gary Eliopoulos, Architectural Firm for PGAL, briefly reviewed the exterior architectural elevations for the Old School Square parking garage. -Ian Nessler stated over a couple of months they met with nine different boards to review the plans and elevations as seen this evening and presented the comments as well as the information regarding the garage design itself. Mr. Nessler stated there will be between 510 and 525 parking spaces. Mr. Hasko stated the elevations, floor plans, and a little bit of site work will cost approximately $11.4 million. Mayor Perlman stated he is very pleased with the design of the garage and is please that Mr. Nessler has built in some flexibility for the top so that there could be events held there and feels this could be a very interesting feature and good amenity for the community to have this ability. followed. into it. Brief discussion between the Commission, Mr. Nessler, and Mr. Hasko Mr. Hasko stated the $11.4 million has an inflationary contingency built Mr. Levinson stated that the parking garage should be hurricane resistant and noted that this garage could potentially be a good place to park City vehicles in the event of a hurricane. Mr. Hasko stated the Fire ©hief has indicated that these parking structures work well as shelters of last resort in the event of a hurricane. -3- 09/06/05 TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER SUBJECT: AGENDA ITEM # ~ t"" _ RE 7iTi.AR MFFTT7y[: nu,~ ~ 2006 MAXIMUM PRICE (GMP) /OLD SCHOOL SOi ARF LOSS) PARKING GARAGE/CATAi~F[~MO CONSTRUCTION AND DEVELOPMENT, INC• DATE: JUNE 16, 2006 This is before the Commission to consider approval of the Guaranteed Maximum Price (GMP) in the estimated amount of ;15,708,412.64 for the construction of the Old School Square (OSS) Parking Garage Project as submitted by Catalfumo Construction and Development, Inc. The estimated cost of construction is based on the current design documents. Funding, in the amount of ;10,882,000.00, is available from 380-4150-572-63.29 (2004 G.O. Bond/Old School'Square). We will have Ito borrow additional funds to construct the full garage or reduce the scope of the project to bring the cost closer to the available funds. Recommend consideration of the Guaranteed Maximum Price (GMP) in the estimated amount of X15,708,412.64 for the construction of the Old School Square (OSS) Parking Garage Project as submitted by Catalfumo Construcdon and Development, Inc. S:\City Clerk\agenda memos\CM GMP OSS Garage Catalfumo 062006 City Of Delray Beach Department of Environmental Services M E M O R A N D U M ivww mvdelravbeach.com TO: David T. Harden City Manager FROM: Victor Majten ' Deputy Dir r of Public Utilities SUBJECT: Old School Square Parking Garage (P/N 2004-044) Agenda Item: Presentation of ~ ~ ®(GMP) for construction of the parking facility. DATE: June 13, 2006 Attached is a request for staff to present to City Commission for review, discussion, direction and/or approval of the (GMP) for construction of the Old School Squaze Parking Garage, project 2004-044. Staff will present the estimated cost of construction based on the current design documents. Detailed costs are itemized in the proposal submitted by Catalfumo Construction and Development, Inc., titled Phase 4 Construction Documents/GMP Estimate. Section 5 of the proposal, Constructability of Design Details Reflecting Feasibility/Cost/Schedule, identifies elements under consideration in the project design. Section 13, Proposal, clarifies the basis of the GMP estimate. Presently, the GMP cost estimate is $15,708,412.64. Funding is available from Account # 380-4150-572-63.29, 2004 G.O. Bond/ Old School Square, in the amount of $10,882,000. c cc: Richard C. Hasko, P.E.; Diroctor of Environmental Services ~ E Randal Krejcatek; City Engineer/ ESD Rafael Ballestero; Dep. Dir. Of Construction City Clerks Office Agenda File 06-20-06 Projxt File 2004044 (A) S:\EngAdmin\Projects1200412004-044\OFFICIALWgenda memo Cataf GMP 06-20-06.doc 9.E. INTERLOCAL AGREEMENT/SCHOOL BUAKll Ur' rALm BEACH COUNTY: Consider approval of an Interlocal Agreement between the City and the School Board of Palm Beach County in the amount of $834,750.00 for the purchase ~ of 7.42 acres and the construction of the Soccer Complex at the old Atlantic High School site. Terrill Barton, Assistant City Attorney, stated this is an Interlocal Agreement between the Palm Beach County School Boazd and the City of Delray Beach for the purchase and construction of land (northwest corner) at the old Atlantic High School site located at 2501 Seacrest Boulevard. Mrs. Barton stated the agreement states that the City of Delray Beach would allow the Palm Beach County School Board to utilize the soccer fields for recreational purposes during the school day and use them in the evening and on weekends. Also, the City of Delray Beach would be allowed to~use the old gym at the old Atlantic High School site for basketball practices and the Palm Beach County School Board would be allowed to utilize the Temple Sinai fields at the new Atlantic High School site for practices, etc. Mrs. Barton stated attached to this agreement is a Contract for Sale and Purchase of Land which would allow the City of Delray Beach to purchase approximately 7.42 acres on the site to construct three soccer fields (this will be before the Commission on July 11, 2006). She stated the School Boazd is trying to expedite this to get it before their Boazd at their July 19`x' meeting and they have to write the report this week. Mayor Perlman commended Mrs. Barton for a job well done and stated he has been assured that this will be on Palm Beach County School Board Agenda for July 19, 2006. Mrs. Montague moved to approve the Interlocal Agreement between the City of Delray Beach and the Palm Beach County School Boazd for the purchase and the construction of the soccer complex, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mayor Perlman -Yes; Mrs. Ellis -Yes; Mr. Fetzer - Yes; Mrs. Montague -Yes. Said motion passed with a 4 to 0 vote. 9.F. :::T-Tl lf~i ~l ~% ®!~^~ ill (GMP)/OLD SCHOOL SQUARE (OSS) PARING GARAGE/CATALFUMO CONSTRUCTION. AND DEVELOPMENT. INC.: Consider approval of the ~ (GMP) in the amount of $15,708,412.64 for the construction of the Old School Squaze (OSS) Parking Garage Project as submitted by Catalfumo Construction and Development, Inc. Funding is available from 380-4150-572-63.29 (2004 G.O. Bond/Old School Square}. Richazd Hasko, Director of Environmental Services, stated he was before the Commission to present the ~ (GMP) for the Old School Square (OSS) Parking Garage Project. Present to answer questions were Ed Meinzinger from Catalfiuno Construction Ltd., Ian Nessler and Bruno Phillips from Pierce Goodwin Alexander & Linville (PGAL} Architects, Inc. Referencing Tab number three (3), Mr. Hasko noted this was the construction time schedule for the gazage. According to the current schedule, completion of the garage is estimated at mid to late summer of 2007. Tab number four (4) is the cost summary for the entire project with a total of -18- 06/20/06 $15,708,412.64; this is for the garage as it is planned with 510-520 spaces, 16,800 square feet of retail, restroom facility to service the park, and the police substation. Tab number five (5), second page, contains items which could affect the cost and its reduction. Mr. Hasko discussed restructuring and phasing issues. Discussion between the Commission and staff followed concerning feasibility of alternative construction issues. Mrs. Montague moved to approve the Guaranteed Maximum Price (GMP) in the estimated amount of $15,708,412.64 for the construction of the Old School Square (OSS) Parking Garage Project, seconded by Mrs. Ellis. Upon roll call the Commission voted as follows: Mrs. Ellis -Yes; Mr. Fetzer -Yes; Mrs. Montague -Yes; Mayor Perlman -Yes. Said motion passed with a 4 to 0 vote. 9.G. APPOINTMENT OF OUTSIDE COUNSEL/PALERMO V. CITY OF ,..._ DELRAY BEACH: Consider the appointment of Leonard Cazson, Esq. and Lucy Tumer, Esq. of Carson & Adkins, P.A. to act as outside counsel for the City in the case of Palermo v. City of Delray Beach. Brian Shutt, Assistant City Attorney, stated the City Attorney's office is requesting the appointment of Leonard Carson, Esq. and Lucy Turner, Esq. of Carson & Adkins, P.A. to act as outside counsel for the City of Dehsy Beach in the case of Palermo v. City of Dekay Beach. Mrs. Ellis moved to approve the appointment of Leonard Carson, Esq. and Lucy Turner, Esq. of Carson & Adkins, P.A. to act as outside counsel for the City of Delray Beach in the case of Palermo v. City of Delray Beach and the Delray Beach Police Department, seconded by Mrs. Montague. Upon roll call the Commission voted as follows: Mr. Fetzer -Yes; Mrs. Montague -Yes; Mayor Perlman -Yes; Mrs. Ellis - Yes. Said motion passed with a 4 to 0 vote. 9.H. APPOINTMENTS TO THE CIVIL SERVICE BOARD: Appoint two (2) regular members to the Civil Service Boazd for two (2) yeaz terms ending July 1, 2008. Based upon the rotation system, the appointments will be made by Commissioner Ellis (Seat #1) and Commissioner Fetzer (Seat #2). Mrs. Ellis moved to reappoint Emily Dobard as a regular member to the Civil Service Board for a two (2) year term ending July 1, 2008, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mrs. Montague -Yes; Mayor Perlman -Yes; Mrs. Ellis -Yes; Mr. Fetzer -Yes. Said motion. passed with a 4 to 0 vote. Mr. Fetzer moved to reappoint Kristin Christensen as a regular member to the Civil Service Board for a two (2) year term ending July 1, 2008, seconded by Mrs. Ellis. Upon roll call the Commission voted as follows: Mayor Perlman -Yes; Mrs. Ellis - Yes; Mr. Fetzer -Yes; Mrs. Montague -Yes. Said motion passed with a 4 to 0 vote. -19- ' 06/20/06 a~ o ~ o ~ ~ ~ CCS O ~' M ~ V ~ ~ C~ ~ L, C~ -~ ~ ~. O ~ ~ ~ ~" ,6~ ~ ~ Cl~ O '~ ~ ~ -~ N 4~ ~ ~ O N '~ ~ ~ 4~ ~ =~= 4- ~ ~ O ~ ~ ~ O ~ O O ~ ~ V .v O ~ 4- ~ ~- O ~ ~ O p ~ {~ O ~ O O O ~ ~ - ~ O '}- O ti ~ I`~N O I~ O •- O p O ~ {~} .~.r ~ ~ d' ~ O U o0 07 d' ~ '~ Cn ~ O O ~ N {~9- ear) 4-- Q ~ ~' • • • - (~ 2004 c;to BOMD PARKS d. RECREATICMaI AS OF FEBRUARY 28, 20e1 -- FUl~pilO:SO4l~RCES: 14,057;995 2004 GO PARKS 8 RECREATK>IV BOND 8,408;210'2007 PARIf,S d, f~ECI~EATK)N REVENUE BOND 6,897,370 LIFIE OF CREDIT OES.P.ARKING GARAGE 2.004,005 FiARIDA FOREVER GRANTWS 6,560,000 SALE PROCEEDS~OSS PARKING GARAGE 8,500;000 CRA CONI'RIBUTK3N-OS$ PARKING GARAGE • 1.000.000 COUNTYGRANT-OS3 PARKING GARAGE 2,200,909 -STATE GRANT WESTERN SENIOR CENTER 400,000 STATE GRANT-LAKE IDA PARK/BOY SCOUT HUT 100,000 PBC-BOATING IMPR01/ ~ LAKE IDA PARK 879,000 SPECIAL PROJECT FUND TRANSFER-0SS PARKING GARAGE 517,150 INTEREST EARNINGS 58,843 ~?EL•RAY LIBRARY CONTRIBUTION ' 10,000,000 2005 GO PARKS 8 RECREAt10N BONb TOTAL REVENUE TITLE BUDCi.ET TO DATE BALANCE .LAND AUBURN TRACE RETENTKNIlHEAD START 1,500,000 1,500,000 0 0 0 NEIGHBORHOOD'PARKS 1,280,028 1;280,026 0 0 0 OLD SCHOO). SQUARE 13,852,005 13;710,950 141,055 0 141,055 SENKN2 CENTERNVESTERN COMM CTR 5,187,869 ~ 3,937,049 150,840 0 1,250,840 SOCCER COMPLEX 1.373,252 834,750 538.502 0 538;502 TOTAL LAND 23.173,172 21,242:774 1,930,398 0 1,930,398 BUM.DIWC45 CATHERINE STRONG. CENTER CATHERINE 8TRONG CTR-PROMOTIONAL CHRGS CATHERINE STRONG C')•R-REFRESHMENTS, ETC D$ SWIM 8 TENNIS CTR-PROMOTIONAL DB SWIM 3 TENNI8 CTR-REFRESIiMENT, ETC DELRAY SWIM 8 TENNIS CENTER POMPEY PARK EXPANSK)N SENIOR CENTERfWESTERN COMMCTR SENIOR CENTERNVESTERN COMM CTR TOTAL BUILDINGS IN~ROVEMENTS BEXLEY PARK BOY SCOUT NUT PARK BOY SCOUT HUT PARK REFRE3HMENTS/PROMOTKNrAL CORNELL PARK CORNELL PARK-REFRESNMENTS EAGLE PARK IMPROVEMENTS LAKE IDA PARK LAKE IDA PARK-REFRESMENTS,PROMOTK)NAL COSTS NEIGHBORHOOD PARKS OLD SCHOOL SQUARE OTHER,IMPROVEMENTS OLD SCHOOL SQUARE PARKING GARAGE OLD SCHOOL SQUARE PARK.GARAGE- ETC OTHER PARK IMPROVEMENTS CITYWIDE OTHER PROFESS SERV-CITYIMDE.PARKS OTHER PROMOTIONAL ACTMTIES a PROMOTIONAL COST POMPEY PARK GYM FLOOR POMPEY PARK/COMMUNITY CENTER SOCCER COMPLEX SWINTON AVE BEAUTIFICATION PH II TOTALIMPROVEAAENTS FURNITURE 8 EQUIPMENT BEACN FURNITURE NEIGHBORHOOD PARKS-0THER EQUIPMENT GS'750 NEW DELRAY LIBRARY OTHER PARKS CITYWIDE-OTHER CURRENT CHRGS TOTAL FURNITURE 3 EQUIPMENT OTHER EXPENSES BOND ISSUANCE EXPENSE PROJECT RESERVE TRSFR TO GENERAL CONSTRUCTION FUND TRSFR TO SPECIAL PROJECT FUND TOTAL OTHER EXPENSES PROJECT TQTAL 2,052,330 2,035,069 17,241, 118 17,123 4,491 4,481 0 0 0 697 697 0 0 0 2,818 2,818 0 0 0 846 946 (0) 0 (p) 868,241 835.703 30,538 237 30,301 1,299,625 74,708 1,224,917 8,442 1,218,474 579 0 579 578 0 7,203,025 1,645,311 5,5b7,714 241,345 5,3'18,369 11,430.750' ~ 4; .760. 6, . ,890 ~ 248,721 8;582,269 991,975 100,555. ~ 891,420 51,503 839,916 652,540 , 557,022 135,518 1,500 134,018 7.,75 7.;75 ro) 0 (o) 324.840 268.800 55.840 400 55.440 980 980. - 0 0 34.949 253 34.888 0 34,886 901,985 714,522 187,443 1,252 188,191 9;665 9,884 1 0 1 1,808,588 1,121,130 887,456 852,011 35;445 48,740 49.671 69 0 ~ 18,834,530 8,094,918 8,739.814 8,838,255 (98,842) 2,315 2,315 (0) 0 (0) 130,510 130,510 0 0 0 98,727 98,716 11 0 11 .2,014 0. 2,014 0 2,014 67,000 87,000 - 0 0 585.039 35 565;004 0 565,OOd 809;475 a0o,884 so6,991 39,500 sss,4g1 3x,231 34,z31 - 0 0 23,366i,I438 11,458;360 11;908;076 9,582,422 2,325,654 63,180 3,090 60.100 0 60,100 43,35D 24,856 18,484 17,440 1,054 1,047,225 1,047,225 (0) 0 (0) 4,960 4,961 {1) 0 (1} 1,158,725 1,080;133 78;592 17,440 61,153 189,815 199,815 - 0 0 222.000 0 222.000 0 222.000 13,284 13,284 - 0 0 n,iao 17,100 - o - 0 452,199 230.199 222,000 - 222.000 x;681,282 38,611,228 20,970... 9;848,b83 11;121;473 w Q~ L Z -- •- - ~ ~ d' 0 ~ ~ d' ~ -- ~ ~ N M M ~ - U O C~ C~ ~ oo c~ ~t Q ~ M r - ~ + - -- ~ ~ -~- N ~ -~- O C~ ~ ~-- LL R 3 d ~O a` !0 a ~o V ~o a C t r y ~ O O F ~ L C N O C ~ .Q ~ q L S G h o ~ O °~ U p T p ~ N X m O O N C m C N C m S (nD N ~ N O O~ O O C C? 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E C LL ~ ~ C N O O O Iq O t0 O C ~ ~ O C LL N C C c=iO= ~ U U U U v O ~ O O O ~j U !) V U 9 p o 0 ° a o o ° 0 0 0 b~ m ~ ~ N A W N M cO V ~ ~ tl 9 N O Z C W ~_ V a u ~ o a ~ w a w+ ~ ~+ ~ $ a a ~ 9 q L ~ v Z W C ~C ; V O tJ' O C w1 = ryj K N U J N ~ N ~ N O pN O ~ ~ {Oy ~ N 10 G 7 d .O a` ~o a !0 V !C d } V O C C C m ~~ ~ E ~ ~ '~ m E E m , E U ~ a m n c ° ~ ~ ii a d ~ N o v ~ s Y r i p ' ~ a ~ w pE t ~EJ ~ o m ~ N O ~ ~ N n. ~~ ~ ~ ~ a ~ f00 N n O ~ C N O d C C ~ C C L C ~ O ~ ~ d r O x ~ = > ~ C '~ 2 ,2 ~ f0 L c ~ ~ y9 ~ # O + U N O . ° `~' 3 p ~ o. U ~ 3 c c ~"0 ° o c 3 o o c `o .4 .4 °:o ~ ° ~ o ~ o~ c A ° v v L E a> > ~ E m ~ a '; c o m m ~ E ~ ~ C ° E aNi t0 L ~ ch o t c ° . `~ C O YN O U d ~p G f0 01 ~" ~ y . . C O m N A yj N O C C O O N w a O c N E ,L.. 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O U Q U Q Q U Q Q Iq lL U LL U Q U lL U lL 10 N U CI Q Q fn a' N N ~ ~ ~ ~ r r ~~ ~ ~ ~ ~ ~° ~ ~ ~ m ~O v ~ a M M e» ~ w ~ ~ ~ w r en r ~+ b ~ ~ °o o °o N °o o ~ ~ o o0 m oe ro o °o ~ m r (~ ~ ~ ~ }f; V N ~ ~ ~ N M O! ~ ~y 0 ~ W 1+i N ~ W W ~ f9 ON1 ~ M G W M ~ ~ ~ fA ~£ O N O t+l O V O W C ~ N C LL r O 16 C N R C ~ r O N O v0= C> U U U p O U O O V V V V U V D O Oi O O i N N O ~ A ~ b ~ ~ ~ ~ C! C ~ ~ ~ ~ _0 N ° ~ O U ~ ~ c 8 C _O Zi ~ a ~ o ~ m = U ~ ~ O C 6 U C ~ ~ ~ j C ° ~ ~ W M 3° 10 3 C7 0 ~ ° ~ m E 3 n a ~ ~ u ~"' S ~ +~ T ° ~ ~ O ` 3 ~ a ~ a ~ N 33 s ~ s a` p N N N N N lC 3 N V m ~O a` :° V L ~_ h L ~ L O fA O Ip N O) c ] t6 Y N r 3 ~ U f0 C m a A d m~ o m ~ d 'o o c Q ~ d v c ~ E' ~ ~ ,Z t0 d 4. d ~ m > o v ~ w a o V J Q~ o ~ ~ o > 'c + Q >> L o n E 16 p (t ~E C m ~- ~ L d ~'~ ~ C o ~ ~ ~ O L O ~ ~ in d v~ N C ~F Tj L N ' 3 p d~ N U ~ ~ ~ y _ c M c N ~ O tC9 ~ f0 L ~ rL-~ C ~ 'O C c ~ ~ ~ T N R M m N ~ N ~ 3~ O ~ ~ ~ L O ~ ~ ~ ~ O d ~ J 3 x E c O f6 c ~ J c J v O o'w ~ ~ Z a m ~ ~ N U E> > ~ f' ° E m a~ ~ a>i J r ~ L q n m ° d~ (0 ~ ~ R C L Q L E rn ~ m c m ca o m n m~ ~ ~ mJ ~ ° ~' ~ E i- ° N w~ c c • rn 3 N ~ ~ ~~ C O O d C p O~ G N t0 d E ~ .-~ C C c y rn ~~v m~ Ec c gQ m rA x~ E > ~o m ~ O. o o E~ W ~ o Y c E C r ~ O ° G E ~ wO ~ o. ~ ~ m ~ m ~o T n m . u ,g m d y° ia~ ~ m m 3 r ~ `a d° ~ j o c ; ¢ ~` Y m s m wJ O C ~ i ~ ° C C i 01 tj C d C ^O' w ~ ~ l~ 0 C d d ~ d Q y E _ _ ~ j C 'y c m 0 E¢ C~ ~ c .~ > ' a m ry m Q ,O R y Q ~ o ` o~ R ° ~ "w V y .O L c E > w 'x J ~L ~ J E x m~ °a m d " ° °o r a a o ma Q ° d Q ° E~ o c ~ d m ~ lO q co ° .~ m m L `~ co c~ °°' c ° co ~ ,~ ~ ~ ~ d c _3 E f0a i `o 'O ~ o m~ , ° co d c c d of m c rn r~ c o ~ 'o Ti in c r io n .N c a oc _ ~ c c Vj cE _ r3 E E~ ~ o ~ 2n 2 ~ o ~. c u aEi ~ ~ ~ a i c m ~ '~ > 'p v ,~ ~ a ° ~ ~ 2 ~ ~ ~ m ~ N ~ ~ ° o ~ 3 ~ ~ ° " ri ~' n ' c r v~ ~ m f ~ o v ' v a a o E o w °~ 2 ~ m E _ ~` m o m Y ~ v ~ m J ?~ a i o a i ° ~ o > w 'o v o v d v y c m ~ o oc o ar a .... ~c a mo m ai y> O t0 ~c ° ~ x ° xQ a m ° F'i a d ~e m Q ~ o `° ° ~ J RQ o ? n ~ R Q ~ c L o mm c y ' c ; o. ~ E T m c d d~ c d ~ ~ o o o d o L ~ 2i d Ti d° Y a J ~ d i N n C N d d Q d q O N O n~ d O Q Q N } Q O O O 3 0 U Ul n Q . q ~ N . U L V U (~A ~j ~ n n R VNl ~ N ~rO (0 a d p. N wO y Q E r o a o d " y c q o p o o N o ~ o E o m o o E o w R Ti '> m m c ~ ° d i'i c m o Ti ~ o o F'i ~ m v ,~ ~, ° " " ~ " ~ ° m > Q y " m " 'o ' 3 ~ o, o L _ ' " >, ~. ' Z m 3 a O o. y O Ti d ; d 3 0_ O o. O m 3 c m N N R N n N O~ n= p n v q p n d c y n~ C w t6 w ~ d Q N T Q N F' (~ ~ d ~ c w t0 ~ C 'c > g ~ Lo m v> v`~ vt v~ o vc°iap vo E'i ~ R v~' v> n i ~a °- i ~o v~ v Fi ~ i~w= a~ o a~ 5 a~ ~' a> 5 a> c m a~ m e ' a~ Q ~ c m c v d v ~ c d m c o vE vro yr va~i a~~ vm Q o o v ~n E o 5 o vd c Q o Quo U ate' ¢m ¢3 am avJ ao. d U aU ¢~ LL U i~ U ¢~ ¢ a U a~U ~ g m ~ n ~ m ~ ~ aa~i v i» a N aMi ~ M w w w 'O ~n 1D w A b C O O o tV M N m V o O W OD 0 ~ O O ~ 10 O O V~ ~ M ~ O ~ O M O ~ O r N ~ ~ O O O O ~ O ~ 1+q1 ~ r ~ n ~ ap ~ 0 ~ ~ .N- Onl ~ O fA N V op O Nf N N fH fA f9 fA M N ~ ~ N fA ~ N ~ N ~ {y th V h 10 ~ LL ~ N 10 IL A LL ' N A LL W IL A E o 0 o C o o n o o M ~ O o ~+ V O= U U V ti V V p V V p p U V O O V V V V U O r ~ o ~ ~ ~ ~ ~ o m 0 °io m ~ ~ 0 ~ °'? ~ ~ O r to tV 19 r ~q V ~ ~ Nf <E ~ W W 2 N G Q Q W O = m b q q Z ~q i ~ z O O ~ c < F F w O ~ > > J o. ~, m Z = m q m w o o ~ Y ~ f.1 U Q L u W t1 JN JN O. N m S' ~ O W y OW. Tn = G N N 6 q ~ (7 V1 iO p Z Q ~ Qp ~ V 9 C O gp ~ p O N p l O~ O A 01 p O 1 O~ d N O !d 3 V d .O a` a v ~o c a ~ °= ~ ` ~ N W a C m _ U N `~ ~ U O C H ~p ~- ~ m o ~ E ~i a m ° N '~ 2 m m ~ » m R n ~ ~ 3 ~ O m N U n N Q . C C d N Ol N ~ C t0 ~ °~ ~ ~ E O ~ N ~ ° Q `° V C_ `° °i N O a c Q ~ a (V Z c E a m rn c n m ° E o o c ~ m 3 a o c m ~' x c o .y E >. ~ ~ m N ~ ' D LO. ~ 'c O n h _ m ac ci E a . ~ ~ ~ rn c ~ ~~ o~ 1° E ii 'c ~ :' o m ~ O ~ y ~U ~ _ > ~ o C '~ 3 m c m Q '~° Y o io ~> io D m ~ M 7~i p in t6 N ~ o ~L C mp° O N C_ ~ w p ~ ~ "N' C 3 C YA C N C h C N C Ur Q) (n C M C d r C N~ > ~ c N c O ~_ O M ~ O ~ ~ O N 01 ~ V O n> O_ C n ; O N t9 d l6 C 2 ° 2 ° 2 0 2 > ~ ~ d `n 2 C E ~ ~" ~.1 2 . 'O ~ ~ TJ ~ c v Ti I'i m mw a Z o a~ o y ~ o Si ~ `~ o a Q N n d Q c U a c U ~ c U o c U 'e J ~ G~ > >_ C ~j a ~ c U m 'L-' -p ~ c U 3 c a ~ c U ~ C N Z U ~ d ~ y C ~ p pJJ ~ ? Ul N C y _ Ol C _ m C ~ N T TJ ~ C N U C ~ ~.1 C C n_ Q n ~ n n C n j o n n C n j o Q n j d J d .~ a N O E ~j o `O n d ~3 o Q n ~ N c W J o G n ~~ l0 o a0 3 ~ O ~' ~ ~i ~ ~ ~ n n w n E v°~i w n ~' w° v o N w ~' m 3 o E o ~ ~ o ° .Q o ~ -Q m o o c 16 o ~~ a o ~ E ~ o o ~ E m o ,., o cn o ° ~ ~ c ~ ~~ „' m Ti m ; t"i m 3 ~ 3 d n d n = d n ~ ti ; d n v ; n ;~ Yi ; ~ ~3 0 ~ m n m d o an d n m o 0 0 U o d ~ m G m o U m G t0 ~ °U ~ N W anny G m ~ m c Q CJ O ~ ~ . N ~ a a C V ~ N a a (n n m n ~~ ~ c m c m c m c a ac o - o'E C ~ C O ~ O c o ~ ny ~ O U C lL O U C lL O U ~ IL O U a Q a Q D a p Q L LL O U Q IL U Q w lL U _ n n~~ lL C C o O O Of ~ N ~ ~ ~ b 00f _ O 1 n O~ ^ i. O ~ V~ O O O N O O M 1~ M ~ N N 0 N M M O M [p tD V N O K W N N ~ p tl 9 M ~ x ~ N ~ N ~ ~ n °m a < o °o, o° °o, ~ O O p O O O O O O O O O {O p , N f0 ~ N O N N ~ h ~ ~ ~ ~ ~ U QQ °If! p p N °t9 N OM N WW ~ eM OM O I~ NK ~ G N ~ f9 ' ~O N Oi 1fl Of N Vl ~ N N m.E C LL C ~ C ~ r p N O M 0 C a r 0 N 0 r C C LL N C U O= O O C ci ci ci p ci U c5 p p V V U U V V 9 p O H 00 ~ ~ N V ~ M ~ ~ f°O N ~ O OMi_ ~ O ~ OM V a OC 2 F Z ~ z E n w F J z ~ W V U O a i z 0 rc a a a w~ aw _ ~ ag ~ ~ _ .e ~ a a <3 z o w ~ o~ ~° X V D ~ W W Z Q~ ~ J W y n F ; Q LL W ~ r N 7 J ~ Q ~ ~ J O 0 S ~ ~ ~'C 3> 7 U N U r d Z a O N O V V V Z ` OQ p! Ol +I CQ@I W MMf 01 ~ ~j ~ qq 41 Of a r l0 3 V d ~O a W ~Q V V ~_ U W ~ ~ O f0 .Q C C ~ K ~O N U ~ C C > ° d E o ,~ E o ~ O 7 O O O ~ m m ~ m v a ° °- o ~ N v~ ~j Eo c ~ `o U C C7 f0 L O y ~ d 3 v E m a> 2m 'oc rn Y ~ ~ °: E .° c J p N O ~ {0 N yTi t 0 Nw C d E ` ~ .C v y E N 'o ~' O v d m y l9 o. O > N ~0 d ~O C C ~ n ~ C C ~L w E Vi y°j U ~ .C.. ° 7 O O ~ pp G 0 N ~ aO C d O p O O O N C ~y GO h f0 C f ° C R C ~ O C ~ N C O > N O ° C ~ W C O O C ~ G ~ ri ° ~ O LO ° ~ O E O V N ° ~ ° T _° N 2 0 2 ~ ~ 0 ~ c° ~ $ 2 ~ ~+ ~ ~ ~' r o ~ ~ 2 v N E ~ 2 2 0 } /1 7 N N J ' C C 0 O N ~ O m v c°i ~ v > R O a v 'O ~ v 1 Y A V N ~ E C v ~ C v -O ~ C v l0 ~ C _ ~ ~ ~ C d d ~ J N 7 0 O C ~ N m C d C J N d N d ~ O G N 'Q J O Q O O. C O O ~ O~ O. j O D. O O ~ ~ ~ n ~ .~ ~ ~ ~ # ~~ ~ ~ .~ ~ ° - ° E o T) E o ° U E ° U P ~ ~° O +.. v o p U Q U m ~ m n t"i 3 ~ 3 E~ Ti w '~ 3 m 3 W ~ Fi E m ~ ° ~ a> ° m 'Ci d ~ '° Fi O w y °; °° ~ E aO1i m F"i c '~ m Fi ° ~ m Fi m ~° °' ~° ~ °. ~ o. ~ m '~ °' L'i m ~° ~ m a ~° a c w c -° m c m ~ c mR ~O~E u c v ~ a c v m ~ c v m i v i~ v ¢ ~ v v v Q m v i ~ W1 C R CQD. t~}} Op ~ ~ _~ ~ ~ ~ N O O ~ N N m ~ V a~D ~O OND t0 N ~O N t0 ~ ~ N ~ N N O O ' ~{ N ~j N ~(1 CO N OD O ~ 0 {QVS Oi N Of N ~j W N N N ~ N p h OM a ~ m N N N N N Oi ~ Oaf N I~ NN 1~ N b V~ as e 0 0 N o o 0 0 uj f9 o 0 o N °e, e 0 e 1H N e 0 o N o 0 0 N o 0 0 N e 0 0 N o 0 o N 0 0 e N o 0 o t9 e 0 0 N o 0 0 N e 0 0 N ~~'ii w" E C ~ O C LL ry C LL O _C LL ry A C W A C r A C r ~oZ' c ~ o o ~ o d d o V U V U U V U 9 °o °o °o 0 ° o 0 ri 0 u> .. td! y E b a G O N ~ N N O ~ N) fNV O~ 0 ~ o p ~ N N N N m h O ~ CC U N t9 N N fA N ~ r = N O o ~ °~ D p > ~ ~ F U ~ ~ Q _4 ~ o W V C7 F O ~y~W ~- W m = mH Y S H rj 2 W m W Q S fq W . 2y _ Z N > Q W R' y= 0 6 d W y W W F W ~ U> LL 3 F y W F ~ O J O W C7 J == Jo O I 11 ~ ~ GW ~ N W G d (~ Z i N y j W > ~ O ~ 7 =_Q ~ O ~ ~ H G J ~ O U U ~ ~ W ~ = I~~ W I m H y ~ U O a S< rc ~ G M Yf Q f 0 4 4 44 q e ~ i ~ i O1 Ei Ei a` {C~ G N d .O a W Q. 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(OU~ m O p m m w m ~ m m N ~ ~ ~ n U ~ ~ N ~ N N U '~ N O U P U ~ U ~ V P ~ N O ~ V P U m 3 Fig- m aci ~ m 3 v-~ m e Fi m 3 Fi m 3 ~ m 3 ~ m 3 yv n c ~ m 3 ~ m ; t"i l0 ~ LJ E n m m E m t" Q m n E m P m F m P m ti m Q m Ti m Q m Yi U J 3 od^o ~ Q ~J Q i i G c ~ n m c v~ ~ c m c co c io c v c is c ~ o o U v E Q 5 LL o U v o < F' c 1L o U c LL o U 5 LL o U c lL o U v m Q r g k. o U lL U LL A ~ ~ ~ ~ s o o a ~ ~ f0 1p ~ pp 1f1 (,1 ~ N N p ~ ~ O O ~ r ~ Q O ~ N ~ ON1 O N fA N N W N to N N ~ H M f9 eh N ~ ~ ~ N f9 ~ N b ~ C °o °e ° N ° ~ ° O O O O O O O rn N O m 1H O O O O O a V ~ N t~l ~ M O ~ O ~ ~ ~ O O O ~ O O N O df O N N ~ O fA h ~ O ~ O M O fA O N V th 6N9 M N ~ ~ t7 ~ ~ p fA V! ~ N y P ~ A~ E O C LL, N ~ O C ~y N C LL C li C IL ~ R C LL ry C IL ~ C ~ VOZ v O v O O O O ~ O O O (j V U U U V U U Fi ~ b V ~ M ~ ~ ~ N ar0 ~ 0 O O O o N ~ ~ N ONi_ ~ O o ~ ~ COp 0 fD N O ~ y y M ~ fA ~ 1A N~ ~ fA V N ~ m O ~ W n F ~ > ~ ~ $ N ~ O N F pN[ ~ w N O ~n O W n~ R Z y z ~ ~ m C > W K ~ ~ W a H ~ Y W ~ m ~ ~ N F < a z ~ W O W W < O ~ Q d < J < = J U J O = H Q 2 U W ~ y< d t<q LL J O OC W 2 m W N 0 p Z O t0 M M M e +/ O O W a` 3 V m ~O a` r ~Q V L LL m c v N E U L C m N Ll1 U '~ N L m N n ~ ... . O L ~ O N C '~ ' 0 D ' _~ 3 3 m O L N ^ O ~ N ~ :° p ~ 2 d m N o . t . L N ~ y w O Ip W C N D. ~O .a U ~ d 'C N v T f6 O ~p 'O C y A -Q N E m o a d m ~ a m h ro ~ m ;e m c O ry 3 Y ~ o U ~ t0 ~ o N n Q - m 4 U N b ~ ~ C ~ O. N O. 'c ~ o d v v m ~ 3 ~ y n ,~ E D ~~ V 3 ~ c c a U Z` N O L d C ..+ C ~ 3 ~ m E 00 R N O U p L C ~ _ O ~ N U y U ~ o Q1 ~ ~+ ~ ~ U ~ o C oQ ~ ~ a ~ ~ f0 mcA c°~ ~ C O j p ~ f.1 O Vl O O a C C O ~ ~ N p ' ~ to O t0 C~ tl~9 2 ~ c T 2 ~ o ~ ~ 2 ~ ~Z 2 E o '2 ~° E o O .C d ~ CO y O N 'O p m N U t6 Q U o ~oj o ~~ o a o ` ~ ~`° U 3 a u c~ a or n Toi ~~ " ~ F"i = ~ d t'i ~ v ew C 0 O m C C N C N O C (n N ~.1 C N ~ w C Q ~ m V ~ rj .N Q J n G y' ~~ Q N . 1j n C d+~ rJ oEo _ m a om c a o o. ~ ~ oN n ~ Q o a ~ A Qa n ca o ~ ~ o m.Q ~ r~ ~ o'~ v ° E o ~ ~ o a oZ ~ ~ O ~ o ~ ~ o Q o ~ Ti m ~ ; .o Ti ~ m Ei ; o ~ t"i .. 3 n O 2'i d ; ~ y o. ~ O Z'i d W ti d ul ~ Q4N N ti m_._ QE ~ N Q W p N D a W ~' ~ ° N ~ ~ ~~ n ~° °. = co O ~ a Ti m a _ ~ .d D ~ ~ ' ~ ~ d C C C C C~ C C C b C O C 'O C O 'O '. C U ii ~ a U ii 3 U u. U Q ii ° U ¢ ii U ¢ m iL °p °0 0 0 V~ o ? vii h ° rn m roi 0 ion 0 O p N N , ~ ~9 ~ N N N ~ N b ~ e o o o 0 ~ ~ o ° ° °o, °o °o °o °o, V a ~ N ag'o. 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