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06-04-07 Agenda Reg
City of Delray Beach Regular Commission Meeting ~~ . ~~ ~. RULE$ FOR PUBLIC PARTICIPATION 1. PUBLIC COMMENT: The public is encouraged to offer comments with the order of presentation being as follows: City Staff, public comments, Commission discussion and official action. City Commission meetings are business meetings Monday, June 4, 2007 and the right to limit discussion rests with the Commission. Generally, remarks by an individual will be limited to three minutes or less. The Mayor or Regular Meeting 6:00 p.m. presiding officer has discretion to adjust the amount of time allocated. Public Hearings 7:00 p.m. Commission Chambers A. Public Hearings: Any citizen is entitled to speak on items under this Delray Beach City Hall section. B. Comments and Inquiries on Non-Agenda Items from the Public: Any citizen is entitled to be heard concerning any matter within the scope of jurisdiction of the Commission under this section. The Commission may withhold comment or direct the City Manager to take action on requests or comments. C. Regular Agenda and First Reading Items: Public input on agendaed items, other than those that are specifically set for a formal public hearing, shall be allowed when agreed by consensus of the City Commission. Z. SIGN IN SHEET: Prior to the start of the Commission Meeting, individuals wishing to address public hearing or non-agendaed items should sign in on the sheet located on the right side of the dais. If you are not able to do so prior to the start of the meeting, you may still address the Commission on an appropriate item. The primary purpose of the sign-in sheet is to assist staff with record keeping. Therefore, when you come up to the podium to speak, please complete the sign-in sheet if you have not already done so. 3. ADDRESSING THE COMMI83ION: At the appropriate time, please step up to the podium and state your name and address for the record. All comments must be addressed to the Commission as a body and not to individuals. Any person making impertinent or slanderous remarks or who becomes boisterous while addressing the Commission shall be barred by the presiding officer from speaking further, unless permission to continue or again address the Commission is granted by a majority vote of the Commission members present. APPELLATE PROCEDURES Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. 100 NW 1st Avenue Delray Beach, Florida 33444 The Ciry will furnish auxiliary aids and services to afford an individual with a disability an opportunity to participate in and enjoy the benefits of a service, Phone• (561) 243-7000 program, or activity conducted by the Ciry. Contact Doug Smith at 243-7010, Fax• • (561) 243-3774 24 hours prior to the event in order for the Ciry to accommodate your request. • Adaptive listening devices are available for meetings in the Commission Chambers. 1. ROLL CALL. 2. INVOCATION. 3. PLEDGE OF ALLEGIANCE TO THE FLAG. 4. AGENDA APPROVAL. 5. APPROVAL OF MINUTES: • May 15, 2007 -Regular Meeting 6. PROCLAMATIONS: A. National Clean Beaches Week -June 29 -July 5, 2007 B. Parks and Recreation Month -July 2007 C. Recognizing and Commending Ed Noon, Mike Gaylord, Conor Gorman, Luigi Pratt and Scott Moore -Ocean Rescue Division D. National HIV Testing Day -June 27, 2007 7. PRESENTATIONS: A. NONE 8. CONSENT AGENDA: City Manager Recommends Approval. A. FINAL BOUNDARY PLAT APPROVAL/MORSE DELRAY TOYOTA RE- PLAT: Approve the final boundary plat for the Morse Dekay Toyota Re-Plat, located between US 1 and Old Dixie Highway, just north and south of LaMat Avenue. B. ACCEPTANCE OF EASEMENT DEED/4999 WEST ATLANTIC AVENUE: Approve and accept an easement deed for the installation of a fire hydrant to serve the proposed new Walgreens located at the northeast corner of West Atlantic Avenue and Military Trail (Store #5489). C. ACCEPTANCE OF RIGHT-OF-WAY DEDICATION/334 N.E. 3'd AVENUE: Approve and accept aright-of--way deed between the City and Kilbourne & Zeitz, Inc., for the property located at 334 N.E. 3`d Avenue. D. HOLD HARMLESS AGREEMENT/855 SOUTH OCEAN BOULEVARD: Approve and accept a hold harmless agreement between the City and Mark Timothy, Inc. to allow the property owner to connect to the utilities on the Florida Department of Transportation (FDOT) right-of--way, located at 855 South Ocean Boulevard. 06-042007 -2- E. HOLD HARMLESS AGREEMENT/SEAGATE HOTEL: Approve and accept a hold harmless agreement between the City and HHC Atlantic, LLC associated with the Seagate Hotel project for the installation and maintenance of the wall mounted light fixtures that extend within the Atlantic Avenue right-of--way, located on the south side of East Atlantic Avenue, between Venetian Drive and Gleason Street. F. CONTRACT ADDITION (C O NO 4~/CHAZ EOUIPMENT COMPANY. INC.: Approve a Contract Addition (C.O. No. 4) in the amount of $410,227.80 to Chaz Equipment Company, Inc. for the additional work required for the S.E./N.E. 15` Street One Way Pair Project. Funding is available from 448-5461-538-65.88 (Storm Water Utility Fund/Other Improvements/S.E./N.E. 15i Street One Way Pair) and 334- 3162-541-65.88 (General Construction Fund/Capital Outlay/S.E./N.E. 15i Street One Way Pair). G. SERVICE AUTHORIZATION NO. 9/KIMLEY-HORN AND ASSOCIATES. INC.: Approve Service Authorization No. 9 in the amount of $22,500.00 to Kimley- Horn and Associates, Inc. for the design process of the temporary modifications to US 1 between S.E. 10`'' Street and George Bush Boulevard. Funding is available from 334- 4141-572-65.99 (General Construction Fund/S.E./N.E. 5`'' and 6`h Avenues) after transfer from the Community Redevelopment Agency (CRA). H. INTERLOCAL AGREEMENT/PALM BEACH COUNTY: Approve and authorize an interlocal agreement between the City and Palm Beach County for the transfer of Barwick Road jurisdictional responsibility from Palm Beach County including the payment of $134,000.00 to the City for resurfacing and the installation of a traffic separator at the intersection of Barwick Road and West Atlantic Avenue. I. SUBDIVISION IMPROVEMENT AGREEMENT/CANNERY ROW, LLC: Approve and authorize a Subdivision Improvement Agreement between the City and Cannery Row, LLC fox improvements to the intersection of N.E. 15` Avenue and N.E. 3`d Street. Cannery Row, LLC shall pay the City in the amount of $5,625.00 for the improvements to the intersection. J. EARLY HISTORY OF DELRAY BEACH/ZION STUDY CIRCLE: Approve and authorize the adoption of the Early History of Delray Beach and its use and dissemination; and approve the use of the City of Delray Beach Logo on the Early History Timeline. K. SPECIAL EVENT REQUEST/ART & JAZZ: Approve a request to endorse the Art & Jazz on the Avenue scheduled for June 28, 2007 from 6:00 p.m. to 10:00 p.m.; to grant a temporary use permit per LDR Section 2.4.6(F') for the closure of Atlantic Avenue from Swinton Avenue to the west side of N.E./S.E. 7`'' Avenue, Railroad Drive from Atlantic Avenue north to the north side of the east/west alley and to the alleys north and south of Atlantic on N.E./S.E. 15i Avenue, N.E./S.E. 2°d Avenue, S.E. 3`d Avenue, N.E./S.E. 4`'' Avenue, and the Tennis Center parking lot; and authorize staff support for security and traffic control, EMS assistance, banner hanging and removal, barricade set up and removal, trash removal and clean up. 06-04-2007 -3- L. SPECIAL EVENT REQUEST/PRO-MOTIONS SPORTS MARKETING VOLLEYBALL TOURNAMENT: Approve a request from Pro-Motions Sports Marketing to host a Volleyball Tournament to be held at the municipal beach on June 23 and 24, 2007. M. AGREEMENT/PALM BEACH COUNTY/NEIGHBORHOOD RESOURCE CENTER ~NRC) SHUTTERING PROJECT: Approve an agreement between the City and Palm Beach County regarding the implementation of the Neighborhood Resource Center (NRC) Shuttering Project through the Disaster Recovery Initiative (DRI) Program. N. AGREEMENT/PALM BEACH COUNTY/EXTENSION OF MANGO DRIVE AND S.W. 7~' AVENUE: Approve an agreement between the City and Palm Beach County regarding the implementation of the extension of Mango Drive and S.W. 7``' Avenue through the Disaster Recovery Initiative (DRI) Program. O. AGREEMENT/CORDOBA CONSTRUCTION/AMERICAN LEGION HALL: Approve an agreement between the City, Cordoba Construction and the American Legion Hall for the re-roofing project at 196 N.W. 8`'' Avenue. The City shall pay Cordoba Construction $16,900.00 for the xe-roofing project. Funding is available from 118-1963-554-49.19 (Community Development Fund/Housing Rehabilitation). P. ROADWAY TRANSFER AGREEMENT/FLORIDA DEPARTMENT OF TRANSPORTATION: Approve an agreement between the City and the Florida Department of Transportation (FDOT) that provides for FDOT to transfer Depot Road from N.W. 2°d Avenue to Lake Ida to the City; and that the City shall accept the responsibility for the operation and maintenance of the road. Q. RECONFIGURATION PLANNING PHASE AGREEMENT/MOTOROLA: Approve an agreement between the City and Motorola that Motorola shall start the reconfiguration planning phase of relocating the City's public safety communications system from its existing channels, in the 800 MHz range, to other licensed channels not located in the 800 MHz range. R. RECONFIGURATION PLANNING PHASE AGREEMENT/NEXTEL: Approve an agreement between the City and Nextel that Nextel shall fund the reconfiguration planning phase of relocating the City's public safety communications system from its existing channels, in the 800 MHz range, to other licensed channels not located in the 800 MHz range. S. DISTRIBUTION OF FY 2008 JUSTICE ASSISTANCE GRANT FUND: Approve the distribution of FY 2008 Justice Assistance Grant funds QAG) formerly known as Byrne funds in the amount of $564,568.00 as recommended by the Criminal Justice Commission; and authorize the Mayor to send a letter agreeing to the allocation of these funds. -4- 06-04-2007 T. MULTIPLE AGREEMENTS/BLOCK 77 DEVELOPMENT GROUP, L C /TRANSFER OF THE BLOCK 69 PARKING GARAGE: Approve the following agreements related to the transfer of the Block 69 Parking Garage to the City from the Block 77 Development Group, L.C.: Limited Parking License Agreement, Indemnification and Hold Harmless Agreement, Assignment and Assumption of Parking Space Lease, Agreement Between Adjoining Landowners, Memorandum of Understanding, Third Amendment to Parking Space Lease, Memorandum of Lease, Second Amendment to Release of Parking Easement, Guaranty Agreement, Sump Pump Installation Warranty Agreement and Mutual Estoppel Certificate. U. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period May 14, 2007 through June 1, 2007. V. AWARD OF BIDS AND CONTRACTS: 1. Bid award to Conco Horticultural, Inc., in the amount of $50,050.00 for the removal of seven (7) Royal Palm Tree Stumps and the purchase of eight (8) 30' Royal Palms for Old School Square and along Seabreeze Avenue. Funding is available from 119-4144-572-46.40 (Beautification Trust Fund/Parks and Recreation). 2. Purchase award to Dell Incorporated in the amount of $448,086.02 per State Contract No. 250-000-03-01 for the purchase of the SAN Mirroring with VMware Virtualization Solution. Funding is available from 334-6111-521-64.11 (General Construction Fund/Computer Equipment). 3. Purchase award to Emergency Vehicle Supply LLC in the amount of $79,483.20 for the purchase of equipment for ten (10) police vehicles added to the fleet earlier this year. Funding is available from 001-2117-521-64.20, 001-2119-521- 64.20 (General Fund/Automotive) and 001-2219-521-521-46.31, 001-2121-521- 46.31 (General Fund/Vehicle Maintenance/Other). 4. Purchase award to Fisher Scientific Company of Tampa in the amount of $49,123.20 for the purchase of 119 Fire Fighter Rescue Escape Devices (FFRED) to be mounted on our existing self contained breathing apparatus for the Fire-Rescue Department. Funding is available from 115-2311-522-49.90 (Special Projects Fund/Other Current Charges). 9. REGULAR AGENDA: A. APPEAL OF THE HISTORIC PRESERVATION BOARD'S DECISION/706 SOUTHEAST 2ND STREET: Appeal of the Historic Preservation Board's decision approving a Certificate of Appropriateness (COA) for construction of a new single- family residence at 706 Southeast 2°d Street, located in the Marina Historic District. (Quasi Judicial Hearing) 06-04-2007 -5- B. WAIVER REQUEST/LAST RESORT SALOON: Consider a request for waiver of Land Development Regulations (LDR) Section 2.4.7(B)(1)(b)(i) "Special Power to the City Commission", and Section 4.3.3(~(2)(a) "Prohibitions by Frequency", to waive the prohibition against seeking a waiver for use of land or structures regulations and to allow a reduction in the required separation distance from 750 feet to 200 feet when measured from lot line to lot line for the Last Resort Saloon, Inc., a proposed stand alone bar to be located within the Pelican Harbor Shoppes. (Quasi Judicial Heating) C. WAIVER REQUEST/HAMMOCK HOUSE: Consider a request for waiver of Land Development Regulations (LDR) Section 1.3.8(B) "Reconstruction Necessitated by Acts of God", which requires applicants seeking building permits to submit within one (1) year of the date on which the "Act of God" event occurred and that all reconstruction be completed within three (3) years from the date of the event for the Hammock House located at 1000 N.E. 9~' Avenue. (Quasi judicial Heating) D. RESOLUTION NO. 35-07/S.W. 8``' AVENUE: Approve Resolution No. 35-07 declaring the necessity for public improvements for the S.W. 8~` Avenue area and directing the establishment of a special assessment district to defray a part of the expense for the construction of a road. E. SPECIAL EVENT REQUEST/PALM BEACH FIESTAS PATRONALES AND BUSINESS EXPO: Consider approval of a special event request to endorse the 2nd Palm Beach Fiestas Patronales and Business Expo sponsored by the Puerto Rican/Hispanic Chamber of Commerce for Palm Beach proposed to be held on August 3, 2007 and August 4, 2007 subject to the conditions outlined in the staff report. 10. PUBLIC HEARINGS: A. ORDINANCE NO 21-07 FIRST READING/FIRST PUBLIC HEARINGI: Community Redevelopment Agency (CRA) initiated amendment to the Land Development Regulations (LDR), amending Section 4.4.13, "Central Business District (CBD)," Subsection 4.4.13(H)(1), to provide an exemption to the prohibition of office uses on the ground floor of buildings on East Atlantic Avenue. If passed, a second public hearing will be scheduled for June 19, 2007. 11. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS FROM THE PUBLIC- IMMEDIATELY FOLLOWING PUBLIC HEARINGS. A. City Manager s response to prior public comments and inquiries. B. From the Public. 06-04-2007 -6- 12. FIRST READINGS: A. ORDINANCE NO. 20-07: City initiated amendment to the Land Development Regulations (LDR), amending Section 4.4.25, "Special Activities District (SAD)", Subsection 4.4.25(C) to shift the authority for approval of site plans, landscape plans, and architectural elevations from the Planning and Zoning Board to the Site Plan Review and Appearance Board for projects located in the Special Activities District (SAD). If passed, a public hearing will be scheduled for June 19, 2007. 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. A. City Manager B. City Attorney C. City Commission POSTED: JUNE 1, 2007 06-04-2007 -7- MAY 15, 2007 A Regular Meeting of the City Commission of the City of Delray Beach, Florida, was called to order by Mayor Rita Ellis in the Commission Chambers at City Hall at 6:07 p.m., Tuesday, May 15, 2007. 1. Roll call showed: Present - Commissioner Gary Eliopoulos Commissioner Fred Fetzer Commissioner Woodie McDuffie Commissioner Brenda Montague Mayor Rita Ellis Absent - None Also present were - David T. Harden, City Manager Robert A. Barcinski, Assistant City Manager Susan A. Ruby, City Attorney Chevelle D. Nubin, City Clerk 2. The opening prayer was delivered by Rabbi Chaim Wender with Temple Sinai. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. AGENDA APPROVAL. Mayor Ellis stated there is additional information for Item 8.P., Proposed Budget Submission/Children's Service Council (CSC)/Beacon Center at Village Academy, Item 9.A., Appeal of the Historic Preservation Board's Decision/706 Southeast 2"d Street, Item 9.K, Special Event Request/4th of July and Item 9.L., Housing Rehabilitation Grant/Contract Award. Mayor Ellis stated Item 9.C., Service Authorization No. 6/Spatial Focus, Inc., has been withdrawn from the Agenda. The City Attorney stated she spoke with Amy Alvarez, Historic Preservation Planner regarding Item 9.A., Appeal of the Historic Preservation Board's Decision/706 S.E. 2"d Street, and staff has not had the chance to consider it. Therefore, the City Attorney recommended postponing Item 9.A. until the next regular meeting of the City Commission (June 4, 2007). -1- 05/15/07 Mrs. Montague moved to approve the Agenda as amended, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mrs. Montague -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes. Said motion passed with a 5 to 0 vote. 5. APPROVAL OF MINUTES: Mr. Eliopoulos moved to approve the Minutes of the Regular Meeting of May 1, 2007, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. McDuffie -Yes; Mrs. Montague -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes. Said motion passed with a 5 to 0 vote. Mrs. Montague moved to approve the Minutes of the Special/Workshop Meeting of May 8, 2007, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mrs. Montague -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes. Said motion passed with a 5 to 0 vote. 6. PROCLAMATIONS: 6.A. Recognizing Student Ambassadors: Lindsay Brandt, Whittaker Bullard, Jake Gittelmacher, Tyler Kennedy, Joanna Luo, William O'Connor and Alice Wang Mayor Ellis read and presented a proclamation hereby recognizing the following individuals as student ambassadors: LINDSAY BRANDY WHITTAKER BULLARD JAKE GITTELMACHER TYLER KENNEDY JOANNA LUO WILLIAM O'CONNOR ALICE WANG 6.B. National Safe Boating Week - May 19 - 25, 2007 Mayor Ellis read and presented a proclamation to Tom Rutherfoord from the Boca Raton Coast Guard Auxiliary hereby proclaiming May 19-25, 2007 as National Safe Boating Week in Delray Beach. Mr. Rutherfoord came forward to accept the proclamation and gave a few brief comments. 7. PRESENTATIONS: 7.A. Historic Preservation Board Awards Recognition John Miller, Chairman of the Historic Preservation Board (HPB), presented the HPB Recognition Awards to the following recipients: -2- OS/ 15/07 RENOVATIONlREHABILITATION 137 NW 1st Avenue Old School Square Historic District • Jude Endres, Property Owner • Phoenix Architecture, Architects • Joe Pike, P.E. of EnviroDesign Associates, Inc., Project Engineer 144 NW 3'd Avenue West Settlers Historic District • Kim French, Property Owner 226 North Swinton Avenue Old School Square Historic District • Francis & Elizabeth Rozzo, Property Owners • Roger Cope, Architect 129 SE 7th Avenue Marina Historic District • Sean Murray, Property Owner • Michelle Balfoort of Balfoort Finnvold Architecture, Inc., Architect NEW CONSTRUCTION 111-113 NW 1st Avenue Old School Square Historic District • Jessica Linehan, Property Owner • Shane Ames, Architect • Michael J. Petrow & Associates, Inc., Landscape Design 136 NE 1st Avenue Old School Square Historic District • Mr. & Mrs. Bruce Ferrara, Property Owners • Everett Jenner, Architect • Tony Keller, Project Developer • Dan Carter of Carter & Associates, Landscape Design PAT CAYCE ACHIEVEMENT AWARD FOR EXCELLENCE IN PRESERVATION 204 Dixie Boulevard, Independence Title Del-Ida Park Historic District • Ronald Platt, Esq., Property Owner • Roger Cope, Architect • Gerald Church, P.E., Project Engineer A. Grant Thornbrough and Associates, Landscape Design 7.B. "Spotlight on Education" -Janet Meeks and Dr. Debbie Kaiser Janet Meeks, Education Coordinator, stated the spotlight is on our very own Delray Beach Education Board and the Pop-Up Book Project. Mrs. Meeks introduced Dr. Debbie Kaiser and Dr. Sandra Tobias. Mrs. Meeks commented about the fundraising for the project and stated they have raised approximately $64,000.00. Staff is in the process of hiring a marketing firm to help sell the books and they are hoping to pre- sell 5,000 before the books come in around the early part of October. Roger Culbertson, Designer of the Pop-up Book, displayed an example of the Pop-Up Book and stated the book has six pop-up spreads each dealing with a different aspect of life in Delray Beach. Mrs. Meeks stated there will be one last fundraiser held at Buster's Bar and Grill on Monday, June 18, 2007 and they are looking for celebrity bar tenders if anyone would like to participate. Also, Mrs. Meeks invited everyone to join the Education Board on Monday, May 21, 2007 at 4:00 p.m. at the Delray Beach Library because the Delray Beach Education Board will be receiving a grant to support the City's summer camp program. -3- 05/15/07 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. REQUEST FOR SIDEWALK DEFERRAL/1202 CARISSA ROAD: Approve a request to defer the installation of a sidewalk in front of 1202 Carissa Road. 8.B. CONTRACT CLOSEOUT (C.O. NO. 1)/REP & ASSOCIATES, INC.: Approve a Contract Closeout (C. O. No. 1) in the amount of $5,322.00 to REP & Associates, Inc. for the water damage remediation at Fire Stations No. 1, 2, 3 and 5. Funding is available from 001-2311-522-46.10 (General Fund/Building Maintenance). 8.C. SERVICE AUTHORIZATION NO. 04-13/MATHEWS CONSULTING, INC.: Approve Service Authorization No. 04-13 in the amount of $69,611.00 to Mathews Consulting, Inc. for the design of improvements along S.W. 2nd Avenue from S.W. 15` Street to West Atlantic Avenue. Funding is available from 334- 3162-541-65.87 (General Construction Fund/S.W. 2°d Avenue/S.W. 15` Street/West Atlantic Avenue) and 448-5461-538-65.87 (Stormwater Utility Fund/S.W. 2°d Avenue/S.W. ls` Street/West Atlantic Avenue). 8.D. SERVICE AUTHORIZATION NO. 6/SPATIAL FOCUS, INC.: Approve Service Authorization No. 6 to Spatial Focus, Inc. in the amount of $29,400.00 for developing a plan to unify various utility data sets used in mapping and work order processes for managing the City's utility services. Funding is available from 448-5411- 538-31.90 (Stormwater Utility Fund/Other Professional Services) and 442-5178-536- 63.51 (Water/Sewer Renewal and Replacement Fund/Sewer Mains). 8.E. ALTERNATIVE WATER SUPPLY GRANT APPLICATION/SOUTH FLORIDA WATER MANAGEMENT DISTRICT (SFWMD): Approve and authorize the Mayor to execute an application for an alternative water supply (AWS) grant from South Florida Water Management District (SFWMD) in the amount of $480,000 (40% of the cost of construction) to provide supplemental funding for the expansion of the Area 4 reclaimed water transmission system, which will extend the reclaimed water irrigation service to the Del Aire Country Club. 8.F. AGREEMENT/NEW INNOVATIONS/SUMMER ENRICHMENT PROGRAM: Approve an agreement between the City and New Innovations for a Summer Enrichment Program. Funding is available from 001-4105-572-34.90 (General Fund/Other Contractual Services). 8.G. GRANT APPLICATION/PALM BEACH COUNTY INVASIVE VEGETATION REMOVAL PUBLIC LANDS GRANT PROGRAM: Approve a request to apply fora $50,000.00 matching grant from the Palm Beach County Public Lands Grant Program for the removal of invasive non-native vegetation at Leon Weekes Environmental Preserve. -4- 05/15/07 8.H. BASELINE BUDGET SUBMISSION/CHILDREN'S SERVICES COUNCIL OUT OF SCHOOL PROGRAM: Approve authorizing staff to submit the baseline budget funding request for Fiscal Year 2007/2008 to the Children's Services Council of Palm Beach County in the amount of $314,825.00 for the Out of School Program, which includes After School, Holiday/Spring Camp, One Day Camps and Summer Camp. 8_I. AMENDMENT NO. 1/INTERLOCAL AGREEMENT/COMMUNITY REDEVELOPMENT AGENCY (CRA)/REG ARCHITECTS, INC: Approve Amendment No. 1 to the Interlocal Agreement between the City and the Community Redevelopment Agency (CRA) which provides that the City shall agree to pay one half (1/2) of the cost to the CRA in an amount not to exceed $7,500.00 for additional work to be performed by REG Architects, Inc. on the historic preservation guidelines. 8_J. ADDITIONAL FUNDING/HOMETOWN CONNECTION NEWSLETTER: Approve and authorize additional funding in the amount of $3,500.00 to Pollock Communications and in the amount of $13,700.00 to CM Graphics for the production of the Hometown Connection Newsletter for the remainder of FY 2006-2007. Funding is available from 001-1316-512-34.90 (General Fund/Other Contractual Services) and 001-1316-512-47.10 (General Fund/PrintingBinding Services). 8.K. SPECIAL EVENT REQUEST/4th OF JULY: Approve a special event request to endorse the 4t of July Celebration to be held from noon until 12:00 midnight, including a temporary use permit per LDR Section 2.4.6(F) for the closure of Atlantic Avenue from the east side of N.E./S.E. 6`h Avenue to Ocean Boulevard, and from the south side of Thomas Street to the north side of Miramar on Ocean Boulevard; and to authorize staff support for security, traffic control, barricading, signage, clean up and trash removal, stage set up and use. 8.L. HOUSING REHABILITATION GRANT/CONTRACT AWARD: Approve a Housing Rehabilitation grant/contract award through the Community Development Division in the amount of $31,484.25 to Ray Graeve & Sons Construction, LLC for 421 S.W. 15th Avenue. Funding is available from 118-1924-554-49.19 (Community Development Fund/Housing Rehabilitation). 8.M. REQUEST TO INCREASE HOUSING REHABILITATION GRANT AMOUNT: Approve a request to increase the original grant amount of $30,303.00 to $33,903.00 in order to address lead based paint abatement for one (1) Housing Rehabilitation project, located at 704 SW 8th Court. Funding is available from 118-1963- 554-49.19 (Community Development Fund/Housing Rehabilitation). 8.N. COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) SUB- RECIPIENT FUNDING AGREEMENTBLACKTIP REEF RESTAURANT: Approve and authorize the execution of the funding agreement with sub-recipient, Blacktip Reef Restaurant, under the 2006-2007 Community Development Block Grant (CDBG) Program. -5- 05/15/07 8.0. REQUEST TO AMEND THE COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) ANNUAL ACTION PLAN (FY 2006 - 2007): Approve a request to amend the FY 2006-2007 Community Development Block Grant (CDBG) Annual Action Plan to include $35,000.00 in funding Public Facilities and Improvements in order to make necessary roof repairs to the Caring Kitchen facility. 8.P. PROPOSED BUDGET SUBMISSION/CHILDREN'S SERVICE COUNCIL (CSC)BEACON CENTER AT VILLAGE ACADEMY: Approve authorizing staff to submit the proposed budget funding request for Fiscal Year 2007/2008 to the Children's Service Council of Palm Beach County in the amount of $827,149.00 for the program and services associated with the Beacon Center at Village Academy. ~: REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period April 30, 2007 through May 11, 2007. 8.R. AWARD OF BIDS AND CONTRACTS: 1. Purchase award to Delta Petroleum & Industrial, Inc. in the amount of $20,979.00 for the purchase of four (4) fuel dispensers for the Public Works Division and the Police Department fuel sites. Funding is available from 501-3311-591-64.90 (Central Garage Fund/Other Machinery/Equipment). 2. Purchase award to Devland Site Development, Inc. in the amount of $98,000.00 for hauling and reusing the lime sludge from the Water Treatment Plant. Funding is available from 441-5122-536- 34.90 (Water/Sewer Fund/Other Contractual Services). 3. Purchase award to E.H. Wachs Company in the amount of $39,500.00 for the purchase of a new Trailer Mounted Hydraulic Valve Exerciser for the Water/Sewer Network Division of Public Utilities. Funding is available from 441-5161-536-64.90 (Water/Sewer Fund/Other Machinery/Equipment). 4. Purchase award to M & W Distributing, Inc. in the amount of $21,597.00 for the purchase of a Special Events Response Vehicle (SERV) with Advanced Life Support (ALS) capabilities for the Fire Department. Funding is available from 001-2315-526-64.90 (General Fund/Other Machinery/Equipment). 5. Purchase award to Zoll Medical Corporation in the amount of $25,184.00 for a Zoll E Series Lead ECG Monitor/Defibrillator with pacing capabilities, SA02 monitoring, Wave form Capnography and Non-Invasive Blood Pressure monitoring capabilities for the Fire Department. Funding is available from -6- 05/15/07 001-2315-526-64.90 (General Fund/Other Machinery/Equipment). 6. Purchase awards to Industrial Divers Corporation in the amount of $34,203.00 to perform the underwater installation of four (4) tideflex check valves at 345 SE 7`h Avenue at the Intracoastal Waterway and Atlantic Avenue; and Mitchell Valve Products in the amount of $28,298.00 for providing the tideflex check valves. Funding is available from 448-5416-538-46.90 (Stormwater Utility Fund/Other Repair/Maintenance Costs). 7. Bid award to ConServ Building Services in the amount of $78,852.00 for a three (3) year contract for HVAC Chillers and Tracer Units for City Hall and the Delray Beach Public Library. Funding is available from 001-3431-519-46.10 (General Fund/Building Maintenance). Mrs. Montague moved to approve the Agenda as amended, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mrs. Montague -Yes. Said motion passed with a 5 to 0 vote. 9. REGULAR AGENDA: 9.A. THIS ITEM HAS BEEN POSTPONED TO THE NEXT REGULAR COMMISSION MEETING. 9.B. APPEAL OF THE PLANNING AND ZONING DIRECTOR'S INTERPRETATION/PINEAPPLE GROVE WAY CORPORATE CENTER: Consider an appeal of the Planning and Zoning Director's interpretation that a variance is required to allow a generator greater than 4' 6" in the side street for the property located at Pineapple Grove Corporate Center (101 N.E. 2"d Street). (Quasi-Judicial Hearing) Mayor Ellis read into the record the City of Delray Beach procedures for a Quasi-Judicial Hearing for this item and all subsequent Quasi-Judicial items. Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on this item. Paul Dorling, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2006-089 into the record. Mayor Ellis asked the Commission to disclose their ex parte communications. Mr. Eliopoulos stated he met with the applicant to see the actual location of the generator on the plan. Mr. Fetzer stated he met with the applicant and Michael Weiner (Attorney). Mr. McDuffie stated he met with the applicant, the agent, Michael -7- 05/15/07 Weiner (Attorney) and reviewed the plans. Mrs. Montague stated she met with Michael Weiner (Attorney) and the applicant. Mrs. Ellis stated had a telephone call with Mr. Weiner and the applicant. Paul Dorling, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2006-089 into the record. Mr. Dorling stated in 2005 a generator for Pineapple Grove Corporate Center and was installed in the City right-of--way of N.E. 3`d Avenue adjacent to the FEC Railroad and was done without a permit. The property was then cited on December 12, 2005 for this action. A Class I Site Plan Modification to allow the generator to remain in the right-of--way was submitted on December 19, 2005. It was later determined that its location in the right-of--way was not acceptable and the applicant submitted a revised plan relocating the generator onto their property within the side street setback area. In May 2006, the LDR's were modified to allow structures including generators to be in the setbacks; however, they were limited to 4 feet 6 inches. As this generator exceeds the maximum height the applicant was informed that a variance to allow the proposed generator in the setback was required. Michael Weiner, Attorney with Weiner & Aronson, P.A., 102 North Swinton Avenue, Delray Beach (representing Pineapple Grove Properties, Ltd., the owner of the property), stated during 2004 the applicant submitted to all the appropriate departments plans and drawings for the renovation of Creations of Delray Beach. He stated the generator was approved pursuant to the plans and drawings. After installation, there was dispute as to whether or not a separate building permit might be required or whether or not this was located in the right-of--way. He stated this was despite that fact that the plans and drawings had been approved with a full disclosure of the generators location, size, and specifications. Mr. Weiner stated as an accommodation to the City and because the applicant felt uncomfortable that this was located in a public right-of- way, aClass ISite Plan Modification was submitted in December 2005. After the hurricanes, new regulations were passed (May 2006) controlling the location and size of the generators. He stated that new ordinance came an entire year after the installation of the generator and six months after the application in December 2005 for the Class I Site Plan Modification. Mr. Weiner stated the applicant is willing to move the generator 18 inches closer to the building and this with the appropriate waivers would allow for screening, landscaping, and would get it out of the public right-of--way. Mr. Weiner stated they feel strongly that they have met the burden of proof that is necessary for the City to allow the Commission to vote in favor of the appellant's position. Mayor Ellis stated if anyone from the public would like to speak in favor or in opposition of the appeal, to please come forward at this time. There being no one who wished to address the Commission regarding the appeal, the public hearing was closed. There was no cross-examination. -8- OS/ 15/07 The following individuals gave a brief rebuttal: Paul Dorling stated Mr. Weiner knows very well that the generator was placed in the right-of--way and the property is clear and the structure was and is in the right-of--way. Mr. Dorling stated the applicant was cited almost immediately after it was discovered (December 12, 2005) and the applicant has decided to stall the process in an attempt to get his illegal location of this facility legitimized. Mr. Dorling stated it is his understanding that there is a code enforcement action against the applicant and the Class I submittal is in reaction to it. Mr. Dorling stated the City is not likely to be approving facilities which are in its own right-of--way. Mr. Dorling stated there was not a site plan modification and this has not been legally approved. Lastly, Mr. Dorling expressed concern over Mr. Weiner's comments about there being no permits for generators. However, several months ago there was an amendment before the Commission that exempted generators from the permitting process and the associated fees when talking about gas stations and hurricane issues. Mr. Dorling stated it is very clear that a permit is required and in some cases the City allows and provides some relief from that permitting process and its associated fees. Mr. Weiner stated the Planning Department is upset that a generator was built according to plans in a particular location. Mr. Weiner stated Mr. Dorling discussed the timing and noted that the plans are dated 2004. Mr. Weiner stated the catch was December 2005 twelve months later. He stated a mistake was made otherwise this would have occurred much earlier .and would have been caught before it was installed. Mr. Weiner stated something went wrong and noted the important thing is when a citizen relies on something, submits it and it goes wrong, as between the two parties the citizen is more innocent. Mr. Weiner stated the applicant is the more innocent party right now and the Class I Site Plan Modification is not really before the Commission except to say whether the May 2006 rules apply or do not apply. Mr. Weiner stated the May 2006 ordinances do not apply because the applicant is going by the December 2004 plans. He stated the easy solution is for the Commission to decide in favor of the appellant, the May 2006 rules do not apply, the Class I Site Plan goes forward, the applicant moves the generator back 18 inches and properly landscape it. Mr. Weiner stated this is required by the law and equitable estoppel. Mayor Ellis inquired about the size of the generator. Mr. Weiner stated the generator is 350 kw and noted that the generator is built on a pad which is approximately 6-8 feet in size but the pad itself is another 3-4 feet. Mayor Ellis commented about the generator being visible from the railroad tracks and asked if it is visible from side streets. Mr. Weiner stated if one were to stand at the very throat of this street you may be able to see the generator. He stated in the Class I Site Plan Modification there would be a triangular type area that would be to the south of the generator that could be landscaped so that the visibility on the south end of the street would be cut significantly. -9- 05/15/07 Mr. Eliopoulos asked if this is considered the side of this building and not the rear. In response, Mr. Dorling stated this is a side street setback and the street between the railroad tracks and the generator is to be improved as part of the redevelopment of the Creations site. Brief discussion between staff and the Commission followed. Mr. Weiner and Mrs. Montague briefly discussed the landscaping. She stated she would like to ensure that the landscaping is maintained and suggested that this be made a condition of approval. Mr. Weiner stated they will keep the landscaping in the appropriate condition it should be in and landscape it according to whatever the Class I Site Plan Modification requirements are. The City Attorney briefly reviewed the Board Order with the Commission who made findings according to their consensus (attached hereto is a copy and made an official part of the minutes). Mr. McDuffie moved to approve the Board Order thereby approving the appeal subject to the condition that appropriate landscaping from both the north and south ends is put in and maintained; and that the generator is moved back a minimum of 18 inches outside the right-of--way, seconded by Mrs. Montague. Upon roll call the Commission voted as follows: Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie - Yes; Mrs. Montague -Yes; Mayor Ellis -Yes. Said motion passed with a 5 to 0 vote. 9.C. THIS ITEM HAS BEEN WITHDRAWN FROM THE AGENDA. At this point, the time being 7:20 p.m., the Commission moved to the duly advertised Public Hearings portion of the Agenda. 10. PUBLIC HEARINGS: 10.A. ORDINANCE NO. 16-07: Future Land Use Map amendment (small- scale) from CC (Commercial Core) in part and OMU (Other Mixed Use) in part to OS (Open Space) and rezoning from CBD (Central Business District) in part and OSSHAD (Old School Square Historic Arts District) in part to OSR (Open Space and Recreation) for a proposed Urban Park adjacent to Old School Square, located approximately 180 feet north of East Atlantic Avenue, between N.E. 1 S` Avenue and Pineapple Grove Way (N.E. 2"a Avenue). (Quasi-Judicial Hearing) The caption of Ordinance No. 16-07 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE FUTURE LAND USE MAP DESIGNATION AS CONTAINED IN THE COMPREHENSIVE PLAN FROM CC (COMMERCIAL -10- 05/15/07 CORE) IN PART AND OMU (OTHER MIXED USE) IN PART; TO OS (OPEN SPACE); ELECTING TO PROCEED UNDER THE SINGLE HEARING ADOPTION PROCESS FOR SMALL SCALE LAND USE PLAN AMENDMENTS; AND REZONING AND PLACING LAND PRESENTLY ZONED CBD (CENTRAL BUSINESS DISTRICT) IN PART AND OSSHAD (OLD SCHOOL SQUARE HISTORIC ARTS DISTRICT) IN PART TO OSR (OPEN SPACE AND RECREATION) DISTRICT; SAID LAND BEING A PARCEL OF LAND LOCATED APPROXIMATELY 180 FEET NORTH OF EAST ATLANTIC AVENUE, BETWEEN NE 1sT AVENUE AND PINEAPPLE GROVE WAY (NE 2ND AVENUE), AS MORE PARTICULARLY DESCRIBED HEREIN; AMENDING "ZONING MAP OF DELRAY BEACH, FLORIDA, MARCH 2006"; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. office.) (The official copy of Ordinance No. 16-07 is on file in the City Clerk's The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give testimony on this item. Mayor Ellis asked the Commission to disclose their ex parte communications. The Commission had no ex parte communications to disclose. Paul Dorling, Director of Planning and Zoning, entered the Planning and Zoning project file #2007-148 into the record. Mr. Dorling stated this is aCity-initiated small scale amendment from CC (Commercial Core) in part and OMU (Other Mixed Use) in part to OS (Open Space) and Rezoning from CBD (Central Business District) in part and OSSHAD (Old School Square Historic Arts District) to OSR (Open Space and Recreation) for a proposed Urban Park adjacent to Old School Square. The subject property contains approximately 1.34 acres and consists of Lots 4, 5, 10 and 11 and portion of Lots 3, 6, 9 and 12, Block 76, Town of Delray. Additionally, the 16 foot north south alley which bisected the property has been abandoned and will be included in this rezoning and land use action. The property currently accommodates a public parking lot and an office building. In August 2000, the Old School Square Master Plan was adopted which included the construction of anew parking garage facility with retail facing Pineapple Grove Way and N.E. ls` Street. -11- 05/15/07 At its meeting of April 16, 2007, the Planning and Zoning Board held a public hearing in conjunction with the request. The Board voted 5-0 to recommend approval of the Future Land Use Map amendment and rezoning. Mayor Ellis declared the public hearing open. Michael Weiner, Attorney with Weiner & Aronson, P.A., 102 North Swinton Avenue, Delray Beach (regresentin~ Billy Himmelrich), stated Mr. Himmelrich's property is zoned CBD (Central Business District) and noted this is a commercial zone. Mr. Weiner stated all uses within the CBD can continue to be done even if this is changed to OS (Open Space) and OSR (Open Space and Recreation). He pointed out that the OSR zoning allows for cemeteries as a permitted use and feels this should be cleaned up in the zoning code. There being no one else from the public who wished to address the Commission regarding Ordinance No. 16-07, the public hearing was closed. Mr. Eliopoulos moved to adopt Ordinance No. 16-07 on Second and FINAL Reading, seconded by Mrs. Montague. Upon roll call the Commission voted as follows: Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mrs. Montague -Yes; Mayor Ellis - Yes; Mr. Eliopoulos -Yes. Said motion passed with a 5 to 0 vote. 10.B. ORDINANCE NO. 18-07: City-initiated amendment to the Land Development Regulations (LDR), amending Section 6.1.2 "Streets and Alleys", Subsection 6.1.2(A), "Improvement Obligations", to correct a reference to an LDR Section that has been relocated elsewhere in the code. The caption of Ordinance No. 18-07 is as follows: office.) AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SECTION 6.1.2, "STREETS AND ALLEYS", SUBSECTION 6.1.2(A), "IMPROVEMENT OBLIGATIONS", TO CORRECT THE REFERENCE TO AN LDR SECTION THAT HAS BEEN RELOCATED ELSEWHERE 1N THE CODE; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 18-07 is on file in the City Clerk's The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. -12- 05/15/07 Paul Dorling, Director of Planning and Zoning, stated this is a City- initiated amendment to the LDR's to correct a reference to an LDR section that has been relocated elsewhere in the code. This section deals with the responsibility for off-site improvements to streets and alleys. At its meeting of April 16, 2007, the Planning and Zoning Board considered the text amendment and recommended approval on a 4 to 0 vote (Pike stepped down). Mayor Ellis declared the public hearing open. There being no one from the public who wished to give testimony on this item, the public hearing was closed. Mr. McDuffie moved to adopt Ordinance No. 18-07 on Second and FINAL Reading, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr. McDuffie -Yes; Mrs. Montague -Yes; Mayor Ellis -Yes; Mr. Eliopoulos - Yes; Mr. Fetzer -Yes. Said motion passed with a 5 to 0 vote. 10.C. ORDINANCE NO. 19-07: An ordinance amending Chapter 33, "Police and Fire Departments", Subheading "Pensions", of the Code of Ordinances of the City of Delray Beach, Florida, by amending Section 33.687, "Early Retirement Incentive", which allows the City to open early retirement windows for police or fire instead of opening an early retirement window for both. The caption of Ordinance No. 19-07 is as follows: office.) AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 33, "POLICE AND FIRE DEPARTMENTS", SUBHEADING "PENSIONS", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 33.687, "EARLY RETIREMENT INCENTIVE"; PROVIDING A GENERAL REPEALER CLAUSE; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (The official copy of Ordinance No. 19-07 is on file in the City Clerk's The City Attorney read the caption of the ordinance. A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. The City Attorney stated this allows the early retirement window to be open for Police by itself or Fire-Rescue by itself or both together. -13- OS/15/07 Mayor Ellis declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 19-07, the public hearing was closed. Mrs. Montague moved to adopt Ordinance No. 19-07 on Second and FINAL Reading, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mrs. Montague -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer - Yes; Mr. McDuffie -Yes. Said motion passed with a 5 to 0 vote. 10.D. RESOLUTION NO. 34-07/CONTRACT FOR SALE AND PURCHASE OF PROPERTY/PROPERTIES UNLIMITED GROUP, INC./COMMUNITY REDEVELOPMENT AGENCY/INTERLOCAL AGREEMENT/144 SW llt AVENUE: Consider approval of Resolution No. 34-07 authorizing the City to purchase vacant property, located at 144 SW 1 lth Avenue, which shall be used for the construction of additional parking spaces for the Neighborhood Resource Center; and approve Contract for Sale and Purchase between the City and the Properties Unlimited Group, Inc. in the amount of $120,000.00; and approve an Interlocal Agreement between the City and the Community Redevelopment Agency (CRA) providing that the CRA shall fund the City purchase in the amount of $120,000.00 for the vacant property, located at 144 SW 1 lth Avenue. The caption of Resolution No. 34-07 is as follows: office.) A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE CITY TO PURCHASE FROM PROPERTIES UNLIMITED GROUP INC. ("OWNER") CERTAIN REAL PROPERTY IN PALM BEACH COUNTY, FLORIDA, AS DESCRIBED HEREIN, HEREBY INCORPORATING AND ACCEPTING THE CONTRACT STATING THE TERMS AND CONDITIONS FOR THE SALE AND PURCHASE BETWEEN THE OWNER AND THE CITY OF DELRAY BEACH, FLORIDA. (The official copy of Resolution No. 34-07 is on file in the City Clerk's A public hearing was held having been legally advertised in compliance with the laws of the State of Florida and the Charter of the City of Delray Beach, Florida. The City Attorney stated this is Resolution No. 34-07 and it contains a contract for sale and purchase for property adjacent to the Neighborhood Resource Center (NRC) to be used for parking purposes and it also references an Interlocal Agreement wherein the Community Redevelopment Agency (CRA) will pay the $120,000.00 as the City acquires the property. The City Attorney stated this request is for the Commission -14- OS/ 15/07 to approve both the Interlocal Agreement and the Contract for Sale and Purchase. Mayor Ellis declared the public hearing open. There being no one from the public who wished to address the Commission regarding Resolution No. 34-07, the public hearing was closed. Mr. Fetzer moved to approve Resolution No. 34-07, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mrs. Montague -Yes. Said motion passed with a 5 to 0 vote. At this point, the time being 7:31 p.m., the Commission moved to Item 11, Comments and Inquiries on Non-Agenda Items from the City Manager and the Public. 11.A. City Manager's response to prior public comments and inquiries. None. 11.B. From the Public. 11.B.1. Pauline Moody, 609 S.W. 8th Avenue, Delrav Beach, expressed concern over the debris from the revitalization that has not been cleaned up in the community in particular by the library and the courthouse. She inquired as to who would be responsible for cleaning up the debris and asked if this is going to be done first before the City allows more buildings to be constructed. Mayor Ellis stated it would appear that this would be the responsibility of the builder and the developer of those projects to see that the sites are cleaned up. She stated Ms. Moody will receive a response from the City Manager in reference to her concern. 11.B.2. John Bennett, 137 Seabreeze Avenue, Delrav Beach, on behalf of the Milton Myers Post #65 of the American Legion, invited the Commission to the upcoming Memorial Day ceremonies. These ceremonies will commence on behalf of the American Legion Post at 9:30 a.m. at the Delray Beach Municipal Cemetery. He also noted that the Veterans of Foreign Wars will have their ceremonies at Veteran's Park at 11:00 a.m. Mr. Bennett extended an invitation to the Commission. He stated among those that will be honored are Marvin W. Milton, Loney Myers, Harry Fish, Harry Oller, George H. Reiley, Howell Jones, Ben F. McIntosh, Bradley O'Neal, Benjamin F. Jetton, Shelton Lamb, Jr., Logan McNeal, Alfred F. Priest, Charles L. Vreeland, John Jupinko, and Arthur R. Sprott, Jr. all of Delray Beach who went off to fight their country's wars and did not return alive. 11.B.3. Alice Finst. 707 Place Tavant, Delrav Beach, thanked the City Manager for taking care of the two burnt out buildings (one adjacent to the La France Hotel and the other one behind the Marines Way garage on Lake Ida Road). Mrs. Finst stated she is -15- OS/ 15/07 glad to see that something was done to level those properties and improve the appearance of the two neighborhoods. 12. FIRST READINGS: 12.A. NONE. At this point, the time being 7:38 p.m., the Commission moved back to Item 9.D. of the Regular Agenda. 9.D. MARKETING/SELLING CITY RETAIL SPACES/OLD SCHOOL SQUARE GARAGE: Presentations for three (3) proposals which include Coastal Commercial Group, LLC, Bathurst Laymon Realty Group and Re/max on the sale of the retail space in the Old School Square garage. The City Attorney stated there will be presentations given by three (3) entities that have shown interest in being a broker for retail space under the City garage. Bill Bathurst, Bathurst Laymon Realty Group, Inc., stated the image of the branding of this building is going to be the tenants within and it is very important in this signature building that we pursue the right type of tenant mix. He stated Bathurst Laymon Realty Group, Inc. is locally owned and are attuned to the local needs. He stated they do not have any competing projects in the area so this would be their primary focus. Mr. Bathurst stated they are members of the Palm Beach, Broward, and Miami Realtors Associations. He stated this property represents a unique opportunity for the City in that this will be a very vibrant area. Mr. Bathurst stated now is the time to be strategic about what we are placing in this important district. Joseph Scarbone, speaking on behalf of Joe LaViola with RE/MAX, stated within the last 1 %z years he personally sold approximately $17 million in properties in the downtown Delray area (one being the Sopra building as well as the Rotelli building on Atlantic Avenue) and is very familiar with the rent rates and the market prices that are occurring right now in the downtown Delray area. Mr. Scarbone stated he manages many properties with national tenants (i.e. Pier 1, Starbucks, etc.). He stated because of the market rates with the banks the cap rates are changing and feels we need to find investors who can afford to buy pieces of property like this. Mr. Scarbone stated finding the proper tenant is very important and at the same time having a good cap rate for an investor. He stated RE/MAX does a lot of advertisement (i.e. photos, commercials, etc.). Mr. Scarbone stated he is very familiar with the rent rates and the market prices that are occurring right now in the downtown Delray area. Ingrid Kennemer, Coastal Commercial Group, LLC, briefly reviewed her credentials. She stated she works closely with the Delray Beach Chamber of Commerce and has sold and represented over 300 transactions in downtown Delray Beach since 1996 which comes to over $100,000,000.00 in transactions. She stated she sold and represented 16 sales on Atlantic Avenue in her history here. Ms. Kennemer -16- 05/15/07 briefly reviewed the current projects she has sold. She stated her marketing strategy would include preparing competitive analyses and providing updates, would recommend sale prices in terms of the City, brokerage and community outreach, recommended signage, print and direct mail advertising and Internet exposure. Ms. Kennemer stated she is deeply involved in the Delray Beach community, has experience with mixed-use sales and marketing, she understands local ordinances and codes, she consults with the Community Redevelopment Agency (CRA) on the real estate market in Delray Beach on a regular basis and has a history of working on this project with the City Manager's office and the City Attorney's office. Ms. Kennemer stated she has a proven track record of marketing sale and leasing on properties in Delray Beach since 1996. At this point, the City Attorney stated staff wanted the Commission to hear the three presentations and no vote is required at this time. Staff would like to get further direction down the road when we learn more about where we are in the process. The City Attorney stated the City of Delray Beach is currently going out for appraisals. 9.E. SPECIAL EVENT REQUEST/BAHAMIAN CULTURAL FEST: Consider a special event request to endorse the ls` Bahamian Cultural Fest sponsored by Ebenezer Wesleyan Methodist Church proposed to be held on Saturday, July 14, 2007 from 11:00 a.m. to 7:00 p.m., on the grounds of Old School Square; authorize staff support for security, traffic control, barricading, trash removal and clean up and EMS assistance; contingent upon sponsor providing a hold harmless agreement. Robert A. Barcinski, Assistant City Manager, stated this is a request for Commission to endorse the ls` Bahamian Cultural Fest sponsored by Ebenezer Wesleyan Methodist Church proposed to be held on Saturday, July 14, 2007 from 11:00 a.m. to 7:00 p.m. on the grounds of Old School Square. Staff recommends approval of the event as requested contingent on receipt of the standard Hold Harmless Agreement and the Certificate of Liability Insurance. Mr. Barcinski stated generally the City does not require EMS service on-site unless there are over 2,000 people at any one time. He feels for this event the City may be able to forego that and it would reduce the City's cost by approximately $1,300.00. Mrs. Montague asked if this is a local group. In response, Mr. Barcinski stated that this is a request from Ebenezer Wesleyan Methodist Church. Mr. Eliopoulos asked how staff decides on the qualifications. In response, Mr. Barcinski stated the City has a policy and procedure for special events. Mr. Barcinski stated the way the policy is written the first two years of an event are at no charge and after that one does not pay on the first $1,000.00 and the percentage goes up based on the years to a maximum of 40% of the cost after five years. Mr. Barcinski stated this is a free event and no alcohol will be served. -17- 05/15/07 Mayor Ellis asked if there is going to be fencing around Old School Square. In response, Mr. Barcinski stated there will be no fencing and this is a free event with no alcohol. Mrs. Montague moved to approve the special event request for the First Bahamian Cultural Fest to be held on Saturday, July 14, 2007 from 11:00 a.m. to 7:00 p.m. and staff support as requested by staff and forego the EMS service, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mrs. Montague -Yes; Mayor Ellis -Yes. Said motion passed with a 5 to 0 vote. 9.F. SPECIAL EVENT REOUEST/INTERNATIONAL DISTANCE/ TRIATHLON: Consider a special event request for a new event, the "International Distance Triathlon" sponsored by Exclusive Sports Marketing, Inc. proposed to be held on Saturday, July 21, 2007 from 5:00 a.m. to approximately noon, and to grant a temporary use permit per LDR Section 2.4.6(F) for the closure of Atlantic Avenue from the west side of A-1-A to the east side of Salina from noon, Friday, July 20, 2007 to approximately 5:00 p.m., Saturday, July 21, 2007 for the transition area; authorize staff support for traffic control, barricading, and EMS assistance. Staff recommends denial. Robert A. Barcinski, Assistant City Manager, stated this is another new event request entitled "International Distance Triathlon" sponsored by Exclusive Sports Marketing, Inc. proposed to be held on Saturday, July 21, 2007 from 5:00 a.m. until approximately noon. Commission is requested to grant a temporary use permit for the closure of Atlantic Avenue from the west side of A-1-A to the east side of Salina Avenue beginning on Friday, July 20, 2007 from noon until approximately 5:00 p.m. on Saturday, July 21, 2007 for the transition area, provide police support for traffic control and security, on-site EMS assistance for transport if needed and barricade assistance. The event sponsor has also verbally requested that all police overtime costs be waived. Mr. Barcinski stated the estimated City overtime costs are $6,460.00 without lifeguard support and $7,660.00 with City lifeguard support. Per the event policies and procedures, for a first year intermediate event sponsored by a for profit organization, the event sponsor would be required to pay the City approximately $2,730.00. Mr. Barcinski stated the following concerns were expressed by Department Heads: (1) approval of a new event with an uncertain budget outlook in future years, (2) The closure of this section of Atlantic Avenue for over a day with a need to block off parking spaces early on Friday, (3) Waiving or reduction of payments to the City, (4) concern of qualifications and certifications of the private lifeguard company, (5) ability of the event sponsor to obtain approval from other cities through which the bike ride race would go through. Mr. Barcinski stated the biggest concern was certifications of their lifeguard team (both EMS and lifeguard). He stated the Beach Superintendent noted that the paperwork is really for pools and lakes and water parks but not open water rescue and lifeguard service. Also, during this time, a group of the City's lifeguards will be going to national competition. Therefore, the staffing will be lower during this time. In addition, there was a concern because the bike ride is going through many other cities -18- OS/ 15/07 and whether or not they will be able to get all those approvals. Mrs. Montague asked if this group is local. Mr. Barcinski stated the group is from Boca Raton. Mr. Fetzer moved to approve the Special Event request for the "International Distance Triathlon" sponsored by Exclusive Sports Marketing, Inc. on Saturday, July 21, 2007 from 5:00 a.m. to noon, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. Fetzer - No; Mr. McDuffie - No; Mrs. Montague - No; Mayor Ellis - No; Mr. Eliopoulos - No. Said motion was DENIED with a 5 to 0 vote. 9.G. CM AT RISK PRECONSTRUCTION SERVICES/FIRE STATION #4 REPLACEMENT PROJECT: Consider a recommendation to reject the preconstruction services proposal by Catalfumo Construction and authorize staff to proceed with a design/bid/build construction delivery method for Fire Station #4 Replacement Project. The City Manager stated at the Workshop meeting there was discussion about the use of the Construction Manager at Risk process for this project. Both the architect and staff felt that we would not receive much benefit using a Construction Manager at Risk and recommended that we not do that and use the design/bid/build construction approach. The City Manager stated this approach is being used for the Environmental Services building and staff has not had any problems and noted this is very successful. Staff recommends that the City follow this approach and save that money. Richard Hasko, Director of Environmental Services, stated as part of the City's consultant scope of services in the consulting contract staff has construction administration services. Mr. Eliopoulos stated he feels there are some things staff can present to the Blue Ribbon Task Force on Friday. Mrs. Montague moved to approve the CM proposal by Catalfumo Construction, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr. McDuffie - No; Mrs. Montague - No; Mayor Ellis - No; Mr. Eliopoulos - No; Mr. Fetzer - No. Said motion was DENIED with a 5 to 0 vote. 9.H. CAPITAL IMPROVEMENT FINANCING ALTERNATIVES/SAN MIRRORING SOLUTION: Consider a request to transfer $2,094,486.00 from the Insurance Reserve Fund to the General Construction Fund to provide funding for the construction of the new 3000 square feet Information Technology (IT) Building, City Hall Renovations and the purchase of SAN Data Storage Package. -19- 05/15/07 The City Manager stated this was discussed at the Workshop meeting last week and staff is requesting approval from the Commission to transfer $2,094,486.00 from the Insurance Fund prior year surplus to the General Construction fund. He stated this will leave approximately $4,000,000.00 in the Insurance Fund Reserve and staff feels this is adequate. Mr. McDuffie concurred with comments expressed by Mr. Eliopoulos. Mr. Fetzer moved to approve to transfer the money for the SAN Data Storage Unit and postpone decisions on items one (1) Hurricane-Hardened IT Building and (3) City Hall Renovations, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mr. McDuffie -Yes; Mrs. Montague -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes. Said motion passed with a 5 to 0 vote. 9_I. DISCUSSION/FIRST REGULAR COMMISSION MEETING IN JUNE 2007: Discussion regarding the rescheduling of the June 5, 2007 Regular Commission meeting. Mayor Ellis stated the Commission will be attending a conference entitled "Transforming Local Government" in Bellevue, Washington which starts on Wednesday, June 6, 2007 and trying to get there after a Commission meeting on Tuesday evening is impossible. Mrs. Montague noted she will not be able to attend the meeting on Monday evening because she will already be out of town. Therefore, it was the consensus of the Commission to change the Regular City Commission meeting from Tuesday, June 5, 2007 to Monday, June 4, 2007. Mr. McDuffie moved to approve to change the Regular City Commission meeting date to Monday, June 4, 2007, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mrs. Montague -Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes. Said motion passed with a 5 to 0 vote. 9_J. APPOINTMENT TO THE CIVIL SERVICE BOARD: Appoint one (1) alternate member to the Civil Service Board for an unexpired term ending July 1, 2008. Based upon the rotation system, the appointment will be made by Mayor Ellis (Seat #5). Mayor Ellis stated she would like to appoint Diane Franco as an alternate member to the Civil Service Board for an unexpired term ending July 1, 2008. Mr. Eliopoulos so moved, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mayor Ellis -Yes; Mr. Eliopoulos -Yes; Mr. Fetzer -Yes; Mr. McDuffie - Yes; Mrs. Montague -Yes. Said motion passed with a 5 to 0 vote. 9.K. APPOINTMENT TO THE DOWNTOWN DEVELOPMENT AUTHORITY: Appoint one (1) regular member to the Downtown Development Authority for an unexpired term ending July 1, 2009. Based upon the rotation system, the appointment will be made by Commissioner Montague (Seat #4). -20- 05/15/07 Mrs. Montague moved to appoint David Cook as a regular member to the Downtown Development Authority for an unexpired term ending July 1, 2009, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. Eliopoulos - Yes; Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mrs. Montague -Yes; Mayor Ellis -Yes. Said motion passed with a 5 to 0 vote. 9.L. APPOINTMENT TO THE PLANNING AND ZONING BOARD: Appoint one (1) regular member to the Planning and Zoning Board for an unexpired term ending August 31, 2008. Based upon the rotation system, the appointment will be made by Mayor Ellis (Seat #5). Mayor Ellis stated she would like to appoint Cary Glickstein as a regular member to the Planning and Zoning Board for an unexpired term ending August 31, 2008. Mr. McDuffie so moved, seconded by Mrs. Montague. Upon roll call the Commission voted as follows: Mr. Fetzer -Yes; Mr. McDuffie -Yes; Mrs. Montague - Yes; Mayor Ellis -Yes; Mr. Eliopoulos -Yes. Said motion passed with a 5 to 0 vote. 9.M. PALM BEACH/TREASURE COAST 2-1-1 FUNDING REQUEST: Consider a request for funding in the amount of $5,000.00 from Palm Beach/Treasure Coast 2-1-1. The City Manager stated staff received this request from Palm Beach Treasure Coast 2-1-1 for funding from the City. He stated it appears the only other city that is providing funding is the City of Boca Raton otherwise they receive funding from the State, Palm Beach County, United Way, and some other non-profits. The City Manager stated it is difficult to make a judgment as to the priority of funding for an organization like this in the middle of the year. He stated this really needs to be looked at during the budget process and staff has sent them an application package for funding next year for consideration. The City Manager stated he would recommend not approving this funding request at this time and may consider them next year; however, he noted with the budget cuts the City is looking at staff will be looking at cutting back on this type of funding rather than adding new ones. Mr. Fetzer moved to approve the Palm Beach Treasure Coast 2-1-1- funding request, seconded by Mr. McDuffie. Upon roll call the Commission voted as follows: Mr. McDuffie - No; Mrs. Montague - No; Mayor Ellis - No; Mr. Eliopoulos - No; Mr. Fetzer - No. Said motion was DENIED with a 5 to 0 vote. 12. FIRST READINGS: NONE. At this point, the Commission moved to Item 13, Comments and Inquiries on Non-Agenda Items from the Commission. -21 - 05/15/07 13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS. 13.A. City Manager The City Manager stated effective Wednesday, May 16, 2007, the City of Delray Beach is going to Phase III water use restrictions. He stated this means the surcharge will go to 45% for water use over 15,000 gallons. Secondly, the City Manager distributed a handout regarding the financing alternatives and stated this replaces the handout the Commission received last week. The City Manager stated he recommends Option #6B. 13.B. City Attorney The City Attorney had no comments or inquiries on non-agenda items. 13.C. City Commission 13.C.1. Mr. Fetzer Mr. Fetzer commented on an award he accepted on behalf of the City along with the City Manager and Lula Butler, Community Improvement Director. He stated the award was given to the City of Delray Beach by an organization called "Towards a More Perfect Union". Mr. Fetzer stated Delray Beach was the one city named as award recipient from the things we have done with the study circles and the community unity issues. Secondly, he stated the Commission has received emails recommending that we send a letter to Governor Charlie Crist opposing the cable franchise bill. Mr. Fetzer stated he supports the legislation because he feels it is pro-consumer and gives consumers more of a choice. Therefore, Mr. Fetzer stated he will not be sending a letter to Governor Crist. 13.C.2. Mr. Eliopoulos Mr. Eliopoulos commented about the Bond Issue and feels the Commission received beneficial information from the Workshop meeting. He stated he understands we must move forward on things that are essential that we need to fund. Mr. Eliopoulos stated he feels we should be looking at the stakeholders and finding out what they could live with for the moment and what they cannot. He stated he realizes that the Commission does have obligations with the original bond. He stated the Blue Ribbon Task Force can review these kinds of things. Mr. Eliopoulos commented about matching grants but would like to know what the operational costs are due to the fact that the City gets the money but there is still more money that has to be thrown in. He commented about the maintenance of the City's buildings and stated when he looks at Fire Station #4 and what could be spent on this building; he feels there are other fire stations that we - 22 - 05/15/07 need to maintain. Mr. Eliopoulos stated there are things that should be implemented in our buildings that the City does not have the money for. He expressed concern that the City is throwing away money that we are just going to have to spend again. Mr. Eliopoulos stated he is still a little wary on some of the things the City is spending money on. Secondly, he stated he concurs with comments expressed by Commissioner Fetzer regarding the cable franchise bill. Mr. Eliopoulos stated there was a Workshop meeting regarding the historic guidelines on Friday, May 11, 2007. He stated the people who attended were hoping that there would be another meeting. He noted at this meeting four sites were given throughout the district and everyone tried to apply the guidelines to it. The City Manager stated Mr. Dorling is hoping to have the later part of the meeting transcribed and staff will work with the City Attorney's office regarding any changes that might come out of that and then staff will take this to the Community Redevelopment Agency (CRA). 13.C.3. Mr. McDuffie Mr. McDuffie stated he had the opportunity to attend the Police Awards Banquet and it was a great evening. He stated the camaraderie that was displayed between the police force at the banquet was heartwarming. Mr. McDuffie suggested that staff send Chief Schroeder a debt of gratitude because there is a great group of people in the Police Department. He commented about the Town Hall Gang Meeting that State Representative Maria Sachs has set up on Friday, May 18, 2007 at Florida Atlantic University (FAU). Mr. McDuffie stated at the Palm Beach Community College they asked the City to add one sworn officer to a liaison to this county-wide gang task force. He stated it is expenses like this that are for the public safety and well being of our citizens. Mr. McDuffie stated the projects are all great projects and hopes that we are able to accomplish every one of them. He stated when things get to the point where he feels more comfortable that the funding is out there and we are able to do that without laying staff members off and cutting public safety then, he will be happy to see these things done. Lastly, Mr. McDuffie stated he spoke to the President of the company regarding the Capital Improvement Planning Software who would enjoy coming to Delray Beach to speak to the Commission. The City Manager stated staff is generating reports on capital projects and have seen a need to change it. He stated if this can all be tied together in one software package this would be great. The City Manager stated he gave the material to Doug Smith, Assistant City Manager to work with Environmental Services in trying to put this -23- 05/15/07 together. The City Manager stated if someone is available that can come talk to the City, staff would be glad to talk with them. 13.C.4. Mrs. Montague Mrs. Montague stated as staff approaches the new budget process, she suggested that the City review the City's polices regarding the special events (i.e. the number of events and the quality of events). Also, she stated she would like to establish some minimum standards for new events. 13.C.5. Mayor Ellis Mayor Ellis commented on the Police Department Annual Awards Banquet for officers with 25 years of service and stated it was a great event. She stated it makes her so proud when you see the quality and professionalism of the police department. Secondly, she stated the Commission received a letter from Addie Greene regarding a Palm Beach County Homeless Advisory Board. Mrs. Greene is looking for someone to serve on this Board and asked the Commission to give this some thought and contact Mr. Harden's office if they are interesting in serving. Mayor Ellis stated she will not be able to attend the symposium that State Representative Maria Sachs is having because she is having a medical procedure done. Mrs. Montague and Commissioner McDuffie stated they will be attending the symposium. Mrs. Ellis encouraged the Commission to make appointments with the State Legislature before they go back to special session to talk about the issues. She stated the League is talking about a meeting after the special session to inform them of what happened and she expects by that time everyone will know what happened. She encouraged the Commission to get an appointment before the special session and touch base with the people who are going to be making some tough decisions about the future of Delray Beach and not take this lightly. There being no further business, Mayor Ellis declared the meeting adjourned at 9:00 p.m. City Clerk ATTEST: MAYOR -24- 05/15/07 The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information provided herein is the Minutes of the Regular City Commission Meeting held on May 15, 2007, which Minutes were formally approved and adopted by the City Commission on City Clerk NOTE TO READER: If the Minutes you have received are not completed as indicated above, this means they are not the official Minutes of the City Commission. They will become the official Minutes only after review and approval which may involve some amendments, additions or deletions as set forth above. -25- OS/ 15/07 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This appeal of the Planning and Zoning Director's interpretation that a variance is required to allow a generator greater than 4'6" in the side street setback for property located at Pineapple Grove Corporate Center (101 NE 2"d Street) has come before the City Commission on May 15, 2007. 2. The Appellants, Appellee and City staff presented documentary evidence and testimony to the City Commission pertaining to the appeal of the Planning and Zoning Director's interpretation that a variance is required to allow a generator greater than 4'6" in the side street setback. All of the evidence is part of the record in this case. 3. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 4. Based on the entire record before it, the City Commission approves X denies the appeal upon the conditions that landscaping shall be required to screen the generator. The generator shall be moved at least 18" closer to the building and located out of the public right-of-way. The City Commission hereby adopts this Order this 15~h day of May, 2007, by a vote of 5 in favor and 0 opposed. Rita Ilis, Mayor ATTEST: ~~~ Chevelle Nubin City Clerk s~ 512~i gNNF MARVIN W. MILTON LONEY MYERS HARRY FISH HARRY OLLER GEORGE H. REILE~' HOWELL JONES BEN F. McINTOSH BRADLEY O'NEAL BENJAMIN F. JETTON SHELTON LAMB, JR. LOGAN McNEAL ALFRED F. PRIEST CHARLES L. VREELAND JOHN JUPINKO ARTHUR R. SPROT7', JR. wok WHEREAS, the Clean Beaches Council, as part of Great Outdoors Month, has designated the week beginning June 29, 2007 as National Clean Beaches Week; and WHEREAS, beaches represent a critical part of our natural heritage and a beautiful part of the American landscape; and WHEREAS, beaches are sensitive ecosystems, susceptible to degradation and alteration from pollution, sea level rise, natural forces, untreated sewage, and improper use; and WHEREAS, communities and government have undertaken significant measures to keep beaches clean and healthy; and WHEREAS, 180 million Americans make nearly 2 billion annual trips to the ocean, gulf and inland beaches and contribute significant resources to the local, state, and national economy; and WHEREAS, 75% of all recreational activity occurs within a half mile corridor around the shorelines of our beaches, rivers, and lakes; and WHEREAS, coastal tourism and healthy, fresh seafood fuels robust economies -sustaining communities and supporting jobs along the coastal United States. NOW, THEREFORE, I, RITA ELLIS, Mayor of the Ciry of Delray Beach, Florida, on behalf of the City Commission, do hereby proclaim the week beginning June 29, 2007 as NATIONAL CLEAN BEACHES WEEK in Delray Beach, Florida, and encourage all residents to visit, enjoy and protect our greatest natural resource. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed this 4°i day of June, 2007. RITA ELLIS MAYOR 6.A WHEREAS, recreation enhances the health and well-being of people of every age, young and old, able and disabled; and, WHEREAS, the importance of recreation must be continually reemphasized in a technologically advanced society such as ours; and, WHEREAS, all citizens can enjoy self-renewal in the outdoors through green spaces and facilities in parks; and, WHEREAS, our State parks are major attractions each year, not only for our own citizens, but also for the millions of visitors to Florida; and, WHEREAS, other governmental bodies, such as the Federal Government, cities and counties, also maintain parks and playgrounds for the benefit of residents and visitors; and, WHEREAS, Parks and Recreation Departments, such as the City of Delray Beach, provide countless benefits for their citizens; and, WHEREAS, we, as a nation, must have an awareness of the potential value to us of leisure and recreational activities. NOW, THEREFORE, I, RITA ELLIS, Mayor of the Ciry of Delray Beach, Florida, on behalf of the City Commission, do hereby proclaim July, 2007, as "PARKS AND RECREATION MONTH" in Delray Beach and urge that attention be directed to the many ways in which parks, recreation and civic groups, public schools, private organizations, and other agencies may expand recreation facilities and programs so that every citizen will have the opportunity to develop meaningful and satisfying leisure activities. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Delray Beach, Florida, to be affixed this 4~' day of June, 2007. RITA ELLIS MAYOR b. B DELRAY BEACH , , All-America City 1 199 3 MEMORANDUM 2001 TO: Mayor and City~Commissioners FROM: Joe Weldon; irector of Parks and Recreation THROUGH: David Harden, City Manager DATE: May 16, 2007 SUBJECT: AGENDA ITEM # V•U- COMMISSION MEETING OF JUNE 4, 2007 PROCLAMATION NAMING JULY AS PARKS AND RECREATION MONTH ITEM BEFORE COMMISSION A proclamation naming July, 2007 as Parks and Recreation Month. BACKGROUND July has been nationally recognized as Parks and Recreation Month. FUNDING SOURCE Not applicable. RECOMMENDATION Approval of, and Mayor's signature on, proclamation naming July, 2007 as Parks and Recreation Month. Ref:agendamemo F'ru! r R,-~ .c ~ ~. Date: May 17, 2007 .,;. ~' . _ ~ ,~~; AGENDA ITEM NUMBER: AGENDA REQUEST Request to be placed on: -Consent Agenda X Regular Agenda Workshop Agenda -Special Agenda When: June 4, 2007 Description of Agenda Item (who, what, where, how much): Request city Commission approval of ,. and Mayor's signature on, a proclamation naming July, 2007 as Parks and Recreation Month. Department Head c~t Si nature: w J'~ ~`' g City Attorney Revi /Recommendation (if applicable): . Budget Director Review (required on all items involving expenditure of funds}: Funding Available: Yes / No Initials: Account Number Description Account Balance: Funding Alternatives: City Manager Review: (if applicable) Approved for Agenda: Ye / No Initials: ~ ~ C~/ Hold Until: Agenda Coordinator Review: Received: WHEREAS, on May 19, 2007, on the City of Delray Beach Municipal Beach, a near tragedy was averted; and WHEREAS, five (5) inexperienced swimmers were caught in a rip current and were being pulled out to sea, and two (2) other nearby swimmers who attempted to aid the five swimmers were also caught in the rip current; and WHEREAS, Delray Beach Ocean Rescue Officers Ed Noon, Mike Gaylord, Conor Gorman, Luigi Pratt, and Scott Moore used their skills as professional ocean lifeguards to facilitate an immediate and timely rescue of the victims, averting potential tragedy; and WHEREAS, the prompt and skillful rescue response of all the Ocean Rescue Officers involved resulted in the successful rescue of seven ('7) people, and the preventive actions of the entire Ocean Rescue staff resulted in the public safety of the thousands of other Municipal Beach patrons on this day in Delray Beach, Florida, which has generated much civic and community pride, NOW, THEREFORE, I, RITA ELLIS, Mayor of the City of Dekay Beach, Florida, on behalf of the City Commission, do hereby recognize and commend Ocean Rescue Officer Ed Noon, EMT Ocean Rescue Officer Mike Gaylord, EMT Ocean Rescue Officer Conor Gorman, EMT Ocean Rescue Officer Luigi Pratt, EMT Ocean Rescue Officer Trainee Scott Moore for their immediate and appropriate action in an emergency; they are responsible for saving lives. Their willingness to respond to an emergency exemplifies the highest and best in the human spirit. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the Ciry of Delray Beach, Florida, to be affixed this 4`t' day of June, 2007. RITA ELLIS MAYOR b.C ~~TM of oE~~~~., ~r,~~,. DELRAY BEACH L R D F ~~ , ~.._ ~ _ _ All-America City 1993 MEMORANDUM 2001 TO: Mayor and City Commissioners FROM: Joe Weldon, rector of Parks and Recreation THROUGH: David Harden, City Manager DATE: May 23, 2007 SUBJECT: AGENDA ITEM # b,~- COMMISSION MEETING OF JUNE 4, 2007 PROCLAMATION HONORING RESCUE OF SEVEN PEOPLE ITEM BEFORE COMMISSION On May 19,_2007 five Ocean Rescue lifeguards rescued seven swimmers simultaneously. BACKGROUND On May 19, 2007 five inexperienced swimmers were caught in a rip current. Two other swimmers who tried to help them were also caught in the rip current. Five Ocean Rescue lifeguards rescued all seven swimmers, averting potential tragedy. FUNDING SOURCE Not applicable. RECOMMENDATION Approval of, and Mayor's signature on, Proclamation honoring the 5 lifeguards who rescued 7 people simultaneously. Ref:agendamemo ~~.~~ ~r~-nt~-F- ,~~..t11Av`~, ,~.,,-r ..,c r'i7i) 9d un Rrcycl!~ii %(ipel 1 Date: May 23, 2007 • ~~~. AGENDA ITEM NUMBER: AGENDA REQUEST Request to be placed on: -Consent Agenda -Regular Agenda -Workshop Agenda -Special Agenda When: June 4, 2007 Description of Agenda Item (who, what, where, how much): Request approval of, and Mayor's signature on, a Proclamation honoring the five lifeguards who rescued seven swimmers simultaneously. Department Head ; -``~ ~~~t Signature: W -~-°•J i s City Attorney Rev~w/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available: Yes / No Initials: Account Number Description Account Balance: Funding Alternatives: City Manager Review: Approved for Agenda Yes No Hold Until: Initials: Agenda Coordinator Review: (if applicable) Received: WHEREAS, world-wide over 40 million people are currently living with HN/AIDS, and every day more than 8,000 lives are lost in the global AIDS pandemic; and WHEREAS, in our country, over 1 million people are infected with HN and approximately 40,000 more contract it each year; and WHEREAS, in Palm Beach County 1 in 503 Whites, 1 in 252 Hispanics, and 1 in 42 Blacks axe living with HN/AIDS; and WHEREAS, an individual's behaviors, not race or ethnicity, put him/hex at risk of HN infection; and WHEREAS, The 2007 National HN Testing Day theme KIt's Better to Know" encourages people to learn about HN/AIDS, and be tested to know their HN/AIDS status and connect to care if infected; and WHEREAS, approximately one-quarter of people who are HN positive do not know that they are infected; and WHEREAS, new treatments are bringing hope and enhancing the quality of life for those who are affected; however, these considerable advances can only help individuals if they know their HN status. WHEREAS, the Palm Beach County Substance Abuse Coalition formed the Substance Abuse HN/AIDS Task Force with the following; Abbot Labs, Comprehensive AIDS Program, Drug Abuse Treatment Association, Families First of Palm Beach County, First Congregational Church, Hispanic Heritage Foundation, Maya Ministry, Palm Beach County Health Department, Planned Parenthood, Pxometa, Roche Pharmaceuticals, and United Deliverance Community Resource Center are working together to test in 22 municipalities. NOW, THEREFORE, I, RITA ELLIS, Mayor of the City of Dekay Beach, Florida, on behalf of the City Commission, do hereby proclaim June 27, 2007 as NATIONAL HIV TESTING DAY and urge all of our residents of the City of Delray Beach to take part in activities and observances designed to increase awareness and understanding of HN/AIDS as a global, as well as local challenge, and urge residents to take the test to know their status and to help prevent further spread of HN/AIDS. IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the City of Dekay Beach, Florida, to be affixed this 4~ day of June, 2007. RITA ELLIS MAYOR ~~ MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS . ,; FROM: RANDAL L. KREJCAREK, P.E. ~~'~ THROUGH: CITY MANAGER DATE: 31 MAY 2007 SUBJECT: AGENDA ITEM # U • K -REGULAR MEETING OF JUNE 4.2007 MORSE DELRAY TOYOTA RE-PLAT ITEM BEFORE COMMISSION Request Commission approval of the Morse Delray Toyota Re-Plat, a final boundary plat, located between US 1 and Old Dixie Highway and just north and south of LaMat Avenue. BACKGROUND This plat is a re-plat of Lots 1 and 2, Morse Saturn Dealership, Plat Book b5, Page 107 and Tract B, Delray Mazda, Plat Book 64, Page 21 being in Section 29, Township 46 South, Range 43 East, City of Delray Beach, Palm Beach County, Florida. The applicant is in the process of combining both plats into one new plat. This plat is processed as a minor subdivision, therefore, it is forwarded directly to City Commission for final action (no other board review was necessary). FUNDING SOURCE No funding associated with this agenda item. RECOMMENDATION Staff recommends approval. 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AGENDA REQUEST Request to be placed on: X Consent Agenda Regular Agenda -Workshop Agenda ,-..-Special Agenda When: 04 Jun 2007 Description of Agenda Item (who, what, where, how much): Request Commission approval of the Morse Delray Toyota Re-Plat, a final boundary plat, located between US 1 and Old Dixie Highway and just north and south of LaMat Avenue. Staff Recommendation: Department Head Signs City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available: Yes / No Initials: Account Number Description Account Balance: Funding Alternatives: City Manager Review: Approved for Agenda: Yes 1 No Hold Until: (if applicable) Initials• Agenda Coordinator Review: Received: S:\EngAdmin\TAG\Delray Toyota (Ed Morse) All Phases\2007-06-04 dellray toyata plat agenda.doc MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: TRACIE M. LUTCHMANSINGH, P.E. ASST. CITY ENGINEER THROUGH: CITY MANAGER DATE: MAY 29, 2007 SUBJECT: AGENDA ITEM # U hU- REGULAR MEETING OF JiJN)E WATER EASEMENT FOR WALGREENS STORE #5489 4999 W ATLANTIC AVE. ITEM BEFORE COMMISSION Request Commission acceptance of a water easement for the installation of a fire hydrant to serve the proposed new Walgreens. BACKGROUND A fire hydrant is required to be installed to serve the propose Walgreens store which will be constructed on the northeast corner of West Atlantic Avenue and Military Trail. The attached map shows the location of this proposed Walgreens store. FUNDING SOURCE Not applicable RECOMMENDATION Staff recommends Commission acceptance of the water easement for the proposed new Walgreens at 4999 West Atlantic Avenue. Enc cc Richard Hasko, Director of Environmental Services Randal Krejcarek, City Engineer Caroline Kucmerowski CMT (originals) City Clerk TAC File - Waigreen's #5489 Agenda File June 4, 2007 U:lwwdatalagendalAgneda Info 6.4.0712007-06-04 Walgreens #5489 agenda memoRVClean.doc O ^~ ~ .~.i L O O J ~ ~ ~ _ w i ~ ~ ~ - W ~ ~ Q .~ a 0 e ~~eal ICa~}~~~w Ps~areti ~Y: X1"3: R F3ri:aa~ Shratk, ~q; C~€y 1'-~tpmvy's'f7~.ce ~{~} N:~, 'Est .t~.veIIUe I?~~ra}, E~eaeh, FEvri~ia ~~94d EiCl~4'~~l'`fi L~E~ 'i'k~!l~ II'~~T'L1RC, ms~dc #ids ~ ~ ~ day of ,~`'~ ~Q€J~ h wd ~tr~- ~rc'~r; CY3~ t wig a ~aUng address cif ~` ~~..,..,._..~ Pa~3' of the first part,: ~d tlxe G~TY ~~ ~.;'Y BE~:CH; t~c~i~ ~ mail:hi add~~s of lflt~ T~.:'~U'. ist Awemue, l~lray Beach, l~€:ri.da 33444; a. n~uxziei~,I cc~rprsratian ix~. Palm Beach aunty, S-Eaxa €~f Ficmda, ~~ cif tixe send part: '4~?l~'~'1'~T1r ~~E Thy t3~e ~ of the first part, ft~r and io_ ccra~ide~a~t~~ ~f ~. ~utaal. p~axnises herein contain~xi an¢3. other good and .v~ilu~slc r~€rnsid~; does hereby grtr bari~., sell ar~d relc ~atrr the party of a 5~~+nd part, its suc~ess+~rs and assi~s~, a rxv~itt of sway au~d perpe~a3 ea~senxent for the pt~ose afti~e canstructiaz~ an+~ a~aainte~t~.ca of s: ~va~r main wi~Y fail d rift, liberty, azrthority.~ra err upan. grid tits ix~stall, taper, ax~ci maintain s~ich water- anain veep xrrttier, ash throw. arrtl. upcfz~, txver7 un or ~~thn. the fallc~iag clescsibexl i~'ap~Y laud in i?alt~ Seaeb ~tmty, Fl~ida, to-wit: I?ESCitl~'"~(3N Exhi~i# "A" co~rrxitan# anal c~exte~ive v~ith this rift is the further raght in tixe P of the seeQmd party, its :~Eessars anti assi~as, of ingress a~ egress o~cYer a~x.d tx~ that p~xrtian of land d~escri~cl. nha~*~e, to ect the purposes oft~re esseu~ens; as express heroinai3~. `c`hat this easc~nent shill be sula~ect ou.ly try those ease~.ents, ~'est~ietiazts; anrl. reservatiors~ ~f reed. 'I`hat the p of the fast part ages 9:o provide fame release ar suf~or~t~nataon t}f at~y and. adl inctrtgages c-r lcirxss e#oun~her~.ng his casc~nent. 'Ihe P of the first part alstx aes~ to ezeet. ~tts hiding ar effect any o~tbet- kind a~' GQnstrueto~ ~or i~ng~~xve~n~ts : tote ahave- descrih~d. praperty It is eu~d~stoad that n cs~nmpleti+~x of such c€~n.strctctz, all .IaxEds disturbed. hereby as a resr~lt. of such. ccxn:s~u~ctic»a perf'or~xted thcrettn, ~~iI]. be restor~i to its Qzz~taai ar iil£e ccmditic~n ~witl3.out expose to the pro~re~ty aw4xer.. F? of the fixst P~ d:+ees hereby fu31y ~va~rani ~e fide to sait~. id a~.d will defirrsd th.e same a,~t the ~~.w>~I ct,s of tall Pis w.~vmsc~ever cued. by; thrc~x~.gh ar n~:der it, t~rat it bas goad ri:t aizd i!~ au#hvzit~r ~r~ ant tie ab~vve-descri. e~seme€~t and that the s~:rxe i.~ ~znenc~trnlaere~ ex~cr~t as ~rovid~ abc mere ~e'c,~a~#~ext ~~t>zi~ Eas~~nt weed a]lows ar perriasts, ~e tae ~a1I inciud~ ~ e suea.~s v€~ i of ~e parties,. Iii ~vVIT~TESS ~~EOF, the ~~ t4 this L~e~eazir. ~e~ Elz+~ir hand and sear the day axrd year f~.rst above written, ~~T~fiS~S #~~ ~~ ,~~ J. J a V u r'e_. ~ ~I9~~YdL piid3~Ed. Cl1` t~?et~.} ' ~}~~ ~ ~228i1l~@ ~111.~k~. OT ~~ 5'TA~"E OF ~1 J i na iS COUNT'S'' i~F' 1-.ak ~ ~'iiFf~'I~~ R'i' PA~tT !~, ~Y'x arne snd ~ir1e: (t' ~JiS9anw~! Vice ei !vet >n~ 'Tbe foreg€rir inset eras a~isnt~wles~g~d: before ~e fia~s ~_ .day of ~aT~,,;, 2t~~1by~ ~?oberf ~t~i. S'~ t y2rrr~an {r~ar~oe o£o€ficer ax agebt}, ~f ~a.l n° ~, ~ . {tee of c~atioQ~, an .2"/J, `rw, s {fit or gia~e o~ inc~ar~oratican) rt~~ttitan, viz laeha~f of the eat~v~ti~on. Heft i.~ per~na~~r knt~wzz tc~ me.c~ axz~t. did nflt taz~e ~ aath. ~SE.~4Lj "0FF1CiAl~ ~~ ~~ gEATR1CE MAHLLtM NOTARY PUBLIC, STATE OF 11~,IN~S MY COMMlSS10N EXPIRES ~ 1/1tS~14s1~ Signat of'~r~t~ry ilic State cif ~'/fr'n~~;.S' ExK,~r~, ~~~ r ~ z NorES• I. REPRODUCTIONS OF THIS SKETCH ARE NOT VAL lD SURVEYORS SEAL. 2. LANDS SHOWN HEREON ARE NOT ABSTRACTED FOR OWNERSHIP. OR OTHER INSTRUMENTS OF RECORD. UNLESS SEALED WITH AN EMBOSSED RIGHTS-OF-WA Y, EASEMENTS, 3. THE "LAND DESCRIPTION" HEREON WAS PREPARED BY THE SURVEYOR. 4. DA TA SHOWN HEREON WAS CO//1PlLED FROM THE INSTRUMENT OF RECORD AND ODES NOT CONSTI TUTE A FIELD SURVEY AS SUCH. 5. BEARINGS SHOWN HEREON ARE RELATIVE TO THE WEST LINE OF SECTION I3, TOWNSHIP 46 SOUTH, RANGE 42 EAST BEARING NORTH 00°Dl`07" EAST. DESCRIPTION: A PARCEL OF LAND S/ TUA TE IN THE NORTHWEST l/4 OF THE SOUTHWEST I/4 OF SECTION I3, TOWNSHIP 46 SOUTH, RANGE 42 EAST, PALM BEACH COUNTY. FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLGWS.• COMMENCE A T THE SOUTHWEST CORNER OF SAID SECTION l3; THENCE NORTH 00°Dl'07" EAST ALONG THE WEST L /NE OF SAID SECTION l3, A DISTANCE OF /489.77 FEET.• THENCE SOUTH 89°5853" EAST, A DISTANCE OF 205.27 FEET TO A POINT ON THE NORTH RIGHT OF WAY L lNE OF WEST ATLANTIC AVENUE (S TA TE ROAO PJo. 8061. SA lD POINT ALSO BEING THE POINT OF BEGINNING.• THENCE NORTH 00°/7`05" WEST, A DISTANCE OF 45.57 FEET.• THENCE NORTH 45°00'00" WEST, A DISTANCE OF 13.47 FEE7;• THENCE SOUTH 90°00'00" WEST, A DISTANCE OF 1.I8 FEET,• THENCE NORTH 00°l9'S7" WEST, A D/STANCE OF /2.00 FEET,• THENCE NORTH 90°00`00" EAST. A DISTANCE OF 6.22 FEET,• THENCE SOUTH 45°00'00" EAST A DISTANCE OF 23.38 FEET,• THENCE SOUTH 00°l7'05" EAST, A DISTANCE OF 50.49 FEET TO A POINT ON THE SAlO NORTH RIGHT OF WAY L /NE OF WEST ATLANTIC AVENUE,• THENCE SOUTH 89°40'03" WEST ALONG SAID NORTH RIGHT OF WAY LINE, A DISTANCE OF 12.00 FEET TD THE POINT OF BEGINNING. SA/D LANDS SI TUA TE /N PALM BEACH COUNTY, FLORIDA. SUBJECT TO EASEMENTS. RESTRICTIONS, RESERVATIONS, COVENANTS, AND RIGHTS-OF-WA Y OF RECORD. CERTIFICA TE.• I HEREBY CERT/FY THAT THE ATTACHED SKETCH OF DESCRIPTION OF THE HEREON DESCRIBED PROPERTY IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AS SURVEYED UNDER MY DIRECTION ON APRIL 5th, 2007. l FURTHER CERTIFY THAT THIS SKETCH OF DESCRIPTION MEETS THE MINIMUM TECHNICAL STANDARDS SET FORTH IN CHAPTER 6/Gi7-6 ADOPTED BY THE FLORIDA BOARD OF SURVEYORS AND MAPPERS PURSUANT TO FL OR/DA STA TUTES 472.027. ,-~ CAULFiELD 8~ WHEELER, INC. CIVIL ENGINEERING -LAND PLANNENG ~~ ~` $ .~ ~~~~~' LANDSCAPE ARCHITECTURE - SJRVEYING ~~ ~ ts~ ~ %~ % 730iA W. PALMETTO PARK ROAD -SUITE lOOA _ "~+~~~ ~~ / BOCA BATON, FLORIDA 33433 s ~<.~, PHpNE (561)-392-1991 /FAX (561}-730-1452 ~.~ '• JE REY R. WAGNER REGISTERrD LAND SURVE"OR NO. 5302 STATE O~ ~ LORIDA L.S. 3591 DAiE x4/05/2007 F.B./ PG. N/A SCALE hfA iIJOB N0. 47801! sKErcH of D~ sc~i~ rI~N - urL i rr EASE~fEN r WALGRFENS - 4.99 V/EST A TLANT/C A i/cNUE ~Xlfi~'iT ~4~ ~RGE ~ cf .~. m' zl ~' m' ~~ ~~ ~- f o~ ~E W ~ ~ . J~ W~ ~ ~ , r\ ~~ r i ~o ~o ~o ~z POINT OF COMMENCEMENT SOUTHWEST CORNER SECTION I3-46-42 WEST ATLANTIC AVENUE (S TA TE ROAD No. 8061 _ _ CEIUTERLlNE _ _ cRA~NIC scaL~ 0 i0 20 40 i ( i'V FEET } I INC?-I = 20 =E=T CAULFIELD 8~ WHEELER, INC. ~ ~~:. CIVIL >=NGINEERING -LAND PLANNING :, ~ ,~ ~,, ~ LANDSCAPE ARCHITECTURE -SURVEYING ;~ .. ~ 7301A W. PALMETTO f'ARlC ROAD - SLETE f00A BOCA RATON, FLORIDA 33A33 PHONE (561)-342-1991 /FAX (56i)-750-1452 SKETC'~ OF DESCRIPT/CN - L'T/L/TY E%SEMEI'/T WALGREEI'~/S - 4999 WEST .~.TLANTIC ,raVEl`~ICIE N90°00'00'E` 6.22' NOD°l9 57"W ~~~~,~~ 12.00 -~~ ~oor''~. ~°o.. PROPOSED ~1 UTILITY EASEMENT S90°00'00"W /. l8' ~ I ~ N45°00'00"VY ( I ~ 13.47' ~I ~I I W ~ of i h ~% o col I~ ~ o°I I o I I zl I ~°n I I S89°5B 53'E 205.27' -.~~ i NORTH R/GHT OF WAY UNE ° / /! S89 40 03 W 12.00' 0 DATE 04/05/2007 DRAWN 8Y ARZ F.B./ PG. N/A SCALE 1"=20' JOB N0. 4780 Date: 29 May 2007 AGENDA ITEM NUMBER: ~ ' - AGENDA REQUEST Request to be placed on: X Consent Agenda -Regular Agenda -Workshop Agenda -Special Agenda When: 04 June 2flfl7 Description of Agenda Item (who, what, where, h~iw much): Commission acceptance of L2-foot water easement for Walgreen's Store #5489. Recommendation: Department Head City Attorney ReviewlRecommendation (if applicable}: Budget Director Review (required on all items involving expenditure of funds}: Funding Available: Yes / 1V'o Initials: Account Number Description Account Balance: Funding Alternatives: (if applicable) City Manager Review: Approved for Agenda. Yes / No Initials: Hold Until: Agenda Coordinator Review: Received: S:\EngAdmin\TAC\Walgreens Store No 5489 (W. Atlantic Ave. & Military Tr.)\2007-06.04 Walgreens #8489 h2o easmt agenda.doc MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: TRACIE M. LUTCHMANSINGH, P.E. ASST. CITY ENGINEER THROUGH: CITY MANAGER DATE: MAY 29, 2007 SUBJECT: ITEM BEFORE COMMISSION This agenda item requests Commission acceptance of Right-of--way dedications at 334 NE 3`d Avenue. BACKGROUND Two dedications are included in this agenda item; 1) five feet of right-of--way along NE 3`d Ave and 2) a two foot right-of--way dedication along alley on west side of 334 NE 3`d Ave. The attached right-of--way deed includes a sketch that provides details of the limits of the right-of--way to be dedicated. FUNDING SOURCE Not applicable RECOMMENDATION Staff recommends Commission acceptance of the right-of--way dedications at 334 NE 3`~ Avenue. Enc cc Richard Hasko, Director of Environmental Services Randal Krejcarek, City Engineer Caroline Kucmerowski CMT (originals) City Clerk Agenda File June 4, 2007 0 =~=+ V .._ O • ~ Q t~ ~^^ V ~~ ~~`} v Q a L M W Z :~ -- - .. ._ __._ _ _. _ _ _ _ _ ... - s 1 ~ . ~~. ~l i ~ _. O N O 14 0 C7 U N m a C~ L O O N N Prepared by: RETURN: R. Brian Shutt, Esq. City Attorney's Office 20{1 N.W. 1st Avenue Delray Beach, Florida 33444 PIN # RIGHT-OF-WAY DEED THIS INDE ~'TUIZE made this % day of ~~~~ 200_7, between ,~ ~ Z~ i T z- i ~rr~~. ~~ ~~ with a mailing address of ~~g ~ C~-ec~~ ,~ C'~ ~ ~~ ~.~~ ~'',`,,~cc.~ ~gkwe,~rF~ /-~-, as party of the first part and CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation with a mailing address of 100 N.W. 1st Avenue, Delray Beach, Florida 33444, as party of the second part. WITNESSETH: That said parry of the first part, for and in consideration of the mutual promises herein contained and other good and valuable consideration, does hereby grant, remise, release, quit claim and convey unto the party of the second part, its successors and assigns, all right, title, interest, claim and demand which the party of the first part has in and to the following-described land, situate, lying and being in the County of Palm Beach, State of Florida, to-wit: See Exhibit "A" attached hereto. This Deed is made for the purpose of giving and granting to the party of the second part, its successors and assigns, aright-of--way and easement in and to said lands for public highway, street, and public utility purposes and the maintenance thereof; and is made, executed and delivered with the express understanding and condition that should the same ever be discontinued or abandoned as a public highway or street, the title to same shall thereupon revert to and revest in the party of the first part or assigns, except that the easement for public utility purposes shall remain until released. That this right-of--way shall be subject only to those easements, restrictions, and reservation of record. The party of the first part agrees to provide for the release of any and all mortgages or liens encumbering this right-of--way. The party of the first part also agrees to erect no building or effect any other kind of construction or improvements upon the above-described prope1't3'• Party of the fast part does hereby fully warrant the title to said land and will defend the same against the lawful claims of all persons whomsoever claimed by, through or under it, that it has good right and lawful authority to grant the above-described right-of--way and that the same is unencumbered. Where the context of this Right-of--Way Deed allows or permits, the same shall include the successors or assigns of the parties. TO HAVE AND TO HOLD THE SAME, together with all and singulaz the appurtenances thereto belonging or in anywise incident or appertaining, and all the estate, right, title, interest, and claim whatsoever of the said party of the first part, in law or in equity to the only proper use, benefit, and behalf of the said party of the second part, its successors and assigns. IN WITNESS WHEREOF, said party of the f rst part has hereunto set their hand and seal the date first above written. Signed, sealed and delivered e pre ~ of ,~ (Name printed or typed) ~..an c~a ~. ~aski•~s ..D . ame printed or typed PARTY OF THE FIRST PART By: (Name printed or typed) ~'es3 Cam;- ~ ~.~.~~ ~..~~ C~,- (Address) STATE OF ~~~ _ COUNTY OF~P`M~~ The forego' ent was :~kn wledged before me this ~ day of ~~re , 2007 by ~~~ ~ . ~~-~ who is personally known to me or has produced :, ~S L'~ as identification. o~~ '1Q - rJS ~ t7 ~ • . Signature of Notary Public - bey ~~•, Chevelle D. N,ubin State of Florida ~'~ ;=Commission # DD518977 =~-h Expires February 15, 2010 '~ '~;};~N ~~, laded Troy Fain • tiawsna. tie. eooaesloro 2 SKETCH OF DESCRIPTION EXI~BIT ';4" SKEET 1 OF 1 ~ b N II 4i J N.89°15'30"W. 1u89°75'30"W. 2.0' 5.0' ~` '~ H NORT LII~ LOT 19 ~ ~ 7 ~C aW w w W ~ ~ g o g • ~ LOT 19, BLOCK 81 Q (~ ~ J Z Z V1 ~u Fem. 3 Q ~ SOUTH Lll~ ~° LOT l9 ~, z~ 0 l~(89°15'30"W. DESCRIPTION ThE' WEST 2.0 FEET OF LOT 19, BLOCK 81, SUBDII/ISION OF BLOCK 8~ ACCORDING TO TIC PLAT THEREOF AS RECORDED IIV PLAT BOOK 11, PAGE 32 PLBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. AND.• Tl~-EAST 50 FEET OF LOT 19, BLOCK 81, SUBDIVISION OF BLOCK 8~ ACCORDING TO Tl~ PLAT THEREOF AS RECORDED 1N PLAT BOOK 11, PAGE 32, PLBLiC RECORDS OF PALM BEACH COUNTY, FLORIDA. NoTES• Th1S 1S NOT A SU4VEY ThE WEST Lll~ OF COT 19 /S ASSUV?ED TO BAR N.D°00'00'£ PAUL D. ENGLE 1f SURVEYOR & APPER ~'S708 DA TE.• MR Y 7. 2007 ORDER /Vb. OS-48RW Date: 29 Ma 2007 AGENDA ITEM NUMBER: ~'~ .'". AGENDA REQUEST Request to be placed on: Consent Agenda _X_Regular Agenda Workshop Agenda -Special Agenda When: 04 June 2007 Description of Agenda Item (who, what, where, how much): Request Commission acceptance of Right-of-Way dedication at 334 NE 3rd Avenue. Recommendation: Department Head Signature: City Attorney. ReviewlRecommendation (if applicable}: ~"3e'~~ Budget Director Review (required on all items involving expenditure of fiends): Funding Available: Yes / No Initials: n/a Account Number Description Account Balance: Funding Alternatives: City Manager Review: Approved for Agenda: \Ye / No Hold Until.: Agenda Coordinator Review: Received: (if applicable) Initials: S:\EngAdmi.n\Right-of--Way Deed\334 ne 3rd ave\I~ilbourne & Zeitz agenda 2007-06-04.doc MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: TRACIE M. LUTCHMANSINGH, P.E. ASST. CITY ENGINEER THROUGH: CITY MANAGE DATE: MAY 24, 2007 _ SUBJECT: HOLD HARMLESS AGREEMENT FOR 855 SOUTH OCEAN BLVD. ITEM BEFORE COMMISSION Hold Harmless Agreement with the property owner of 855 South Ocean Blvd. BACKGROUND The Hold Harmless Agreement allows the property owner to connect to utilities in the right-of--way under the jurisdiction of the Florida Department of Transportation. FUNDING SOURCE Not applicable RECOMMENDATION Staff recommends approval Enc cc Richard Hasko, Director of Env'sronmental Services Randal Krejcarek, City Engineer Caroline Kucmerowski CMT (originals) City Clerk Hold Harmless File TAC File - 855 S. Ocean Blvd. Agenda File June 4, 2007 S:1EngAdminUtight-of way Deed~34 ne 3rd ave~I{ilbovme & 2:eitz agenda memo 2007-06-04.doc Z W W W C~ Q (11 to W J Q I D J 0 Z a 0 a U O J m C Cti Q1 ~~i, t~ U to N m 0 0 0 N 1 N HOLD H.A.RMLESS AGREEMENT FOR WORK PERFORMED WITHIN THE STATE RIGHT-OF-WAY THIS HOLD HARMLESS AGREEMENT, is entered into this ~~~day of v 200~~y and between the CITY OF DELRAY BEACH, FLORIDA, (hereinafter referred to as "CITY'S and L~~-~ ~~ , (hereinafter referred to as "DEVELOPER"). WITNESSETH: WHEREAS, DEVELOPER wishes to instalUconstruct utilities in the right-of--way of the State of Florida; and WHEREAS, the CITY is requited to sign the permit on behalf of the DEVELOPER to allow the installation/construction to take place in the State right-of--way; and WHEREAS, the CITY is required to indemnify and hold harmless the State for the work performed by DEVELOPER in the State right-of--way; and. WHEREAS, this Agreement shall provide that DEVELOPER shall hold harmless and defend the CITY and the State for the work performed in the State right-of--way by the DEVELOPER, its contractor or agent. NOW, THEREFORE, for the mutual covenants and matters set forth herein, as of the date set forth above, the parties hereby agree as follows: 1. The recitations set forth above are incorporated herein. 2. DEVELOPER, in consideration of the payment of Ten Dollars ($10.00), receipt of which is hereby acknowledged, agrees to defend, indemnify, and hold harmless the CITY and the State, their agents, officers, employees and servants from any and all claims, suits, causes of action or any claim whatsoever made, and damages, including, but not limited to reasonable attorney's fees and costs at the txial and appellate levels, which may result from any activity conducted by DEVELOPER, its contractors or agents in relation to the work performed in the State right-of--way and as more particularly shown on the engineering plans submitted for the development known as ~S~S ~ .' C~~~'~:J ~ {'`,~~ ~ C~7h~'/ ~~ ~• 33~~ 3. DEVELOPER warrants and guarantees to the CITY that all work on the utility improvement shall be constricted in accordance with the applicable codes of the City of Delray Beach and the State of Florida. The DEVELOPER'S warranty anal guarantee shall remain in effect for one year from the date of final acceptance. Unremedied defects identified for correction during the warranty/guarantee period but remaining after its expiration shall be considered as part of the obligations of the guarantee and warranty. Defects in the installation or construction of the utility improvement, which are remedied as a result of obligations of the warranty/guarantee shall subject the remedied portion of the work to an extended warranty/guarantee period of one year after the defect has been remedied. DEVELOPER shall deliver this agreement to its Surety. The Surety shall be bound with and for the DEVELOPER in the DEVELOPER'S faithful observance of the guarantee. 4. DEVELOPER, shall supervise and direct the installation and construction of the utility improvement, applying such skills and expertise as may be necessary to perform the work in accordance with the approved engineering plans. DEVELOPER shall be solely responsible for the means, methods, techniques, sequences and procedures of the construction and installation of the utility improvement. 5. Any claims, lawsuits or disputes that may arise under this Agreement shall be governed by the Laws of Florida, with venue in Palm Beach County, Florida. 2 6. This Agreement constitutes the entire agreement and understanding of the parties, as it pertains to the construction or installation of the utility. There are no representations or understandings of any kind not set forth hereixz. Any amendments to this Agreement must be in writing and. executed by both parties. 7. DEVELOPER or its contractor shall maintain worker's compensation insurance in an amount required bylaw and general liability insurance in the amount of one million dollars ($1,000,000.00) governing bodily injury and property damage in standard form, insuring CITY and the State as additional named insureds. DEVELOPER or its contractor shall provide this information to the CITY on a Certificate of Insurance, that is acceptable to the CITY, prior to commencing installation or construction. 8. DEVELOPER shall be bound by all the terms and conditions found in the Utility Permit Agreement between the CITY and the State for this proj ect and attached hereto as Exhibit ~,A~~ 9. This agreement shall not be valid unless signed by the City's Mayor and City Clerk. IN WITNESS WHEREQF, the parties hereto have entered into this agreement the day and year first written above. ATTEST: By: City Clerk Approved as to Form: By: City Attorney CITY OF DELRAY BEACH, FLORIDA By: Rita Ellis, Mayor 3 r WITNESSES (Print or T N e) i~ (Print or Type Name) DEVELOPER: By: (Print or Type N fir. Address: ~l S. ~ ~ S-s~ %~ . Phone: ~/~Z72 -4~5's"z-- ~_ STATE OF FLORIDA COUNTY OF PALM BEACH -~lR-l'4 wThe foregoing instrument was ackn"ow dged befo e me this ~ day of 20 by~~~ /1 Gz ~ ~' ~,~ ~~i G~.~rne of officer or agent, title of officer or agent) of h~ d ~ ~ (name of corporation acknowledging), a ~ (stat r place of incorporation) corporation, on behalf of the corporation. He/She is ner,~~j,Y known to me or has produced (type of idea ~ as identification and did {did not) take an oath. ' of Notary Public- ~..sMe nnne ~tomero State of Florida ~1`~ cort+~on o©rr~a ~'awa` Expires Oeamb~r 14, ZbG`! 4 sTat~ of t:t~ra~o~at~tTtroF TI•uu~sf~ftrarort ~ot;M Ttaatt~.as UTILITY FER~14IT unurrt:s occ-saw ...-....,-.- .,.~ . errr:n~r can • ~ ~ ~\V ogre ernes ~ r•nr ruty v.iY, ..~w~w Vvv~.. .• r'eKMDI SVV.~ JV4N FDt3T construction is proposed or underway. Q Yes ^ sYo Financial Project ID: Is this worst resatad to an approved tl6iity Work Sctteduse? Q Yes ^ Mo ff yes, Oocumert Plumber. ~ ADDRESS: } S~ . ' FELEPHONE AtUMBETd: (}`tint) L.I . -- CRYlS1'ATE2lP: '' ~ G~"1 '= ~~ ~ 3t.~ t'-~' `-! . The above PERM#'fTt=E requests rmissiorr item the Sate of Florida Oapartsnertt of Transportation, 6tr~a~natter tailed the FDQT, io consteyck, '`tir'ti--~ ~ ~ ~~ ~ !' 1 i r"1 -'~ 'l ~ ~'-~'~+•~ t31'l 'K:+ ~~~~+'~'- i YTt't'D ~-~- hi^ l i , ,,,. . i r ~ ng: , . i ow flrir.C:: , operate and tTtaintatn the fol ~, a ~ FROM: TO: Submitted for tits PERMITTEE by: IVarTre and T'itlo Slgnatwro 17atrt or Printed ibl 1. The Perrlitteo declares that prior io (tiling this appltcatior, the location of a!# existin utilities that it owns ar has an interest ln, both aerial and underground, accurately shown on the plans and a fetter of noi'fica6ion mail,3d an o the foElowin utisNies knovurr to be imotyed ' ~ era ~ C~ _t- s S 'W'@ ' ~ " ~ ~ '' patentia#ly impacted in the area of the proposed installation: ~ 2, The total Maintenance or Resident Engineer, hereafter rofesred to a the FD Engineer, shalt be mo fled a ms mum of forty eight (48) cars In advance prier to startsng worst and again immediately upon campsetion of work. Tho FDOT's Engineer is .located at ' s employee responsible for MOT is Telephone Plumber .The Pertnittae i ~ Telephone Plumber .('This name may be provided at the time of the forty eight (48) houradvance-notice prior to starting work). ' E^.g.^.ser. 3, Ali:work, matarisis, and equiFstt&mt Shari be sutsjetKto tt;st,ec'dan and approval by flee FC4~'f 4. A!i plans and installations shalt conform to the requirements of the FDOT's IJAM in effect as of thta date this permit is approved by FDOT, and shalt bs trad+s a part of this permit This provision shall not 11mit the authority at the FDOT n Paragraph 8 of this Permit ce Satuat construction sR gtsod faint within days agar issuance of permit, and shat! be ODmpteted within teal! mme P I co n ttea s a 5. This • .days slier the petrnitted worst tees i~agun. Ifthe beginning date is more than sixty (&t)) days from the date of permit approval, iha - Fed the Pertnittee must review the patrols with the FDQT E-rrginaer to make scars rtio u'ianges have acxvrred fo the Transportation Facilttty thaf would ar permitted cons#ructiart. The construction amd maintenance: of such utility-shelf not interfere w[th.111e property and rights.afa prior Permittee. B . 7. tt is expressly stipulated that this permit is a I'ticertse for permissive use only and ttratttie placing of uEititias upon pubtta properly pursuant to this permit steal[ ` not QperafB to create ar vest an+j Ato{~asty right Ctrsafd hotdQr,.excx~fasrugsrided it sxera:tted sutordfrratior3:arid Railroad iJU7ltY AStresments. Pursuant to Section 337.403(1), Florida 5taturts, any ut[tity placed upon, candor, over, ar along any public road or pubiscty owned rail corridor that is found by $ . j FOOT to tx3 unreasonahiy interfering in any way with the convenient, safe, nr continuous use, or maintenance, improvement, exiertsian, oraxpartslon, of on fttltty (30) days written nolioe to the uL'iity ar its agent by FDOT, be removed or relocated by such uridor shaii u ft bli l d , p ra tx c y owne sut:h public road or pu uiilily at its own expense except as:ptovided in:paragraphs (a}:and (b),:and exceptlor roirrrbursementrights set forth in previously executed subardinatian and Railroad Utility Agroemonis, and shasi apply tbaU succ~ssars and assigns for th~'permitted faculty. tt is agreed that in the event the retoration a€ said utilities are scheduled to be done simustaneouafy witty ttia FDOT's wnstrudion work, the Pamtittae wits 9 . caardkrate with the FDO'i' before proceeding and shall Cooperate with the. F}?OTs corruactor to strange fh'e sequence ofwork seas sotto delay the work of delays caused by the Permltiee's failure to comply witty the approved s atthrr FDOTs-camtractar due to lai t d l d f ' . ega c m en any e s contractor, the Ft]OT and shaii comply wittl sltprovisionsaf lira taw~and thgFCtO.T"t; currt~rtt tJAM, Tha parrttiitteeshalG'nat.bct•rasponsihse tordalay beycnd its contras. schedule ' , tiy will have to i5a In the case of non-compliance with the FDOTs requireinentsin effect.as afihe dato4hia permitis approved, this permit is void arui the Tacii } 10 . tstcutghtlntocomp[ianceorremavsdfratn#h®WtMatnocosttolheFD07etrcaptiarrelmtsurse>raenttigtttssetforthinpraviottstyexecutedsubordinationand I i2ailroad Utitity Agreements. This prevision flits#t net limit the authority of the FI?OT under Paragraph 8 of this Pertr#t. ~ understood and agreed that ttre rights and priv!legos herein set out are :granted arty to ttre extent of the State's right, title and interest in the land to tee !t i 11 . . entered uprn and used by lire Permittt:e, and the Pr.*rn~.:s~ +~Ji, a! ail ~-rztes; arsi fa it!e e?ttQrad permitted 3~v 1aw; assume ail risk of and indemnify, defend, rxuE ar expanse arising In any manner on aecourti of the damage rida and the FDOT from and against any and alt foss St t f Fl tt , , te a e o o and save trarmless exorcise or attempted exert~ses by said Petmittee of titia a€oresaid rights anti ptiVileges. During construction, ati safety regulations otthe FD0'Tshalf be oDserved:ard the Perrtittee musttaks measures, including placing and fhedisplay ofsafety 12 . devices that may he necessary in order to safely: Conduct the>pugiic through the project area in accor+danoe>with the Federal MUTCD, as amended for including flagging services and Ftaiiroad Protective insurance or acceptable tica>son Package for raiM~ays Standard Ap f th i ts , p remen e o highways, the. requ when appticable, and the FDOT's Design Standards, tndexas800-fi7a, and Startrfard Spacificatiarts for Road and Stidge Constntctian, Sadion t altematlva , 10:>., as amended by the UAM. When a Utility deems it reoessary to conduct Traffic Contras activities and methods signiftcanUy different from those addressed in the above references, the Utility must sut~rnlt an a#temtative •plan signed and seated by a licensed Floridaprofessionas engineer qualified to develop 'PCP in accordance with the provfssors of Ohaptor 8 of the UAM. Should the Permittee be desirous of keeping #ts utitaias in piacB and outof service, the Permittee,. by exsautior of this permit acknowledges its presort and t 3 . canUnuing ownership of its utilities located Datween and i within ilia FDOTs R/yV as set forth above. Whenever file Permittea removes its faciliGas, it shalt be at the Parrnittee`5 so#e+:cost:and' expense. Ths Fsrmittea; at ifs sate.expense, shaii promptly remove said out of service utilities whenever iha rDirT determines sai8 removal is sn the public interest. In the event contains»ated so#! is encauntared bythe Utility ar amyane wither the permitted .construction lsmits, the Utility strati immediately cease work and t4 , notify the FDOT. The FDQT shall coordinate with iha apprapriaia agencies.amd mofify cafe Permtisttrae of any suspension os revocation of the permit until { contamination assessment and remedialion, as appropriate underRuleCltapters 62-77i}and tit-730 FtorSda.Administrative Cade, has progressed to a state that all environmontai regulatory agencies having jurisdidsan have:apprvvadiha.sits of fhe contamination for resumption of work. i 5. Forany excavation, construcction,maintenance: orsupport acxivilfexperforned byoron.behaffofihaFDOT, wiUin its RIW, Etta Permittaemaybe required by atities f , a the FDOT or its agents to perform the following activifics with rasped to a Permittee'sfaciisUos: physiptty expose ordirectsxposure of undsrgraund proui.de any necessary support fo faaTittes and/or rover aerial facilities as deemed necessary: 1&. Pur:>uanttoSection337.401(2j,FtoridaS.tatu.tee,th4permitsl2aftrequirsther¢0rmithakteatatso-rsspons+bts:fardamagaresus6ngtromtheissuanceofthe I permit. Tne Fez, t"iT ma sntlate in'unctivs roceedin sae rovided in s.t2i5.8y kn enforce rovisiom5 a'i ttri6 SUtSSC-anon nr en ruse ar ordarissuad or entered Page 1 of 2 SYa~rE of Fr.owoa ot=Paa~rnsErrr of rruuv5abrzraTro~a Fostr~ ~to.a~o-as untmEs UTILITY PERMIT °~-~ into pursuant thereto. 17. Pursuant to Secction 337.402, Florida Statutes, when any public toad or publicly awned raft corridor is damaged ar impaired in any way because of the inst<~Ila9ian, inspection, ar rRpair of a utility lacaied on such road or.publicly owned tali aarridor, the owner Of tree u2ilrTyr shalt, at his or her own expense, restcxe the mad or publicly owned raft canidar tb its original condition before such damage. if Ute owner fags to make such restaratian, the authority is authorized to do so and charge the. Cost thereof against the owner under the provisions of s.337.40b. t $. T ha Permittee shall comply wrt~1 ail provisions of Chapter 556, r •rorida Statutes, Unaerground r=aciiitias Damage Prevenrion and Safety Act. 19. Special FDOT instnrctions: It is understood and agreed that commencement by the Perrniftee is acknowEedgmenE and- acceptance of the tisrrd'mg nature of ati the above listed permit oonctitions and special instnrctions. 20. Receipt of this permit acknowledges responsibility to comply witFt Section 119.07(3, Florida Statutes, and UAM Chapter 4.5.2, regarding Exempt (3ocuments and Security System Plans Requests_ 21. By Sve below signature, [he Permittee hereby represents that no change is the FDOTs standarr! Utility P®rm~ form. as incorporated by reference into Rule 14-4fi.001, for this Utility Permit has been made which has not been previously called io Vre atteniian of the FDQT {and signified to by checking the appropriate tax below) by a separate attached written document showing a!t c3tanges and the written and dated approval of the FDOT Engineer. Are there attar:hmants reflecting changels ro the standard form? QNC7 Q YES If Yes, pages are attached. PLItMiTY>cE S~iA'Y'iiR@ 1 D~A'f'E: r r Nmma b Title of Authorized Parrnittso or Agee! or I~rinted Le ib! APPROVEQ BY: ISSUE DATE: District t4lalntanance Esrginser at t}esign®6 UTtLiTY PERRAlT F1NAt 1NSPECTidN GERT[FiCATtON DATE: ++ DATE WORK STARTED: 3 DATL WCJRlt COMPLETED: INSPECTED SY: (Perrnittae or Agent) ~ -~-~ CI ttANGE APPROVED BY: DATEc Dlstrtot Maintenance Engineer or Designee t the undersir}ned Pemrittae do hereby CHRTEFY that the utility constrtrcllort approvt~d bytlie above numbered perml! was Inspected and installed in accordance with Use appraveci plans made a part of this permit and in accordance with the FDOT's current UAt,+I. At3 plan changes have teen approved by the FDOT's Engineer and are attached to this permit 1 also certify that the work area has been left in as good or better c~nditien than when rite wont was begun. PERMITTEE: SIGNATURE: DATE: Name & Ttle of Authorized ?grmittea or Agent ~~ d or Printed !b! CC: District Permit OflSce Permitlea Page 2 cf 2 Date: 24 Mav 2007 .,. AGENDA ITEM NUMBER: AGENDA REQUEST Request to be placed on: Consent Agenda _X_Regular Agenda Workshop Agenda -Special Agenda When: 04 June 2007 Description of Agenda Item (who, what, where, how much): Commission approvallauthorization for 1Vlayor to execute a hold harmless agreement with Mark Timothy, Inc. (at 855 South Ocean Blvd.) for connection to utilities on FDOT right-of--way. This agreement is subject to review and approval by the City Attorney. Recommendation: Department Head Signature: City Attorney Review~R.ecommendation (if applicable): ~Z,.~ Budget Director Review (required on all items involving expenditure of funds}: Funding Available: Yes 1 No Initials: n~a Account Number Description Account Balance: Funding Alternatives: City Manager Review: Approved for Agenda: Yes No Hold Until: Agenda Coordinator Review: (if applicable) Initials: _ Received: S:\EngAdmin\TAC\866 S. Ocean Blvd\866 s ocean blvd agenda 2007-06-O~.doc MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: SCOTT PAPE, AICP, SENIOR PLANNER ~F ~'~` PAUL DORLING, AICP, DIRECTOR OF PLANNING AND ZONING R,uX THROUGH: DAVID T. HARDEN, CITY MANAGER (~ ~'` SUBJECT: AGENDA ITEM # ~ REGULAR MEETING -JUNE 4 2007 **CONSENT AGENDA** ACCEPTANCE OF A HOLD HARMLESS AGREEMENT ASSOCIATED WITH THE SEAGATE HOTEL CLASS V SITE PLAN APPROVAL. ITEM BEFORE COMMISSION The action requested of the City Commission is acceptance of a hold harmless agreement associated with the Seagate Hotel project located on the south side of Atlantic Avenue, between Venetian Drive and Gleason Street. BACKGROUND The subject property contains 2.07 acres and previously contained the Atlantic Center Shoppes, the Huddle Building, and the Island House Apartments, which have been demolished. The subject property is zoned Central Business District (CBD). At its meeting of January 10, 2007, the Site Plan Review and Appearance Board approved the Class V site plan for the Seagate Hotel, which will contain a four story building with 162 hotel rooms, a 7,469 square foot restaurant/kitchen, 6,395 square feet of retail, and a 4,328 square foot spa. The building has azero-foot building setback along the north side of the property adjacent to Atlantic Avenue. As a result, the wall mounted light fixtures encroach approximately 4 feet into the public right-of-way. A condition of approval included a requirement to submit ahold-harmless agreement for these fixtures. The hold harmless agreement has been reviewed and approved by the City Attorney's Office for legal form and sufficiency and is now before the City Commission for approval. RECOMMENDATION Accept the hold harmless agreement associated with the Seagate Hotel for the installation and maintenance of the wall mounted light fixtures that extend within the Atlantic Avenue right-of-way. Attachment: ^ Hold harmless agreement. N SEAGATE HOTEL on ATLANTIC -~r- LOCATION MAP qTY OF DELRAY BEAgi, Fl ®SUBJECT PROPERTY PLANNING do 20NING DEPARTMENT MAP REF: LM982 -- D/G/TAL BAS£ AL4P SYSTEM -- HOLD HARMLESS AGREEMENT BY AND BETWEEN HHC ATLANTIC,. LLC AND THE CITY OF DELRAY BEACH, FLORIDA This Hold Harmless Agreement is entered into by and between HHC ATLANTIC, LLC, a Florida limited liability company ("HHC"), and the City of Delray Beach, a municipality organized in Palm Beach County, State of Florida (the "City"). WHEREAS, HHC is the owner of certain property located in Delray Beach, Palm Beach County, Florida, (the "Property") more particularly described on Exhibit "A" attached hereto and made a part hereof. WHEREAS, HHC intends to develop a project known as SEAGATE HOTEL ON ATLANTIC at the Property. WHEREAS, the site plans submitted to the City, as approved by the City, provides that certain lighting fixtures will intrude into the air space above the right-of--way of the City. WHEREAS, the City has requested that HHC enter into a Hold Harmless Agreement in order to hold the City harmless for any damages which may occur as a result of the intrusion of the lighting fixtures to the air space. NOW, THEREFORE, 1. The recitations set forth above are incorporated herein. 2. HHC acknowledges that the City shall assume no liability or responsibility for said land, structures, improvements, materials, appurtenances or the partial or complete destruction or removal of the same on the subject property. 3. Nothing in this Agreement" 9~lieves HHC of any obligation imposed under the City's Land Development Regulations or Code of Ordinances. HHC is responsible for obtaining 1 any and all permits required in connection with the construction/installation of the lighting fixtures and/or supports. 4. HHC shall construct/install the lighting fixtures in substantial conformity in the locations as shown on the Site Plan certified by the City of Delray Beach. 5. HHC, on behalf of its successors, heirs, and assigns, acknowledges that the City shall assume no responsibility for the lighting fixtures which are being placed within the public right-of--way. 6. HHC, its successors, heirs, and assigns, in consideration of the mutual promises contained herein, and other good and valuable consideration, agrees to hold harmless the City, its agents, officers, employees and servants from any damage to the lighting fixtures and other related improvements which will be placed within the public right-of--way. It is understood that any cost for replacement of the lighting fixtures and other related improvements shall be HHC's, its successors, heirs, and assigns' responsibility, and the City will not be held liable for any damage as a part of any maintenance or construction within the said public right-of--way. HHC, its successors, heirs, and assigns, in consideration of the mutual promises contained herein, and other good and valuable consideration, agrees to defend, indemnify, and hold harmless the City, its agents, officers, employees, and servants from any claim, lawsuit or action brought against the City as a result of the lighting fixtures being placed within the public right-of--way. 7. The City or its agent, contractor or representative shall be allowed to access the enclosed portion, if any, of the public right-of--way at any time. 8. HHC shall remove the lighting fixtures from the public right-of--way within twenty (20) days of receiving notice from the City requesting removal. If HHC fails to remove the lighting fixtures, the City may remove the lighting fixtures and bill HHC for the cost of such 2 removal. The City, or its agents or contractors, shall not be responsible for any damage that may occur to the lighting fixtures during such removal. The City may request removal of the lighting fixtures for any reason and in its sole discretion. 9. HHC, its successors, heirs, and assigns, in consideration of the mutual promises contained herein, and other good and valuable consideration, further agrees to hold harmless, defend, or reimburse the City for any damage that is caused to the City's public right-of--way as a result of the construction, maintenance, or existence of the lighting fixtures located in the public right-of--way. 10. HHC's placement of the lighting fixtures in the public right-of--way shall not in any way be construed as a constructive abandonment by the City. Clerk. 11. This agreement shall not be valid unless signed by the City's Mayor and City 12. This agreement constitutes the entire agreement between City and HHC, and may not be altered, amended, or modified except by an instrument in writing signed by the parties to the agreement with all the same formalities as this agreement. IN WITNESS WHEREOF, the parties hereto have entered into this agreement on the day of , 2007. ATTEST: By: By: City Clerk Approved as to form: By: City Attorney CITY OF DELRAY BEACH, FLORIDA City Manager 3 HHC Atlantic, LLC, a Florida limited liability co y B: ett Graue, Vice President HHC DEVELOPMENT, INC., a Delaware corporation, STATE OF FLORIDA ) SS COUNTY OF PALM BEACH ) The foregoing instrument was ~/~, ~~.( 2007, by Garrett Graue, Florida limited liability company, on behal me, or has produced identification, and did/did not take an oath. NOTARY SEAL: Its: (SEAL) acknowledged befor me this `~` s% day of ~; `.t ~rt~; ~Q~„7~of HHC Atlantic, LLC, a f of the company. He is either pe ona kno to (type of iden i ication) as Notary Public 4 ~*"Y~°k ERIC Dr4V1F)DORSCHEL r. -. ':xe ;.: ;ti,Y ~'1Utt~ iTS~?~t't # DD470700 '''x€~,; ;~?- E.{t'firvi:;: Sept. 11.2009 (40l) yyt}Uf ti3 Florida Notary Savice.com EXHIBIT "A" Legal Descriation Parcel A. Beginning at a point on the South side of Atlantic Avenue in the City of Delray Beach, former a Town of Linton, 20 feet West of the Northeast corner of Block 1257, as per plat rec ed in Plat Book 1, Page 25, Palm Beach County Land Records, as a Point of B • thence South on the West line of Gleason Street as widened, a distance of 193 feethen~c est on a line parallel to Atlantic Avenue , a distance of 102.21 feet to a poin Northerly 193 feet to a point on the South side of Atlantic Avenue i 01.2 feet ~~~~ dtht of Beginning; thence East on the South side of Atlantic Avenue a distance~;cr -~~1.,2 feet to the Point of Beginning, the same being Lot 8 of ATLAhTTIC PALM I~RY PROPERTY, less the North I S feet thereof for road right-of--way. ,~ Parcel B. ~~ :~ All of Block "A`",?.lc~~s~the North 7 feet thereof and the North 25 feet of Lot 1, Block "C" of JOHN B. REID'S~LL.LAGE, Dekay Beach, Florida, according to the Plat thereof, recorded in the OftT~"-oT' e Clerk of the Circuit Court in and for Palm Beach County Florida, in Plat Boo r ~- e 95. f~< ,a Parcel C. ``~ Lot 7, Block "C", JOHN B. >P ~~S VILLAGE, a subdivision in the City of Delray beach, Pahn Beach County, ,according to the Plat thereof, on file in the Off ce of the Clerk of the Circuit Court i and for Palm Beach County, Florida, recorded in Plat Book 21, Page 95. i ! l;~! j~S ~~ ~~f~~ ~~ r' ~~ ~ ~~~~1~ ~f N Book18491/Page436 MEMORANDUM TO: Mayor and Commissioners FROM: Carolanne Kucmerowski, Construction Management Technician THROUGH: David T. Harden, City Manager l' "' " DATE: May 21, 2007 SUBJECT: CONTRACT ADDITION (CHANGE ORDER NO 41/CHAZ EQUIPMENT COMPANY. INC./SE/NE 1 r STREET ONE WAY PAIR P/N 2004-006 ITEM BEFORE THE COMMISSION This item is before the Commission to approve a Contract Addition (Change Order No. 4) in the amount of $410,227.80 to Chaz Equipment Company, Inc. for additional work required for the SE/NE ls` Street One Way Pair Project. BACKGROUND The additional funding is needed as a result of unforeseen utility conflicts; additional work required, which was not part of the original contract; and installation of the final lift of asphalt. Three (3) private development projects; Mariposa, Avenue East, and The Strand were scheduled to perform the improvements along the frontage of their respective projects. All three projects have been abandoned. The scope of work includes paving, curbing, sidewalk, utilities, landscaping, and irrigation. A background information sheet is attached for your reference. The attached Schedule "A" to Change Order No. 4 details the cost for this change order; and a cost breakdown sheet of the three (3) projects is also attached for your reference. FUNDING SOURCE Funding is available from 448-5461-538-65.88 (Storm Water Utility Fund/Other Improvements/ SE/NE 15` St. One Way Pain) and 334-3162-541-65.88 (General Construction Fund/Capital Outlay/SE/NE 1 S` St. One Way Pair) after budget transfers. Also, the Community Redevelopment Agency (CRA) has approved additional funding in the amount of $154,784.00. Total City Funding Amount: $255,443.80 Total CRA Funding Amount: $154,784.00 Grand Total Funding Amount: $410,227.80 RECOMMENDATION Staff recommends approval of a Contract Addition (Change Order No. 4) in the amount of $410,227.80 to Chaz Equipment Company, Inc. for additio required for the SE/NE 1 ~` Street One Way Pair Project #2004-006. cc: Agenda File 06/04/07 File 2004-006 (E) c:~Documence and sen;ngs~s,nitl,all.oca~ se~g~T~~r mcemat aa~s~otacs6z~cn~ co #a Aga M~ z Gc o6oao~ tzl.a« CITY OF DELRAY BEACH CHANGE ORDER TO ORIGINAL CONTRACT CHANGE NO. 4 (Contract Addition) PROJECT NO. 2404-006 DATE: PROJECT TITLE: SE IS` Street/ NE 1s` S#reet Improvements TO CONTRACTOR: Chaz Equipment Company, Inc. YOU ARE HEREBY REQUESTED TO MAKE THE FOLLOWING CHANGES IN THE PLANS Alv'D SPECIFICATIONS FOR THIS PROJECT AND TO PERFORM THE WORK ACCORDINGLY, SUBJECT TO ALL CONTRACT STIPULATIONS AND COVENANTS. fu~itriLAltU1V: Additional work required to install the final lift. AlI additional costs associated with Change Order No. 4 are detailed on the attached Schedule "A". SUMMARY OF CONTRACT AMOUNT ORIGINAL CONTRACT AMOUNT $98b,318.70 COST OF CONSTRUCTION CHANGES PREVIOUSLY ORDERED $181,210.00 ADJUSTED CONTRACT AMOUNT PRIOR TO THIS CHANGE ORDER $1,167,528.70 COST OF CONSTRUCTION CHANGES THIS ORDER $410.227,80 ADJUSTED CONTRACT AMOUNT INCLUDING THIS CHANGE ORDER $1,577,75b.50 PER CENT INCREASE THIS CHANGE ORDER 41.59% TOTAL PER CENT INCREASE TO DATE 59.96% CERTIFIED STATEMENT: I hereby certify that the supporting cost data included is, in my considered opiztion, accurate; that the prices quoted are fair and reasonable and in proper ratio to the cost of the original work contracted for under benefit of competitive bidding. Chaz Equipment Company, Inc. (Contractor to sign & seal) FO BE FILLED OUT BY DEPARTMENT INITIATING CHANGE ORDER Funding is proposed from account: #448-5469-538-65.88 and #334-3162-541-fi5.88 DEPARTMENT FUNDING CERTIFIED BY DELRAY BEACH, FLORIDA by its City Commission RECOMMEND: Environmental Services APPROVED: City Attorney By: Mayor ATTEST: By: City Clerk S:1Fng,4dminlRojeetst2004~2004.006~AFFIClAI:1CHAZ COls4 GC 060407.doc CONTRACT ADDITION (CIiANGE ORDER N0.4) CHAZ EQUIPMENT COMPANY, INC. SEINE 1~ STREET ONE WAY PAIR PROJECT #2004-006 *BACKGROUND INFORMATION SHEET* On August 16, 2005 Cam~ission approved a contract award in the amount of $782,957.10 to low bidder, MEF Construction, Inc., for the SEINE 1~` Street One Way Pair Project. It became evident early in construction that MEF had limited resources and manpower, were not performing; and were not capable of completing the project within the contractually stipulated timeframe. It was mutually agreed between both parties to rescind this contract. At the June 6, 2006 Commission Meeting the contract with MEF was rescinded and a contract was awarded in the amount of $986,318.70 to Chaz Equipment Company, the second lowest and qualified bidder. At the time the contract was awarded, Chaz agreed to take on the project and finish the job; in addition to holding to their pricing as best as they could, even though their prices were approximately 10 months old at the time of the contract award Prices for asphalt have greatly increased due to the increases in petroleum prices. Concrete prices have increased due to market fluctuation. Currently, the contract prices are approximately two {2) years old. Chaz Equipment Company has performed exemplary on this project and has worked with the City to keep the cost down, During construction, the City contemplated whether the installation of a final lift would be required. Due to the time delay in converting the FEC Railroad crossings to a two-way traffic pattern, the decision was made to install the final lift of asphalt. The additional funding is needed as a result of unforeseen utility conflicts resulting from inadequate underground utility information; additional work required and additional items required, which were not part of the original contract; and installation of the final lift. Three (3) .private development projects: Mariposa, Avenue East, and The Strand were scheduled to perform the improvements along the frontage of their respective projects. All three projects have been abandoned and, as a result, this work was added to the project which added $271,099.00 to the cost. Below is a summary of the additional costs associated with this project. Also attached is Schedule "A" and a cost breakdown for each private development project. The Strand Avenue East Mariposa Unforeseen Utility Conflicts Price Increases Quantity Adjustments Total Amount $161,850,20 $ 55,294.30 $ 53,954.50 $ 70,200.00 {includes additional work sites) $ 24,316.00 (for the final lift of asphalt) $ 44,612.80 5410.227.80 The scope of work includes paving, curbing, sidewalk, utilities, landscaping, and irrigation. The attached Schedule "A" to Change Order No. 4 details the cost for this change order. The Community Redevelopment Agency {CRA) approved additional funding in the amount of $154,784.00 at their March 22, 2007 Board Meeting. Total City Funding Amount: $255,443.80 Total CRA Funding Amount: $154.784.00 Grand Total Funding Amount: $410,227.50 After budget transfers and receipt of funds from the CRA, funding will be available as follows: Amount Fundinst Available From $46, 710.00 448-5461-53$-65.88 $363, 518.00 334-3162-541-65.88 $410,228.00 Total Funding Amount S.~EnyAdmoWrojeGC12004~2004~006\OPFICIAL1G1aa OD 4 AQmda docslCJ~az Co 4 B~cicRrpugt Revved CiC 060407.doc ~ o 9 i ~ :Z' m `c £ ~ N Qv gi, ~ 8 ~ 8 ~ 8 ~ 8 ~ 8 ~ 8 ~ ~C vi 8 of ~ 00 v> 8 ._ ~ N »~ 8 m ~ ~ NN $ o .- O `.9r ~ ~n n fV ~ ~ o `~ P N^ 5 g to " 8 $ W en 8 0 N 8 o n o Y] M 53 ed o n Vj a9 9i, N P o w 8 o N n M ~ 8 Q i5 u6 8 7a N ~ 8 ~ ~ 5 c 5 O N 8 ~ 5 ~ O ~ 00 o N 5 ~i iC N 5 vi m .- ~ 5 ~S N 5 +n N ~ N 8 25 ~ 8 `Ro 1N 8 8 ~ ~ „ ~ 8 8 8 8 5 8 8 S 8 8 5 5 5 $ $ $ 8 $ S 8 5 8 8 8 S S 8 5 8 $ 5 8 8 8 5 m C ~ST~ O N pp M pp Ml o tlf P N O N oo M O N ~ G N o N C N C Mf d N O N O O N O M O M p fR p M O M O M O M p eR p M p M O W O M p~ O e4 o ds O M o bf ~ M 3 ~ ~ O a ~"~ y U n 0 0 0 0 S O S S S O S O O o O S O S 5 SO 5 8 $O S Stl S O O P S O B O O S ~~ ~ ~ ~ o 0 H dW ~ pp CA o p H ION p N ON N ~ ~ Mp p N9 O p S a9 M 43 19 o d1 W t9 o M 1A o 69 p M OM O M ~ ON o tlf p to p fA p 01 d ~ ~ ,~ j 1h ~ G u ~ 3 po Q 8 p 8 p 8 p 8 8 po 9 p O p O S p O po N O p O pp 0 p 0 S S p N p O p O S p O S p O p O S p O S S p P O S p O p O C ~ O p eA ~ amD N b09 ~ o N O 5 ap a p R N OO tl! 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Engineering Contractor 3#8o Fairiane Fames Road, Suite 1 Weiiing#on, Florida 334#4 Tei: ~&f # }333-2# 09 Fax: (SG# } 333-2# 80 February 22, 2flfl7 Mr. Rafael Baliestero City of Delray Beach Engineering 434 South Swinton Avenue Delray Beach, FL 33444 Re: City of Delray Beach NE / SE 1 a St Roadway Improvements (pN 2p04-06) Change Order Proposal for additional grading and utili#y work Dear Mr. Ballestero: Please find attached pricing for addi#ional work due to unident~ed conflicts with utilities not shown on plans; and extra work at various areas shown on the plans as "not in Contract" but included with the work {i.e. @ Mariposa, Avenue East and Strand projects). The pricing is based on work areas and drainage structures as identified on attached Drainage Summary; and on extra work for grading crew and utility crew respectively. The amount of the Change Order request is: Additional Gearing and grading 70.5 days X $2, 550.00/day = $27, 825.0© Additional Llti!rty work 11.3 days X $3,750.00/day = 42 375.04 ;The Total Net Add tfiis Change t3rder request is _ ', The above additional work is required to reimburse Chaz Equipment for lump sum work riot included in any measured Contract Unit prcng (i.e. asphalt paving, concrete work and storm drainage). it the above is acceptable please issue a Change. Order to us. Should there be any questions or clarifications please do not hesitate to call. .` .,k Sincerely, ~,. f` Howard VtCght, Vice President w/attachments Drainage Summary (8 pages), Grading extra-work form (1 page}, Utility extra work form (1 page} CC: Project Book ,~:. Percentage Changes in Producer Price Indexes (PPIs} for Construction Materials and Components, 2001-2007 BLS Series iD 12 month s thrQU gh De cembe r- to Aeri# 2007 over oast-- 20~ ~ ~ 2~4 222 ~49~ ~. -~. ?~ i'abie 1: Chances in Con~}im~, Producer & Construction Prices CUUROOOOSAO Consumer price index (CPI-U) (fltrough x/07) 1.6 2.4 1.9' 3.3 3.4 2.5 ~ 9 1.8 2.8 WPUSOP3000 Producer price index (PPI) for finished goods -1.6 1.2 4.0 4.2 5.4 1.1 1,0 3.5 3.2 WPUSOP2200 PPf for materials and components for construction 0.0 0.8 3.0 50.1 b.l 4.3 0.6 1.I 3.0 PCU236221236221 .New warehouse construction not available before 2005 7.5 8.1 -0.3 -0.4 6.0 PCU236222236222 New school construction not available; series began 12/05 17:3 -0.1 0.1 13.9 PCU236222236223 New office construction not available; series began June 2 006 0.7 0.4 n.a. 7~1,[Zig-~,~anges in PPIs Weighted by CnnstrurtiarZ'[,,,_vses PCUBHWY Highway and street construction -3.6 1.0 2,6 10:8 14.1 6,2 2.3 6,6 5.0 PCUBHVY Other heavy construction -2.6 1.0 2.6 3.3.4 8.8 5.5 1.9 4.0 4.8 PCUBBLD Nonresidential buildings -0.5 0.7 2.4 9.3 7.4 4.0 1.2 2.9 3.3 PCUBRSN{ Mukti-unit residential -0.i 0.4 2.7 8.9 7.8 4,9 0.8 2.3 3.5 PCUBRSi Sing#e-unit residential -0,4 0.6 3.5 7.0 6.9 4.2 0.6 1.5 2.7 'fable 3: Chances in PPis for Specific Construg~Q~ Inputs WPU057303 #2 diesel fuel -44.7 54.4 13.0 37,9 46.7 2.3 8.1 31.6 3.3 WPU05810112 Asphalt (at refinery} pat available 10.0 18.3 17.8 34.9 -4.2 13 5 12 0 WPU13940113 Asphalt paving mnctures and blocs 0.9 .0 3.7 4.3 14.4 2~ i.Z ~ i~i 0 WPU136 Asphalt felts and coatings 4.6 -0.6 6.3 4.1 15.3 5.0 -0.1 -0.9 2.7 WPU1361 Prepared asphalt & tar rooFlng & siding products 5.0 -1.7 5.3 4,6 16.1 5.Z -0.1 -1.1 2.7' WPU133 Concrete products 2.5 -0.3 1.5 7.6 10.1 B.1 0.0 1.2 4.6 WPU133i Concrete block and brick 2.3 1.6 3.2 4.7 8.1 6.8 0.8~ 1.7 4.4 v+rrut~ss~r rreeast concreEe proouctss U.7 0.3 Z.5 5.0 6.4 4.7 -0.5 1.5 4.1 WPU1335 Prestressed wnaete products 5.3 1.8 -0.2 8.2 14.3 4.9 0.1 1.3 3.6 WPU1342 Brick and structural clay file 5.3 1.9 0.7 3.0 9.4 6.0 -0.2 -0.4 1.6 WPU072106 Plastic oonstruction products -2.7 3.1 3.2 7.2 21.6 -0.7 0.6 0.6 -1.9 WPUi37 Gypsum products 0.4 3.4 2.8 20.0 18.8 5.5 -2.1 -4.4 -6.6 WPU1392 Insulation materials 0.4 -1.5 2.0 8.6 2.6 2.1 -1.8 -1.6 -3.4 WPUSI0040I1 Lumber and plywood -2.9 1.4 3.1 5.0 -1,1 -10.8 0.2 3.5 -10.Z WPU062101 Architectural coatings 2.9 0.6 3.9 5.3 9.2 6.3 -0.2 4.1 4.7 WPUf017 Steel mill products -6.1 11.1 1.7 48.8 -3.8 11.5 4.4 8.2 17.1 WPU101704 Hot-rolled bars, plates, & structural shapes -4.3 2.1 13.3 53.8 -1.0 7.5 5.0 11.5 i7.5 WPU101706 Steel pipe and tube -3.7 9.1 3.3 66.0 1.2 5.5 0.2 -i.9 2.4 WPU102502 Copper and brass mill shapes -9.5 -1.6 13.6 29.6 31.0 44,4 15.8 12.6 27.4 WPU102501 Aluminum mill shapes -2.9 -0.9 -0.5 9.9 5.0 12.7 0.3 1.0 6.4 WPU107405 Fabricated structural metal -1.3 -2.4 0.1 24.7 2.8 3.b 0.9 1.7 5.7 WPU10740501 Fabricated structural metal for buildings -1.5 -3.3 -0.1 20.0 3.1 3.3 1.8 2.2 4.3 WPU107408 Architectural and ornamental metalwork -0.1 3.7 0.7 23.5 3.1 4.9 0.1 4.6 5.6 WPU107409 Fabricated iron & steel pipe, tube, & fittings 0.6 0.1 1.2 32.6 5.5 -2.8 -2.5 -3.0 -2.1 WPU1076 Fabricated steel plate 0.6 -1.0 0.6 7.6 0.6 8.b -3.3 1.5 7.6 WPU1079 Prefabricated metal buildings 0.0 4.0 -0.7 35.5 2.0 5.5 O.i -0.6 5.0 WPU112 Construction machinery and equipment -0.1 1.9 1.3 6.0 4.9 3.6 -O.I 0.7 2.2 Table 4: Chanc es in PPIs far basic Inputs Intoortant to Construc,~!',on WPU056 Crude petroleum (domestic production) -42.4 60.6 i4.3 30.5 49.6 -0.1 7.9 13.3 -10.7 WPU0553 IndusMal natural gas -36.7 IZ.2 20.3 20.1 31.5 -13.2 -1.3 7.1 -0.2 WPU066 Plastic resins and materials -9.8 9.2 6.4 Z8.6 10.8 -7.8 -1.5 -1.5 -2.8 WPU1321 Construction sand/gravel/crushed stone 3.3 2.5 2.4 4.3 7.7 9.3 4.6 2.9 9.1 WPU1322 Cement 1.0 1.3 -1.1 7.9 i2.2 10.5 1.2 1.3 5.1 WPUi011 Iron ore 1.5 -1.3 1.6 6.7 15.5 7.5 1.0 1.0 -4.9 WPU1012 Iran and steel scrap -5.6 27.8 64.9 50.8 -10.8 2.9 -2.6 27.7 29.5 WPU102102 Copper ores -19.6 3.6 37,4 65.1 39.3 53.1 n.a. n.a. 12.0 WPU102301 Copper base scrap -17.4 11.2 30.7 34.5 51.9 50.0 10.2 17.2 31.7 Updated 5/11/07 Source: Bureau of Labor Statistic (BLS): www.bis.gov/cpi for CPi, www.bis.gov/ppi for PPis Complied by iCen Simonson (simonsonk@agc.org), Chief Economist, Assoaated General Contractors of America, www.agc.org :~, m -- ~ oW ~ _ t :~ ~N ~~1, x 1 ~ro Is~loW 1 w I'wi am "'~ 1 y j Iyl ~~ ~ ~ I f I?o ~ ~ ~ ~ ~~* ~ I 5g~~y~ ~m I~~ ,pi 4•a ~~ n 1. 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The additional funding is needed as a result of unforeseen utility conflicts; additional work required, which was not part of the original contract; and installation of the final tilt of asphalt. Three (3) private development projects; Mariposa, Avenue East, and The Strand were scheduled #o perform the improvements along the frontage of their respective projects. Ali three projects have been abandoned. The scope of work includes paving, curbing, sidewalk, utilities, landscaping, and irrigation. A background information sheet and an additional cost breakdown sheet for the three (3) projects are attached for your reference. The attached Schedule "A" to Change Order No. 4 details the cost for this change order. Funding is available as follows from 448-5461-538-65.88 (Storm Water Utility Fund/Other Improvements/ SEINE 152 St. One Way Pair) and 334-3162-541-65.88 (General Construction Fund/Capital Outlay/SEINE 152 5t. One Way Pair) after budget transfers. Also, the Community Redevelopment Agency (CRA) has approved additional funding in the amount of $154,784.00. Amount Fundinst Available From $48,710.00 448-5461-538-65.88 $363,518.00 334-3162-541-65.8$ $410,228.00 Total Funding Amount ORDINANCElRESOLUTION REQUIRED: NO Recommendation: Staff recommends approval of a Contract Addition (Change Orcler No. 4) in the amount of $410,227.80 to Chaz Equipment Company, Inc. for additional work required for the SEINE 152 Street One Way Pair Project #2004-006. ~--~ ~~ ~~„_ Department Head Signature: ~ 2..f '~to -~ Determination of Consistency with Comprehensive City Attorney Review/Recommendation (if applicable) Budget director Review (required on ail items involving a enditur of funds}: Funding availabl ES After Bud~,et Transfers ~/~(-ki1v~~'~ Funding altemati (if applicable} Account No. ~ Description: st City Manager Review: Approved for agenda: YES O Hold Until: Agenda Coordinator Review: Received: Placed onAgenda:~ Action: Approved/Disapproved yio, z~y.3v `~~ bw~~~"~~ 3;~EnyAdmin:Projecis42004',804-006''.OFFICIAE,1Ctraz CO 4 Agnd Req GC 060407.doc MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: RANDAL L. KREJCAREK, P.E. THROUGH: CTTY MANAGER DATE: 29 MAY 2007 SUBJECT: AGENDA ITEM # V. ~ -REGULAR MEETING OF JUNE 4.2007 US 1 COR DESIGN OF TEMPORARY MODIFICATIONS SE 10 STREET TO GEOR BUSH BLVD KIMLEY-HORN SERVICE AUTHORIZATION # 9 ITEM BEFORE COMMISSION The attached agenda is for Commission approvaUauthorization for Mayor to execute Service Authorization (SA) #9 with Kimley-Horn and Associates, Inc. This SA allows the design process of the temporary modifications to US 1 between SE lOd' Street and George Bush Blvd. to move forward seeking Florida Department of Transportation (FDOT} approval. Cost of this SA is $22,500.00, which will be funded by the CRA. BACKGROUND The City and CRA have been working closely with Kimley-Horn and Associates, Inc. and the FDOT since 2004 in an effort to provide beautification as well as enhanced pedestrian movement along the US 1 corridor identified above. The City requested FDOT approve the installation of temporary measures to test this proposed new configuration. Last year FDOT approved the concept of converting one of the three thru lanes, in both the north and south direction, to wider sidewalks, a bike lane and potentially additional parking. This SA will allow Kimley-Ham to continue working with FDOT in developing a typical design that could be used to develop detailed plans for implementing the temporary measures. This SA does not allow for completion of these plans because the CRA Board was concerned about costs of constructing the temporary measures. The cost of implementing the temporary measures will be identified as part of this SA and a determination if this project should continue will be evaluated at that time. The City has also received a Federal Earmark within the current Transportation bill that will provide for approximately $1.4 M toward the permanent implementations of the proposed measures. This earmark will be available to the City beginning July 2008. FUNDING SOURCE Funds will be provided from account 334-4141-572-65.99 after transfer from CRA. RECOMMENDATION Staff recommends approval. Enc cc Richard Hasko, Director of Environmental Services Randal Krejcarek, City Engineer Caroline Kucmerowski CMT (originals) City Clerk Project Fiie 2004-008 (E} S:1EngAdrnin~PProjects\200412004-008\OFFICTAL12007-06-44 k-h temporary agenda memo.doc M~ W m O }J}\j+ ~/ I o .o -~ W V ~ J L 0 .~ L U ~. . ~ : . ~. ~ 4'{.. '. 3 ~ ~ . i x .1~F ^ g ~ a > ~ ~JyJv ~ ~' Vy./~ ~ ~ ` I ~:~ +.~ .: ~. r* r _ ~j1Y J ti /vl `/ ..~ U tCf m a~ 0 ti S N N Page 1 of 1 Young, MaryAnn From: Krejcarek, Randal Sent: Thursday, May 31, 2007 9:00 AM To: Young, MaryAnn Subject: us 1 sa The agenda item limits include the limits in the SE-NE 5~' & 6~' Av - SE 4~' St to NE 4"' St expense code. This agenda item extends these limits because FDOT is requiring tha# the entire six lane section of US 1 (SE-NE 5~' & 6~' Av) between SE 10~'St and Geo Bush Blvd be included in the temporary modification. Randal L. Krejcarek, P.E. City Engineer City of Delray Beach, FL 434 So Swinton Ave Delray Beach, FL 33444 Phone: 561.243.7322 Fax: 561.243.7314 http://www.MyDelrayBeach.com Traffic Updates: http://www.mydelravbeach com/Delrav/Departments/Environmental+Services/Quick+Links/Project+Status htm 5/31/2007 CONSULTING SERVICE AUTHORIZATION DATE: May 8, 2007 SERVICE AUTHORIZATION N0.9 FOR CONSULTING SERVICES CITY P.O. NO. CITY EXPENSE CODE This Service Authorization, when executed, shall be incorporated in and shall become an integral part of the Contract between the parties as amended on October 16, 2006. TITLE: TEMPORARY PLAN MODIFICATION FOR USl CORRIDOR STUDY AND EVALUATION OF PLAN TEMPORARY PLAN IlVIPACT5 -GEORGE BUSH BOULEVARD TO S.W. 10'~ STREET, PROJECT NO. IOLXX-XX The City of Delray Beach and the Delray Beach CRA have been studying the modification of the operation of the US 1 one-way pair between George Bush Boulevard and SE 10th. At this time they would like to implement the recommended change, on a temporary basis, so that further study can be done to evaluate the impacts of these changes to the traffic patterns and the impacts upon the residents and business owners in the vicinity of the project. Kimley-Horn and Associates, Inc. ("KHA") is pleased to submit this service authorization request to the City of Delray Beach ("Client") for providing engineering services associated with the temporary implementation of the modifications and the evaluation and planning of the operation of the modifications and the impacts to the neighborhood. Our project understanding, scope of services and fee follow. PROJECT UNDERSTANDING The scope of services and fees described herein are based upon our understanding of the project and assumptions as follows: The modifications to the operational characteristics of the roadways will be based upon recommended typical section alternatives presented by KHA at the CRA Workshop on September 12, 2006. ^ The scope of services included in this service authorization is abbreviated from one dated March 26, 2007 and includes only a preliminary implementation plan, conceptual permitting from FDOT and planning level cost estimates. • Under a separate service authorization, KHA will prepare a set of construction documents, generally modeled after a typical set of Maintenance of Traffic plans, prepared for use in implementing the recommended temporary modifications. SCOPE OF SERVICES Task I -Preliminary Implementation Plan Base mapping will be prepared using readily available aerials obtainable from Palm Beach County. Digital versions of these aerials will be imported in Microstation and they may be Page 1 of 4 partially traced in order to create the line work necessary to describe the existing conditions. No formal field surveys will be conducted for this work. KHA will prepare a design strategy document outlining a few key elements of the preliminary implementation plan. This document will include typical design treatments and will be presented to the City for review and approval before the preliminary implementation plan is developed. The document will include design strategies such as on-street parking, lane transitions, lane drops, typical section and landscape opportunities. KHA will develop a preliminary plan with details necessary to describe the implementation of the recommended roadway modifications. We will meet with FDOT twice to review the preliminary Implementation Plan and leave copies of the plan with them for their review and comments. Task II -Conceptual FDOT Permitting ICHA will evaluate the FDOT's review comments and incorporate the appropriate comments into the Preliminary Implementation Plan. The intent is to get a conceptual permit letter from FDOT from which a final implementation plan can be developed. Additional information as required by the contractor to construct the work will be added to the plans as they progress to final plans. KHA will contact FDOT and obtain any readily available plans for our use in the development of the final Implementation Plan. Task III -Cost Estimates Based on the Preliminary Implementation Plan, we will develop planning level cost estimates for each typical design treatment developed in Task I. Using these costs estimates and the number of treatments planned, we will extend unit costs to planning level project cost estimates. SCHEDULE KHA will begin work upon receiving a notice to proceed and signed service authorization from the Client. We propose the following schedule: ^ Client issues Notice to Proceed (NTP). ^ Submit Preliminary Implementation Plan design to Client and the Florida Department of Transportation (FDOT) for review four (4) weeks after receipt of the Notice to Proceed. ^ Meet with the Client and the FDOT to review the Preliminary Implementation Plan three (3) weeks after the initial submittal of the Preliminary Implementation Plan to the Client and the FDOT. ^ Incorporate the appropriate modifications as agreed to between the Client and the FDOT into the Preliminary Implementation Plan two (2) weeks after meeting with the CRA and FDOT. We will endeavor to meet the schedule as outlined above. It should be noted that there are elements in the schedule in which KHA has no direct control such as accommodating differing staff schedules in scheduling meetings, review time by the differing agencies. The project schedule will be adjusted to reflect any delay in these items. Page 2 of 4 FEE AND BILLING KHA will provide the Scope of Services on a labor fee plus expense basis. The estimate for Tasks I though III is $22,500. Labor fee will be billed according to the attached rate schedule, which is subject to annual adjustment. Direct reimbursable expenses such as express delivery services, fees, air travel, and other direct expenses will be billed at 1.15 times cost. An amount will be added to each invoice to cover certain other expenses such as in-house duplicating, local mileage, telephone calls, facsimiles, postage, and word processing. Administrative time related to the project may be billed hourly. Technical use of computers for design, analysis, GIS, and graphics, etc. will be billed at $25.00 per hour. All permitting, application, and similar project fees will be paid directly by the Client. Fees will be invoiced monthly based on the actual amount of service performed and expenses incurred. Payment will be due within 25 days of your receipt of the invoice. TASK DESCRIPTION FEE ESTIMATE I II Prelimina Im lementation Plan Conce tual FDOT Permittin $17,500 $2,500 III Cost Estimates $2,500 Page 3 of 4 This service authorization is approved contingent upon the City's acceptance of and satisfaction with the completion of the services rendered in the previous phase or as encompassed by the previous service authorization. If the City in its sole discretion is unsatisfied with the services provided in the previous phase or service authorization, the City may terminate the contract without incurring any further liability. The CONSULTANT may commence work on any service authorization approved by the City to be included as part of the contract without a further notice to proceed. Approved by: CITY OF DELRAY BEACH: KIlVQ.EY-HORN AND ASSOCIATES, INC. Date Date Mayor Witness Witness Attest: By: (Seal) Approved as to Legal Sufficiency and Form Attest: BEFORE ME, the foregoing instrument, this day of , 2007 was acknowledged by on behalf of the Corporation and said person executed the same free and voluntarily for the purpose there-in expressed. Witness my hand and seal in the County and State aforesaid this day of 2007. Notary Public State of Florida My Commission Expires: Page 4 of 4 Date: _ MQY 2 9 2007 AGENDA REQUEST Request to be placed on: X Consent Agenda -Regular Agenda -Workshop Agenda -Special Agenda When: JUNE 4 2D07 Description of Agenda Item (who, what, where, how much): Request for Commission authorization/approval for Mayor to execute Service Authorization (SA) #9 with Kimley-Horn and Associates, Inc. This SA allows the design process of the temporary modifications to US 1 between SE 10th Street and George Bush Blvd. to move forward seeking Florida Department of Transportation (FDOT) approval. Cost of this SA is $22,500.00, which will be funded by the CRA. Staff Recommendation: Department Head Signature' City Attorney Review/R.ecommendation (if applicable): Budget Director Review (required on all terns involving expenditure of funds): Funding Available: Ye / No als ~ r~Y~es -after transfer from CRA AGENDA ITEi1+I NUMBER: g -3s - 0 Account Number 334-4141-572-65.99 Description th Account Balance: Funding Alternatives: (if applicable) City Manager Review: Approved for Agenda: es i~TO Initials: Hold Until: Agenda Coordinator Review: Received: S:\EngAduun\I'rojects\2004\2004-008\OFFICIAL\2007-06-04 k-h temporary agenda.doc MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: RANDAL L. KREJCAREK, P.E. THROUGH: CITY MANAGER DATE: 29 MAY 2007 SUBJECT: BARWICK ROAD AGREEMENT ITEM BEFORE COMMISSION Request for Commission approval/authorization for Mayor to execute agreement with Palm Beach County for the transfer of Barwick Road jurisdictional responsibility from the County to City along with the transfer of $134,000 for resurfacing and the installation of a traffic separator at the intersection of Barwick Road and West Atlantic Avenue. BACKGROUND The City and County have agreed that jurisdictional responsibilities of Barwick Road from West Atlantic Avenue north to the C-30 Canal should reside with the City. Therefore the County has proposed to transfer jurisdiction of Barwick Road to the City along with $134,000 for resurfacing of Barwick Road and construction of a traffic separator on Barwick Road at the intersection of Barwick Road and West Atlantic Avenue. The funds will be made available to the City after the agreement is fully executed. FUNDING SOURCE None associated with this agenda item. RECOMMENDATION Recommend approval of the interlocal agreement with Palm Beach County for the transfer of Barwick Road from the County to City and the transfer of $134,000 from the County for future resurfacing and the installation of a traffic separator on Barwick Road. Enc cc Richard Hasko, Director of Environmental Services Caroline Kucmerowski CMT (originals) City Cterk Agenda File 04 Jun 2007 Page 1 of 1 Smith, Douglas From: Shutt, Brian Sent: Thursday, May 31, 2007 6:59 AM To: Smith, Douglas Subject: Interlocal agt with County on Barwick Road Doug, the interlocal agreement with Palm Beach County for the transfer of Barwick Road is ok. R. Brian Shutt Assistant City Attorney 200 N.W. 1st Avenue Delray Beach, FL 33444 (561)243-7091 Fax (561)278-4755 shun@ci.delray-beach. fl. us 5/31/2007 ~? Q} a~ U 0 U 0 '"wFJ T a cis 0 U .~ f6 m f'~"~ •V 0 U J ~ ~- ~~ ,_ ,~ ~~ r ~~ ~~-y ~.:.. S r ~~ :~ , ~,:~ - ~ ~:p: , i ..~., J k 1-3` ~ i r i 3 w i ~~t ~ : ~ .r. ., 388x1., ~" ~ s - a. s ~ K~ ~' U _ ~ ~ ~ -~ ~' ` ~ ~ ~ ~ rt t _~ ~ , 1_ ~x ~~ _ _ _. .,. ~ C'"~ r_ Yt~ k .2' "t' " ~' - - ~3 ~ ( .. 'i `.5~i lN aa ?~~+~" .~~ r ,• _ _ _.~ 1 ..5.' ~~ t ~ ;, ;~ _ ._ _ -~- ~.. ~~ ~ ~ . _ § ~ _... „~ , ~~ r~ ,., .._ ..._ l V v c~ m m a~ 0 n 0 0 N N I>riTERLOCAL AGREEMENT WITH THE CTiY OF DEL.RAY BEACH FOR FUNDING FUTURE MAINTENANCE OF BARWICK ROAD THIS INTERLOCAL AGREEMENT is made and entered into this day of 2007, by and between Ti-iE CITY OF DELRAY BEACH, a municipal corporation of the State of Florida, hereinafter referred to as "CITY" and PALM BEACH COUNTY, a political subdivision of the State of Florida, hereinafter referred to as "COUNTY". W)TNESSETH: WHEREAS, the CITY desires that Barwick Road be transferred to the CITY at this time; as their jurisdfctionai responsibility with the limits of the municipality; and WHEREAS, the COUNTY has determined that the roadway will require future resurfacing at a cost of One Hundred Twenty Five Thousand Dollars ($125,000) and wiN now contribute to the CITY, said amount, to do the resurfacing work; and WHEREAS, the COUNTY has estimated a cyst of Nine Thousand Dollars ($9,000) to construct a traffic separator on Barwick Road, north from Atlantic Avenue and will now contribute to the CITY, said amount, for said construction; and NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements herein contained, the parties agree as follows: 1. The above recitals are file, correct and incorporated herein. 2. The CITY accepts the jurisdictional responsibilities, including maintenance, of Barwick Road from West Atlantic Avenue north to the Lake Worth Drainage District L-30 Canal 3. The COUNTY agrees to transfer to the CITY $134,000 For the cost of resurfacing Barwick Road and construction of a traffic separator. 4. The COUNTY'S obligation is limited to its payment obligation and shall have na obligation to any other person or entity. 5, The C1TY's termination of this Agreement shall result in all obligations of the COUNTY for funding contemplated herein to be cancelled. 1, 6. The COUNTY and CITY agree that no person shall, on the grounds of race, color, national origin, sexual orientation, religion or creed, sex, age, or handicap be discriminated against in performance of this Agreement. 7. In the event that any Section, paragraph, sentence, clause or provision hereof is held invalid by a court of competent jurisdiction, such holding shall not affect the remaining portions of this Agreement and the'same shall remain in full force and effect 8. Ali notices required to be given under this Agreement shall be in writing, and deemed sufficient to each party when sent by United States Maii, postage paid, to the foElowing: 9. AS TO THE COUNTY Engineering and Public Works Department Tanya N. McConnell, P. E. Deputy County Engineer P.O. Box 21229 West Palm Beach, Florida 33416-1229 AS TO THE CITY City of Delray Beach David T Harden City Manager 100 N.W. 1~. Avenue Delray Beach, Florida 33444 10. This Agreement shaii 6e construed and governed by the laws of the State of Florida. Any {egal action necessary to enforce this Agreement shall be held in Palm Beach County.. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every other remedy shall be cumulative`and shaii be in addi#ion to every other remedy given hereunder or now here after existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any , right, power or remedy shall preclude any other or further exercise thereof. li. Any costs or expenses (including reasonable attorney's fees) associated with the enforcement of the terms and conditions of this Agreement shall be borne by the respective parties; provided, however, that this clause ~ pertains only to the partles to the Agreement. 12. Except as expressly permitted herein to the contrary, no modifcation, amendment, or alteration in the terms or conditions contained herein shall j be effective unless contained in a written document executed with the same formality and equality of dignity herewith. 13. The COUNTY shall not be deemed to assume any liability for the negligent ~'I I ~or wrongful acts, or omissions of the other party (or parties). Nothing contained herein shall be construed as a waiver, by any of the parties, of ~I, the liability limits established in Section 768.28, Florida Statutes. 14. Each party shall promptly not[fy the other of any lawsuit-related complaint, or cause of action threatened or commenced against it which arises out of or relates, in any manner, to the performance of this Agreement. iS. The parties expressly covenant and agree that in the event any of the parties is in default of its obligations under this Agreement, the parties not in default shall provide to the defaulting party thirty (30) days written notice before exercising any of their rights. 16. The preparation of this Agreement has been a joint effort of the parties, and the resulting document shall not solely as a matter of judicial constraint, be construed more severely against one of the parties than the other. , 17. This Agreement represents the entire understanding among the parties, and supercedes all other negotiations, or agreements, either written or oral, relating to this Agreement. 18. A copy of this Agreement shall be flied with the CEerk of the Circuit Court in and for Palm Beach County, Fiarida. { 19. This Agreement shall take effect upon execution and the effective date shall be the date of execution. ~ IN WITNESS WHEREOF the arties have executed this Agreement and it is effective on p the date first above written. CITY OF DELRAY BEACH PALM LEACH COUNTY, FLORIDA, BY BOARD OF COUNTY COMMISSIONERS By: Mayor I ATTEST: By: City Clerk APPROVED A5 TO FORM AND LEGAL SUFFICIENCY By. Assistant City Attorney ey: Addle L. Greene, Chairperson ATTEST: SHARON R. BOCi<, CLERK & COMPTROLLER By: Deputy Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY 8y: Assistant County Aftorney APPROVED AS TO TERMS AND CONDITIONS BY~ Engineering ( N:~ENG SER~PRQ7ECTS1~~5077 Sarwkk Maint.doc > ~. to i Y ~ y. r - 1 A 1 i" ~7-.,. _ i 1 a. ~ _ ~ i~~ ~ ~^ ~ ~ ~ ~ ~~ -~ ,_7~,- -~ ~ ~ I + t ~ • ~ i ~ ~ ~~ sr~ r f _ Mi w ~. .~~ ~ ~ _ ~~# ~ . ~ ~ I - ...,~ E , ~ r ~~ 1 i ~ { .~ I - ` , ~ > i ~. I ~"X' ~twr, ~, r N DRIVE ~ I ~ h QI 3 - U~. ~ r:: , . ; 4 ` I „~; : ~ A i ' ~tUS _ _ ~ _ _ _ _ WEST ATLAFtTI ...IBarwick_Atiantic.dgn 4/S/2007 3:26:32 PM ~" ~~,: ~ .~ E ti Y Date: 29 May 2007 AGENDA ITEM NUMBER: V • AGENDA REQUEST Request to be placed on: X Consent Agenda -Regular Agenda -Workshop Agenda -Special Agenda When: 04 Jun 2007 Description of Agenda Item (who, what, where, how much}; Request for Commission authorizationlapproval for Mayor to execute inter-local agreement with Palm Beach County for the transfer of Barwick Road jurisdictional responsibility from the County to City along with the transfer of X134,000 far resurfacing and the installation of a traffic separator on Barwick Road at the intersection of Barwick Road and W Atlantic Ave. Staff Recommendation: Department Head Signa City Attorney ReviewlRecommendation (if applicable}: Budget Director Review (required on all items involving expenditure of funds): Funding Available: Yes / No Initials: N/A Account Number N/A Description N/A Account Balance: N/A ' Funding Alternatives: (if applicable) City Manager Review: Approved far Agenda. Yes No Initials: Hold Until: Agenda Coordinator Review: Received: S:\EngAdmin\PBCo\200?-06.04 Barwick rd agenda request.doc MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: TRACIE M. LUTCHMANSINGH, P.E. ASST. CITY ENGINEER THROUGH: CITY MANAGER DATE: MAY 29, 2007 SUBJECT: AGENDA ITEM # V • ~ - REGULAR_MEETING OF JUNE 4, 2007 SUBDIVISION IMFROVEMENT AGREEMENT FOR CANNERY ROW ITEM BEFORE COMMISSION Commission approval /authorization for Mayor to execute subdivision improvement agreement with Cannery Row, LLC. This agreement provides for Cannery Row to pay one quarter the cost of improvements to the intersection of NE i~` Avenue and NE 3`a Street. The amount to be paid to the City under this agreement is $5,625.00. BACKGROUND Cannery Row Townhomes is located within the boundaries of NE 4u Street on the north, NE 3rd Street on the south, NE 1 ~ Avenue on the west and Pineapple Grove Way on the east, as shown on the attached Exhibit A. The Pineapple Mainstreet Plan identifies the intersection of SE 3`a Street and SE 1 ~` Ave to be reconstructed with pavers. SPRAB approved this project with the condition that the developer contributes one-quarter the cost of providing pavers in the intersection of NE 3`a Street and NE ls` Avenue: This agreement requires Cannery Row to contribute one-quarter of the cost of this improvement as approved by SPRAB. FUNDING SOURCE Not applicable RECOMMENDATION StafTrecommends approval Enc cc Richard Hasko, Qirector of Environmental Services Randal Krejcarek, City Engineer Caroline Kucmerowski CMT (originals} City Clerk TAC File -Cannery Row Townhomes Agenda File June 4, 2007 S:1EngAdrninlTAClCannery Row Townhomes (277 SE 5th Ave)12007-06-04 cannery row agenda memo.doc Prepared 6y: RETURN: R. Brian Shutt, Esq. City Attorney's Office 20U N. W. 1 st Avenue Delray Beach, Florida 33444 SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT entered into this day of ,~ ~, ~ , 200 by and between the CITY OF DELRAY BEACH, a Florida municipal corporation, (hereinafter referred to as CITY} and CANNERY ROW, LLC (hereinafter referred to as OWNER), provides as follows: WHEREAS, OWNER is developing a project located within the boundaries of N.E. 4t" Street on the north, N.E. 3rd Street on the south, N.E. lst Avenue on the west and N.E. 2"d Avenue on the east, as shown on the attached drawing (See Exhibit "A"}, in the CITY; and WHEREAS, the OWNER is required to comply with certain development conditions relating to improvements in the public right-of--way of the intersection of N.E. 1St Avenue and N.E. 3rd Street, on the SW corner of the site; and WHEREAS, the OWNER has agreed to pay, within 10 days of the execution of this Agreement, one-quarter the cost of improving the above named intersection as required by the development conditions. NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the OWNER and CITY hereby agree as follows: ~~'~~ MAY ~. ~ ~~Q? ~~~~~~~ 1. INCORPORATION OF RECITALS. The above-stated recitals are incorporated as if fully set forth herein. 2. COSTS PAID BY OWNER. The OWNER shall pay to the CITY one quarter of the cost of the improvements to the intersection of N.E. 1St Avenue and N.E. 3`~ Street, in an amount of $5,625.00. The OWNER, its successors, heirs or assigns sha11 make payment to the CITY within 10 days of the execution of this Agreement. 3. COVENANT RUNNING WITH THE LAND. It is the intent of the parties that this Agreement shall run with the land. This Agreement shall be recorded in the public records of Palm Beach County, Florida and shall be binding on the parties' legal representatives, heirs,. successors and assigns. 4. GOVERNING LAWS• VENUE. Any claims, lawsuits or disputes that may arise under this Agreement shall be governed by the Laws of Florida, with venue in Palm Beach County, Florida. 5. INTEGRATION; AMENDMENTS. This Agreement constitutes the entire agreement and understanding of the parties. There are no representations or understandings of any kind not set forth herein. Any amendments to this Agreement must be in writing and executed by bath parties. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the day and year first above written. ATTEST: CITY OF DELRAY BEACH By: By: City Cleric .Mayor, Rita Ellis Approved as to Form: By: City Attorney 2 WITNESSES: OWNER: CANNERY ROW, LLC STATE OF ~~t,. By: Tronwood~evelopment, Inc., its Manger By: President COUNTY OF ~~ r~ ~F-L1^~~-{ The foregoing instrument was acknowledged be e me this ~ day of 200` by -.~ ~ ~~.~~~ ~ , as i (name of officer or agent, title of officer or agent), of a ~fl (stat place of incorporation} corporation, on behalf of the corporation. He/She personall own me or has produced (type of identificati enti i n. tore of Not ublie ~° ~~1mt 1~~ ~k (Name Printed or Typed} ~_ U N N m a N L 0 0 0 N N Date: 29 Mav 2007 AGENDA ITEM ~TLTMBER:~ AGENDA RE(aUEST Request to be placed on: X Consent Agenda Regular Agenda Workshog Agenda Special Agenda When: 04 June 2007 Description of Agenda Item (who, what, where, how much): Request Commission approvaUauthorization for Mayor to execute subdivision agreement with Cannery Row, LLC. for improvements to one quarter the intersection of NE 18t Avenue and NE 3rd Street in the amount of $5,025.00. Recommendation: Department Head Signature: City Attorney Review/Recommendation (if applicable): 5-~~-v~ Budget Director Review (required on all items involving expenditure of funds): Funding Available: Yes / No Initials: n/a Account Number Description Account Balance: Funding Alternatives: (if applicable) City Manager Review: Approved for Agenda: Yes / No Initials: Hald Until: Agenda Coordinator Review: Received: S:\EngAdmin\TAC\Cannery Raw Townhomes {277 SE 5th Ave)\2007-06-04 cannery- row ageada.doc `~ MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: Susan A. Ruby CITY ATTORNEY DATE: May 22, 2007 SUBJECT: Adoption of Early History Timeline and permission to use City Loao as cart of the letterhead for the timeline ITEM BEFORE COMMISSION The Zion Study Circle requests that the City commission adopt the Early History, authorize its inclusion in City publications, authorize its general disbursement and it's publication on the City's web site in furtherance of the City's goal of fostering Community Unity. The Zion Study Circle also requests permission to affix the City's logo to the Eazly History as shown on the attached Eazly History. BACKGROUND The City Commission has previously been presented with the work of the Zion Study Circle and its first project which was to compile an eazly history timeline which included all segments of our diverse population that were involved in the eazly history of our City. The Zion Study Circle has compiled and finalized the Eazly History and has vetted it with the Delray Beach Historic Society, The Spady Museum, and Historians Clemmer Mayhew and Charles Hofman. The Early History as well as a letter of transmittal including more information is attached. FUNDING SOURCE NA RECOMMENDATION The recommendation is to approve the Eazly History and its use and dissemination and to approve the use of the City of Delray Beach Logo on the Early History Timeline. cc. David Hazden, City Manager Doug Smith, Assistant City Manager Lanelda Gaskins, Exec. Assistant Agenda MEMORANDUM DATE: May 22, 2007 TO: Mayor Rita Ellis City Commission David Harden, City Manager SUBJECT: Early History of Delr~ Beach The Zion Study Circle, in collaboration with the Spady Museum and the Delray Beach Historical Society, in consultation with Clemmer Mayhew and from its own research of historical documents, has completed its mission of updating the Early History of the City of Delray Beach. Attached is the history timeline summary report of the completed work. As you know from the presentation made before the City Commission on March 20, 2007, the Zion Study Circle took this project on as a way to reach across all racial and cultural lines by acknowledging the contributions of all races and ethnic backgrounds that are known to be involved in the formation of our City. Our goal is to share this Early History with all the residents of Delray Beach by including it on the City's Website and in printed materials as well as in materials generated by the Delray Beach Historical Society, the Spady Museum, the Chamber of Commerce and the Downtown Marketing Cooperative and others. History is never finished -new history is continually being made and old history is always being found. Zion Study Circle suggests that updates to Delray's history be an ongoing work in progress, but also strongly recommends that information be verified, checked and validated via reliable sources as much as possible before including it as official historical data or documents. We are very proud that we have been able to provide a more inclusive City history and it is our hope that you direct that it be made available on the website and to all who have an interest in the history of Delray Beach. Sincerely, The Zion Study Circle Elizabeth Alpert Pastor Sharon Austin Vickie Blose Arthur Brown Alan Burgess Cory Cassidy Pastor Delpe Charlotte Durante Lori Durante Alice Finst Pastor Evens Jules Susan Ruby Thuy Shutt Pastor Thicklin Shelly Weil Patsy Westall cc: Delray Beach Historical Society Spady Museum Clemmer Mayhew Downtown Development Authority Community Redevelopment Agency Downtown Marketing Cooperative Delray Chamber of Commerce Early History of Delray Beach • Prior to 1845, when Florida became a state, Africans, Seminole Native Americans, and Black Seminoles were already living in South Florida and continued to do so along with white Europeans. • In 1868 William and Sara Gleason, Wisconsin natives, began purchasing thousands of acres of land in various locations in Florida including in what is now the City of Delray Beach. William Gleason was the Lieutenant Governor of Florida from 1868 to 1870. Two of their sons (W.H.H. and George) participated with them in handling real estate transactions using the business name of "Gleason Brothers, dealers in Real Estate." Many early settlers in the area bought property from the Gleasons. • The military maps of the peninsula of Florida dating from the 1850's time of the Seminole Wars depict a haulover identified as Orange Grove Haulover along the beach area of what is now the City of Delray Beach. The name derived from an ancient orange grove found growing near the beach. (A haulover is a place where people traveling by boat could no longer navigate and had to haul their boats out of the water and carry them on land for a distance.) • In 1876 The Orange Grove House of Refuge #3, a haven for the shipwrecked, was constructed by the U.S. Lifesaving Service and located just north of the ancient orange grove depicted on earlier military maps. The first Refugee-keeper was Hannibal D. Pierce. • In 1885 Annie Andrews, wife of Stephen N. Andrews who was the second and last keeper of House of Refugee #3, established a post office address named Zion, Florida for the area now known as the City of Delray Beach. • In 1885, Henry Flagler purchased the Jacksonville, St. Augustine and Halifax River Railway in his efforts to build a railroad to connect the entire east coast of Florida. Flagler was granted millions of acres of land from the State of Florida to use in the construction of the Florida East Coast Railway. Flagler also purchased many thousands of acres of land under the name of Model Land Company along the east coast of Florida including many hundreds of acres in the area now known as Delray Beach. Many early settlers bought land from Model Land Company. Many of the workers for Henry Flagler in the construction of his railroad were African Americans. • In 1890 the Florida Coast Line Canal (Intracoastal Waterway) was made navigable in parts allowing for easier access to areas along the southeast coast. Final 5 / 21 / 07 1 • By 1894 a number of people of African decent had settled here from north Florida, other nearby southern states .and the Bahamas. Their population grew as they encouraged their relatives to relocate to the area. • In 1894 William S. Linton arrived in the area from Michigan with David Swinton and Major Nathan Boynton. At that time, William Linton was a U. S. Congressman for the State of Michigan, serving from 3/ 1893 to 3/ 1897. Congressman Linton bought tracts of land from Henry Flagler's Model Land Company, the Gleasons and others. The following year Congressman Linton returned with a group of almost a dozen people, including civil engineer E. Burslem Thompson and named the town Linton. • In 1894 the first school was established in Linton. It was established by the African American settlers. The African-American community was large enough to petition Dade County for a school. (This area was then a part of Dade County until 1909 when Palm Beach County was established) That school, known as "(Dade County) School #4, Colored)," was located in Linton on Blackmer Street, currently known as North- west "Historic 5~ Avenue." As with many such pioneer schools, it is thought to have been built with palmetto fronds. • In 1895 the plat map of the Town of Linton, including about a mile along the beach, was drawn by E. Burlsem Thomson, a civil engineer in Congressman Linton's group. Atlantic Avenue was platted next to a rock wall partially surrounding the ancient orange grove. Development of the Town of Linton began. • In 1895 Adolf Hofman, a German native of a prosperous farming family arrived in the United States from Germany spending a few weeks in New York and then on to Illinois for a few months. Later that year, he traveled to Florida to purchase land for farming. He traveled to this area on the same barge with Linton's group and first bought land from Flagler's Model Land Company in 1896. That land was located north of NE 4~ Street (north of Linton's property) and stretched westward from the "canal" (Intracoastal) to Swinton Avenue and included land that is now known as Del Ida Park Subdivision. The Hofman family homestead was east of N.E. Seventh Avenue near NE 6~ Street. Shortly thereafter, Hofman bought land from Congressman Linton and Gleason and later bought land from others. • In 1896 the original plat for the Town of Linton was officially recorded. • In 1896 the first church in Linton, Mt. Olive Baptist Church, was established. It was established by African American settlers. • In 1896 Henry Flagler's Florida East Coast (FEC) Railway route was completed through the Town of Linton. The railroad and the local depot were essential for the farming economy and the growth of the town. Final 5 / 21 / 07 2 • By 1896 African descendant Mary Cohen (aka "Auntie" Cohen and "Ma" Cohen), a trained midwife, had settled in Linton and was the midwife for the birthing of babies of all races. • In 1897 the second church in Linton, St. Paul African Methodist Episcopal (AME) Church, formerly named Mt. Tabor was established. It was established by African American settlers. • Between 1896 and 1898 a school was established by white settlers for children of European descent. This school was located at the site of what is now Old School Square. • By 1898 Susan Williams, a trained midwife and general nurse practitioner of African decent had arrived from the Bahamas and handled medical needs of all races of people of Linton. • In 1898 the name of the Town of Linton was changed to "Delray" following hardship brought on by crop-destroying freezes and William Linton's default on his land payments. W.W. Blackmer, a town leader suggested the name "Delray" which was derived from the name of a town located near Detroit, Michigan. • In 1902 the Ladies Improvement Association was established. This small group of women spearheaded projects for many of the town's amenities that were later achieved through the years such as a cemetery, the public library, Atlantic Avenue improvements, and a town hall. • In 1903 the church now known as Cason United Methodist Church was established by and attended by settlers of European decent. • In 1903 hurricane winds wrecked the British ship, SS Inchulva, near the south end of Delray's municipal beach. Early settlers of African decent who emigrated from the Bahamas initiated the rescue of the survivors. • In 1904 Trinity Evangelical Lutheran Church (originally called Evangelishe Lutherische Dreienigkeits Gemeinde by German settlers) was established. Adolf Hofman and other pioneer families of German decent were founding members. • In 1904 "Yamato" was established as a Japanese agricultural colony south of Delray. Jo Sakai, the leader, named the colony "Yamato," an ancient name revered in Japan. The first group of Japanese settlers were recruited by Henry Flagler and were all men. In later years, their wives and children .and some of their relatives and friends joined them including George Morikami for whom the Morikami Museum and Japanese Gardens in Delray Beach is named for which he donated more than 200 acres of land. The Japanese early settlers came to Delray for shopping, recreation and participation in civic events. Their children attended grade school in Yamato, but came to Delray to attend high school at Delray High School. Final 5 / 21 / 07 3 • In 1904 Missionary Bishop Rt. Rev. William Crane Gray held the first service in the new St. Paul's Episcopal Church which was for settlers of European descent. • In 1905 Delray's first parochial school (Deutsche Schule) known as the German School was established by Trinity Lutheran Church. • In 1908 telephone service became available. • In 1909 Palm Beach County was created from the northern portion of Dade County. • In 1911 the area west of the "canal" (Intracoastal Waterway) was incorporated as the "Town of Delray." John Shaw Sundy became the first Mayor and served seven terms. • In 1911 Missionary Bishop Rt. Rev. William Crane Gray, along with about a dozen men and women settlers of African decent who emigrated from the Bahamas, organized St. Matthews Episcopal Church. • In 1911 the first bridge was built over the canal, connecting the barrier island with the Town of Delray. • In 1913 the Delray Beach Library was founded by the Ladies Improvement Association. • In 1913 a new Delray Elementary and High School building was constructed. The building now houses the Cornell Museum of Art and History at Old School Square. • In 1914 the Town of Delray passed the first bond issue and the first city electric and water plants were built. • In 1923 "The Town of Delray Beach," the area east of the Intracoastal, was incorporated. • In 1925 a new separate building for the Delray High School was constructed. The building is now the Crest Theatre at Old School Square. • On May 11, 1927, the two incorporated towns -Town of Delray Beach and the City of Delray -united to form "The City of Delray Beach." Sources: Conferring with: Staff of Delray Beach Historical Society Staff of S.D. Spady Museum, Delray Beach, Florida Clemmer Mayhew, Historian Department of Interior, Census Division Final 5 / 21 / 07 4 Division of Library and Archives of the Florida Department of State, Tallahassee, Florida Encyclopedia Britannica Florida Heritage, State of Florida Cultural Affairs website, Tallahassee, Florida Henry Flagler Museum, Palm Beach, Florida Historical Timeline of Black Education in Palm Beach County Florida by the Ipet-Isut Historical Preservation Foundation Hofman, Charles. Letters from Linton. Hollywood, Florida. Legacy Press. 2004 Interviews, reviews and information verification through correspondences/discussions with many local individuals as conducted by Lori J. Durante of the Museum of Lifestyle & Fashion History, Delray Beach, Florida. To name a few individuals: Hart, Nadine. Native of Delray Beach; retired teacher of•Palm Beach County Schools Hofman, Charles. Author and descendant of early settler of Delray Beach, Florida Miller, Marcia. Retired teacher of Palm Beach County Schools; Archivist for Trinity Lutheran Church and School of Delray Beach, Florida Patterson, Dottie. Archivist for Delray Beach Historical Society Pompey, C. Spencer (now deceased). Author, Historian, Civil Rights activist; native of Florida; long time resident of Delray Beach; retired teacher of Palm Beach County Schools P.K. Yonge Library of Florida History of the Smathers Library at the University of Florida, Gainesville, Florida Final 5 / 21 / 07 5 MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: Y'' ROBERT A. BARCINSKI, ASSISTANT CITY MANAGER THROUGH: DAVID T. HARDEN, CITY MANAGER DATE: MAY 29, 2007 SUBJECT: AGENDA ITEM # ~. I`1 -REGULAR MEETING OF JUNE 4 2007 SPECIAL EVENT REQUEST -ART AND JAZZ ON THE AVENUE ITEM BEFORE COMMISSION City Commission is requested to endorse the next Art & Jazz on the Avenue scheduled for June 28, 2007 from 6:00 p.m. to 10:00 p.m., to grant a temporary use permit per LDR Section 2.4.6(F) for the closure of Atlantic Avenue from Swinton to the west side of NE/SE 7~' Avenue, Railroad Avenue from Atlantic north to north side of the eastJwest alley, and to the alleys north and south of Atlantic on NE/SE 1St Avenue, NE/SE 2°d Avenue, SE 3rd Avenue, NE/SE 4`'' Avenue, and the Tennis Center Parking lot and to authorize staff support for security and traffic control, banner hanging and removal, barricade set up and removal, trash removal and clean up. BACKGROUND Attached are the special event permit request, budget, site plan, Hold Harmless Agreement, and Certificate of Insurance for this event received from Marjorie Ferrer. Although we are not asking to close Atlantic Avenue west of Swinton, the event boundary will extend to NW/SW 5~' Avenue. Entertainment will be located in the library, in front of Atlantic Grove and in Clay Widemans Parking lot. The estimate of overtime cost for this event is $9,675. Cost for the barricade rental is estimated at $420. Although EMS assistance was not requested, staff is recommending it be required. Based on the event agreement, the Downtown Marketing Cooperative is to pay the City 20% for all costs over $1,000 plus the full cost of barricade rental. The estimated charges for this event are $2,155. This event is sponsored by the Sun Sentinel. RECOMMENDATION Staff recommends endorsement of the event, approval of the temporary use permit and street closure, staff support as requested, including barricades with payment of costs to the City per the agreement between the City and the Downtown Marking Cooperative. RAB/db Attachments U:lwwdata~Events~AR & Jazz~.Agenda Item Art & Jazz on the Ave 6.28.07.doc DEI.RAY BEACH t t a r i n ~ City of Delray Beach '~'~~' Special Event Permit Application PLEASE PRINT ~~~~ ~~~~ Event Approved/Denied Date of Approval/Denial Approved/Denied by Title 1. Event Name/Title: Art & Jazz; 2. Event Date(s): Event Time(s): June 28, 2007 6-10 pm 3. Event Sponsor/Producer: Downtown Marketing Cooperative 4. Event Contact/Coordinator: Mariorie Ferrer 5. Address: 64 A SE Stn Avenue, Delray Beach, FL 33483 6. Telephone Number: 561-279-1380 ext 17 Cellular Number: 561-271-3168 7. E-mail Address: Marjorie _delraybeach.com 8. Event Description: Art & Jazz is an event that brings thousands of people to our downtown area. The aurpose is to provide the setting for an open house for merchants (If neighborhood block party, then please skip questions #10-35 and go to question #36) 9. Sponsor Category: (please check) City XNon-Profit/Charitable ^ Private ^ Co- Sponsor -Non-Profit/Private ^ (lf Non-profit atfach proof of 501c(3), c(4), c(6), c(10) or c~19)) 10. Event Location/Address: Atlantic Avenue from NW/SW 5t Avenue to SE/NE 7cn Avenue; Railroad Way from Atlantic Avenue to North side of alleyway: NE 2"° Avenue from Atlantic Avenue to south side of Alleyway: Alleyway between NE 2nd Ave and Railroad 1P~att;- Site plan attached: yes _X_ no (Site plan required for entire event site) 12. Event budget attached: yes X_ no (Required for all events) 13. Serving or selling alcoholic beverages: yes no X_ (If yes, copy of license and alcohol liability insurance required two (2) weeks priorto event) 14. Event certificate of insurance attached: yes X_ no (Required two (2) weeks prior to event naming the City as additional insured, alsorequired for vendors) 15. Playing of amplified music: yes _x_no (Waiver required) * Reauest Waiver of Noise Ordinance 16. Requesting Police assistance: yes X no (Traffic control/security) 17. Will supplement with private security: yes no X (If yes, need plan attached) 18. Requesting Emergency Medical assistance: yes no X_ 19. Requesting barricade assistance :yes X no 20. Requesting trash removal/clean up assistance: yes X no 21. Requesting trash boxes and liners: yes X no 22. Requesting stage use: yes no X (If yes, check type) Large stage covered^ Large stage no cover ^ Small stage ^ Half small stage ^ 23. Requesting signage :yes X no Type: Event sign (4'x4') Directional signs Banner hanging _yes Indicate dates required 1 week prior (Waiver required if more than one (7) week prior to event) 24. Food and beverage vendors: yes no X If yes, please provide the approximate number, as well as the name, address, and contact phone number of each vendor which is due no later than one week prior to the event 25. Health Department approval: (see attached) yes no 26. Other vendors: -Sponsors only yes no X 27. Tents: yes X no (lf yes, tent permits and fire inspections maybe needed) 28. Will the event include amusement rides? requiring state approval? Yes no X (lf yes, type and location and copy of liability insurance required)(Also, please provide the name, address and contact phone number for each amusement provider along with copies of their liability insurance) 29. Will the event be gated? Yes no X (Show on-site map) 30. Will there be fireworks or other pyrotechnics? Yes no X (!f yes, contact Fire Marshall) 31. Will there be cooking with compressed gas? Yes no X (!f yes, contact Fire Marshall) 32. Will you be providing port-a-lets for the event? Yes X no (!f yes, locate on-site map. !f no, indicate how you will handle resfroom needs) 33. Will there be a charge for the event? Yes no X (!f yes, indicate ticket prices) 34. Is reserved parking requested? Yes no _X (lf yes, indicate locations) 2 35. Neighborhood Block Parties (Neighborhood block parties only) • Is event sponsored by the Homeowner's Association? yes no (lf not, then individual(s) submitting permit application must also submit a petition signed by 51 % of the homeowners who live on the block) • Please note the following:1) Approvals will only be given for a one (1) block area 2) Permit applications must be received in writing by the City Manager's Office at least thirty (30) days prior to the event.3) Consumption or sale of alcohol on City rights-of-way will not be permitted.4) Structures other than barricades are not allowed in City rights-of-way.5) Homeowners Association will be required to pay all overtime costs that may be incurred as a result of City staff involved in the event. Event Contractor/Coordinator Please print: ~~~ Date Please enclose the appropriate non-refundable application fee payable to the City of Delray Beach, 100 N.W. 1scAvenue, Delray Beach, Florida 33444. For Staff Use Only Date Received Application fee received $ 100.00 Site map Budget Certificate of insurance Hold Harmless agreement Security plan Waiver alcoholic beverage Railroad approval Coast Guard approval 501c(3) or (d) certificate or letter Health Department approval Fire Inspector approval Police Department approval Public Works approval Parks and Recreation approval City Commission approval 3 a 25 ~ 2 5 8 ~ o ° S 0 0 0 °0 0 0 0 ~ o O (;~ O N N 0p N N r a0 Ol ~ r ~ W m ~t1 O _ ~ ~ m Kl N 0 M N r R' m a y ~ pQm N C ~ 'C C L ° C ® O ~j ~ c ~ ~ N £ N ~ $ n a c ~ r o '" ffi' ~ m C r ~ v -~ m g ~ °' ~ v a c W m ~ a ~ a ~ m F C7 > v Q 0 c co E a c 2 w m v W m ~ tq z S ~ ~ ~ x v° m ~ c ~' ~ v ~ o `m ~ W ~ ~ .C ` $ w > . = n m c o p m s ~ w U > a m U ~ a g U ~ ~ ~ a F , W ~"' pp O 8 O pp O 8 O O pp O S ~ pp p A o ° O S p O O O S O p O o 41 Wm O ~ ~ pp N ~,~ N m M N1 O o ai CD m Y f m M w N m O O N M M = ON m W W F Q S ~ W _ ~ W M r G O g O O N O Uf 1 : m Z~ a 0 a- N O ° > a `= v N ` * ~ S N M A i r ( O p N ~~ m = °° j Om ~ ~ n c.~ te , tW7 Q Q v`= ~2 Q 5 w QQ W goo° g So o0 o o° m oo ap u°~ r o° ~n ~ °o ° b 0 N 0 ° o g g c ~° a r p N N 0 ~ ~ p m 0 M r o m a ~ 8 ~ ~ N t~ eh m O F- ~ ~ O V m m ~ OO pp pp ~ _ p O M Q Nq ooO g O O N p b h (~ pp 0 0 ~ ~ O ~ gj m r ~D m r A ~O O ~ '~Q l~ O ~ r~'f O ~ ~ p O N N 0 ~+f N O r ~ , Iq ~ Oi N ~` W 01 [~ ~ N E O ~ r ~ ~ M N p O O r (O M N pp N CD O ~ S O N ! r7 m ? ~O r - O O N N 2 r ' j f ~ O m O a° i o i 0 n tU Co O N O O S q ~ ~ N O c h N O r G O_ m O O M O M f0 n O O O ~ O O ) ~ ~ a r F' Q ~ in r ~ m o O 0 M O O r m N Y 7 ~ ~ T N O ~ O W m ~ {i~ m b tr] b M b N N O ~ N O m a T T m ~ ~O N V ~ ~ r Q ~ F" _ W 0 0 p~ 0 VMi ~v T~ G ? 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CNO ' L C ~ '7 t Ci M ~ ~ ~ L i w ~ ~ ~ O G Z O N = I1 N a q 2 ~f U ~ ~ V W U a S ® a0 ~ m m C W I i - ~c °+f 5 ~ 00 m ~ ~ ~ ~ m 0 5 L m ~ c m E ~ m w m c ro E a e ~ W 2 w ~ ~ m ~ Z W p m rn ~ ~ m ~ o U o ,~ m ~ ~ W ~ ~ ~ O ~ c 3 U t J Vl Z M ~' i d Q O ~ G ~ W atf ~ l6 m m ~' O~ C > ~ ~ ` W ~ x 0 w x x W ~ N C ~ W ~ ~ W ~ ~ W H ~ ~" ''~ V a n fA o n-i° ~ !a- C > c c ~ ~ Y o ~ c0 ' w ~ (9_m p Q _ m ~ l ~- c n 01 ca =' 3, gym„ 0 o ai a Q Z _ ~ ~n ~ m 1O 3~x O r x w aQ rn rn mc` o c~ 0 0 0 `~ Q~ ~ a m L 30 ~ R a t o i - F - n U wU Cna mU xa ~ ~ ~ ar n ro f °n o af- ~ z SPECIAL EVENT HOLD HARMLESS AGREEMENT The Delray Beach Downtown Marketing Cooperative (comprised of the Community Redevelopment Agency, Downtown Development Authority, Chamber of Commerce and the City of Delray Beach) agrees to indemnify, hold harmless and defend the City of Delray Beach, its agents and employees from all suits, actions and claims including attorney's fees and costs attendant to any claim, litigation, administrative proceeding, appeal and judgment of every name and description brought against the City as a result of loss, damage or injury to person or property arising from and in exchange for the Delray Beach Downtown Marketing Cooperative use of City Facilities or property for the special event of t ~ ? 2Z B,~Y T/~~ AY~'~Yy`" and hereby releases the City of Delray Beach, its agents and employees from all suits, actions and claims including attorney's fees and costs attendant to any claim, litigation, administrative proceedings, appeal and judgment of every name and description brought against the City as a result of loss, damage or injury to person or property arising from the special event of _~,¢r ,¢yp T,¢Z Z. p,V T/>t ,f d~=~vdt~ * This Indemnification and Hold Harmless and Defend Agreement is only to the extent of insurance maintained by the Delray Beach Downtown Marketing Cooperative as covered under Scottsdale Insurance Company Policy number CLS 1334466 Frank Wheat, Chairman Community Redev~opment Agency Louis Carbi6ne, Chairman Downtown Development Authority William Wood, Presi nt Chamber of Commerce Robert Barcinski, Assistant City Manager City of Delray Beach Revised 4/21!06 From: Certificat® Dept. At Plastridge InsAgenty FaxID: To: Ro61n Cox Date: 5/31f2007 09:06 AM Page: 2 Of 2 .acaRQ CERTIFICATE CAF LIASILiTY INSURANCE OP ID DATE{MM/DD/YYYY- DELRA-2 05/31/07 PRODUCER THi3 CERTIFICATE IS ISSUED A8 A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON 7HE CERTIFlCATE The Plastridge Agency, Inc. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 820 N.E. 6th Avenue ALTER THE COVERAGEAFFORDED BY THE POLICIES BELOW. Delray Beach FL 33483 Phoae:561-276-5221 Fax: 561-276-5244 INSURERS AFFORDING COVERAGE NAIC# IrISURED INSURER A: Mar land Casualt Company 09315 Delray Beach Chamber of of Commerce INSURERS AmC Preferred Ias. Co. COmmerce INSURER C: 64-76 5.E. 5th Avenue INSIJRERO Defray Beach E'I. 33483 : INSURER E: THE POLICIES OF INSURPdJCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED A80VE FOR THE POLICY PERIOD INDICATED. NOTVJITHSTANOING ANY REOUN2EMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, 7HE INSURMICE AFFORDED BY THE POLICIES pESCRIBEO HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AN7 CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS S}10WN MAY HOVE BEEN REDUCED BY PAID CLAIMS. LTR SR TYPE OF INSURANCE POLICY NUMBER DATE MMlDDlW DATE MMIDD/YY LIMITS GEN9~ALLIABILrrY EAQiOCCURRENCE 31000000 A x X cObWQ2clALGEN-RAT-LIABILITY PA542076597 04/20/07 04/20/08 PREMISES Eaooeuronce 3100000 CLAIMS MADE ~ OCCUR MED EXP (Any one personl 5 10000 PERSONAL 3ADV INJURY E 1000000 A~RE~TE 3 2000000 GEN'LAGGREGATELIMITAPPLIESPER: PRODUCTS-COMPoOPAGG ;2000000 X POLICY jE~ LOC AUTOMOB9.E LUIBILRY A ANYA~o PAS42076597 04/20/07 04/20/06 COMBINED SFNGLE LIMB (Eeaccrdenl) i 10O0QQQ ALL owNED AUTOs 80DILY INJURY : SCFEDIAED AUTOS (Per parson] X HIRED AUTOS BODtl.Y INJURY = X NOI~FdJVNED AUTOS (Per ac~cidert) PROPERTY DAM4GE S (Per accidanq GARAGE LUIBILTTY AUTO OPLY - EA ACCIDENT ; ANY AI11'O O7HER THAN ~'~ ; AUFO ONLY' AGG S EXCEBSAJMBRELLALIABaT1'Y EACH OCCURRENCE ; 5000000 A ocam ~ cLpJMS MPDE PA342076597 04/20/0? 04/20/08 AGGREGATE 3 5000000 s DEDUCTIBLE a x RETENTION s looo0 3 WORKERS COMPB~TISA710N AND EMPLOYfiRB'LIAB0.TTY 70RY LIMITS ER 5. ANY PROPRlETDR/PARTNERJEXECUFIVE wCV7000562 06/24/07 06/24/08 El. EACH ACCIDENT S 100,000 OIFICERR.IENBEREXCLUDED7 E L DISEASE-EAEMPLOVEE 3 100 000 If yes describe undw . . , , SPECIAL PROVISIONS below E.L. DISEASE-POLICY LIMB 3 500,000 A oTHd~ >l:quipmeat Floater PA542076597 04/20/07 04/20/08 9C OF OPERATIONS / LOCA710N3 ! VEHTCI.E8 / EXCLVSIONS ADDED BY ENDORSfi[dfiNT / 8PECUL PROVISIONS Certificate holder is named additional insured oa the above stated c3L Policy Eveat:Art & Jazz oa the Avenue, event held oa 6/28/07. CERTIFICATE HOLDER esTdr~T t sTlnlu City of Delzay Beach Atta:Daug Smith 100 N.W. 1st Avenue Delray )leach FL 33444 IMPOSE NO OBLiGAT10N OR LWBILRY OF ANY KRm UPON l'!$ RJSURER. ITS AGENTS OR REPRESEPITATNES. CiTYD-1 ~ ~~ ANY OF THE ABOVE pEBCRIBED POLICIeBIBE CJWC~.LI~ BEFORE THE 6XPRATION DATE THEREOF. THE ISSUING NSUAER Y~L ENDEAVOR TO MAR. 10 DAYS YYRTiTEN N073CE TO THE CERTQ+ICATE HOLDER NAM®TO THE LEFT, BUT FALI~IE TO DO SO SHALL uA .r 4a ca. E O U H .. t vs J O m C ~ °' ~ ~ °' 0 d ~' ~ ^ J ~ ti ~D N ~ a ~ ~, = c ~~ w a o!I 4y w- ~.~ .' f ...;~arttu9 ~r _ asp ~~~ ~ .~ 4 ~a ;.,~ :~. , _~ 1~'w~+u { ~ ~ 4. y =w_~^t ~i ~} ~.~#i ~f3 - .~r ..~ ~ ~~ ~l-1I Ii1S~ ~ C c ,,_; ,- r .- ,r ,~ }. s ,~ r ; k~ ~Ap '~ #, ~ r :~ -~' mm ~~~~ t ~-- .4,~ S 4~ R /" ~ ~~ ,~ ~~" .; f ~# ,, _ ~,~ rs ' ~ ~ ~. ~I~ "' ~ ~~' 11r_ .~..-....~-r.±~l-.~. .'wry ~-s. ~ ~. ... - ~,:. .. _._ ..~.r._____ .._.__.k , ,e ~ _ t ~~. ~ ~ ~~ , ~. .. _ ;~ ~, ~; ,w~ ,,, r~ .,,~< .~ ~, .. ,. _. ~ ~ .r .. .rte -_ .L ,~. DELRAY BEACH All-America Ciry 1993 MEMORANDUM 2001 TO: Mayor and City Commissioners FROM: Joe Weldon, of Parks and Recreation ~'' ~ ~~ THROUGH: David Harden, City Manager DATE: May 23, 2007 SUBJECT: AGENDA ITEM #(U•I-+- COMMISSION MEETING OF JUNE 4, 2007 VOLLEYBALL TOURNAMENT ON MUNICIPAL BEACH JUNE 23-24, 2007 ITEM BEFORE COMMISSION Pro-Motions Sports Marketing is requesting the use of our municipal beach for a volleyball tournament June 23 and 24, 2007. They would erect 15 courts on the sand across from Anchor Park. They will donate $500 to the Ocean Lifeguard Competition Fund and the $5 parking fee per car per day will also be deposited in this fund. BACKGROUND Pro-Motions Sports Marketing has municipal beach in 2000 and 2003. events with no negative impact on beach itself. FUNDING SOURCE Not applicable. RECOMMENDATION held volleyball tournaments on our Both tournaments were successful City staffing, expenditure or the Approval of request to host volleyball tournament June 23 and 24, 2007. Ref:agendamemo Director Fi.] F'f 111 ~.1 On I~BG}Clr ~.!1'.lptii ~LiC ~C.. rf^~C~T ~L.. 1~ r, cr.. '.~ . 2007 Florida Beach Volleyball Tour Bob Taylor City of Delray Beach, Florida 100 NW 1 ~ Ave Delray Beach, Florida, 33444 I am writing I reference to our conversation on the phone today concerning the possibilities of holding a beach volleyball tournament on Delray Beach. The event would take place June 23-24, 2007. The proposed site for the event would be in the Anchor Park area. We are asking for permission to erect 15 volleyball courts on the sand in this area. The event would run both Saturday and Sunday from 9 a.m. to 5 p.m. The set up for the event would take place on Friday the 22"d between the hours of 9 a.m. and 3 p.m. Break down would begin throughout the day Sunday during the event and would conclude by 6 p.m. The Florida Beach Volleyball would be responsible for all clean up of trash in the area at break down. Pro-Motions Sports Marketing will secure all the necessary DEP permits and will provide liability insurance with the City of Delray Beach as additionally insured. Pro-Motions Sports Marketing will be donating $500 to the Delray Beach Ocean Rescue Competition Team, and that event parking will be handled by Ocean Rescue at Anchor Park. If there are any questions or concerns please contact Gino Ferraro at 954-224-5739. Thank you for your attention in this matter and I hope to hear from you soon. Gino Ferraro Pro-Motions Sports Marketing ! FBVT 2400 SW 16 court Fort Lauderdale FL 33312 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED CITY OF DELRAY BEACH, FLORIDA BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL 100 NW 1ST AVE ENDEAVOR TO MAIL 3O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE DELRAY BEACH, FL 33312 SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ~F'rancir L. Dean Date: May 23, 2007 AGENDA ITEM NUMBER: ~~ .l .- , °- ~:'. ."~/• AGENDA REQUEST Request to be placed on: x Consent Agenda -Regular Agenda -Workshop Agenda -Special Agenda When June 4, 2007 Description of Agenda Item (who, what, where, how much): Request approval to host Pro-Motions Volleyball Tournament June 23-24, 2007 on our municipal beach, using 15 courts on the beach across from Anchor Park. They will donate, $500 to our Lifeguard Competition Fund, and the $5 parking fee per car per day will also be deposited in this fund. Attached is the insurance certificate naming the City of Delray Beach as additional insured. Department Hea `` ~,` Signature: W ~~~~'"-'~ City Attorney Re w/R.ecommendation (if applicable): _ Budget Director Review (required on all items involving expenditure of funds): Funding Available: Yes / No Initials: City Manager Review: Account Number Description Account Balance: Funding Alternatives: Initials: Approved for Agenda: Yes / No Hold Until: Agenda Coordinator Review: (if applicable) Received: MEMORANDUM To: MAYOR AND CITY COMMISSIONERS From: LULA BUTLER, COMMUNITY IMPROVEMENT DIRECTOR ELIZABETH ALPERT, CD ADMINISTRATOR Through: Subject: ITEM BEFORE THE COMMISSION: Approval of an agreement between the City and Palm Beach County in order for the City to implement Disaster Recovery Initiative (DRI) funding in connection with the Neighborhood Resource Center hurricane hardening. BACKGROUND: At the July 11, 2006 meeting, City Commission approved a request for staff to apply through Palm Beach County Housing and Community Development for funds to assist in disaster relief, long term recovery, restoration of housing and infrastructure funding under the 2005 Department of Community Affairs Disaster Kecovery Initiative (DRI). Under this initiative the City was granted $10,500 in funding to provide hurricane protection (accordion shutters for window and doar openings) for the City's Neighborhood Resource Center (NRC) located at 141 SW 12s' Avenue. Palm Beach County has entered into a Contract with the State of Florida, Department of Community Affairs, in connection with the State's 2005 DRI program, allowing the City to now be allocated the $10,500 in funding to begin project implementation for the NRC shuttering project. FUNDING SOURCE= Disaster Recovery Initiative RECOMMENDATION: Staff recommends approval of the Agreement between the City and Palm Beach County so that the City map move forward in its implementation of the NRC shuttering project through the Disaster Recovery Initiative (DRI) Program. AGREEMENT BETWEEN THE CITY AND PALM BEACH COUNTY FOR HURRICANE PROTECTION OF THE NRC AGREEMENT BETWEEN PALM BEACH COUNTY AND CITY OF DELRAY BEACH THISAGREEMENT, entered intothis day of , 20_, byand between Palm-Beach County, a political subdivision of the State of Florida, and the City of Delrav Beach, a municipality duly organized and existing by virtue of the laws of the State of Florida, having its. principal office at 100 NW 1st Avenue. Delray Beach. FL 33444. WHEREAS, Palm Beach County has entered into a Contract (number 07DB-3V-10-60-01-Z07) with the State of Florida, Department of Community Affairs, in connection with the State's 2005 Disaster Recovery Initiative Program which the State is implementing for the use of grant funds provided by the United States Department of Housing and Urban Development under its Community Development Block Grant Program; and WHEREAS, the City of Delray Beach was allocated certain funds under said Contract to implement specified activities under the 2005 Disaster Recovery Initiative Program; and WHEREAS, Palm Beach County desires to engage the City of Delrav Beach to implement the activities associated with the funds allocated to it. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, it is agreed as follows: PARTI DEFINITIONS, PURPOSE AND APPLICABLE CONDITIONS DEFINITIONS (1) "County" means Palm Beach County. (2) "CDBG" means the Community Development Block Grant Program of the United States Department of Housing and Urban Development. (3) "HCD" means Palm Beach County Housing and Community Development. (4) "Municipality" means the Citv of Delrav Beach. (5) "State" means the State of Florida, Department of Community Affairs. (6) "Contract" means contract number 07DB-3V-10-60-01-Z07 between Palm Beach County and the State of Florida, Department of Community Affairs. (7} "HCD Approval" means the written approval of the HCD Director or his designee. (8) "U.S. HUD" means the Secretary of Housing and Urban Development or a person authorized to act on its behalf. 2. PURPOSE The purpose of this Agreement is to state the covenants and conditions under which the Municipality will implement the Scope of Services set forth in Part II of this Agreement. Page 1 of 18 City of Delray Beach 3. APPLICABLE CONDITIONS The Municipality shall be bound by the Contract to the extent applicable to this Agreement. Furthermore, the conditions applicable to the activities undertaken in connection with this Agreement shall include but not be limited to those listed below (as they may be amended from time to time). Palm Beach County's failure to list verbatim or make reference to a regulation, statute, ordinance, reference, or any other document affecting the Municipality, shall not relieve the Municipality of compliance with any applicable regulation, statute, ordinance, or any other document not listed below. The County reserves the right, but not the obligation, to inform the Municipality of any such applicable regulation, statute, ordinance, or any other document, and to require the Municipality to comply with the same. 1. Community Development Block Grant, Final Rule, 24 C.F.R., Part 570; 2.Florida Small and Minority Business Act, s 288.702-288.714, F.S.; 3. Florida Coastal Zone Protection Act, s 161.52-161.58, F.S.; 4. Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 163, F.S.; 5.Title I of the Housing and Community Development Act of 1974, as amended; 6. TreasuryCircular1075 regarding drawdown of CDBG funds; 7.Sections290.0401-290.049, F.S.; S.Rule Chapter 9B-43, Fla Admin. Code.; 9. Department of Community Affairs Technical Memorandums; 10.HUD Circular Memorandums applicable to the Small Cities CDBG Program; 11.Single Audit Act of 1984; 12.National Environmental Policy Act of 1969 and. other provisions of law which further the purpose of this Act; 13.National Historic Preservation Act of 1966 (Public Law 89-665) as amended ..and Protection of Historic Properties (24 C.F.R., part 800); 14.Preservation of Archaeological and Historical Data Act of 1966; 15.Executive Order 11593 -Protection and Enhancement of Cultural Environment; 16. Reservoir Salvage Act; 17.Safe Drinking Water Act of 1974, as amended; 18.Endangered Species Act of 1958, as amended; 19.Executive Order 12898 -Environmental Justice 20.Executive Order 11988 and 24 C.F.R. Part 55- Floodplain Management; 21.The Federal Water Pollution Control Act of 1972, as amended (33 U.S.C., s 1251 et. seq.); 22.Executive Order 11990 - Protection of Wetlands, 23.Coastal Zone Management Act of 1968, as amended; 24.Wild and Scenic Rivers Act of 1968, as amended; 25.CIean Air Act of 1977; 26.HUD Environmental Standards (24 C.F.R. Part 58); 27.Farmland Protection Policy Act of 1981; 28.CIean Water Act of 1977; 29. Davis -Bacon Act; 30.Contract Work Hours and Safety Standards Act of 1962, 40 U.S.C. s. 327 et. seq.; 31.The Wildlife Coordination Act of 1958, as amended; 32.The Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1975 (42 U.S.C., s. 6901 et. seq.; 33.Noise Abatement and Control: Departmental Policy Implementation, Responsibilities and Standards, 24 C.F.R. Part 51, Subpart B; 34.FIood Disaster Protection Act of 1973, P.L. 92-234; 35. Protection of Historic and Cultural Properties under HUD Programs, 24 C.F.R. Part 59; 36.Coastal Zone Management Act of 1972, P.L. ~2-583; 37.Architectural and Construction Standards; 38.Architectural Barriers Act of 1968, 42 U.S.C. 4151; 39.Executive Order 11296, relating to the evaluation of flood hazards; 40.Executive Order 11288, relating to prevention, control and abatement of water pollution; 41.Cost-Effective Energy Conservation Standards, 24 C.F.R., Part 39; 42.Section 8 Existing Housing Quality Standards, 24 C.F.R., Part 882; 43.Coastal Barrier Resource Act of 1982; 44.Federal Fair Labor Standards Act, 29 U.S.C. s. 201 et. seq.; 45.Title VI of the Civil Rights Act of 1964 - Non- discrimination; 46.Title VII of the Civil Rights Act of 1968 - Non- discrimination in housing; 47.Age Discrimination Act of 1975; 48.Executive Order 12892 -Fair Housing; 49.Section 109 of the Housing and Community Development Act of 1974, Non- discrimination; 50.Section 504 of the Rehabilitation Act of 1973 and 24 C.F.R., Part 8; 51.Executive Order 11063 -Equal Opportunity in Housing; 52.Executive Order 11246 -Non-discrimination; 53.Section 3 of the Housing and Urban Development Act of 1968, as amended - Employment !Training of Lower Income Residents and Local Business Contracting; 54.Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, P.L. 100-17, and 49 C.F.R. Part 24; 55. Copeland AntiOKickback Act of 1924; 56.Hatch Act; 57.Title IV Lead-Based Paint Poisoning Prevention Act (42 U.S.C. s. 1251 et. seq.); 58.OMB Circulars A-87, A-122 and A-133, as revised; 59.Administrative Requirements for Grants, 24 C.F.R: Part 85; 60.Section 102 of the Department of Housing and Urban Development Refbrm Act of 1989 and 24 C.F.R. Part 12; 61.Emergency Rule 9BER05-2, CDBG Disaster Recovery Funds; 62.HUD program requirements for disaster recovery projects as published in Federal Register; Vol. 69, No. 237 (December 10, 2004) [Docket No. FR-4959 - N-01]. Page 2 of 18 City of Delray Beach PART II SCOPE OF SERVICES The Municipality shall, in a satisfactory and proper manner as determined by HCD, perform the tasks necessary to conduct the program outlined in Exhibit "A" as attached hereto and made a part hereof. PART III COMPENSATION TIME OF PERFORMANCE METHOD AND CONDITIONS OF PAYMENT MAXIMUM COMPENSATION The Municipality agrees to accept as full payment for services rendered pursuant to this Agreement the actual amount of budgeted, eligible, and HCD Director ordesignee-approved expenditures and encumbrances made by the Municipality under this Agreement, which shall not be unreasonably withheld. Said services shall be performed in a manner satisfactory to HCD. In no event shall the total compensation orreimbursement to be paid hereunder exceed the maximum and total authorized sum of 10 500 (as more specifically detailed in Exhibit A hereto) for the period of June 15. 2007 through and including November 15.2007. Any funds not obligated by the expiration date of this Agreement shall automatically revert to the County. TIME OF PERFORMANCE The effective date of this Agreement and all rights and duties designated hereunder are contingent upon the timely release of funds forthis project under State Contract number 07DB- 3V-10-60-01-Z07. The effective date shall be the date of execution of this Agreement, and the services of the Municipality shall be undertaken and completed in light of the purposes of this Agreement. In any event, all services required hereunder shall be completed by the Municipality prior to November 15. 2007. 3. METHOD OF PAYMENT The County agrees to make payments and to reimburse the Municipalityfor all budgeted costs permitted by Federal, State, and County guidelines. The Municipality shall not request reimbursement for payments made by the Municipality before the effective date of this Agreement, nor shall it request reimbursement for payments made after the expiration date of this Agreement, and in no event shall the County provide. advance funding to the Municipality or any subcontractors hereunder. The Municipality shall request payments or reimbursements from the County by submitting to HCD proper documentation of expenditures consisting of originals of invoices, receipts, or other evidence of indebtedness, and when original documents cannot be presented, the Municipality may furnish copies if deemed acceptable by HCD. Payment shall be made by the Palm Beach County Finance Department upon presentation of the aforesaid proper documentation of expenditures as approved by HCD. The Municipality may at any time after the expiration of this agreement request from the County reimbursement for payments made by the Municipality .during the term of this Agreement by submitting to HCD the aforesaid properdocumentation ofexpenditures, and the Palm Beach County Finance Department shall make payment as stated above, provided that HCD has determined that the funds allocated to the Municipality through this agreement are still available for payment, and provided that HCD approves such payment. 4. CONDITIONS ON WHICH PAYMENT IS CONTINGENT (1) IMPLEMENTATION OF PROJECT ACCORDING TO REQUIRED PROCEDURES The Municipality shall implement this Agreement in accordance with applicable Federal, State, and County laws, ordinances and codes and with the procedures outlined in HCD Policies and Procedures memoranda. The Federal, State, and County laws, ordinances and codes are minimal regulations supplemented by more restrictive guidelines set forth by HCD. No payments for projects funded by more than one funding source will be made until a cost allocation plan has been approved by the HCD Director or designee. Should a project receive additional funding after the commencement of this Agreement, the Municipality shall notify HCD in writing within thirty (30) days of receiving notification from the funding source and submit a cost allocation plan for approval by the HCD Director or designee within forty-five (45) days of said official notification. Page 3 of 18 City of Delray Beach (2) FINANCIAL ACCOUNTABILITY The County may have a financial systems analysis and/or an audit of the Munioipality, or of any of its subcontractors, by an independent auditing firm employed by the County or by the County Internal Audit Department at any time the County deems necessary to determine if the project is being managed in accordance with Federal, State, and County requirements. (3) SUBCONTRACTS Any work or services subcontracted hereuhder shall be specifically by written contract, written agreement, or purchase order. All subcontracts shall be submitted by the Municipality to HCD and approved by HCD prior to execution of any subcontract hereunder. All subcontracts shall be subject to Federal, State and County laws and regulations. This includes ensuring that all consultant contracts and fee schedules meet the minimum standards as established by the Palm Beach County Engineering Department and U.S. HUD: Contracts for architecture, engineering, survey, and planning shall be fixed fee contracts. All additional services shall have prior written approval with support documentation detailing categories of persons performing work plus hourly rates including benefits, number of drawings required, and all items that justify the "Fixed Fee Contract." Reimbursables will be at cost. None of the work or services covered by this Agreement, including, but not limited to, consultant work or services, shall be subcontracted or reimbursed without prior written approval of the HCD Director or his designee. (4) PURCHASING All purchasing for services and goods, including capital equipment, shall be made by purchase order or by a written contract and in .conformity with the procedures prescribed by the Palm Beach County Purchasing Code, as well as Federal Manage- ment Circulars A-87, A-102, A-128, and 24CFR Part 85 (also known. as the Common Rule), which are incorporated herein by reference. (5) REPORTS, AUDITS, AND EVALUATIONS Payment will be contingent on the timely receipt of complete and accurate reports required by this Agreement, and on the resolution of monitoring or audit findings identified pursuant to this Agreement. (6) ADDITIONAL HCD. COUNTY, AND U.S. HUD REQUIREMENTS HCD shall have the right under this Agreement to suspend or terminate payments if after 15 days written notice the Municipality has not complied with any additional conditions that may be imposed, at any time, by HCD, the County, the State, or U.S. HUD. (7) PRIOR WRITTEN APPROVALS-SUMMARY The following activities among others require the prior written approval •of the HCD Director or designee to be eligible far reimbursement or payment: (a) All subcontracts and agreements pursuant to this Agreement; (b) All change orders; (c} All requests to utilize uncommitted funds after the expiration of this Agreement for programs described in Exhibit A. (8) PROGRAM-GENERATED INCOME All income earned by the Municipality from activities financed in whole or in part by funds provided hereunder must be reported to HCD. Such income would include, but not be limited to, income from service fees, sale of commodities, and rental or usage fees. The Municipality shall report its plan to utilize such income to HCD, and said plan shall require. the prior written approval of the HCD Director or designee. Accounting and disbursement of such income shall comply with OMB Circular A-110 and other applicable regulations incorporated herein by reference. In addition to the foregoing, Program Income, as defined by 24CFR 570.500(a), may be retained by the Municipality. Program Income shall be utilized to undertake activities specified in Exhibit A of this Agreement, and all provisions of this Agreement shall apply to said activities. Any Program Income on hand at, or received after, the expiration of this Agreement shall be returned to the County. Page 4 of 18 City of Delray Beach PART IV GENERAL CONDITIONS OPPORTUNITIES FOR RESIDENTS AND CIVIL RIGHTS COMPLIANCE The Municipality agrees that no person shall on the ground of race, color, disability, national origin, religion, age, financial status, orsex be excluded from the benefits of, or be subjected to discrimination under any activity carried out by the performance of this Agreement. Upon receipt of evidence of such discrimination, the County shall have the right to terminate this Agreement. To the greatest extent feasible, lower-income residents of the project areas shall be given opportunities fortraining and employment; and to the greatestfeasible extent eligible business concerns located in or owned in substantial part by persons residing in the project areas shall be awarded contracts in connection with the project. The Municipality shall comply with the Section 3 Clause of-the Housing and Community Development Act of 1968. OPPORTUNITIES FOR SMALL AND MINORITYNVOMEN-OWNED BUSINESS ENTERPRISES In the procurement of supplies, equipment, construction, or services to implement this Agreement, the Municipality shall make a positive effort to utilize small business and minority/women-owned business enterprises of supplies and services, and provide these sources the maximum feasible opportunity to compete for contracts to be performed pursuant to this Agreement. Tothemaximumextentfeasiblethesesmallbusinessandminority/women- owned business enterprises shall be located in or owned by residents of the CDBG areas designated by Palm Beach County in the CDBG Annual Consolidated Plan approved by U.S. HUD. 3. PROGRAM BENEFICIARIES At least fifty-one percent (51 %) of the beneficiaries of a project funded through this Agreement must be low- and moderate- income persons. The project funded under this Agreement shall assist beneficiaries as defined above for the time period designated in this Agreement. The Municipality shall provide written verification of compliance to HCD upon HCD's request. 4. EVALUATION AND MONITORING The Municipality agrees that HCD will carry out periodic monitoring and evaluation activities as determined necessary by HCD or the County and that payment, reimbursement, or the continuation of this Agreement is dependent upon satisfactory evaluation conclusions based on the terms of this Agreement. The Municipality agrees to furnish upon request to HCD, the County, or the County's designees copies of transcriptions of such records and information as is determined necessary by HCD or the County. The Municipality shall submit status reports required under this Agreement on forms approved by HCD to enable HCD to evaluate progress. The Municipality shall provide information as requested by HCD to enable HCD to complete reports required by the County or HUD. The Municipality shall allow HCD, the County, the State, or HUD to monitor the Municipality on site. Such visits may be scheduled or unscheduled as determined by HCD, the State, or HUD. 5. AUDITS AND INSPECTIONS At any time during normal business hours and as often as HCD, the County, the State, U.S. HUD, or the Comptroller General of the United States may deem necessary, there shall be made available by the Municipality to HCD, the County, the State, U.S. HUD, or the Comptroller General for examination all its records with respect to all matters covered by this Agreement. The Municipality agrees to comply with the provisioris of the Single Audit Act of 1984, as amended, as it pertains to this Agreement. The Municipality shall submit a single audit, including any management letter, made in accordance with the general program requirements of OMB Circulars A-87, A-102, A-133, -and other applicable regulations within one hundred and eighty (180) days after the end of any fiscal year covered by this Agreement in which Federal funds from all sources are expended. Said audit shall be made by a Certified Public Accountant of the Municipality's choosing, subject to the County's approval. In the event the Municipality anticipates a delay in producing such audit or audited financial statements, the Municipality shall request an extension in advance of the deadline. The cost of said audit shall be borne by the Municipality. In the event the Municipality is exempt from having an audit conducted under A-133, the Municipality shall submit audited financial statements and/or the County reserves the right to conduct a "limited scope audit" of the Municipality as defined by A-133. The County will be responsible for providing technical assistance to the Municipality, as deemed necessary by the County. Page 5 of 18 City of Delray Beach DATA BECOMES COUNTY PROPERTY All reports, plans, surveys, information, documents, maps, and other data procedures developed, prepared, assembled, or completed by the Municipality for the purpose of this Agreement shall be made available to the County by the Municipality at any time upon request by the County or HCD.. Upon completion of all work contemplated under this Agreement copies of all documents and records relating to this Agreement shall be surrendered to HCD if requested. In any event the Municipality shall keep all documents and records for five (5) years after expiration of this Agreement. INDEMNIFICATION Each party to this Agreement shall be liable for its own actions and negligence and, to the extent permitted by law, the County shall indemnify, defend, and hold harmless the Municipality against any actions, claims, or damages arising out of the County's negligence in connection with this Agreement, and the Municipality shall indemnify, defend, and hold harmless the County against any actions, claims, or damages arising out of the Municipality's negligence in connection with this Agreement. The Municipality shall also hold the State harmless against all claims of whatever nature arising out of the Municipality's performance of work under this Agreement, to extent allowed and required by law. The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the limits set forth in Florida Statute, section 768.28, nor shall the same be construed to constitute agreement by either party to indemnify the other party for such other party's negligent, willful or intentional acts or omissions. The Municipality shall hold the County harmless and shall indemnify the County for funds which the County is obligated to refund the State or the Federal Government arising out of the conduct of activities and administration of the Municipality. The provisions of this indemnification clause shall survive the termination of this Agreement. 8. INSURANCE Without waiving the right to sovereign immunity as provided by Florida Statute, Chapter 768.28, the Municipality reserves the right to self-insure for General Liability and Automobile Liability under Florida's sovereign immunity statute with coverage limits of $100,000 Per Person and $200,000 Per Occurrence; or such monetary waiver limits that may change and be set forth by the legislature. In the event the Municipality maintains Commercial General Liability or Business Auto Liability, the Municipality agrees to maintain said insurance policies at limits not less than $100,000 Per Person and $200,000 Per Occurrence. The Municipality agrees to endorse Palm Beach Countv .Board of Countv Commissioners as an "Additional Insured" to the Commercial General Liability, but only with respect to negligence other than County's negligence arising out of this project orAgreement. This paragraph does not apply to liability policies which afford only indemnity based claims-bill coverage. The Municipality agrees to maintain, or self-insure, Worker's Compensation & Employer's Liability insurance in accordance with Florida Statute, Chapter 440. The- Municipality. agrees to provide a statement, or Certificate of Insurance, evidencing insurance or self-insurance for the above required coverages, which the Municipality shall deliver to HCD at its office at 160 Australian Avenue, Suite 500, West Palm Beach, Florida 33406. The Municipality agrees its self-insurance or insurance shall be primary as respects to any coverage afforded to or maintained by County. The Municipalityagrees compliancewith the foregoing insurance requirements is not intended to nor construed to relieve the Municipality of its liability and obligations under this Agreement, 9. MAINTENANCE OF EFFORT The intent and purpose of this Agreement is to increase the availability of the Municipality's services. This Agreement is not to substitute for or replace existing or planned projects or activities of the Municipality. The Municipality agrees to maintain a level of activities and expenditures, planned or existing, for projects similar to those being assisted under this Agreement which is not less than that level existing prior to this Agreement. 10. CONFLICT OF INTEREST The Municipality covenants that no person who presently exercises any functions or responsibilities in connection with the Project, has any personal financial interest, direct or indirect, in the target areas or any parcels therein, which would conflict in any manner or degree with the performance of this Agreement and that no person having any conflict of interest shall be employed by or subcontracted by the Municipality. Any possible conflict of interest on the part of the Municipality or its employees shall be disclosed in writing to HCD provided, however, that this paragraph shall be interpreted in such a manner so as not to unreasonably impede the statutory requirement that maximum opportunity be provided for employment of and participation of low and moderate-income residents of the project area. Page 6 of 18 City of Delray Beach 11. CITIZEN PARTICIPATION The Municipality shall cooperate with HCD in the implementation of the Citizen Participation Plan by establishing a citizen participation process to keep residents informed of the activities the Municipality is undertaking in carrying out the provisions of this Agreement. Representatives of the Municipality shall attend meetings and assist HCD in the implementation of the Citizen Participation Plan, as requested by HCD. 12. RECOGNITION All facilities purchased orconstructed pursuant to this Agreement shall be clearly identified as to funding source. The Municipality will include a reference to the financial support herein provided by HCD in all publications and publicity. In addition, the Municipality will make a good faith effort to recognize HCD's support for all activities made possible with funds made available under this Agreement. 13. AGREEMENT DOCUMENTS The following documents are herein incorporated by reference and made a part hereof, and shall constitute and be referred to as the Agreement; and all of said documents taken as a whole constitute the Agreement between the parties hereto and are as fully a part of the Agreement as if they were set forth verbatim and at length herein: (1) This Agreement, including its Exhibits; (2) Office of Management and Budget Circulars A-87, A-102, A-133, and 24CFR Part 85; (3) Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Title II of the Americans with Disabilities Act of 1990; (4) Executive Orders 11246, 11478, 11625, 12432, the Davis Bacon Act, and Section 3 of the Housing and Community Development Act of 1968, and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended; (5) Executive Orders 11063, 12259,12892, the Fair Housing Act of 1988, and Section 109 of the Housing and Community Development Act of 1974, as amended; (6) Florida Statutes, Chapter 112; (7) Palm Beach County Purchasing Code; (8) Federal Community Development Block Grant Regulations (24 CFR Part 570), as amended; (9) The Municipality's personnel policies and job descriptions; and (10) The Municipality's Certificate of Insurance. (11) Contract number 07DB-3V-10-60-01-Z07 between Palm Beach County and the State of Florida, Department of Community Affairs. All of these documents will be maintained on file at HCD. The Municipality shall keep an original of this Agreement, including its Exhibits, and all amendments thereto, on file at its principal office. 14. TERMINATION In event of termination for any of the following reasons, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, reports prepared, and capital equipment secured by the Municipality with funds under this Agreement shall be returned to HCD or the County. In the event of termination, the Municipality shall not be relieved of liability to the County for damages sustained by the County by virtue of. any breach of the Agreement by the Municipality, and the County maywithholdany payment tothe Municipalityforset-off purposes until such time as the exact amount of damages due to the County from the Municipality is determined. (1) TERMINATION FOR CAUSE If through any 'cause either party shall fail to fulfill in a timely and proper manner its obligations under this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement in whole or part by giving a fifteen (15) working day written notice of such termination to the other party and specifying therein the effective date of termination. (2) TERMINATION DUE TO CESSATION In the event the grant to the County under the Contract is suspended or terminated, this Agreement shall be suspended or terminated effective on the date the Sate specifies. Page 7 of 18 City of Delray Beach 15. SEVERABILITY OF PROVISIONS If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms -and requirements of applicable law. 16. AMENDMENTS The County may, at its discretion, amend this Agreement to conform with changes required by Federal, State, County, or U.S. HUD guidelines, directives,. and objectives. Such amendments shall be incorporated by written amendment as a part of this Agreement and shall be subject to approval of the Palm Beach. County Board of County Commissioners. Except as otherwise provided herein, no amendment to this Agreement shall be binding on either party unless in writing, approved by the Board of County Commissioners and the governing body of the Municipality; and signed by both parties. 17. NOTICES All notices required to be given under this Agreement shall be sufficient when delivered to HCD at its office at 160 Australian Avenue, Suite 500, West Palm Beach, Florida 33406, and to the Municipality when delivered to its address on page one. (1) of this Agreement. 18. INDEPENDENT AGENT AND EMPLOYEES The Municipality agrees that; in all matters relating to this Agreement, it will be acting as an independent agent and that its employees are not Palm Beach County employees and are not subject to the County provisions of the law applicable to County employees relative to employ- ment, hours of work, rates of compensation, leave, unemployment compensation and employee benefits. 19. NO FORFEITURE The rights of the County under this Agreement shall be cumulative and failure on the part of the County to exercise promptly any rights given hereunder shall not operate to forfeit orwaive any of the said rights. 20. PUBLIC ENTITY CRIMES As provided in F.S. 287.133 by entering into this Agreement or performing any work in furtherance hereof, the Municipality certifies that it, its affiliates, suppliers, subcontractors and consultants who will perform hereunder, have not been placed on the convicted vendor list. maintained by the State of Florida Department of Management Services within the 36 months immediately preceding the date hereof. This notice is required by F.S. 287.133 (3)(a). 21. COUNTERPARTS OF THE AGREEMENT This Agreement, consisting of eighteen (18l enumerated pages which include the exhibits referenced herein, shall be executed in three (3) counterparts, each of which shall be deemed to be an original, and such counterparts will constitute one and the same instrument. A copy of this Agreement shall be filed with the Clerk of the Circuit Court in and for Palm Beach County. THIS SPACE LEFT BLANK INTENTIONALLY Page 8 of 18 City of Delray Beach 22. ENTIRE UNDERSTANDING This Agreement and its provisions merge any prior agreements, if any, between the parties hereto and constitutes the entire understanding. The parties hereby acknowledge that there have been and are no representations, warranties, covenants, or undertakings other than those expressly set forth herein. WITNESS our Hands and Seals on this day of , 20_ (MUNICIPALITY SEAL BELOW) CITY OF DELRAY BEACH BY: Rita Ellis, Mayor By: Chevelle D. Nubin, City Clerk BY: ~ ~, Attorney for Municipality ~~~ d7 (Signature Optional) PALM BEACH COUNTY, FLORIDA, a Political Subdivision of the State of Florida FOR ITS BOARD OF COUNTY COMMISSIONERS By: Robert Weisman, County Administrator Approved as to Form and Approved as to Terms and Conditions Legal Sufficiency Dept. of Housing and Community Development By: By; Tammy K. Fields Amin Houry, Manager Senior Assistant County Attorney Housing and Capital Improvements S:1Cap Imprv12005DisasterRecoverylnitiativelDelrayi3each-NeighborhoodResourceCenterV,gmtMuni.wpd Page 9 of 18 City of Delray Beach EXHIBIT A WORK PROGRAM NARRATIVE THE MUNICIPALITY AGREES TO: A. PROFESSIONAL SERVICES: The Municipality shall procure the services of an engineering consultant forthis project to prepare specifications forthe hurricane protection ofwindows and doors at the below described Neighborhood Resource Center in the City of Delray Beach. The consultant shall also prepare, obtain and review bids, prepare contract documents, inspect work in progress, recommend payment to contractor and provide other professional services customarily provided for this type of project. The consultant shall also coordinate the design and construction work with the asbestos abatement contractor, should such abatement become necessary. Alternatively, the Municipality shall have the option of performing the consultant's services. described above by its own staff provided such staff possesses the necessary competency to do so. All costs associated with the above services shall be paid for by the Municipality B. PROJECT SCOPE :The scope of this. project subject to funding availability shall include improvements to the Neighborhood Resource Center (PCN: 12-43-46-17-23-006-0110) located at 141 S.W. 12~' Avenue in the City of Delray. The work includes installation of accordion shutters or impact resistant glass windows as well as the shutter protection and reinforcement of doors. NOTE 1: Cost Allocation -The total amount of $10,500 funded through this Agreement shall be allocated as follows: - An amount not to exceed $10,500 for the procurement and installation of hurricane protection ofwindows and doors. The Municipalityshall payall costs which exceed the above stated amounts. NOTE 2: The Municipality shall submit its bid package/specifications, and an itemized construction cost estimate prepared by its consultant, to HCD and obtain a letter of approval prior to bidding the construction work. The Municipality recognizes that HCD must obtain the approval of the State before it is able to provide such letter, and the Municipality hereby covenants that it shall plan its bid process to allow for the necessary time to fully accomplish this approval process. NOTE 3: The Municipality shall prioritize the work in the project, and shall bid such work in a manner that would allow the receipt of itemized costs from bidders which would then allow the award of items that can be funded by the budget provided that the extent of work awarded will result in a functioning facility in the opinion of HCD. NOTE 4: The Municipality shall not award the construction contract (or Purchase Order) for the project until sufficient funding is available to complete the established scope of work. All construction work shall be included. in one contract. The Municipality shall obtain HCD approval priorto awarding the construction contract to be funded through this Agreement. The Municipality recognizes that HCD must obtain the approval of the State before HCD is able to approve the award of the construction contract, and the Municipality hereby covenants that it shall plan its contract award process to allow for the necessary time to fully accomplish this approval process. After awarding such contract, the Municipality shall obtain HCD approval prior to executing any change orders to such contract. Furthermore, after awarding the construction contract, the Municipality shall provide HCD with a copy of the executed contract, and within thirty (30) days from the execution of the construction contract, the Municipality shall provide HCD with a copy of the prime contractor's schedule for the completion of the construction work under the contract. NOTE 5: Should the construction contract amount for this project exceed the amount to be funded by the Countyfor construction costs through this Agreement, then the Municipalityshall fund all amounts in excess of the amount to be funded by the County. The Municipality shall not request the County for reimbursement of any of the County's funds for construction costs until after it has expended all amounts in excess of the amount to be funded by the County. NOTE 6: The Municipality shall not request reimbursement from HCD for materials or equipment received and stored on the project site or elsewhere. The Municipality shall only request reimbursement for materials and equipment that have been installed. Page 10 of 18~ City of Delray Beach NOTE 5: Upon completion of the project, the Municipality shall cause its consultant to provide HCD a written certification. Such certification shall indicate that the project has met the specifications of the design, as may have been amended by change order, and the date of completion of construction. The Municipality further agrees that HCD, in consultation with any parties it deems necessary, shall be the final arbiter on the Municipality's compliance with the above. C. ASBESTOS REQUIREMENTS: The Municipalityshall complywithall applicable requirements contained in Exhibit D, attached hereto, for construction work in connection with the project funded through this Agreement. D. DAVIS-BACON ACT: The Municipality shall request the County toobtain aDavis-Bacon wage decision for the project prior to advertising the construction work. The Municipality shall incorporate a copy of the Davis-Bacon wage decision and disclose the requirements of the Davis-Bacon Act in its construction bid solicitation and contract. E. BONDING REQUIREMENTS: The Municipality shall comply with the requirements of 24CFR Part 85 in regard to bid guarantees, performance bonds, and payment bonds. F. CONSTRUCTION PAYMENT RETAINAGE: The Municipality shall apply a retainage of at least 5% on all construction draws which retainages shall be released in conjunction with the final draw upon satisfactory completion of the project. The Municipality agrees not to release such retainages until it has obtained approval from the County that the contractor and subcontractors have complied with the requirements of the Davis-Bacon Act. G. FORMER PROJECTS: The Municipalityshall maintain all previously completed CDBG funded projects. Failure to do so will result in forfeiture of future CDBG funds and will delay funding for ongoing activities. H. WORK SCHEDULE: The time frame for completion of the outlined activities shall be November 15. 2007. Complete Bid Documents by June 30, 2007 Advertise & Accept Bids by July 31, 2007 Award Contract/Issue P.O. by Aug. 31, 2007 Start Construction by Sep 15, 2007 Complete Construction by Oct 15, 2007 Submit Final Invoice by Nov. 15, 2007 REPORTS: The Municipality shall submit to HCD detailed monthly and semi-annual reports as described below: (a) MONTHLY REPORT: The Municipality shall submit to HCD detailed monthly progress reports in the from provided as Exhibit B to this Agreement. Each report must account for the total activity for which the Municipality is funded under this Agreement. The progress reports may be used by HCD as an additional basis for invoice reimbursement. (b) SEMI-ANNUAL REPORT: The Municipality shall submit to HCD detailed semi-annual reports in the from provided as Exhibit C to this Agreement. During the term of this Agreement, the Municipality shall each 3155 day of March submit such report for the prior six month period beginning on the preceding 155 day of October, and ending on said 315` day of March. In addition, during the term of this Agreement, the Municipality shall each 30`" day of September submit such report for the prior six month period beginning on the preceding 15` day of April, and ending on said 305'' day of September. J. USE OF THE PROJECT FACILITY: The Municipality agrees in regard to the use of the facility/property whose acquisition or improvements are being funded in part or in whole by CDBG funds as provided by this Agreement, that for a period often (10}years after the expi- ration date of this Agreement (as may be amended from time to time): (a) The Municipality may not change the use or planned use, or discontinue use, of the facility/property (including the beneficiaries of such use) from that for which the acquisition or improvements are made, unless the Municipality provides affected citizens with reasonable notice of, and opportunity to comment on, any such proposed change and either: Page 11 of 18 City of Delray Beach 1. The new use of the facility/property qualifies as meeting one of the national objectives defined in the regulations governing the CDBG program, and is riot a building for the general conduct of government; or 2. The requirements of paragraph (b} of this section are met. (b) If the Municipality determines after consultation with affected citizens, that it is appropriate to change the use of the facility/property to a use which does not qualify under paragraph (a) (1) of this section or discontinue the use of the facility/property, it may retain or dispose of the facility for such use if the County is reimbursed in the amount of the current fair market value of the facilitylproperty less any portion thereof attributable to expenditures of non-CDBG funds for acquisition of, or improvements to the facility/property. The final determination of the amount of any such reimbursement to the County under this paragraph shall be made by the County. (c) Following the reimbursement of CDBG funds by the Municipality to the County pursuant to paragraph (b) above, the facility/property will then no longer be subject to any CDBG requirements. The provisions of this clause shall survive the expiration of this Agreement. K. SECTION 3 REQUIREMENTS: The .Municipality agrees to comply with all Section 3 requirements applicable to contracts funded through this Agreement. Information on Section 3 is available at HCD upon request. The Municipality shall include the following, referred to as the Section 3 Clause, in every solicitation and every contract for every Section 3 covered project: Section 3 Clause (a) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U. S.C. 170 1 u (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD .,assistance or HUD-assisted. projects covered by Section 3, shall to the greatest extent feasible, be directed to low-and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (b) The parties to this contract agree to comply with HUD's requirements in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. (c) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice .advising the labor organization or workers representative of the contractor's commitment under this Section 3 clause, and will post copies of the notice inconspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions,-the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (d) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135. (e) The contractor will certify that. any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR Part 135 require employment opportunities to be directed, were notfilled to circumvent the contractor's obligations under 24 CFR Part 135. (f) Noncompliance with HUD's regulations in 24 CFR Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. Page 12 of 18 City of Delray Beach II. THE COUNTY AGREES TO: A. Provide funding for the above specified improvements as described above in "Project Scope", during the term of this Agreement, in the amount of $10,500. However, the County shall not provide any funding for the construction work until the Municipality provides documentation showing that sufficient funds are available to complete the project. B. Provide project administration and inspection to the Municipality to ensure compliance with U.S. HUD and the Department of Labor, and applicable State, Federal and County laws and regulations. C. Monitor the Municipality at any time during the term of this Agreement. Visits may be announced or unannounced as determined by HCD and will serve to ensure compliance with State and U.S. Department of HUD regulations, that planned activities are conducted in a timely manner, and to verify the accuracy of reporting to HCD on program activities. D. The County shall perform an environmental review of the project, and review and approve project design and bids submitted for the work. The County shall also perform Davis Bacon Act Labor Standards monitoring and enforcement. Environmental review costs incurred bythe County may be charged to the project budget identified above. E. Allowable costs that may be paid by the County under this Agreement in addition to those stated in II.A above: (a) Costs of asbestos surveys, asbestos abatement, and abatement monitoring. The County shall review requests by the Municipality forexpenditures onthe above items prior to undertaking the services associated with them, and approve any such expenditures it deems appropriate for this project. Page 13 of 18 City of Delray Beach EXHIBIT B PALM BEACH COUNTY HOUSING & COMMUNITY DEVELOPMENT MONTHLY NARRATIVE REPORT Report For: Month: Year: Subrecipient Name: City of Delray Beach Project Name: Neighborhood Resource Center Rehabilitation Project Report Prepared By: Name Signature Date BUDGETING AND EXPENDITURES Amounts Expended this Reporting Period: CDBG Funds:$ Other Funds:$ Amounts Expended to Date: llllll111llllllllllllllllNlllllllllllllllllll BUDGETED EXPENDED PERCENTAGE CDBG Funds: $10,500 $ Other Funds: $ $ Other Funds: $ $ TOTAL: $ $ Describe any changes in budgeted amounts during this reporting period and the source of funds: Describe your efforts to obtain any additional funds for the project during this reporting period (if your project is underfunded): PROJECT ACTIVITIES Describe your accomplishments during the reporting period: Describe any problems encountered during this reporting period: Other comments: Send report to: Amin Houry Department fo Housing and Community Development 160 Australian Avenue, Suite 500, West Palm Beach, FL 33406 S:ICa p I m prv120 DSDisasterRecoveryl niti ati ve1D a lreyBeach-Nei g h borh ood Reso u rceCenterWgm tM uni.wpd Page 14 of 18 V Mm W L d D O v U m X W d W a O m R a d `~ L ~ Q. oG a .I 0 N O M N U ~ a~ °- N O ~ a o C ~_ o ~ O O N f4 ~ L N ~L I.L (1 N Q C ,_, U U m o •I ~ o 0 a N o - t M O t ~ ~ L l0 ~_ ~ O Z U l4 ~ ~ O m N ~ ~ L ~ O O p U m ~ O ~ d1 z a d O Q a` ~ a~i 3 $ E o N d N 3 v ~ ~ q a ~- `o m ~ o U v~m~ W ~ m~Z~d c~~ c d _ E - v° d o~ Ep o d ~U EC7Zy U oN?o II W II II II v m~. ~mllzUa E ~UwUZtn d u' Q ~ W ` a X30 ~ ~ ~ M c u Q m ° o ~ ~ d ~N ~ ~' aa u ~ 2v~ o d O R '`'' $ r O m ~ w Qx0 ~ II II II ~ d ~p 2 ~ lo mr ~o wgray m m ' G 0 ~ U y K ~ i U V V z d a c v v ~ ~ o 3 waaa o Nv .~ d d ~ W d a ~1=~ v ~ ' " U ~ nW ~ t d m d m ~3mz=3 V .r...~ N M V W 0 Q U .. @ ~ ~o>~ E pa a(.7 VJ - W m fi ~u 0 y °c a d a w d ^ d ~ a t~ .~ 2 m H a v W ~ c m c ~. ~ c •- m °- e U mlSm `~ ~ do n m O ;a u ~ 9 u y ~_ °a a v a d d ~ ~rn~ Uo d ~ ~ 22 ~a i,° v b 2 ~ ~ ~-'c~' ° a E '~W Z ad o d ~$~ a i ' ~~ r n FzwO ~ u u u ~v~NCI U O s~ ~~ti c y a ~g ~~ E z a n E w ~' d E _ ~~m a d ` c a pQ" 4 ~ y N ®- `' h $ b ~ % C d d .-. ~ 9 g ~'9 m'$ o y c -a .O a«~°~~'o ~E N ~v10 ' N O d~ V c S ~~ O C Ex~ m~a °~ d ~ S~ o c° E ~ ~ ~ a E ~ B° d L m ~ m , . a E d 3 ~ a. E" d 'c y ..~cg'~Ln .? ~~^° o ~t~a i°pv ao~c E ~ y m m 'E c U n .d.. d d V N :_ ~ d r ~ 0 C =wt ~~O ~ O O O O O @Ey~ ~ - UvEum a~ d U V V d U ~ U d . "o3a o Y d s E m ~ d~9 d N Q N IV > N N ~ y~ d =m$ ~ N >, ( ~ N~ N ~ N~'c _~ d >'(6 ~ ~~ (6 d W G 30o E a Q zinUU> zcnUcn 6 zcnc~in z.inUin zinUin c ~=..=_3 W Page 15 of 18 City of Delray Beach EXHIBIT D ASBESTOS REQUIREMENTS SPECIAL CONDITIONS FOR DEMOLITION AND RENOVATION OF BUILDINGS The provisions of this part apply to all demolition and renovation work contemplated in this Agreement and described in Exhibit A of this Agreement. I. DEFINITIONS ACBM: Asbestos Containing Building Materials AHERA: Asbestos Hazard Emergency Response Act EPA: Environmental Protection Agency FLAC: Florida Licensed Asbestos Consultant HCD: Palm Beach County Department of Housing and Community Development NESHAP: National Emission Standards for Hazardous Air Pollutants NRCA: National Roofing Contractors Association NVLAP: National Voluntary Laboratory Accreditation Program OSHA: Occupational Health and Safety Administration PBCAC: Palm Beach County Asbestos Coordinator (in Risk Management) TEM: transmission electron microscopy 11. ASBESTOS SURVEYS All properties scheduled for renovation or demolition are required to have a comprehensive asbestos survey conducted by a Florida Licensed Asbestos Consultant ,(FLAC). The survey shall be conducted in accordance with AHERA guidelines. Analysis must be performed by a NVLAP accredited laboratory. For Renovation Projects (projects which will be reoccupied): - Point counting must be done for all asbestos containing building materials (ACBM) indicating less than 1 % asbestos (to determine if any asbestos is present). - Samples of vinyl floor file indicating asbestos not detected must be confirmed by transmission electron microscopy (TEM). - Joint compound shall be analyzed. as a separate layer. - Roofing material shall be sampled only if a renovation requires the roof to be disturbed (in lieu of sampling the roof, it may be presumed to contain asbestos). For Demolition Projects: - Point counting must be done for all "friable° asbestos containing building materials (ACBM), indicating less than 1% asbestos. This .includes joint compounds (to be analyzed as a separate layer), and vinyl asbestos tile. - Roof materialsshall be presumed to be asbestos containing. If the Municipality has a recent asbestos survey report prepared by a licensed asbestos consultant, a copy may be provided to HCD and PBCAC for review to determine if the survey is adequate to proceed with renovation/demolition work. If no survey is available, a survey may be initiated by the Municipality or requested by HCD. A copy of the completed survey will be forwarded to the Municipality. All asbestos survey's shall be forwarded to the PBCAC. III.. ASBESTOS ABATEMENT A. RENOVATION (a) Prior to a renovation, all asbestos containing materials that will be disturbed during the renovation, must be removed by a Florida Licensed Asbestos Contractor under the direction of a FLAC. Exceptions may be granted by HCD prior to the removal, (such as asbestos containing roofs, transite pipe). The Municipality must obtain approval for all exceptions from HCD. HCD will request the PBCAC to review and approve all exceptions. (b) Asbestos Abatement work may be contracted by the Municipality or by HCD upon request. (c) If the Municipality contracts the asbestos abatement, the following documents are required to be provided to the HCD and the PBCAC. 1. An Asbestos Abatement Specification (Work Plan), sealed by an FLAC. 2. Pre and Past Job submittals, reviewed and signed by the FLAC. Page 16 of 18 ._~~...~- ...............~.~ ~.~ . ,~..... ....... ,..~ N, vvtuc a wNy yr a tcac uUGUln6nt5 LV rDLHI.. 1. Signed statement that the demolition contractor has read and. understood the requirements for complying with EPA, OSHA and the State of Florida Licensing regulations for demolition of structures with asbestos materials. 2. Submit a plan for the demolition of asbestos containing roofing and floor tile. State if these materials are likely to remain intact. Include in the plan what shall occur if materials become "not intact". 3. Submit a plan for compliance with OSHA requirements such as but not limited to: competent person, establishing a regulated area, asbestos training of workers, respiratory protection, use of disposable suits, air monitoring, segregation of waste, containerizing asbestos waste, waste disposal. (g) If materials are discovered that are suspect asbestos materials thatwere not previously sampled, stop all work that will disturb these materials and immediately notify HCD. Paae 17 of 18 City of Delray Beach (d} If the Municipality requests HCD to contract the asbestos abatement, HCD will initiate the request through the PBCAC who will contract the asbestos abatement. HCD will provide a copy of all contractor and consultant documents to the Municipality. (e) Materials containing <1% asbestos are not regulated by EPA/NESHAPS. However, OSHA compliance is mandatory. OSHA requirements including training, wet methods, prompt cleanup in leak tight containers, etc. The renovation contractor must comply with US Dept of Labor, Standard Interpretation (OSHA), Compliance requirements for renovation work involving material containing <1% asbestos, 11/24/2003. The renovation contractor must submit a work plan to HCD and the PBCAC prior to removal of the materials. B. DEMOLITION All "friable" ACBM must be removed by a Florida Licensed Asbestos Contractor under the direction of a FLAC prior to demolition. Friable materials include: resilient asbestos the and mastic which is not intact, linoleum, asbestos containing joint compound, asbestos containing cement panels (e.g. transite), etc. Intact resilient the and asbestos roof materials may be demolished with adequate controls (e.g. wet method) by a demolition contractor provided the contractor is aware of the asbestos containing materials present and exercises adequate control techniques (wet methods, etc.). In all cases, demolition work should be monitored by a FLAC to insure proper control measures and waste disposal. Any exceptions to these guidelines maybe requested through HCD prior to the removal, (such as asbestos containing roofs, transite pipe). Exceptions may be granted by HCD prior to the removal, (i.e. asbestos containing roofs, transite pipe). The Municipality must obtain approval for all exceptions from HCD and the PBCAC. (a) Asbestos Abatement work may be contracted by the Municipality or by HCD upon request. (b) If the Municipality contracts the asbestos abatement; the following documents must be provided to the PBC/HCD and reviewed by the PBCAC. 1. An Asbestos Abatement Specification (Work Plan), sealed by an FLAC. 2. Pre and Post Job submittals, reviewed and signed by the FLAC. (c) If the Municipality requests HCD to contract the asbestos abatement, HCD will initiate the request through the PBCAC who will contract the asbestos abatement. HCD will provide a copy of.all contractor and consultant documents to the Municipality. (d) Recycling, salvage orcompacting of anyasbestos containing materials orthe substrate is strictly prohibited. (e) In all cases, compliance with OSHA "Requirements for demolition operations involving material containing <1% asbestos is mandatory. (f) For all demolitions involving asbestos containing floor tile, asbestos containing roofing material and materials containing <1 %, the Demolition Contractor shall submit the following documents to HCD. HCD will provide a copy of these documents to PBCAC. 1. Signed statement that the demolition contractor has read and understood the requirements for complying with EPA, OSHA and the State of Florida Licensing regulations for demolition of structures with asbestos materials. 2. Submit a plan for the demolition. of asbestos containing roofing and floor tile. State if these materials are likely to remain intact. Include in the plan what shall occur if materials become °not intact". 3. Submit a plan for compliance with OSHA requirements such as but not limited to: competent person, establishing a regulated area, asbestos training of workers, respiratory protection, use of disposable suits, air monitoring, segregation of waste, containerizing asbestos waste, waste disposal. (g) If materials are discovered that are suspect asbestos materials that were not previously sampled, stop all work that will disturb these materials and immediately notify HCD. Page 17 of 18 City of Delray Beach IV. NESHAPS NOTIFICATION A. RENOVATION A NESHAP form must be received by the Palm Beach County Health Department at least ten working days prior to an asbestos renovation that includes regulated asbestos containing material greater than 160 square feet or 260 linear feet or 35 cubic feet. For lesser quantities, the Municipality (or its contractor) shall provide a courtesy notification to the Palm .Beach County Health Department at least ten working days prior to an asbestos renovation. The removal of vinyl asbestos floor the and linoleum shall be considered regulated. Asbestos roof removal requires. a notification at least 3 working days prior to the removal. B. DEMOLITION A NESHAP form must be received by the Palm Beach County Health Department at least ten working days prior to the demolition. C. The NESHAP notification shall. be sent return receipt requested to the address shown below with a copy to HCD. HCD shall .provide a copy to the PBCAC. All fees shall be paid by the Municipality. Palm Beach County Department of Health Asbestos Coordinator 901 Evernia Street Post Office Box 29 West Palm Beach, Florida 33401 V. APPLICABLE ASBESTOS REGULATIONS/GUIDELINES The Municipality, through its demolition or renovation contractor, shall comply with the following asbestos regulations/guidelines. This list is not all inclusive: . (a) Environmental Protection Agency (EPA) NESHAP, 40 CFR Parts 61 Subpart M - National Emission standard for Asbestos, revised July 1991 (b) Occupational Health and Safety Administration (OSHA) Construction Industry Standard, 29 CFR 1926.1101 (c) EPA: A Guide to Normal Demolition Practices Under the Asbestos NESHAP, September 1992 (d) Demolition practices under the Asbestos NESHAP, EPA Region IV (e) Asbestos NESHAP Adequately Wet Guidance (f) Florida State Licensing, and Asbestos Laws 1. Title XVIII, Chapter 255, Public property and publicly owned buildings. 2. Department of Business and Professional Regulations, Chapter 469 Florida Statute, Licensure of Asbestos Consultants and Contractors (g) Resilient Floor Covering Institute, NRCI, Updated Recommended Work Practices and Asbestos Regulatory Requirements, September 1998. (h) Florida Roofing Sheet Metal and Air Conditioning Contractors Association, NRCA, June 1995 (i) US Dept of Labor, Standard Interpretation (OSHA) 1. Application of the asbestos standard to demolition of buildings with ACM in Place,8/26/2002. 2. Requirements for demolition operations involving material containing <1% asbestos, 8113/1999. 3. Compliance requirements for renovation work involving material containing c1% asbestos, 11/24/2003. S:1Capl mprv12005DisasterRecoverylnitiativelDelrayBeach-NeighborhoodResourceCenterlAgmtMuni.wpd Page 18 of 18 Agenda Item No.: V . AGENDA REQUEST Request to be placed on: Regular Agenda Special Agenda Workshop Agenda X Consent Agenda ORDINANCE/RESOLUTION REQUIRED: YES/NO Draft attached: YES/NO ITEM BEFORE THE COMMISSION: Date: May 23, 2007 When: June 4, 2007 Request to approve an agreement between the City and Palm Beach County to fund Neighborhood Resource Center hurricane protection/ shuttering program. RECOMMENDATION Staff recommends approval of the Agreement between the City and Palm Beach County so that the City may move forward in its implementation of the NRC shuttering project through the Disaster Recovery Initiative (DRI) Program. Department Head Signature: City AttorneyReview/Reco ndau n (if appli able): Budget Director Review (required on all items involving expenditure of funds): Funding Available: YES/NO Funding Alternatives: _ Account No. & Description: Account Balance: (if applicable) City Manager Review: Approved for Agenda: YES/NO Hold Until: Agenda Coordinator Review: Received: Placed on Agenda: MEMORANDUM To: MAYOR AND CITY COMMISSIONERS From: LULA BUTLER, COMMUNITY IMPROVEMENT DIRECTOR ELIZABETH ALPERT, CD ADMINISTRATOR Through: CITY MANAGER Subject: AGREEMENT BETWEEN THE CITY AND PALM BEACH COUNTY FOR EXTENSION OF MANGO DRIVE AND SW 7TH AVENUE ITEM BEFORE THE COMMISSION• Approval of an agreement between the City and Palm Beach County in order for the City to implement Disaster Recovery Initiative (DRI) funding in connection with the extension of Mango Road and SW 7`~' Avenue. BACKGROUND: At the July 11, 2006 meeting, City Commission approved a request for staff to apply through Palm Beach County Housing and Community Development for funds to assist in disaster relief, long term recovery, restoration of housing and infrastructure fixnding under the 2005 Department of Community Affairs Disaster Kecovery Initiative (DR)). Under this initiative the City was granted $252,500 in funding to extend the paving of Mango Drive and SW 7~' Avenue. By doing so, this will provide access to lots abutting each street on which developable lots exist, 7 of which will be utilized for construction of affordable housing by the Community Land Trust. Palm Beach County has entered into a Contract with the State of Florida, Department of Community Affairs, in connection with the State's 2005 DRI program, allowing the City to now be allocated the $252,500 in funding to begin project implementation for the extension of Mango Drive and SW 7~' Avenue. FUNDING SOURCE: Disaster Recovery Initiative RECOMMENDATION: Staff recommends approval of the Agreement betaveen the City and Palm Beach County so that the City maq move forward in its implementation of the extension of Mango Drive and SW 7~' Avenue through the Disaster Recovery Initiative (DRI) Program. Extension of Mango Drive Extension of SW 7th Avenue AGREEMENT BETWEEN PALM BEACH COUNTY AND CITY OF DELRAY-BEACH THIS AGREEMENT, entered into this day of , 20_, by and between Palm Beach County, a political subdivision of the State of Florida, and the City of Delrav Beach, a municipality duly organized and existing by virtue of the laws of the State of Florida, having its principal office at 100 NW 1st Avenue. Delray Beach. FL 33444. WHEREAS, Palm Beach County has entered into a Contract (number 07D6-3V-10-60-01-Z07) with the State of Florida, Department of Community Affairs, in connection with the State's 2005 Disaster Recovery Initiative Program which the State is implementing for the use of grant funds provided by the United States Departmentof Housing and Urban Development under its Community Development Block Grant Program; and WHEREAS, the C~ of Delray Beach was allocated certain funds under said Contract to implement specified activities under the 2005 Disaster Recovery Initiative Program; and WHEREAS, Palm Beach County desires to engage the Citv of Delrav Beach to implement the activities associated with the funds allocated to it. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, it is agreed as follows: PARTI DEFINITIONS, PURPOSE AND APPLICABLE CONDITIONS DEFINITIONS (1) "County" means Palm Beach County. (2) "CDBG" means the Community Development Block Grant Program of-the United States Department of Housing and Urban Development. (3) "HCD" means Palm Beach County Housing and Community Development. (4) "Municipality" means the Citv of Delray Beach. (5) "State" means the State of Florida, Department of Community Affairs. (6) "Contract" means contract number 07D6-3V-10-60-01-Z07 between Palm Beach County and the State of Florida, Department of Community Affairs. (7) "HCD Approval" means the written approval of the HCD Director or his designee. (8) "U.S. HUD" means the Secretary of Housing and Urban Development or a person authorized to act on its behalf. 2. PURPOSE The purpose of this Agreement is to state the covenants and conditions under which the Municipality will implement the Scope of Services set forth in Part II of this Agreement. Page 1 of 18 City of Delray Beach 3. APPLICABLE CONDITIONS The Municipality shall be bound by the Contract to the extent applicable to this Agreement. Furthermore, the conditions applicable to the activities undertaken in connection with this Agreement shall include but not. be limited to those listed below (as they may be amended from time to time). Palm Beach County's failure to list verbatim or make reference to a regulation, statute, ordinance, reference, or any other document affecting the Municipality, shall not relieve the Municipality of compliance with any applicable regulation, statute, ordinance, or any other document not listed below. The County reserves the right, but not the obligation, to inform the Municipality of any such applicable regulation, statute, ordinance, or any other document, and to require the Municipality to comply with the same. 1. CommunityDevelopmentBlock Grant, Final Rule, 24 C.F.R., Part 570; 2. Florida Small and Minority Business Act, s 288.702-288.714, F.S.; 3.Florida Coastal Zone Protection Act, s 161.52-161.58, F.S.; 4. Local Government Comprehensive Planning acid Land Development Regulation Act, Ch. 163, F.S.; S.Title I of the Housing and Community Development Act of 1974, as amended; 6. TreasuryCircular1075 regarding drawdown of CDBG funds; 7.Sections 290.0401-290.049, F.S.; 8. Rule Chapter 96-43, Fla Admin. Code.; 9. Department of Community Affairs Technical Memorandums; 10.HUD Circular Memorandums applicable to the Small Cities CDBG Program; 11.Single Audit Act of 1984; 12.National Environmental Policy Act of 1969 and other provisions of law which further the purpose of this Act; 13.National Historic Preservation Act of 1966 (Public Law 89-665) as amended and Protection of Historic Properties (24 C.F.R., part 800); 14.Preservation of Archaeological and Historical Data Act of 1966; 15.Executive Order 11593 -Protection and Enhancement of Cultural Environment; 16.Reservoir Salvage Act; 17.Safe Drinking Water Act of 1974, as amended; 18.Endangered • Species Act of 1958, as amended; 19.Executive Order 12898 - Envirohmental Justice 20.Executive Order 11988 and 24 C.F.R. Part 55- Floodplain Management; 21.The Federal Water Pollution Control Act of 1972, as amended (33 U.S.C., s 1251 et. seq.); 22.Executive Order 11990 -Protection of Wetlands; 23.Coastal Zone Management Act of 1968, as amended; 24.Wild and Scenic Rivers Act of 1968, as amended; 25.CIean Air Act of 1977; 26.HUD Environmental Standards (24 C.F.R. Part 58); 27. Farmland Protection Policy Act of 1981; 28.CIean Water Act of 1977; 29. Davis -Bacon Act; 30.Cont[act Work Hours and Safety Standards Act of 1962, 40 U.S.C. s. 327 et. seq.; 31.The Wildlife Coordination Act of 1958, as amended; 32.The Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1975 (42 U.S.C., s. 6901 et. seq.; 33.Noise Abatement and Control: Departmental Policy Implementation, Responsibilities and Standards, 24 C.F.R. Part 51, Subpart B; 34.FIood Disaster Protection Act of 1973, P.L. 92-234; 35.Protection of Historic and Cultural Properties under HUD Programs, 24 C.F.R. Part 59; 36.Coastal Zone Management Act of 1972, P.L. 92-583; 37.Architectural and Construction Standards; 38.Architectural Barriers Act of 1968, 42 U.S.C. 4151; 39.Executive Order 11296, relating to the evaluation of flood hazards; 40.Executive Order 11288, relating to prevention, control and abatement of water pollution; 41.Cost-Effective Energy Conservation Standards, 24 C.F.R., Part 39; 42.Section 8 Existing Housing Quality Standards, 24 C.F.R., Part 882; 43.Coastal Barrier Resource Act of 1982; 44. Federal Fair Labor Standards Act, 29 U.S.C. s. 201 et. seq.; 45.Title VI of the Civil Rights Act of 1964 - Non- discrimination; 46.Title VII of the Civil Rights Act of 1968 - Non- discrimination in housing; 47.Age Discrimination Act of 1975; 48.Executive Order 12892 -Fair Housing; 49.Section 109 of the Housing and Community Development Act of 1974, Non- discrimination; 50.Section 504 of the Rehabilitation Act of 1973 and 24 C.F.R., Part 8; 51. Executive Order 11063 -Equal Opportunity in Housing; 52.Executive Order 11246 -Non-discrimination; 53.Section 3 of the Housing and Urban .Development Act of 1968, as amended - Employment /Training of Lower Income Residents and Local Business Contracting; 54.Uniform Relocation Assistance and Real Property Acquisition PoliciesAct of 1970, P:L. 100-17, and 49 C.F.R. Part 24; 55.Copeland AntiOKickback Act of 1924; S6.Hatch Act; 57.Title IV Lead-Based Paint Poisoning Prevention Act (42 U.S.C. s. 1251 et. seq.); 58.OMB Circulars A-87, A-122. and A-133, as revised; 59.Administrative Requirements for Grants, 24 C.F.R. Part 85; 60.Section 102 of the Department of Housing . and Urban Development Reform Act of 1989 and 24 C.F.R. Part 12; 61.Emergency Rule 9BER05-2, CDBG Disaster Recovery Funds; 62.HUD program requirements for disaster recovery projects as published in Federal Register, Vol. 69, No. 237 (December 10, 2004) [Docket No. FR-4959 - N-01]. Page 2 of 18 City of Delray Beach PART tl SCOPE OF SERVICES The Municipality shall, in a satisfactory and proper manner as determined by HCD, perform the tasks necessary to conduct the program outlined in Exhibit "A" as attached hereto and made a part hereof. PART III COMPENSATION. TIME OF PERFORMANCE. METHOD. AND CONDITIONS OF PAYMENT 1. MAXIMUM COMPENSATION The Municipality agrees to accept as full payment for services rendered pursuant to this Agreement the actual amount of budgeted, eligible, and HCD Director ordesignee-approved expenditures and encumbrances made by the Municipality under this Agreement, which shall not be unreasonably withheld. Said services shall be performed in a manner satisfactory to HCD. In no event shall the total compensation or reimbursement to be paid hereunder exceed the maximum and total authorized sum of 252 500 (as more specifically detailed in Exhibit A hereto) for the period of June 15.2007, through and including July 31.2008. Any funds not obligated by the expiration date of this Agreement shall automatically revert to the County. 2. TIME OF PERFORMANCE The effective date of this Agreement and all rights and duties designated hereunder are contingent upon the timely release of funds forthis project under State Contract number 07D6- 3V-10-60-01-Z07. The effective date shall be the date of execution of this Agreement, and the services of the Municipality shall be undertaken and completed in light of the purposes of this Agreement. In any event, all services required hereunder shall be completed by the Municipality prior to July 31, 2008. 3. METHOD OF PAYMENT The County agrees to make payments and to reimburse the Municipality for all budgeted costs permitted by Federal, State, and County guidelines. The. Municipality shall not request reimbursement for payments made by the Municipality before the effective date of this Agreement, nor shall it request reimbursement for payments made after the expiration date of this Agreement, and in no event shall the County provide advance funding to the Municipality or any subcontractors hereunder. The Municipality shall request payments or reimbursements from the County by submitting tp HCD proper documentation of expenditures consisting of originals of invoices, receipts, or other evidence of indebtedness, and when original documents cannot be presented, the Municipality mayfurnish copies if deemed acceptable by HCD. Payment shall be made bythe Palm Beach County Finance Department upon presentation of the aforesaid proper documentation of expenditures as approved by HCD. The Municipality may at any time after the expiration of this agreement request from the County reimbursement for payments made by the Municipality during the term of this Agreement bysubmitting to HCD the aforesaid properdocumentation of expenditures, and the Palm Beach County Finance Department shall make payment as stated above, provided that HCD -has determined that the funds allocated to the Municipality through this agreement are still available for payment, and provided that HCD approves such payment. 4. CONDITIONS ON WHICH PAYMENT IS CONTINGENT (1) IMPLEMENTATION OF PROJECT ACCORDING TO REQUIRED PROCEDURES The Municipality shall implement this Agreement in accordance with applicable Federal, State, and County laws, ordinances and codes and with the procedures outlined in HCD Policies and Procedures memoranda. The Federal, State, and County laws, ordinances and codes are minimal regulations supplemented by more restrictive guidelines set forth by HCD. No payments for projects funded by more than one funding source will be made until a cost allocation plan has been approved by the HCD Director or designee. Should a project receive additional funding after the commencement of this Agreement, the Municipality shall notify HCD in writing within thirty (30) days of receiving notification from the funding source and submit a cost allocation plan for approval by the HCD Director or designee within forty-five (45) days of said official notification. Page 3 of 18 City of Delray Beach (2) FINANCIAL ACCOUNTABILITY The County may have a financial systems analysis and/or an audit of the Municipality, or of any of its subcontractors, by an independent auditing firm employed by the County or by the County Internal Audit Department at any time the County deems necessary to determine if the project is being managed in accordance with Federal, State, and County requirements. (3) SUBCONTRACTS Any work or services subcontracted hereunder shall be specifically by written contract, written agreement, or purchase order. All subcontracts shall be submitted by the Municipality to HCD and approved by HCD prior to execution of any subcontract hereunder. All subcontracts shall be subject to Federal, State and County laws and regulations. This includes ensuring that all consultant contracts and fee schedules meet the minimum standards as established by the Palm Beach County Engineering Department and U.S. HUD. Contracts for architecture, engineering, survey, and planning shall be fixed feecontracts. All additional services shall have prior written approval with support documentation detailing categories of persons performing work plus hourly rates including benefits, number. of drawings required, and all items that justify the "Fixed. Fee Contract." Reimbursables will be at cost. None of the work or services covered by this Agreement, including, but not limited to, consultant work or services, shall be subcontracted or reimbursed without prior written approval of the HCD Director or his designee. (4) PURCHASING All purchasing for services and goods, including capital-equipment, shall be made by purchase order or by a written contract and in conformity with the procedures prescribed by the Palm Beach County Purchasing Code, as well as Federal Manage- ment Circulars A-87, A-102, A-128, and 24CFR Part 85 (also known as the Common Rule), which are incorporated herein by reference. (5) REPORTS. AUDITS. AND EVALUATIONS Payment will be contingent on the timely receipt of complete and accurate reports required by this Agreement, and on the resolution of monitoring or audit findings identified pursuant to this Agreement. (6) ADDITIONAL HCD, COUNTY, AND U.S. HUD REQUIREMENTS HCD shall have the right under this Agreement to suspend or terminate payments if after 15 days written notice the Municipality has not complied with any additional conditions that may be imposed, at any time, by HCD, the County, the State, or U.S. HUD. (7) PRIOR WRITTEN APPROVALS-SUMMARY The following activities among others require the prior written approval of the HCD Director or designee to be eligible for reimbursement or payment: (a) All subcontracts and agreements pursuant to this Agreement; (b) All change orders; (c) All requests to utilize uncommitted funds after the expiration of this Agreement for programs described in Exhibit A. (8) PROGRAM-GENERATED INCOME All income earned by the Municipality from activities financed in whole or in part by funds provided hereunder must be reported to HCD. Such income would include, but not be limited to, income from service fees, sale of commodities, and rental or usage fees. The Municipality shall report its plan to utilize such income to HCD, and said plan shall require the prior written approval of the HCD Director or designee. Accounting and disbursement of such income shall comply with OMB Circular A-110 and other applicable regulations incorporated herein by reference. In addition to the foregoing, Program Income, as defined by 24 CFR 570.500(a), may be retained by the Municipality. Program Income shall be utilized to undertake activities specified in Exhibit A of this Agreement„ and all provisions of this Agreement shall apply to said activities. Any Program Income on hand at, or received after, the expiration of this Agreement shall be returned to the County. Page 4 of 18 City of Delray Beach PART IV GENERAL CONDITIONS OPPORTUNITIES FOR RESIDENTS AND CIVIL RIGHTS COMPLIANCE The Municipality agrees that no person shall on the ground of race, color, disability, national origin, religion, age, financial status, or sex be excluded from the benefits of, or be subjected to discrimination under any activity carried out by the performance of this Agreement. Upon receipt of evidence of such discrimination, the County shall have the right to terminate this Agreement. To the greatest extent feasible, lower-income residents of the project areas shall be given opportunities fortraining'and employment; and to the greatest feasible extent eligible business concerns located in or owned insubstantial part by persons residing in the project areas shall be awarded contracts in connection with the project. The Municipality shall comply with the Section 3 Clause of the Housing and Community Development Act of 1968. 2. OPPORTUNITIES FOR SMALL AND MINORITYNVOMEN-OWNED BUSINESS ENTERPRISES In the procurement of supplies, equipment, construction, or services to implement this Agreement, the Municipality shall make a positive effort to utilize small business and minority/women-owned business enterprises of supplies and services, and provide these sources the maximum feasible opportunityto compete for contracts to be performed pursuant to this Agreement. To the maximum extentfeasiblethesesmallbusinessandminority/women- owned business enterprises shall be located in or owned by residents of the CDBG areas designated by Palm Beach County in the CDBG Annual Consolidated Plan approved by U.S. HUD. 3. PROGRAM BENEFICIARIES At least fifty-one percent (51 %) of the beneficiaries of a project funded through this Agreement must be low- and moderate- income persons. The project funded under this Agreement shall assist beneficiaries as defned above for the time period designated in this Agreement. The Municipality shall provide written verification of compliance to HCD upon HCD's request. 4. EVALUATION AND MONITORING The Municipality agrees that HCD will carry out periodic monitoring and evaluation activities as determined necessary by HCD or the County and that payment,. reimbursement, or the continuation of this Agreement is dependent upon satisfactory evaluation conclusions based on the terms of this Agreement. The Municipality agrees to furnish upon request to HCD, the County, or the County's designees copies of transcriptions of such records and information as is determined necessary by HCD or the County. The Municipality shall submit status reports required under this Agreement on forms approved by HCD to enable HCD to evaluate progress. The Municipality shall. provide information as requested by HCD to enable HCD to complete reports required by the County or HUD. The Municipality shall allow HCD, the County, the State, or HUD to monitor the Municipality on site. Such visits may be scheduled or unscheduled as determined by. HCD, the State, or HUD. 5. AUDITS AND INSPECTIONS At any time during normal business hours and as often as HCD, the County, the State, U.S. HUD, or the Comptroller General of the United States may deem necessary, there shall be made available by the Municipality to HCD, the County, the State, U.S. HUD,. or the Comptroller General for examination all its records with respect to all matters covered by this Agreement. The Municipality agrees to comply with the provisions of the Single Audit Act of 1984, as amended, as it pertains to this Agreement. The Municipality shall submit a single audit, including any management letter, made in accordance with the genera! program requirements of OMB Circulars A-87, A-102, A-133, and other applicable regulations within one hundred and eighty (180) days after the end of any fiscal year covered by this Agreement in which Federal funds from all sources are expended. Said audit shall be made by a Certified Public Accouritant of the Municipality's choosing, subject to the County's approval. In the event the Municipality anticipates a delay in producing such audit or audited financial statements, the Municipality shall request an extension in advance of the deadline. The cost of said audit shall be borne by the Municipality. In the event the Municipality is exempt from having an audit conducted under A-133, the Municipality,shall submit audited financial statements andlor the County reserves the right to conduct a "limited scope audit" of the Municipality as defined by A-133. The County will be responsible for providing technical assistance to the Municipality, as deemed necessary by the County. Page 5 of 18 City of Delray Beach 6. DATA BECOMES COUNTY PROPERTY All- reports, plans, surveys, information, documents, maps, and other data procedures developed, prepared, assembled, or completed by the Municipality for the purpose of this Agreement shall be made available to the County by the Municipality at any time upon request by the County or HCD. Upon completion of all work contemplated under this Agreement copies of all documents and records relating to this Agreement shall be surrendered to HCD if requested. In any event the Municipality shall keep all documents and records for five (5) years after expiration of this Agreement. INDEMNIFICATION Each party to this Agreement shall be liable for its own actions and negligence and, to the extent permitted by law, the County shall indemnify, defend, and hold harmless the Municipality_against any actions, claims, or damages arising out of the County's negligence in connection with this Agreement, and the Municipality shall indemnify, defend, and hold harmless the County against any actions, claims, or damages arising out of the Municipality's negligence in connection with this Agreement. The Municipality shall also hold the State harmless against all claims of whatever nature arising out of the Municipality's performance of work under this Agreement, to extent allowed and required by law. The foregoing indemnification shall not constitute a waiver of sovereign,immunity beyond the limits set forth in Florida Statute, section 768.28, nor shall the same be construed to constitute agreement by either party to indemnify the other party for such other party's negligent, willful or intentional acts or omissions. The Municipality shall hold the County harmless and shall. indemnify the County for funds which the County is obligated to refund the State or the Federal Government arising out of the conduct of activities and administration of the Municipality. The provisions of this indemnification clause shall survive the termination of this Agreement. 8. INSURANCE Without waiving the right to sovereign immunity as provided by Florida Statute, Chapter 768.28, the Municipality reserves the right to self-insure for General Liability and Automobile Liability under Florida's sovereign immunity statute with coverage limits of $100,000 Per Person and $200,000 Per Occurrence; or such monetary waiver limits that may change and be set forth by the legislature. In the event the Municipality maintains Commercial General Liability or Business Auto Liability, the Municipality agrees to maintain said insurance policies at limits not less than $100,000 Per Person and $200,000 Per Occurrence. The Municipality agrees to endorse Palm Beach County Board of County Commissioners as an "Additional Insured" to the Commercial General Liability, but only with respect to negligence other than. County's negligence arising out of this project or Agreement. This paragraph does not apply to liability policies which afford only indemnity based claims-bill coverage. The Municipality agrees to maintain, or self-insure, Worker's Compensation & Employer's Liability insurance in accordance with Florida Statute, Chapter 440. The Municipality agrees to provide a statement, or Certificate of Insurance, evidencing insurance or self-insurance for the above required coverages, which the Municipality shall deliver to HCD at its office at 160 Australian Avenue, Suite 500, West Palm Beach, Florida 33406. The Municipality agrees its self-insurance or insurance shall be primary as respects to any.coverage afforded to or maintained by County. The Municipality agrees compliance with the foregoing insurance requirements is not intended to nor construed to relieve the Municipality of its liability and obligations under this Agreement. 9. MAINTENANCE OF EFFORT The intent and purpose of this Agreement is to increase the availability of the Municipality's services. This Agreement is not to substitute for or replace existing or planned projects or activities of the Municipality. The Municipality agrees. to maintain a level of activities and expenditures, planned or existing, for projects similar to those being assisted under this Agreement which is not less than that level existing prior to this Agreement. 10. CONFLICT OF INTEREST The Municipality covenants that no person who presently exercises any functions or responsibilities in connection with the Project, has any personal financial interest, direct or indirect, in the target areas or any parcels therein, which would conflict in any manner or degree with the performance of this Agreement and that no person having any conflict of interest. shall be employed by or subcontracted by the Municipality. Any possible conflict of interest on the part of the Municipality or its employees shall be disclosed in writing to HCD provided, however, that this paragraph shall be interpreted in such a manner so as not to unreasonably impede the statutory requirement that maximum opportunity be provided for employment of and participation of low and moderate-income residents of the project area. Page 6 of 18 City of Delray Beach 11. CITIZEN PARTICIPATION The Municipality shall cooperate with HCD in the implementation of the Citizen Participation Plan by establishing a citizen participation process to keep residents informed of the activities the Municipality is undertaking in carrying out the provisions of this Agreement. Representatives of the Municipality shall .attend meetings and assist HCD in the implementation of the Citizen Participation Plan, as requested by HCD. 12. RECOGNITION All facilities purchased or constructed pursuant to this Agreement shall be clearly identified as to funding source. The Municipality will include a reference to the financial support herein provided by HCD in all publications and publicity. In addition, the Municipalitywill make.agood faith effort to recognize HCD's support for all activities made possible with funds made available under this Agreement. 13. AGREEMENT DOCUMENTS The following documents are herein incorporated by reference and made a part hereof, and shall constitute and be referred to as the Agreement; and all of said documents taken as a whole constitute the Agreement between the. parties hereto and are- as fully a part of the Agreement as if they were set forth verbatim and at length herein: (1 } This Agreement, including' its Exhibits; (2} Office of Management and Budget Circulars A-87, A-102, A-133, and 24CFR Part 85; (3) _ Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Title It of the Americans with Disabilities Act of 1990; (4) Executive Orders 11246, 11478, 11625, 12432, the Davis Bacon Act, and Section 3 of the Housing and Community Development Act of 1968, and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended; (5) Executive Orders 11063, 12259, 12892, the Fair Housing Act of 1988, and Section 109 of the Housing and Community Development Act of 1974, as amended; (6) Florida Statutes, Chapter 112; (7) Palm Beach County Purchasing Code; (8) Federal Community Development Block Grant Regulations, (24 CFR Part 570), as amended; (9) The Municipality's personnel policies and job descriptions; and (10) The Municipality's Certificate of Insurance. (11) Contract number 07D6-3V-10-60-01-Z07 between Palm Beach County and the State of Florida, Department of Community Affairs. All of these documents will be maintained on file at HCD. The Municipality shall. keep an original of this Agreement, including its Exhibits, and all amendments thereto, on file at its principal office. 14. TERMINATION In event of termination for any of the fallowing reasons, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, reports prepared, and capital equipment secured by the Municipality with funds under this Agreement shall be returned to HCD or the County. In the event of termination, the Municipality shall not be relieved of liability to the County for damages sustained by the County by virtue of any breach of the Agreement by the Municipality, and the County maywithhold any payment tothe Municipalityforset-off purposes until such time as the exact amount of damages due to the County from the Municipality is determined. (1) TERMINATION FOR CAUSE If through any cause either party shall fail to fulfill in a timely and proper manner its obligations under. this Agreement, or if either party shall violate any of the covenants, agreements, or stipulations of this Agreement, either party shall thereupon have the right to terminate this Agreement in whole or part by giving a fifteen (15) working day written notice of such termination to the other party and specifying therein the effective date of termination. (2) TERMINATION DUE TO CESSATION In the event the grant to the County under the Contract is suspended or terminated, this Agreement shall be suspended or terminated effective on the date the Sate specifies. Page 7 of 18 City of Delray Beach 15. SEVERABILITY OF PROVISIONS If any provision of this Agreement as held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. 16. AMENDMENTS The County may, at its discretion, amend this Agreement to conform with changes required by Federal, State, County, or U.S. HUD guidelines, directives, and objectives. Such amendments shall be incorporated by written amendment as a part of this Agreement and shall be subject to approval of the Palm Beach County Board of County Commissiohers. Except as otherwise provided herein, no amendment to this Agreement shall be binding on either party unless in writing, approved by the Board of County Commissioners and the governing body of the Municipality, and signed by both parties. 17. NOTICES All notices required to be given under this Agreement shall be sufficient when delivered to HCD at its office at 160 Australian Avenue, Suite 500, West Palm Beach, Florida 33406, and to the Municipality when delivered to its address on page one (1) of this Agreement. 18. INDEPENDENT AGENT AND EMPLOYEES The Municipality agrees that, in all matters relating to this Agreement, it will be acting as an independent agent and that its employees are not Palm Beach County employees and are not subject to the County provisions of the law applicable to County employees relative to employ- ment, hours of work, rates of compensation, leave, unemployment compensation and employee benefits. 19. NO FORFEITURE The rights of the County under this Agreement shall be cumulative and failure on the part of the County to exercise promptly any rights given hereunder shall not operate to forfeit or waive any of the said rights. 20. PUBLIC ENTITY CRIMES As provided in F.S. 287.133 by entering into this Agreement or performing any work in furtherance hereof, the Municipality certifies that it, its affiliates, suppliers, subcontractors and consultants who will perform hereunder, have not been placed on the convicted vendor list maintained by the State of Florida Department of Management Services within the 36 months immediately preceding the date hereof. This notice is required by F.S. 287.133 (3)(a}. 21. COUNTERPARTS OF THE AGREEMENT This Agreement, consisting of eighteen (18) enumerated pages which include the exhibits referericed herein, shall be executed in three (3) counterparts, each of which shall be deemed to be an original, and such counterparts will constitute one and the same instrument. A copy of this Agreement shall be filed with the Clerk of the Circuit Court in and for Palm Beach County. THIS SPACE LEFT BLANK INTENTIONALLY Page 8 of 18 City of Delray Beach 22. ENTIRE UNDERSTANDING This Agreement and its provisions merge any prior agreements, if any, between the parties hereto and constitutes the entire understanding. The parties hereby acknowledge that there .have been and are no representations, warranties, covenants, or undertakings other than those expressly set forth herein. WITNESS our Hands and Seals on this (MUNICIPALITY SEAL BELOW) day of , 20_ CITY OF DELRAY BEACH BY: Rita Ellis, Mayor Chevelle D. Nubin, City C,le-rk-~~ ~~ Attorney for Municipality ~/ ~~~ (Signature Optional) `~~ PALM BEACH COUNTY, FLORIDA, a Political Subdivision of the State of Florida FOR ITS BOARD OF COUNTY COMMISSIONERS By: Robert Weisman, County Administrator Approved as to Form and Legal Sufficiency Approved as to Terms and Conditions Dept. of Housing and Community Development By: By: Tammy K. Fields ~ Amin Houry, Manager Senior Assistant County Attorney Housing and Capital Improvements S:\Caplm prv~2005DisasterRecoverylnitiativelDelrayBeach_MangoDr8SW7AveExtensionV~gmlMuni.wpd Page 9 of 18 City of Delray Beach .EXHIBIT A WORK PROGRAM NARRATIVE I. THE MUNICIPALITY AGREES TO: A. PROFESSIONAL SERVICES: The Municipality shall retain the services of an engineering consultant for this project to provide design services to create plans and specifications for the below described Mango Drive and SW 7th Avenue extensions located in the City of Delray Beach. The consultant shall also prepare, obtain and review bids, prepare contract documents, inspect work in progress, recommend payment to contractor and provide other professional services customarily provided by similar professionals on this type of project. The consultant shall also coordinate the design and construction work with the asbestos abatement contractor, should such abatement become necessary. The Municipality's engineering consultant for this project shall also provide the below described certification upon completion of the project. All costs associated with the above services shall be paid for by the Municipality. B. PROJECT SCOPE: The scope of this project subject to funding availability shall be include the for the following street improvements in the City of Delray Extension of Marigo Drive and SW 7~' Avenue to include paving, sidewalks and landscaping, and installation of sanitary sewer lines for Mango Drive in the specified locations as follows: Mango Drive: from end of pavement south approximately 600 lineal feet then east approximately 150 lineal feet to tie into the existing pavement on Reigle Avenue. SW 7`" Avenue: from SW 4'" Street north approximately 400 lineal feet to tie proposed street into the SW 7`" Avenue existing pavement. NOTE 1: CostAllocation -The total amount of $252,500 funded through this Agreement shall be allocated as follows: - An amount not. to exceed $170,910 for Mango Drive. - An amount not to exceed $87,590 for SW 7~' Avenue. The Municipality shall pay all construction costs which exceed the above stated amounts. NOTE 2: The Municipality shall submit its bid package/drawings/specifications, and. an itemized opinion of probable construction cost prepared by its consultant, to HCD and obtain a letter of approval prior to bidding the construction work. The Municipality recognizes that HCD must obtain the approval of the State before it is able to provide such letter, and the Municipality hereby covenants that it shall plan its bid process to allow for the necessary time to fully accomplish this approval process. NOTE 3: Construction work that has been approved for bidding by HCD shall be advertised for bid for a period of not less than twelve (12) days. NOTE 4: The Municipality shall prioritize the work in the project, and shall bid such work in a manner that would allow the receipt of itemized costs from bidders which would then allow the award of items that can be funded by the budget provided that the extent of work awarded will result in a functioning facility in the opinion of HCD. NOTE 5: The Municipality shall not award the construction contract for the project until sufficient funding is available to complete the established scope of work. All construction work shall be included in one contract. The Municipalityshallobtoin HCD approval prior to awarding the construction contract to be funded through this Agreement. The Municipality recognizes that HCD must obtain the approval of the State before HCD is able to approve the award of the construction contract, and the Municipality hereby covenants that it shall plan its contract award process to allow for the necessary time to fully accomplish this approval process. After awarding such contract, the Municipality shall obtain HCD approval prior to executing any change orders to such contract: Furthermore, after awarding the construction contract, the Municipality shall provide HCD with a copy of the executed contract, and within thirty (30) days from the execution of the construction contract, the Municipality shall provide HCD with a copy of the prime contractor's schedule for the completion of the construction work under the contract. Page 10 of 18 City of Delray Beach NOTE 6: Should the construction contract amount for this project exceed the amount to be funded by the County for construction costs through this Ag reement, then the Municipality shall fund all amounts in excess of the amount to be funded by the County. The Municipality shall not request the County for reimbursement of any of the County's funds for construction costs until after it has expended all amounts in excess of .the amount to be funded by the County. NOTE 7: The Municipality shall not request reimbursement from HCD for materials or equipment received and stored on the project site or elsewhere. The Municipality shall only request reimbursement for materials and equipment that have been installed. NOTE 6: Upon completion of the project, the Municipality shall cause its engineering consultant to provide HCD a written certification. Such certification shall indicate that the project has met the specifications of the design, as may have been amended by change order, and the date of completion of construction. The Municipality further agrees that HCD, in consultation with any parties it deems necessary, shall be the final arbiter on the Municipality's compliance with the above. C. ASBESTOS REQUIREMENTS: The Municipalityshall complywith all applicable requirements contained in Exhibit D, attached hereto, for construction work in connection with the project funded through this Agreement. D. DAVIS-BACON ACT: The Municipality shall request the County toobtain aDavis-Bacon wage decision for the project prior to advertising the construction work. The Municipality shall incorporate a copy of the Davis-Bacon wage decision and disclose the requirements of the Davis-Bacon Act in its construction bid solicitation and contract. E. BONDING REQUIREMENTS: The Municipality shall comply with the requirements of 24CFR Part 85 in regard to bid guarantees, performance bonds, and payment bonds. F. CONSTRUCTION PAYMENT RETAINAGE: The Municipalityshall apply a retainage of atleast 5% on all construction draws which retainages shall be released in conjunction with the final draw upon satisfactory completion of the project. The Municipality agrees not to release such retainages until it has obtained approval from the County that the contractor and subcontractors have complied with the requirements of the Davis-Bacon Act. G. FORMER PROJECTS: The Municipalityshall maintain all previously completed CDBG funded projects. Failure to do so will result in forfeiture of future CDBG funds and will delay funding for ongoing activities. H. WORK SCHEDULE: The time frame for completion of the outlined activities shall be JuIY 31. 2008. Complete Design & Bid Documents by Aug 31, 2007 Advertise & Accept Bids by Oct 15, 2007 Award Contract by Nov 30, 2007 Start Construction by Dec 31, 2007 Complete Construction by July 15, 2008 Submit Final Invoice by July 31, 2008 REPORTS: The Municipality shall submit to HCD detailed monthly and semi-annual reports as described below: (a) MONTHLY REPORT: The Municipality shall submit to HCD detailed monthly progress reports in the from provided as Exhibit B to this Agreement. Each report must account for the total activity for which the Municipality is funded under this Agreement. The progress reports may be used by HCD as an additional basis for invoice reimbursement. (b) SEMI-ANNUAL REPORT: The Municipality shall submit to HCD detailed semi-annual reports in the from provided as Exhibit C to this Agreement. During the term of this Agreement, the Municipality shall each 31S' day of March submit such report for the prior six month period beginning on the preceding 15` day of October, and ending on said 315 day of March. In addition, during the term of this Agreement, the Municipality shall each 30°i day of September submit such report for the prior six month period beginning on the preceding 15` day of April, and ending on said 30"' day of September. Page 11 of 18 City of Delray Beach J. USE OF THE PROJECT FACILITY: The Municipality agrees in regard to the use of the facility/property whose acquisition or improvements are being funded in part or in whole by CDBG funds as provided by this Agreement, that for a period of ten (10) years after the expi- ration date of this Agreement (as may be amended from time to time): (a) The Municipality may not change the use or planned use, or discontinue use, of the facility/property (including the beneficiaries of such use) from that for which the acquisition or improvements are made, unless the Municipality provides affected citizens with reasonable notice of, and opportunity to comment on, any such proposed change antl either: 1. The new use of the facility/property qualifies as meeting one of the national objectives defined in the regulations governing the CDBG program, and is not a building for the general conduct of government; or 2. The requirements of paragraph (b) of this section are met. (b) If the Municipality determines after consultation with affected citizens, that it is appropriate to change the use of the facility/property to a use which does not qualify under paragraph (a) (1) of this section or discontinue the use of the facility/propefij, it may retain or dispose of the facility for such use if the County is reimbursed in the amount of the current fair market value of the facility/property less any portion thereof attributable to expenditures of non-CDBG funds for acquisition of, or improvements to the facility/property. The final determination of the amount of any such reimbursement to the County under this paragraph shall be made by the County. (c) Following the reimbursement of CDBG funds by the Municipality to the County pursuant to paragraph {b) above, the facility/property will then no longer be subject to any CDBG requirements. The provisions of this clause shall survive the expiration of this Agreement. K. SECTION 3 REQUIREMENTS: The Municipality agrees to comply with all Section 3 requirements applicable to contracts funded through this Agreement. Information on Section 3 is available at HCD upon request. The Municipality shall include the following, referred to as the Section 3 Clause, in every solicitation and every contract for every Section 3 covered project: Section 3 Clause (a) .The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U. S.C. 170 1 u (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3, shall to the greatest extent feasible, be directed to low-and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (b) The parties to this contract agree to comply with HUD's requirements in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. (c) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a .notice advising the labor organization or workers representative of the contractor's commitment under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to-hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. {d) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. The contractor will- not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135. Page 12 of 18 City of Delray Beach (e} The contractor will certify that any vacant employment positions, including training positions, that are tilled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR Part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR Part 135. (f) Noncompliance with HUD's regulations in 24 CFR Part 135 may result in sanctions, termination of this contractfor default, and debarment or suspension from future HUD assisted contracts. II. THE COUNTY AGREES TO: A. Provide funding for the above specified improvements as described above in "Project Scope", during the term of this Agreement, in the amount of $252,500. However, the County shall not provide any funding for the construction work until the Municipality provides documentation showing that sufficient funds are available to complete the project. B. Provide project administration and inspection to the Municipality to ensure compliance with U.S. HUD and the Department of Labor, and applicable State; Federal and County laws and regulations. C. Monitor the Municipality at any time during the term of this Agreement. Visits may be announced or unannounced as determined by HCD and will serve to ensure compliance with State and U..S. Department of HUD regulations, that planned activities are conducted in a timely manner, and to verify the accuracy of reporting to HCD on program activities. D. The County shall perform an environmental review of the project, and review and approve project design and bids submitted for the work. The County shall also perform Davis Bacon Act Labor Standards monitoring and enforcement. Environmental review costs incurred by the County may be charged to the project budget identified above. E. Allowable costs that may be paid by the County under this Agreement in addition to those stated in II.A above: (a) Costs of asbestos surveys, asbestos abatement, and abatement monitoring. (b) Costs of any other services customarily associated with projects of the nature of the project contemplated by this Agreement'. The County shall review requests by the Municipality for expenditures on the above items prior to undertaking the services associated with them, and approve any such expenditures it deems appropriate for this project. Page 13 of 18. City of Delray Beach EXHIBIT B PALM BEACH COUNTY. HOUSING & COMMUNITY DEVELOPMENT MONTHLY NARRATIVE REPORT Report For: Month: Year: Subrecipient Name: City of Delray Beach Project Name: Mango Drive and SW 7°i Avenue Extensions Report Prepared By: Name Signature Date BUDGETING AND EXPENDITURES Amounts Expended this Reporting Period: CDBG Funds:$ Other Funds:$ Amounts Ex ended to Date: lllllllll11111111Nlllllllllllllllllllllllllll BUDGETED EXPENDED PERCENTAGE CDBG Funds: $ $ Other Funds: $ $ Other Funds: $ $ TOTAL:. $ $ Describe any changes in budgeted amounts during this reporting period and the source of funds: Describe your efforts to obtain any additional funds for the project during this reporting period (if your project is underfunded): PROJECT ACTIVITIES Describe your accomplishments during the reporting period: Describe any problems encountered during this reporting period: Other comments: Send report to: Amin Houry Department fo Housing and Community Development 160 Australian Avenue, Suite 500, West Palm Beach, FL 33406 S:\Caplmprv\2005DisasterRecoverylnitiative\DelrayBeach_MangoDr&S W 7AveEutensionWgmtMuni.wpd Page 14 of 18 L V R m m a R m D 0 w U U ~"' m X W H m R a d R a m ~ m O ~ O. 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DEFINITIONS ACBM: Asbestos Containing Building Materials AHERA: Asbestos Hazard Emergency Response Act EPA: Environmental Protection Agency FLAG: Florida Licensed Asbestos Consultant HCD: Palm Beach County Department of Housing and Community Development NESHAP: National Emission Standards for Hazardous Air Pollutants NRCA: National Roofing Contractors Association NVLAP: National Voluntary Laboratory Accreditation Program OSHA: Occupational Health and Safety Administration PBCAC: Palm Beach County Asbestos Coordinator {in Risk Management) TEM: transmission electron microscopy ASBESTOS SURVEYS All properties scheduled for renovation or demolition are required to have a comprehensive asbestos survey conducted by a Florida Licensed Asbestos Consultant ,(FLAG). The surveyshall be conducted in accordance with AHERA guidelines. Analysis must be performed by a NVLAP accredited laboratory. For Renovation Projects (projects which will be reoccupied): - Point counting must be done for all asbestos containing building materials (ACBM) indicating less than 1 % asbestos (to determine if any asbestos is present). - Samples of vinyl floor the indicating asbestos not detected must be confirmed by transmission electron microscopy (TEM). - Joint compound shall be analyzed as a separate layer. - Roofing material shall be sampled only if a renovation requires the. roof to be disturbed (in lieu of sampling the roof, it may be presumed to contain asbestos). For Demolition Projects: - Point counting must be done for all "friable" asbestos containing building materials (ACBM), indicating less than 1 % asbestos. This includes joint compounds (to be analyzed as a separate layer), and vinyl asbestos tile. - Roof materials shall be presumed to be asbestos containing. If the Municipality has a recent asbestos survey report prepared by a licensed asbestos consultant, a copy may be provided to HCD and PBCAC for review to determine if the survey is' adequate to proceed with renovation/demolition work. If no survey is available, a survey may be initiated by the Municipality or requested by HCD. A copy of the completed survey will be forwarded to-the Municipality. All asbestos survey's shall be forwarded to the PBCAC. III. ASBESTOS ABATEMENT A. RENOVATION (a) Prior to a renovation, all asbestos containing materials that will be disturbed during the renovation, must be removed by a Florida Licensed Asbestos Contractor under the direction of a FLAG. Exceptions may be granted by HCD prior to the removal, (such as asbestos containing roofs, transite pipe). The Municipality must obtain approval for all exceptions from HCD. HCD will request the PBCAC to review and approve all exceptions. (b} Asbestos Abatement work may be contracted by the Municipality or by HCD upon request. (c) If the Municipality contracts the asbestos .abatement, the following documents are ' required to be provided to the HCD and the PBCAC. An Asbestos Abatement Specification (Work Plan), sealed by an FLAG. Pre and Post Job submittals, reviewed and signed by the FLAG. Page 16 of 18 City of Delray Beach (d) If the Municipality requests HCD to contract the asbestos abatement, HCD will initiate the request through the PBCAC who will contract the asbestos abatement. HCD will provide a copy of all contractor and consultant documents to the Municipality. (e) Materials containing <1% asbestos are not regulated by EPA/NESHAPS. However, OSHA compliance is mandatory. OSHA requirements including training, wet methods, prompt cleanup in leak tight containers, etc. The renovation contractor must comply with US Dept of Labor, Standard Interpretation (OSHA), Compliance requirements for renovation work involving material containing <1°/u asbestos, 11/24/2003. The renovation contractor must submit a work plan to HCD and the PBCAC prior to removal of the materials. B. DEMOLITION All "friable" ACBM must be removed by a Florida Licensed Asbestos Contractor under the .direction of a FLAC prior to demolition. Friable materials include: resilient asbestos the and mastic which is not intact, linoleum, asbestos containing joint compound, asbestos containing cement panels {e.g. transite), etc. Intact resilient the and asbestos roof materials may be demolished with adequate controls (e.g. wet method) by a demolition contractor provided the contractor is aware of the asbestos containing materials present and exercises adequate control techniques (wet methods, etc.). In all cases, demolition work should be monitored by a FLAC to insure proper control measures and waste disposal. Any exceptions to these guidelines maybe requested through HCD prior to the removal, (such as asbestos containing roofs, transite pipe}. Exceptions may be granted by HCD prior to the removal, (i.e. asbestos containing roofs, transite pipe}. The Municipality must obtain approval for all exceptions from HCD and the PBCAC. (a) Asbestos Abatement work may be contracted by the Municipality or by HCD upon request. (b) If the Municipality contracts the asbestos abatement, the following documents must be provided to the PBC/HCD and reviewed by the PBCAC. 1. An Asbestos Abatement Specification (Work Plan), sealed by an FLAC. 2. Pre and Post Job submittals, reviewed and signed by the FLAC. (c) If the Municipality requests HCD to contract the asbestos abatement, HCD will initiate the request through the PBCAC who will contract the asbestos abatement. HCD will provide a copy of all contractor and consultant documents to the Municipality. (d) Recycling, salvageorcompactingofanyasbestoscontainingmaterialsorthesubstrate is strictly prohibited. (e) In all cases, compliance with OSHA "Requirements for demolition operations involving material containing <1% asbestos is mandatory. (f) For all demolitions involving asbestos containing floor tile, asbestos containing roofing material and materials containing <1 %, the Demolition Contractor shall submit the following documents to HCD. HCD will provide a copy of these documents to PBCAC. 1. Signed. statement that the demolition contractor has read and understood the requirements forcomplying with EPA, OSHA and the State of Florida Licensing regulatiohs for demolition of structures with asbestos materials. 2. Submit a plan for the demolition of asbestos containing roofing and floor tile. State if these materials are likely to remain intact. Include in the plan what shall occurif materials become "not intact". 3. Submit a plan for compliance with OSHA requirements such as but not limited to: competent person, establishing a regulated area, asbestos training of workers, respiratory protection., use of disposable suits, air monitoring, segregation of waste, containerizing asbestos waste, waste disposal. (g) If materials are discovered that are suspect asbestos materials that were not previously sampled, stop all work that will disturb these materials and immediately notify HCD. Page 17 of 18 City of Delray Beach IV. NESHAPS NOTIFICATION A. RENOVATION A NESHAP form must be received by the Palm Beach County Health Department at least ten working days prior to ari asbestos renovation that includes regulated asbestos containing material greater than 160 square feet or 260 linear feet or 35 cubic feet. For lesser quantities, the Municipality (or its contractor) shall provide a courtesy notification to the Palm Beach County Health Department at least ten working days prior to an asbestos renovation. The removal of vinyl asbestos floor the and linoleum shall be considered regulated. Asbestos roof removal requires a notification at least 3 working days prior to the removal. B. DEMOLITION A NESHAP form must be received by the Palm Beach County Health Department at least ten working days prior to the demolition. C. The NESHAP notification shall be sent return receipt requested to the address shown below with a copy to HCD. HCD shall provide a copy to the PBCAC. All fees shall be paid by the Municipality. Palm Beach County Department of Health Asbestos Coordinator 901 Evemia Street Post Office Box 29 West Palm Beach, Florida 33401 V. APPLICABLE ASBESTOS REGULATIONS/GUIDELINES The Municipality, through its demolition or renovation contractor, shall comply with the following asbestos regulations/guidelines. This list is not all inclusive: (a) Environmental Protection Agency -(EPA) NESHAP, 40 CFR Parts 61 Subpart M - National Emission standard for Asbestos, revised July 1991 {b) Occupational Health and Safety Administration (OSHA) Construction Industry Standard, 29 CFR 1926.1101 (c) EPA: A Gtiide to Normal Demolition Practices Under the Asbestos NESHAP, September 1992 (d) Demolition practices under the Asbestos NESHAP, EPA Region IV (e) Asbestos NESHAP Adequately Wet Guidance (f) Florida State Licensing and Asbestos Laws 1. Title XVIII, Chapter 255, Public property and publicly owned buildings. 2. Department of Business and Professional Regulations, Chapter 469 Florida Statute, Licensure of Asbestos Consultants and Contractors (g) Resilient Floor Covering Institute, NRCI, Updated Recommended Work Practices and Asbestos Regulatory Requirements, September 1998. (h) Florida Roofing Sheet Metal and Air Conditioning Contractors Association, NRCA, June 1995 (i) US Dept of Labor, Standard Interpretation (OSHA) 1. Application of the asbestos standard to demolition of buildings with ACM in Place,8/26/2002. 2. Requirements for demolition operations involving material containing <1 asbestos, 8/13/1999. 3. Compliance requirements for renovation work involving material containing <1%asbestos, 11/24/2003. S:\Capl m prv12005D isasterRecoveryl n itiativelDelrayBeach_Man go D r8S W 7AveExten sionlAgm tMu n i.wpd Page 18 of 18 Agenda Item No.: 8 . I `~ AGENDA RE QUE ST Request to be placed on: Regular Agenda Special Agenda Workshop Agenda X Consent Agenda ORDINANCE/RESOLUTION REQUIRED: YES/lv0 Draft attached: YES/NO ITEM BEFORE THE COMMISSION: Date: May 23, 2007 When: June 4, 2007 Request to approve an agreement between the City and Palm Beach County to fund the extension of Mango Drive and SW 7``' Avenue. RECOMMENDATION Staff recommends approval of the Agreement between the City and Palm Beach County so that the City may move forward in its implementation of the extension of Mango Drive and SW 7c6 Avenue through the Disaster Recovery Initiative (DRI) Program. Department Head Signature: City AttorneyReview/Recomm ndat' n applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available: YES/NO Funding Alternatives: Account No. & Description: Account Balance: (if applicable) City Manager Review: Approved for Agenda: YES NO Hold Until: Agenda Coordinator Review: Received: Placed on Agenda: MEMORANDUM To: MAYOR AND CITY COMMISSIONERS From: LULA BUTLER, COMMUNITY IMPROVEME IRECTO ELIZABETH ALPERT, CD ADMINISTRATOR Through: CITY MANAGER ~ I ~1` Subject: AGENDA ITEM # ~~~ -REGULAR MEETING OF JUNE 4, 2007 AGREEMENT BETWEEN THE CITY AND AMERICAN LEGION HALL AND CORDOBA CONSTRUCTION FOR REPLACEMENT OF ROOF AT 196 NW 8TH AVENUE (CARING KITCHENI ITEM BEFORE THE COMMISSION: Approval of an Agreement between the City and Cordoba Construction and American Legion Hall so that the City may act as the agent for the re-roofing project at 196 NW 8th Avenue (Caring Kitchen). BACKGROUND: At the May 15, 2007 meeting City Commission approved a request to amend the Cit~s 06-07 Annual Action Plan to provide $35,000 in CDBG funds for the rehabilitation of public facilities within the target area. This amendment was made in res~onse to a severe need which has been identified at the Caring Kitchen, located at 196 NW 8 Avenue. Subsequently, the City issued a request for Bids for re-roofing the structure which is owned by the American Legion Hall and leased bythe Caring Kitchen. This request is for approval of an agreement in the amount of $16,900 to award the project to the lowest responsive bidder, Cordoba Construction. FUNDING SOURCE: Community Development Block Grant - 118.1963.554.4919 RECOMMENDATION: Staff recommends approval of the agreement so that the City may move forward the implementation of the re-roofing project located at 196 NW 8`h Avenue. CITY OF DELRAY BEACH AMERICAN LEGION HALVCARING KITCHEN CONTRACT THIS AGREEMENT made this day of , 2007, by and between CORDOBA CONSTRUCTION, (hereinafter called the Contractor), the CITY OF DELRAY BEACH, FLORIDA (hereinafter called the "City"), and AMERICAN LEGION HALL (hereinafter referred to as the "Owner"), whose residence and project address is: 196 N.W. 8"' Avenue, Delray Beach, FL 33444. WITNESSETH, that the City, the Contractor and the Owner for the considerations stated herein mutually agree as follows: ARTICLE 1 -Statement of Work. The Contractor shall furnish all supervision, technical personnel, labor, materials, equipment and all other appurtenances thereto and perform and complete all work in accordance with the contract documents as prepared by the City of Delray Beach. ARTICLE 2 -The Contract Price. The City shall pay the Contractor for the performance of the contract the sum of Sixteen Thousand Nine Hundred Dollars ($16,900.00). ARTICLE 3 -Method of Payment. Upon execution of this Agreement, the City will transfer Eight Thousand Four Hundred Fifty Dollars ($8,450.00), which equals' of the $16,900 total funding allocation to the Contractor, upon completion of the roof replacement work, a second and final payment in the amount of Eight Thousand Four Hundred Fifty ($8,450.00) will be made so long as the following has been completed prior to final payment: 1. The Contractor executes a lien release and warranty on forms fumished by the City, relative to work performed, materials furnished, and certification that all amounts due for labor and/or materials have been paid. The Contractor, by execution of the conrtract, holds the City and property Owner harmless from all Gaims or liens for labor or materials fumished or used in performance of the work covered by this contract, whether fumished or used by the Contractor or any subcontractor. 2. The Contractor and the Owner agree to defend, indemnify, and hold harmless the City and its officers, agents, and employees from and against any and all suits, claims, actions, legal proceedings, demands, or liabilities (and any and all costs, expenses, liabilities, including attorney's fees associated therewith, made against the City which arise, directly, or indirectly from the Contractor's or Owner's negligent acts, errors or admission during performance under this Agreement. 3. The City conducts a final inspection and approves and accepts all work performed by the Contractor. Final acceptance of the job shall not subject the City to any legal responsibility or liability of any kind. The parties agree that the City is not a signatory to this contract and does not have any responsibilities under this contract either express or implied, except to settle disputes between the parties which do not constitute a breach of contract, to conduct a final inspection to approve work performed by the Contractor, and to hold and distribute funds. In the event that the performance by the Contractor is 2 unsatisfactory or unacceptable for any reason, the Contractor agrees to correct any deficiencies at no additional cost to the City. ARTICLE 4 -The Contractor will guarantee work performed to be free from defects for a period of one (1) year from the date of final acceptance of all work required by the contract. If any defects appear during the warranty year, the Contractor will correct as expeditiously as possible within thirty (30) days notice of need for same. ARTICLE 5 -The Contract. The executed contract documents shall consist of the following: a. This Agreement, b. Instructions to Bidder, c. Signed Copy of Bid, d. General Conditions, e. Special Conditions, f. Technical Specifications, g. Work. Write-up Drawings, h. Notice to Proceed, i. Payment Requests, j. Warranty Documents. ARTICLE 6 -Statement of Non-discrimination. The Contractor shall ensure that employees and applicants for employment are not discriminated against because of their race, color, religion, sex or national origin. 3 ARTICLE 7 -Dispute Resolution. All internal disputes between the Owner and Contractor arising out of or related to the work shall be decided by Program Administrators. All other disputes constituting a breach of this agreement, which cannot be resolved by the Owner and Contractor, shall be resolved by a Court of competent jurisdiction pursuant to the laws of the State of Florida with venue in Palm Beach County, Florida. THIS AGREEMENT, together with other documents enumerated in this Article 5, which said other documents are as fully a part of the Contract as if hereto attached or herein repeated, forms the Contract between the parties hereto. In the event that any provisions in any component part of this Contract conflicts with any provision of any other component part, the provision of the component part first enumerated in this Article 5 shall govern, except as otherwise specifically stated. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in three {3) original copies on the day and year first above written. ATTEST: Contractor Signature ATTEST: Contractor Firm Name Owner Signature Owner Signature 4 ATTEST: City Clerk Approved as to Form: CITY OF DELRAY BEACH, FLORIDA By: Rita Eltis, Mayor City Attorney CITY OF DELRAY BEACH AMERICAN LEGION HALUCARING KITCHEN NOTICE TO PROCEED Application Number: Date: Subject: NOTICE TO PROCEED REHABILITATION AT 196 N.W. 8"' Avenue Delray Beach, FL 33444 Pursuant to the local guidelines set by the Community Development Block Grant Program and approved by the City, you are hereby given Notice to Proceed with the work at the above referenced property within three (3) calendar days of ,establishes that the work be completed within forty-five (45) days of Please acknowledge receipt of this Notice to Proceed as provided below and return the original signed copy to the City of Delray Beach, Community Improvement, 100 Northwest 1st Avenue, Delray Beach, Florida 33444. Date Owner Owner This acknowledges the above notice was received, which establishes the completion date on: City of Delray Beach Cordoba Construction Community Development Program Administrator Date Authorized Signature & Title 6 Agenda Item No.: V •~ AGENDA REQUEST Request to be placed on: Regular Agenda Special Agenda Workshop Agenda X Consent Agenda Date: May 30, 2007 When: June 4, 2007 ORDINANCE/RESOLUTION REQUIRED: YES/NO Draft attached: YES/NO ITEM BEFORE THE COMMISSION: Approval of an Agreement between the City and Cordoba Construction and American Legion Hall so that the City may act as the agent for the re-roofing project at 196 NW 8th Avenue (Caring Kitchen). RECOMI~~NDATION Staff recommends approval of the agreement so that the City may move forward the implementation of the re-roofing project located at 196 NW 8~` Avenue. Department Head Signature: ~~/~/l City AttorneyReview/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding Available: ES NO ~ t' r~~J Funding Alternatives: d applic ble) JJ Account No. & Description: - ~ ~ ~ ` ~Orhm IiGhi-I Account Balance: ` (JJJ City Manager Review: Approved for Agenda: ~O Hold Until: L~~lrlPry~ `rV ks~ Agenda Coordinator Review: Received: Placed on Agenda: ~' MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: R. BRIAN SHUTT, ASST. CITY ATTORNEY THROUGH: CITY ATTORNEY DATE: MAY 31, 2007 Q SUBJECT: AGENDA ITEM # U ~ ~ -REGULAR MEETING OF J ROADWAY TRANSFER AGREEMENT WITH FDOT ITEM BEFORE COMMISSION The attached agreement provides for the transfer of Depot Road from NW 2"d Avenue to Lake Ida Road (0.461 miles) to the City from FDOT. BACKGROUND The City requested that FDOT transfer the right-of--way in order to allow the City to make certain site changes regarding the old train station property (owned by the City) and its use by the City. The City shall accept the responsibility for the operation and maintenance of the road. FUNDING SOURCE N/A RECOMMENDATION Star recommends approval. Florida Department of Transportation CHARLIE CR(ST PLANNING AND ENVIRONMENTAL MANAGEMENT -DISTRICT 4 STEPHANIE C. KOPELOUSOS GOVERNOR 3400 West Commercial Blvd., Ft. Lauderdale, FL 33309-3421 SECRETARY Telephone: (954) 777-4601 Fax: (954) 777671 Toll Free Number: 1-866-336-8435 May 8, 2007 Ms. Susan A. Ruby, Esq. City Attorney City of Delray Beach 200 NW l St Avenue Delray Beach, FL 33444 Dear Ms. Ruby: SUBJECT: Depot Road from NW 2"d Street to Lake Ida Road Proposed Roadway Transfer from FDOT to city of Delray Beach Thank you for your correspondence of April 17, 2007 referring to the subject roadway. The attached location map notes a segment of Depot Road which was realigned and reconstructed by the FDOT during the construction of I-95. We are interested in transferring this section of Roadway from the FDOT to the City of Delray Beach. The general steps required for a roadway transfer are: 1. Mutual Agreement for the Roadway Transfer The City of Delray Beach and the Department agree upon language for a Transfer Document in accordance with Chapter 335.0415, Florida Statues. Attached is a generic Transfer Agreement for your review. Please note any revisions or suggestions and return a copy. 2. Final Transfer Agreement Signatures After the Department and City agree upon language for the Transfer Agreement our office will prepare the final Transfer Agreement and have it signed by the District Secretary. Three originals will then be sent to the City for execution. One original will be returned to the City following FDOT Secretary approval so let me know if you require more than one original for your files. 3. City Commission Resolution The Department requests the Commission to adopt a resolution authorizing the execution of the Transfer Agreement (certified commission minutes may be substituted for a resolution). This resolution must be attached to the finalized Transfer Agreement. The resolution would include language that identifies the following items: REGEIVE~ MAY 1 12007 www.dot.state.fl.us CITY ATTORNEY Resolution number • Name of involved local governmental entity Description and limits of the transfer • The Commission's agreement for the transfer Authorization for the Chairperson to sign the Transfer Agreement • Statement that the Resolution authorizes the execution of the Transfer Agreement and the City recognizes and accepts the terms and conditions found therein. • Date passed and adopted • Signatures 4. Final Approval by FDOT Secretary After signing the Transfer Agreements the City would return all originals to the Department, together with two (2) original or certified copies of the resolution authorizing the Commission to enter into and execute the Agreement. The transfer package is then forwarded to the FDOT Secretary in Tallahassee for final approval. 5. City Notification Following approval by the FDOT Secretary, FDOT will notify the City by registered mail of the roadway transfer, an original will be returned to the City for its records. The FDOT Right-of - Way Office will then record the roadway and property transfer to the City. The process normally requires several months to complete. Please contact me (954)777-4653 (douf;.ohara(a~dot.state.fl.us) if you have any question regarding this information. Thank you for your assistance with the coordination for this roadway transfer. Sincerely, tr/ (/ J. Douglas O'Hara District Statistics Administrator JDO:jdo Attachments: Location Map, Draft Transfer Agreement cc: Steve Braun, Asst. District Planning and Environmental Engineer Mel Pollack, FDOT Palm Beach County Operations Engineer File: 4350.17 FDOT/CITY OF DELRAY BEACH ROADWAY TRANSFER AGREEMENT Depot Road from NW 2"d Avenue to Lake Ida Road (0.461 Miles) THIS AGREEMENT, made and entered into this day of , 2007 by and between the FLORIDA DEPARTMENT OF TRANSPORTATION, anagency ofthe State of Florida, hereinafter called the DEPARTMENT, and the City of Delray Beach, hereinafter called the CITY; WITNESSETH WHEREAS, the DEPARTMENT, has requested the transfer of a portion of SW 31st Street to the CITY Road System, and this transfer is mutually agreed upon, bete-een the CITY and the DEPARTMENT and, NOW, THEREFORE, THIS INDENTURE 4~'iTNESSETN: in consideration of the mutual covenants and promises herein contained, and for other good and ~ a}uable consideration, the receipt and adequacy of which are hereby acknowledged, the CITY and the DEPARTMENT agree as set forth below: 1. This Agreement sets forth the terms and conditions under ~~hich the CITY and the DEPARTMENT will abide, commencing on the date of ap~~roual by the DEPARTMENT'S Secretary. (a) The CITY accents all responsibility for operation and maintenance of Depot Road from NW 2"d Avenue to Lake ida Road (0.461 Miles) as depicted on the Location Map attached hereto as Exhibit A. In addition to the roadbed, this agreement includes all curbs, culverts, bridges, and drainage structures ti~ithin the right-ot=~~~a<< at the time of transfer. (b) The D~PARTh-TENT ~i~~es up all right to the roadway, except as may be specified in this agreement. (c) It is agreed that all obligations of the DEPARTMENT, under any maintenance, or utility agreement or other such agreement, relating to the road to be transferred, as listed below, shall be transferred, at the same time and in the same manner as jurisdictional responsibility. • No a~-cements found (d) The transfer of jurisdiction of the road shall be effective following approval of the DEPARTMENT Secretary and theright-of--way map reflecting the transfer shall be recorded in the Public Records of Palm Beach County, Florida. 2. All words used herein in the singular form shall extend to and include the plural. All words used in the plural form shall extend to and include the singular. All words used in any gender shall extend to and include all genders. Transfer Agreement Depot Road City of Delray Beach Page 2 of 3 3. This Agreement embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein, and this Agreement shall supersede all previous communication, representation, or agreements, either verbal or writtezi, between the parties hereto. 4. This Agreement shall be governed by and construed in accordance with. the laws of the State of Florida. 5. For communication purposes, the parties may be reached at the fol}owing addresses and phone numbers. Florida Department of Transportation J. Douglas O'Hara District 4 Planning & Environmental Office 3400 West Commercial Blvd. Fort Lauderdale, Florida 33309 Telephone: (954)777-4601 Fax: (954) 777-4671 City of Delray Beach Susan A. Ruby City Attorney City of Delray Beach 200 NW 1 s~ Avenue DekayBeach, Florida 33444 Telephone (561)243-7090 Fax (561)278-4755Ci. 6. Each party is an independent contractor and is not an agent of the other party. Nothing contained in this Agreement shall be constn~ed t~7 create any fiduciary relationship between the parties, during or after the performance o f th i s Agreement. Neither party shall have the authority to bind the other party to an~~ o b 1 i gation whatsoever to any third party without the express specific written consent of the other. 7. No modification, amendment, or alteration in the terms of conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. If any part of the Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction or by any other legally constituted body having the jurisdiction to make such determination, the remainder of this Agreement shall remain in full force and effect provided that the part of this Agreement thus invalidated or declared unenforceable is not material to the intended operation of the Agreement. Transfer Agreement Depot Road City of Delray Beach Page 3 of 3 IN WITNESS WHEREOF, the parties hereto have caused these presents tc~ be executed, the day and year first above written. CITY OF DELRAY BEACH BY: Rita Ellis., Mayor Board of City Commissioners APPROVED AS TO FORM Sushi A. Rubv_ ,Esq. City Attorney ATTEST: B~' STATE OF FLORIDA DEPARTMENT OF TRAN SPORTATION James A. Wolfe, P.E. District 4 Secretary APPROVED AS TO FORM Laurice Mayes, Esq. District 4 Legal Counsel ATTEST t~ O fLf ~ ~ o Z Y U ~ N t J U ~` ~ w Q m N ii• E ~ ~ a ~ ~ N ~ W + O N z~~~ -_ Z z ~ O ~tFi~!i!l,I i~I ",s"`" sue' ~'ti~~:Yk~~lE~i ~ T`~~ ~` ~ ~%~r ^. l '~ ~ 'C3 ~ ~e._ r .~:~ 1"' ~y ~ v J 0 i,H7Y.K 7f ~ IU~~'- P a, y ' v ~ L i- z ~ c ~`~ ~ -~ f0 ~ ~ . •1~+ E ~, ~: ~ ° ~ o :~ ^ ,.. ~~ a L p ^ ~~ a^a - - - __ ,".~~ I .J, i MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS ~---_. FROM: R. BRIAN SHUTT, ASST. CITY ATTORNEY THROUGH: CITY ATTORNEY DATE: MAY 30, 2007 SUBJECT: AGENDA ITEM # U • ~ ~ -REGULAR MEETING OF JUNE 4, 2007 RECONFIGURATION PLANNING PHASE AGREEMENT -MOTOROLA ITEM BEFORE COMMISSION The attached agreement provides that Motorola shall start the reconfiguration planning phase of relocating the City's public safety communications system from its existing channels, in the 800 MHz range, to other licensed channels not located in the 800 MHz range. BACKGROUND In 2004 the FCC issued an order modifying its rules regarding the 800 MHz band to minimize harmful interference to public safety communications systems. As a result of the order, public safety communications systems shall cease (after a period of time) using channels in the 800 MHz band. The cost of the planning phase reconfiguration is $35,437.00 and such cost will be borne by Nextel. This is the first step in the reconfiguration of the City's public safety communications system. This reconfiguration, moving public safety systems out of the 800 MHz band, is occurring nationwide and Nextel is required to pay the cost of the reconfiguration and relocation of channels. FUNDING SOURCE N/A RECOMMENDATION Staff recommends approval. Reconflguratlon Planning Phase Agreement (Planning Phase Services Only; No Equipment, Software, or Implementation Phase Services) Motorola, Inc. ("Motorola"} and City of Delray Beach ("Licensee"), whose main address is 300 West Altantic Blvd., Delray Beach, FL 33444, enter into this Reconfiguration Planning Phase Agreement ("Agreement"), pursuant to which Licensee will purchase and Motorola will sell the Reconfiguration Planning Phase services described below. Motorola and Licensee maybe referred to individually as a "Party" and collectively as the "Parries." This Agreement is made with reference to the following recitals. A. On August 6, 2004, the FCC issued Report and Order FCC 04-168 that modified its rules governing the 800 MHz bawd to minimize harmful interference to public safety communications systems. On December 22, 2004, the FCC issued a Supplemental Order and Order on Reconsideration FCC 04-294. The August 6 and December 22, 2004 orders, and any supplemental orders the FCC issues, are collectively referred to as the "Order." 8. Pursuant to the Order, certain licensees of 800 MHz channels used in public safety or other systems must relinquish their existing channels and relocate their systems to other licensed channels ("Replacement Channels"); and Nextel must relinquish some of its existing channels and must provide and pay relocation funds ("Relocation Funds"} to enable affected licensees to relocate their systems onto Replacement Channels and reconfigure their systems so that they are "Comparable Facilities" {as defined below). C. The FCC has appointed a Transition Administrator ("TA") to assure that the rebanding initiative proceeds on schedule and in a planned and coordinated nmanner so that disruption to a licensee's system is minimized. In the TA's published "Reconfiguration Handbook," the two major phases to accomplish the reconfiguration are described as the "Reconfiguration Planning Phase" and the "Reconfiguration Implementation Phase: ' D. Licensee has selected Motorola to provide Reconfiguration Planning Phase services. For good and valuable consideration, the Parties agree as follows: Section 1 DEFINITIONS In addition to the defined terms above, capitalized terms in this Agreement have the following meanings: 1.1. "Comparable Facilities' means the Licensee's System (including the subscriber radio equipment) have at minimum the same operational capabilities that existed before relocation, specifically (I) equivalent channel capacity; (2) equivalent signaling capacity, baud rate, and access time; (3) coextensive geographical coverage; and (4) equivalent operating costs. 1.2. "Confidential information" means any information that is disclosed in written, graphic, verbal, or machine- recognizable form, and is marked, designated, labeled or identified at the time of disclosure as being confidential or its equivalent; or if the information is in verbal form, it is identified as confidential or proprietary at the time of disclosure and is confirmed in writing within thirty (30) days of the discloswe. Confidential Information does not include any information that: is or becomes publicly known through no wrongful or negligent act of the receiving Party; is already known to the receiving Party without restriction when it is disclosed; is, or subsequently becomes, rightfully and without breach of this Agreement, of any other agreement between the Parties or of any applicable protective or similar order, in the receiving Parry's possession without any obligation restricting discloswe; is independently developed by the receiving Party without breach of this Agreement; or is explicitly approved for release by written authorization of the disclosing Party. 1.3. "Contract Price" means the price for the selected Reconfiguration Planning Phase services, excluding any applicable sales or similar taxes. 1.4. "Customer Suitability Assessment" means the initial assessment services performed by Motorola to determine whether Licensee's System (infrastructure) is suitable for updating using the Motorola Software that has been especially modified for purposes of the 800 MHz band reconfiguration. Reconfiguration Plamtng Phase Services Agreement 1 FINAL. EXECUTION VERSION 1.5. "Effective Date" means that date upon which all Parties have executed this Agreement. 1.6. "Force Majeure" means an event, circumstance, or act of a third party (including Nextel and the TA) that is beyond a Party's reasonable control. An act of God, the public enemy, a government entity, or another party (including another party's failure to comply with the Order ); strikes or other labor disturbances; general unavailability of necessary materials; hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots are examples of a Force Majeure. 1.7. "Motorola Software" means software in object code format that Motorola or its affiliated company owns, including any releases or software kits to reprogram radios. This Agreement does not involve any source code. 1.8. "Proprietary Rights'' means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to any documents delivered by Motorola under this Agreement or any Motorola Software or equipment. 1.9. "Reconfiguration Planning Phase Services" means those services to be provided by Motorola to Licensee under this Agreement; these services are described in the Statement of Work. 1.I0. "Statement of Work" means the description of the work to be performed under this Agreement by the Parties. 'The Statement of Work is set forth in Attachment A-2 and is incorporated herein by this reference. 1.11. "System" means the hardware and software products that comprise the Licensee's existiag 800 MHz radio communications system. Section 2 SCOPE OF PLANNING PHASE SERVICES 2.1. SCOPE OF WORK. The Parties will perform their respective contractual responsibilities in accordance with this Agreement. Any changes to this Agreement, including changes to the Statement of Work, must be in writing and executed by both Parties. This Agreement sets forth the Parties' rights and responsibilities with respect to each other concerning the agreed Reconfiguration Planning Phase activities only, and not the Reconfiguration Implementation Phase activities {which, if applicable, will be governed by a separate Reconfiguration Implementation Phase Agreement}. Specifically, this Agreement does not involve the provision by Motorola of any equipment, hardware, or software, or any services to reconfigure the System ar any part of it. This Agreement sets forth the Parties' rights and responsibilities with respect to each other concerning only those Reconfiguration Planning Phase activities covered by the Order, and not the sale of products or services (or any other activities} that are not part of the 800 MHz Band Reconfiguration process. If the Parties wish to contract for these other activities, they will do so pursuant to a separate contract. If the parties wish to amend the scope or terms of this Agreement for products or services covered by the Order, they will do so by written change orders, which prior to becoming effective, must be submitted to and approved by Sprint-Nextel and the TA. 2.2. MOTOROLA RESPONSIBILITIES. Motorola will provide the Reconfiguration Planning Phase Services as described in the Statement of Work. 2.3. LICENSEE RESPONSIBILITIES. At the appropriate time, Licensee will submit its Request for Planning Funding, any required certifications, and any amendments thereto (if applicable} to Nextel and the TA. For the limited purpose of assisting Nextel and the TA to evaluate Licensee's Request for Planning Funding, Motorola authorizes Licensee to (and Licensee will) provide to the TA and Nextel a copy of this Agreement, including the exhibits and pricing, but such information is and remains Motorola Confidential and Proprietary as provided below in Section 9. Licensee will employ reasonable efforts to assist Motorola in providing the Reconfiguration Planning Phase services, and will provide reasonable access to Licensee's equipment, facilities, personnel and relevant information. Licensee will designate a point of contact person. 2.4. LICENSEE-NEXTEL RELATIONSHIP. The TA's Reconfiguration Handbook indicates that Licensee and Nextel will forma "Planning Funding Agreement" ("PFA'7 and/or a "Frequency Reconfiguration Agreement" ("FRA") which, among other things, sets forth Nextel's obligation to pay the Relocation Funds. The Reoonflguration Planning Phase Services Agreement 2 FINAL EXECUTION VERSION Reconfiguration Handbook encourages a payment process by which Nextel pays Relocation Funds directly to Licensee's selected vendors; and Licensee will ensure that its FRA provides for direct payment by Nextel to Motorola. Promptly after execution of the PFA and/or FRA, Licensee will provide to Motorola a copy of those portions of the PFA and/or FRA that pertain to Motorola's services, products, pricing and payment, including Attachment C thereto (redacted if necessary to exclude information not pertaining to Motorola). 2.5. OTHER SERVICES. Nothing in this Agreement is intended to prevent or hinder Motorola from contracting to perform or performing for Licensee any Reconfiguration Implementation Pbase sen~ces, or any other kind of services, or selling any equipment or software. Nothing in this Agreement is intended to prevent or hinder Motorola from contracting to perform or performing for other Licensees Reconfiguration Planning Phase services, Reconfiguration Implementation Phase services, or any other kind of services, or selling any equipment or software. Section 3 PERFORMANCE SCHEDULE The Parties will perform their respective responsibilities in a reasonably diligent manner, taking into consideration the procedures and processes established in the Reconfiguration Handbook. The Parties acknowledge that any scheduled performance dates are estimates only, and various factors (such as Licensee's operational needs and resource availability) may cause the scheduled performance dates to change or be delayed. No Party will be liable for its non-performance or delayed performance if caused by a Force Majeure. A Party will notify the other if it becomes aware of a Force Majeure that will significantly delay performance. The notifying Party will give the notice promptly after it discovers the Force Majeure. Section 4 CONTRACT PRICE, PAYMENT AND INVOICING 4.1. CONTRACT PRICE; NON-RECOURSE TO LICENSEE. 4.1.1. Contract Price. The Contract Price for Reconfiguration Planning Phase Services in U.S. dollars is 535,437.00. The Contract Price excludes any sales or other taxes, all of which will be added to the invoices and paid except as exempt by law. 4.1.2. Licensee Not Liable for Contract Price. Payment of the Contract Price and any applicable taxes is to come from Nextel, and not Licensee. If Nextel fails to pay Motorola, Licensee shall not be liable to pay Motorola the Contract Price or applicable taxes. Notwithstanding the above, if Nextel pays the Contract Price and any applicable taxes to Licensee rather than to Motorola, Licensee will immediately forward the payment to Motorola. Motorola agrees to accept direct payments from Nextel if Nextel clearly identifies the applicable Motorola invoice. Motorola further agrees to apply these direct payments from Nextel to the Contract Price. 4.1.3. Motorola's Protections Concerning Payment by Nextel. If requested by Motorola, Licensee will execute necessary documents and take all such actions that are reasonable or necessary to promote the prompt payment by Nextel to Motorola. 4.2. INVOICING, PAYMENT MILESTONES, AND PAYMENT. 4.2.1. Invoicing. Motorola will submit correct invoices to Licensce, with a copy to Nextel, in accordance with the pre-approved payment milestones set forth as Attachment A-1. Licensee's contact person and address for invoice purposes are: Licensee may change this contact person or address by written notice to Motorola. Upon receipt of an invoice, Licensee will promptly (but in no event longer than ten (10) business days) inspect the invoice, verify whether it correctly states the payment milestone, and notify Nextel in writing {via facsimile or priority overnight carrier) that Licensee approves the invoice and accepts the milestone (the "Approval Notification"). Licensee will attach a copy of the invoice to the Approval Notification. When Licensee sends to Nextel the Approval Notification, Licensee will concurrently provide to Motorola's project manager a copy of the Approval Notification so that Motorola may know approximately when Nextel receives it. If for any reason Licensee disapproves the invoice, Licensee will promptly give written notice to both Motorola and Nextel; the notice will explain the reasons for Licensee's disapproval. Motorola will promptly correct any inaccurate invoice that Licensee disapproves, and resubmit the corrected invoice using the same process as described above in this paragraph. ReconRguration Planning Phase Services Agreement 3 FINAL EXECUTION VERSION 4.2.2. Payment Due Date. Unless otherwise agreed between Nextel and Motorola, payment to Motorola for approved invoices is due thirty (30} days from the date Nextel receives the Approval Notification from Licensee. Motorola's Federal Tax Identification Number is 36-1 1 1 5800. 4.2.3. Mutual Cooperation. The Parties will cooperate with each other and provide to each other, and to Nextel and the Transition Administrator, such information (other than Confidential Information, which is governed by Section 9.l) as is reasonable or necessary to facilitate the prompt payment of the Contract Price to Motorola. Section 5 REPRESENTATIONS AND WARRANTIES 5.1. RECONFIGURATION PLANNING PHASE SERVICES WARRANTY. For thirty (30) days from the completion of the Reconfiguration Planning Phase Services, Motorola warrants that these services were performed in a good and workmanlike manner. This services warranty does not cover any services or duties performed or owed by Nextel, Licensee, or any other contractor hired by them. 5.2. WARRANTY CLAIMS. To assert a warranty claim, Licensee must notify Motorola in writing of the claim before the date which is thirty (30) calendar days after the expiration of the warranty period. Upon receipt of this notice, Motorola will investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at no additional charge to Licensee) re-perform the Reconfiguration Planning Phase services. This action will be the full extent of Motorola's liability hereunder and constitutes Licensee's sole remedy. If this investigation indicates the warranty claim is invalid or "out of scope," then Motorola may invoice Licensee for responding to the claim on a time and materials basis using Motorola's then cuaent labor rates. Notwithstanding any reimbursement claim Licensee may have against the Relocation Funds, Licensee will pay the invoice for invalid warranty claims within thirty (30} days from the invoice date. 5.3. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original end user and are not assignable or transferable except to any lawfirl successor in interest. 5.4. POTENTIAL DAMAGE TO EXISTING EQUIPMENT. Licensee acknowledges that Motorola, Licensee's employees, or others might cause damage to equipment that is part of Licensee's System when performing the Reconfiguration Planning Phase Services, and that such damage may occur in the absence of negligence by any party. Motorola is not responsible for damage to equipment unless it is caused by Motorola's negligence or intentional wrongdoing, in which case Motorola at its option will repair or replace the damaged equipment or refund its fair market value to Licensee. Before Licensce asserts a damage claim against Motorola under this section, it wil! first investigate the cause of the damage and the investigation must result in adequate proof that Motorola is negligent and liable for the damage. This provision does not diminish any rights Licensee might have under any pre-existing Motorola warranty or maintenance agreement. 5.5. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE RECONFIGURATION PLANNING PHASE SERVICES PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. EXCEPT FOR THE FOREGOING WARRANTIES, THE SERVICES ARE PROVIDED "AS IS" AND MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE IS RESPONSIBLE FOR, AND MOTOROLA MAKES NO WARRANTY CONCERNING, THE BACK-UP AND DISASTER RECOVERY PROCEDURES, FACILITIES AND EQUIPMENT, OR DATA ENTRY AND LOADING. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. Section 6 INDEMNIFICATION 6.1. 1NDEMMTY BY MOTOROLA. Motorola will defend at its expense and hold harmless Licensee against any claim, suit, demand, or cause of action brought by a third party against Licensee that is based on or to the extent it is caused by the negligence or willful misconduct of Motorola, its subcontractors, or their employees or agents, while performing their duties under this Agreement, and which results in personal injury, death, or direct damage to Reopnfiguration Plaruiing Phase Services Agreement 4 FlNAL lJ~G1TION VERSION tangible property ("Motorola Claim"}. Motorola will indenutify Licensee from any liability, judgment, awards and damages resulting from a final award that arises from a Motorola Claim and pay all losses, expenses or direct damages incurred by Licensee associated with the Motorola Claim. The foregoing indemnity is conditioned on (ij Licensee giving Motorola prompt, written notice of any Motorola Claim, and providing to Motorola cooperation (and, if requested, reasonable assistance) in the defense of the Motorola Claim; and (ii) Motorola having sole control in the defense of the Motorola Claim and all negotiations for its settlement or compromise. Motorola will have no indemnity liability for the negligence or fault of Licensee, its other contractors, Nextel, or the TA, or any of their employees, agents or representatives. This section states the full extent of Motorola's general indemnification from liabilities that are in any way related to Motorola's performance under this Agreement. Section 7 DISPUTES; DEFAULT AND TERMINATION 7.1. DISPUTES. The Parties, through their respective project tnanagers, will attempt to settle any dispute arising from this Agreement (except for a claim relating to intellectual property or breach of confidentiality provisions) through consultation and good faith negotiation. 7.2. DEFAULT AND TERMINATION. If a Party fails to perform a material obligation under this Agreement, the other Party may consider the non-performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written and detailed notice of default. The defaulting Party will have thirty {30) days after receipt of the notice of default to either cure the default or, if the default is not curable within thirty (30) days, to provide a written cure plan. The defaulting Party will begin implementing the cure plan immediately after receipt of notice by the other Party that it approves the cure plan. If a defaulting Party fails to cure the default, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of this Agreement and the defaulting Party will promptly return to the non-defaulting Party any of its Confidential Information unless otherwise required by the TA. The non-defaulting Party will mitigate damages. Section 8 LIMITATION OF LIABILITY Licensee acknowledges that the limitations in this Section are integral to the Contract Price being charged by Motorola under this Agreement, and that if Motorola assumed further liability other than as set forth in this Section 8, the Contract Price would be substantially higher. This limitation of liability provision applies notwithstanding any contrary provision in this Agreement. Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, contribution, or otherwise, will be limited to the direct damages incurred by Licensee and recoverable under law, but not to exceed the Contract Price. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA (AND ITS SUBCONTRACTORS AND SUPPLIERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES) WILL NOT BE LIABLE TO LICENSEE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS, OPPORTUNITIES OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION), THE SALE OR USE OF PRODUCTS, EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. ALL CLAIMS BY A PARTY AGAINST ANOTHER PARTY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, MUST BE BROUGHT WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES. Section 9 CONFIDENTIALITY AND PROPRIETARY RIGHTS 9.1. CONFIDENTIAL INFORMATION. During the term of this Agreement, the Parties may provide Confidential Information to each other. Any inventory report or Customer Suitability Assessment report concerning Licensee's System, and any other document concerning the reconfiguration of Licensee's System that Motorola prepares specifically for and is a promised deliverable to Licensee under this Agreement (collectively, "Documentary Deliverable") shall be the Confidential Infotirtation of Licensee unless otherwise agreed by the Parties in writing. Reconflguration Planning Phasa Services Agreement 5 FINAL EXECUTION VERSION 9.1.1. Noa-Disclosure. Subject to applicable public records laws, each Party will: maintain the confidentiality of the other Party's Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction, the FCC or the TA ;restrict disclosure of Confidential Information to its employees who have a "need to know" and not copy or reproduce the Confidential Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential Information, including informing its employees who have access to it that it is coafidential and not to be disclosed to others, but those precautions will be at least the same degree of care that the receiving Party applies to its own confidential information and will not be less than reasonable care. The confidentiality restrictions and obligations contained herein shall be in addition to any confidentiality restrictions or obligations contained in any other agreement (whether prior to, contemporaneous or subsequent to the date of this Agreement) between Motorola on the one hand and the TA, Nextel or Licensee on the other hand, as well any protective order or confidentiality restrictions or rules issued by the FCC or the TA. 9.1.2. Use• Unless otherwise provided in this Agreement, s Patty tray use the Confidential Information of the other Patty only in fitrthetance of the performance of this Agreement or any other agreement between the Parties. Notwithstanding the preceding sentence, Motorola may use the information in any Documentary Deliverable for its own business purposes or to assist Licensee or its other contractors or consultants in the overall effort to plan and reconfigure Licensee's System. Except for a Documentary Deliverable, Confidential Information is and will at all times remain the property of the disclosing Patty, and no grant of any proprietary rights in the coafidential Information is hereby given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement or any other agreement between the Parties. 9.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola owrss and retains all of its Proprietary Rights, and nothing in this Agreement is intended to restrict its Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Licensee the services remain vested exclusively in Motorola, and this Agreement does not grant to Licensee any shared development rights of intellectual property. This Agreetncnt does not involve the license of any software. Section 10 GENERAL 10.I ASSIGNABILITY AND SUBCONTRACTING; WAIVER No Party may assign this Agreement without the prior written co»sent of the other Party. Motorola may subcontract part of the work, provided the company provides to the City a list of subcontractors sufficiently in advance of the start of work to allow the City to perform security and background checks. The City reserves the right to deny access to any subcontractor; provided that, any authorized Motorola Service Shop is deemed approved. Subcontracting will not relieve Motorola of its duties under this Agreement. Failure or delay by a Patty to exercise a right or power under this Agreement will not be a waiver of the right or power. An effective waiver of a right or power must be in writing signed by the waiving Party and will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. ]0.2 INDEPENDENT CONTRACTORS. Each Party is an independent contractor with respect to the other Party, and a Party and its personnel will not be considered to be employees or agents of the other. Nothing in this Agreement grants a Party the right or authority to make commitments of any kind for the other Party. This Agreement will not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. 10.3 INTERPRETATION OF AGREEMENT. This Agreement, including any attachments, constitutes the entire agreement of the Parties regarding the subject matter of this Agreement and supersedes al! previous agreements, proposals, and understandings, whether written or oral, relating to that subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of the Patties. The preprinted terms and conditions found on any Licensee purchase order, acknowledgment or other form will trot be considered an amendment or modification of this Agreement, even if a representative of each Party signs the document. The attachments are incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement and any Chaage Orders executed by the parties and approved by the Transition Administrator take precedence over the attachments. Section headings in this Reoonfiguratlon Planning Phase Services Agreement 6 FINAL EXECUTION VERSION Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. 'This Agreement is an arm's length transaction and will be fairly interpreted in accordance with its terms and conditions and not for or against a Party. If a court of competent jurisdiction renders any part of this Agreement to be invalid or otherwise unenforceable, it will be severed and the remainder of this Agreement will continue in full force and effect as if the invalid part was not part of this Agreement. This Agreement and the rights and duties of the parties will be governed by and interpreted in accordance with the laws of the State of Florida without regard to its Conflicts of Laws provisions. 10.4. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with alt applicable federa{, state, and local Paws, regulations and rules concerning the performance of this Agreement or use of the System. Licensee will obtain and comply with all FCC licenses and authorizations required for the installation, operation and use of the System. 10.5. AUTHORITY TO IXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. Each Party represents that it is fully aware of the terms contained in this Agreement and has voluntarily entered into this Agreement, having had a full and fair opportunity to seek the advice of course) and other professionals or consultants as its considers necessary. This Agreement tray be executed in separate counterparts, which together constitute a single agreement. 10.6. SURVIVAL OF TERMS. The following provisions survive the expiration or termination of this Agreement for any reason: if any payment obligations exist, all of Section 4 and in particular Section 4.1.2.(Contract Price, Payment and Invoicing); Section 6 (Disputes); Section 8 (Limitation of Liability); and Section 9 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 10. The Parties hereby enter into this Agreement as of the Effective Date. Licensee Motorola By: Name• Title: Date: Nextel Assigned Deal Number: ReooMiguratlon Planning Phaae Services Agreement FINAL EXEt~1TION VERSION Attachment A-I Nextei-Motorola Pre-approved Payment MIlestone Schedule Depending an the Contract Price set forth in Section 4.l .l, the following payment milestones apply: 1. Contract Price < 5300,000 Mobilization (i.e., contract execution) 50% Complete Planning Activities 50°~ 2. Contract Price 5300,000 and above Mobilization (i.e., contract execution} 40% Complete Suitability Assessment 40% Complete Planning Activities 20% Recontiguratlon Planting Phase Services Agreemern FINAL FaCECl1T10N VERSION Attachment A-2 Statcmcnt of Work Reoonfiguratlon PlannYg Plisse Services Agreement FlNAL EXECUTION VERSION Motorola 800 MHz Rebanding Project City of Delray Beach Statement of Work Summary of All Costs Pursuant to the FCC's mandated 800 MHz band reconfiguration, the incumbent licensee is required to reconfigure its system and requests that Sprint Nextel fund its estimated system reconfiguration planning costs, as outlined in the table below: Licensee Organization Name: City of Delray Beach Licensee City, State and Zip: Delray Beach, FL 33444 (Price excludes sales or other taxes) Summary of All Costs i sq a i >< q8 boo n oar o •n Frequency ~. . . Anal sis Motorola 3,325.00 0.00 3,325.00 S stem lnvento Motorola 4,751.00 0.00 4,751.00 Engineering and Implementation Plannin Motorola ! 1,725.00 2,336.00 14,Ob1.00 Le a) Motorola 0.00 0.00 0.00 Project Marra ement Motorola 11,900.00 0.00 11,900.00 Other Motorola 1,400.00 0.00 1,400.00 Total Estimated Plannin Costs 533,101.00 S2,336.00 535,437.00 The above pricing assrnnes this project will be executed concurrent with Pal»r Beach County and Boynton Beac/: Smart Zone system project Should tlris not be the case, Motorola reserves the right to re price this proposal. Pegg 2 Of 22 -4/162007 ® MOT7DROLA Motorola Proprietary and Confidrntial [>o:ign. tschniat and pricing inlortrration contained in this offering s oorrsidersd proprietary end may not De shared with am person a agency not directly associated with the addressee without the express wrillen oonsenl of Molorota. Ina, or its designees. Motorola 800 MHz Rebanding Project City of Delray Beach Statement of Wark Statement of Work {SOW) Supporting Request for Planning Funds Overview This Statement of Work consists of iwo major pans. The first part consists of Sections l.U through 6.0 which describe the work associated with planning the reconfiguration of your system. These sections, along with the system description table at the end of this SOW, may be included with your Request for Planning Funds submittal to Sprint Nextel and the Transition Administrator. The second part consists of Sections 7.0 through 13.0 which supports the Agreement with Motorola and should not be submitted as part of your Request for Planning Funds. Motorola has assembled this document, called a Statement of Work (SOW), which provides an overview of activities performed during the initial customer interview, the equipment assessment and the execution of the design phase of the rebanding project. This Statement of Work describes the Reconfiguration Planning and Negotiation Phase Services that Motorola proposes to provide to City of Delray Beach. This SOW is not a detailed reconfiguration specification and is not intended for use in a solicitation for services by City of Delray Beach. The specific details of the system are in the tabuiarized System Description table at the end of this Statement of Work. 1.0 Performance Schedule Motorola will begin the reconfiguration planning and schedule the first kick off meeting with City of Delray Beach within 45 days after receipt of a Purchase Order and/or a signed contract authorizing the work. A detailed schedule to complete the planning and deliver a fixed price proposal to do the system reconfiguration will be developed as a result of this meeting. Once this schedule is completed it will be agreed to by City of Delray Beach and Motorola and it can be submitted as an addendum to Sprint-Nextel and the Transition Administrator. Provided there are no significant delays it is estimated that the work will be completed in 1.6 months after the kickoff meeting. 2.0 Frequency Analysis 2.1 Co-channel Analysis Motorola will quote and provide co-channel analysis as requested by City of Delray Beach. PaOe 3 cf 22 - 4/16/2007 MOTORf>L.4 Motorola Proprietary and Confidential Design. tarhn"real and pridng iMOrmafion contained in this offering is considered Proprietary and rosy nol be shared wirb airy Person or agenry not dlregly assodated with Uw addressee without the express wriNen con6enl of Motorola, Inc., or Its designees. Motorola 800 MHz Rebanding Project City of Delray Beach Statement of Work 2.2 Combiner and Receiver Multi-coupler Suitability Motorola will evaluate the suitability of the licensee's existing combiner equipment impacted by rebanding. Some combiners can readily be adjusted to the new rebanded frequencies, others cannot. Depending on the condition of the equipment, readjustment may not be passible without risking damage to the combiner. In addition, signal loss (decreased coverage) may occur if the new rebanded frequencies are spaced closer than the original frequencies. Combiner cable requirements also need to be considered based on the Licensee's cutover plan. Additionally, Motorola will analyze the impact the new frequency plan will have on City of Delray Beach's existing multi-coupler systems and determine if retuning or replacement is necessary. Motorola will evaluate these potential issues as part of the combiner suitability assessment. 23 Intelrmodulation Study IM Study -Motorola will perform inter-modulation study to identify possible harmful ItF emissions and interactions at each site affected by rebanding. Motorola will provide a report and recommendation to City of Deh~ay Beach. If the proposed frequencies cannot be effectively used at the appropriate sites, Motorola will notify City of Delray Beach. (See Exhibit A-2 at end of this document for further information regarding Intermodulatio>7 study). Intermodulation Studies (IM) are necessary only under limited circumstances. To request an IM for a site, the licensee must believe that at least one of the three criteria, as described in the 1tFPF Form/Instructions, is present within their environment. To qualify for funding, the condition(s) must be indicated in the 1ZFPF Form. Page 4 of 22 - 4/16/2007 MOTOROLA Motorola Proprietary and Confidential pesiQtt, lechnkal and prfdng information contained in Ihis otiertng ie considered proprietary and may nol be shared with any person or agency not directly essoaaled with the addressee without the express wrlden consarrt of Motorola, Ina, or its designees. Motorola 800 MHz ReDanding Project City of Delray Beach Statement of Work ~': Qu'afltfyng,Scenarlios ~ ~ ~ Suspected Siite(a) _ r a • - ` ~ ! Y:~ (yes/no~ A,f~eCted _°~'~ ~~riowii Location with two or more co-site transmitters with Yes otential to im air base station receivers. Licensee's fixed receive antenna is proximate to a Yes transmittin antenna other than our own. Landlords or site managers of shared transceiver sites Yes requiring an analysis of the IM environment as part of site a ements when than in transrnittin fre uencies. 2.4 Other Freauency Analysis Motorola will quote and provide additional frequency analysis services as requested by City of Delray Beach. Frequency Analysis deliverables Include: Co-channel Anal sis re ort for reconfi ration ro osal N/A Combiner Suitability report for reconfiguration proposal l.b months after kick-off meetin Intermodulation analysis report for reconfiguration 1.6 months after kick-off ro osal meetin Other Frequency Analysis N/A Vendor Labor Table Page 5 of 22 - 4H6l2007 ® M~Rd ~ Matoml~ Arnprietary and Confidrntial Design, technical and prldng Information eoMelnod fn ~ otferirtg is oonsidared proprietary and may not be shared with any person or apenq rrot dlrecdy assodatad with the addresses wilhoul the express written conssrrt of Motorola, Inc.. or ik designees. Motorola 800 MHz Rebanding Project City of Delray Beach Statement of Work 3.0 System Inventory 3.1 Infrastructure Inventory Motorola will conduct an inventory of City of Delray Beach's equipment. This inventory will be used to determine the suitability of the equipment and system design effort for rebanding. Motorola understands the inventory and design effort will take place on an operational radio communications system and that unplanned interruptions to dispatch operations are not acceptable. Motorola, with its network of authorized service centers and/or third-party subcontractors, will do everything possible to minimize disruption to dispatch operations. Any required changes to daily operations will be planned in advance and agreed upon by City of Delray Beach and all applicable parties. Based on this preliminary information about your system inventory listed below, a price was developed for planning the system Rebanding process. This information is based on Motorola's understanding of City of Delray Beach's system. Any significant variance to this inventory information which results in a scope of work or schedule change will need to be addressed via a change order. The inventory services are limited to the equipment specifically affected by rebanding for City of Delray Beach's system. Please refer to the System Description for unverified inventory estimates. 3.2 Subscriber Inventory Subscriber device inventories must similarly be examined to determine reconfiguration requirements. If inventories are required, Motorola will inventory subscribers to elicit necessary information. Customer provided inventories must also be able to provide the information outlined below. For systems that only require Retunins, unit count and model families need to be specified to insure proper programming equipment and if any frequency determining elements need to be ordered and priced. For systems that require Reprogramming, quantities of subscriber in each family must be determined (i.e. 25ea XTS2500, 22ea XTS5000} and the number of programming stations must be delineated to ensure proper number of Flash upgrade kits are specified. Page 6 of 22 - 4116!2007 ® MOTOROLA Motorola Proprietary and Confidential Design. tachnicel and pricing iMomtation contained in this offering is considered proprietary and may not he shared with any person or apen~r not directly assodated with Me addressed without the express written consent of Mom, Inc.. or Ns designees. Motorola 800 MHz Rebanding Project City of Delray Beach Sfafemenf of Work For Replacement units, the number of units to be replaced must be identified, along with their corresponding replacement unit. In addition options such as battery type, dash or remote mount and cable length must be specifced. An accurate count of any accessories (six unit chargers, speaker mics, etc.) will be required since they are exchanged on a one for one basis. A sample audit will be performed when necessary on certain subscribers units (MTS 2000, Astro Spectra and Astro Saber) to determine the need for replacement. Vendor Labor Table 4.0 Ensineering/Imalementation Planning 4.1 Interonerability Planninsd The interoperability requirements are attachment at the end of this document. included in the System Description 4.2 Site Reconfiguration Motorola will generate a Reconfiguration Design which will consist of at a minimum Methods of Procedures, cut over plans and system test plans. o Generate Methods of Procedures (MOP) Page 7 tN 22 -417 612007 MOTDRpLA Maorola Proprietary and Confidential Design, technical and pt[dng iMorrnation contained in This otrering is considered proprietary and may not be shared witlr any parson or agenq not direly assodatod with the addressee wilhoul the express written consent of Motorola, Ina, or ila designees. System Inventory deliverables include: Motorola 800 MHz Rebanding Project City of Delray Beach Statement of Work Motorola will develop the Method of Procedures which details the process steps, timeline, measurable deliverables, resources needed and cutover steps. Where applicable, contingency planning required to effectively reband your system will be provided in the least disruptive manner. The MOP also includes the cutover plan from the current frequencies to the new ones. o Cutover and Fall-back Plan • Develop and define the cut-over and fall-back plan to ensure consistent operation of all system functionality throughout the rebanding reconfiguration. • Review plans with City of Delray Beach o Baseline snd Acceatance Test Plan • Develop with City of Delray Beach baseline and acceptance test plans to demonstrate comparable facility. • Baseline Test Plan initial determination of infrastructure testing for system functionality prior to rebanding beginning. • Acceptance Test Plan duplication of baseline test plan plus any additional functional testing customer requires after rebanding. 4.3 Retune/Rearoeram/Renlace Determination The 800 MHz fixed network equipment {FNE} and subscriber inventory must be audited to determine if upgrades are required to the software, hardware and firmware in order to support the new rebanding software. The assessment includes manufacturer information, software versions, system platform release versions and hardware configuration. Results of the suitability assessment and audit will determine what FNE will be retuned or reprogrammed or replaced and the effort required performing this work. Motorola Rebanding Software Required for All Sites In a NPSPAC Motorola Smart Zone System Delray Beach is not an autonomous'system" as such, but rather is a "site" operating on the Palm Beach County (PBC} Motorola Smart Zone system. The Palm Beach County system utilizes NPSPAC frequencies and as such requires the Motorola rebanding software. When a Motorola Smart Zone controller is Pape 8 of 22 - 4H 8/2007 ® MOTOROLA Motorola Proprietary and Confidential Oosign. taehnkal and pridnp inrorma0on contained in this oNering is considered proprietary and may not be shared with any parson or agency not fixedly associated with fhe addressee without the express written oonseM of Motorola, Inc., or its designees. Motorola 800 MHz Rebinding Project City of Delray Beach Statement of Work upgraded with the rebinding software, the infrastructure at all sites operating on that Smart Zone system must also be upgra` with the new software regardless of whether or not those sites have NASPAC frequencies operating on their repeaters. Hence, the controllers on this Delray Beach site must also be upgraded with the rebinding software. Further, the planning and reconfiguration of all sites operating on this system must be accomplished in a coordinated and time proximate fashion. To accomplish this, a Suitability Assessment must be done for each controller in the entire Smart Zone system. The evaluation of the network and subscriber inventory will provide a retune, reprogram, upgrade or replace decision for each piece of equipment in the system that is affected by rebinding, Activities include: - Formatting City of Delray Beach's inventory data for assessment - Engineering analysis of assessment report - Retune, replace or reprogram determination of subscriber inventory as outlined in paragraph 3.2 above. - Equipment list generation of required kits, software and or upgrades required by each piece of equipment to be reconfigured. Engineering/implementation Planning deliverables Include: ~~ ,:~pd~ f -r,4 t~r, ~"' a'~tr_A:.~iy.:j;~l; ~:~ /~"++~Ny?.~ _.y~Y.^'amr~•L~y{y F!}'iYJ~ ~. i..~ ' ~~l ~ r' ~ r.~Y +; f ~ .•.rl"..~" .. ' ;~:;T Car . ~ "1 i !; : ~ ~ lnteroperability plan section of reconfiguration proposal l .b months after kick- off meetin Develop Methods of Procedures for equipment to be l .b months after kick- reconfi red for reconfi ration ro osal off meetin Develop and document cutover and fallback plans to be 1.6 months after kick- included in the reconfi lion ro sal off meetin Develop and document baseline and acceptance test plans to be 1.6 months after kick- included in the reconfi uration ro sal off meetin Suitability assessment report for inclusion in the 1.6 months after kick- reconfi ration ro osal off meetin Page 9 of 22 - M16@007 ® MOTOROLA Maorola Proprietary and Confidential Design, technical and pridng informalbn ooMained in Nis offering is oonsWsred proprialary and may nol be shared wph any parson or agency not dtreGly associated with the addressee without the express written Wnserrt of Motorola, Inc., or its designees. Motorola 800 MHz Rebanding Project City of Delray Beach Statement of Work Vendor Labor Table 5.0 Proiect Mana eg ment 5.1 Proiect Su>,port The Motorola Project Manager will oversee the project plan for the rebanding effort to ensure a smooth execution of all deliverables and that the requirements of City of Delray Beach are fully met. The Project Manager will participate in all major activities associated with the reconfiguration plarrning activities described in this Statement of Work. The Project Manager will coordinate with City of Delray Beach, Motomla's MSS (Motorola Service Station) and any subcontractor or other third-party organization participating in this work; to keep this effort within the agreed upon schedule. Activities such as project meetings, obtaining and evaluating subcontractor quotes, monitoring subcontractor and project team performance will be performed by the Motorola Project Manager. 5.2 Neeotiations Suaoort Where needed, Motorola will review the details of the rebanding plan and assist with clarifications which may be required from Sprint Nextel or the Transition Administrator. Project Management deliverables include: .,,.., er , ?; '" ~ _.~$'r~.: ;ice=a., • _ - ' ~,'~. w~a~~ _. ,,,a az;~. Execute Project Plan At the end of the project schedule Page 10 of 22 -4116/2007 ® MQTOROLA ldolorola Proprietary and Confidential Design, teehnial artd pricing iMommtion contained in this oRering is considered proprietary and may not be shared with any person or agenq trot directly associated with the addressee without the express wriaen consent of Moloroh. Inc., or ifs designees. Motorola 800 MHz Rebanding Project Ciiy of Delray Beach Statement of Work Vendor Labor Table b.0 Other Deliverables listed below are related to special considerations and / or related sub- systems impacted by the reconfiguration of the licensee's system. Other deliverables include: Vendor Labor Table Page 11 of 22 - 4/1612007 MOTOROLA Maorola Proprietary and Confidential Design, techNcal artd prlo3ng information coMalnad in This oRedng is mrrsiderad papdelery and may rat be shared with erry person w agency Trot diredty assocWleO with the addrosses wilhoul the errpross wrhtan consent of frbtorola, Ina., or ils tlasigneea. Motorola 800 MHz Rebinding Project City of Delray Beach Statement of Work 7.0 City of Delray Beach Scheduling and Access Requirements In the event City of Delray Beach operates on a 24-hour, ?-day per week basis, then diligent coordination to gain access to radio equipment will be required. It is understood that the effort required to prepare the inventory and design may occur on different shifts and/or times during the week, other than a normal 8:00 AM to 5:00 PM business day. Weekend work may also be a component of this effort. Working with City of Delray Beach to ensure optimum cooperation will be essential to effectively and efficiently execute the rebinding project. City of Delray Beach must provide reasonable access to all remote site locations where fxed station equipment is located. Any escort-required locations must be coordinated in advance by City of Delray Beach to facilitate access to restricted areas. Any required identification cards must be provided by City of Delray Beach to rebinding personnel as needed to work in any area in which an authorized ID card is required. 8.0 Motorola Engineering & Technical Services Throughout the effort required to correctly assess the system requirements for rebinding, Motorola will support the requirements employing the experience of its field and systems engineering resources. In addition, many of Motorola's product organizations and upgrade operations team will support the project with specific knowledge on products and procedures to ensure the success of the project. 9.0 Local Service Suouort Motorola will utilize its authorized service center network and/or approved third party contractors to assist in Preparation of Estimate Inventory and evaluation of fixed infrastructure and other related system equipment. 10.0 Notification and Conditions for Work Motorola will notify City of Delray Beach's assigned point of contact a minimum of five (5) business days prior to starting any work on the system. Motorola will commence work at the designated location only after City of Delray Beach has notified Motorola with instructions to proceed. Whenever possible, prior notification of at least 24 hours will be given when expected disruptions are to occur. Page 12 of 22 -411612007 ® MOTOROLA Motorola Proprietary and Confidential DealOn. tachnteal and pridng information oonminad to tl~ia oMarirrg Is oorKidsred proprietary and may not be shared with any person or agency not dkactly associated with Ihs addrossea wNhoul the express writbn consent of I~rola, Inc., or Its designees. Motorola 800 MHz Rebanding Project City of Delray Beach Statement of Work 11.0 Motorola and City of Delray Beach Resaonsibitities Motorola Responsibilities Motorola will be responsible for the following: • Providing a designated Project Manager to coordinate alt the resources and work to be performed by Motorola and to be the primary point of contact for City of Defray Beach. • Scheduling project meetings with City of Delray Beach at the project's start, execution of the project contract deliverables and to coordinate ensuing project activities with all Motorola and City of Delray Beach resources. • Providing engineering services in designing the agreed upon deliverables as developed in this proposal. • Providing City of Delray Beach with regular schedule and progress updates. • Motorola will provide a detailed design and transition rebanding plan that wilt include: - FNE Inventory and Requirements - Suitability Assessment Results - Sample Templates - Cutover Plan - Finalized Equipment List - Scope of Work - Frequency Analysis - Detailed Design Review City of Dclray Beach Responsibilities City of Delray Beach will be responsible for the following: Provide a signatory who has authority to sign all appropriate project documents required for this project and any other agreements required. • Upon receipt, provide Motorola with a full copy of the Transition Administrators Frequency Proposal Report (FPR) for the affected licenses. Page 13 of 22 - 4/16/2007 ® MOTOROLA Motorola Proprietary and Confidrntial oastgn. technical and pricYp infarnation contained in this offarirg is considered proprielary one may na be snared with any person or agency not OirecUy essodated wiU- the addressee without the express wriden consent a Motorola. Inc., w its desgnaes. Motorola 800 MHz Rebinding Project City of Delray Beach Statement of Work • Participate with Motorola and its subcontractors in any potential required meetings with landlords, public agencies, and government agencies to provide site access for the purpose of assessing the equipment located at that site. • City of Delray Beach will provide site access to their sites for Motorola personnel and Motorola's subcontractors for the purpose of assessing the equipment located at that site. • City of Delray Beach shall not unreasonably delay the execution of work by Motorola and will extend the timeline of the project when delays caused by City of Delray Beach are experienced. • City of Delray Beach may be required to provide vehicles and personnel during the inventory process. • City of Delray Beach shall identify any outstanding Motorola deliverables and formally request their completion through the mutual development of a project punch list. • City of Delray Beach shall grant final acceptance upon completion of all contractual deliverables. • City of Delray Beach will be responsible for providing an adequate quantity of subscriber units per day until the inventory process is completed. • Provide adequate shelter, space, heat, tight and power at the customer facilities listed above to perform the subscriber inventory. 12.0 Risks Motorola is committed to mitigating all known risks and will engage City of Delray Beach whenever situations are identified in which a risk situation presents itself. A decision will be jointly made between Motorola and City of Delray Beach to consider the options and establish a mutually agreeable solution. With projects of this magnitude there are risks associated with the work that needs to be performed on each piece of equipment. It is conceivable that a particular piece of equipment can be functional at the time of inventory but when taken off line to have board or software versions read and confirmed that failures may occur when re-initializing the unit. Motorola will make every effort to ensure that Page 14 of 22 - 4118/2007 ® lNOTOROL'/1 Motorola Proprietary and Confidential Design, technical and pricing Information tmrrtafned H Ihls offering is oorrsidarod proprietary aid may not be shared wife any parson or agency not dlrecdy associated wllh the addressee without the express written consent of AAOtoroia, Inc., or tis designees. Motorola 800 MHz Rebanding Project City of Delray Beach Statemenf of Work any failure occurring in this situation be rectified immediately. In some cases adequate spares may not be available and could lead to a prolonged outage of equipment while obtaining replacement parts. If the system in question is currently under a foil on-site and repair service agreement with Motorola, any resolution to correct the failure will be covered under the agreement. If the equipment involved is not covered under a Motorola Service Agreement, resolution may require reimbursement for material and labor to correct the failure and restore the defective equipment. 13.0 City of Delray Beach Acceatance Upon submission of Motorola's rebanding plan to Ciry of Delray Beach, a certificate of acceptance document will be provided for customer signature {see reference document attached}. This certificate acknowledges that ail the effort necessary in identifying the detailed requirements and plans to reband City of Delray Beach 800MHZ system has been completed. Frequencies and CaII Signs Tx Fro Rx F Call S n CntWolce 888.1500 823.1500 VYPMU878 CnUNotce 867.6750 822.6750 VtlPMU678 CntWoice 867.0750 822.0750 VYPMU878 CntWoice 866.7750 82!.7750 WPMU878 CntWoice 866.3750 827.3750 VYPMU878 Voice 866.5750 821.5750 1NPMU878 Voice 866.8750 823.6750 VJPMU878 Voke Page 15 of 22 - 4N612007 ® Ii~OT~ORO~ Motorola Proprietary and Confidential Oedgn, technicd and pricing intomtatfon contained in this o/fering b oons~ered propdalary and may na be :hared with airy person or egeney not diroetly assodaied wllh the addressee without Cte express written consent ~ Mowrofe, Inc., a hs deaigneea. Motorola 800 MHz Rebanding Project City of Dekaiy Beach Statement of Work System Description Type of'1'echnology Single site Number of Sites impacted by Rebanding 2 Total Quantity of Stations 7 Number of Control Channels impactcd by Rebanding 4 Number of Failsoft Channels impacted by Rebanding 7 Number of subscrtber units on itpacted Failsoft Channels What is the transmitter combining scheme To be determined Number of mobile units used for day-today communications 60 covered by this RFPF {used to calculate per unit cost); including control stations, data devices and SCADA units Number of portable units used for day-today communications 588 covered by this RFPF Number of channels covered by this RFPF (exclude channels not 7 to be reconfigured) Number of sites to be inventoried under this RFPF 2 Number of entities using the 800 MHz system being reconfigured 1 Page 16 of 22 - 4/76/2007 MOTtOIROL/l MoWrota Proprietary and Conridential Design, teclxdcal and prtdrp Urtormetion contained in this oNaring is oonstdered propristary and may not ba shared with airy person or agency not d'vecty essoaaled wiaf the addressee wiltrout the e><presa wrillan oonaenl of Motorola, Inc., or its designees. Motorola 800 MHz Rebanding Project City of Delray Beach Statemenf of Work Subsystem Descriptions MOSCAD Fire Alerting /Waste Water Management !Other applications 0 Quantity of radio linked MOSCAD RTUs and Centrals Not applicable Underground sub system networks {Beyond the scope of normal Not applicable BDA applications such as mines, railway systems, emergency communications facilities) Ot}t~ Not applicable Interoperabllity Descriptions Adjacent jurisdictions / other licensees with interoperable agreements with this system owner. Quantities of radios in use on the adjacent system impacted by the change of frequencies on this system Not applicable Any special customer requirements we are aware of that the This is a single site customer would want included Such as (This customer wants to system operating as have the interoperable area with multiple systems rebanded as one part of the Palm effort to avoid multiple reprogramming efforts) Beach County SZ system and must be planned and rebanded concurrently. Any additional information that is relevant to calculation a cost Not applicable for retuning the system. Other non-licensee users on the system & subscriber quantities -not applicable Page 17 of 22 - 4/18!2007 MOTiOROLA Motorola Proprietary and Confidential Design. tedmkal and prfeing 6ttorrnation t:onfainsd in aria oHedng is considered Proprietary and may not 6e shared with any person ar agency not diredty aasodated wine the addresses without the express wrinon consent of Moloroh. Inc., or its designees. Motorola 800 MHz Rebanding Project City of Delray Beach Statement of Work System Inventory This is a customer provided, non-audited, inventory estimate for purposes of quoting. Total numberofTx/Rx sites in the stem I Total number of Rx sites in the stem 1 Total number of Trunked Base Stations / aters in S stern to be rebanded 7 Total number of conventional Base Stations / R tars in S stem to be rebanded 0 Total Number of Rx onl stations in S tam to be rebanded 7 Total number of Transmit Combiners in S stem 2 Number of Antennas that need re laced 0 Number of controllers in the stem 4 Total number of Tx Combiner Post filters to be re ]aced 0 Number of CEBs in the stern 2 Total number of local o erator ositions in the s stem 4 Total number of remote o rator ositions in the s tam 0 Total number of di etch centers 1 Number of control stations Includes MUSCAD RTU and Central radios 20 Number of mobiles 40 Number of trebles 588 Number of Intero erabilit Users -Subscribers 0 Total number of Rx Multicou lets in S stern 1 Total number of BDA's in the s stem 0 Total number of Mane ement Terminals 0 Total numberofPro min Tem fates includin intern erabili a envies 50 Total number of all other stations not includin rebanded stations on all sites for IM stud 50 Page 18 of 22 - 4!1612007 ® M~t1TORpLA Motorola 1'raprietary and Confidrntial Deslgn, technltxl and prichg informaGOn contained in this oHerinp is considered proprietary and may rroi be shared wllh any person or agency not directly associated with the addressee without the egress written consent or Motorola. Ina.. of ifs designees. Motorola 800 MHz Rebinding Project City of Delray Beach Consent Form Consent to Release Information By Rebinding Licensee City of Delray Beach ("Licensee"} is in the process of reconfiguring its 800 MHz communications system as required by the FCC pursuanE to its August 6, 2004, Report and Order FCC 04-168, and related supplemental orders. In furtherance of Licensee's reconfiguration activities, it has received information from (or shared information with) Motorola, Inc., Sprint Nextel, and the Transition Administrator. To promote efficiencies in completing Licensee's reconfiguration process, Motorola, Sprint Nextel and/or the Transition Administrator may need to communicate with each other. Therefore, Licensee hereby consents to Motorola, Sprint Nextel and/or the Transition Administrator communicating in writing directly with each other about Motorola's proposed or actual involvement in reconfiguring Licensee's system, provided that Licensee receives a copy of each communication. By way of example, this consent would apply to questions from Sprint Nextel or the Transition Administrator about reconfiguring Licensee's system, and Motorola's answers to the questions. By: Title: Date: Page 19 of 22 - 4116!2007 ® M07~OROLA Motorola Proprietary and Confidential Design, technical and priorp information eordainad in this offering Ia considered propdetery and may not De shared wile any person or agency not dirady asaocialed with !ha addressee without the express written consent of Motorola. Ina.. or its desipnoes. Motorola 800 MHz Rebanding Project City of Delray Beach Acceptance Certificate CERTIFICATE OF COMPLETION FOR PLANNING FUNDING WORK Licensee Name: Deal Number: City of Delray Beach agrees that all items detailed in the Scope of Work for Preparation of Estimate for Planning Funding have been completed and the quote to perform has been received by Licensee Representative below. Licensee Representative: Signature: Print Name: Title: Date: Motorola Representative: Signature: Print Name: Title: Date: ^ This signed certificate authorizes Motorola to bill for the value of the milestone payment as detailed in the Planning Funding Agreement, and it indicates the Licensee's agreement to forward acknowledgement to Sprint Nextel upon receipt and verification of mvo~ce. / / Page 20 or 22.411612007 ® MOTOROLA Motorola Proprietary and Confidrntial Ossipn. technical end pridng hntormalion twrtidned in lhis offering b oonaidered preprielary and may trot tfe shared with ary person or agenry not directly associata0 with the addressee without the express written consent of Motorola. Irte.. or iLS designees. Motorola 800 MHZ Rebanding Project Exhibit A-2 I. Executive Overview A. Solution Overview The mixing of two or more frequencies together at a specific radio site generates lntermvdulation (IM) products. Under the worst conditions, the reception of the desired on-channel frequency can be suppressed by the FM capture effect of stronger undesired IM products. If the intensity of the IM product is lower than that of the desired signal it can still cause audible interference during periods in which the affected channel is not in use. An Intermodulation (IM) Interference analysis can be useful to provide a new site design with optimum protection against frequency interference that could degrade the performance of the radio communications system. IM analysis for an existing system can provide helpful insight to troubleshooting the frequency combina8ons (IM products) at a site that might be causing existing interterence problems. An IM analysis will provide compatibility confirmation for the addition or change of frequenaes at established sites. Motorola's Intemnodulation Analysis can help detect IM interference products by analyzing the root frequencies that can mix to cause these interference products. With this information, customers, with Motorola's help, can design or modify radio sites with minimized IM interference impact to the customer's communications system and aid in determining the root causes of existing interference. Motorola uses intematly developed software tools such as Hydra"" and Intermod"" specifically designed to compute possible Intermodulation products that could affect the customer's radio sites. 6. Customer Usage and Benefits Customers who are experiencing interference on their radio communications system should utilize this service to troubleshoot and identify the possible source of Intermodulation interference. Customers who are modifying their radio communications system should utilize this service to confirm new frequency compatibility with their existing frequences and to identify any potential Intermodulation interference. This information can be used to create a plan to retrofit the existing system in order to minimize future interference to the communications system. ll. Solution Description A. Scope Intelmodulation interference products are always present where two or more co-located transmitters are operating simultaneously. Managing the power levels of the IM signals developed through proper system design will determine whether they cause harmful interterence to communications. Page 21 of 22 - 4111312007 IItrOTDROL/1 Motorola Proprietay and Confidr:ntisl Design, technical snd pricing inlormaUon conlaMed to Ih's ofleetrrg Is consWered propdelary and may not be shared with arty person a agency not dnedhr essodeted with the addressee without the e~cpress written consent or Motorola, Ina, w its dosignoes. Motorola 800 MHz Rebanding Project Exhibit A-2 The IM analysis is simply one of the methods used to guide proper design and must be used by a trained technical person competent in understanding its meaning and limitations. The appearance of an IM product in the analysis does not mean such a product will cause harmful interference, or indeed even be present. It simply indicates the ma#hematical possibility of a product being produced. B. Responsibilities 1. Customer Inputs The customer will supply Motorola with the frequency and antenna infrastructure inputs required to perform the IM analysis and will include: • Transmitter frequencies at site • Receiver frequencies at site • Receiver bandwidth {if known, or receiver type) • Antenna isolation {distance between RX and TX antennas) In the case of a new system design, the antenna infrastructure inputs will be provided by the Motorola design engineer. However, frequency data will remain the customer's responsibility. 2. Motorola Deliverables Motorola will provide an Analysis Report covering the following items: • Transmitter and receiver frequencies used in the analysis • Parameters used in the analysis (i.e. nth level of order tested ~ frequency range used) • Problem (flagged) frequencies • Written explanation of any potential issues • Recommendations c. Considerations The Interrnodulation Interference (IM) analysis provided by Motorola will result from information available at the time of the initial customer input. The accuracy of any IM prediction or interference projection is therefore limited to the completeness of the frequency input data we receive. Subsequently, the resultant report shall be valid only as long as the conditions profiled by the IM analysis remain unchanged. Additionally, all IM analysis results are restricted to the frequencies analyzed. Any preexisting interference issues experienced before rebanding may continue to exist and be considered outside the scope of the analysis performed. The analysis will be limited to the contracted site only. Palls 22 of 22 - 4!16!2007 ® MrDTOROL.A A~4otorola Proprietary and Confidrntial Design, taehnical and pridng information eoMainsd in Ihh otTerirog is considered proprietary and may not !b shared with any person or aganry not dtrectty associated with fhe addressee wltirout the express written consent of Motorola, Inc.. or its designees. MEMORANDUM TO: M~YOR A~~ COMMISSIONERS ~_ FROM: R. BRIAN SHUTT, ASST. CITY ATTORNEY THROUGH: CITY ATTORNEY DATE: JUNE 1, 2007 SUBJECT: AGENDA ITEM # ~• ~ -REGULAR MEETING OF JUNE 4, 2007 RECONFIGURATION PLANNING FUNDING AGREEMENT - NEXTEL ITEM BEFORE COMMISSION The attached agreement provides that Nextel shall fund the reconfiguration planning phase of relocating the City's public safety communications system from its existing channels, in the 800 MHz range, to other licensed channels not located in the 800 MHz range. The attached agreement is in draft form, if a finalized version can be obtained prior to the meeting it will be provided. BACKGROUND In 2004 the FCC issued an order modifying its rules regarding the 800 MHz band to minimize harmful interference to public safety communications systems. As a result of the order, public safety communications systems shall cease (after a period of time) using channels in the 800 MHz band. This is the first step in the reconfiguration of the City's public safety communications system. This reconfiguration, moving public safety systems out of the 800 MHz band, is occurring nationwide and Nextel is required to pay the cost of the reconfiguration and relocation of channels. FUNDING SOURCE N/A RECOMMENDATION Staff recommends approval. CONFIDENTIAL PLANNING FUNDING AGREEMENT [800 MHZ RECONFIGURATION] This PLANNING FUNDING AGREEMENT ("Agreement") is made this day of , 200_, by and between City of Delray Beach, Florida ("Incumbent"), having an address of and Nextel Operations, Inc., a wholly owned indirect subsidiary of Sprint Nextel Corporation, a Kansas corporation ("Nextel") having an address of 2001 Edmund Halley Drive, Reston, VA 20191. Nextel and Incumbent maybe referred to collectively in this Agreement as the "Parties." RECITALS: A. On August 6, 2004, the Federal Communications Commission ("FCC") issued a report and order to reconfigure the frequency allocations in the 800 MHz band ("Reconfiguration"), including frequency allocations on which Incumbent and Nextel are currently authorized to operate (respectively, the "Incumbent Frequencies" and "Replacement Frequencies"). B. On December 22, 2004, the FCC issued a Supplemental Order and Order on Reconsideration. The August 6, 2004 and December 22, 2004 FCC orders, any binding actions issued by the Transition Administrator pursuant to its delegated authority under the orders ("Actions"), and any supplemental FCC orders in the Reconfiguration proceeding or subsequent Actions after the date of this Agreement, are collectively referred to as the "Order." C. Pursuant to the Order, Nextel and Incumbent intend to enter into an 800 MHz Frequency Reconfiguration Agreement ("Reconfiguration Agreement") that will define the Parties' respective obligations regarding the Reconfiguration, including without limitation Nextel's obligation to pay for reasonable costs incurred in effecting the Reconfiguration. AGREEMENT: 1. Plannine Cost. In order to facilitate negotiation of the Reconfiguration Agreement involving the license(s) for the Incumbent Frequencies granted by the FCC as identified in Schedule A (the "Incumbent Licenses") and in accordance with the work described in the Statement of Work attached to this Agreement as Schedule B, Nextel will pay the cost of the planning activities identified on Schedule C attached hereto ("Planning Cost") in an amount not to exceed the Planning Cost estimate set forth on Schedule C ("Planning Cost Estimate"). 1A11 Planning_Costs incurred for _ ------ Formatted: Highlight internal labor mtist be consistent with the Transition Administrator Incumbent Labor Rate Reimbursement Policy ,as set forth at www.800TA.or~. wt will obtain. reasonable cost-it should - Comment [Al]: Willthete be internal _.......... _. - be_Nextel's.._rgsponsibil,itv._to._kecg_ u~ with... Tr~_estimatcs~Thc._R~nning_acttvrtles and deliverables '~,, co ? If so the Licensee will nad to cenify that nc~ costs are in ao~oraance identified in Schedule B will commence upon execution by both Parties of this Agreement ~~•,`~, ~ ~ ~~ the TA labor Late reimbursement ti e f seekin tth i d n ("Agreement Execution") and will be completed, -------------------------------------- ~ ' n or er a e m o g po y reimbursement.IfYherearenoinl~nal ~ ; , ~, `. ~, costs then this phrase may be deleted. , 2. Payment Terms. Nextel will make payments in accordance with the payment terms identified on ' Schedule C for both payments made directly to Incumbent and payments made on behalf of ~, , - Formatted: ii~gniignt Incumbent directly to each third party vendor or service provider identified on Schedule C ,, Deleted The pl ____ - ___._-._~ ("Planning Vendor"). '~ i Comment [A2]: A date of cotr~rktiou will ncal to beset forth in this PFA, 3. ConSdentiality. The terms of this Agreement and any proprietary, non-public information ~~ ~~ ~ which Wiu L>e bases on ~ regarding the Incumbent Frequencies, Replacement Frequencies, Nextel's business and Incumbent's Deleted: as set forth in the agreement business must be kept confidential by the Parties and their employees, shareholders, agents, ', entered in to by the City andMotorolano attorneys and accountants (collectively, "Agents"), which confidentiality will survive final payment Deleted: later sixty(6o)days following Agreement Execution Page 1 of 14 CONFIDENTIAL or termination of this Agreement for a period of two (2) years. The Parties may make disclosures as required by law, including, without limitation any disclosures required pursuant to the Florida Public records law, and to the Transition Administrator and to a Planning Vendor [but only to the extent that such disclosure specifically relates to that Planning Vendor's work and costs under this Agreement (as identified on Schedule C)] as required to perform obligations under this Agreement, provided, however, that each Party will cause all of its Agents to honor the provisions of this Section. Nextel, Incumbent and their respective Agents may make disclosures regarding the terms of this Agreement to other public safety licensees and their Agents. Each party involved in such disclosures shall cause all of its Agents to confine the disclosure of the terms of this Agreement to only public safety licensees and will advise the party to whom the disclosure was made, to limit further disclosure to only public safety licensees in accordance with the FCC Order, WT Docket No. 02-55, adopted January 8, 2007. 4. Review Richts. In order to enable the Transition Administrator to comply with its audit obligations under the Order, Incumbent agrees to maintain records and other supporting evidence related to the costs that Incumbent has expended in connection with planning activities related to the Reconfiguration and that Nextel has paid or will pay to Incumbent pursuant to this Agreement. Incumbent agrees to maintain such records and make them reasonably available to the Transition Administrator for review or reproduction until twenty-four (24) months after Closing, as defined in Section 7, or for a longer period if Incumbent, for its own purposes, retains such records for a longer period of time. As used in this provision, "records" includes books, documents, accounting procedures and practices and other data regardless of type and regardless of whether such items are in written form, in the form of computer data or in any other form. 5. Chances. If either Party believes that a change to the planning activities contemplated by the Planning Cost Estimate is required (including changes by Planning Vendors), such Party will promptly notify the other Party in writing. Such written notice (the "Planning Funding Change Notice") shall set forth (i) a description of the scope of the change believed to be necessary and (ii) an estimate of any increase or decrease in the Planning Cost Estimate and in the time required to finish planning for the reconfiguration of Incumbent's existing facilities. A Party receiving a Planning Funding Change Notice shall immediately perform its own analysis of the need for and scope of the change and its impact on the Planning Cost Estimate and within fourteen (14) business days schedule and negotiate the change in good faith with the other Party. Within ten (10) business days after the Parties have agreed upon a change to this Agreement, they shall prepare a proposed amendment to this Agreement pursuant to Section 13 and submit to the Transition Administrator a copy of the proposed amendment together with a written request for its approval. Such request shall be accompanied by reasonable documentation supporting the need for and scope of the change and any proposed increase or decrease in the Planning Cost Estimate and in the time required to finish planning for the reconfiguration of Incumbent's existing facilities. incumbent is responsible for all - __ ---- Formatted: Highlight changes necessary'as, it relates to work performed by a Planning Vendor an behalf of ncumben>~ ___. -- Comment[A3]: w6atwasthereason No change to the Planning Cost Estimate, the planning activities contemplated by the Planning Cost ~'~ beh;na the proposed aetedon? Estimate or the time required to finish planning for the Reconfiguration of Incumbent's existing ~' Formatted: Highlight facilities shall become effective until the Transition Administrator has approved the change in writing and both Parties have signed an amendment incorporating such approved change into this Agreement pursuant to Section 13. 6. Disputes. The Parties agree that any dispute related to Nextel's obligation to pay the cost of any planning activities related to the Reconfiguration of Incumbent's system contemplated by this Agreement, which is not resolved by mutual agreement, shall be resolved in accordance with the dispute resolution provisions of the Order, as it may be amended from time to time. 7. Closin The closing ("Closing") of the transactions contemplated by this Agreement will take place after delivery by Incumbent to Nextel of: (i) all receipts, invoices and other documentation required to substantiate the actual costs of the planning activities contemplated by the Planning Cost Estimate ("Actual Planning Costs"), and certification that any Actual Planning Costs incurred for Page 2 of 11 CONFIDENTIAL internal labor aze Fonsistent with the Transition Administrator. policy on Incumbent Labor Rate .-.- reimbursernent as identified at www.800TA.org; and (ii) a copy of all deliverables required to be delivered pursuant to the Statement of Work. Prior to Closing, Incumbent will submit to Nextel documentation (including without limitation invoices, receipts, and timesheets or equivalent documentation) demonstrating the Actual Planning Costs. Upon receipt by Nextel of documentation of the Actual Planning Costs, Nextel and Incumbent will within twenty _five_(25)_business_days _--_- reconcile the Actual Planning Costs against the payments made by Nextel to Incumbent pursuant to this Agreement and the Parties will agree upon the amount of any additional payments due to Incumbent or any refunds due to Nextel. 8. Reconciliation. The effective date of agreement on reconciliation of the Actual Planning Costs and signing of the Closing documents by both Parties is considered the "Planning Funding Reconciliation Date." Any additional payments due to Incumbent from Nextel will be disbursed to Incumbent within thirty (30) days of the Planning Funding Reconciliation Date, provided the additional payments do not result from Actual Planning Costs that exceed the Planning Cost Estimate. Any refunds due to Nextel from Incumbent will be made within thirty (30) days of the Planning Funding Reconciliation Date. In the event Incumbent's Actual Planning Costs exceed the Planning Cost Estimate, Incumbent must submit a Planning Funding Change Notice pursuant to Section 5 of this Agreement describing the change in scope of work that resulted in Incumbent's Actual Planning Costs exceeding the Planning Cost Estimate. Approval of any Planning Funding Change Notice will not be automatic but will be processed in accordance with Section 5 of this Agreement. Additional payments due to Incumbent, which result from an excess of Actual Planning Costs over the Planning Cost Estimate, as agreed on the Planning Funding Reconciliation Date, will be disbursed to Incumbent within thirty (30) days of the Transition Administrator's approval of a Planning Funding Change Notice and execution by both Parties of an amendment incorporating such approved change into this Agreement pursuant to paragraph 13. 9. Vendor Performance Issues: Incumbent will select and contract directly with any vendor or service provider performing the planning activities. Neither the Transition Administrator nor Nextel will be responsible for, or assume the risk of any failure of that Planning Vendor to perform its obligations under any contract entered into between Incumbent and such Planning Vendor in connection with this Agreement. 10. Termination. This Agreement may be terminated and the transactions contemplated by this Agreement abandoned: (i) by mutual consent of the Parties provided in writing; (ii) for cause by either Party upon material breach of the other Party, following a thirty (30) day period for cure by the breaching Party following written notice of the breach or (iii) by Nextel in the event of an,.. Adverse Decision by any governmental entity of competent jurisdiction affecting the Order. For purposes of this Agreement, an "Adverse Decision" means an order, decree, opinion, report or any other form of decision by a governmental entity of competent jurisdiction that results, in whole or part, in a stay, remand, or reversal of the Order, or otherwise in any revision to the Order that Nextel determines, in its reasonable discretion, to be adverse to its interests. In the event of termination due to an Adverse Decision, Nextel will pay Incumbent for all costs incurred up to the date of ternnation plus (i) any and all costs which Incumbent is contractually obligated to pay to any Planning Vendor, notwithstanding termination and (ii) any and all costs, if any, needed to return Incumbent's exeisting facilities to the status quo antes _ _ _ _ _ _ _ _ _ _ _ _ _ 11. Notices: All notices and other communications under this Agreement must be in writing and will be deemed given (i) the same day if delivered personally or sent by facsimile; (ii) the next business day if sent by overnight delivery via a reliable express delivery service, or (iii) after five (5) business days if sent by certified mail, return receipt requested, postage prepaid. All notices are to be delivered to the Parties at the following addresses: Deleted: reasonable ---=i.__._ ..... ........ -- Formatted: Highlight Deleted: wittiniti --- Deleted: y .- ~ Deleted: . Page 3 of 11 CONFIDENTIAL If to Incumbent, to: If to Nextel, to: Nextel Operations, Inc. c/o Sprint Nextel Corporation 2000 Edmund Halley Drive Reston, VA 20191 Attn: Heather P. Brown, Esq. Phone:(***)***-**** Phone: (703)433-4000 Fax:(***)***-**** Fax: (703)433-4483 With a copy that shall not constitute Notice: With a copy that shall not constitute Notice: Sprint Nextel Corporation 6575 The Corners Parkway Norcross, GA 30092 Attn: William M. Jenkins, VP Spectrum Resources Phone: (770) 326-7484 Fax: 678 405-8252 And a copy that shall not constitute Notice to: Sprint Nextel Corporation Attn: Rob Easton, Duector, Spectrum Development 114 Coronation Circle Bountiful, UT 84010 Fax: (801) 296-6556 Phone: (801)294-4810 12. Assienment: This Agreement is binding upon and inures to the benefit of the Parties and their .respective successors and permitted assigns. Either Party may assign this Agreement to any direct or indirect subsidiary or affiliate of the Party, upon delivery of written notice to the other Party. 13. Amendments: This Agreement, including without limitation the scope of the planning activities contemplated hereby and the Planning Cost Estimate thereof to be paid by Nextel, may be amended or modified only by a written instrument signed by authorized representatives of both Parties, provided, however, no amendment or modification to this Agreement shall become effective until approved by the Transition Administrator. 14. BeneSts: This Agreement is for the benefit of the Parties and their successors and permitted assigns, and nothing in this Agreement gives or should be construed to give any legal or equitable rights under this Agreement to any person or entity, other than (i) the successors and assigns of the Parties, and (ii) the Transition Administrator as specifically provided for in Sections 3, 4, 5, 8, 9 and 13. 15. Miscellaneous: If any provision(s) of this Agreement is held in whole or part, to be invalid, void or unlawful by any administrative agency or court of competent jurisdiction, then such provision(s) will be deemed severable from the remainder of this Agreement, will in no way affect, impair or invalidate any other provision contained in the Agreement and the Parties will use their Page 4 of 11 CONFIDENTIAL commercially reasonable efforts to amend this Agreement to make the unlawful provision compliant with applicable law so as to preserve the rights and obligations of the Parties. No action taken pursuant to this Agreement should be deemed to constitute a waiver of compliance with any representation, warranty, covenant or agreement contained in this Agreement and will not operate or be construed as a waiver of any subsequent breach, whether of a similar or dissimilar nature. This Agreement, together with the Schedules, constitutes the entire understanding and agreement between the Parties concerning the subject matter of this Agreement, and supersedes all prior oral or written agreements or understandings. This Agreement is governed by the laws of the _Florida without regard to conflicts of law principles thereof. Subject to Section 6, herein, the Parties agree that the proper venue for any proceeding at law or in equity shall be Palm Beach County, Florida and no other forum. This Agreement may be executed in one or more counterparts, including by facsimile, which will be effective as original agreements of the Parties executing the counterpart. 16. imitation of Liability: Nextel hereby agrees that Incumbent shall not be liable to Nextel for dama cs in an amount in excess of any funds expended by Nextel to Incumbent or on htcmnbent's behalf anal pursuant to IncumUent's appro~~al_for.any_ action_or_claim_for brcach_of contract arising_out_of.performagce or non-performance of any obligations imposed upon Incumbent by this Agreement; provided, however, certain Exclusions (as defined herein) may occur that shall cause this Section l6 to not apply ~u~ld, therefore, Incumbent shall not be entitled to limitation. of._liability_...pursuant...to_this... Section_._.__Specifiical~ ._ thc_ Exclus ions._are;...._...~i) _fraud_or ~arossl~ neg] igent actions or omissions of Incumbent arising oui of the performance of this Agreement: (iil breach of Confidentiality as....prov~cd._iq._.Section.3__he_rein;_~ii_i)_failurc,_of..Incuml?ent to_.properly.maii?lain..records_and otUer_supporting evidence of costs expended under this Agreement; (iii) failure of Incumbent to properly acknowledge goods and services,_provi~iec3 ancJ_associatee~ costs from_a_Platrnin~ Vcndor_invoice,•_and (iy~.failurc of Incumbent to_accurately certify thc._comparabtLty_of costs of Plaunrng Vegt~ors__Nothing contained uI_thls Scct~on or._~lsew_here__In this A.grcement_.~s m any way ~ntendcd_to ~e a waiver of the lmutation_placed upon. incumbent s_h_ab~hty_as set forth_in Sectton 76£i_28 Florida Statutes.. In consideration of the mutual consideration set forth herein, this Agreement is effective as a legally binding agreement between the Parties upon execution by the Parties. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives. INCUMBENT: NEXTEL: Nextel Operations, Inc. By: By: _ Name: Name: Title: Title: Deleted: Limitation of Liability: Nextel hereby agrees that Inwmbent shatl not be liable to Nextel for damage sun an amount in excess of any funds expended by Nextel to Incumbent or on Incumbent's behalf for any action or claim arising out of performance or non- perfomrance of any obligations imposed upon Incumbent by this Agreement. Nothing contained in this Section or elsewhere in this Agreement is in any way intended to be a waiver ofthe limitation placed upon Incumbent's liability as set forth in Section 768.28, Florida Statutes.¶ Page 5 of 11 CONFIDENTIAL SCHEDULE A INCUMBENT LICENSE(S) INVOLVED IN PLANNING ACTIVITIES [IDENTIFY BY CALL SIGN] Page 6 of 11 CONFIDENTIAL SCHEDULE B STATEMENT OF WORK 1. System Description 2. Objectives and Scope 3. Tasks to be Performed 4. Deliverables -with copies of all deliverables to be given to Nextel within 5 days of completed work. 5. Resources and Cost Estimate Back-Up Documentation VENDOR CONTACT INFORMATION: Page 7 of 11 CONFIDENTIAL SCHEDULE C 800 MHZ RECONFIGURATION PLANNING COST ESTIMATE -CERTIFIED REQUEST Incumbent's Name: Request for Plannin¢ Fundin¢ Pursuant to the Order, Incumbent is required to reconfigure its existing facilities and requests Nextel to fund the following estimated planning costs: Incumbent Payment Terms: Nextel will pay Incumbent an amount not to exceed the Planning Cost Estimate for Incumbent with respect to each category of work, as set forth below. Nextel will pay Incumbent $ ******** within 15 days (30 days if Incumbent elects to be paid by check rather than electronic funds transfer) after receipt by Nextel of the fully executed Agreement and fully completed Incumbent Information Form (as set forth on Exhibit 1). Nextel will pay any outstanding balance of the Actual Planning Costs due to Incumbent within 30 days after the Planning Funding Reconciliation Date (as "Actual Planning Costs" and "Planning Funding Reconciliation Date" are defined in this Agreement). Vendor Payment Terms: Nextel will pay each Planning Vendor an amount not to exceed the Planning Cost Estimate for that Planning Vendor with respect to each category of work, as set forth below. Nextel will pay each Planning Vendor within 30 days after receipt by Nextel of (A) an invoice from the Planning Vendor and (B) Incumbent's approval of receipt of goods and services and approval of associated costs included on the Planning Vendor invoice. Description of Planning Work To Payee (separately identify Planning Cost Be Performed Incumbent and each Planning Estimate for Vendor being paid for work Incumbent and performed) each Planning Vendor (Not to exceed listed amount Legal Frequency Analysis System Inventory Engineering and Implementation Planning Project Management Other Costs (provide detailed descri tion of nature of cost Page 8 of 11 CONFIDENTIAL Certification Pursuant to the Order, Incumbent hereby certifies that the funds requested are the minimum necessary to support the planning activities to provide facilities comparable to those currently in use. Incumbent further certifies, to the best of Incumbent's knowledge, that any Planning Vendor costs listed on Schedule C are comparable to costs that Planning Vendor previously charged Incumbent for similar work. Signature: Print Name: Title: Phone Number: E-mail: Date: Page 9 of 11 CONFIDENTIAL EXHIBIT 1 Incumbent Information THE FOLLOWING QUESTIONS ARE REQUIRED FOR PROCESSING ELECTRONIC FUNDS TRANSFERS. ALL INFORMATION CONTAINED HEREIN SHALL BE KEPT STRICTLY CONFIDENTIAL AND WILL BE USED ONLY IN COMPLETION OF THE PLANNING FUNDING AND FREQUENCY RECONFIGURATION TRANSACTION. I. INCUMBENT INFORMATION Please provide the following information: Company/Name: Contact: Address: City/State/Zip: Phone: Fax: Title: If not identified in the contract, please provide the following.• If Incumbent is a Partnership, please provide name, address and phone numbers of all other partners: Name: Name: Address: City/State/Zip: Phone: City/State/Zip: Phone: II. BANK ACCOUNT INFORMATION (Required for payment via electronic funds transfer.) Name of Bank: Bank: City/State/Zip: Bank Phone #: ABA (Routing #): Account #: Name on Account: Federal, State or Individual SS #: Name of Brokerage Firm (if applicable): Brokerage Account # (if applicable): Address of In the event Incumbent will not provide information for electronic funds transfer, Incumbent acknowledges that all payments made by check will be mailed within thirty (30) days of the date of performance required by Incumbent (for each payment) as stipulated in the Agreement. Acknowledged by Incumbent: (signature required only if Incumbent does not want an electronic funds transfer) Page ] 0 of 11 CONFIDENTIAL III. TAX INFORMATION The Internal Revenue Service and state tax authorities require Nextel to report all transactions, even if the transaction is exempt from taxation (if so, it will be reported to the IRS as a like-kind exchange). Therefore, it is necessary for Nextel to collect the information below. If you have specific questions about your tax implications in this transaction, you should consult your own accountant or financial advisor. Incumbent's Federal, State or Individual Tax ID #, FEIN (Federal) or SSN (individuals): State(s) -sales tax license, resale permit, employment, etc.): Local (if applicable): Current State and County location for your principal executive office: If there has been more than one location for the principal executive office within the past five (5) years, list each such City/County/State location: I hereby acknowledge that all of the information provided herein is true and correct as of the date signed below. Incumbent Signature: Print Name: Title: Date: Page 11 of 11 MEMORANDUM TO: FROM: DATE: MAYOR AND CITY COMMISSIONERS CITY MANAGER ~- 7iJNE 1, 2007 SUBJECT: A • DISTRIBUTION OF FY 2008 JUSTICE ASSISTANCE GRANT (BYRNE) FUNDS ITEM BEFORE COMMISSION This is before the City Commission to consider approval of the distribution of FY 2008 Justice Assistance Grant (fk.a. Byrne) funds as recommended by the Criminal Justice Commission (CJC). BACKGROUND The total FY 2008 allocation to Palm Beach County is $564,568. The proposed use of the federal funds is outlined in the attached letter from the CJC. The Florida Department of Community Affairs requires that 51% of the local units of government representing 51 % of the county's population agree on the allocation of the Justice Assistance Grant funds. Chief Schroeder supports the CJC's request for approval of the funding allocations. FUNDING SOURCE N/A RECOMMENDATION Recommend approval of the distribution of FY 2008 Justice Assistance Grant (fk.a. Byrne) funds, and authorize sending the attached letter agreeing to the allocation of these funds. S:\City Clerk\AGENDA COVER MEMOS\AGENDA COVER MEMOS\Allocation of Justice Assistance Grant Funds 000407.doc June 8, 2007 Mr. Clayton Wilder Florida Department of Law Enforcement Office of Criminal Justice Grants 2331 Phillips Road Tallahassee, Florida 32308 Dear Mr. Wilder. In compliance with the State of Florida Rule 11D-9, F.A.C., the City of Delray Beach approves the distribution of $564,568 of Federal Fiscal Year 2007 (FY 2008) JAG -Justice Assistance Grant (previously known as Byrne Formula Grant Progrun funds) for the following projects within Palm Beach County: FEDERAL SUBGRANTEE PROJECT TITLE FUNDS RECOMMENDED City of Riviera Beach/Civil Drug Family Restart $16,500 Court Palm Beach County/CJC Community Justice Service $404,592 Center -West Palm Beach Palm Beach County/Public Drug Court Treatment $38,476 Safe Palm Beach County/Sheriff's Violence Against Women $60,000 Office Palm Beach County/State Forensic Accounting $45,000 Attorn s Office TOTAL $564,568 sincerely, RITA ELLIS MAYOR Et5/'23/ ^OiL 7 13: 13a Czriminal J~sdce Commission :otnrnuniry )vsgoe Servlcs Centcr 301 Ngrrh Ollvt .avenue, Suite IOOl wst Palm Beach, FL 93s0-' rg!+t t T5S-~i943 PA?C: 15~~11 355-J444 www.pbcgov.CWnl~j: ^ hint Qaath Co~rnty Oozed of County Coenmlasbnen Addis L. Greene f..hairpera•,on Jeff Koons. Vice C'I+air l~aren 'r, Marcus Warren N. Newell Mary M<CsrtY Bufti Adfi.+nS01+ Jess R. Santamaria Canary lldrninistrawr Robert vveisman ^ Crimiaal Justice Commiulon 0liicets Harry A. Johnston ll. Chairman lames Elam. Vicc Chairman E'eirmon Juhrtsun. SerrUary, Harnara Cheives. Treasurer 6testusive lDir~eror Mlrhaet L. Rodriguez E-mail; mtrodrlg~pDcgov.com '.In dqur! t7lnpvrrrnrty ~~(~5i.ru/ir~.•rNon tYryodgyn' 5F1 ~55a9J1 May 29, 2007 ..J'- To All Palm Beach County Mayors: PANE fi^_ The Criminal Justice Commission (CJC) seeks your approval in the allocation of FY2008 (Federal Fisca! Year 2007) JAG funds. The total FY2007 allocation to Palm Beach County is 5564,568. JAG blends the previous Byme Formula and Local Law Enforcement 61ock Grant (LLEBG} Programs to provide agencies with the flexibility to prioritize and place justice funds where they are needed most. Due to decreased federal grant funding and the uncertainty for continued funding in future years. the CJC voted to support continuation of existing programs. The recommendation for the FY2008 allocation is as follows: _. FEDERAL SUBGRANTEE PROJECT TITLE FUNDS RECOMMENDED City of Riviera Beach/ Family Restart - $16 500 civil drug court , _ _ _ Palm Beacn County/CJC Community Justice Service _ _ _ $404 592 _ _ ~ Center -West Palm Beach , Palm Beath County! Public Safety ~~ Drug Court Treatment __ __ _ $38,476 Palm Beach County/ Sheriffs Office Violence Against Women _ $60,000 Palm Beach County! State Ano ney s Uttice TOTAL _ Cnrn c+r d ,,, ,- s ~c nap . _. _ ..n..:... ~c~;nting-•• -• • ~ •••~ ,,,,,,t,,,t, _ - . - --.-~..... _ ----- _,..~ __. _. _ .--- ---•- - --- - - --- _ S'564, 588 The F?orida Department of Law Enforcement (FDLE) requires that fifty-one percent (51 %) of the local units of government representing at least fifty-one percent {51°r6) of the county's population agree on the allocation of these funds, For your convenience, we have prepared a sample letter for your use. This sample letter can also be e-mailed to you by e-mailing a request to Shairette Major at SMAJORCa~PBCGOV.COM. Due to the application deadline, this letter must tie received at the Criminal Justice Commission Office, no later than June 8, 2007. priY+wOOn reryoYO WIO'sr 1~5/='9/^_fj-~7 11: fi~l 561355a9~t1 CJ~:; Fa~~E ~, Criminal Justice Commission Please send the letter to: Gommuniey justice Service Cencer 301 North plrvc AvCtlur,. Suite 1001 Palm Beach County Criminal Justice Commission Attn: Shairette Major west Palm Aea~h, FL 33~}I12 301 North Olive Avenue, Suite 1001 Isa71 s:SS~~+a~~ West Palrn Beach. FL 33401 fA]C: (Sb11 1S5•i9~f 1 ""~'.F,ncQc~.con~l~i` If you should require additional information or have any questions, please contact Shairette Major at (561) 355-4939. Your immediate attention to this matter is ~ greatly appreciated. ..~, ~ Paln+ desclh County l~uard of County : , ._ - ~A~:~% ~ ~ :;. Comnrlssiowen ~'' Michar6l L' Radri~ez AatAie l.. f:reene. Ct~alrperson Executive Director Je(( Koons. Vice Chair Karan T. Marcus Ce: Mr. Harry Johnston, CJC Chairman warren H. Newall All Palm Beach County Police Chiefs Mary blcCar[y Bw'[ Aaronson Tess R. Santamaria Coonty Adrninlstrator Rohart w'cisman Criirwiewi )YStite Cemrnissiow Officers Harry, A. Johnston 11, Chairma~~ Jxmra parr, vice Chairman Fe~rmon Johnson. Secretary Barbara Gheives, Treasurer m=aentiv~ Director MlGhael I_. iiodrigttez E-mail: mlmArj¢®pbcgrw.~:r,m '•rn ~! flfrfvfuniA• prirrhrd on rscra~w~ DMOrr -~5/29/^_f~t~7 1 ?: f_1~t 561'S5~19~i1 '~ T', <insert date> Mr. Clayton Wilder Florida Department of Law Enforcement Office of Criminal Justice Grants 2331 Qhillips Road Tallahassee, FL 32308 Dear Mr. Wilder: FA~aE 0~ In compliance with the State of Florida Rule 11D-9. F.A.C., the <inseR name of city. village or town> approves the distribution of $584,588 of Federal Fiscal Year 2007 (FY20081 JAG -Justice Assistance Grant (previously known as Byrne Formula Grant Program funds) for the following projects within Palm Beach County: _~ FEDERAL SUBGRANTEE ~ PROJECT TITtE FUNDS .. ~. ^ RECOMMENDED City of Riviera Beach/ Family Restart $16,500 _ _ Civil Drug Court ._._ .___. Community Justice Service $404 592 Palm Beach CountylCJC Center-West Palm Beach , Palm Beach County) Drug Court Treatment 538,476 f ublic Safe ___~~. Palm Beach County/ Violence Against Women $60,000 Sheriffs Office Palm Beach Countyl Forensic Accounting $45,000 State Altomey's Office .~ .-_- -- TOTAL 5584,568 Sincerely. Mayor <inSeR name of city. town, vi!lsge> MEMORANDUM TO: MAYOR AND CITY~4MMISSIONERS (~ I~-~ FROM: R. BRIAN SHUTT, ASST. CITY ATTORNEY THROUGH: CITY ATTORNEY DATE: JUNE 1, 2007 SUBJECT: AGENDA ITEM # ~ • 1 -REGULAR MEETING OF JUNE 4, 2007 MUTIPLE AGREEMENTS WITH BLOCK 77 ON THE TRANSFER OF THE BLOCK 69 PARKING GARAGE TO THE CITY ITEM BEFORE COMMISSION The following agreements relate to the transfer of the Block 69 parking garage to the City from the Block 77 Development Group: Limited Parking License Agreement, Indemnification and Hold Harmless Agreement, Assignment and Assumption of Parking Space Lease, Agreement Between Adjoining Landowners, Memorandum of Understanding, Third Amendment to Parking Space Lease, Memorandum of Lease, Second Amendment to Release of Parking Easement, Guaranty Agreement, Sump Pump Installation Warranty Agreement and Mutual Estoppel Certificate. BACKGROUND Some of these agreements, as specified on the attached memo, have previously been approved by the Commission at its February 6, 2007 meeting. However, since that time certain changes have been made to those agreements and other agreements have been developed as required. An explanation of the changes and new agreements are provided on the attached memo from Steve Rubin. FUNDING SOURCE N/A RECOMMENDATION Staff recommends approval. STEVEN D. RUBIN ATTORNEY A7 LAW SUITE 434 COMPBON FINANCIAL CENTBB 9B0 NORTH FEDERAL HIGHWAY BOCA EATON, FLOBIDA flfl4fl2 BOARD CERTIFIED: TELEPHONE (561) 391-7992 REAL ESTATE LAW MEMORANDUM FAx cssl~ 3a~-OS2s To: Brian Shutt, Esq. From: Steven D. Rubin, Esq. Re: Conveyance of Block 69 Garage to the City of Delray Beach Date: May 31, 2007 Attached to this Memorandum are the following documents which should be placed for approval by the City Commission at its June 4, 2007 meeting. Almost all of the documents attached to this Memorandum have previously been approved by the City Commission. However, because of the changes that have occurred in the transaction since January, 2007, the documents previously approved have been modified to reflect the current status ofthe transaction. The documents attached to the Memorandum are as follows: 1. Limited Pazking License Agreement -this document allows the public to park on certain land owned by the Block 77 and its related entity pending constriction of Worthing Place. No change since January, 2007. 2. Indemnification and Hold Harmless Agreement -this Agreement requires William Morris, individually to indemnify and hold the City harmless from and against any claims that may arise as a result of the injection of chemical grout underneath the surface of the property which adjoins the garage immediately to the north (Royal Atlantic Condominium}. This is a new document. There is a pending Adjoining Land Owners' Agreement which may be executed by Block 77 and the owner of the Royal Atlantic Condominium site which creates a perpetual easement for the chemical grout underneath the surface of the Royal Atlantic property however, this document has not yet been executed and may not be by the owner of Royal Atlantic. 3. Assignment and Assumption of Parking Space Lease -this document was previously approved by the City Commission, the only change is the legal description exhibit and the reference to the Third Amendment to the Pazking Space Lease. 4. Agreement Between Adjoining Landowners -the City is not a party to this Agreement although it will be bound by the Agreement if the Agreement is executed by Block 77 and the owner of Royal Atlantic and when the City acquires title to the garage. This is a new Page 1 of 3 document prepared to set forth the rights between the City and the owner of the Royal Atlantic property with respect to the chemical grout which was injected under the surface of Royal Atlantic Condominium by Block 77 during construction. Essentially, it requires each party to maintain and repair the portion of the chemical grout which lies under the surface of each respective parties' property and precludes removal of the chemical grout if it would adversely affect the structural component of any improvement on the properties. It also grants a perpetual easement in favor of the City to allow the chemical grout to remain under the surface of the Royal Atlantic Condominium property. 5. Memorandum of Understanding -this Agreement was previously approved by the City Commission. The only change to the document is the reference to the post-closing obligations contained in the Indemnification and Hold Harmless Agreement and the Sump Pump Installation Warranty. b. Third Amendment to Parking Space Lease -this was previously approved by the City Commission but has been modified. The changes reflect the final Parking Space layout, and the revised legal description of the garage. 7. Memorandum of Lease -the Memorandum was previously approved by the City Commission when it approved the Parking Space Lease. However, in light of the revisions to the legal description of the Parking Garage and the Parking Space layout, this document has been modified to reflect those changes. 8. Second Amendment to Release of Parking Easement -this is a new Amendment to an existing Agreement which was approved by the City Commission. This allows Block 77 to place its marketing trailer on a portion of the parking lot which lies immediately to the south of Worthing Park. The term of the original Release had a stated expiration date of May 4, 2007, and the date is extended to June 30, 2007 or when the Parking Garage is conveyed to the City, whichever comes first. 9. Guaranty Agreement -the City Commission previously approved the Guaranty Agreement in which William Morris personally guaranteed to the City (in lieu of the maintenance bond) that Block 77 would comply with its post-closing warranty obligations under the Public Parking Facility Agreement. An additional clause was added to this Agreement to include in Mr. Moms' personal guaranty the performance of Block 77 under the Sump Pump Installation Warranty Agreement. 10. Sump Pump Installation Warranty Agreement - this is a new Agreement. During the course of inspection of the garage by the City, it was determined that an inspection for the sump pump was never called by the contractor and therefore the City did not have the opportunity to actually inspect the pump prior to the time when it was sealed underground. In addition to letters the City has obtained from Dunkelberger Engineers certifying that the soil compaction and other technical specifications meet current standards, Block 77 has agreed Page 2 of 3 to wan~ant the handling and installation of the sump pump and its related components for a period of five {5) years. 11. Mutual Estoppel Certificate -this Certificate was previously approved by the City Commission. The only change has been to the language which now states "to the best knowledge" of the City. Page 3 of 3 /. LIMITED PARKING LICENSE AGREEMENT (to the City of Delray Beach, Florida) THIS L MITED PARKING LICENSE AGREEMENT ("Agreement") is made as of this ~v day of 2007 (the "Effective Date"), by and between BLOCK 77 DEVELOPMENT GROUP, L.C., a lorida limited liability company whose address is 900 E. Atlantic Avenue, Suite 13, Delray Beach, Florida 33483 ("Block 77"), SOUTH 69, LLC, a Florida limited liability company, whose address is 900 E. Atlantic Avenue, Suite 13, Delray Beach, Florida 33483 ("South 69") and CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation, whose address is 100 N.W. IS' Avenue, Delray Beach, Florida 33444 ("Licensee"). RECITALS: WHEREAS, Block 77 is the owner of that certain real property as described on Exhibit A attached hereto and incorporated herein (the "Block 77 Property"); and WHEREAS, South 69 is the owner of that certain real property legally as described on Exhibit B attached hereto and incorporated herein (the "South 69 Property"); and WHEREAS, Block 77 and South 69 had previously granted a license to Licensee pursuant to a Limited Parking License Agreement dated December 19, 2006 (the "Prior License"); and WHEREAS, the parties hereby terminate the Prior License; and WHEREAS, Licensee requires a license to use those portions of the Block 77 Property and the South 69 Property as cross-hatched on the site plan attached hereto as Exhibit C and incorporated herein (the "Licensed Premises") less and except that certain portion Lot(s) 4, 5, and 6 of the Block 77 Property as designated on the site plan, subject to the ternls and conditions of this Agreement; and WHEREAS, Block 77 and South 69 have agreed to grant the required licenses to Licensee, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, the mutual agreements of the parties ]iereto, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Grant of License. Block 77 and South 69 hereby grant to Licensee an exclusive license to utilize the Licensed Premises for the limited purpose of parking of automobiles and for vehicular and pedestrian ingress, egress and access. Licensee, at its cost and expense, shall obtain and maintain during the teen of this Agreement all pernlits and licenses necessary to use each area of the Licensed Premises. 2. Term of Licenses. This Agreement shall commence on the Effective Date and shall continue until the submission by Block 77 of an application to Licensee's Building Department for the issuance of a building perniit for construction of residential condominium units, retail condominium units, and a private parking garage known as "Worthing Place" on Block 77, map of the town of Linton (now Delray Beach), Florida, Plat Book 1, Page 3, Public Records of Palm Beach County (the "Permit Application"). The licenses granted under this Agreement and this Agreement shall tern~inate automatically and simultaneously upon the date of submission of the Permit Application to Licensee. 3. Licenses Only. This Agreement creates licenses only and Licensee acknowledges that Licensee does not have and shall not claim, at any time, an interest or estate of any kind or extent whatsoever in the Block 77 Property or the South 69 Property by virtue of this Agreement or Licensee's use of the Licensed Premises pursuant hereto. 4. Condition of Licensed Premises. Licensee accepts the Licensed Premises as is, where is and with all faults. Licensee shall repair and/or improve the Licensed Premises as necessary to bring the Licensed Premises into compliance with applicable laws or regulations for Licensee's use or as Licensee otherwise deems desirable or necessary. 5. Return of the Premises. Upon the termination of this Agreement, Licensee, at its cost and expense, shall remove all its signs and equipment from the Licensed Premises and shall restore all portions of the Licensed Premises to the condition which existed immediately preceding Licensee's use thereof, to the extent reasonably practicable, ordinary wear and tear excepted. Any improvements to the Licensed Premises by Licensee shall automatically become the property of Block 77 or South 69, as applicable, upon the installation of such improvement on the Licensed Premises. 6. Reservation of Rights. For the duration of this Agreement, the right to use the Licensed Premises, the right of ingress and egress over the same, is expressly reserved by Block 77 and South 69 and their successors, grantees, invitees and assigns, provided said use does not materially and unreasonably interfere with the Licensee's use under this Agreement. Notwithstanding anything to the contrary in this Agreement, Block 77 expressly reserves the right to commence construction upon the Block 77 Premises, including, but not limited to, the installation of utility lines and the demolition of existing structures. Block 77 shall have the right to temporarily close the use of and access to those portions of the Block 77 Premises as Block 77 deems necessary in its discretion for construction purposes, provided that at least thirty (30) parking spaces at the Licensed Premises shall be available to Licensee under this Agreement. this Agreement. No Transfer by Licensee. Licensee shall not transfer, assign or convey its rights under 8. Maintenance. During the terns of this Agreement, Licensee, at its cost and expense, shall be responsible for the cleaning and maintenance of the Licensed Premises. Licensee shall comply with all federal, state and local statutes, codes, laws, orders, decrees, ordinances, rules and regulations (collectively "Laws"). 9. Indemnity. In consideration of the grant of license under this Agreement, Licensee hereby assumes full liability for all acts of, or injury to, all persons and/or property who enter onto the Licensed Premises and, to the fullest extent permitted by law, Licensee agrees to indemnify, defend and hold harnlless Block 77 and South 69 and covenants that Block 77 and South 69 shall not be liable for any damage or liability of any kind or for any injury or damage to property or person (including death) from any cause whatsoever related to Licensee's use of the Licensed Premises. Licensee shall pay for, defend (with an attorney approved and selected by Block 77 and South 69), indemnify, and save Block 77 and South 69 harn7less against and from any real or alleged damage or injury and from all claims, judgments, liabilities, costs and expenses, including all attorney's fees and costs, arising out of or connected with Licensee's use of the Licensed Premises, any breach of this Agreement by Licensee, any violation by Licensee of any Laws, and any loss, cost or expense resulting from any of the foregoing; provided, that such exculpation shall not extend to such damage or injury (or proportionate share thereof) to the extent that the same is ultimately determined to be attributable to the gross negligence or willful 2 misconduct of Block 77 or South 69. This obligation to indemnify shall include all of Block 77 and South 69's attorneys' fees, litigation costs, investigation costs and court costs and all other costs, expenses and liabilities incurred by Block 77 and South 69 or its counsel from the first notice that any claim or demand is to be made or may be made. Licensee's indemnity obligations will not be diminished by the existence of any insurance. Licensee's indemnity, defense and hold harmless obligations shall be limited to one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the annual aggregate. 10. Insurance. Licensee shall be responsible for insuring (including by self-insurance, at Licensee's election) against all liabilities which may accrue as to person or property (acknowledged to be self-insurance at Licensee's election) as to the Licensed Premises. 11. No Liens. Licensee shall not permit any lien to be filed against the Licensed Premises or any improvements thereon and, at Licensee's sole cost and expense, shall take all action necessary to remove such lien(s) from title. 12. No Warranty; Inte ation. This Agreement embodies the entire understanding of the parties hereto, and there are no further or other agreements or understanding, written or oral, in effect between the parties relating to the subject matter hereof. Licensee acknowledges that Block 77 and/or South 69 have made no warranties, representations, promises, covenants or guaranties of any kind or nature, express or implied (collectively "Representations") concerning the condition or suitability of the Licensed Premises for Licensee's use and any such Representations are hereby disclaimed.. 13. Neither Partners nor Joint Venturers. None of the terns, provisions or conditions of this Agreement shall be construed as creating or constituting Block 77 and/or South 69 as a co-partner or joint venturer with Licensee, or each other, nor constituting Licensee the agent of Block 77 or South 69, nor shall any of the provisions of this Agreement be construed in a manner so as to make Block 77 or South 69 liable for the debts or obligations of Licensee. 14. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered in person to the party to whom it is addressed on the day of service if by personal delivery or on the third day after deposit in the U.S. mail as registered or certified mail, return receipt requested, postage prepaid, at the addresses first listed above. 15. Time is of the Essence. Time is of the essence of this Agreement and of each of its provisions. 16. Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not effect any other provision hereof, and this license shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 17. Gender. Whenever used herein, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders. 18. Construction of this Agreement. This Agreement is deemed to have been drafted jointly by the parties, and any uncertainty or ambiguity shall not be construed for or against either party as an attribution of drafting to either party. 3 parties. 19. Recording. This Agreement shall not be recorded without the written consent of all 20. Modification of Agreement. No modification of this Agreement shall be deemed effective unless in writing and signed by all parties. 21. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall together constitute one and the same instrument. [SIGNATURES BEGIN ON THE FOLLOWING PAGE] 4 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. WITNESSES: Print N Print Name: Name: :ioA~+KG (aIF1J/J1~1 CITY OF DELRAY BEACH, FLORIDA a Florida municipal corporation By: Name: Title: BLOCK 77 DEVELOPMENT GROUP, LC, a Florida invited liability om any By: William E. Morris, Manager SOUTH 69, LLC, a Florida ' nited liability company By: William E. Morris, Manager EXHIBIT "A" BLOCK 77 PROPERTY All of Lots 7, 8, 9, 10 and 13, the South 59.84 feet of Lots 4, 5 and 6, and the North 50.5 feet of Lot 11, Block 77, Map of the Town of Linton (now Delray Beach), according to the map or plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. 6 EXHIBIT B SOUTH 69 PROPERTY Lot 19, SUBDIVISION OF BLOCK 69, DELRAY, FLORIDA, according to the plat thereof recorded in Plat Book 2, page 43, public records of Palm Beach County, Florida, less and except the West two feet, the South two feet and the East five feet thereof. 7 EXHIBIT C SITE PLAN (COPY ATTACHED) I ~ p ~ ~ S Exhibit C -' i pfrr' ~ t . isc , ~ '~ .{3,r {~ ~ F Lys k~~4 t-!`. .._...._ _,.e._... _ - ~. , ,. _ _.... _ n....».. ___ .. .............. _... _ ..._-..._ _ _, ..._.. -. ~..,,. xxr .. - ._ F 2 INDEMNIFICATION AND HOLD HARMLESS AGREEMENT THIS INDEMNIFICATION AND HOL HARMLESS AGREEMENT (this "Agreement") is made and entered into as of this ~o day of , 2007 (the "Effective Date"), by William E. Morris, Jr., an adult resident of the State of Flori a (Indemnitor"), in favor of the City of Delray Beach, a Florida Municipal corporation ("City"). RECITALS: WHEREAS, Block 77 Development Group, L.C. a Florida limited liability company ("BLK77") and City are parties to that certain Public Parking Facility Construction and Conveyance and Worthing Park Contribution Agreement dated November 10, 1999 (the "Parking Facility Agreement"); and WHEREAS, pursuant to the terms of the Parking Facility Agreement, BLK77 has constructed an as, on e ec ive a e, conv y 69 as well as a portion of Lot 19, Block 69 (to wit: the North 3.5" inches thereof) (the "Parking Facility"); and WHEREAS, Ocean City Place, LLC ("Ocean City"), the owner of the real property directly north of and adjacent to the Parking Facility, as legally described on Exhibit A attached hereto and incorporated herein ("Ocean City Property"), claims that a portion of the Parking Facility enroaches onto the Ocean City Property; and WHEREAS, BLK77 claims that the enroachment was (i) with the consent of Ocean City and (ii) to the benefit of the Ocean City Property; and WHEREAS, in order to induce City to close on the transfer of the Parking Facility, Indemnitor has agreed to grant; and City has agreed to accept, this indemnification and hold harmless subject to and upon the certain terms and conditions as set forth herein; and NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable considerations, the receipt of which is hereby acknowledged by each party from the other, the parties hereto agree as follows: Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Indemnification. To the fullest extent permitted by law, Indemnitor agrees to indemnify, defend and hold harmless City and covenants with City that City shall not be liable for any damage, loss, cost, expense or liability of any kind from any cause whatsoever related to any claims that the Parking t! acility encroaches upon the property described on Exhibit A (the "Indemnity"). Indemmnitor shall pay for, defend (with an attorney approved and selected by City), indemnify, and save City harmless against and from any real or alleged damage or injury and from all claims, judgments, liabilities, costs and expenses, including attorney's fees and costs, arising out of or connected with the Indemnity, any breach of this Agreement by Indemnitor; provided, that such exculpation shall not extend to such damage or injury (or proportionate share thereof) to the extent that the same is ultimately determined to be attributable to the gross negligence or willful misconduct of City. This Indemnity shall include all of City's attorneys' fees, litigation costs, investigation costs and court costs and all other costs, expenses and liabilities incurred by City from the first notice that any claim or demand is to be made or may be made. Indemnitor's obligations hereunder shall not be diminished by the existence of any insurance. Indemnification and Hold Harmless Morris to Cityv. 3.0 Final 5-30.doc t ~~ 3. Certain Agreements And Waivers By Indemnitor. (a) Indemnitor hereby agrees that neither City's rights or remedies nor Indemnitor's obligations under the terms of this Agreement shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts or circumstances, and the liability of Indemnitor under this Agreement shall be absolute and unconditional irrespective of: 1) any limitation of liability or recourse in any other agreement or arising under any law; 2) any claim or defense that this Agreement was made without consideration or is not supported by adequate consideration; 3) the taking or accepting of any other security or agreement for, or right, of recourse with respect to, any or all of the Indemnity; 4) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve; impairment or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected.to exist in connection with any or all of the Indemnity, including any impairment of Indemnitor's recourse against any Person or collateral; 5). whether express or by operation of law, any partial release of the liability of Indemnitor hereunder, or if an agreement is now or hereafter obtained by City covering all or any part of the Indemnity, any complete or partial release of any one or more of such Indemnitor under any such other agreement, or any complete or partial release of any other party liable, directly or indirectly, for the Indemnity; 6) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or partnership, sale of all assets, or lack of corporate, partnership or other power of Indemnitor or any other party at any time liable for the payment or performance of any or all of the Indemnity; 7) with notice to and consent of Indemnitor; any renewal, extension, modification, supplement, subordination or rearrangement of the terms of any or all of the Indemnity, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, of any or all of the Indemnity, or any adjustment, indulgence, forbearance or compromise that may be granted from time to time by City to Indemnitor, and/or any other Person at any time liable for the payment or performance of any or all of the Indemnity; 8) any neglect, lack of diligence, delay, omission, failure or refusal of City to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Indemnity, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or ~in taking or prosecuting) any action in connection with any Indemnity or'any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Indemnity; 9) any failure of City to notify Indemnitor of any creation, renewal, extension, rearrangement, modification, supplement, subordination or assignment of the Indemnity or any part thereof, or of any release of or change in any security, or of any other action taken or refrained from being taken by City against Indemnitor 2 or any security or other recourse, or of any new agreement between City and Indemnitor, it being understood that City shall not be required to give Indemnitor any notice of any kind under any circumstances with respect to or in connection with the Indemnity except as expressly provided herein, any and all rights to notice Indemnitor may otherwise have had which are not required hereunder being hereby waived by Indemnitor; 10) the making of advances by City to protect their interest in the Parking Facility; 11) the existence of any claim, counterclaim, set-off or other right that Indemnitor may at any time have against City, or any other Person, whether or not arising in connection with this Agreement. 12) any right or claim of right to cause a marshaling of any of Indemnitor's assets or the assets of any other party now or hereafter held as security for the Indemnity; the defense of the statute of limitations in any action hereunder or for the payment of the Indemnity and performance of any obligation hereby guaranteed; any defense that may arise by reason of the incapacity, lack of authority, death or disability of Indemnitor or any other person or entity, or the voluntary or involuntary dissolution of Indemnitor, or the failure of City to file or enforce a claim against the estate (either in administration, bankruptcy or any other proceeding) of Indemnitor or any other person or entity; any defense based on the failure of City to give notice of the existence, creation or incurring of any new or additional Indemnity or obligation, or of any action or non-action on the part of any other person whomsoever or the Indemnity, in connection with any obligation hereby guaranteed; any defense based upon an election of remedies by City which destroys or otherwise impairs any subrogation rights o* indemnitor; 13) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to BLK77 or any other Person, including any extension, reduction, composition or other alteration of the Indemnity, whether or not consented to by City; or 14) any other condition, event, omission or action that would in the absence of this paragraph result in the release or discharge of the Indemnitor from the performance or observance of any obligation, covenant or agreement contained in this Agreement or any other agreement, other than based upon the full and indefeasible satisfaction of all Indemnity. (b) In the event any payment or performance by Indemnitor or any other Person to City is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason City is required to refund such payment or pay the amount thereof to any other party, such payment by Indemnitor~or any other party to City shall not constitute a release of Indemnitor from any liability hereunder, and this Agreement shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by City of this Agreement or of Indemnitor), as the case may be, with respect to, and this Agreement shall apply to, any and all amounts so refunded by City or paid by City to another Person (which amounts shall constitute part of the Indemnity), and any interest paid by City and any reasonable attorneys' fees, costs and expenses paid or incurred by City in connection with any such event. It is the intent of Indemnitor and City that the obligations and liabilities of Indemnitor hereunder are absolute and unconditional under any and all circumstances and that until the Indemnity is fully and finally paid and performed, and not subject to refund or disgorgement, the obligations and liabilities of Indemnitor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Agreement, be deemed a legal or equitable discharge or release of a Indemnitor. City shall be entitled to continue to hold this Agreement in their possession for a period of one year from the date the Indemnity are paid and. performed in full and for so long thereafter as may be necessary to enforce any obligation of Indemnitor 1•:ereunder and/or to exercise any right or remedy of City hereunder. (c) Indemnitor hereby waives and agrees not to assert or take advantage of (i) any right or claim of right to cause a marshalling of any of BLK77's assets or the assets .of any other party now or hereafter held as security for any indebtedness; (ii) the defense of the statute of limitations in any action hereunder or for the payment of any indebtedness and performance of any obligation hereby guaranteed; (iii) any defense that may arise by reason of the incapacity, lack of authority, death or disability of Indemnitor or any other person or entity, or the voluntary or involuntary dissolution of Indemnitor, or the failure of City to file or enforce a claim against the estate (either in administration, bankruptcy, or any other proceeding) of BLK77 or any other person or entity; (iv) any defense based on the failure of City to give notice of the existence, creation, or incurring of any new or additional indebtedness or obligation, or of any action or non-action on the part of any other person whomsoever in connection with any obligation hereby guaranteed; (v) any defense based upon an election of remedies by City which destroys or otherwise impairs any subrogation rights of Indemnitor or any other Indemnitor of the Loan or'the right of Indemnitor to proceed against BLK77 or any other Indemnitor for reimbursement, or both; (vi) any defense based upon failure of City to commence an action against BLK77 or Indemnitor; (vii) any defense based upon acceptance of this Agreement-by-Eity~ (viiij-any-defense-based-upon-the failure of City to perfect any security or to extend or renew the perfection of any security; and (ix) any other legal or equitable defenses whatsoever to which Indemnitor might otherwise be entitled, other than based upon the full and indefeasible satisfaction of all Indemnity. 4. Subordination. If, for any reason whatsoever, BLK77 is now or hereafter becomes indebted to Indemnitor, such indebtedness and all interest thereon and all liens, security interests and rights now or hereafter existing with respect to property of BLK77 securing such indebtedness shall, at all times, be subordinate in all respects to the Indemnity and to all liens, security interests and rights now or hereafter existing to secure the Indemnity; 5. Assigns. This Agreement is for the benefit of City, and its successors and/or assigns, and in the event of an assignment of the Indemnity, or any part thereof, the rights and benefits hereunder, to the extent applicable to the Indemnity so assigned, may be transferred with such Indemnity. Indemnitor waives notice of ariy ransfer or assignment of the Indemnity, or any part thereof, and agrees that failure to give notice of any. such transfer or assignment will not affect the liabilities of Indemnitor hereunder. 6. Binding Effect. This Agreement is binding not only on Indemnitor, but also on Indemnitor's heirs,' personal representatives, successors and assigns. Upon the death of Indemnitor, if Indemnitor is a natural person, this Agreement shall continue against Indemnitor's estate as to all of the Indemnity, including that portion of same incurred or arising after the death of Indemnitor, and shall be provable in full against Indemnitor's estate, whether or not the Indemnity are then due and. payable. If this Agreement is signed by more than one person, then all of the obligations of Indemnitor arising hereunder shall be jointly and severally binding on each of the undersigned, and their respective heirs, personal representatives, successors and assigns, and the term "Indemnitor" shall mean all of such persons and each of them individually. 7. Governing Law; Forum; Consent to Jurisdiction. This Agreement is an agreement executed under seal. The validity, enforcement, and interpretation of this Agreement shall for all purposes be governed by and construed in accordance with the laws of the State of Florida and applicable United States federal law, and the performance hereof is intended to be done in accordance with, and only to the extent permitted by, such laws. All obligations of Indemnitor hereunder are payable and performable at the place or. places where the Indemnity is payable and performable. Indemnitor hereby irrevocably submits generally -arid unconditionally for Indemnitor and in respect of Indemnitor's property to the nonexclusive jurisdiction of any state court, or any United States federal court, sitting in Palm Beach County, Florida, and to the jurisdiction of any state or United States federal court sitting in Palm Beach County, Florida; over any suit, action or proceeding arising out of or relating to this Agreement or the Indemnity. Indemnitor hereby irrevocably waives, to the fullest extent permitted by law, any objection that Indemnitor may now or hereafter have to the laying of venue in any such court and anfti; claim that any 4 such court is an inconvenient forum. Final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon Indemnitor and may be enforced in any court in which Indemnitor is subject to jurisdiction. Indemnitor hereby agrees and consents that, in addition to any methods of service of process provided for under applicable law, all service of process in any such suit, action or proceeding in any state court, or any United States federal court, .sitting in the state specified in the first sentence of this Section may be made by certified or registered mail, return receipt requested, directed to Indemnitor at the address set forth at the end of this Agreement, or at a subsequent address of which City receives actual notice from Indemnitor in accordance with the notice provisions hereof, and service so made shall be complete five (5) days after the same shall have been so mailed. Nothing herein shall affect the right of City to serve process in any manner permitted by law or limit the right of City to bring proceedings against Indemnitor in any other court or jurisdiction. Indemnitor hereby releases, to the extent permitted by applicable law, all errors and all rights of exemption, appeal, stay of execution, inquisition, and other rights to which Indemnitor may otherwise be entitled under the laws of the United States of America or any state or possession of the United States of America now in force or which may erema er a enac a eau on an p shall not be exhausted by one or more exercises thereof or by any imperfect exercise thereof and shall not be extinguished by any judgment entered pursuant thereto. Such authority may be exercised on one or more occasions or from time to time in the same or different jurisdiction as often as the City shall deem necessary and desirable. 8. Invalidity of Certain Provisions. If any provision of this Agreement or the application thereof to any Person or circumstance shall, for any reason and to any extent, be declared to be invalid or unenforceable, neither the remaining provisions of this Agreement nor the application of such provision to any other Person or circumstance shall be affected thereby, and the remaining provisions of this Agreement,~or the applicability of such provision to other Persons or circumstances, as applicable, shall remain in effect and be enforceable to the maximum extent permitted by applicable law. 9. ' Attorneys' Fees and Costs of Collection. Indemnitor shall pay on demand all reasonable attorneys' fees and all other costs and expenses incurred by City in the enforcement of or preservation of City rights under this Agreement, including, without limitation, all reasonable attorneys' fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, or whether at maturity or by acceleration, or whether before or after maturity, or whether in connection with bankruptcy, insolvency or appeal, or whether in connection with the collection and enforcement of this Agreement against any other Indemnitor, if there be more than one. Indemnitor agrees to pay interest on any expenses or other sums due to City under this Section 12 that are not paid when due, at a rate per annum equal to Eighteen Percent (18%). Indemnitor's obligations and liabilities under this Section 9 shall survive any payment or discharge in full of the Indemnity. 10. Payments. All sums payable under this Agreement shall be paid in lawful money of the United States of America that at the time of payment is legal tender for the payment of public and private debts. 11. Representations, Warranties and Covenants of Indemnitor. Indemnitor hereby represents, wan•ants, and covenants that (a) Indemnitor has a financial interest in BLK77 and will derive a material and substantial benefit, directly or indirectly, from the construction of the Parking Facility and from the making of this Agreement by Indemnitor; (b) this Agreement is duly authorized and valid, and is binding upon and enforceable against Indemnitor; (c) Indemnitor is not, and the execution, delivery and performance by Indemnitor of this Agreement will not cause Indemnitor to be, in violation of or in default with respect to any law or in default (or at risk of acceleration of indebtedness) under any agreement or restriction by which Indemnitor is bound or affected; (d) Indemnitor is an adult resident of the State of Florida; (e) Indemnitor will indemnify City from any loss, cost or expense as a result of any representation or warranty of Indemnitor being false, incorrect, incomplete or misleading in any material respect; (f) other than as disclosed to and approved by City, there is no litigation pending or, to the knowledge of Indemnitor, overtly threatened before or by any tribunal against or affecting Indemnitor which would have the effect of materially and adversely affecting the financial condition of Indemnitor; (g) after giving effect to this Agreement, Indemnitor is solvent, is not engaged or about to engage in business or a transaction for which the property of Indemnitor is an unreasonably small capital, and does not intend to incur or believe that it will incur debts that will be beyond its ability to pay. as such debts mature; (h) City has na duty at any time to investigate or inform Indemnitor of the financial or business condition or affairs of BLK77 or any change therein; (i) Indemnitor acknowledges and agrees that Indemnitor may be required to pay and perform the Indemnity in full without assistance or support. from BLK77 or any other Person; and (j) Indemnitor has read and fully understands the provisions contained in this Agreement. Indemnitor's representations, warranties and covenants are a material inducement to City to allow BLK77 to commence construction of the project and it shall survive the execution hereof and any bankruptcy, foreclosure, transfer of security or other event affecting Indemnitor, any other party, or any security for all or any part of the Indemnity. which any party desires to give hereunder shall be in writing and shall be deemed sufficiently given or furnished if delivered by personal delivery by nationally recognized overnight courier service, or by registered or certified United States mail, postage prepaid, addressed to the party to whom directed at the addresses specified in this Agreement (unless changed by similar notice in writing given by the particular party whose address; is to be changed) or by telegram, telex, or facsimile. Any such notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of courier or mail; as of the date of first attempted delivery at the address and in the manner provided herein, or, in the case of telegram, telex or facsimile, upon receipt; provided that, service of a notice required by any applicable statute shall be considered complete when the requirements of that stahite are met. Notwithstanding the foregoing, no notice of change of address shall be effective except upon actual receipt. This Section shall not be construed in any way to affect or impair any waiver of notice or demand provided in this Agreement or to require giving of notice or demand to or upon any Person in any situation or for any reason. 13. Cumulative Rights. The exercise by City of any right or remedy hereunder or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy. City shall have all rights, remedies and recourses afforded to City by reason of this Agreement or by law or equity or otherwise, and the same (a) shall be cumulative and concurrent, (b) may be pursued separately, successively or concurrently against Indemnitor or others obligated for the Indemnity, or any part thereof, or against anyone or i-nore of them, or against any security or otherwise, at the sole and absolute discretion of City, (c) ma,~r be exercised as often as occasion therefor shall arise, it being agreed by Indemnitor that the exercise of;; disciintinuance of the exercise of or failure to exercise any of such rights, remedies or recourses shall in no' event be construed as a waiver or release thereof or of any other right, remedy or recourse, and (d) are intended to be, and shall be, nonexclusive. No waiver of any default on the part of Indemnitor or of any breach of any of the provisions of this Agreement or of any other document shall be considered a waiver of any other or subsequent default or breach, and no delay or omission in exercising or enforcing the rights and powers granted herein or in any other document shall be conttnied as a waiver of such rights and powers, and no exercise or enforcement of any rights or powers hereunder or under any other document shall be held to exhaust such rights and powers, and every such right and power may be exercised from time to time. The granting of any consent, approval or waiver by City shall be limited to the specific instance and purpose therefor and shall not constitute consent or approval in any other instance or for any other purpose. No notice to or demand on Indemnitor in any case shall of itself entitle Indemnitor to any other or further notice or demand in similar or other circumstances. l~lo provision of this Agreement or any right, remedy or recourse of City with respect hereto, or any default or breach, can be waived, nor can this Agreement or Indemnitor be released or discharged in any way or to any extent, except specifically in each case by a writing intended for that purpose (and which refers specifically to this Agreement) executed, and delivered to Indemnitor, by City. 6 14. Term. This Agreement shall continue in effect until the Indemnity is fully and finally paid, performed and discharged. Upon termination, City shall, upon request, execute and deliver-such reasonable documentation requested by Indemnitor from time to time evidencing the termination of this Agreement. 15. Further Assurances. Indemnitor at Indemnitor's expense will promptly execute and deliver to City upon City's request all such other and further documents, agreements and instruments in compliance with or accomplishment of the agreements of Indemnitor under this Agreement. 16. No Fiduciary Relationship. City had no fiduciary or other special relationship with or duty to Indemnitor and none is created hereby or may be inferred from any course of dealing or act or omission of. 17. Interpretation. Whenever the context of any provisions hereof shall require it, words in e in u a ;~ , gender shall include 'the other gender. All references in this Agreement to Schedules, Articles, Sections, Subsections, paragraphs and subparagraphs refer to the respective subdivisions of this Agreement, unless such references specifically identify other documents. The terms "herein," "hereof," "hereto," "hereunder" and similar terms refer to this Agreement and not to any particular Section or Subsection of this Agreement. The terms "include" and "including" shall be interpreted as if followed by the words "without limitation." All references in this Agreement to sums denominated in dollars or with the symbol "$" refer to the lawful currency of the United States of America, unless such references specifically identify other currencies. For purposes of this Agreement, "Person" or "Persons" shall include firms, associations, partnerships (including limited partnerships), joint ventures, trusts, corporations, limited liability companies and other legal entities, including governmental bodies, agencies or instrumentalities, as well as natural persons. 18. Time of Essence. Time shall be of the essence in this Agreement with respect to all of Indemnitor's obligations hereunder. 19. Counterparts. This Agreement may be executed in multiple counterparts, each of which, for all purposes, shall be deemed an original, and all of which taken together shall constitute but one and the same agreement. 20. Entire Agreement. This Agreement embodies the entire agreement between City and Indemnitor with respect to the Indemnity. This Agreement supersedes all prior agreements and understandings, if any, with respect to the guaranty by Indemnitor of the Indemnity. 1`~o condition or conditions precedent to the effectiveness of this Agreement exist. This Agreement shall be effective upon execution by Indemnitor and delivery to City. This Agreement may not be modified, amended or superseded except in a writing signed by City and Indemnitor referencing this Agreement by its date and specifically identifying the portions hereof that are to be modified, amended or superseded. 21. Notices: To Indemnitor: Block 77 Development Group, L.C. Attn: William E. Morris, Jr., Manager c/o Southcoast Partners, Inc., 900 E. Atlantic Avenue, Suite 13 Delray Beach, FL 33483 Telephone: 561 265 1390 Facsimile: 561 265 1705 7 William E. Morris, Jr. 1046 Melaleuca Road Delray Beach, FL 33483 Telephone: (561) 278-1123 Facsimile: (561) 265-5577 To City: City of Delray Beach City Attorney's Office 200 N. W. 1 S` Avenue Delray Beach, Florida Telephone: (561) 243-7091 Facsimile: (561) 278-4755 22. Waiver of Trial by Jury. CITY AND INDEMNITOR HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, AND ANY AGREEMENT EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE, PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 8 IN WITNESS WHEREOF the parties have executed this Agreement to be effective as of the date first written above. Witnesses: INDEMNITOR William E. Morris, Jr., individually Witnesses: Print name: Print name: CITY The City of Delray Beach, Florida, a Florida municipal corporation By: Its: 10 EXHIBIT A LEGAL DESCRIPTION Lots 23 and 24, Block 69, Subdivision of Block 69, Delray, Florida according to the map or plat there of as recorded in Plat Book 2, Page 43, Public Records of Palm Beach County, Florida. 11 3. ASSIGNMENT AND ASSUMPTION OF PARKING SPACE LEASE This Assignment and Assumption ofLease ("Assignment") is made by and among BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company, whose address is 900 E. Atlantic Avenue, Delray Beach, Florida 33483 ("Assignor") and the CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation, whose address is 100 N.W. 1St Avenue, Delray Beach, Florida 33444, ("Assignee") [Assignee and Assignor are sometimes individually referred to herein as a "party" and collectively as the "parties"]. RECITALS A Assignor entered into that certain Parking_Space Lease dated March 30, 2003, as amended by an Amendment to Parking Space Lease dated March 7, 2005, a Second Amendment to Parking Space Lease dated May _, 2007, and a Third Amendment to Parking Space Lease dated May _, 2007 (the Lease and amendments thereto are collectively referred to herein as the "Lease" and are attached hereto as composite Exhibit "B") by and between Assignor and Oxford Business Corporation, a Florida corporation, successor in interest to Sun Atlantic Properties, L.L.C., a Florida limited liability coir~pany, as to fifty-five full-time and forty part-time parking spaces (the "Parking Spaces") with respect to a public parking facility constructed by Assignor on that parcel of real property located in Delray Beach, Palm Beach County, Florida, and described on Exhibit "A" attached hereto (the "Public Parking Facility"). B. Sun Atlantic Properties, L.L.C. assigned its right, title and interest under the Lease to Oxford Business Corporation, a Florida corporation ("Tenant"), whose address is 354 Sevilla Avenue, Coral Gables, Florida 33134. C. Pursuant to Section 2 of the Lease, the Lease shall become effective and commence on the date of the "closing" of the exchange transaction as contemplated by that certain Exchange Agreement dated June 26, 2002, by and between Assignor and Tenant. D. Upon the issuance of a certificate of occupancy for the Public Parking Facility, Assignor shall convey the Public Parking Facility to Assignee. E. This Assignment shall only become effective upon the Effective Date as defined in Section 4 hereof. F. Assignor desires and has agreed to assign all its right, title and interest in and to the Lease to Assignee, its successors and assigns, and Assignee desires and has agreed to accept and assume all of Assignor's liabilities, duties and obligations under the Lease from and after the Effective Date on the terms and conditions hereof. NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party from the other, the parties hereto agree as follows.: Assignment and Assumption of Pazking Space Lease-Final 5-30.doc 4 s 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Assignment. Assignor hereby transfers and conveys to Assignee all of Assignor's right, title and interest in and to the Lease and the Parking Spaces. All rents, charges and deposits shall be prorated as of the Effective Date of the assignment. 3. Acceptance. Assignee, by its signature hereto, agrees to and does hereby unconditionally assume and accept the obligations and duties of "Landlord" under the Lease and Assignee agrees to be bound by all of the covenants, agreements, terms, provisions and conditions applicable to Landlord under the Lease.. 4. Effective Date. This Assignment shall be effective, operative and delivered on the date that the Public Parking Facility is conveyed by Assignor to Assignee as set forth in the deed memorializing said conveyance (the "Effective Date"). S. Representations and Warranties of Assignor. Assignor represents and warrants to Assignee as follows: (i) The Lease is in full force and effect and has not been modified. (ii) Tenant has paid all sums due and payable by Tenant under the Lease. (iii) No default exists under the Lease nor has any event occurred which, with the giving of notice and passage of time, will constitute a default under the Lease. (iv) Assignor is the Landlord under the Lease and has the full right and authority to assign the Lease to Assignee. 6. Representations and Warranties of Assignee. Assignee represents and warrants to Assignor and Tenant as follows: (i) The Parking Spaces leased to Tenant under this Lease comply with minimum requirements for parking spaces as required for tenants of the Sun Building (as Page 2 of 7 defined in this Section 6) under the City of Delray Beach Municipal Code and shall constitute an offsite parking agreement pursuant to Land Development Regulation Section 4.6.9(E)(4) with respect to the real property located in Palm Beach County, Florida, and described on Exhibit B attached hereto and made a part hereof (the "Sun Building" (f/k/a GRIP building)). (ii) Tenant, upon paying the rents reserved in the Lease and performing and observing all of the other terms, covenants and conditions of the Lease on Tenant's part to be performed and observed, shall peaceably and quietly have, hold and enjoy the Parking Spaces during the Term of the Lease, subject, nevertheless, to the terms of the Lease, and to any mortgages, agreements and encumbrances to which this Lease is or may be subordinated. 7. Release. Upon execution of this Assignment, except for Assignor's obligations described in the Parking Space Lease Support Agreement, as amended, Assignor shall be fully released and discharged from the performance of all of the terms, conditions, covenants and agreements contained in the Lease, provided the Commencement Date of the Lease is the same date as the Effective Date of this Assignment. If the Effective Date of this Assignment is subsequent to the Commencement Date of the Lease, then Assignor shall be responsible for performing all of the terms, conditions, covenants and agreements contained in the Lease prior to the Effective Date of this Assignment, and it shall indemnify and hold Assignee harmless from and against any and all claims, demands, actions, or liabilities whatsoever including attorney's fees and costs arising under or in connection with the Lease prior to the Effective Date of this Assignment, and Tenant shall look solely to Assignor for. performance of the terms, conditions, covenants and agreements contained in the Lease. with .respect to obligations which arose during the period commencing prior to the Effective Date of this Assignment. 8. Brokers. Each party hereby acknowledges that it has not dealt with any real estate broker, salesman, finders or consultants (collectively "Brokers") in the negotiation or execution of this Assignment; no Broker is entitled to any fee in regard to this Assignment. Each party hereby indemnifies and holds the other parties harmless from the claims of Brokers in connection with, relating to or arising out of this Assignment. 9. Notices. All notices, demands or other writings provided to be given, made or sent by a party hereto shall be deemed to have been fully given, if made in writing, delivered in accordance with Section 20.A. of the Lease and addressed to the parties at the addresses first listed above. 10. Enforcement Costs. If any party commences, engages in, or threatens to commence or engage in any suit, action, or other proceeding, including arbitration or bankruptcy, against any other party, arising out of or in any manner relating to this Assignment, including, without limitation, (i) the enforcement or interpretation of any party's rights or obligations under this Page 3 of 7 Assignment (whether in contract, tort, or both), or (ii) the declaration of any rights or obligations under this Assigmnent, the successful or prevailing party or parties, as determined by the court or arbitrator, shall be entitled to recover from the losing party or parties, as determined by the court or arbitrator, reasonable attorneys' fees and disbursements (including disbursements which would not otherwise be taxable as costs in the proceeding) and expert witness fees. All references in this Assignment to attorneys' fees shall be deemed to include all legal assistants', paralegals', and law clerk's fees and shall include all fees incurred through all post judgment and appellate levels and in connection with collection, arbitration, and bankruptcy proceedings. 11. Successors. Except as herein otherwise provided, this Assignment shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators. successors and assigns. 12. Counterparts. This Assignment maybe executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. IN W ,SS WHEREOF, the parties have executed this Assignment to be effective on this day of ,_2007. ASSIGNOR: BLOCK 77 DEVELOPMENT GROUP, L.C., a Flori limited liability company By Name: ~~ (I , 63-rvt E MSS Title: ~ A ~A-4 e,~ ASSIGNEE: CITY OF DELRAY BEACH, FLORIDA a Florida municipal corporation By: Print Name: Name: Title: Print Name: Page 4 of 7 STATE OF FLORIDA ) SS: COUNTY OF PALM BEACH ) I HEREBY CERTIFY that on this day the foregoing instrument was acknowledged before me by William Morris, the Manager of BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company, freely and voluntarily under authority duly vested in him/her by said company. He/tee is personally known to me or who has produced as identification and (did/did not) to ce an oath. WITNESS my hand and official seal in the County and State last aforesaid this ;!o day of L, 2007. STATE OF FLORIDA COUNTY OF PALM BEACH printed or stamped My Commission Expires ) SS: n-crs: aipol 02, 2D09 fl. Naary Discamt A~ae. Co. I HEREBY CERTIFY that on this day the foregoing instrument was acknowledged before me by the of the CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation, freely and voluntarily under. authority duly vested inhim/her by said corporation. He/she is personally known to me or who has produced as identification and (did/did not) take an oath. WITNESS my hand and official seal in the County and State last aforesaid this day of 2007. Notary Public Typed, printed or stamped name of Notary Public My Commission Expires: Page 5 of 7 LEGAL DESCRIPTION PUBLIC PARHING FACILITY Exhibit "A" Parcel One All of the plat of WORTHING PLACE BLOCK 69, according to the map or plat thereof as recorded in Plat Book 105, page 137, Public Records of Palm Beach County, Florida; and Parcel Two A portion of Lot 19 of the Subdivision of Block 69, Delray Beach, Florida, according to the Plat thereof, as recorded in Plat Book 3, Page 45 of the Public Records of Palm Beach County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Lot 19, also being the Southwest corner of Worthing Place Block 69., as recorded in Plat Book 105, Page 137; 'Thence S 89°06'29" E along the North line of said Lot 19, a distance of 2.00 feet to the Point of Beginning.; Thence continue S 89°06'29'' along said North line, a distance of 17.4 feet to a point of intersection with the West line of ~`he right-of--way for S.E. 15` Avenue as shown in Official Records Book 18488, pages 604-606 ofthe Public Records of`Palm Beach County, Florida, also being a line 5.00 feet West of and parallel with the East line of said Lot 19; Thence S 00°00'00" W along said parallel line, a distance of 0.33 feet to a point of intersection with a line 0.33 feet South of and parallel ~ti~ith the North line of said Lot 19; Thence N 89°06'29" W along said parallel line, a distance of 124.00 feet to a point of intersection with the East line of the right-of--way fora 16.00 foot wide Alley as shown in Official Records Book 1848'8, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 2.00 feet East of and parallel with the West line of said Lot 19; Thence N 00°00'00" W along said parallel line a distance of 0.33 feet to the point of beginning. Page 6 of 7 Exhibit B LEASE AND AMENDMENTS ATTACHED Page 7 of 7 ~'~'t"°'-`a :F r. • ~ PARKING SPACE LEASE ,,. ~ . ~ ;, PARKING SPACE LEASE THLS PARING SPACE LEASE (the "Lease"), is made as of the ~ . day of 2003 by and between Landlord, BLOCK 77 DEVF.I.OPMENT GROUP, L.C., a Florida limited liability company, .whose address is 5000 T-Rex Ave., Suite 150, Boca Raton, FL 33431 (the "Landlord"), owning, controlling or under contract to purchase or acquire fee simple title to a parcel of real property constituting the "Parking Garage Parcel" described on Eahibft A~ hereto, and SiJN ATT,ANTIC PROPERTIES, L.L.C., a Florida limited liability company, whose address is 110 East Atlantic Ave., Suite 325, Delray Beach, FL 33444 (the "Tenant'. cri tion of Parking Spaces: Sizty (60) full-time. an orty pa - . e approximately nine (9) feet wide and eighteen (1~ feet long. • (collectively the "Parking Spacea'~ located fn the structured parking: facility {the "Farling Garage Parcel Parcel's contemplated to be - _ constructed by Landlord on the described EzW'bft A hereto the ' "Farling Garage Parcel". A parting plan identifying the location of the Parking Spaces • is attached hereto as part of Ezhibft A-1 -("Farling Plan'. Appurtenant to the Lease of the' Parking Spaces .shall be a license granted by Landlord to Tenant to utilize, on a non- ezclnsive basis, .vehicular and pedestrian ingress and egress to the Parking Spaces as same_may exist from time to~time, as determined by Landlord, to and from the Parking Spaces and~a public sued, u such areas may east from time to time, subject to reconfiguration ff required by and in accordance with applicable ~ governmental . regulations or by Landlord to the eztent provided herein WITNESSETk3: I, Lease: Landlord hereby leases the Parking Spaces to Tenant, and Tenant hereby leases the Pazldng Spaces from Landlord, upon the terms and conditions hereafter set forth. Tenant is .the owner of the real property and improvements (mown as the "Sun Building" more particularly descn'bed oa Exhibit B: attached hereto and made a part hexoof. It shall be a specific condition precedent to this 'Lease that the City of Delray Beach, Florida ("City's delivers to Tenant a confirmation certifying thaf the Parking Spaces leased to Tenant under this Lease shall provide Tenant with not less than the City's minimum requirement for parking necessary for Tenants of the Sun Building. 2, . Term: Term shall mean and refer to the period of time commencing upon the date of the Closing of the eicchange transaction between the parties hereto described in that certain Exchange Agreement, dated Junc 26, 2002, betwee~a the parties heaeto ("Commencement Daze''') in . conjunction with Landlord's development of a structured residential apartment. building and amenities together with a commercial feature under the regulations of the Community Rodevelopmtnt Agency of the City of Delray Beach {"City") which development to be lmown as "Worthing Place" upon real properly having a legal description as descn'bed on Ezh~ft C attached hereto and made a part hereof ("Project's and ending ninety-nine (99) years therefrom or earlier termination of this Lease. Tenant shall have the use of the Parking Spaces as herein r-unocs us~~n ixcvr~ui.noc~ l~ ..-. CI f a provided subject to the terms of this Lease from the Commencement Date through the term of the 3, Leas____ a Year: A Lease Year sha11 m~ ~d ~~' to a period of twelve (12) full calendaz' months. The first Lease Year shall commence on the CommencemenfiDate and shall terminate on the last day of the month, which is twelfth (12th) full calendaz month thereafter. The last Lease year shall end on the expiration of the Term or earlier termination of this Lease. 4, Ten. ant Psvments: Throughout the Term, Tenant agrees to pay to Landlord, without any prior demand required therefor and without any setoffs d to Landlord w Tenant (collectively, which pursuant to the terms of this Lease are to be p b3' "Tenant Payments'. If any Tenant Payments are not received Dy Landlord within tea 110)c~ ~ from when it is due, tune euig o ~ e Tenant a.late charge equal to three (3%) percent of the late Tenant Payment (or portion thereof). In addition, if any Tenant Payments are not received by Landlord after ten (10) days of the date due, interest at the "prime rate" of New York City banks most recently Published in The Wall Street Journal plus two percent (2%) (but in no event greater than the highest non-usurious rato . allowed by law) [collectively the "Default Rated shall accrue and be due and payable by Tenant to Landlord from the eleventh (11th) day after-such Tenant Payment was due until such Payment or monies are received by Landlord. Notwithstanding that Paragraph 10.A.(1) hereof requires a _ written demand from Landlord to Tenant to cause Tenant's failure to timely make a Teaamt Payment to be an "Event of Default" hereunder, no notice from Landlord to Tenant shall be - . required to invoke .late charges and interest at .the Default Rate upon any delinquent Tenant . Payment. Tenant shall pay Tenant's share of the Operating Expenses of the Parking Garage Parcel Parcel as in the hexeinaRer defined. .The Tenant's Share shall be that percentage of all parking spaces - Parking Garage Parcel computed by multiplying by one hundred (100), the fraction the numerator of which shall be eighty (80) (i.e. sixty (60) full time and one-half ('i:) (i.c. 20) of the forty (40) Part-Time parking spaces leased to Tenant and the denominator of which is all the total of the Pazking Spaces in the Parking Garage Parcel.. The hereinabove referenced expenses incurred is shall include the operation and maintenance of the Parking Garage Parcel ("Operating Expcnses'~ and seciitity all expenses incurred in the ownership, operation, management, maintenance, repair of the Parking Garage Parcel and the Parking Garage Parcel, but not be limited to, electricity, elevator maintenance, clean uP crews, management, insurance, real estate taxes thereof b virtue . to the extent assessed and imposed on the Parking Garage Parcel or any porn y of this Lease, security services, utilities, cleaning, non-capital repairs and general maintenancx. janitorial, maintenance, personnel and other seavices, operating expenses, reserves, and the like. It is~hereby stipulated that following the issuance of a Certificate of Completion for the Parking Garage Parcel, Landlord shall convey the Parking Garage Parcel to the City and assign this Lease to the City. Tenant acknowledges that the City shall not be responsible for nor pay ad valorem taxes. However, notwithstanding the foregoing, Tenant acknowledges that should the Parkin f Garage Parcel be subject to ad valorem taxes, Tenant agrees that it shall be subject to paym ad valorem taxes. Tenant shall be responsible for the payment of all. said taxes unless the City ted utilization of some or all of the rema r~++g shall have leased, licensed or otheawise gran Parking Spaces in the Parking Garage Parcel, in which case the responsibility of Tenant to pay ad . valorem taxes shall be ratably proportioned with other such lessees or licensees of Citym~the Pazldng Garage Parcel provided such tenant(s) or licensee(s) are not exempt from the Paym taxes. In-the event that ad valorem taxes are billed directly to Tenant, Tenant shall, in each year during the term, provide to Lessor proof of payment of all real-estate or other taxesimposed upon Tenant and attributable to the Leased Spaces not latex than the 31st day of December of each year . _2- ~uDOCS t~52o2~t1 ~wzt~!.n«-7 ,ti :. .~ during the Term. In the event of the termination of this Agreement, absent a default by Landlord, its successors or assigns, the obligations of Landlord hereunder shall be canceled and be of no further. effect. In addition to its share of the Leased Spaces, Tenant shall be solely responsible for the payment to Lessor of Florida state sales tax incurred and payable pursuant to this lease to a tenant or licensee that is not exempt from the paymerlE of taxes.. . $, Use of Parldn~ Spaces: The Parking Spaces shall be utilized by Tenant and "Tenant's Representatives" (defined as Tenant's subsidiaries and affiliates of Tenant and its subtenants, Tenant' officers, partners, directors, attorneys, shareholders, employees, subtenants, agents, and invitees, as well as its subtenant's agents and invitees, and the attorneys and agents of all of the foregoing) for the parking bf motor vehicles only in accordance with all applicable governmental regulations and such commercially reasonable rules and regulations relating to safety, noise, ----ee~n~ th9~~al use of the~a*ti+ng Garage Parcel and the Parking Garage Parcel . adopted by Landlord from time to time which regulations shall be commercially reasonable and. . similar in nature to those implemented in comparable facilities located in Palm Beach County, Florida. Notwithstanding anything contained to the .contrary herein, Tenant aclmowledges that the City's handicapped parking requirements may require that the unqualified. use: of certain of the one hundred (100) Parking Spaces be reduced accordingly to add additional or large handicapped parking spaces which will conform to the City's mandate, in which case the maximum number of handicaPPed Par~g spaces allocated or assigned among the Part-Time Pazking Spaces shall be two (2) and, as to the Full-Time Pazking Spaces the maximum allocation for handicapped spaces shall be two (2). A, SpeciSc Purpose: Tenant and Tenant's Representatives shall use the Parking Spaces solely for the purposes specified in this Paragraph 5, or elsewhere is this Lease, and shall not use or permit the Pazking Spaces to be used for any other purpose. . $, Safe Use of Parlali¢ Spaces: Tenant agrees to make (and cause Tmaat's Representatives to make) no unlawfiil, offensive or noxious use of the Parking Spaces. Trash must be properly disposed in receptacles designated for such purpose. No explosives, firearnns, volatile or flammable chemicals shall be stored on the Parking Spaces. Tenant agrees to comply and cause Tenant's Representatives (including any valet services) to comply at all times with commercially reasonable rules and regulations relating to safety, noise, .maintenance and the . geneaal use of the Project, as the case~may be, adopted by Landlord from time to time similar in nature to those adopted in comparable facilities located in the City and Palm Beach County, Florida,: including, but not limited to, reasonable speed and noise restrictions including such measures designed to regulate the speed and type of traffic over driveways by, among other . . things, signs and speed bumps, which rules and regulations shall be uniformly applied to and enforced against .all users of the applicable parking area ("Rules and Reglilations'~.. Tenant agrees that all contracts it may eacecute with third-party providers of valet services as provided _ under this Lease state that if such provider (or Tenant on behalf of such provider) has received from Landlord a total of five (5) or more notices of violation thereof during any Lease Year, Tenant shall have the right to terminate such contract upon written demand, of Landlord. C:. Prohibited Uses: Except as otherwise specifically provided in this Lease, Tenant shall not cause or permit use of the Parking Spaces for any use other than motor vehicle parking in accordance with Goveanmental Regulations and in accordance with the .Rules and Regulations.. Excluding ordinary maintenance, Tenant shall be prohibited from making any alteration to the Parking Spaces without Landlord's prior written consent. At the discretion and . sole risk of Tenant for which Tenant shall indemnify, defend and hold Landlord harmless, Tenant may cause any vehicles improperly parked upon the Parking Spaces leased to Tenant to be towed -3- FLADOCS 11S30RrIl .(~GYV2111:DOG7 ~, ._ , . •~ r ~. provided that proper notices are posted by Tenant and the towing companies comply with the requirements of all applicable governmental authorities, giving regard to the non-exclusive use by Landlord of the Part-Time Parking Spaces. Furthermore, if permitted by applicable governmental authorities, Tenant may place temporary, removable barriers (such as cones or pull-across visible chains), within those portions of the Parking Garage Parcel as to the Full-Time Spaces and, as to the Part-Time Spaces, during those days and times during which the Part-Time Spaces aze subject to the exclusive use of Tenant restricting certain or all of the Parking Spaces to a valet parking piogram,~ in which a greater number of vehicles than the Parking Spaces designed may be parked within; the parking Spaces. Notwithstanding the foregoing, however, no such placement of cones, pull-cords, chains or other apparatus or the afore-conteniPlated method of stacking vehicles within the Parking Spaces shall interfere with, impede or obstruct the use ~of any other Parking Spaces or the free flow'of traffic within the Parking Garage Parcel . 6, Compliance witL Environmental Lava: A. .Landlord. and Tenant shall abide by all "Environmental Laws" (as hereinafter defined). Tenant shall cause all other- persons- occupying or using the Parking Spaces to comply with all such Environmental Laws. Landlord-and Tenant shall not, except with proper handling "and storage of cleaning or repair products, generate, use, treat, store, handle, release or dispose of or permit the generation, use, treatment, storage, handling, release or .disposal of .Hazardous .Material"s on the Parking Spaces or any other portion of the Parking Garage Parcel. - I3. Tenant shall indemnify and hold harmless Landlord and all. superior lessors and superior mortgagees and its and their respective partncas, directors, officers, agents and employees (the "Indemnified Parties") from and against any and all claims arising from or in connection with any act, omission or negligence of Tenant or Tenant's Representatives relating to . or arising out of the disposal of Hazardous Materials upon the Pazking Spaces, or any other. portion of the Parking Garage Parcel by the.Tenant or Tenant's Representatives. 1n the event any . Indemnified. Parties shall be made party to any litigation or proceeding giving rise to the .indemnification provided in this Paragraph 6 commenced by a party other than Tenant or against . Tenant, then Tenant shall protect, indemnify and hold harmless the Indemnified Parties and Tenant shall pay all reasonable attorney's fees and costs (both trial and appellate fees) incurred or paid by such Indemnified Party in connection with such litigation or proceeding. ~ . C; If at any time during the. term.of this Lease any contamination of the Parking Spaces or any other portion of the Parking Garage Parcel by Hazardous Materials shall occur caused by Landlord,. ,Landlord's Representative [defined as Landlord's partners, . offices, . directors, attorneys, employees, representatives, agents, contractors, subcontractors, successors, assigns, tenants, subtenants, concessionaires (including valet services) and invitees, and attorneys and agents of any of the foregoing] or parties other than Tenant and Tenant's Representatives (or if contamination occurred prior to the term of this Lease regardless of whether caused by Landlord or Landlord's Representatives),. Landlord shall promptly and diligently perform at., Landlord's expense such environmental remediation required by applicable governmental authorities. If such contamination or the Temediation ~ of such contaminationeats To ~t use of any of the Parking Spaces, Tenant Payments shall be abated {or propo w~ readesed . all the Parking Spaces are not affected) from the date: such Parking Spaces unusable until the environmental remediation renders the Parking Spaces tenantable. In all events . dig any period of remediation, if more than ten (10) Pazking Spaces are rendered unusable, Landlord shall make up for the unusable Parking Spaces and Landlord shall temporarily assign to Tenant the use of other useable parking spaces. within the Parking Garage Parcel, if available or if none are available within the Parking Garage Parcel then, any such substitute for Full-Time -4- rv-nocs iiszox~ii c~wzni.noc~ - ~~ ~ , . r parking Spaces -shall be located within a one hundred (100) foot radius and an}- substitute for Part-Time Parking Spaces within a two hundred (?00) foot radius of the entrance to the Sun Building during the course of remediation, to compensate for the Parking Spaces rendered • unusable, it being the intent of Landlord and Tenant that if more than ten (10) Pazking Spaces are rendered unusable by contamination, other than as caused by Tenant, for more than ~ ten {10) consecutive Business Days, such Parking Spaces shall be temporarily substituted for by any other useable pazking spaces within the Parking Garage Parcel, or if any such spaces are not available, any such substitute for Full-Time Parking Spaces shall be located within a one hundred (100) foot radius and any substitute for Part-Time Parking Spaces within a two hundred (200) foot radius of the entrance to the Sun Building, such right of Tenant being superior under such circumstances to the rights of any other. tenants of the Parking Garage Parcel. ~, Fo ~ urposes of this Lease, "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive or - corrosive, including, without .limitation, petroleum or petroleum products, PCB's asbestos, - materials known to cause cancer or reproductive problems and those materials, substances and/or: _ _wastes including infectious waste, medial waste .and potentially .infectious biomedical waste, which are or later become regulated by any local governmental authority, the State of Florida or ~ - the United States Government, including, but~not limited to, substances defined as "hazardous. • substances," "hazardous materials," "toxic substances" or "hazardous wastes" in the . Comprehensive Environmental Response, Compensation and Liability Act of 1980, as. amended, 42 U.S.C. Section 9601, et seq.; the Hazardous Materials Transportation Act, 49-U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq:; all • corresponding and related State of Florida and Local Statutes, ordinances and regulations, - •. . including without limitation any dealing with underground storage tanks; and in any other , . environmental law, regulation or ordinance now existing or hereinafter enacted (collectively, "Environmental Laws'. E. If at any time during the term of this Lease any contamination of the Parking • Spaces or any. other portion of the Parking Garage Parcel .by Hazardous Materials shall occur where such contamination is caused by the act or omission of Tenant or Tenant's Representatives ("Tenant Contamination's then Tenant at its sole cost and expense, shall promptly and diligently remove such Hazardous Materials from the Pazking Spaces or any other portion of the• Parking Garage Parcel or the groundwater underlying the Parking Spaces, or any other portion of the parking Garage Parcel to -the extent reasonably possible in accordance with the requirements of the applicable Hazardous Materials Laws arid' industry standards then prevailing in the Hazardous Materials management and remediation industry in Florida. However, Tenant shall not take any required remedial action . in response to any Tenant's Contamination in or about the Parking Spaces or any other portion of the Parking Garage Parcel or enter into any settlement agreement, consent, decree err other compromise in respect to any claims relating to any Tenant's . Contamination without first notifying Landlord of Tenant's intention to do so and affording Landlord the opportunity to appeaz, intervene or otherwise appropriately assert and protect then interests with respect thereto. In addition 'to all other rights and remedies of the Landlord hereunder, if Tenant does not. promptly and diligently take all steps to prepare and obtain all. necessary ~ approvals of a remediatia~n plan for any TenaaNs ContAm;nA±+on -and thereafter commence the required remediation of any Hazardous Materials released or discharged in .connection -with Tenant's Contamination' within sixty. (b0) days after Landlord reasonably approved Tenant's remediation plan and all necessary approvals and consents have been obtained and thereaftea continue to prosecute said remediation to completion in accordance with the . . approved remediation plan,. then Landlord, at its sole discretion, shall have the right, but not the . obligation, to cause -said remediation to be accomplished, and Tenant shall reimburse, within -5- - tzr+noc~ nssa¢.u (w'a-2~il.noc) * ~, .' ' ' thirty (30) business days of demand for reimbursement, all amounts reasonably paid by Landlord when said demand is accompanied by proof of payment of the amounts demanded. Tenant shall promptly deliver to Landlord copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the Parking Spaces or any other portion of the parking Garage Parcel as part of Tenant's remediation of any Tenant's Contarn~n ~*+on. The inability of Tenant to use any Parking Space which has been rendered unusable or untenantable by virtue of contamination arising pursuant to this Subsection E, shall .not avail Tenant any substitute or alternate parking spaces, or an abatement of rent as to any such affected Parking Spaces. F. Each party hereto (for Purposes of this Section, 'TTotifying Party") shall immediately notify the other party (the "Notice Recipient") in writing o~ (i) any enforcement, _ 1emeval - o* atl~~o-ver~ental o~gnLat~ action instituted, contemplated or threatened concerning the Parking Spaces or any other portion of the Parkdng Garage Parcel • . pursuant to any Environmental Laws; (ii) any claim made or threatened by any person against the Notifying Party or the Parking Spaces or any other portion of the Parking Garage Parcelrelating - to damage contribution, cost recovery, compensation, loss or injury resulting from or claimed to . result from any Hazardous Materials on or about the Parking Spaces or any other portion of the . Parking Garage Parcel; and (iii) any reports made to any environmental agency arising out of or in connection with any Hazardous Materials in or removed from the Parking Spaces or .any other portion of the Parking Garage Parcel including any complaints, notices, warnings or asserted violations in connection therewith, all upon receipt by the Notifying Party of actual knowledge of any of the foregoing matters. Notifying Party shall also supply to Notice Recipient as promptly as possible, and in any event within ten (10) business days after Notifying Party first receives or send the same, with copies of all claims, reports, complaints, notices, warnings or asserted- violations relating in any way to the Parking Spaces or Tenant's use thereof ~, Rights Reserved to Landlord: Landlord reserves the following rights in addition to all . others contained in this Lease with respect to the Parking Spaces: A, Maintenance: ~ Landlord shall maintain the Parking Spaces and the Parking .. Garage Parcel in accordance with governmental. regulations and the safe and clean standards of like parking facilities in .the City and Landlord shall be liable to . Tenant or Tenant's Representatives for any failures to make repairs in a commercially timely manner.. However, Landlord shall not be responsible for any maintenance of the Parking Spaces which shall be in excess of standard office building type maintenance such as, but not limited to, maintenance incurred by or through Tenant's valet services or its restaurant customers and any such non- - standard maintenance shall be. performed by Tenant immediately upon notice~to Tenant. Should . Tenant fail to immediately provide- the additional maintenance obligations as descn'bed in the preceding sentence, Landlord may, but shall not be obligated to, perform such additional . . maintenance at Tenant's cost which shall be paid by Tenant within fifteen (15} days of invoice; failing which payment Tenant shall be subject to the late fees provisions and default provisions of this Lease. $; Insurance. Casualty and Condemnation: A. Tenant's Insurance: During the Term of this. Lease, Tenant shall kxp in force at its expense, subjecC to Landlord's approval, Commercial General Liability insurance and . indemnity coverage against. on an occurrence basis -with minimum limits of liability in the aggregate annual amount of One Million Dollars ($1,000,000.00) for bodily injury, peasonal injury or death, One Million Dollars tS1,000,000.00) per occurrence, and Two Million Dollars . -6- Funocs tismz.~t RovrlttGnoc~ .., est insurable value, whichever is less, for all damage to property, • ($2,000,000.00) or the high "all risk casualty insurance including but not limited to extended coverage, vandalism, including ~~ theft, malicious mischief, windstorm, flood and fire. Landlord and Tenant's mortgagee, then r ective successors andlor assigns, shall be named as additional insureds and loss payees in esp and such insurance shall provide accordance with their respective interests on all such 3 ~ ~tt~ notice to Landlord. Tenant that same may not be canceled without at least thirty ( ) ~ aftea the date of this Lease,•and shall provide certificates of such insurance within fi~~ Sid ce that such insurance is in force. shall from time to time at the request of Landlord pro aired b Florida aired to obtain Worker's Compensation Insurance as ~ y Tenant shall be ~ Statute. All policies shall be subject to the reasonable approval o i~geonts or~employeesagThe and shall. contain waivers of subrogation against- thence in P~ at all times during this f~uro of Tenant to maintain the herein mandatory Lease shall constitute a default by Tenan . $, Landlord's Insurance: Tenant shall have no rights in any Po1rcS' or policies Landlord, if any, and shall not be entitled to be a named insured thereunder. • . maintained by _ .... .... .. •.. ._ -. ~-- -- -, _ Destruction or Dama e: If the Pazking Spaces shall be damaged or destroyed C' rovided herein, Landlord shall use commercially except as otherwise 'p air -and restore the same to by fire ~or other casualty, reasonabl time to rep reasonable efforts within a commercially y immediately -prior ~ to such damage or . substantially the same condition thereof existing . exclusive of any Tenant improvements, but in no event shall Tenant be provided- . destruction, of Parking Spaces (including restrictions as upon restoration with less than the number and type S aces described herein) provided to • - to handicapped paz~S sP~ ~oce~ to the Parking P eeds to rebuild and Tenant on the Commencement Date. g P ~ ~~ ~e •gh~ (18) months to . Landlord elects to rebuild the Parking ut if less than near total destruction, then a commercially . rebuild the Parking Garage. Parcel (b S aces In the event Landlord . reasonable time to substantially repair and restore the Pazking p )• ~ elects not to rebuild the Project for any reason, Landlord shall provide to Tenant penman numbers as to full time and part time pazkmg spaces replacement parking spaces m ~~ azldng spaces allocated to the Pazking Spate descn~ (including restrictions as to handicapped p e .Parcel. ka all events, during any herein) to the Parking Spaces located in the Parking Garag vide to Tenant immediately ~ . . period of restoration Landlord shall have the ob~figati however, in the case of force majeure . following the event of any destruction or damage ( cePt, an od, paz~ spas within a not limited only to the Parking Garage Parcel) and during• Y _P~ feet as to any Full-Time Pazking Spaces and with a.radius of two - radius of• one hundred- (100) S aces of the entrance of the Parking Garage Parcel hundred (200) feet for any Part Time Parking P contained herein shall limit the the damaged or destroyed Pazking Spaces. Nothing tious manner, and to replace r airs to the Project in au expedi ability of Landlord to make emergency ep airs cause the loss of use of Tenant shall have no claim against. Landlord if such emergency r'eP an Pazking Spaces providing Landlord expeditiously causes such emergency repaus to be . Y completed. reason of fire or other casualty any of the Parking D, Rent Abatement:. If by Spaces are rendered wholly unusable, the Tenant Payments (and any Tenant's.Share of Opcratm$ or if only part~Y damaged, shall be Expenses) shall be fully abated from and after such casualty, rtionatel as to that portion of the Parking Spaces rendered unusable until use of the abated propo y In the -event only a portion of the Parking SPA are Parking Spaces have been restored. g aces being rendered unusable: rendered unusable, Landlord shall immediately upon~th~~ ~g Spaces_as.feasible during the (i) allow Tenant to utilize as many of the undamag course of reconstruction, and (ii) temporarily assign to Tenant the. use •of other useabke pazking -7- ~vax itszorz~tt ~cw2itt.noc) , `. 1 spaces within the Parking Garage Parcel, or if none, within the Project or if none, any such substitute for Full-Time Parking Spaces shall be located within a one hundred (100) foot radius and any substitute for Part-Time Parking Spaces within a two hundred (200) foot radius of the entrance of the Parking Garage Parcel during the course of reconstruction to substitute for the parking Spaces rendered unusable, it being the intent of Landlord and Tenant that if any Parking Spaces ,are rendered unusable by fire or other casualty, such Parking Spaces shall be substituted for any other useable parking spaces within the Parking Garage Parcel, or if none, -within the project or if none, any such substitute for Full-Time Parking Spaces shall be located within a one hundred (100 }foot radius and any substitute for Part-Time Parking Spaces within a two hundred (200) foot radius of the entrance of the Sun Building, such right of Tenant being superior under such circumstances to the rights of any other users of the Parking Garage Parcel If such damage or other casualty shall be caused by the gross negligence or willful misconduct of Tenant or ___ _--t'enant's Representatives, there shall be no substitution of Parking Spaces or abatement of Tenant. Payments. E, Requirements of Landlord's and Mortea¢ee: Tenant recognizes that Landlord shall have the right to mortgage, ground lease, or transfer by deed of trust, Landlord's fee simple . interest in the Parking Garage Parcel (which lien may also encumber additional real pt'opertY ~ _ , owned or leased by Landlord) with any institutional or non-institutional mortgagee or any third parr, at any tune or times during the Term of this Lease without prior notice to Tenant ~ end without obtaining the prior consent of Tenant. Landlord shall forward to. Tenant a duplicate original of the mortgage, together with a written notice setting forth the name and address of the ~ ~ . mortgagee. Until the time that any mortgage shall be satisfied of record, the following provisions shall apply. . . a. In case Landlord shall default under any of the provisions. of this Lease, the mortgagee shall have the right to cure such default. Tenant shall accept such Performance on . the part of the mortgagee as though the same had been done or performed by Landlord. b, Within ten (10) days after written request by Landlord or by Landlord's.. mortgagee, Tenant agrces to deliver in recordable-form a certificate to any mortgagee. of Landlord or to Landlord, certifying (if such be the case): (i) the amount of rental and additional rental due . . under this Lease, if any, and the date to which rentals have been paid; (ii) that this Lease is in full ' . force and effect; (iii) nth ~turc of the defaul~ and (iv) that there are no defer or offsets - . default exists, specifying of obli ations t ~ this which-may be asserted by Tenant against Landlord in" respect g pursuan . Lease. ~ • . ~ -: . F. Condemnation:. (l) Total: If the whole of the Parking Spaces (or such part thereof as will render the remainder untenantable in connection with Tenant's use of the Parking Spaces) shall . be acquired or taken. by eminent domain for any public or quasi-public use, then Landlord shall provide permanent replacement parking spaces within the Project or, if unavailable, any such . substitute for Full-Time Parking Spaces shall Abe kocated within a one hundred (100) foot radius and any substitute for Part-Time Parking Spaces within a two hundred (200) foot radius of the entrance of the Parking Garage Parcel similar in number and days and hours of full-tie a p ~ . time exclusive use (including. restrictions ~ Tenant notices Landlord f Tenants commercially to the Parking Spaces described .herein). reasonable objections to the location thereof that Landlord cannot or will not address to Tenant's reasonable satisfaction within forty five (45) days of Tenant's notice, Tenant may cancel this -8- . Fu-nocs itsma.~u ~rx»i.noc~ Lease within sixty (60) days of receipt of Landlord's written notification to Tenant of the location of such Pazking Spaces. In the event Tenant elects to cancel the Lease, Tenant may make adirect- claim for compensation against the condemning authority for its loss,-subject to the limitations on and restrictions against any such claimed entitlements contained in Subsection F. hereof, but shall not participate in any claim of Landlord against the condemning authority. . (2) Partial: ff less than all of the~Parking Spaces shall be so taken, Landlord orm and Tenant shall have such rights as set forth in Paragraph 8.F(1) above as to the shall perf Pazking Spaces is finally divested pursuant to such condemnation proceeding. . (3) Tenant Payments Uuon Termination:- If this Lease is termtnatod ~ . a all Tenant Payments shall be Paid by Tenant up to the date that provided in this Paragr ph, 'table refund of any ~ossession~s-to-be-takEa b}~publicauthority and Landlord shall make_an equi --- - _ --- - - - --- -- - Tenant Payments paid by Tenant in advance not yet carved. G. Award' All damages or compensation awarded or paid for any such taking shall - belong to and be the property of Landlord without any .participation by Tenant,- whether such _ . damages or compensation shall be awarded or paid for diminution in valua of the fee. or any interest of Landlord in the Parking Spaces, or in the leasehold estate created hereby and Tenant hereby expressly waives and relinquishes all .claims to ~ such award or compensation or any part thereof and of the right to participate in any sdch condemnation or~eminent~do~ ~p gmSs - . against the owners. of any interest in the Parking Spaces, provided however,' .contained shall be construed to preclude Tenant from prosecuting any claim directly- against the _ condemning or taking authority, but not against Landlord, for damages as may be recoverable by ~- . Tenant in Tenant's own right. Notwithstanding the foregoing and in the event of a total taking as _ - .provided in Paragraph 8.F.(1) hereof and the Tenant does.not elect to cancel,this Lease, Tenant shall not be restricted from prosecuting its own claim directly against the condemning or taking ..- authority and Tenant shall participate in the award and compensation obtained by Landlord wader Landlord's action against the condemning or taking authority. on a proportional and equitable basis but the application of Landlord's award (less Tenant's share thereof)•shall be subject to the'. provisions of any mortgage obtained by Landlord. Each party agrces- to' execute and deliver to the other all instruments that maybe required to effectuate the provisions. of this Paragraph. Construction Liens: , Pursuant to Section 713.10, Florida Statutes, Tenant--shall not 9. permit any mechanic's or materialman's lien to~ be foreclosed against the Parking Spaces by • reason of work, labor, services or materials performed. by or furnished to Tenant irk forth an art of the Parking Spaces under Tenant. Such prohibition shall be proper y holding Y P . in the "Memorandum of Lease" (as hereinafter defined}, recorcontest the samee in flood faitth b~ hereof. If any such lien shall at any time be filed, Tenant may thereof, cause such lien to be Tenant shall, within thirty (30) days, after notice of the filing released of record by payment, bond, order of a court of competent jurisdiction or otherwise. Nothing contained in this Lease shall be construed as a consent on the part of Landlord to subject . Landlord's estate in the Pazking Spaces to any lien or liability under the lien laws of the State of to an construction work undertaken by Tenant, Tenant shall famish Florida. With respect - Y Landlord with lien .waivers from each contractor or :material supplier following- Tcaant's completion of such construction. ~ . . 10. Default' A, Events of Default: The following shall constitute an "Event of Default" on the part of the Tenant: . - 9 - e~wnocx ~is~i~ ~tcvvzii!.noc~ r ~ ~ - ~~ ' ` e .• (1) The failure of Tenant to pay and deliver . to Landlord any Tenant Payments after same is due and within ten . (10) days after written demand by Landlord or the failure of Tenant to pay and deliver to Landlord any other monies due under this Lease within ten (10) days after written demand by Landlord (unless this Lease should specifically provide a longer grace period for such type of payment). (2) The failure of Tenant to comply with any non-monetary Provision of this Lease as soon as reasonably practical and in any•event no later than thirty (30) days after written demand by Landlord, except that if any non-monetary failure is not capable of being cured within such thirty (30) day Period, Tenant shall be given a reasonable time to cure such failure so long as Tenant has timely commenced and thereafter diligently pursues to completely cure such failure as soon as possfble. . (3) ~ If any voluntary or involuntary petition or similar pleading under any section or sections of any banlQUptcy act shall be filed by or against Tenant or any voluntary or . ..involuntary proceeding in any court shall be instituted .to declare Tenant insolvent or unable to . .. Pay Tenant's . debts, and in the case of an involuntary. petition or proceeding if same is not dismissed within ninety (90) days from the date it is filed, or if Tenant makes an assignment for of Tenant, or if Tenant's the benefit of its. creditors or -if a receiver is appointed for any prop~Y of law. Should Tenant, leasehold interest is~levied upon under execution or. is attached by process . at any time during the term of this Lease, suffer or permit an involuntary or voluntary petition im • bankruptcy.to be filed against it, or insti Ct ~~~ as they may be amended' from ttmento Chapteas 7, 11 or 13 of the Bankruptcy Tenant agrees to provide adequate protection and adequate assurance of future performance to - Landlord which will including, but not be limited to, the following; (a) All monetary and non-monetary defaults existing Pn°r _t° the institution of the filing of the bankruptcy petition shall be cured within sixty (60) days of written. demand made upon Tenant by Landlord, which will ~ include all costs and attorneys' fees expended to the date of the curing of the default; (b) The .failure to perform all of the obligations of Tenant in accordance with the terms of this Lease.. - - . If at any time during the pendency of the , bankauptcy proceedmg Tenant or its successor is orm any of the monetary or non-monetary obligations required undo. the interest fails to pert terms of this Lease, or fails to cure any pie-filing default, or make the additional security deposit . required under the adequate protection and adequate assurance of future performance clause . above, Tenant stipulates and agrees to ;waive its rights to notice and hearing and to allow Landlord total relief from the automatic stay under 11 U.S.C. 3b? to enforce its rights under this Lease and under State law, including, but not limited to, issuance and enforcement of a judgment of eviction, writ of assistance and writ of possession. $, : Landlord's Remedies~Uoon an Event of Default: Upon an uncured Bveat of Default, as set forth above, Landlord at its .option, shall have the immediate right to enter and remove all vehicles from the Parking Spaces and such vehicles may be removed and stored in a . warehouse or elsewhere at the cost otj and for the account of. Tenant pursuant. to~legal~ and without breaching the peace, and without being deemed guilty tresp proceedings becoming liable for any loss or damage which maybe occasioned thereby. Should Landlord elect to re-enter as herein provided, or should Landlord take possession of the Parking Spaces pursuant to legal proceedings, Landlord may either termsnate thLS Lease or may, from time to time without -10- Funocs ~u~~n ~cwtui.noc~, ~, terminating this Lease, make such alterations, improvements and repairs to the Parking Spaces as . may be necessary in order to relet the Parking Spaces, and may relet the Parking Spaces or any part thereof for such term or terms (which may be for a term extending beyond the Team) and at such rental or rentals and upon such other terms and conditions as Landlord.in its sole discretion may deem advisable, and upon each such reletting all monies received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness- other than Tenant Payments due hereunder from Tenant to Landlord; second, to the Payment of any costs .and expenses of such relating, including brokerage fees and reasonable attorneys' fees .and -costs of such alterations, improvements and repairs, third, to the payment of any Tenant. Payments due and unpaid hereunder, and the residue, if any, shalldbe ~eld~e ~ may become due and ayable payment of future Tenant Payments due hereon hereunder. In no event shall Tenant have any, right to any.monies received by the Landlord from any reletting other than- to have- such -monies applied-toward the indebtedness of Tenant to,- _ - Landlord as aforesaid, and to the extent such marries excced any indebtedness of Tenant, same shall be the sole property of Landlord If such rentals and other monies received from such .. •. . reletting during any month is less than the Tenant Payments to be .paid during that. month by • - - . Tenant hereunder,._Tenant shall pay any-such deficiency to Tandlord._ Such deficiency.shalk be . . calculated and paid monthly. No such retry or taking of~possession of the Parking Spaces by • . Landlord shall. be construed as an election on its part to terminate this Lease unless a written. . notice of such intention is given to Tenant by Landlord. Notwlthstandmg ~Y such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such- . ~ - . previous uncured Event of Default by written notice to Tenant.- Should Landlord at any time :.. terminate this Lease for any uncured Event of Default, in addition to the right to collect all . ` ~ . arrearages in Tenant Payments, together with any late charges and interest at the Default Rate . . - thereon as provided herein, Landlord may recover from Tenant (in addition to any other remedies ~. it may. have) all damages incurred by reason of such breach, including the cost of recovering and reletting. the Parking Spaces as referred to above,' reasonable attorneys' foes and including the worth at the time of such termination of the excess, if any, of the amount of all Tenant Payments . reserved in this Lease for the remainder of the Term, over the then reasonable rental value of the . parking Spaces for the remainder of the Term, all of which amount shall be immediately due and payable from Tenant to Landlord to re-enter' the Parking Spaces upon. an un~~ Event of Default by Tenant but Landlord may, at its option; do nothing with respoct to the Parking Spaces ~ _ and hold Tenant responsible for all Tenant Payments due Landlord as and.when same accrue from time to time thereafter. In addition to the foregoing, if Tenant's possession of the Parking Spaces is terminated dine to a monetary uncured Event of Default of Tenant, after the giving of , any required notice and the expiration of any grace period, then. Landlord will have the right to accelerate all of the Tenant Payment installments remaining due throughout the Term upon written notice to Tenant, whereupon same shall become duo and payable immediately. - Landlord's remedies hereunder are cumulative and furthermore, Landlord may, at its option, not .. , . pursue any of the remedies aforementioned and may avail itself of any other remedies available to Landlord as provided by law. - C, Landlord's Self-Help: In the event Tenant fails to perform any of its obligations under this Lease in a commercially reasonable manner, or in the event Tenant fails to pay for ~: anything which, under the terms of this Lease, Tenant is required to pay for, Landlord shall have the right, but not the obligation, upon giving Tenant at least thirty (30) days priorwritten noticx of its election to do so with a right to cure therein (in the event of any emergency or other threat to safety no prior notice shall be required) to perform or cause to be Performed such obligations on behalf of and for the account Qf Tenant if Tenant has failed to do so, or to pay for Tenant's obligations if Tenant has failed to do so. In such event, Landlord's. costs and expenses incurred in connection with performing or paying for any obligation of Tenant shall be paid by Tenant as au -11- F[ADOCS 11520w11 (2GW2~i1.D0(' . .~ additional Tenant Payment forthwith upon written demand by Landlord., with interest from the date Landlord incurs such expense at the Default Rate. The payment by Landlord of any obligation of Tenant shall not constitute a release of waiver of Tenant therefrom. vided in this Lease, Landlord shall l~. Landlord s Default: Except as otherwise pro be in default under this Lease if Landlord fails to perform any of its obligations hereunder and said failure continues unremedied for a period of thinly (30) days after written notice from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and in that event Landlord shall commence to cure said failure within the thirty (30) day penod and thereafter diligently continue to cure the failure). Tenant shall have the right to set-off against any Tenant Payment any damages which Tenant may have sustained by reason of Landlords failure to perform any of the terms, covenants or conditions contained in this I-ease on its. part to be • notice. and- performed: ff Landlord is in default under this Lease,-after the_givmg_of any required the expiration of any applicable grace period, Tenant's right, recourse and remedy shall be at law or in equity and may. seek specific performance against Landlord, but Tenant shall. not have the right to terminate this Lease or to vacate the Parking Spaces ~~ ~ a result of Landlord's default Tenants- use ~of .the Parking- -Spaces is substantially.. and .adversely affected in a commercially unreasonable manner. _ ~ .. . 1.1. Landlord's Lien For Rent: Tenant pledges and a ~g Pre~YLandlord ~ the fixtures, equipment, and other pets of Tenant which • improvements, furnishings, - may be brought or put on the Parking Spaces, as security for the payment of all Tenant Payments due Landlord herein, and agrees that Landlord's lien for such payment may be enforced- by . distress, foreclosure or otherwise at the option of Landlord, and the Tenant agrees that such lien is . granted to and vested in said Landlord. In addition, Landlord is entitled to all remedies provided under Florida Statute §83.08, and all other applicable statutes. Nothing contained herein shall be construed as granting Tenant the right to place any personal ProP~Y oa the Parking Spaces or any other portion of the Parking Garage Parcel unless incidental to the operation of the Parking Spaces.. 12. No Waiver. The failure of Landlord to insist upon the strict performance of any . provisions of this Lease, or the failure of Landlord to exercise any right, option or remedy hereby . reserved shall not be construed as a waiver for the future of any such provision, right, option or remedy or as a waives of a subsequent breach thereof. The consent or approval by Landlord of any act by Tenant requiring Landlord's consent or approval shall not.be construed to waive or render unnecessary the requirement for Landlord's consent or approval of any subsequent similar act by Tenant. The receipt by Landlord of any Tenant Payment with knowledge of a breach of any provision of this Lease shall not be deemed a waiver of such breach.. No provision of this Lease shall be deemed to have been waived unless such waiver shall be is writing signed by .Landlord. No payment by Tenant or reserved by Landlord of a lesser amount than the Tenant . Payments hereby reserved shall be deemed to be other than on account of the earliest Tenant ~. Payment then unpaid, nor shall any endorsement or statement oa any check or any letter • accompanying any check or payment by Tenant be deemed an accord and satisfaction, and . Landlord may accept any such check or payment. without prejudice to Landlord's right to recover the balance of.such Tenant Payment due or Landlord may Pursue any other remedy provided ln:. this Lease. ~ No waiver by Landlord in favor of any other tenant. or occupant of the Parking Garage Parcel shall constitute a waiver in favor of the. Tenant herein. 13. Surrender of Premises: Upon the expiration of the Term or sooner termination of this Lease, Tenant agrees to quit and surrender the Parking Spaces, broom clean, in good condition excepted, together .with all keys and and repair, reasonable wear -and, tear and casualty -12- rr.,~vocst~s2ox~it czcwziit.noc) ,. combinations to locks, safes and vaults and all improvements, alteration, additions, fixtures and equipment at any time made or installed in, upon or to the interior or exterior of the Parking Spaces with Landlord's permission, all. of which shall thereupon become the property of Landlord without any claim by Tenant therefor. Before surrendering the Parking Spaces, Tenant (if not in default) shall remove all of Tenant's personal property and unattached movable trade fixtures, and Tenant shall repair any damage caused thereby. ff Tenant fails to remove any of Tenant's property and trade fixtures, said property shall, at the option of Landlord, either be ~ deemed: abandoned and become the exclusive property of Landlord, or Landlord shall have the right to remove said property, at the expense of Tenant, without further notice to or demand upon Tenant, and hold Tenant responsible for any and all charges and expenses incurred by Landlord. If the parking Spaces are not so surrendered, Tenant shall indemnify Landlord against all loss or liability resulting from the delay by Tenant in so ~ surrendering the ,same, including, without limitation, any claims made. by any succeeding occupant founded on such delay... Tenant's . obligations under this Paragraph.shall survive the expiration or sooner termination of the Term, f. 14.. Holding Over: Should Tenant remain in possession of the Parking Spaces after the ' . ._ ,expiration._of Vie. Term. or. earlier termination of this Lease, with or without the .consent _of ~ ._. Landlord, express or implied, such holding over -shall, in the absence of a written agreement to the contrary, be deemed to have created and be construed to be a tenancy from month to-month terminable on fiftceu (15) days written notice by either party to the other, at the rate of TenarQt .Payments in effect during the Lease Year immediately preceding the expiration of the Term, and otherwise subject to all of the other terms, covenants. and conditions of this Lease insofar as the same may be applicable to a month-to-month tenancy, without prejudice to any remedy which' . Landlord may have against Tenant for holding over uFilawfiilly. 15: Subletting and Assi¢nment: ~~ A. ..Subletting: Tenant shall have the right to sublet all or a portion"of the Parking ~ .. Spaces herein leased to Tenant; provided, however, that each subtenant shall agree in a writing for the benefit of Landlord to be bound by the terms of this Lease. and further provi sh~allt ~t anbye such subtenant's proposed use of the Parking Garage Parcel or Parking Spaces .. contrary to applicable ordinance or constitute a proku'bited use under applicable law; ,code, or. . ordinance. A sublet of any or all of the Parking Spaces ~sliall not constitute a release by Tenant of ,any of Tenant's obligations under this Lease and Landlord shall not be deemed to be in privity ' with the subtenant by virtue of said sublease. Tenant shall provide Landlord with a wntmg, each subtenant, its address, telephone number and con#act person together :with as identifying identification of the Parking Space number(s) bung sublet and identifying whether the subld is. on a full-time or part-time basis, as applicable. The ability of Tenant to sublease'~aay or all of Tenant's Parking Spaces herein leased, does .not constitute an opinion or representation by .Landlord that a sublease of any or all of the Parking Spaces leased to Tenant will not constitute a .violation of Tenant of applicable City ordinances pertaining to the minimum number of Parking Spaces required available to Tenants of the Sun Atlantic Building.,. ~ . B.. Assignments Upon a sale of the Sun Building,- Taunt shall have the right to assign the parking Spaces together. with the vehicular and pedestrian. ingress and egress appurtenant thereto in accordance with the provisions herein. Any such assignee shall be bound to comply with all terms of this Lease, including the Rules and Regulations. Each assignee shall, as pre-requisite to the assignment, execute a joinder in this Lease agreeing to be-bound to and . comply with the terms of this Lease, including the Rules and Regulations. Provided Tenant is not in default under this Lease at the time of the assignment or, alteanatively, the assignment -13- runocs rrs~rr rtcvvzrrr.noc7 .. .~ ~. ~~ constitutes a cure of any pending default, Tenant shall be released firm any obligations under this Lease as of the date of the assignee's joinder in this Lease. C. No Waiver: The provisions of Sections 15.A ,and ~15.B above are neither intended as nor to be construed as waiving or mitigating any minimum .parking .space . requirements under the City's Code of Ordinances for pazking spaces serving the Sun Building. . 16. Subordination and Attornment: A, Subordination: This•Lease is subordinate to ~ existing covenants, declarations of covenants, restrictions, easements and encumbrances existing as of the date of this Lease .. . . affecting the Parking Garage Parcel and the pedestrian and vehicular ingress and egress appurtenant same, more particulazly set forth on Exhibit E hereto, and such future covenants, declarations of covenants, restrictions, liens, easements and encumbrances affecting the fce title to the Parking Spaces, which, if not adopted to give effect to a right of .Landlord specifically reserved in this Lease, shall not cause Tenant's use of the Parking Spaces to be substantially and . adversely affected in a -commercially unreasonable manner: Additionally, this -Lease shall' be . subject to and. subordinate to the lien of any mortgages or any other met}wd of financing or refinancing in any amounts,. now and hereafter in force, and all advances thereon, which may be . . placed against or affect all or a portion of the ~ Pazking Spaces, and to any modifications, ~ .. consolidations,- participations, replacements and .extensions 'thereof. This clause shell be self- tion shall be necessary to effectuate such operative, an ~ T Landlaad • . . subordination; however, such subordination shall be subject to the execution by errant, and such lender of a subordination, non-disturbance and attornment Agreement ("SNDA'~ in a - form currently used by national institutional lenders: .Should Landlord or mortgagee desire confirmation of such subordination, then Tenant, within ten (10) days following Landlord's . written request therefor, agrees.. to execute and deliver, .without charge, any and all documents, . including, but not limited to, the SNDA: In the event Tenant does not timely execute and delivery said SNDA to Landlord, Tenant hereby irrevocably constitutes and appoints Landlord as the attorney-in-fact for Tenant to execute said SNDA for and on behalf of Tenant. . $. Attornment: Tenant acknowledges advice by Landlord that the Parking Garage Parcel is to be conveyed by Landlord to the City and this Lease, assigned to and assumed by the City .upon the issuance of , a Certificate of .Completion for the Parking Garage Parcel Notwithstanding any other provision of this Lease, all rights of Landlord, including property.. rights and the rights in this Lease are frcely saleable, transferable and conveyable to the Cityceand thereafter by the City. Tenant agrees that in the event of~a sale, transfer and/or assignor' Landlord's interest in the Parking Garage Parcel, Parking Garage Parcel andlor this Lease, as the case may be, or in the event any proceedings"are brought.for the foreclosure of or for the exercise of any power of sale under any mortgage made by Landlord encumbering the Parking Spaces or rtion of the Parking Garage Parcel, as the case may be, to attorn to and to recognize any other po the City or such other transferee, purchaser or mortgagee as landlord under this Lease provi . ~~ party agrees to and. acknowledges this Lease in writing and to provide anon-disturbance covenant to the Tenant. -14 -. Ftwnocs t i sio2~» ~cwz» t.DOC~ ,. , . .~ ~, , 17. Quiet Enioyment: Tenant, upon paying the rents herein reserved and performing and observing all of the other terms, covenants and conditions of this Lease on Tenant's part to be performed and observed, shall peaceably and quietly have, hold and enjoy the Parking Spaces during the Term, subject, nevertheless, to the tams of this Lease, and to any mortgages, agreements and encumbrances to which this Lease is or may be subordinated... 18. Indemnity: Except for claims caused by the gross negligence or willfiil misconduct of Landlord or Landlord's Representatives, Tenant shall indemnify., defend and hold harmless Landlord and Landlord's Representatives from and against any and all claims, demands, causes of action, judgments, costs and expenses and all losses and damages {including consequential and punitive damages) arising from Tenant's use of the Parking Spaces 'or from the conduct of its business or from any activity,. warlc, or other acts or things done by Landlord or Landlord's Representatives, permitted or su$ered by Tenant in or about the Parking Spaces or any other .. . portion of the Parking-Garage Parcel, ~as the case maybe, and shall further indemnify, defead•and hold harmless Landlord and Landlord's Representatives from and against any and all claims arising from any Event of Default in the performance of any obligation on Tenant's part to be . Izerformed..tuzde~r• the t~rms,of this. Leasc,.ox arising from any act, omission or.gross negligence or _ . _ willful or criminal misconduct of Tenant, or any officer, agent, employee, independent contractor, guest, or invitee thereofi and from all costs, reasonable attorneys' fees and disbursements, and- - liabilities incurred in the defense of any such claim or any action or proceeding which may be 'brought against, out of or in any way related to this Lease: if any legal proceedings are brought . against Landlord by reason of any. of the foregoing, Tenant will, at its expense and upon written demand by Landlord, defend such proceedings by counsel approved by Landlord, except that if _ such proceedings are commenced.by Tenant, Tenant shall pay Landlord's reasonable attorney's fees if Landlord is the prevaiving Party in such proceedings. The provisions of this Section shall . survive the expiration or sooner tamination of this Lease. .. . 19. Parldne Space Location. Specifications and Valet 1°arlun~ A. Parlflng Space Location: Landlord shall provide the Parking• Spaces on the 5rst parking level (closest to ground level) of the .Parking Project, subject to governmental - requirements regarding the use of handicapped spaces or other requirements imposed by governmental authorities upon the Project which may require such Parking Spaces to be located •. - . on the second parking level or next available parking level(s) per Exhibit "A-1". In the ~veat the Parking: Spaces exceed the number of parking spaces constructed on the first parking level of the Project, after compliance with all rules, regulations and development criteria required by any governmental agency, including the numbea of spaces required in accordance w_ ith the American . Disabilities Act, the additional Parking Spaces -shall be located on the neact available parking . level(s) of the Project until-all the Parking Spaces to which Tenant is entitled are provided, the .. . foregoing provision superseding any contrary Provision in this Paragraph 19. The actual location of the Parking. Spaces upon a level may be relocated within such level from time to time by Landlord .provided Tenant shall agree in advance, in writing, at Tenant's sole discretion, as . circumstances warrant, provided that wherever located, -the Parking. Spaces shall be identified by . signagc reflecting the days and time that the Part-Time Spaces are reserved to the exclusive use of Tenant and advising that the X11-Time Parlang Spaces are exclusively reserved by Tenant on a 24hour per day seven-day per week basis. Landlord reserves the right to charge othex users of . the Parking Garage- Parcel parking fees by a "gated" control system or multiple gate control system or such othea manner not unreasonably interfering .with the use of (and access to and from) the Parking Spaces by Tenant and Tenant's Representatives. Such right of Landlord also . includes any alterations, changes, demolition and rebuilding in any combination from time to time during the Term of this Lease as desired by Landlord. -15- -.. fv+nocs ~is~i~ r~wz~u.noc~ ,, .. $, Valet Parldne: Subject to applicable governmental requirements and Tenant's receipt of approval for same, from all governmental authorities having jurisdiction, Tenant may use, at its option, the Full-Time Parking Spaces at any time, and, during those specified days and times the Part-Time Parking Spaces are for the exclusive use. of Tenant, for valet parking Purposes so as to "stack" the parking of cars to accommodate more than the maximum of one hundred (100) cars in the Parking Spaces on a one car per space ratio. However, no such "stacking" use of the Parking Spaces by Tenant shall constitute an obstructron or hindrance of access to the other parking spaces in the Parking Garage Parcel or with the free flow traffic within the Pazking Garage Parcel. The cost of providing such valet parking shall be at the sole expense of Tenant. Tenant-will use its best effort to ensure at all times that Tenant's Representatives use only those parking spaces designated for Tenant's use as the Parking Spaces by signage paid for by Tenant and approved by Landlord. Landlord shall not be responsible for monitoring the use of the Pazking Spaces designated for Tenant's use,. it being the responsibility of Tenant at Tenant's expense to monitor the -use of the Parking Spaces • and to ~ ensure that at all times Tenant's Representatives utilize only the Parking Spaces designated for Tenant's use. Landlord may . provide Tenant with written notice of any parking violations. Landlord reserves the right to cause . vnproperly.parked vehicles to be towed_at:the.expense of the owner Hof the yelucic providing.that proper notices aze posted by Landlord and the towing companies comply with the requirements of all applicable governmental authorities. Valet service procedures shall be subject to such reasonable rule, regulations, indemnifications and insurance requirements . as is reasonably. customary in similar situations. _ .. .. . C. Modifications to Parluna Spaces: Landlord shall liave the right from time to _ time, without obligation to do ~so, except as required .by law, to change or modify and add to or . subtract from the sizes, locations, shapes and arrangements of parking areas, entrances, exits, and. - parking aisle alignments within. the Project; establish' appropriate provisions for ticket validating, adopt a "gated" control system or a multiple gate control system or other parking control system, restrict and regulate vehiculaz and/or pedestrian entrances an e e ~ a ~ a~ ~ ~ m ~ number of parking spaces contained within the Parking Garag the number of Parking Spaces subject to this Lease are nbt decreased; in number orthe exclusive utilization as to days and hours reserved to Tenant and do and perform such other acts- in and to the Parking Garage Parcel as Landlord in its sole discretion, reasonably applied, deems advisable provided that Landlord shall keep any: modifications to pedestrian ingress- and egress to a . commercially reasonable minimum so as not to materially increase the distance to be traveled on foot from the pedestrian entrances and exits of the Pazking Garage Parcel to the Sun Building. . Landlord shall have the right to designate which individual paring spaces on the applicable. parking level it desires Tenant to use as the Pazking Spaces, provided the foregoing requirements for parking levels are met. D, Maintenance by Landlord: Landlord shall be responsible for the manner of maintenance of .the .Parking Garage Parcel and Parking Garage Parcel- Landlord shall. use commercially reasonable efforts to.keep fees or costs paid to third parties comprising Operating Expenses at a commercially reasonable level. Landlord shall be the sole determinant of the type and amount of security services to be provided, if any. Landlord shall have the right to intemipt or disturb said parking areas, entrances and eats, access drives and sidewalks serving the Parking Garage Parcel, including, but not linnited to, the Parking Spaces as shall be reasonably necessary to effect maintenance, repairs, or reconstruction thereof (if possible limiting work to wcekdays); and, when applicable, to avoid, mitigate or address any emergency and to avoid loss or injury to persons or property, provided, however, Landlord. shall provide Tenant with reasonable prior written notice of such interruption or disturbance (except in the case of emergency maintenance -16- Fuoocs ~iszoi~tt ftcwitit.ooc) , ~~ or repairs), and Landlord shall exercise reasonable efforts to minimiu,intemrption or disturbance of the use and occupancy of the Parking Spaces by Tenant during such interruption. $, ~ecifications of Parlang Spaces: Landlord shall provide (a) sixty (60) "Full- Time" Parking Spaces of the one hundred (100) Parking Spaces for Tenant's use twenty four (24) hours per day by seven ('~ days per week three hundred sixty five (365) days per Year and (b) fly. (40) "Part-Time" Parking Spaces of the one hundred (100) Parking spaces for Tenant's use Monday through Friday from 8:00 a.m. to 6:00 p.m., and Saturday from 8:00 a.m. to 12:00 noon, excluding holidays. Notwithstanding the foregoing, however, the maximum number of •~ handicapped designated Parking Spaces to be allocated or assigned among the Parking Spaces . shall be two (2) as to the Full-Time Parking Spaces and two (2) as to~ the Part-.Time Parking Spaces. . . 20. Miscellaneons• - . .~ .pi. Notices: Every notice, demand, request or other communication which may bo . . _ made ox is.roquired_ to be givea..unde~r..this Lease. or by Iaw shall be eithar hand delivered with , receipt or seat by U.S. Mail return receipt requested or by Federal Express signed for delivery to the parties at the addresses set forth in this Lease. AnY PAY. ~Y designate, by similar written notice to the other party, any other' address for such purposes.. In addition to the .foregoing, upon written notice by Landlord, Tenant shall send all notices sent to Landlord to tha holder of any mortgage encumbering the Parking Spaces or any other portion of the Parking Garage Parcel, the Temporary Lot or the Project, as the case maybe. . $, Recording: Within ten (10) days following the Commencement Date, Landlord and Tenant shall record a short form Memorandum of Lease, the farm of which is attached hereto • as Exhibit D•and.made a part hereof ("Memorandum of Lease', amongst the•Public Records of ~ . Palm Beach County, Florida. ~ ._ .. - C, Entire Agreement. etc.: This I,ease, including the' exhr'hits, riders and/or . addenda, if any, attached hereto, set forth the entire agreement between the parties. Ali prior and contemporaneous conversations and all prior writings between the parties hereto . or their representatives are merged herein and extinguished.. 'This Lease shall not be modified excxpt in writing subscribed to by all parties. .. . D. Estoppel Certificate: Tenant shall at any time and from time to time within ten . (10) days after written request from Landlord exexute, acknowledge and deliver to Landlord, in a form reasonably satisfactory to Landlord. and/or Landlord's mortgagex; a vvrittcn statement • certifying, as to the truth of various facts concerning this Lease which may include, but not be limited to, the following. (i) that this Lease is in full force and effect and has not been modified,- • ~~ altered or amended except as is expressly set forth in the written statement; (ii) that Tenant has no charge or offset under this Lease or otherwise, against any Tenant payment dun or to become due- • hereunder and that Tenant has no claims or defenses to enforcement- of this Lease; (ink that Tenant has no notice of a prior assignment, hypothecation or pledge of any Tenant Payment due Landlord, •or this Lease by Landlord; (iv) confirmation as to the Terns; {v) confumatioa as to the Rent, and, if rent has not yet commenced, confirmation as to the date installments of rent are to commence, and confirmation that no Rent installment has been paid more than thirty (30) days in advance of its due date except as required by the terms of this Lease; (vi) -that. Landlord is not in default under the terms of this Lease; (vii) any other certification as may reasonably be required by Landlord or Landlord's mortgagee. . _17- fv+nocs uszortr txcwz~is.noc) ~ t t0 COn1II1CIIC;e $. Attorneys' Fees and Costs: In the event either party is required legal proceedings in ordea' to enforce. its rights or protect its interests hereunder, the prevailing party in such legal proceedings shall be paid its reasonable attorneys' fees and costs, including all appellate levels, from the other party. F. Governing-Law: This Agreement shall be governed by the laws of the State of Florida G. Relationship of Parties: Nothing contained in this Lease shall be construed to create the relationship of principal and agent, Partnership, Joint venture or any other relationship between the parties hereto other than the relationship of Landlord and Tenant. . g• Waiver of Impossibility of Performance: Tenant expressly covenants that. nor insolven unless agreed in writing by Landlord, neither Tenant's receivership, bankruptcy, cY shall operate to relieve Tenant from the obligations of the Tenant hereunder. . I• Captions: All ca~~tions and all paragraphs and subparagraph numbers are inserted solely for the convenience of the parties and shall not be used or interpreted to define, limit, extend or describe the scope of this Lease, nor the interpretation of any provision hereof J. Compliance with Governmental Resuladons: Tenant shall comply with all statutes, ordinances, rules, regulations and requirements. of the federal, state, county or: ~tY goveanment departments or bureaus exercising jurisdiction over the Parking Spaces- . K_ Intentionally omitted. L, . StoraEe: There shall be no storage of cars (beyond 48 hours) boats, trucks,. , trailers or mobile homes or any othea propeaty of any. kind is permitted at .any time. upon .any portion of the Parking Spaces. M. Animals: Animals shall be allowed on the Parking Garage Parcel during ingress . and egress of the Parking Garage Parcel if accompanied by the owner under leash. . N. Survival of Covenants: Notwithstanding anything to the contrary contaiaed~in this Lease, the provisions (including, without limitation, covenants, agreements, representations, warranties, obligations and liabilities described therein) of this Lease which are specifically stated to survive the expiration or earlier termination of this Lease (whether or not such provision expressly provides as such) shall survive such expiration or earlier termination of this Lease and- . continue to be binding upon the applicable party. O• Waiver: ~ The failure of either party to enforce any covenant or other provision of this Lease shall not constitute a waiver of the right to do so thereafter, nor shall the same, give rise to any cause of action or defense on the part of the Tenant.. _ . p, Modifications: No modification of this Lease will be effective to vary any of the terms or provisions thereof unless.the modification is in writing and signed by both parties and- - approved in writing by the City. Commission of the City of Delray Beach, Florida, which approval by. the City Commission shall not unreasonably be withheld. A copy of any modification will be given to both Parties and the City Commission of the City of Delray Beach, • Florida. _18- Ftr+nocs ~is7a¢.~t tzcwxitt.ooc- Q. Construction of Lease: Words of any gender used ~ this ~~ m the singular number shall be held to include the plural when the sense requires. All the prov~ons contamed herein shall bind and inure- to the benefit of the parties hereto, their heirs, personal representatives, successors and assigns. Wherever used herein, the words "Landlord" and "Tenant" shall be deemed to include the heirs, personal representatives, successors and assigns of said parties, unless the context excludes such construction. In the event at any future time, one or more of the provisions of this Lease shall be held to be void by any court of competent jurisdiction for any reason, such provision shall be deemed to be separable and the remainder of this Lease shall be valid and in full force and effect. R. No Liens: Notwithstanding anything to the contrary herein contained, if Lessee makes any repairs or alterations whether or not with Lessor's prior consent, Lessee will not allow any lien of any kind whether for labor, material or otherwise be imposed or remaining against the Parking Garage Parcel or Premises. If any lien is filed; it shall be discharged within thirty (30) calendar days after it is imposed at Lessee's expense. Furthermore, •the Landlord, upon transfei to the City of the Property, shall transfer the Property free of all liens and encumbrances other. than . this Lease. to Lessee.. . _ _ _.:... 21. -Time of Essence: Time is of the essence in the performance'of this Lease' by each bf the parties. . 22. Representations Warranties and Agreements: ~ . _ A. No Reliance: Tenant expressly acknowledges and agrees that Landlord has not - made and is not making, and 'Tenant, in executing and delivering this Lease, is not relying upon any warranties, representations, promises or statements, except to the extent that the. same are expressly set forth in this Lease. It is understood and agreed that this Lease, alone, fully and . completely expresses the parties'- agreement, and that this Lease is entered into aftta full investigation, neither party relying upon any statement or representation not embodied in this ~~ This Tease has been fully reviewed and negotiated by each party with the benefit of legal- counsel and shall not be more strictly construed against eithex party. B, Tenant Warranties: Tenant represents and warrants as follows: {i) that there are no actions, suits or proceedings pending to the knowledge of Tenant, threatened against or • affecting Tenant, at law or in equity or before any federal, state, municipal or go~±ernmental department, commission, board, bureau or agency or instrumentality which would impair Tenant's ability to perform its obligations under this Lease; (ii) that this Lease has been duly authorized, executed and delivered by Tenant . and constitutes the legal and valid binding .obligation of Tenant; (iii) the consummation of the transactions hereby contemplated in the performance of this Lease will not result in a breach or violation of or constitute a default under ..any lease, bank loan or credit agreement to which Tenant is a party; (iv) that Tenant shall not cause or knowingly permit any- Hazardous Material to . be used, stored, transported, .released, handled, produced or installed in, on or from the Parking Spaces. C, Radon Gas: The Tenant hereby acknowledges that Radon is a natural occurring. radioactive gas that, when it has accumulated in a building in sufficient quantities, may. preseat~ health risk to persons who are exposed to~ it over time. Levels of radium that exceed federal and. state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from the County Public Health Unit. In that regard, Tenant hereby acknowledges that Landlord has made no investigation to determine whether there is radon gas or other. environmental pollutants in, on or about the Parking Spaces although such -19- ~.nnocs uszo2~~i R~ut.noc~ r ~~ conditions may exist. Further, Landlord has made no analysis or verification of the extent of the if any, that may affect the Parking Spaces or any other portion of ~rironmental or health hazard, • entation or the Parking Garage Parcel, the Tenant or its invitees. Landlord makes no repres warranty as to the presence or lack of radon or hazardous environmental c°ndi~ o=r~yto°~~e affect of radon or any other such condition, in, on or about the Parking Sp portion of the Parking Garage Parcel In that regard, Landlord disclaims and Tenant waives, unless otherwise expressly provided for herein, all warran-ties, expressed or imphed, including but not limited to the warranties of good workmanship, habitability, merchantability and fitness of purpose and including any warranties that could be construed to cover the presence of radon or llutants. The only warranties Landlord provides to Tenant are those other environmental po . expressly set forth in this Lease. ~ - . 23, Excuse of Performance -Force Ma'ei are: Anything. m this L~~- t0 ~0 contrary notwithstanding, Landlord shall not be deemed m default with respect to the performance of any - of the terms, covenants and conditions of this Lease if same shall. be due to any civil co ~oti~'ogen, war-like operation, invasion, rebellion, hostilities, .military - or usurped power, , ations or controls, inability io obtain.. any material or service or through. an act government regal and the control of Landlord- Landlord shall not be of God or any other cause reasonably bey visions of this Lease, due to liable for failure to give Tenant possession in accordance with theo~ ce shall be ~~~ ~ a any of the foregoing conditions.. The time for Landloid's perf notwithstanding, result of any of the foregoing. Likewise, anything in this _ Lease to the contrary Tenant shall not be deemed in default with -respect to the performance of any of the terms, covenants and conditions ~ of this Lease if same shall ~~~, t~~y or ensurped Pos'e'r, . commotion, war-like operation, ~ invasion, rebelhon, sabotage, government regulations or controls, or through an .act of God. -The time for Tmaat's performance obligations (but not payment obligations) under this Lease shall be. extended as a result of any of the foregoing. ... - 24, Accord and Satisfaction: No payment by Tenant or receipt by Lan~~ of a lesser amount than the Tenant Payment hereinP~dorsementt ordstat ~ on any k or any~letter the earlier Tenant Payments, nor shall Y and Landlord may accompanying any check or payment be deemed an accord and ~ rec~.o ~ the balance of such accept such check or payment without prejudice to Landlord's right or available at law or in Tenant .Payment or pursue any other remedy provided in this Lease ~tT• - ~ - 25. Brokenee: Neither Landlord nor Tenan°thhas ndealt motion of this Lease. bTcnant salesmen, finders or consultants in the finding, neg hereby indemnifies Landlord for any claims, costs, damages or other detriment Landlord may suffer, including, bat not limited to, reasonable brokerage commissions, reasonable attorneys' anal s fees (together with sales tax thereon) and court costs through all arbitration, trial, fees, p ~.~ ent ceedings arising from any breach by Tenant of the appellate, administrative and post judgm -pro foregoing covenant, warranty and representation.. Landlord hereby indemnifies Tenant for any or other detriment .Tenant may suffer, including, but not limited to, claims costs, .damages 'fees, paralegals' fees (together with sales tax reasonable brokerage commissions, attorneys a llate, administrative and post judgment thereon) and court costs through all arbitration, trial, pPe °~ covenant, warranty and proceedings arising from any breach by Landlord of the foreg g representation. Waiver of Jury Trial:- LANDLORD AND TENANT HEREBY ~'~ ~OyVINGLY, 26. ONALLY WAIVE Ai,1Y RIGHT E1TI~R MAY HAVE TO A VOLUNTARII-Y AND Il~T~ -20- . FiwDOCS 115202v11 {!°W2lii.DOC) - ,' ' TIZIAI, BY JURY IN RESPECT TO ANY LITIGATION BASID HEREON OR ARISING OUT . OF, UNDER OR IN CONNECTION WITH THIS LEASE AND ANY DOC'LTMENTS CONTEMPT-ATED TO BE EXECUTED IN CONJUNCTION H~~ OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STAT~tT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ETI'HER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LAND~~ OR HAS HAD THE OPPORTUNTI'Y TO ONSUIDLT REPRESENTID BY AN ATT WITH AN ATTORNEY.. IN CONNECTION WITH THIS JURY; .WAVER AND UNDERSTANDS THE EFFECT OF WAIVER. . 27. Venue: The Landlord and the Tenant hereby agree that the sole and exclusive venue for any action arising out of, or. related to, this Lease shall be Palm Beach County, Florida. The Landlord and Tenant hereby waive all objections to such actions being maintained in Palm Beach .County including without limitation claims of forum. non convenieas: - 28. • No Partnershi~i: Nothing in this Lease creates any relationship between the Parties other ~' .-.than-.that-of Landlord and Tenant.and.nothing in this Lease constitutes the Landlord a partaa of. _ _ ..' . the Tenant or a joint venturer or member of a common eaterprisewith the Tenant: ; - to the contrary herein .notwithstanding, • no - 29.. Limitation of Liability: Any~g t an of the- ' shareholdea of Landlord or any officer thereof shall be personally liable with~respect 4. Y - . terms, covenants, conditions and Provisions of this Lease, or the Performance of obligations under this Lease. Tenant shall look solely to the interest of Landlord, its successors and assigns, for the . - _ satisfaction of each and every remedy of Tenant against Landlord. Such exculpation of pedsonal liability of Landlord, its shareholders and officers, is and shall be absolute and without any exception whatsoever. The term "Landlord" shall mean only the owner at the time in question of - the present Landlord's. interest in the Landloni Tn the event of a sale or transfer o€ the Parloag Garage Parcel (by operation of law or otherwise) or in the event of the malting of a lease of all or - substantially all of the Parking Garage Parcel, or in the event of a sale or transfer (by operation of law or otherwise) of the leasehold estate under any sash lease, the grantor, transferor or lessor, as .. the case may be, shall be and hereby is (to the extent of the interest or portion of the Parking • Garage Parcel, or leasehold estate sold, transferred or leased) automatically and entirely released and discharged, from and aftea the date o of this Lease on the lpart ofoI.andlord theseafter~to~be . of the performance of any of the terms performed; provided that the purchases, transferee or Tenant (collectively, "Transfcree'~ shall be desmed to have assumed and agreed to perform, subject to the limitations of this Section (and without further agreement between the other parties hereto, of among such parties and the Transferee) and only during and respect of the Transferee's period of ownership of the Landlord's interest under this Lease, all- of the terms of this Lease on the part of Landlord to be perfornned during such period of ownership, it being intended that Landlord's obligations here9mder shall, as . limited by this Section, be binding on Landlord, its successors and assigns only. during and in ,. respect of their respective periods of ownership. 30. Public Parking Facility Construction and Conveyance and Wort inn Park Contribution Agreement: Tenant acknowledges the execution and delivery by Block 77 and the City of Delray Beach of that certain Public Parking Facility Construction and Conveyance and . Worthing Park Contribution Agreement dated November 10, 1999 ("Construction Agreement"), incorporated herein by reference, which shall supersede the terms of this Agreement to the extend of any conflicts or ambiguities. -21 - Funocx uszoz~u c2cwzn!.noci , .. ' SE~-lt-2002 08:86 Fes' ~~ , T-821 P.026/049 F-268 ~i .~~ .. -.~ .. • .~ rre -- --- ----- ~ ~ ~•` • " 60 Frill dime P S ~1/ - . ~$ P~~ ~ _ - ~ ~~ - 40 Pact mime Pa~ldng Spaces. •. ' - , : - .- : SITE -PLA~J - ~6L~ei~ - 5~9 _ - • CAULFI ELD •8~- .WHEELER.. INC. - CIVIL ENGINEERING -LAND PLANNING LANDSCAPE ARCHITECTI~E - S1112VEYING 7301A W. PALMETTO PARK ROAD -SUITE IOOA BOCA BATON. FLORIDA 33433 PHONE (5bl)-392-1991 f FAX (561 750-1452 M N CIPAL ARKING GARAGE- ELRAY BEACH FLORIDA- - - OATS 11 18 02 DRAt4N 8Y SET f:8. ~G. - SCALE - : N.T.S. • JOB N0. 3~Gifi • . • f~ _ - ~ 16' ALLEY ~ ~ ~ ~ - ~sooo @a mo OEL. i.10 ~. - i11tIP IP 6Y-t' ~ IOeL ~ . • - ~.~ . ! ~aaetE -- tom? - - 6L 69 _ - sic ua ~ a : ~ • LO 19 ~ __. _ _ ... - - . - - -. _ 'r ,:' ~ • ~ ~" ~ ~r uP sr-0".~: . • ~ ~ ~ . . a comma r~u ~ `S.E. 1st AVE1rUE - GROUND LEVEL ~ ~ ~ _ :6o,Full Time Parkin S ~ 8 P,aoes . xu - . • 40 Part Time Parking Spaces . ~ ~ ~ • SITE- . PLAN ~= • BLOCK 69 CAULFIELD 8~. WHEELER. (NC_ . . CIVIL EIJGINEERING -LAND PLAIVNIIVG LANDSCAPE ARCNItECTIRE -SURVEYING 7301A V!. PALMETTO PARK ROAD -SUITE IOUA BOCA RATUN, >=LORIbA 33433 PHONE (561}-392-1991 !FAX {561}-750-1452 i.. NICIPAL PA KING GARAG ELRAY~ BEACH FLORIDA t?ATE 11 18 ~2 DRA1kN BY SET E,B. PG. ~ • SCREE N.T.S.- JOB N0. 3b1 g ~~ ~' ~~ 8Et ~z.o • CAULFIELD & WHEELER; 1NC. CIVIL ENGINEERING -LAND PL;4idNING - LANDSCAPE ARCHITECTIAE - SIRVEYING 730IA'W. PALMETTO-PARK ROAD -SUITE (OOA BOCA RATOt~, FLORIDA 53433 PHONE (561}392-1991 /FAX {561}-75d-1452 ~~~ ICI AL PA KING GARAGE ELRAY BEACH FLORIDA : ' "• DATE 11 18 U2 DRAWN $Y Sf T F.B.% PG. . SCALE ~ N. T S. JQB HQ, ~ 3618 ~ ... C~ULFIELD 8~ WHEELER, INC. CIVIL ENGINEERIhtG -LAND PLANNING LANDSCAPE ARCHITBCTI~E - SURVEYING 7301A W. PALMETTO PARK ROiAD - SUITS IOOA 8OCA RATON, FLORIDA 33433 PHONE (Sbl 392-199! ~ FAX (56t 750-1452 1 ICIPAL . A KING GA AG - _ ~LRAY BEACH FLaR1DA DATE ~ 1 j 18 02 ~ - RAWN BY SEl' F.$. PG.. 5CALE ~ N.T,S. JOB NO.. ~ 3b16 ~, ~ .. . ~ ,: v. CAULFIELD .& WHEELER, INC. clv1~ ~cINEeRU~ - L~4-~ PLIWNING LANDSCAPE ARG-If TECTURE - SUR1/~YlNG 7301A W. PALMETTO PARK ROAD - SUITS IOOA BOCA RATON. FLdRIDQ 33433 . ' ~ PHONE 1561}-392-199t /FAX {56!)-750-1452 ICIPAL~ ARKING ~GA AG ELRAY BEACH ~ FLaR1OA ' oaTE » 18 02 DRAWN BY S T F.B. RG. SALE ~ N.T.S.. J08 N0. ~ 3616 ~i . - r 1~1'~MIIVb 1"'LRIV - - .SITE P~.A~N~ --- . BLOCKS ~fi 9 CAULF_ IELD $ WHEELER,. INC. DATE -. 71 18 42 1 CNIL ENGINEERING - LANq PLANNING - ' LANpSCAPE ARCHITECTURE.-SURVEYING ~3oiQ w. PALMETro PARKROAD - sutT~ IOaA ~ ~ DRAYVN BY ~ SET .BQCA RATCN. FLORIDA 33433 PHONE 561 592-1991 / FAX 61 ?50-1452 F.6. ~1;, M ICIPAL PARKING•~CARa - ~ ~ .~ ~~ ~I.r.s. ELRAY BEACH FLORIDA ~ JOB ND. 3fi1~ . - .. T-B21 P-031/048 f-268 'SEP-11-2002 09c3B f~" ,.. ,. qll of L.ot i 4 erxl the North 652 feet d Lct 15, Block n, TO1NN OP UNTON (now Delray Bead~t). act~ordir>Q to the plax oaf as recorded h Plat Sock t, Page S of tha Public Record6 d Palm Beach tburtty, Florida. . ~ - PARCEL~ •t . The South 59.84 feet of tots 4. S, t3 and tots 7 and 19. Ireecn~irled In~P Book 1, Psaee 9 Public Records of Prim (now Delray t3eachj. according to the plat thereof as ' Beach Cotmty. Raids. ~ ' PARCEl.a: ' . The North t ti.0 feet d Lot i9 and the North 16.E ~ookd ~~ .e 3 d ~ Pu ~ ecardsTd~Pal Beach County. FlorldtrF'lortde.. . arxardinp to the plat thereof as. recorded h P B PARCH-1~:. _. That part of the 16 fod wide spay right of way iylnD South of and adjacent to lots 4.5 and a 81odc T7. TOMRJ OF t.iNTON (now Delray BF7o ~. eccordin8 to the plat thered as recorded h fiat Boric i. Page 3 d the Public Rec~r+ds d Palm Beach County. ~ . ._ PARCA-6: - That part vl ti,e ~~ a feet d that certain 16 foal wide elleey r~ d ~Y hr~Q Wei °if and adjacent to lots 14 and 16, ~~'~ . (3lodc T1, TOWN OF l„ ir1'rpN (new DeJ fl B ~ , according to t~ Pit thared as rer~rded 1n Piet 8odc i, PaQe 3 of tt~ Puhlb Records of Palm Bead Coolly, - _ PARtxL.is ' That pare of the 16 foot wide spay r~ d way lying 1Nest d aril adiacerd to Lot 75, Bk~dc77. TOWN OF' UAl1'ON (now Delray t3each). ea~rd~ to tfie plat thereof es re~rded h Plat Book 1. Page ~ df th6 PubUc Records of Pabn 86YCit Cotxtty, Florida. ~'• EXHIBIT D MEMORANDUM OF LEASE address THIS A~MOR.ANDLTl11 OF LEASE.("Memorandum") is dated as of this day of 2002 by and. between whose ("Tenant"} whose address is ("Landlord") and RECITALS: WHEREAS, on even dale herewith, Landlord and Tenant entered into that certain lease ("Lease") affecting real property located in the City of Delray Beach, County of Palm Beach, State of Florida, as snore particularly described on Schedule "A" ,attached hereto and made a part hereof ("Parking Spaces"); and WHEREAS, Landlord and Tenant hereby execute this Memorandum for purposes of giving constructive notice of the Tenant's leasehold interest in the Parking Spaces created pursuant to the Lease and of the rights created thereby, all of which are hereby confirmed. ACCORDINGLI', the parties hereby give notice of tl~e existence of the Lease as follows: I.1. Term of Lease. The term of the Lease is ninety-nine (99} years expiring as of Midnight on the day of _ , 2101. 1I.2. Option to Extend. There are no options to extend the Lease. III.3. Liens. In accordance with Section 713.10, Florida Statutes, the interest of the Landlord in the Parking Spaces shall not be subject to liens for improvements to the Parking Spaces made by the Tenant. The specific language contained in the Lease prohibiting such liability is as follo~;~s: "Pursuant to Section 713.10, Florida Statutes, Tenant shall not permit any mechanic's or materialman's lien to be foreclosed against the Parking Spaces by reason of work, labor, services or materials performed by or furnished to Tenant or anyone holding any part of the Parking Spaces under Tenant. Such prohibition shall be properly set forth in the Memorandum of Lease recorded in connection with the terms hereof. If any such lien shall at any time be filed, Tenant may contest the same in good faith but Tenant shall, within fifteen (1 S) days, after notice of the filing thereof, cause such lien to be released of record by payment, bond, order of a court of competent jurisdiction or otherwise. Nothing contained in this Lease shall be construed as a consent on the part of Landlord to subject Landlord's estate in the Parking Spaces to any lien or Iiability under the lien laws of the State of Florida. ~Z'ith respect to any construction work undertaken by Tenant, Tenant shall furnish Landlord with lien -27- FLADOCS 115202v6 (2pv,206!.DOC) A ~ C. ti waivers from each contractor or material supplier following Tenant's completion of such construction." IV.4. Terms and Conditions. The Parking Spaces are subject to all of the other terms and conditions of the Lease, including, without limitation, provisions related to rental, subletting and assigning, fixtures, maintenance and repair, provisions related to insurance and damage, alterations, Tenant signs, condemnation and all other matters and things contained in the Lease. V.S. Countemarts. This Memorandum maybe executed in counterparts, each of which will be deemed an original document, but all of which will constitute a single document. This document will not be binding on or constitute evidence of a contract between the parties until such time as a counterpart of this documents has been executed by each party and a copy thereof delivered to each other party to this Memorandum. IN VS'ITNESS VF'HEREOF, the parties hereto have duly executed this Memorandum as and of the day and year first above written. Lan 1 rd: ~-~ ~~ L.C,, By Name: ~-- ~~e.~, Its: ~,.~~-Q~ -28- F1.4DOCS 115202v6 (2gw206!-DOC) STATE OF FLORIDA ) - ) ss: COUNTY OF PALM BEACH ) I HEREBY CERTIFY that on this day, before me, an o~cer duly authorized in the State aforesaid and in the County afor said to take acknowledgments, the foregoing instrument was acknowledged before me by ~... of ~ ~~ LC, a Flori a corporation, fr ely and voluntarily under authority duly vested m him b said ration and that the seal affix thereto is th true seal of said company. He is personally known to me or who has produced ~h c.U~.~ as identification. THE my Band and ofticial seal.inJthe County d State last aforesaid t rs ~ ay 'r of '~ • , 2002. ~` 4.,~ Not lic Typed, printed or stamped name of Notary Public My Conunission Expires: STATE OF FLORIDA ) ) SS: COUNTY OF PALM BEACH ) ~~pF rlop BROOKS kUSE ~. NOTARY o My Comm Exp. r~7/OS ~veuc > No. C.C 992266 I 1 Personmy Knw.n .11 Otl~d 1.0. I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County afor said to take ac - lodgments, the foregoing instrument was acknowledged b ore me by ~I'1~ -1L'-- ~ C~.t> of r t' - « ~, a Florida corporation, eery and voluntarily under authority dt)ly vested in him by said corporation and that the seal affixed thereta is the true seal of said company. He is personally known to me or v~ho has produced ~~ ~ l!~'t ~-C~'~~-e- _ as identification. WI SS my hand and official of ~`~' ~ _, X002. My Commission Expires: -29- `~p- r~o~ BROGY.$ RUSE MTARY 'o My Cumm Exp. 1/7/x5 a PUeuc > No. Cc 992266 t 1 Penbnaly Known I 1 DtheJ I.D. FLP.DOCS i 15202v6 (2gw206!.DOC) 1-yped; printed or stamped name of Notary Public ,, .... EXHIBIT E Site Plan of Pedestrian and Vehicular Ingress and Egress to Parking Spaces ~~~~~~ r -30- FLADOCS ]-5202v6 (2bnv206!.DOC] ~ / f EXHIBIT F Sun Parking Lot Parcel -JI FL4DOCS 115202v6 (2gw2D6!.DOC) C r Parce] II: Lots 8 end 9 in Block 77 of TOWN OF LINfpN (now known as Delray Beach), according to the plat thereof, recorded in plat book 1, page 3, of the public records ofPaIm Beach County, Florida; said ]ands situate, lying and being in Palm Beach County, Florida. . -1 ' .y S r AMENDMENT TO PARKING SPACE LEASE THIS AMENDMENT TO PARKING SPACE LEASE, is made as of the day of March, 2005, by and between BLOCK 77 DEVELOPMENT GROUP, LC, a Florida limited liability company ("B77'~, and SUN ATLANTIC PROPERTIES, L.L.C., a Florida limited liability company ("Sun"). WITNESSETH: WHEREAS, B77 and Sun, as Landlord and Tenant, respectively wish to amend that certain Parking Space Lease dated as of March 30, 2003, as follows: 1. The number of Full Time Parking Spaces to be leased to Sun shall be reduced from sixty (60) to fifty-five (55). 2. The Part Time Parking Spaces to be leased to Sun shall remain unchanged at forty (40). 3. The Parking Plan for the ninety-five (95) pazking spaces shall be that Parking Plan attached hereto as Exhibit A-1, made a part hereof. 4. Except as hereby amended, the Parking Space Lease Agreement is ratified and affiirmed in its entirety. 5. Sun hereby executes this Agreement fully subject to the written consent of this Lease by its Mortgage Lender. IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Parking Space Lease Agreement as of the day and yeaz first above written. Witnesses: BLOCK 77 DEVELOPMENT GROUP, LC By: &~,• Name: d - .e Title: ,, ~?A eixr SUN ATLANTIC PROPERT S, L.L.C. ~, ~~ By. . Name: • cri'o `~, ~ex~~~, ~~~t~ Title: 35732/0(106 FLADOCS 210813v5 ~o~ ~. 2 a t~ y~~ .~ . ,~ CONSENT OF MORTGAGEE This Amendment to Parking Space Lease is consented to, in its entirety, by the undersigning Mortgagee. By: Name: Title: Date: 35732/0006 FLADOCS 210813v5 -2- AMErmnsEly~r T~A~r~v+~ spy ..,,~ THIS AM,ENDN.[EN'T TO PARKING SPACE LEASE, is made as of the day of ll~arch, 2045, by and betweeat BLOCK 77 DBVELOPMP.NF GROUP, LG, a Florida limited liability company ("$77"), and SUN ATLAN'i'iC PROPERTIES, L.L.C., a k'lorida limited liability company ("Sun's. . WITNESSETT-I: WHEREAS, B77 and Sun, as Landlozd and Tenant, respectively wish to amend that certain Parking Space Lease dated as of N~ch 30, 2003, as follows: 1. The number of Full Tune Parking Spaces to be leased to Sure shall be reduced fxom sixty (60) to fifty~fcve t5~. 2. The Part Time Parking Spaces~to be leased to Sun shall remain ut~chaaged at forty (40). 3. The Parking Plan for the ninety-five (95) parking spaces shall be that Parking Plan attached hexe~to as Exhibit A-1, made a part hereof_ 4. ~ Except as hereby amended, the Parking Space Lease Agreement is ratified and af6nmed in its en#irety. 5. Sun hereby e7cecutes this Agreement fully subject to the written eansent of this Lease by its Mortgage Z.ender. ll~1 Wl'INFSS WI~RE+DF, the parties hereto have executed this Ameadtnent to Fartldng Space Lease ,A,greetnent as of the day and year dust above wrlttea. Wi~bnesses: ELOCI~ 77 DEVELOPMENT GROUP, LG By: Name• Title: • SUN ATLANTIC PRUPERT S, L.L.C. $y: _..'~ ~o~K.~ Natne• ~crr ~~'~~ Title: `~ 3sr~yooo6 ~i„+oocs aiaa~3~s SECOND AMENDMENT TO PARKING SPACE LEASE This SECOND AMENDMENT TO PARKING SPACE LEASE ("Third Amendment") is made and entered into to be effective as of the day of , 2007, by and between by and between BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company ("Block 77") and OXFORD BUSINESS CORPORATION, a Florida corporation (successor in interest to Sun Atlantic Properties, L.L.C.("Sun")) ("Oxford"). RECITALS WHEREAS, Block 77, as landlord, and Sun, as tenant, entered into that certain Parking Space Lease dated as of March 30, 2003, as amended by that certain Amendment to Parking Space Lease dated March 5, 2005, and a Second Amendment to Parking Space Lease executed simultaneously herewith (collectively the "Parking Space Lease"); WHEREAS, Oxford assumed the obligations of Sun under the Parking Space Lease pursuant to that certain Assignment and Assumption of Exchange Agreement and Related Documents dated September 14, 2005; and WHEREAS, Block 77 and Sun have agreed to amend the ternis and conditions of the Parking Space Lease upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Block 77 and Oxford agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Section 2 Term. Section 2 (Term) of the Parking Space Lease is hereby deleted in its entirety and replaces as follows: 2. Term: Term shall mean and refer to the period of time commencing on the date Block 77 conveys the Parking Garage to the City, as evidenced by the recording of a deed from Block 77 to the City in the Public Records for Palm Beach County, Florida (the "Commencement Date") in conjunction with Block 77's development of a structured residential apartment building and amenities together with a commercial feature under the regulations of the Community Redevelopment Agency of the City which development is known as "Worthing Place", and ending ninety-nine (99) years therefore or earlier termination of this Lease. Tenant shall have the use of the Parking Spaces as herein provided subject to the terms of this Lease, from the Commencement date through the Term of this lease. 3. Definitions. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Parking Space Lease. Page 1 of 2 4. Successors. This Assignment shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. 5. Ratification of Agreement. Except as specifically modified hereby, all other terms, conditions and provisions of the Agreement are hereby ratified by the parties. In the event of any inconsistent or conflicting provisions between this Third Amendment and the Parking Space Lease, this Third Amendment shall in all cases control. IN WITNESS WHEREOF, the Block 77 and Oxford have duly executed this Second Amendment, pursuant to due authority, effective as of the day and year first above written. WITNESSES: Print Name: Print Name: Print Name: Print Name: OXFORD BUSINESS CORPORATION, a Florida corporation By: _ Name: Title: BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company By: _ Name: Title: Page 2 of 2 THIRD AMENDMENT TO PARKING SPACE LEASE This THIRD AMENDMENT TO PARKING SPACE LEASE ("Third Amendment") is made and entered into to be effective as of the day of , 2007, by and between by and between BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company ("Block 77") and OXFORD BUSINESS CORPORATION, a Florida corporation (successor in interest to Sun Atlantic Properties, L.L.C.("Sun")) ("Oxford"). RECITALS WHEREAS, Block 77, as landlord, and Sun, as tenant, entered into that certain Parking Space Lease dated March 30, 2003, as amended by that certain Amendment to Parking Space Lease dated March 5, 2005, and a Second Amendment to Parking Space Lease dated 2007 (collectively the "Parking Space Lease"); WHEREAS, Oxford assumed the obligations of Sun under the Parking Space Lease pursuant to that certain Assignment and Assumption of Exchange Agreement and Related Documents dated September 14, 2005; and WHEREAS, Block 77 and Sun have agreed to amend the ternis and conditions of the Parking Space Lease upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Block 77 and Oxford agree as follows: Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Description of Parking Spaces. The words, "Sixty (60) full-time and forty (40) part-time vehicular parking spaces", are replaced by the words, "Fifty-five (55) full-time and forty (40) part-time vehicular parking spaces", as set forth in the second unnumbered introductory paragraph of the Parking Space Lease under the "Description of Parking Spaces". 3. Section 4. Tenant Payments. The words, "computed by multiplying by one hundred (100), the fraction the numerator of which shall be eighty (80) (i.e. sixty (60) full-time and one-half (i.e. 20) of the forty (40) Part-Time parking spaces", are replaced by the words, "computed by multiplying by one hundred (100) a fraction, the numerator of which shall be the sum of Full-Time parking spaces. PLUS one-half of the Part-Time parking spaces (i.e. if there are 55 Full-Tune spaces and 40 Part-Time spaces, the numerator shall be 75)", as set forth in the second paragraph of Section 4 of the Parking Space Lease. 4. Section 5. Parking Spaces. The words, "one hundred (100) Parking Spaces" are replaced by the words "Parking Spaces", as set forth in Section 5. 5. Reference to One Hundred (100) Cars. The words, "hundred (100) cars" are replaced by the words "ninety-five (95) cars", as set forth in Section 19.B. Third Amendment to Parking Space Lease v.1.3 dtd OS 29 07 CL.doc 6. Section 19.E. Specification of Parking Spaces. a. The words, "(a) sixty (60) "Full-Time" Parking Spaces of the one hundred (100) Parking Spaces" are replaced by the words "(a) fifty-five (55) "Full- Time" Parking Spaces of the ninety-five (95) Parking Spaces" as set forth in Section 19.E. b. The words, "(b) forty (40) "Part-Time" Parking Spaces of the one hundred (100) Parking spaces" are replaced by the words "(b) forty (40) "Part-Time" Parking Spaces of the ninety-five (95) Parking Spaces" as set forth in Section 19.E.. 7. Exhibit A - Leal Description of Parking Garage Parcel attached to the Parking Space Lease is deleted in its entirety and replaced by the "Replacement Exhibit A - Legal Description of Parking Garage Parcel" attached hereto. 8. Exhibit A-1- Parking Plan attached to the Parking Space Lease is deleted in its entirety and replaced by the "Replacement Exhibit A-1 -Parking Plan as of January 15, 2007" attached hereto. 9. Exhibit D -Memorandum of Lease attached to the Parking Space Lease is deleted in its entirety and replaced by the "Replacement Exhibit D -Memorandum of Lease" attached hereto. 10. Definitions. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Parking Space Lease. 11. Successors. This Assignment shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. 12. Ratification of Agreement. Except as specifically modified hereby, all other terms, conditions and provisions of the Agreement are hereby ratified by the parties. In the event of any inconsistent or conflicting provisions between this Third Amendment and t11e Parking Space Lease, this Third Amendment shall in all cases control. 13. Counterparts. To facilitate execution, this Third Amendment may be executed in as many counterparts as may be convenient or required. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Third Amendment to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, and the respective acknowledgments of, each of the parties hereto. Any signature or acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures or acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature or acknowledgment pages. Page 2 of 6 IN WITNESS WHEREOF, the Block 77 and Oxford have duly executed this Third Amendment, pursuant to due authority, effective as of the day and year first above written. WITNESSES: Print Name: Print Name: Print Name: Print Name: OXFORD BUSINESS CORPORATION, a Florida corporation By: _ Name: Title: BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company By: _ Name: Title: Page 3 of 6 REPLACEMENT EXHIBIT A Leal Description of Parking Garage Parcel Parcel One All of the plat of WORTHING PLACE BLOCK 69, according to the map or plat thereof as recorded in Plat Book 105, page 137, Public Records of Palen Beach County, Florida; Fornlerly described as: Lots 20, 21 and 22, Block 69, Subdivision of Block 69, Delray, Florida according to the map or plat thereof as recorded in Plat Book 2, Page 43, Public Records of Palm Beach County, Florida; and Parcel Two A portion of Lot 19 of the Subdivision of Block 69, Delray Beach, Florida, according to the Plat thereof, as recorded in Plat Book 3, Page 45 of the Public Records of Palm Beach County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Lot 19, also being the Southwest corner of Worthing Place Block 69, as recorded in Plat Book 105, Page 137; Thence S 89°06'29" E along the North line of said Lot 19, a distance of 2.00 feet to the Point of Beginning; Thence continue S 89°06'29" along said North line, a distance of 124 feet to a point of intersection with the West line of the right-of--way for S.E. 1S` Avenue as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 5.00 feet West of and parallel with the East line of said Lot 19; Thence S 00°00'00" W along said parallel line, a distance of 0.33 feet to a point of intersection with a line 0.33 feet South of and parallel with the North line of said Lot 19; Thence N 89°06'29" W along said parallel line, a distance of 124.00 feet to a point of intersection with the East line of the right-of--way fora 16.00 foot wide Alley as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 2.00 feet East of and parallel with the West line of said Lot 19; Thence N 00°00'00" W along said parallel line a distance of 0.33 feet to the point of beginning. Page 4 of 6 REPLACEMENT EXHIBIT A-1 Parking Plan as of January 15, 2007 Page 5 of 6 REPLACEMENT EXHIBIT D Memorandum of Lease Page 6 of 6 a ~ ~ w F ~ a o g T ~ r~~ ~~ /A~ W Q Q Q C~ ~ J W ~ Z H U ~ W q ~ W ~oQo Y ~j = .;:. a~i ~ ~O ~ ~ ~QU ~~ ~° 0 ^Q~ o 1... c .~ ~~ i. ~~ g ~1 s" d\ d d d ` ~~ '~i,7 LOOZ 1HOILIAdO~ - 031V210d210~N1 PYJI530 Z3N3d to }uasuoo va}}ure ssa~dza ay} }noy}Ir paonpoida~ aq ion IF4s Pao 031VilOdLIO~M N9530 Z32l3d to F}~adad ay} sl }uawnaoP slyl S I I I I I .-~- ru I r. I >s I ~ I I I I I i I I ~ I I i t y ~ ~ I I I I I I I I I I 1 I I I I I I I I I I I I I I I ' I I I I I I I I I I~ ~ I I i I 4 ~ s t ~ r - ` ~ ~n ~ ~ t 4 ~ ~ . 4 __ __-.- ___ __ -__ -_- _ _ - _ Z ~ ~ o r i Q ~ N _ r I ~ r ~ } ` a ' ; i i i i ~- ; i i I i ~ I I i i I I I I I W j i i i i i i i i i i i i i i i i i` 4 I a r ~ ~ ~ ' i , 5 0 0 4 I I ~ I I _-~ ~-. ,-. b b .... b b ~. ~" ~:.. u ~l O !A W N" 'r I 1~ ~~ l.! a c~ ~ J L1J U W ~ a c~ c °ao U~= m~0 ~~ ~' ~ a ~aU i ~ i ~ i i> I i ~ i ~ C~ ~ ~ ~ ~ °~ ~ I lL /~~ O • S d C , ~ ~/ ' ~ /W~ •~ rC-~ N e '~ cis i ~ ~~ LOOZ 1H~RU.dO~ - 031V210d210~N1 N'~534 Z32f3d Jo ~uesuo~ ual~ux ssaidxa ay> >ray~ir pa~npada~ aq iau IIo4s P~ 43LVilOd2)O~NI N91534 232134 /o .(~ndo~d ayl si ywwroop siyl I M ~ ~ J ~a -, 0 n n n n n n R .w i 1 I ~ T T rs~ r .~-~~ rs rr . r I I I I I I I I I I I s 4 I I I + + c~ + + T + y ~ + t + ~ ~ I I I I I I I I I I I ~ I I I I ~ I I I I I I I I I I I I I I y. ~ I I I I + + ~- _ .. _ _ -_ ._~_-------__ __-_ . _ - .- _ ~ ~ 3i 't + ~ I ~ s a F ~ f ~ ~ I ~ ~ ~ I 4 Q H_ - + - -_--- _._- _ ... _ ... _ --_ 0 ._._._- _ I ~ -___ -~ I * + I i I r' i I Q ~ S $i y : ~- - 4 - . .-_-- -_--- ---- -~__ ---__ -_--- ~--- I I I ----- I ----- ~ --} _ I I I I + I I I I i i i + i i i I i i i i i 4 I i I I w + I i I I i I I I I + + r I I I + ~ + I I 1 I I I 0 0 0 0 0 0 o a i i I I I I I i i i i C C C C C ~ v ~ ~ v ~ `~ a ~ l~a~ ~ F l~ cV O V Q ~ ~j `V W a ' J W Q Z ~ ~.. U ~ W ~z~ ~ > c~n 0 Z ~ Q Q ~ O O W p ~ m ~ O gy W ~+ ~ ~ ~i ~ ~~ ~ ~ ` .QU a U b C ~, ~~ L ~ a ^ v {.. c H nj s a ~ ro ~~ ~g ~s LOOZ 1Fglilld(YJ - 031tl2lUdilO~Nl N91530 Z3213d !~ Wasuo~ ua~Fl~w ssa~dxa ay; 7^~47f~n pa~npo~do~ aq you goys puo 43LVLIOdilO~NI N~530 Z3Ll3d to .(7~adoXl ay} sl }wwnoop slyl l ~. Prepared by and Return to STEVEN D. RUBIN, ESQ. 980 North Federal Highway, Suite 434 Boca. Raton, Florida 33432 AGREEMENT BETWEEN ADJOIl~lING LANDOWNERS PERMITTING ENCROACHMENT OF CHEMICAL GROUT BETWEEN TWO BUILDINGS THIS AGREEMENT is made this ~ day of 2007, by and between OCEAN CITY PLACE, LLC, a Florida Limited Liability comp y ("OCEAN CITY PLACE', of Palm Beach County, Florida and BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida Limited Liability Company ("BLOCK 77"), of Palm Beach County, Florida, the undersigned parties. WHEREAS, BLOCK 77 is the owner of that certain pazcel of real property as more particulazly described on Exhibit "A" attached hereto and made a part hereof, hereinafter referred to as the "Garage Property"; and WHEREAS, OCEAN CITY PLACE is the owner of the adjacent parcel of real property located to the north of and contiguous to the Garage Property as more particularly described on Exhibit "B" attached hereto and made a part hereof, hereinafter referred to as the "Royal Atlantic Property"; and WHEREAS, BLOCK 77 has constructed a garage on the Gazage Property and Ocean City place has constructed a condominium on the Royal Atlantic Property; and WHEREAS, in the course of constructing the garage on the Garage Property pursuant to a letter agreement between Block 17 and Ocean City Place dated Apri128, 2006, Block 7? injected chemical grout and/or concrete-like material (hereinafter collectively referred to as "Chemical Grout"}under the surface of the land between the Garage Property and the Royal Atlantic Property for the purpose of strengthening the soil under the Royal Atlantic Property appurtenant to the foundation of the condominium on the Royal Atlantic Property; and WHEREAS, as a result of the injection of the Chemical Grout by Block 77, a contiguous solid mass of the Chemical Grout was created commencing from the northern footers of the garage under the surface of the Garage Property to and touching the foundation of the condominium located under the surface of the Royal Atlantic Property (the portion of the Chemical Grout lying under the surface of the Royal Atlantic Property is hereinafter referred to as the "Encroachment Area"); and WHEREAS, Block 77 is under contract to convey the Garage Property to the City of Delray Beach, a Florida municipal corporation, and in connection therewith, the City of Delray Beach will become the record owner of the Garage Property; and Page 1 of 4 WHEREAS, Block 77 and Ocean City Place desire to memorialize their agreement concerning the Encroachment Area which will be binding upon and inure to the beneft of the Parties' successors and assigns, including without limitation, the City of Delray Beach. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration the receipt whereof is hereby acknowledged by each of the parties, Block 77 and Ocean City Place agree upon the following terms and conditions: 1. By virtue of the execution of this Agreement and except for the easement created by this Agreement, Block 77 hereby quit-clairns, remises, releases and transfers to Ocean City PIace any and all right, title and interest Block 77 has in and to the Royal Atlantic Property which may have arisen and which may arise by adverse possession or otherwise, due to the Chemical Grout in the Encroachment Area. By virtue of the execution of this Agreement, Ocean City Place hereby quit- claims, remises, releases and transfers to Block 77 any and all right, title and interest Ocean City Place has in and to the Garage Property which may have azisen and which may arise by adverse possession or otherwise, with respect to the Chemical Grout located under the surface of the Garage Property. 2. Ocean City Place, for itself and for its successors and assigns, covenants and agrees that as long as the garage shall remain standing on the Garage Property (or in the event of its destruction, it is rebuilt), Block 77, and its successors and assigns, shall have the right to keep the Chemical Grout in place in the Encroachment Area to the same extent and in the same manner as it now may encroach under the surface of the Royal Atlantic Property. 3. If and when the need arises for the repair, replacement or other maintenance of the Chemical Grout in the Encroachment Area, the cost of such repair, maintenance and replacement shall be bourne exclusively by Ocean City Place, and Block 77 shall have no obligation to maintain, repair or replace any portion of the Chemical Grout which is located in the Encroachment Area. Ocean City Place, for itself and its successors and assigns, agrees that it shall not replace or remove the Chemical Grout in the Encroachment Area if such removal or replacement would damage or injure any portion of the garage ar impair wall or footer support of the garage located on the Garage Property. 4. If and when the need arises for the repair, replacement or other maintenance of the Chemical Grout located under the surface of the Garage Property, the cost of such repair, maintenance and replacement shall be bourne exclusively by Block 77, and Ocean City PIace shall have no obligation to maintain, repair or replace any portion of the Chemical Grout located under the surface of the Garage Property. Block 77, for itself and its successors and assigns, agrees that it shall not replace or remove the Chemical Grout located under the surface of the Gazage Property if such removal or replacement would damage ar injure any portion ofthe condominium or impairwall or footer support of the condominium located on the Royal Atlantic Property. Page 2 of 4 5. Ocean City Place hereby grants, conveys and transfers to Block 77 anon-exclusive easement in perpetuity for the use and placement of the Chemical Grout in the Encroachment Area to the same extent as it may now encroach under the surface of the Royal Atlantic Property, subject to ordinary and usual shifting and settling. 6. This Agreement shall be binding upon and inure to the benefit of the parties, their respective, successors, assign, heirs, grantees and personal representatives and any other person or other entity which at any time in the future will be come the owner of the Garage Property or Royal Atlantic Property, respectively. 7. This Agreement shall constitute a covenant which runs with land with respect to the Garage Property and Royal Atlantic Property, as provided by law. $. In the event of any dispute arising out of this Agreement, the prevailing party shall be entitled to an awazd of attorney's fees and costs at all pretrial, trial and appellate levels. 9. This Agreement supersedes any and all prior or contemporaneous agreements, both oral and written, and this Agreement contains all of the covenants and agreements with respect to the terms stated herein. 10. Any notices to be given under this Agreement by one party to the other may be effected either by personal delivery in writing or by registered or certified mail, with postage prepaid and return receipt requested. Mailed notice shall be addressed to the parties at the legal mailing addresses of Block 77 Development Group, LC and Ocean City Place, LLC, respectively, as they appeaz in the corporate records of the Florida Secretary of State. However each party may change the address for receipt of notice by giving written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated at the time of delivery. Mailed notices will be deemed communicated three (3}days after deposit in the U. S. Mail IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals the day and year first above written. Witness Print name of Witness Witness Print name of witness OCEAN CITY PLACE, LLC, a Florida Limited Liability Company BY: Mario Daniele, Managing Member Page 3 of 4 U~.~ ,~~c Wi~a,J J~~l/ P ' t e of Wi ss w i ~l v ~ nl Print name of witness STATE OF FLORIDA COUNTY OF PALM BEACH BLOCK 77 DEVELOPMENT GROUP, L. C., a Florida Limited Liability Company BY William E. Moms, Jr., ~g11~er~ber f~Ctilc~~~' ~' The foregoing instrument was acknowledged before me this _ day of _ , 2007, by Mario Daniele, Managing Member of Ocean City Place, LLC, a Florida Limited Liability Company, who (please check one) is {are) personally known to me OR has (have) produced ~ identification and he/she/they (please check one) did take an oath x did not take an oath. My Commission Expires: STATE OF FLORIDA COUNTY OF PALM BEACH Notary Public The foregoing instrument wa f ac mowledged before me this ~ day of , 2007, by William E. Morris, Jr., I~~~~~~~ofBlock 77 Development Group, L. C., a Florida Limit Liability Company, who (pl a check one) is (are) personally known tome OR has (have) produced as identification and he/she/they (please check one) did take an oath ~_ did not take an oath. ~ My Commission Expires: Page 4 of 4 Public MY COMMISSION # DD413011 ~1RES: aPri102, 2009 ~~ ~_N0~Y1~mmtAnoeCo. LEGAL DESCRIPTION PUBLIC PARKING FACILITY Exhibit "A" Parcel One All of the plat of WORTHING PLACE BLOCK 69, according to the map or plat thereof as recorded in Plat Book 105, page 137, Public Records of Palm Beach County, Florida; Formerly described as: Lots 20, 21 and 22, Block 69, Subdivision of Block 69, Delray, Florida according to the map or plat thereof as recorded in Plat Book 2, Page 43, Public Records of Palm Beach County, Florida; and Parcel Two A portion of Lot 19 of the Subdivision of Block 69, Delray Beach, Florida, according to the Plat thereof, as recorded in Plat Book 3, Page 45 of the Public Records of Palm Beach County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Lot 19, also being the Southwest corner of Worthing Place Block 69, as recorded in Plat Book 105, Page 137; Thence S 89°06'29" E along the North line of said Lot 19, a distance of 2.00 feet to the Point of Beginning; Thence continue S 89°06'29" along said North line, a distance of 124 feet to a point of intersection with the West line of the right-of--way for S.E. 151 Avenue as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 5.00 feet West of and parallel with the East line of said Lot 19; Thence S 00°00'00" W along said parallel line, a distance of 0.33 feet to a point of intersection with a line 0.33 feet South of and parallel with the North line of said Lot 19; Thence N 89°06'29" W along said parallel line, a distance of 124.00 feet to a point of intersection with the East line of the right-of--way fora 16.00 foot wide Alley as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 2.00 feet East of and parallel with the West line of said Lot 19; Thence N 00°00'00" W along said parallel line a distance of 0.33 feet to the point of beginning. Exhibit "B" -Legal Descriation to Agreement Between Adioining Landowners Permitting Encroachment of Chemical Grout Between Two Buildings Lots 23 and 24, Block 69, Subdivision of Block 69, Delray, Florida, according to the map or plat thereof as recorded in Plat Book 2, Page(s) 43, Public Records of Palm Beach County, Florida. 5. MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ("Memorandum") is made as of the day of May, 2007 ("Effective Date"), by and between BLOCK 77 DEVELOPMENT GROUP, L.C. a Florida limited liability company, with offices at c/o Southcoast Partners, Inc., 900 E. Atlantic Avenue, Suite 13, Delray Beach, FL 33483 ("BLK 77"), the DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY having offices at 20 N. Swinton Avenue, Delray Beach, Florida 33444 ("CRA") and the CITY OF' DELRAY BEACH, FLORIDA, a Florida municipal corporation, whose address is 100 N.W. ls` Avenue, Delray Beach, Florida 33444 ("City"). BACKGROUND The City and CRA owned certain pieces or parcels of land situate, lying and being in the heart of Delray Beach, Florida, and described in Exhibit A-1 attached hereto and made a part hereof (the "City/CRA Land"). The City and CRA, in the interest of stimulating development of the City/CRA Land, put out an request for proposal ("RFP") for the City/CRA Land. BLK 77 was awarded the RFP contract to acquire the City/CRA Land. The various documents entered into by and between or among the City, CRA and BLK 77 simultaneously with and subsequent to BLK 77's award of the RFP provided the City and CRA certain protections and assurances to the end that the development of the City/CRA Larid sought by the City and CRA, as evidenced by the RFP, would actually happen and provided the City and CRA with specified rights with respect to the City/CRA Land in the event the comtemplated development failed to occur. Those protections and assurances provided to the City and CRA were expressed as follows: (i) a "CRA right of repurchase" (herein "CRA Right of Repurchase") as expressly mentioned in the Declaration (as defined herein) and the CRA Deed (as defined herein); (ii) a CRA "right of first, refusal" (herein " CRA Right of First Refusal") as expressly mentioned in the Declaration and CRA Deed; and (iii) a City "right of repurchase," "reconveyance" and/or "reverter" (herein "City Additional Rights") as expressly mentioned in the Declaration, Parking Facility Memorandum (as defined herein) and CRA Deed. The CRA Right of Repurchase, the CRA Right of First Refusal and the City Additional Rights are hereinafter sometimes collectively referred to as "City/CRA Reserved Rights". The various documents setting forth the City/CRA Reserved Rights enumerated also certain conditions precedent to the conveyance of the City/CRA Land from the City and/or the CRA to BLK 77 ("Conveyance Conditions") and certain conditions subsequent to said conveyance the failure of any one of which could "trigger" the exercise by the City and/or CRA of one (1) or more of the City/CRA Reserved Rights ("Continuing Obligations"). References to the City/CRA Reserved Rights can be found both in the documents referenced above and in a number of documents ancillary thereto and, in some instances and to some degree, the articulation of the City/CRA Reserved Rights varied. Memorandum of Understanding 5-31-07.doc All of the Conveyance Conditions were satisfied and fulfilled by BLK 77, the City and the CRA, culminating in the transfer of the City/CRA Land by the City and/or CRA to BLK 77 on May 6, 2006; as evidenced by that certain Warranty Deed dated May 6, 2006, executed and delivered by CRA to BLK 77 and recorded in the Public Records of Palm Beach County, Florida in Official Records Book 20414, Page 522 (the "CRA Deed"). In fairness to all concerned, especially BLK 77, to eliminate any possible confusion, and to bring certainty and complete agreement among the parties as to those of the Continuing Obligations w, hick remain, as of the date hereof, to be done so as to effect a release and termination of those of the City/CRA Reserved Rights as remain extant as of the Effective Date, the City, CRA and BLK 77 have entered into this Memorandum of Understanding with a view toward reciting and, in some cases, where deemed necessarys~ and appropriate, amending and restating both the remaining City/CRA Reserved Rights and the..BLK"77 remaining Continuing Obligations. RECITALS WHEREAS, BLK 77, CRA, City and AmSouth Bank, an Alabama state chartered bank, are parties to that certain Recognition Agreement dated May 25, 2006, as recorded in Official Records Book 20414, Page 0514, of the Public Records of Palm Beach County, Florida (the "Recognition Agreement"); WHEREAS, BLK 77 and CRA are parties to the following (i) that certain Declaration of Continuing Obligations and Reservation of Rights dated May 24, 2006, as recorded in Official Records Book 20414, Page 492, of the Public Records of Palm Beach County, Florida (the "Declaration"), (ii) that certain Memorandum of Agreement dated May 24, 2006, as recorded in Official Records Book 20414, Page 0504, of the Public Records of Palm Beach County, Florida (the "Bond Memorandum"), and (iii) CRA Warranty Deed, which sets ,,forth certain remunerated obligations of BLK 77; WHEREAS, BLK 77 and City are parties to the following (i) Temporary Exclusive Parking and Access Easement dated May 23, 2006, as recorded in Official Records Book 20414, Page 528, of the Public Records of Palm Beach County, Florida (the "Parking Easement"), and (ii) that certain Memorandum of Agreement dated May 26, 2006, as recorded in Official Records Book 20414, Page 0514, of the Public Records of Palm Beach County, Florida (the "Parking Facility Memorandum"); WHEREAS, for avoidance of doubt, the parties hereto agree that the following have occurred to the full, and complete satisfaction of the City, the CRA and BLK 77: (1) BLK 77 commenced construction of the Public Parking Facility within ninety (90} days of issuance of the building permit for the Public Parking Facility. (2) BLK 77 has continuously and diligently pursued the construction of the Public Parking Facility. Page 2 of 25 (3) The Public Parking Facility has been completed to the full and complete satisfaction of the City and the CRA (subject to the Punch List) and a Certificate of Occupancy has been issued by the City for the Public Parking Facility. (4) The items on the Punch List do not materially preclude or interefere with. the use of the Public Parking Facility by the City. (5) On the date hereof, BLK 77 has conveyed the Public Parking Facility to City. (6) William E. Morris, Jr. has delivered to the City that certain Guaranty Agreement in lieu of the Maintenance Bond, which Guaranty Agreement is in form and substance acceptable to City and CRA; (7) On the date hereof, BLK 77 has delivered a marked up title commitment to Ciry which commits the title company to issue a title policy to City for a portion of Lot 19 and Lots 20, 21 and 22, Block 69 as being conveyed to City (i) subject only to chose permitted exceptions acceptable by City (or as set forth on Exhibit G of that certain Recognition Agreement dated May 25, 2006 by and between BLK 77, City, CRA and AmSouth Bank), and (ii) containing a contiguity endorsement. (8) BLK 77 has complied with all duties and obligations that were to be fulfilled by BLK77 prior to the date hereof and there is no default, event of default or breach of any of the Relevant Documents and no facts or circumstances are known to BLK 77, City or the CRA that; with the passage of time or giving of notice, or both, will or could constitute a default, event of default or breach under the Relevant Documents as of the date of this Memorandum. WHEREAS, BLK 77, CRA and the City wish to affirm the fulfillment of the Convenyance Conditions and the remaining City/CRA Reserved Rights and remaining Continuing Obligations. NOW, THEREFORE, for and in consideration of the sum of TEN ($10.00) DOLLARS and other good and` valuable consideration, the receipt and sufficiency of which is hereby acknowledged, BLK 77, the CRA and the City do hereby agree as follows: 1. Incorporation of Recitals. The content of the "Background" and "Recitals" set forth above is hereby incorporated herein in full by this reference. NOTE:AII the documents by and between or among the City, CRA and BLK 77 which set forth any one (1) or more of the Continuing Obligations incuding without limitation, the CRA Deed, Recognition Agreement, Declaration, Bond Memorandum, Parking Easement and Parking Facility Memorandum are herein collectively referred to as the "Relevant Documents." NOTE: All defined terms herein not defined herein shall have the meanings ascribed thereto in the Relevant Documents. Page 3 of 25 2. Definitions. Unless otherwise expressly provided or the context otherwise requires, the following terms used in this Memorandum shall have the following meanings: (a) "Block 77" means the real property known as Block 77, map of the Town of Linton (now Delray Beach), Florida according to the plat thereof as recorded in Plat Book 1, Page 3 of the Public Records of Palm Beach County, Florida. (b) "Building Department" shall mean the City's Building Department. (c) "City" shall mean City of Delray Beach, Florida, a Florida municipal corporation. (d) "CRA" shall mean the Community Redevelopment Agency of the City of Delray Beach, Florida. (e) "Guaranty Agreement" shall mean that ceratin Guaranty Agreement dated dated of even date herewith, which is in form and substance acceptable to City and CRA and which is provided to City in lieu of the Maintenance Bond required by Section 6 of the Parking Facility Agreement, the form of which was approved by City and CRA and is attached as Exhibit G to the Recognition Agreement. City and CRA hereby accept the Guaranty Agreement as full and complete satisfaction of BLK 77's obligation to provide the Maintenance Bond and hereby waive any and all rights to require BLK 77 to provide the Maintenance Bond (f) "Public Parking Facility Deed" refers to the statutory warranty deed by BLK 77 dated of even date herewith conveying to City marketable fee simple title to (i) the Public Parking Facility; (ii) a portion of Lot 19, Block 69 (to wit: the North 3.5" inches thereof); and (iii) the unity of title to be recorded by BLK 77 pertaining to both the aforesaid portion of Lot 19 and Lots 20, 21 and 22, Block 69. Said deed and unity of title shall be delivered to City simultaneously with the execution of this Memorandum. (g) "Maintenance Bond" shall mean that certain bond by BLK 77 to City for the Punch List and for the maintenance of the Public Parking Facility for a period of one (1) year from the date of the Public Parking Facility Deed or, in lieu thereof, such alternative documentation that City shall have deemed acceptable. (h) "Performance Bond" shall mean the payment and performance bonds for the Project as defined in and required by the Bond Memorandum. (i) "Permit" shall refer to the building permit issued by the City for the Project. (j) "Punch List" shall refer to that list of items attached hereto as Exhibit C for which BLK 77 shall completed to the reasonable satisfaction of City within ninety (90) days of the Effective Date hereof. Page 4 of 25 (k) "Project" shall refer to the development of the Property owned in fee simple by BLK 77 located on Block 77, as said above-referenced parcels shall be improved by the construction of residential condominium units, retail condominium units, and a private parking garage known as "Worthing Place". (1) "Property" shall mean that real property as referenced on Exhibit A hereto and incorporated herein. (m) "Public Parking Facility" means the facility to house parking spaces and ancillary improvements which has been constructed by BLK 77 on, as well as the underlying portion of, a portion of Lot 19 and Lots 20, 21 and 22 of Block 69 according to the plat thereof recorded in Plat Book 2, Page 43 of the Public Records of Palm Beach County, Florida. 3. Continuing Obligations. The parties hereto agree and acknowledge that, as of the Effective Date, the following constitute the only remaining Continuing Obligations of BLK 77: (a} The delivery of the Perfomance Bond by BLK 77 and the acceptance of the Performance Bond by the City and the CRA. Upon acceptance of the Performance Bond by -the City and the CRA, Block 77 may commence hard construction on the Project and the CRA shall execute and deliver the Termination of the Bond Memorandum in substantially the form attached hereto as Exhibit B. (b) The submission by BLK 77 to the Building Department of an application for the issuance of the Permit for the construction of the Project on Block 77 on or before Monday, July 2, 2007. (c) The commencement by BLK 77 of the construction of the Project within one hundred eighty (180) days following the later of (a) the issuance of the Permit or (b) the Effective Date hereof. Pursuant to Section 6.C. of the Declaration, upon the satisfaction, fulfillment or waiver, as the case may be, of all of the three (3) Continuing Obligations as set forth in this Section 3, the CRA shall deliver to BLK 77 the Termination of Declaration of Continuing Obligations and Reservation of Rights in substantially the form attached hereto as Exhibit D. 4. Remaining City/CRA Reserved Rights. For avoidance of doubt, BLK 77, CRA, and City agree that, notwithstanding anything apparently to the contrary in any of the Relevant Documents, the following constitute the only remaining City/CRA Reserved Rights as of the Effective Date: (a) CRA's right of repurchase as set forth in Section 4.A. of the Declaration. Page 5 of 25 (b) CRA's right to approve the architectural design and site plan of the Project as set forth in Section 4.B. of the Declaration. Notwithstanding the foregoing, the CRA hereby approves the architectural design and site plan set forth in those certain preliminary Development Plans for Worthing Place as submitted to and reviewed by the City beginning in November of 2006, which are pending final and formal approval (the "Tentatively Approved Plans"), provided, however, the CRA reserves the right to approve any material modif cations or changes to the Tentatively Approved Plans. (c) CRA's right of first refusal to purchase the Project as set forth in Section 5. of the Declaration. 5. Terminated City/CRA Reserved Rights. The parties acknowledge and agree that, as of the Effective Date, the following rights of the City and/or the CRA are terminated and hereby rendered null, void and of no further force or effect: (a) any and all rights of repurchase, reconveyance or reverter held by the City, including but not limited to the City Additional Rights, over all or any portion of the Project. Simultaneously with this Memorandum, the City shall execute and deliver the Termination of the Parking Facility Memorandum in substantially the form attached hereto as Exhibit E; and (b) any and all parking easements held by City and/or the CRA, including but not limited to the Parking Easement, with respect to any portion of Block 77 or Lot 19 of Block 69 owned by BLK 77. Simultaneously with this Memorandum, the City shall execute and deliver the Termination of Easement in substantially the form attached hereto as Exhibit F. Notwithstanding the foregoing, BLK 77 and City acknowledge the existence of that certain Limited Parking License Agreement dated of even date herewith. 6. Release of BLK 77. City and CRA hereby release, remise and rekuite BLK 77 from any and all costs, expenses and obligations relating to or arising out of the Public Parking Facility excluding (i) any and all warranties of title and representations concerning marketability of title with respect to all conveyances of real property- made by BLK 77 to City; (ii) any agreement executed by BLK 77 which is required or contemplated by this Memorandum and which is intended to have prospective effect; (iii) items referred to on the Punch List; (iv) BLK 77's warranty obligations relating to the Public Parking Facility, (v) obligations relating to or arising out of the Indemnification and Hold Harmless Agreement by William E, Morris,. Jr. in favor of City dated May 30, 2007, and obligations relating to or arising out of the Sump Pump Installation ~4'arranty by Block 77 Development Group; L:(~:': in favor of City dated , 2007. 7. Payment of CRA Attorneys' Fees. BLK 77 shall pay the CRA's reasonable attorneys' fees owed to Goren, Cherof, Doody & Ezrol, P.A. as incurred solely due to the conveyance of the Public Parking Facility to the City, the negotiation and preparation of this Page 6 of 25 Memorandum, the First Amendment to the Declaration of Continuing Obligations and Reservation of Rights, and associated documents within thirty (30) days from receipt of an invoice from the CRA setting forth such attorneys' fees. 8. Payment of City Attorneys' Fees. BLK 77 shall pay the City's reasonable attorneys' fees up to five thousand dollars ($5,000.00) owed to Steven Rubin, Esq. as incurred solely due to the conveyance of the Public Parking Facility to the City, the negotiation and preparation of this Memorandum, the First Amendment to the Declaration of Continuing Obligations and Reservation of Rights, and associated documents within thirty (30) days from receipt of an invoice from the City setting forth such attorneys' fees. [SIGNATURES BEGIN ON FOLLOWING PAGE) Page 7 of 25 IN WITNESS WHEREOF the City, the CRA and BLK 77 have caused these presents to be executed by their respective duly authorized officers as of the day and year first written above. WITNESSES: DELRAY BEACH COMMUNITY Print Name: Print Name: Print Name: Print Name: REDEVELOPMENT AGENCY By: Name: Title: CITY OF DELRAY BEACH, FLORIDA a Florida municipal corporation By: Name: Title: BLOCK 77 DEVELOPMENT GROUP, LC, a Flori limited liabi ity c mpany By: . William E. Morris, Manager (NOTARY ACKNOWLEDGEMENTS ON FOLLOWING PAGEI Page 8 of 25 STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of , 2007 by on behalf of DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, [ ]who is personally known to me or [ ] who has produced a drivers license or as identification. Notary Public STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of , 2007 by on behalf of the CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation [ ]who is personally known to me or [ ] who has produced a drivers license or as identification. Notary Public STATE OF FLORIDA) COUNTY OF PALM BEACH) . The foregoing instrument was acknowledged before me this u ~ day of 2007, by William E. Morris as Manager of BLOCK 77 DEVEL MENT GROUP, LC, [~] who is personally known to me or [ ]who has produced a drivers license or as identification. 1 N~t~ry Public ` ~~,,// .~''" ""~, JOANNE GANNON MY COMNQSSION # DD4130I 1 °~ EXPIRES: April 02, 2009 1.8043-NOTARY FL Not>ay Dism~mt Aasx Co. Page 9 of 25 EXHIBIT A Legal Description All of Lots 7, 8, 9, 10, 13, 14, 15 and 16, the South 59.84 feet of Lots 4, 5 and 6 and the North 50.5 feet of Lot 11, Block 77, Map of the Town of Linton (now Delray Beach), according to the map or plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. Page 10 of 25 EXHIBIT A-1 CITY/CRA LANDS PARCEL S: All of Lot 14 and the North 65.2 feet of Lot 15, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. PARCEL U: The South 59.84 feet Lots 4, 5, and 6, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. PARCEL W: Lot 13 less the North 16.00 feet thereof, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. PARCEL Y: Lot 7 less the North 16.00 feet thereof, Block 77, TOWN OF LINTON (now Delray Beach), according to tl-~e Plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. Page 11 of 25 EXHIBIT B Form of Termination of Bond Memorandum This Instrument Prepared by and Return to: Bert R. Oliver, )squire Bert R. Oliver, P.A. 2060 N.W. Boca Raton Boulevard, Suite 6 Boca Raton, Florida 33431 SPACE ABOVE THIS LINE FOR PROCESSING DATA SPACE ABOVE THIS LINE FOR PROCESSING; llA1A TERMINATION OF MEMORANDUM OF AGREEMENT THIS TERMINATION OF MEMORANDUM OF AGREEMENT (this "Termination") dated this day of , 20 , is made by and between the CITY OF DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, whose address is 24 North Swinton Avenue, Delray Beach, Florida 33444 their successors and assigns (collectively "Seller"), and BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company whose address is 900 E. Atlantic Avenue, Suite 13, Delray Beach, Florida 33483, their successors and assigns ("Buyer"). WHEREAS, Seller and Buyer entered into that certain Memorandum of Agreement dated May 24, 2006, and recorded on June 1, 2006 in Official Records Book 20414, Page 504, of the Public Records of Palm Beach County, Florida (the "Memorandum") regarding the property legally described as follows: See Exhibit A attached hereto. Seller and Buyer hereby acknowledge that the Memorandum is terminated and rendered null and void and of no further force and effect as of the date hereof. [SIGNATURES BEGIN ON THE FOLLOWING PAGE] Page 12 of 25 IN WITNESS WHEREOF, the Seller and Buyer have executed this Termination as of the day and year first above written. WITNESSES: CITY OF DELRAY BEACH CO>•I4'IUNITY REDEVELOPMENT AGENCY Print Name: By: Print Name: Print Name: Print Name: STATE OF FLORIDA COUNTY OF PALM BEACH Name: Title: BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company By: Name: Title: The foregoing instrument was acknowledged before me this day of , 2007 by on behalf of DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, [ ]who is personally known to me or [ ] who has produced a drivers license or as identification. Notary Public STATE OF FLORIDA) COUNTY OF PALM BEACH) The foregoing instrument was acknowledged before me this day of 2007, by William E. Morris as Manager of BLOCK 77 DEVELOPMENT GROUP, LC, [ ]who is personally known to me or [ ]who has produced a drivers license or as identification. Notary Public Page 13 of 25 Exhibit A to Termination Legal Description Parcel s Part A All of Lot 14 and the North 65.2 feet of Lot 15, Block 77, Map of the Town of Linton, Florida (now Delray Beach), according to the map or plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. Folio Number 12 43 46 16 O1 077 0140 Part B That part of the East 8 feet of that certain 16 foot wide alley lying West of and adjacent to Lot 14 and the North 65.2 feet of Lot 15, Block 77, Map of the Town of Linton, Florida (now Delray Beach), as recorded in Plat Book 1, Page 3, bounded as follows: on the North by the Westerly extension of the North line of said Lot 14; on the West by the centerline of the 16 foot alley lying west of and adjacent to said subject property; on the South by the Westerly extension of the South line of the North 65.2 feet of said Lot 15; on the East by the West lines of said Lot 14 and the North 65.2 feet of said Lot 15. Parcel 6 Part A The South 59.84 feet of Lots 4, 5 and 6, Block 77 and all of Lots 7 and 13, Block 77, Map of the Town of Linton (now Delray Beach), according to the map or plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. Folio Number 12 43 46 16 O1 077 0400 Part B That part of the 16 foot alley lying South of and adjacent to Lots 4, 5 and 6, Block 77, Map of the Town of Linton (now Delray Beach), as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida, bounded as follows: on the North by the South line of said Lots 4, 5 and 6, Block 77; on the West by the Southerly extension of the West line of said Lot 4, Block 77; on the South by the North line of Lot 13, Block 77 and its Westerly extension, Map of the Town of Linton (now Delray Beach), as recorded in Plat Book 1, Page 3 and on the East by the Southerly extension of said Lot 6, Block 77. Part C That part of the 16 foot alley lying West of and adjacent to Lot 13, Block 77, Map of the Town of Linton (now Delray Beach), as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida, bounded as follows: on the East by the West line of said Lot 13, Block 77; on the North by the Westerly extension of the North line of said Lot 13, Block 77, on the South by the Westerly extension of the South line of said Lot 13, Block 77, and on the West by the East line of Page 14 of 25 Lot 7, Block 77, Map of the Town of Linton (now Delray Beach), as recorded in Plat $ook 1, Page 3, Public Records of Palm Beach County, Florida. Page 15 of 25 EXHIBIT C Punch List Page 16 of 25 EXHIBIT D Form of Termination of Declaration This Instrument Prepared by and Return to: Bert R. Oliver, Esquire Bert R. Oliver, P.A. 2060 N.W. Boca Raton Boulevard, Suite 6 Boca Raton, Florida 33431 SPACE ABOVE THIS LFNE POR PROCESSING DATA SPACE ABOVE THIS LINE FOR PROCESSING DATA TERMINATION OF DECLARATION OF CONTINUING OBLIGATIONS AND RESERVATION OF RIGHTS THIS TERMINATION OF DECLARATION OF CONTINUING OBLIGATIONS AND RESERVATION OF RIGHTS (this "Termination") dated this day of , 2007, is made by and between the CITY OF DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, whose address is 24 North Swinton Avenue, Delray Beach, Florida 33444 their successors and assigns (collectively "Seller"), and BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company whose address is 900 E. Atlantic Avenue, Suite 13, Delray Beach, Florida 334$3, their successors and assigns ("Buyer"). WHEREAS, Seller and Buyer entered into that certain Declaration of Continuing Obligations and Reservation of Rights dated May 24, 2006, and recorded on June 1, 2006 in Official Records Book 20414, Page 492, of the Public Records of Palm Beach County, Florida (the "Declaration") regarding the property legally described as follows: See Exhibit A attached hereto. Seller and Buyer hereby acknowledge that the Declaration is terminated and rendered null and void and of no further force and effect as of the date hereof. [SIGNATURES BEGIN ON THE FOLLOWING PAGE] Page 17 of 25 IN WITNESS WHEREOF, the Seller and Buyer have executed this Termination as of the day and year f.rst above written. WITNESSES° CITY OF DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY Print Name: By: Name: Title: Print Name: Print Name: Print Name: STATE OF FLORIDA COUNTY OF PALM BEACH BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company By: Name: Title: The foregoing instrument was acknowledged before me this day of , 2007 by on behalf of DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY, [ ]who is personally known to me or [ ] who has produced a drivers license or as identification. Notary Public STATE OF FL-ORIDA) COUNTY OF PALM BEACH) The foregoing instrument was acknowledged before me this day of 2007, by William E. Morris as Manager of BLOCK 77 DEVELOPMENT GROUP, LC, [ ]who is personally known to me or [ ]who has produced a drivers license or as identification. Notary Public Page 18 of 25 Exhibit A to Termination of Declaration Legal Description All of Lot 14 and the North 65.2 feet of Lot 1 S, Block 77, TOWN OF LINTON, FLORIDA (now Delray Beach) (now Delray Beach), according to the map or plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. (Parcel S) The South 59.84 feet of Lots 4, S and 6, Block 77, TOWN OF LINTON (now Delray Beach), according to the map or plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. (Parcel U) Lot 13 Block 7", TOWN OF LINTON (now Delray Beach), according to the map or plat thereof as recorded in Plat Book'1, Page 3, Public Records of Palm Beach County, Florida. (Parcel W) Lot 7 Block 77, TOWN OF LINTON (now Delray Beach), according to the map or plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. (Parcel Y) Page 19 of 25 EXHIBIT E Form of Termination of Parking Facility Memorandum This Instrument Prepared by and Return to: Bert R. Oliver, ]:squire Bert R. Oliver,l'.A., 206() N.W. Boca Raton Boulevard, Suite 6 Boca Raton, Florida 33431 SPACE ABOVE THIS LINE FOR PROCESSING DATA SPACE ABOVE THIS LINE FOR YKUC~:~~1wu liwin TERMINATION OF MEMORANDUM OF AGREEMENT THIS TERMINATION OF MEMORANDUM OF AGREEMENT (this "Termination") dated this day of , 2007, is made by and between the CITY OF DELRAY BEACH, FLORIDA, a Florida municipal corporation, whose address is 100 N.W. 1St Avenue, Delray Beach, Florida 33444, their successors and assigns (collectively "City"), and BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company whose address is 900 E. Atlantic Aven~ze, Suite 13, Delray Beach, Florida 33483, their successors and assigns ("Buyer") and the. WHEREAS, City and Buyer entered into that certain Memorandum of Agreement dated May 26, 2006, and recorded on June 1, 2006 in Official Records Book 20414, Page 0514, of the Public Records of Palm Beach County, Florida (the "Memorandum") regarding the property legally described as follows: See Exhibit A attached hereto. City and Buyer hereby acknowledge that the Memorandum is terminated and rendered null and void and of no further force and effect as of the date hereof. [SIGNATURES BEGIN ON THE FOLLOWING PAGE] Page 20 of 25 IN WITI~~ESS WHEREOF, the City and Buyer have executed this Termination as of the day and year first above written. WITNESSES: Print Name: Print Name: STATE OF FLORIDA) COUNTY OF PALM BEACH) CITY OF DELRAY BEACH, FLORIDA a Florida municipal corporation By: Name: Title: BLOCK 77 DEVELOPMENT GROUP, L.C., a Flori limited liability company B ~~ Y~ Name: ~ L~ oeel Title: I'10,. na ~ ~e r The foregoing instrument was acknowledged before me this o~0 _ day of _, 2007, by William E. Morris as Manager of BLOCK 77 DEVELOP: ENT GROUP, LC, [ ~vho is personally known to me or [ ]who has produced a drivers license or as identification. D ~.f~ Not ublic ~'""°"~. JOANNE GANNON MY COMMISSION # DD413011 STATE OF FLORIDA ~~ ~ ~I~: A~;1 O2, ~, COUNTY OF PALM BEACH ~~~3-NOT~Y ~.Na~~~~~.~• The foregoing instrument was acknowledged before me this day of , 2007 by on behalf of the CITY OF DELit_~Y BEACH, FLORIDA, a Florida municipal corporation [ who has produced a drivers license or ] who is personally known to me or [ as identification. Notary Public Page 21 of 25 Ex_hibi± A to Termination Legal~l~escription PARCEL S: All of Lot 14 and the North 55.2 feet of Lot 3.5, block 77, TOWN OF LINTON (now B~elray Beachl, according to the Plat thereof as recE~rded in Plat Bcsok 1, Page ~, Public Records of Palm Beach Count~~. Florida. PARCEI, U: I'h.e ~o~u.th .7~.~34 feet Lots 4, 5, and 6, Block "; ;%; TOWN OF LINTON (:now Delray Beachj, acc:>r•dinc; tc~ tre. Plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palr9-~ Beach County.:~'Icl: •da. Lot 1:I Block. 77, TOV+,'N CF LI]'~TUN know Delray Beachl, accr~rding to tl;e Plat thereof as recorded in Pl;~t Book 1, Page 3, Public Records of Palm Beach County, Florida. F:~.RCEL ~': Lot °l 131ectc `•'?, ,fifJWN OF LINTOIV know Delray Beachj, according to the Ylat thereof as recorded in Pl=~t Bc~ol~ 1, Page ~, Public Records of Palm Beach County, Florida: Page 22 ar 2 EXHIBIT F Form ~~f Termination of Temporary Exclusive Parking and Access Easement This Instrument Prepared by and Return to: Bert R. Oliver, Esquire Bert R. Oliver, P.A. 2060 N.W. Boca Raton Boulevard, Suite 6 Boca Raton, Florida 33431 SPACE ABOVE THIS LINE F'OR PROCESSING DATA SPACE ABOVE THIS LINE FOR PROCESSING DATA TERMINATION OF T>e:':VIPOR_ARY~ EXCLUSIVE PARKING AND ACCESS EASEMENT THIS 1'E.RIVIINATION OF TEMPGRARY EXCLUSIVE PARKING AND ACCESS EASEMENT ~_this "Termination") dated this __ day of _, 2007, is made by and between the CITY OF DELRAY BEACH, FLORIDA whose address i5 100 N.W: lst Avenue, Delray Beach, Florida 33444, Delray Beach, Florida 33444 their successors and assigns (collectively "City"), and BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company whose address is 900 E. Atlantic Avenue, Suite 13, Delray Beach, Florida 33483, their successors and assigns ("Buyer"). WHEREAS, City and Buyer entered into that certain Temporary- Exclusive Parking and Access Easement dated May 23, 2006, and recorded on June 1, 2006 in Official Records Book 20414, Page 528, of the Public Records of Palm Beach County, Florida (the "Easement") regarding the property legally described as follows: See Exhibit A attached hereto. City a:d Buyer hereby acknowledge that the Easement is terminated and rendered:.null and void and of ro further force and effect as of the date hereof. [SIGNATURES BEGIN ON THE FOLLOWING PAGE] Page 23 of 25 IN WITNESS WHEREOF, the City and Buyer have executed this Termination as of the day and year first above written. . WITNESSES: Print Name: CITY OF' DELRAY BEACH, FLORIDA a Florida municipal corporation By: Name: Title: Print Name: BLOCK 77 DEVELOPMENT GROUP, L.C.; a Florid limited liability company By: Name: ti~i R,m e+G~ Title: ~~1.~-~ l.~ ~bn/ foregoing instrument was acknowledged before me this ~d _ day of 2007, by William E. Morris as Manager of BLOCK 77 DEVELOPMI/N GROUP, LC, [~ who is personally known to me or [ ]who has produced a drivers license or as identification. Nota ublic ~~-~, JOANNE GANNON MY COA~4ri1SS10N # DD4130I1 STATE OF FLORIDA "+.F~R~' i~nzrs:A~no2,zoo9 I~AW~3-NOTARY Fl. Notary Discount Araae Co. COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of ___ , 2007 by on behalf of the CITY OF DELRAY. BEACH, FLORIDA, a Florida municipal corporation [ ]who is personally known to me or [ ] who has produced a drivers license or as identification. Notary Public Page 24 of 25 STATE OF FLORIDA) COUNTY OF PALM BEACH) Exhibit A to Termination of Easement Legal Description The South 59.84 feet Lots 4, 5, and 6, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3, .Public .Records of Palm Beach County, Florida. (alk/a Parcel U) Lot 7 Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. (a/k/a Parcels X andY) Lot 13 Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida. (a/k/a ParcelV'& W) That part of the 16 foot alley lying South of and adjacent to Lots 4, 5 and 6, Block 77, Map of the Town of Linton (now Delray Beach), as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida, bounded as follows: on the North by the South line of said Lots 4, 5 and 6, Block 77; on the West by the Southerly extension of the West line of said Lot 4, Block 77; on the South by the North line of Lot 13, Block 77 and its Westerly extension, Map of the Town of Linton (now Delray Beach), as recorded in Plat Book 1, Page 3 and on the East by the Southerly extension of said Lot 6, Block 77. AND That part of the 16 foot alley lying east of and adjacent to Lots 7, 8, 9, 10, and North 50.5 feet of Lot 11, Block 77, Map of the Town of Linton (now Delray Beach), as recorded in Plat Book 1, Page 3, Public Records of Palm Beach County, Florida, bounded as follows: on the West by the East line of said Lots 7, 8, 9, 10, and North 50.5 feet of Lot 11, Block 77; on the South by the Easterly extension of the South line of the North 50.5 feet of said Lot 11, Block 77; on the East by the West line of Lots 13, 14, 15, 16 and the North 50.5 feet of Lot 17, Block 77; and on the North by the Westerly extension of the North line of said Lot 13. Page 25 of 25 (o. THIRD AMENDMENT TO PARKING SPACE LEASE This THIRD AMENDMENT TO PARKING SPACE LEASE ("Third Amendment") is made and entered into to be effective as of the day of , 2007, by and between by and between BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company ("Block 77") and OXFORD BUSINESS CORPORATION, a Florida corporation (successor in interest to Sun Atlantic Properties, L.L.C.("Sun")) ("Oxford"). RECITALS WHEREAS, Block 77, as landlord, and Sun, as tenant, entered into that certain Parking Space Lease dated March 30, 2003, as amended by that certain Amendment to Parking Space Lease dated March 5, 2005, and a Second Amendment to Parking Space Lease dated 2007 (collectively the "Parking Space Lease"); WHEREAS, Oxford assumed the obligations of Sun under the Parking Space Lease pursuant to that certain Assignment and Assumption of Exchange Agreement and Related Documents dated September 14, 2005; and WHEREAS, Block 77 and Sun have agreed to amend the terms and conditions of the Parking Space Lease upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Block 77 and Oxford agree as follows: Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Description of Parking Spaces. The words, "Sixty (60) full-time and forty (40) part-time vehicular parking spaces", are replaced by the words, "Fifty-five (55) full-time and forty (40) part-time vehicular parking spaces", as set forth in the second umiumbered introductory paragraph of the Parking Space Lease under the "Description of Parking Spaces". 3. Section 4. Tenant Payments. The words, "computed by multiplying by one hundred (100), the fraction the numerator of which shall be eighty (80) (i.e. sixty (60) full-time and one-half (i.e. 20) of the forty (40} Part-Time parking spaces", are replaced by the words, "computed by multiplying by one hundred (100) a fraction, the numerator of which shall be the sum of Full-Time parking spaces. PLUS one-half of the Part-Time parking spaces (i.e. if there are 55 Full-Tune spaces and 40 Part-Time spaces, the numerator shall be 75)", as set forth in the second paragraph of Section 4 of the Parking Space Lease. 4. Section 5. Parking Spaces. The words, "one hundred (100) Parking Spaces" are replaced by the words "Parking Spaces", as set forth in Section 5. 5. Reference to One Hundred (100) Cars. The words, "hundred (100) cars" are replaced by the words "ninety-five (95) cars", as set forth in Section 19.B. Third Amendment to Parking Space Lease v.1.3 dtd OS 29 07 CL.doc s' 6. Section 19.E. Specification of Parking Spaces. a. The words, "(a) sixty (60) "Full-Time" Parking Spaces of the one hundred (100) Parking Spaces" are replaced by the words "(a) fifty-five (55) "Full- Time" Parking Spaces of the ninety-five (95) Parking Spaces" as set forth in Section 19.E. b. The words, "(b) forty (40) "Part-Time" Parking Spaces of the one hundred (100) Parking spaces" are replaced by the words "(b) forty (40) "Part-Time" Parking Spaces of the ninety-five (95) Parking Spaces" as set forth in Section 19.E.. 7. Exhibit A -Legal Description of Parking Garage Parcel attached to the Parking Space Lease is deleted in its entirety and replaced by the "Replacement Exhibit A - Legal Description of Parking Garage Parcel" attached hereto. 8. Exhibit A-1- Parking Plan attached to the Parking Space Lease is deleted in its entirety and replaced by the "Replacement Exhibit A-1 -Parking Plan as of January 15, 2007" attached hereto. 9. Exhibit D -Memorandum of Lease attached to the Parking Space Lease is deleted in its entirety and replaced by the "Replacement Exhibit D -Memorandum of Lease" attached hereto. 10. Definitions. Capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Parking Space Lease. 11. Successors. This Assignment shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. 12. Ratification of Agreement. Except as specifically modified hereby, all other terms, conditions and provisions of the Agreement are hereby ratified by the parties. In the event of any inconsistent or conflicting provisions between this Third Amendment and the Parking Space Lease, this Third Amendment shall in all cases control. 13. Counterparts. To facilitate execution, this Third Amendment may be executed in as many counterparts as may be convenient or required. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Third Amendment to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, and the respective acknowledgments of, each of the parties hereto. Any signature or acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures or acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature or acknowledgment pages. Page 2 of 6 IN WITNESS WHEREOF, the Block 77 and Oxford have duly executed this Third Amendment, pursuant to due authority, effective as of the day and year first above written. WITNESSES: Print Name: Print Name: Print Name: Print Name: OXFORD BUSINESS CORPORATION, a Florida corporation By: _ Name: Title: BLOCK 77 DEVELOPMENT GROUP, L.C., a Florida limited liability company By: Name: Title: Page 3 of 6 REPLACEMENT EXHIBIT A Leal Description of Parking Garage Parcel Parcel One All of the plat of WORTHING PLACE BLOCK 69, according to the map or plat thereof as recorded in Plat Book 105, page 137, Public Records of Palen Beach County, Florida; Fornierly described as: Lots 20, 21 and 22, Block 69, Subdivision of Block 69, Delray, Florida according to the map or plat thereof as recorded in Plat Book 2, Page 43, Public Records of Palm Beach County, Florida; and Parcel Two A portion of Lot 19 of the Subdivision of Block 69, Delray Beach, Florida, according to the Plat thereof, as recorded in Plat Book 3, Page 45 of the Public Records of Palm Beach County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Lot 19, also being the Southwest corner of Worthing Place Block 69, as recorded in Plat Book 105, Page 137; Thence S 89°06'29" E along the North line of said Lot 19, a distance of 2.00 feet to the Point of Beginning; Thence continue S 89°06'29" along said North line, a distance of 124 feet to a point of intersection with the West line of the right-of--way for S.E. 1S` Avenue as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 5.00 feet West of and parallel with the East line of said Lot 19; Thence S 00°00'00" W along said parallel line, a distance of 0.33 feet to a point of intersection with a line 0.33 feet South of and parallel with the North line of said Lot 19; Thence N 89°06'29" W along said parallel line, a distance of 124.00 feet to a point of intersection with the East line of the right-of--way fora 16.00 foot wide Alley as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 2.00 feet East of and parallel with the West line of said Lot 19; Thence N 00°00'00" W along said parallel line a distance of 0.33 feet to the point of begimiing. Page 4 of 6 REPLACEMENT EXHIBIT A-1 Parking Plan as of January 15, 2007 Page 5 of 6 REPLACEMENT EXHIBIT D Memorandum of Lease Page 6 of 6 T ~ r---i F) n n n n n I T I I I I I ... I ... I r. I ..n i i i i i i i i d- T t I I I I I I I I I t I I I I I I I I i ® i i i i ® I I i ~ , I i i i I i I I y I I I I i i ~_ ____- _ _ - _ _ -_- _ _ - _ - __ --1 ~"~ ~ Y . .. , I I ~ ~ } 4 ~ I I I ~. 4 _ _.____ ___. - _-_- -____.____ . _ .. . _ ®~ ~t .-_ _~ 4 I i . I I I I P w i i i i i i i : i i i ® I I I I ® I I I i I i I i i I I I I I I I ' -{ ~ r- i .. .. i i I I I i °'° C C C C V V CV U U 0 ~ ~ ~ Q ~ ~ w F ~ a o g ®® .:l VLL11 Q ,Q,rt V ~ Q 111 • • Q ~ ~ U W ? ? ~ OF ~ > ~ z oaa Y~~ i ~ ~ w m ~ U ~~ m ~ N ~ c ~av WI C ~ •~ c. ^ U 1... 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Oliver, Esquire Bert R. Oliver, P.A. 2060 N.W. Boca Raton Blvd. Suite 6 Boca Raton, FL 33431 MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE ("Memorandum") is dated as of this day of 2007 by and between Block 77 Development Group, L.C. whose address is 900 E. Atlantic Avenue, Suite 13, Delray Beach, FL 33483 ("Landlord") and Oxford Business Corporation, successor in interest to Sun Atlantic Properties, L.L.C., whose address is 354 Sevilla Avenue, Coral Gables, FL 33134 ("Tenant"). RECITALS: WHEREAS, on March 30, 2003, Landlord and Tenant entered into that certain Parking Space Lease dated March 30, 2003, as amended by an Amendment to Parking Space Lease dated March 7, 2005, a Second Amendment to Parking Space Lease dated _, 2007, and a Third Amendment to Parking Space Lease dated _, 2007 (the lease and amendments thereto are collectively referred to herein as the "Lease", as to fifty-five full-time and forty part-time parking spaces (the "Parking Spaces") with respect to a public parking facility constructed by Landlord on that parcel of real property located in Delray Beach, Palm Beach County, Florida, and described on Exhibit A attached hereto (the "Public Parking Facility"); and WHEREAS, Landlord, upon conveying fee simple title of the Public Parking Facility to the City of Delray Beach, Florida, a Florida municipal corporation, whose address is 100 N.W. lst Avenue, Delray Beach, Florida 33444 (the "City"), shall also execute simultaneously therewith an Assignment and Assumption of Parking Space Lease whereby Landlord shall assign all its right title and interest and the City shall assume all of Landlord's right title and interest in and to said Lease; and WHEREAS, Landlord and Tenant hereby execute this Memorandum for purposes of giving constructive notice of the Tenant's leasehold interest in the Parking Spaces created pursuant to the Lease and of the rights created thereby, all of which are hereby confirmed. ACCORDINGLY, the parties hereby give notice of the existence of the Lease as follows: Effective Date. The effective date of the Lease is March 30, 2003. Memorandum of Lease revised 5-29.doc 0 2. Commencement Date. The commencement date shall be the date Landlord conveys the Parking Garage to the City as evidenced by the recording of a deed from Landlord to the City in the Public Records for Palm Beach County, Florida (the "Commencement Date"). 3. Term of Lease. The term of the Lease is ninety-nine (99) years from the Commencement Date. 4. Option to Extend. There are no options to extend the Lease. 5. Liens. In accordance with Section 713.10, Florida Statutes, the interest of the Landlord in the Parking Spaces (as defined in the lease) shall not be subject to liens for improvements to the Parking Spaces made by the Tenant. The specific language contained in the Lease prohibiting such liability is as follows: "Pursuant to Section 713.10, Florida Statutes, Tenant shall not permit any mechanio's or materialman's lien to be foreclosed against the Parking Spaces by reason of work, labor, services or materials perfornied by or furnished to Tenant or anyone holding any part of the Parking Spaces under Tenant. Such prohibition shall be properly set forth in the Memorandum of Lease recorded in connection with the terms hereof. If any such lien shall at any time be filed, Tenant may contest the same in good faith but Tenant shall, within fifteen (15) days, after notice of the filing thereof, cause such lien to be released of record by payment, bond, order of a court of competent jurisdiction or otherwise. Nothing contained in this Lease shall be construed as a consent on the part of Landlord to subject Landlord's estate in the Parking Spaces to any lien or liability under the lien laws of the State of Florida. With respect to any construction work undertaken by Tenant, Tenant shall furnish Landlord with lien waivers from each contractor or material supplier following Tenant's completion of such construction." 6. Terms and Conditions. The Parking Spaces are subject to all of the other terms and conditions of the Lease, including, without limitation, provisions related to rental, subletting and assigning, fixtures, maintenance and repair, provisions related to insurance and damage, alterations, Tenant signs, condemnation and all other matters and things contained in the Lease. 7. Counterparts. This Memorandum may be executed in counterparts, each of which will be deemed an original document, but all of which will constitute a single document. This document will not be binding on or constitute evidence of a contract between the parties until such time as a counterpart of this documents has been executed by each party and a copy thereof delivered to each other party to this Memorandum. SIGNATURES ON FOLLOWING PAGES 2 IN WITNESS WHEREOF, the parties hereto have duly executed this Memorandum as and of the day and year first above written. STATE OF FLORIDA ) ss: COUNTY OF PALM BEACH ) Landlord: Block 77 Development Group, L.C., a Florida limited liability company William Morris, Manager By: Tenant: Oxford Business Corporation By: _ Name: Title: The foregoing document was acknowledged before me this day of , 2007, by William Morris, Manager of Block 77 Development, L.C., a Florida limited liability company. He is personally known to me or has produced as identification. Notary Public Seal My commission expires: STATE OF FLORIDA ) ss: COUNTY OF ) The foregoing document was acknowledged before me this day of , 2007, by of Oxford Business Corporation, a Florida corporation. He is personally known to me or has produced as identification. Notary Public Seal My commission expires: 3 LEGAL DESCRIPTION PUBLIC PARKING FACILITY Exhibit "A" Parcel One All of the plat of WORTHING PLACE BLOCK 69; according to the map or plat thereof as recorded in Plat Book 105, page 137, Public Records of Palm Beach County, Florida; Formerly described as: Lots 20, 21 and 22, Block 69, Subdivision of Block 69, Delray, Florida according to the map or plat thereof as recorded in Plat Book 2, Page 43, Public Records of Palm Beach County, Florida; and Parcel Two A portion of Lot 19 of the Subdivision of Block 69, Delray Beach, Florida, according to the Plat thereof, as recorded in Plat Book 3, Page 45 of the Public Records of Palm Beach County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Lot 19, also being the Southwest corner of Worthing Place Block 69, as recorded in Plat Book 105, Page 137; Thence S 89°06'29" E along the North line of said Lot 19, a distance of 2.00 feet to the Point of Beginning; Thence contimie S 89°06'29" along said North line, a distance of 124 feet to a point of intersection with the West line of the right-of--way for S.E. 15t Avenue as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 5.00 feet West of and parallel with the East line of said Lot 19; Thence S 00°00'00" W along said parallel line, a distance of 0.33 feet to a point of intersection with a line 0.33 feet South of and parallel with the North line of said Lot 19; Thence N 89°06'29" W along said parallel line, a distance of 124.00 feet to a point of intersection with the East line of the right-of--way fora 16.00 foot wide Alley as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 2.00 feet East of and parallel with the West line of said Lot 19; Thence N 00°00'00" W along said parallel line a distance of 0.33 feet to the point of beginning. 4 8. SECOND AMENDMENT TO TEMPORARY EXCLUSIVE PARKING AND ACCESS EASEMENT This SECOND AMENDMENT TO TEMPORARY EXCLUSIVE PARKING AND ACCESS EASEMENT (this "Second Amendment") is made and entered into as of May ~ 2007, by and between BLOCK 77 DEVELOPMENT GROUP, LC, a Florida limited liability company ("B77") and and the CITY OF DFL1tAY BEACH, FLOKIDA, a Florida municipal corporation. ("City"). RECITALS: WHEREAS, B77 and City entered into that certain Temporary Exclusive Parking and Access Easement dated May 23, 2006 and recorded in Official Records Book 20412, Page 0528 of the Public Records of Palm Beach County, Florida, as amended by that certain First Amendment to Temporary Exclusive Parking and Access Easement dated March 6, 2007 (collectively the "Parking Easement"); and WHEREAS, the parties have agreed to modify and amend certain of the terms and conditions of the Parking Easement as set forth herein. NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable considerations, the receipt of which is hereby acknowledged by each party from the other, the parties hereto agree as follows: A. Recitals. The foregoing recitals aze true and correct and are incorporated herein by reference. B. Cauitalized Terms. Capitalized terms not defined herein shall have the meanings ascribed to them in the Pazking Easement. C. Temporary Release of Easement Lands (a/k/a City Lands). The parties hereby agree that a portion of the Easement Lands (a/k/a City Lands} shall be temporarily released from the Parking Easement. Said portion is legally described on Exhibit B and, for reference purposes, cross-hatched as the "Block 77 Reserved Area" on Exhibit C attached hereto and incorporated herein. D. Term of Temporary Release. The temporary release of Easement Lands shall terminate upon the earlier of (i) Friday1 June 29, 2007, or (ii) upon termination of the Parking Easement, and notwithstanding anything to the contrary in the Second Amendment to the Pazking Easement, the temporary release of Easement Lands did not occur on May 4, 2007 or on any date thereafter. E. Conflict. In the event of any conflict between the provisions of the Parking Easement, and the provisions of this Second Amendment, the provisions of this Second Amendment shall control. F. No Further Modifications/Ratification. Except, and to the extent, specifically modified and amended hereby, all of the terms and conditions of the Parking Easement are and SecondAmendmentParkingEasementTrailerl-Revizsed 5-30-07.doc shall remain in full force and effect and are hereby reinstated, ratified and confirmed by the parties hereto. G. Counterparts. To facilitate execution, this Second Amendment may be executed in as many counterparts as may be convenient or required. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Second Amendment to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, and the respective acknowledgments of, each of the parties hereto. Any signature or acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures or acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature or acknowledgment pages. Facsimile copies of this Second Amendment and the signatures thereon shall have the same force and effect as if the same were original. [SIGNATURES BEGIN ON THE FOLLOWING PAGE] 2 of 5 IN WITNESS WHEREOF, the parties have duly executed this Second Amendment as of the date first written above. BLOCK 77 DEVELOPMENT GROUP, LC, a Florida limited liability company ~G~ By: WILLIAM E. 1 f 0£14QQ # NOISSIWY90~ IJ^I Nol~o nor CITY OF DELRAY BEACH, FLORIDA a Florida municipal corporation Print Name: Print Name: STATE OF FLORIDA COUNTY OF PALM BEACH By: Name: Title: The foregoing instrument was acknowledged before me this ~_ day of ~, 2007, by WILLIAM E. MORRIS, JR. the Manager of Block 77 Development Group, L.C., Florida limited liability company [ `]who is personally known to me or ]who produced a drivers license or 11 as identif ion. Not ublic STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of , 2007 by FLORIDA, a Florida municipal corporation [ produced a drivers license or Notary Public on behalf of the CITY OF DELRAY BEACH, ] who is personally known to me or [ ]who has as identification. 3 of 5 Ezhibit B Legal Description The north 20 feet of Parcel U. Parcel U is legally described as follows: The south 59.84 feet of Lots 4, 5, and 6, Block 77, TOWN OF LINTON (now Delray Beach), according to the Plat thereof as recorded in Plat Book 1, Page 3 (sheet 2) of the Public Records of Palm Beach County, Florida. 4of5 Exhibit C Survey [See Attached Survey] 5 of 5 if :~ ~; ~, ~a ~~ k. ~- Exhibit C ~t ~~.~-~' rcr~~-sr l:~l r-?r arc ~e ~,~t a;: .,.._.w. ,~ ~.c ..~ 4 ~' 5 J; ~~. ~c{. R ~_~' et r~ w .• i I ~ ~ ~~~~ .. r. ~ ATLAM77 ~Y=c$k+~t 'L ' ~: R7~ ~ti~ t ~ ~ tom` ~ F^{~ (~ ~ 4. 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GUARANTY AGREEMENT This Guaranty Agreement (this "Guaranty") is made as of the ~' ~ day of , 2007 ("Effective Date"), by William E. Morris, Jr., an adult resident of the State of Florida ("Guarantor"), in favor of the City of Delray Beach, a Florida Municipal corporation ("City"). PRELIMINARY STATEMENTS WHEREAS, Block 77 Development Group, L.C. ("BLK77") and City are parties to that certain Public. Parking Facility Construction and Conveyance and Worthing Park Contribution Agreement dated November 10, 1999 (the "Parking Facility Agreement"); WHEREAS, pursuant to the terms of the Parking Facility Agreement, BLK77 has constructed and has, on the Effective Date, conveyed to City a public parking facility on Lots 20, 21 and 22 of Block 69 as well as a portion of Lot 19, Block 69 (to wit: the North 3.5" i:~ches thereof) (the "Parking Facility"); WHEREAS, pursuant to Section 6 of the Parking Facility Agreement, BLK77 is required, in connection with the Parking Facility conveyance, to deliver to City a maintenance bond in form and substance acceptable to City (the "Maintenance Bond"); WHEREAS, BLK77, City, the Delray Beach Community Redevelopment Agency and AmSouth Bank, an Alabama state chartered bank, are parties to that certain Recognition Agreement dated May 25, 2006, as recorded in Official Records Book 20414, Page 0514, of the Public Records of Palm Beach County, Florida (the "Recognition Agreement"); WHEREAS, City and CRA approved the form of Maintenance Bond attached as Exhibit G to the Recognition Agreement; WHEREAS, BLK77 and Guarantor have proposed to the City that, in -lieu of the Maintenance Bond, Guarantor personally guarantee the obligations of BLK77 under the Parking Facility Agreement; WHEREAS, City has agreed to accept such proposal subject to and upon certain terms and conditions as set forth herein; and WHEREAS, for purposes of clarification, by acceptance hereof, the City agrees and acknowledges that this Guaranty shall satisfy any obligations of BLK77 to provide to City any form of bond for, the Parking Facility under the Parking Facility Agreement; and WHEREAS,. BLK 77 installed the Sump Pump (as defined below) prior to the City's inspection of same and, in lieu of such inspection, City has agreed to accept the guaranty set forth herein as to the proper installation of said Sump Pump. . NOW, THEREFORE, for good and valuable consideration, the receipt and;;sufficiency of which are hereby acknowledged, Guarantor hereby guarantees to City and its successors, and/or Guaranty to City MORRIS v. 1.6 5.30.07 Final.doc 4 assigns, the prompt and full payment and performance of the Guaranteed Obligations (as defined below), this Guaranty being made upon the following terms and conditions: STATEMENT OF AGREEMENTS Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Definitions. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Parking Facility Agreement and/or Recognition Agreement. 3. Termination of Prior Guaranty. Acceptance of this Guaranty by City shall not work a termination, release, or novation of that certain Guaranty Agreement dated May 26, 2006, by William E. Morris, Jr. in favor of City as of the Effective Date, or a release of any claim or liability that arose prior to the Effective Date, except to the extent that BLK77 has been or is released by the City from any of the Guaranteed Documents Obligations as set forth in any other written agreement between BLK77 and the City 4. De' Novo Guaranty of Payment and Performance. Guarantor hereby, as of and after the Effective Date, unconditionally and irrevocably guarantees to City and its respective successors, and assigns that BLK77 shall: (a) for a period of one (1) year from the issuance by the City of a Certificate of Occupancy for the Parking Facility, timely complete and correct all "punch-list" items and timely and faithfully fulfill all warranties and guaranties with respect to the Parking Facili~~ all as set forth in the Parking Facility Agreement and the approved form of the Maintenance Bond which is attached to the Recognition Agreement as Exhibit "G" (the "Maintenance Obligations"). (b) during the term of the Sump Pump Installation Warranty by BLK77 in favor of City dated , 2007, timely comply with its obligations under said Sump Pump Installation Warranty. (hereinafter collectively the "Guaranteed Obligations") including without limiting the generality of the foregoing: (A) ; ;that BLK77 shall timely perform the Guaranteed Obligations; (B) that BLK77 shall timely perform its Parking Facility post-completion punch list and warranty work which are described in the construction contract for the Parking Facility; and (C) that BLK77 will duly and punctually perform and observe all other terms, covenants, and conditions of the Guaranteed Obligations whether according to the present terms thereof, or pursuant to any extension of time or to any change or changes in the terms, covenants, or conditions thereof now or hereafter made or granted. 2 If any one (1) or more Guaranteed Obligations is/are not complied with, in any respect whatsoever, and without the necessity of any notice from City to Guarantor, Guarantor agrees to (i) assume all responsibility for the timely completion of the Guaranteed Obligations; (ii) pay all bills in connection with the Guaranteed Obligations; and (iii) indemnify and hold City harmless from any and all loss, cost, liability or expense that City may suffer by reason of any such non-compliance by BLK77 and/or Guarantor with respect to the Guaranteed Obligations. If after the occurrence of an BLK77 Default with respect to any of the Guaranteed Obligations, and after the expiration of any applicable notice and cure periods, if any, and without limiting City's rights and remedies, if City, in its sole and reasonable discretion, is dissatisfied with the progress of the completion of the Guaranteed Obligations by BLK77 and/or Guarantor, City may, at its option, without notice to Guarantor or anyone else, complete the Guaranteed Obligations either before or after exercise of any other right or remedy of City against BLK77 or Guarantor, with such changes or modifications as City reasonably deems necessary and expend such sums as City, in its sole and reasonable discretion, deems necessary or advisable to complete the Guaranteed Obligations, and Guarantor hereby waives any right to contest any such expenditures by City. The amount of any and all expenditures made by City for the foregoing purposes shall bear interest from the date made until repaid to City, at a rate per annum equal to eighteen percent (18%) and, together with such interest, shall be due and.payable by Guarantor to City within ten (10) days of receipt of written demand therefor. City does not have and shall never have any obligation to complete the Guaranteed Obligations or take any such action with respect thereto. 5. Primary Liability of Guarantor. (a) This Guaranty is an absolute, irrevocable and unconditional guaranty; ;4f payment and performance. Guarantor shall be liable for the payment and performance of the Guaranteed Obligations as a primary obligor. This Guaranty shall be effective as a waiver of, and Guarantor hereby expressly waives, any and all rights to which Guarantor may otherwise have been entitled under any suretyship laws in effect from time to time, including any right or privilege, whether existing under statute, at law or in equity, to require City to take prior recourse or proceedings against any BLK77. (b), 'Guarantor hereby agrees that in the event of (i) default by BLK77 in payment or performance of~the Guaranteed Obligations, or any part thereof, when such indebtedness or performance becomes due, beyond any applicable grace and/or cure period, (ii) other than monetary obligations, the failure of Guarantor to perform completely and satisfactorily the covenants, terms and conditions of any of the Guaranteed Obligations, provided, however, that Guarantor shall have: (1) thirty (30) days from receipt of notice of such default within which to cure any such default in performance provided Guarantor is diligently and continuously pursuing such cure; (2) such additional time as may be necessary to cure such default if the cure of such default is not capable, of being cured within such thirty (30) day period, provided Guarantor is diligently and continuously pursuing such cure; and (3) in any event, not greater than forty five (45) days to cure any such default; (iii) the death, incompetency, dissolution or insolvency of Guarantor; (iv) the inability of Guarantor to pay debts as they mature; (v) an assignment by Guarantor for the benefit of creditors; (vi) the institution of any proceeding by or against Guarantor in bankruptcy or for a reorganization or an arrangement with creditors, or for the appointment of a receiver, trustee or custodian for any of them or for any of their respective properties which is not dismissed within sixty (60) days of the 3 filing thereof; (vii) the entry of a judgment (in excess of $25,000) against Guarantor, provided (a) the City has not received confirmation from Guarantor's insurance company that payment of same is covered by insurance, or (b}said judgment, if appealable, is not appealed and transferred to bond or otherwise stayed for execution, or (c) upon the entry of anon-appealable order, said judgment is riot satisfied within thirty (30) days of the date of entry of the non-appealable order, or (d) the issuance of any attachment, sequestration, or similar writ levied upon any of its property which is not discharged within a period of thirty (30) days; (viii) a writ or order of attachment, levy or garnishment (in excess of $25,000) against Guarantor which is not satisfied or bonded within thirty (30) days of the issuance thereof; or (ix) the falsity in any material respect of, or any material omission in, any .representation made to City by Guarantor (individually and collectively, a "Default"); then upon the occurrence of such Default, the Guaranteed Obligations, for purposes of this Guaranty, shall be deemed immediately due and payable at the election of City, and Guarantor shall, on demand and without presentment, protest, notice of protest, further notice of nonpayment or of dishonor, default or nonperformance, or notice of acceleration or of intent to accelerate, or any other notice whatsoever, without any notice having been given to Guarantor previous to such demand of the acceptance by City of this Guaranty, and without any notice having been given to Guarantor previous to such demand of the creating or incurring of such indebtedness or of such obligation to perform, all such notices being hereby waived by Guarantor, pay the amount due to or perform or observe the agreement, covenant, term or condition, as the case may be, and pay all damages and all costs and expenses that may arise in consequence of such Default (including, without limitation, all reasonable attorneys' fees and expenses, investigation costs, court costs, and any and all other costs and expenses incurred by City whether or not suit is filed thereon, or whether in connection with bankruptcy, insolvency or appeal. It shall not be necessary for City in order to enforce such payment or performance by Guarantor, first to institute suit or pursue or exhaust any rights or remedies against BLK77 or others liable on such indebtedness or for such performance, or to enforce any rights against any security that shall ever have been given to secure such indebtedness or performance, or to join BLK77 or any others liable for the payment or performance of the Guaranteed Obligations or any part thereof in any action to enforce this Guaranty, onto resort. to any other means of obtaining payment or performance of the Guaranteed Obligations. (c) Suit may be brought or demand maybe made against BLK77 or against any party who has signed this Guaranty or any other guaranty covering all or any part of the Guaranteed Obligations, or against anyone or more of them, separately or together, without impairing the rights of City against any party hereto. Any time that City is entitled to exercise its rights or remedies hereunder, they may in their discretion elect to demand payment and/or performance. If City ele~.ts to demand performance, they shall at all times thereafter have the right to demand payment until all of the Guaranteed Obligations have been paid and performed in full. If City elects to demand payment, they shall at all times thereafter have the right to demand performance until all of the Guaranteed Obligations have been paid and performed in full. 6. Certain Agreements And Waivers By Guarantor. 4 (a) Guarantor hereby agrees that neither City's rights or remedies nor Guarantor's obligations under the terms of this Guaranty shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts or circumstances, and the liability of Guarantor under this Guaranty shall be absolute and unconditional irrespective o£ 1) any limitation of liability or recourse in any other agreement or arising under any law; 2) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration; 3) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; 4) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, including any impairment of Guarantor's recourse against any Person or collateral; 5) whether express or by operation of law, any partial release of the liability of Guarantor hereunder, or if one or more other guaranties are now or hereafter obtained by City covering all or any part of the Guaranteed Obligations, any complete or partial release of any one or more of such guarantors under any such other guaranty, or any complete or partial release of BLK77 or any other party liable, directly or indirectly, for the payment or performance of any or all of the Guaranteed Obligations; 6) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or BLK77ship, sale of all assets, or lack of corporate, partnership or other power of BLK77 or any other party at any time liable for the payment or performance of any or all of the Guaranteed Obligations; 7) either with or without notice to or consent of Guarantor: any renewal, extension, modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s) and interest rate(s)) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance or compromise that may be granted from time to time by City to BLK77, Guarantor, and/or any other Person at any time liable for the payment or performance of any or all of the Guaranteed Obligations; 8) any neglect, lack of diligence, delay, omission, failure or refusal of City to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in 5 exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Guaranteed Obligations or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations; 9) any failure of City to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination or assignment of the Guaranteed Obligations or any part thereof, or of any release of or change in any security, or of any other action taken or refrained from being taken by City against BLK77 or any security or other recourse, or of any new agreement between City and BLK77, it being understood that City shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations except as expressly provided herein, any and all rights to notice Guarantor may otherwise have had which are not required hereunder being hereby waived by Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding BLK77, including, but not limited to, any changes in the business or financial condition of BLK77, and Guarantor acknowledges and agrees that City shall have no duty to notify Guarantor of any information which City may have concerning BLK77; 10) the making of advances by City to protect their interest in the Parking Facility; 11) the existence of any claim, counterclaim, set-offor.other right that Guarantor may at any time have against BLK77, City, or any other Person, whether or not arising in connection with this Guaranty. 12) any right or claim of right to cause a marshaling of any of BLK77's assets or the assets of any other party now or hereafter held as security for the Guaranteed Obligations; the defense of the statute of limitations in any action hereunder or for the payment of the Guaranteed Obligations and performance of any obligation hereby guaranteed; any defense that may arise by reason of the incapacity, lack of authority, death or disability of Guarantor, or BLK77 or any other person or entity, or the voluntary or involuntary dissolution of BLK77 or Guarantor, or the failure of City to file or enforce a claim against the estate (either in administration, bankruptcy or any other proceeding) of BLK77 or any other person or entity; any defense based on the failure of ;City to give notice of the existence, creation or incurring of any new or additional Guaranteed Obligations or obligation, or of any action ornor.-action on the part of any other person whomsoever or the Guaranteed Obligations, in connection with any obligation hereby guaranteed; any defense based upon an election of remedies by City which destroys or otherwise impairs any subrogation rights of Guarantor or the right of Guarantor to proceed agaihst BLK77 or any other guarantor for reimbursement, or both; any defense based upon failure of City to commence an action against BLK77; any defense based upon acceptance of this Guaranty by City; 13) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to BLK77 or any other 6 Person, including any extension, reduction, composition or other alteration of the Guaranteed Obligations, whether or not consented to by City; or 14) any other condition, event, omission or action that would in the absence of this paragraph result in the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement, other than based upon the full and indefeasible satisfaction of all Guaranteed Obligations. (b} In the event any payment or performance by BLK77, Guarantor or any other Person to City is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason City is required to refund such payment or pay the amount thereof to any other party, such payment by BLK77, Guarantor or any other party to City shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by City of this Guaranty or of Guarantor), as the case maybe, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by City or paid by City to another Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest-paid by City and any reasonable attorneys' fees, costs and expenses paid or incurred by City in connection with any such event. It is the intent of Guarantor, City that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid and performed, and not subject to refund or disgorgement, the obligations and liabilities of.Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. City shall be entitled to continue to hold this Guaranty in their possession for a period of one year from the date the Guaranteed Obligations are paid and performed in full and for so long thereafter as may be necessary to enforce any obligation of Guarantor hereunder and/or to exercise any right or xemedy of City hereunder. . (c) Guarantor hereby waives and agrees not to assert or take advantage of (i}any right or claim of right to cause a marshalling of any of BLK77's assets or the assets of any other party now or hereafter held as security for any indebtedness; (ii) the defense of, the statute of limitations in any action hereunder or for the payment of any indebtedness and performance of any obligation hereby guaranteed; (iii) any defense that may arise by reason of the incapacity, lack of authority, death or disability of Guarantor, or BLK77 or any other person or entity, or the voluntary or involuntary dissolution of BLK77 or Guarantor, or the failure of City to file or enforce a claim against the estate (either in administration, bankruptcy, or any other proceeding) or BLK77 or any other person or entity; (iv) any defense based on the failure of City to give notice of the existence, creation, or incurring of any new or additional indebtedness or obligation, or of any action or non- action on the part of any other person whomsoever in connection with any obligation hereby guaranteed; (v) any,.defense based upon an election ofremedies by City which destroys or otherwise impairs any subrogation rights of Guarantor or any other guarantor of the Loan or the right of Guarantor to proceed against BLK77 or any other guarantor for reimbursement, or both; (vi} any defense based upon failure of City to commence an action against BLK77; (vii) any defense based upon acceptance of this Guaranty by City; (viii) any defense based upon the failure of City to perfect any security or to extend or renew the perfection of any security; and (ix) any other legal or 7 equitable defenses whatsoever to which Guarantor might otherwise be entitled, other than based upon the full and indefeasible satisfaction of all Guaranteed Obligations. 7. Subordination. If, for any reason whatsoever, BLK77 is now or hereafter becomes indebted to Guarantor such indebtedness and all interest thereon and all liens, security interests and rights now or hereafter existing with respect to property of BLK77 securing such indebtedness shall, at all times, be subordinate in all respects to the Guaranteed Obligations and to all liens, security interests and rights now or hereafter existing to secure the Guaranteed Obligations; 8. Assi ns. This Guaranty is for the benefit of City, and its successors and/or assigns, and in the event of an assignment of the Guaranteed Obligations, or any part thereof, the rights and benefits hereunder, to the extent applicable to the Guaranteed Obligations so assigned, may be transferred with such Guaranteed Obligations. Guarantor waives notice of any transfer or assignment of the Guaranteed Obligations, or any part thereof, and agrees that failure to give notice of any such transfer or assignment will not affect the liabilities of Guarantor hereunder. 9. Binding Effect. This Guaranty is binding not only on Guarantor, but also on Guarantor's heirs, personal representatives, successors and assigns. Upon the death of Guarantor, if Guarantor is a natural person, this Guaranty shall continue against Guarantor's estate as to all of the Guaranteed Obligations, including that portion of same incurred or arising after the death of Guarantor, and shall be provable in full against Guarantor's estate, whether or not the Guaranteed Obligations are then due and payable. If this Guaranty is signed by more than one Person, then all of the obligations of Guarantor arising hereunder shall be jointly and severally binding on each of the undersigned, and their respective heirs, personal representatives, successors and assigns, and the term "Guarantor" shall mean all of such Persons and each of them individually. 10. Governin Law; Forum; Consent to Jurisdiction. This Guaranty is an agreement executed under seal. The validity, enforcement, and interpretation of this Guaranty shall for all purposes be governed by and construed in accordance with the laws of the State of Florida and applicable United States federal law, and the performance hereof is intended to be done in accordance with, and only to the extent permitted by, such laws. All obligations of Guarantor hereunder are payable and performable at the place or places where the Guaranteed Obligations are payable and performable. Guarantor hereby irrevocably submits generally and unconditionally for Guarantor and in respect of Guarantor's property to the nonexclusive jurisdiction of any state court, or any United States federal court, sitting in Palm Beach County, Florida, and to the jurisdiction of any state or United States federal court sitting in Palm Beach County, Florida, over any suit, action or proceeding arising out of or relating to this Guaranty or the Guaranteed Obligations. Guarantor hereby irrevocably waives, to the fullest extent permitted by law, any obj ection that Guarantor may now or hereafter have to the laying of venue in any such court and any claim that any such court is an inconvenient forum. Final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon Guarantor and maybe enforced in any court in which Guarantor is subject to jurisdiction. Guarantor hereby agrees and consents that, in addition to any methods of service of process provided for under applicable law, all service of process in any such suit, action or proceeding in any state court, or any United States federal court, sitting in the state specified in the first sentence of this Section may be made by certified or registered mail, return receipt requested, directed to Guarantor at the address set forth at the end of this Guaranty, or at a 8 subsequent: address. of which City receives actual notice from Guarantor in accordance with the notice provisions hereof, and service so made shall be complete five (5) days after the same shall have been so mail`ed.. Nothing herein shall affect the right of City to serve process in any manner permitted by law.or limit the right of City to bring proceedings against Guarantor in any other court or jurisdiction. Guarantor hereby releases, to the extent permitted by applicable law, all errors and all rights of exemption, appeal, stay of execution, inquisition, and other rights to which Guarantor may otherwise be entitled under the laws of the United States of America or any state or possession of the United States of America now in force or which may hereinafter be enacted. The authority and power to appear for and enter judgment against the Guarantor shall not be exhausted by one or more exercises thereof or by any imperfect exercise thereof and shall not be extinguished by any judgment entered pursuant thereto. Such authority may be exercised on one or more occasions or from time to time in the same or different jurisdiction as often as the City shall deem necessary and desirable. 11. Invalidity of Certain Provisions. If any provision of this Guaranty or the application thereof to any Person or circumstance shall, for any reason and to any extent, be declared to be invalid or unenforceable, neither the remaining provisions of this Guaranty nor the application of such provision to any other Person or circumstance shall be affected thereby, and the remaining provisions of this Guaranty, or the applicability of such provision to other Persons or circumstances, as applicable, shall remain in effect and be enforceable to the maximum extent permitted by applicable law. 12. Attorneys' Fees and Costs of Collection. Guarantor shall pay on demand all reasonable attorneys' fees and all other costs and expenses incurred by City in the enforcement of or preservation of City rights under this Guaranty, including, without limitation, all reasonable attorneys' fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, or whether at maturity or by acceleration, or whether before or after maturity, or whether in connection with bankruptcy, insolvency or appeal, or whether in connection with the collection and enforcement of this Guaranty against any other Guarantor, if there be more than one. Guarantor agrees to pay interest on any expenses or other sums due to City under this Section 12 that are not paid when due, at a rate per annum equal to Eighteen Percent (18%). Guarantor's obligations and liabilities under this Section 12 shall survive any payment or discharge in full of the Guaranteed Obligations. 13. Paylnents. All sums payable under this Guaranty shall be paid in lawful money of the United States of America that at the time of payment is legal tender for the payment of public and private debts. 14. Re resentations Warranties and Covenants of Guarantor. Guarantor hereby represents, warrants, and covenants that (a) Guarantor has a financial interest in BLK77 and will derive a material and substantial benefit, directly or indirectly, from the construction of the Parking Facility and from the making of this Guaranty by Guarantor; (b) this Guaranty is duly authorized and valid, and is binding upon and enforceable against Guarantor; (c) Guarantor is not, and the execution, delivery and performance by Guarantor of this Guaranty will not cause Guarantor to be, in violation of or in default with respect to any law or in default (or at risk of acceleration of indebtedness) under any agreement or restriction by which Guarantor is bound or affected; (d) Guarantor is an adult resident of the State of Florida; (e) Guarantor will indemnify City from any 9 loss, cost or expense as a result of any representation or warranty of Guarantor being false, :incorrect, incomplete or misleading in any material respect; (f) other than as disclosed to a~~d approved by City, there is no litigation pending or, to the knowledge of Guarantor, overtly threatened before or by any tribunal against or affecting Guarantor which would have the effect of materially. and adversely affecting the financial condition of Guarantor; (g) after giving effect to this Guaranty, Guarantor is solvent, is not engaged or about to engage in business or a transaction for which the property of Guarantor is an unreasonably small capital, and does not intend to incur or believe that it will incur debts that will be beyond its ability to pay as such debts mature; (h) City has no duty at any time to investigate or inform Guarantor of the financial or business condition or affairs of BLK77 or any change therein; (i) Guarantor acknowledges and agrees that Guarantor may be required to pay and perform the Guaranteed Obligations in full without assistance or support from BLK77 or any other. Person; and (j) Guarantor has read and fully understands the provisions contained in this Guaranty. Guarantor's representations, warranties and covenants are a material inducement to City to allow BLK77 to close on the transfer of the Parking Facility and it shall survive the execution hereof and any bankruptcy, foreclosure, transfer of security or other event affecting BLK77, Guarantor, any other party, or any security for all or any part of the Guaranteed Obligations. 15. Intentionally omitted 16. Notices. All notices, requests, consents, demands and other communications required or which any party desires to give hereunder shall be in writing and shall be deemed sufficiently given or furnished if delivered by personal delivery by nationally recognized overnight courier service, or by registered or certified United States mail, postage prepaid, addressed to the party to whom directed at the addresses specified in this Guaranty (unless changed by similar notice in writing given by the particular party whose address is to be changed) or by telegram, telex, or facsimile. Any such notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of courier or mail, as of the date of first attempted delivery at the address and in the manner provided herein, or, in the case of telegram, telex or facsimile, upon receipt; provided that, service of a notice required by any applicable statute shall be considered complete when the requirements of that statute are met. Notwithstanding the foregoing, no notice of change of address shall be effective except upon actual receipt. This Section shall not be construed in any way to affect or impair any waiver of notice or demand provided in this Guaranty or to require giving of notice or demand to or upon any Person in any situation or for any reason. 17. Cumulative Rights. The exercise by City of any right or remedy hereunder or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy. City shall have all rights, remedies and recourses afforded to City by reason of this Guaranty or by law or equity or otherwise, and the same (a) shall be cumulative and concurrent, (b) may be pursued separately, successively or concurrently against Guarantor or others obligated for the Guaranteed Obligations, or any part thereof, or against anyone or more of them, or against any security or otherwise, at the sole and absolute discretion of City, (c) may be exercised as often as occasion therefor shall arise, it being agreed by Guarantor that the exercise of, discontinuance of the exercise of or failure to exercise any of such rights, remedies or recourses shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse, and (d) are intended to be, and shall be, nonexclusive. No waiver of any default on the part of Guarantor or of any breach of any of 10 the provisions of this Guaranty or of any other document shall be considered a waiver of any other or subsequent default or breach, and no delay or omission in exercising or enforcing the rights and powers granted herein or in any other document shall be construed as a waiver of such rights and powers, and no exercise or enforcement of any rights or powers hereunder or under any other document shall be held to exhaust such rights and powers, and every such right and power maybe exercised from tune to time. The granting of any consent, approval or waiver by City shall be limited to the specific instance and purpose therefor and shall not constitute consent or approval in any other instance or for any other purpose. No notice to or demand on Guarantor in any case shall of itself entitle Guarantor to any other or further notice or demand in similar or other circumstances. No provision of this Guaranty or any right, remedy or recourse of City with respect hereto, or any default or breach, can be waived, nor can this Guaranty or Guarantor be released or discharged in any way or to any extent, except specifically in each case by a writing intended for that purpose (and which refers specifically to this Guaranty) executed, and delivered to Guarantor, by City. 18. Term of Guaranty. This Guaranty shall continue in effect until all the Guaranteed Obligations are fully and finally paid, performed and discharged. Upon termination, City shall, upgn request, execute and deliver such reasonable documentation requested by Guarantor from time to time evidencing the termination of this Guaranty. 19. Further Assurances. Guarantor at Guarantor's expense will promptly execute and deliver to City upori City's request all such other and further documents, agreements and instruments in compliance with or accomplishment of the agreements of Guarantor under this Guaranty: 20. No )E`iduciary Relationship. City had no fiduciary or other special relationship with or duty to Guarantor and none is created hereby or may be inferred from any course of dealing or act or omission of. 21. Interpretation. Whenever the context of any provisions hereof shall require it, words in the singular shall include the plural, words in the plural shall include the singular, and pronouns of either gender shall include the other gender. All references in this Guaranty to Schedules, Articles, Sections, Subsections, paragraphs and subparagraphs refer to the respective subdivisions of t~a~s Guaranty, unless such references specifically identify other documents. The terms "herein," "hereof," "hereto," "hereunder" and similar terms refer to this Guaranty and not to any particular Section or Subsection of this Guaranty. The terms "include" and "including" shall be interpreted as if followed by the words "without limitation." All references in this Guaranty to sums denominated in dollars or with the symbol "$" refer to the lawful currency of the United States of America, unless such references specifically identify other currencies. For purposes of this Guaranty, "Person" or "Persons" shall include firms, associations, partnerships (including limited partnerships), joint ventures, trusts,. corporations, limited liability companies and other legal entities, including governmental bodies, agencies or instrumentalities, as well as natural persons. 22. Time of Essence. Time shall be of the essence in this Guaranty with respect to all of Guarantor's obligations hereunder. 11 23. Counterparts. This Guaranty may be executed in multiple counterparts, each.of which, for a.ll purposes, shall be deemed an original, and all of which taken together shall constitute but one and the same agreement. 24. Entire Agreement. This Guaranty embodies the entire agreement between City and Guarantor with respect to the guaranty by Guarantor of the Guaranteed Obligations. This Guaranty supersedes all prior agreements and understandings, if any, with respect to the guaranty by Guarantor of the Guaranteed Obligations. No condition or conditions precedent to the effectiveness of this Guaranty exist. This Guaranty shall be effective upon execution by Guarantor and delivery to City. This Guaranty may not be modified, amended or superseded except in a writing signed by City and Guarantor referencing this Guaranty by its date and specifically identifying the portions hereof that are to be modified, amended or superseded. 25. Notices: To Guarantor: William E. Morris, Jr. 1046 Melaleuca Road Delray Beach, FL 33483 Telephone: (561) 278-1123 Telecopier: (561) 265-5577 To City: City of Delray Beach City Attorney's Office 200 N. W. ls` Avenue Delray Beach, Florida Telephone: (561) 243-7091 Facsimile: (561) 278-4755 26. Waiver of Trial by Jury. CITY AND GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TU A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS GUARANTY, AND ANY AGREEMENT EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. Guarantor's Initials THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 12 IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty under seal as of the date first written above. STATE OF FLORIDA COUNTY OF PALM BEACH GUARANTOR: ' '`rp` V WILLIAM E. MORRIS, JR. The foregoing instrument was acknowledged before me this ~ ~ day of l , 2007, by WILLIAM E. MORRIS, JR. He is personally known to me or produced as identification. of Signature Seal P`"~ JOANNE GANNON MY COA9vIISSION # DD413011 '~.~0.~ EXPIRES: April 02, 2009 ~-eaoa-t~lornxr Fi. Nasyniscaunc n®oa Ca 13 10. SUMP PUMP INSTALLATION WARRANTY THIS SUMP PUMP INSTALLATION WARRANTY is made and entered into as of this day of 2007 (the "Effective Date"), by Block 77 Development Group, L.C., a Florida limited liability company ("BLK77") in favor of the City of Delray Beach, a Florida Municipal corporation ("City"). RECITALS: WHEREAS, BLK77and City are parties to that certain Public Parking Facility Construction and Conveyance and Worthing Park Contribution Agreement dated November _, 1999 (the "Parking Facility Agreement"); and WHEREAS, pursuant to the terms of the Parking Facility Agreement, BLK77 has constructed and has, on the Effective Date, conveyed to City a public parking facility on the real property described on Exhibit "A" attached hereto and incorporated herein (the "Parking Facility"); and WHEREAS, in conjunction with the construction of the Parking Facility, BLK77 caused the installation of a Sump Pump (as defined below) in said Parking Facility; and WHEREAS, the Sump Pump was installed and completed prior to inspection by the City; WHEREAS, in order to induce City to close on the transfer of the Parking Facility under the Parking Facility Agreement, BLK77 has agreed to grant, and City has agreed to accept, this Sump Pump Installation Warranty subject to and upon the certain terms and conditions as set forth herein; and NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged by each party from the other, the parties hereto agree as follows: Recitals. The foregoing recitals are true and correct and are incorporated herein by reference. 2. Warranty. BLK77 hereby warrants (the "Warranty") for a period of five (5) years from the Effective Date (the "Warranty Period"), that the handling and installation of the Starite Submersible Solid Handling Pump Model # EC440120T (and the related ,station, accessories, sump, backfill soils that surround the sump, and underground and above ground appurtenant equipment) as installed in the Parking Facility (the "Sump Pump") was done properly, which includes without limitation, in a good and workmanlike manner, in compliance with all applicable rules, codes, laws, and standards, and in accordance with Atlantic Enviro~unental Systems, Inc'.s MOPS limited warranty (the "Atlantic Limited Warranty"). BLK77 agrees to repair or replace, at its sole cost and expense, any component of the Sump Pump that is defective (i.e. that does not conform to the Warranty) in worlunanship, labor, materials, services, or parts. Nothing contained herein shall preclude BLK77 from utilizing the Atlantic Limited Warranty. BLK77 shall effect any and all repairs and replacements within fifteen (15) days after written request by City. No steps taken by BLK77 to correct defects shall act to extend the Warranty Period beyond the initial term. In addition, during the Warranty Period, BLK77 shall indermiify and hold the City harmless from and against any claim, damage, loss, cost or expense caused by the improper handling or installation of the Sump Pump. 3. Exclusions from Warranty. BLK77 does not assume responsibility for, and there is specifically excluded from the limited Warranty, any and all items not specifically included herein. These exclusions include, but are not limited to: SumpPumpWarranryRevised Final 5-31.DOC ~, (1) Damage due to ordinary wear and tear, abusive use, misuse or negligence; (2) Defects which are the result of characteristics of the Sump Pump; (3) Loss or injury caused in any way by the elements, except as resulting from improper installation and handling of the Sump Pump; (4) Conditions resulting from condensation on, or expansion, or contraction of materials; (5) Damage due to failure to perform routine maintenance. (6) Chips, scratches, or mars in the Sump Pump or other patent defects not recognized at the time of inspection. 4. Privi .This limited Warranty runs in favor of only the City and is nontransferable. 5. Notices: All notices, requests, consents, demands and other communications required or which any party desires to give hereunder shall be in writing and shall be deemed sufficiently given or furnished if delivered by personal delivery by nationally recognized overnight courier service, or by registered or certified United States mail, postage prepaid, addressed to the party to whom directed at the addresses as specified below (unless changed by similar notice in writing given by the particular party whose address is to be changed). Any such notice or communication shall be deemed to have been given either at the time of personal delivery or, in the case of courier or mail, as of the date of first attempted delivery at the address and in the manner provided herein. To BLK77: Block 77 Development Group, L.C. Attn: William E. Morns, Jr., Manager c/o Southcoast Partners, Inc. 900 E. Atlantic Avenue, Suite 13 Delray Beach, FL 33483 To City: City of Delray Beach City Attorney's Office 200 N. W. ls` Avenue Delray Beach, Florida 6. Severability. In case any one or more of the provisions contained in this Sump Pump Installation Warranty shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not effect any other provision hereof, and this license shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 7. Construction of this Agreement. This Sump Purnp Installation Warranty is deemed to have been drafted j ointly by the parties, and any uncertainty or ambiguity shall not be construed for or against either party as an attribution of drafting to either party. 8. Recording. This Sump Pump Installation Warranty shall not be recorded without the written consent of all parties. 9. Modification of Agreement. No modification of this Sump Pump Installation Warranty shall be deemed effective unless in writing and signed by all parties. 10. Waiver of Trial by Jury. CTTY AND BLK77 HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS SUMP PUMP INSTALLATION WARRANTY, AND ANY AGREEMENT EXECUTED IN 2 CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. 11. THIS SUMP PUMP INSTALLATION WARRANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 12. Counterparts. This Sump Pump Installation Warranty inay be executed in counterparts, each of which shall be deemed to be an original and all of which shall together constitute one and the same instrument. [SIGNATURES BEGIN ON THE FOLLOWING PAGE] IN WITNESS WHEREOF, this Sump Pump Installation Warranty has been executed as of the Effective Date. Block 77 Development Group, L.C. a Florida limited liability company By: Print name: William E. Morris, Jr., Manager Print name: Print name: Print name: The City of Delray Beach, Florida, a Florida municipal corporation By: _ Name: Title: 4 EXHIBIT A LEGAL DESCRIPTION Parcel One All of the Plat of WORTHING PLACE BLOCK 69, according to the map or plat thereof as recorded in Plat Book 105, Page(s) 137, Public Records of Palm Beach County, Florida. Formerly described as: Lots 20, 21 and 22, Block 69, Subdivision of Block 69, Delray, Florida according to the map or plat thereof as recorded in Plat Book 2, Page 43, Public Records of Palm Beach County, Florida; and Parcel Two A portion of Lot 19 of the Subdivision of Block 69, Delray Beach, Florida, according to the Plat thereof, as recorded in Plat Book 3, Page 45 of the Public Records of Pahn Beach County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Lot 19, also being the Southwest corner of Worthing Place Block 69, as recorded in Plat Book 105, Page 137; Thence S 89°06'29" E along the North line of said Lot 19, a distance of 2.00 feet to the Point of Beginning; Thence continue S 89°06'29" along said North line, a distance of 124 feet to a point of intersection with the West line oftheright-of--way for S.E. 15` Avenue as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palm Beach County, Florida, also being a line 5.00 feet West of and parallel with the East line of said Lot 19; Thence S 00°00'00" W along said parallel line, a distance of 0.33 feet to a point of intersection with a line 0.33 feet South of and parallel with the North line of said Lot 19; Thence N 89°06'29" W along said parallel line, a distance of 124.00 feet to a point of intersection with the East line of the right-of--way fora 16.00 foot wide Alley as shown in Official Records Book 18488, pages 604-606 of the Public Records of Palin Beach County, Florida, also being a line 2.00 feet East of and parallel with the West line of said Lot 19; Thence N 00°00'00" W along said parallel line a distance of 0.33 feet to the point of beginning. 5 I1. MUTUAL ESTOPPEL CERTIFICATE This Mutual Estoppel Certificate (this "Estoppel) is entered into this .~ day of 2007 by and between Block 77 Development Group, L.C., a Florida limited liability com ny ("Block 77") and the City of Delray Beach, a Florida municipal corporation ("City"). Whereas, on November 10, 1999, the City and Block 77 entered into a Public Parking Facility Construction and Conveyance and Worthing Park Contribution Agreement "PPF Agreement"); and Whereas, pursuant to the PPF Agreement, page 2, "...upon the issuance of a certificate of occupancy (the "C.O.") for the Public Parking Facility improvements, marketable title to Block 69, together with the improvements thereon, shall be conveyed in fee simple to the City, together with a title insurance policy insuring marketable title thereto to the City ..."; and Whereas, the Public Parking Facility improvements have been completed in conformance with, and under the terms and conditions as dictated by the PPF Agreement; and Whereas, the C.O. for the Public Parking Facility improvements has been issued and Block 77 stands ready to convey, in fee simple; marketable title to Block 69, together with the improvements thereon (the "PPF"); Now, therefore, in consideration of the foregoing, Block 77 and the City hereby agree as follows: 1. To the best of our knowledge, no default, event of default, or breach exists under the PPF Agreement, and no facts or circumstances exist that, with the passage of time or the giving of notice, or both, will or could constitute a default, event of default, or breach under the PPF Agreement. 2. The PPF Agreement has been, and is, approved in all respects by Block 77 and the City, and is hereby ratified and affirmed in its entirety. 3. The Public Parking Facility improvements fully satisfy all requirements under the PPF Agreement, and the City agrees that the delivery of the PPF satisfies all requirements under the PPF except for those post-closing obligations as set forth in the PPF Agreement or any other related documents. 4. Pursuant to a Parking Space Lease dated September 13, 2002, as amended, between Block 77 and Oxford Business Corporation ("Oxford"), successor in interest to Sun Atlantic Properties, L.L.C., Oxford is entitled to the use of exactly fifty-five (55) full-time parking spaces and forty (40} part-time spaces as more particularly depicted on the Parking Plan attached to the Parking Space Lease, a true, correct, and complete copy of which is attached hereto as Exhibit A. 5. Simultaneously with the execution of this Estoppel and the conveyance of the PPF to the City, Block 77 and the City have executed an Assignment of Assumption of Lease pertaining to Oxford's Parking Space Lease. MUTUAL ESTOPPEL CERTIFICATE v. 1.2 dtd 5.25.07 FINAL.doc s , d ~ 6. Each party, by signing this Estoppel, certifies that it has full authority to execute and deliver this Estoppel, that the execution, delivery, and performance of this Estoppel, the PPF Agreement, and the Parking Space Lease have each been duly authorized pursuant to all requisite authority, and that this Estoppel, the PPF Agreement, and the Parking Space Lease constitute legal, valid, and binding obligations of Block 77 and the City. IN WITNESS WHEREOF, the undersigned has executed this Estoppel as of this ~o day of 2007. Block 77 Development Group, L.C., a Florida limited liability company By: William E. Morns, Manager City of Delray Beach, a Florida municipal corporation By: _ Name: Title: MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: JASMIN ALLEN, PLANNER -~ '' ~`~,~ L ~~- PAUL DORLING, AICP, DI CTOR PLANNING AND ZONING~~~ THROUGH: CITY MANAGER DATE: May 29, 2007 SUBJECT: AGENDA ITEM # C~ . (.1 - REGULAR MEETING OF JUNE 4, 2007 REPORT OF APPEALABLE LAND USE ITEMS MAY 14.2007 THRU JUNE 1, 2007 ITEM BEFORE COMMISSION The action requested of the City Commission is review of appealable actions which were made by various Boards during the period of May 14, 2007 through June 1, 2007. BACKGROUND This is the method of informing the City Commission of the land use actions, taken by designated Boards, which may be appealed by the City Commission. After this meeting, the appeal period shall expire (unless the 10 day appeal period has not occurred). Section 2.4.7(E), Appeals, of the LDRs applies. In summary, it provides that the City Commission hears appeals of actions taken by an .approving Board. It also provides that the City Commission may file an appeal. To do so: 1. The item must be raised by a Commission member. 2. By motion, an action must be taken to place the item on the next meeting of the Commission as an appealed item. REVIEW BY OTHERS Planning and Zoning Board -Meeting of May 21.2007 No appealable items were considered by the Planning and Zoning Board during this period. The following items which were considered by the Board will be forwarded to the City Commission for action: Recommended approval (6 to 0, Cary Glickstein absent), of an amendment sponsored by the Community Redevelopment Agency (CRA) to Land Development Regulations (LDR) Section 4.4.13 "Central Business (CBD) District," Subsection 4.4.13(H)(1), to provide an exemption to the prohibition of office uses on the ground floor of buildings on East Atlantic Avenue. City Commission Documentation, Meeting of June 4, 2007 Appealable Items ^ Recommended approval (6 to 0), of a City initiated amendment to the Land Development Regulations (LDR) Section 4.4.25 "Special Activities District (SAD)", Subsection 4.4.25(C) to provide for the review and approval of plans by the Site Plan Review and Appearance Board and not the Planning and Zoning Board for SAD projects. Site Plan Review and Appearance Board - Meetina of Mav 23. 2007: A. Approved (4 to 0, Connor Lynch and Mark Gregory absent, Jose Aguila stepped down), a Class I site plan modification associated with architectural elevation changes to add new metal standing seam canopies, installing new impact windows, replacement of egress doors and eliminating a storefront window and door for the Wayside House, located on the west side of NE 6th Avenue, south of NE 4th Street (328 NE 6th Avenue). B. Approved (4 to 1, Andrew Youngross dissenting), a Class I site plan modification and landscape plan associated with the installation of a temporary sales trailer for Worthing Place, located on the west side of SE 2nd Avenue, south of East Atlantic Avenue (20 SE 2nd Avenue). The attendant architectural elevation plan was approved on a 5 to 0 vote. C. Tabled (5 to 0), a Class I site plan modification for architectural elevation changes associated with the exterior remodeling for Anthony's Coal Fired Pizza, located at the northeast corner of NE 6th Avenue and NE 1St Street. The Board tabled the request and required that the applicant provide more detailed plans. D. Approved with conditions (5 to 0), a Class I site plan modification associated with architectural elevation changes to add a 1,403 sq. ft. addition to an existing storage building at Delray Mazda, located at the southeast corner of South Federal Highway and Tropic Boulevard (2001 South Federal Highway). E. Approved with conditions (5 to 0), a Class II site plan modification for landscape improvements for Westlake Condominium, an existing multiple family development located at the southwest corner of NE 3~d Avenue and NE 14th Street (268 NE 14th Street). RECOMMENDATION By motion, receive and file this report. Attachment: ^ Location Map 2 CITY OF DELRAY BEACH, FLORIDA SPRAB A. WAYSIDE HOUSE ' 8. WORTHING PLACE TEMPORARY SALES TRAILER ~'I C. ANTHONY'S COAL FIRED PIZZA D. DELRAY MAZDA E. WESTLAKE CONDOMINIUM -~ - - - cmuMrrs .~~~ _ ~_ ~ ONE MILE ~ GRAPHIC SCALE CfTY OF DELRA Y BEACH, FL PLANNING 8 ZONING DEPARTMENT JUNE 2007 • • DIGITAL BASE MAP SYSTEM • - MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: JACKLYN ROONEY, PURCHASING MANAGER THROUGH: CITY MANAGER , DATE: MAY 08, 2007 ~~. SUBJECT: AGENDA ITEM # U• y • l -REGULAR MEETING OF JUNE 05. PURCHASE OF ROYAL PALM TREES AND STUMP REMOVAL FOR PARKS AND RECREATION ITEM BEFORE COMMISSION City Commission is requested to approve award to Conco Horticultural, Inc. for the removal of seven (7) Royal Palm Tree Stumps and the purchase of eight (8) replacement 30' Royal Palms for the total pricing of $50,050. BACKGROUND Bids were received from three (3) vendors for the purchase of these Royal Palms and the removal of the existing stumps as listed below: Conco Horticultural, Inc. $50,050.00 Bermuda Landscape & Design $50,992.00 Delray Garden Center $60,000.00 The low bid submitted by Conco Horticultural, Inc. for the total amount of $50,050 is based on a unit price of $5,600 for purchase of eight new Royal Palms and $750 for the removal of seven (7) royal palm stumps. FUNDING SOURCE Funding from account code 119-4144-572-46.40 -Beautification Trust Fund, Parks and Recreation. RECOMMENDATION Staff recommends award to low bidder, Conco Horticultural, Inc. for the total amount of $50,050. 939 l.S3 Rd.S©rxt~ ~~y ~~~ ~ ~a~-~i~ 5~1~#46.1'~'7~ ~~x: 5~I X96.1'778 BiU 'i`o ~~~~ t0a IV.tN_ 1st.Avenue Y Bead. F~ 33444 .Cottiae~ STPtiENS SI~OVAtt+F F~r~rs: 58'1.2d3.??:61 I~tae,~er: ODo~~2 PO Ne~ntaet; R41fAL PALM , REf''AIR RlOd~rl+~ qR rrt~ Uattt RoP2ew cravat. PA[~0 3t]"[s`W t~lo R~uov~ t Raves. t>~u~~ DU[sltP 8t-ipping Method: t Temps: Payment [i~ocL- Corsin PRtCE SUBJECT TO CElA1+1G,t~ A[='i~ 90 DAYS t3F ~ St1SMiSS10N F~Rt4ilT <3Y OTHER t~T RESPpNStBI..lr FOR td1'IUTY , IRRtCiATtON ,AS~FMlALT DAAAAt~D .~ PROPOSAL. 0~:3oa~nc~ S11ti~ To ctfyy of t~rav 1t?D N.VII. 1~t,Avenue [3ehaY Beady ~ 33444 Contact S'IPHENS 3ENQVAIN Satea l~ep: Jack Riva~f s.~a ~+ seoa.~o 4a,t~oo.oo 7.000 EAGF~1 7~.t300 5,250_t1E! Discotstt RrrxWnt 881e amount 5t),05t1_~b [tdlistieElatteous Charges Shipping Charges 5ale~s Tax Totes! ;54,ElhQ.tJ€i ~'d QLLT'Sts'ir'i95 oouo~ ~9i ~EO LQ t~ ~+'aW Z0 39dd 69ZLEbZ 9T~£t L00Z/bZ/50 ®3'27/2®07 @~: B3 561.4327779 ~aT~'1 ~i~~GyT F~ ®2 ~.u~ ~~~ c~r~es~n 'E~uvsr~ corru-~ e, 1069 ~k~a 'VYme~lr, t'1.'~3~ tsef~~ ~~-03v~ kax ~S6 p 4.'#~it2~ ~~~~Q`~ 71 ~7 Eiei~: ~ Y B~hCH is~PENT ~F RQT~ if~A$ 5"~'HEN S~NUYAiN ~l.R!-Y l3~A~M, FL~~®A ~>DO N / 3~ AVBNUE Qi~.RAY BEACH. Fl. 83444 TiRapho~ng Fas Bake Rap TNf1~f Orl~d P1r<n ~~ts Rs~riaed D~ 3ii-~3 Tom' 'S~t~AB-7288 Bit i~p1~ t lii0l~t R6C~l~ / ~er~~ 1JwN Take Thbi Prloo s i~arA~. P+~,MS soy c~vrr : s.~o.oo ~ a,soaaQ e +.~+~ ~- z Yas ~ Soir a rta~ s s4.o~ s ~ ~ rrwioh ~ ~ s.5t'i ~ ze~ao ~ ~t~ ~ : a,~oo.oo s x~flo.ou ~ cis i~rrAt. ~ z,~uaoa ~ a,yao.c~o ~ ss~Ppl~d tli,A 1'RUt~C ~ t,eoo,ov s :.rioo.ov ,. o~ sL sar*~aa~~n -a ram ,g. iOWRY iT - 4 PA1ii18 s. ~xrrrN +oi~ LCYYN'Y ST. - a PAL.1i>S ~. ~or~rrs ~v~ sr: i PALM s. ~ ei:~. a was ~-v~ . ~ i ~rort~s: 1: iPa~nrit gees erle rwt k~dldsd. ~ Conb*e~bor b eslsbrol>! prq~ soils b IlMShed SradeV "~`~ Berrnuds l.and.ospa wr~l pni~ride prepared sons far bsokflMMg trees aniY. a: t~nera~ cars4rscaor ija supply ~ * rvr ae p oasis ano sv4 e~reos ss prr dlr. 8. SoN ror eod is rrot inpuded ~ ®otK! Bears 8le nct ir>ckrdod- 7: ,Any h~ yore vWrhB >o bA eanplstrd by oti+a*g- ~ ~elr>ier~enoe edller' 3C days ~ Dion is rw! indudad. ~ Lune rock of oompac~sd bare nbinoval is rlet lrlcluds~t- 1U_ Due to n~a®rd weelf~ we 9uanulb avaiisbi~sy ~ P~~ on ~ . ~1. [teloc~ ar r~rvvtals are ttat ind~led- ~~ This proposal eu~s rlet i~r~oknt~le i-oiating t~ aiowaq-d ~ ~ Pte- Crrrss or hoistirq to 6s provided ~- dhets. i9: l4il Qlan#ed arses rrlust be ask wCBt aut 4~i+11w1 ~Ylb agt~lnfarlt 9X. ioio sOd b -egtlif'ea 1bf4ifs prajao~ TOtA4 ~i0~2-8d r„~sY~t o~na~e~~.ar..~ap~rarasmn~nw+a.~.~.s~.,.J'~~.-~'1'+d"•~••~,r~r+.d~,.rrrw~l.~aY.*.wrw~r~~ fh.rAr~MY~urw~r,. e:Wa~ ue.~r>e oa~,seeaw,plira r.ier tl[ti rlRllMNf rMeuiO wad •1tr. M,,,, d YoaQ..dM ~wb a as,MUt N t.lllt atilt rs ~,1. Mea~s~ on.~,.na.n!!'~Mg11M s MWr~ ~, ArrAir+O~M m OQ'~oA41r rMR Ark ~ ra E V1,ddbirRYi1~ near awa+~a w~+iel.ass. vri~ M~- asrwada (ae6e~-~Cl~. kt.s,d ~ 1~y1 ~esAbib l®ra~lllDUS' A Ny .O~.rt ~ IPr m ~~ vuwrciw~,~v ~Y..~Frrwe•+• l~,a.care 6 A.ir~ -+~ sirMws+oa rti 1r,r~t^Qddae, dMm.r•4.~+N'es r.w....,s rnN of wow. ~e~e.s.e na pr~ane.d, ewina.I~ ~an,a,..~ r •et,e.ya,.A~i:. r~Y.~~un~,. a~iirers x.a~ dlydEwrliq ~ 10w.++r1r. ~+hNMM'~ wiaraMwio.l,e Ara ~• ee a~ ~..i,lad,rAs a orwk ~ v r,tnrrna~eN ~ .n miwldtM a ~. a. a 6maaeaQal aot,vo:+p~.pQ,,,A,Aw~u, l.s..wr.+r+a.~ +me abkml rd~k~ sot. Ae s~.w~r ~..n~.nar rs+.~ irs-vBid~TbdA![dfEFi?Ao! Orr ~ ~ :ra re s6oa~otrrtl~„~. R ~• rr o.A,uA:'ros.m~taae,w~lA,N i,~ly ~eetsro4e, .ae on ~ plrrai awr.r. +~+~.ww,sw.~r....~rr...,stiaoaro.,~ per, ~d oond~b~ ~ sal~aoeory ~nr r. f.rarK s~ Yau ra weadmr~ b doter vat *r ^oeAlyd. [+1~HetwA bs ewd~ ws~ f~lsiew~ ~ i19E1 ~- -- . Ylslt ~ lit m~ 60 39dd 69ZLEbZ 9Z=ET L00Z/bZ/50 ~if~8/2997 SS: 36 552243~5~8 ~3F.t~~! G ~EhIT~R PANE 62 Defy +G~n G~n~t inc. 3$27 Vlt~t ~#1an~c Av~nuc Dslr~y ~~ctt. ~#ond~ 3445 ~5~1'Yt8'~~ a~~ ~~ ~ 111~OCt~ ~~ f Addt+~s ~ k3ehh'~I i~~tt Pe~ka eF-d Recro~tiot- ~~ tic ~43~-T~4 i ~-7~ aMp T® o~ l~lray f3~h Prices and R~ctt ~: 'tlm ~ ~c 7,~3-728'8 atl'fQe: 2~72tf8 R~ ~~+p~ I~R1M R~4G ~,y y Deecrtptlon lR,s~- Tfid1 $ Raul PAkn Ftcry~ 2~~ CT.~i. r~reav~ ~d 7,5~.~lQ BQ.~ i~pisoe_ labor, 4s~eyrpo-i~fon, ct3eti ltd d~spc~ !~ ~uded- 'll~n~c you for ~ c~paAur-i{y m present mts ea~imaie. TQi~I ~,o~aao Terms: 50°Xo DC?~1VN ~iLANG~ sign~tara UPOM ~1VipLETiC~l~linitiais Ahons ~ Fmk ~ E~iir 36123 6869 Ss124s 3688 nt3C~t.n~# iNeb Side w+arw.d~ar~eri.com b0 3JCd 69ZLEbZ 9T~EZ L00Z/bZ/50 [IT4 OF DELRR~ F'~~'"' DELRAY BEACH All-America City 1 1993 MEMORANDUM 2001 TO: Chevelle Nubin, City Clerk FROM: Joe Weldon, Director of Parks and Recreation SUBJECT: Replacement of Royal Palms DATE: May 31, 2007 The attached quote of $50,050 is for the removal of seven (7) and the replacement of eight (8) large royal palms (30' of gray wood) that were damaged by hurricanes at Old School Square and along Seabreeze Avenue. One (1) tree will be replaced at Old School Square and seven (7) on Seabreeze Avenue to match the approximately 70 large royal palms along the street. Funding was approved by the City Manager at mid-year and transferred from prior year surplus to the Beautification Fund. r.e ~~ ~, Jo` Weldon Director of Parks and Recreation Attachment cc: Doug Smith, Assistant City Manager Lanelda Gaskins, Agenda Coordinator Ref:replpalms Pnnled on Rec ue 7 "aper X99 L53 ~td.Sa~lt~ A~elra~ BeaeL, Ft X3446-9711 5fi1~~~6.~'~7Z ~'~.: SGI.~4b.1778 B~'I'o rte oFr~el~y ton N.w_ 1stRv~eaue t)ear~y 8~cir, t~ 33aa~ ! . .Cotttec~ 3TPHF~IS S1td0YAit~ 5H 1.7+13.1281 Nwti~rsr: O11~s"73i 4~d Hfmtber; ibQYAi. PALM , R~AIR Rt+od~ ~ior1 ROR21S1N ~Yf1E. PA[JIA 3d'GW 1~f0 R£~OVi_ T RaYAL & ['Ui~RP'I QiJt~lfP sMFPing Met~wd: ~a~lner~i M~4nod: Credo Team. Cwrime~ QRtCE Bt18.tEG'i' TO CfiAtuC-+E ~-"rER 9€1 DAYS L?F P3toP03~_ st~1SS1Q1V PER14B1' gY OTHER i`14T RESPQNSIBL.E FC?R ti77UTY , 1RRlC3ATtoN ,AS~PHALr ~1EAAG~D 9 ~ctEitg Eftttt Prins ~reded &~ EACH 5,9Q0 ~d 4<i,800.OQ 7.Wa EACH T~.dDQ SHOD DiscvenR ~4fnoutrt fiete ~O~ 50.06(1.8Ef ~Aisoetlaa~ecus Ghasges sMppsr~ c~gas szles lax Total '.~,0.{U.~ ~'a l3LGT'9Bfr'T9S oouo~ ~9i ~ED LO Y~ 'aid Z0 39t1d 69ZL6bZ 9I=ET L00Z/bZ/50 PROP~~.. ate: sc3os Sbig To ~x~ you 1vw. t~.avenue f ate! Bead ~ X444 Cam fiTPHEl~3 3ENQVAlN Saies t~ep_ Jack Rivard MEMORANDUM TO: MAYOR AND~CITY COMMISSION FROM: Joseph Saffo~, Fin e Director Guy Buzzelli, CIO ~` THROUGH: CITY MANAGER \ ~}-. DATE: May 29, 2007 SUBJECT: AGENDA ITEM# V• Y • ~ -REGULAR MEETING OF JUNE 05, 2007 SAN MIRRORING WITH VMWARE VIRTUALIZATION SOLUTION ITEM BEFORE COMMISSION: City Commission is requested to approve the purchase of SAN Mirroring with VMware Virtualization Solution (to include hardware, software, service and installation as outlined in the attached proposal) from Dell Incorporated for the amount of $448,086.02 per State Contract Number 250-000-03-1. BACKGROUND The City currently operates on a "single server" environment consisting of 46 individual servers that contain individual network applications and data storage. We recognize this environment as the primary area of weakness in our system as all our servers are in City Hall. Currently we do not have redundant servers in our secondary site at the Police Department. In our single server environment, if any individual server fails or needs to be taken down for maintenance or upgrades the applications and data will not be available for the period needed to recover that server. A SAN unit is a storage area network system that centrally stores all data files from current individual data servers. By locating one SAN unit in City Hall and the other SAN unit in the Police Department this will give us full redundancy of our data with mirrored units. We will replace our current 46 servers with 8 virtual servers, 4 of them in the Police Department and 4 in the City Hall. This solution will allow us to do "snapshot" backups that are done on-line during the day so that systems do not need to be brought down for such backups. We feel that this system presents acost-effective, cost savings solution to our goals for system capacity, redundancy, daily backup and business interruption business recovery plans for the distant future. We consider this project critical with high priority. In addition, this solution is critical to the continuation of our IT operations as we move to the new hurricane-hardened IT building. Three vendor proposals were received as follows: Dell Inc. $448,086.02 CompServ, Inc -Hewlett Packard $470,232.29 Champion Solutions Group -IBM $570,237.22 FUNDING SOURCE A budget transfer from the Insurance Fund to the Capital Improvement Fund for the amount of $448,086.02 will be prepared with the funds set up in account # 334-6111-521-64.11 RECOMMENDATION: Staff recommends Commission authorization for the purchase of SAN Mirroring with VMware Virtualization Solution from Dell Incorporated in the amount of $448,086.02. Encl: Vendor quotes /zla Cc: Chevelle Nubin, City Clerk +~ a~ a~ t ~ ~ v Z m f0 E ~ E a~ ~ ^ ` o ° ~. c _ a~ U ~ '. © Copyright 2007. Dell Inc. All rights reserved. Confidentiality All information supplied to City of Delray Beach for the purpose of this proposal is to be considered Dell confidential. 1.0 2.0 3.0 4.0 5.0 6.0 7.0 Overview and Shared Objectives ........................................................................ 3 Project Scheduling .............................................................................................. 4 Project Scope and Definition .............................................................................. 4 Deliverables ........................................................................................................ 8 Assumptions ........................................................................................................ 9 Dell Personnel Skills &Qualifications ............................................................. 11 Payment Criteria ............................................................................................... 12 City of Delray Beach VMware and Exchange Migration 1.OOverviewand Shared Objectives The City of Delray Beach has the overall objective to consolidate and migrate the current 48 physical servers from their current location to a newer location with Dell Hardware and SAN storage. They also wish to construct a secondary site for a disaster recovery situation. Dell would like to propose following services to the City of Delray Beach: • VMware Infrastructure Design and Deployment services based on a Virtualization Readiness Assessment conducted of their 48 servers • Exchange 2003 Implementation and Migration VMWare Design and Deployment VMware Design and Deployment services will be provided for Forty Six (46) servers (excluding the Exchange 2003 infrastructure). Exchange 2003 Implementation and Migration Migration and Implementation services will be provided for the Two (2) Exchange 2003 servers. The current Exchange infrastructure will be migrated to new Dell servers and DeII~SAN storage The customer's current Exchange 2003 can be summarized as: Messaging Environment Information 8 Prerequisites ,. Messaging Versions in use Exchange 2003 Client Versions Deployed Outlook 2003 Number of Mailbox Users 750 Number of Messaging Servers 1 front end server, 1 back-end server Number of Locations with Messaging Servers 1 Messaging Dependent Applications None Exchange Organization Mode Native Exchange 2003 Active Directory ("AD") Forest(s) and Domains Single AD 2003 domain AD Domain Controller Versions Windows 2003 SP1 or higher Mailbox data (local storage) 130 GB 07.3.£3.070215 Page 3 2.0 Project Scheduling VMWare Design and Deployment Design and Migration planning (up to 46 servers) 3 days Validation 5 days Deployment 5 days P2V Migration (46 servers) 20 days Exchange 2003 Implementation and Migration 3.0 Project Scope and Definition Dell will perform services with the following phased approach: VMWare Design and Deployment Phase I: Pre-engagement kick-off call (offsite) A Dell Project Manager will conduct a conference call to discuss the following items: • Review proposal content and timeline • Introduce key personnel involved in service delivery (Dell and Customer resources) • Review logistics of on-site visit • Confirm all hardware and software pre-requisites have been met a~.3.~.0702~~ Page 4 Phase II: Design (3 days - onsite) The Design phase is designed to align City of Delray Beach's business and technological goals with capabilities inherent to the virtual infrastructure and provide a blueprint for deployment. Using information and recommendations gathered from the Virtualization Readiness Assessment, Dell will perform the following tasks: Design Sessions Dell will conduct at least one large group planning session and several 1:1 sessions with Customer key stakeholders focusing on: • Security • Storage • Operations • Facilities • Alert monitoring • Application support team • Networking • Business Continuity Design Deliverables Dell will encapsulate the recommended VI3 architecture and required design features gathered during the design sessions in the VI3 Build Blueprints. The Blueprints encompass both the requirements collected and Dell's recommended build specifications. The blueprint documents will include items such as: Virtual Center Design Virtual Center Management Server Virtual Center Database Network Connectivity Virtual Center Datacenters and topology Minimum ESX Server Requirements (up to one server chassis) RAM Network cards Storage Adapters PCI card layouts Storage Partitions Virtual Network Layouts (as networking pertains to the Virtual Infrastructure) Physical layouts between network gear such as: server network cards, switches, routers Logical networks including subnet and VLAN requirements Storage Layouts (as it pertains to the Virtual Infrastructure) Logical and Physical diagrams of recommended storage layouts Size and Number of shared VMFS Volumes and/or Raw LUNS Migration Storage Paths for Side by Side upgrade a7.a.a.o7o2~5 Page 5 VI3 Assembly and Configuration Guide Instructions for creating and deploying ESX and VirtualCenter servers (up to one server make and model with one specific PCI hardware configuration) Development of a repeatable installation process for ESX Server using ESX Server's built in installation toolset. The process will be created for a single hardware configuration and single PCI card layout Manual, step-by-step installation instructions Local Disk Partitioning EXT3 SAN Partitioning (If booting from SAN) Bios and firmware settings PCI peripheral layout; or use of on-board peripherals HBA Setup VMNIC and BONDS VirtualCenter Installation Instructions VI3 Test Plan Dell will develop a test plan to exercise the new VI3 environment. Testing the new environment will ensure the validity of the proposed design and ensure all equipment and software performs as required. The VIM Test Plan will include items such as: VI3 tests VMware HA DRS Network HA Dell will only test the Virtual Machines to a level of startlstopping/rebooting, correctly booting the Operating system and basic connectivity to the network. No application level testing wil! be pen`ormed. Phase III -Validate (5 days - on site) Dell will validate the proposed Design in the City of Delray Beach non-production lab environment. The results of the Validation phase will be reviewed and the Design document will be adjusted as needed. The next phase will commence after the conclusive success of the Design validation and final Deployment plan. VI3 8 P2V Validation This service will provide the Customer with an onsite validation and knowledge transfer around physical to virtual server migrations using VMware ESX Server, VMware VirtualCenter Management Server, and VMware P2V Assistant (the "Service" or "Services"), as set forth more specifically in this Service Description. VMware VI3 overview. Up to Two (2) ESX Servers and one VirtualCenter Management Server Implementation. VMware VI3 demonstrations. VMware P2V overview. P2V demonstrations. VMware P2V best practices. VMware P2V migration environment setup. Proof of concept: practice migration of up to four (4) physical servers. VMware P2V troubleshooting. Wrap up and next steps. 07.3.£3.070215 Page 6 Pre-Deployment Checklist 8 Review The results of the Validation phase will be reviewed and a "go/no-go" for production deployment will be agreed upon. The Pre-Production environment will become a VI3 Production infrastructure at the completion of this Engagement. Phase IV -Deploy (5 days - on site) The VI3 Deployment phase is designed to augment the design phase by deploying the Virtual Infrastructure from the blueprints and documentation created in the VIM Plan. Production Deployment The validated architecture will be implemented in the full scale production environment. This will include: • Installation of up to Four (4) ESX 3.x hosts per customer site (primary and secondary sites - 8 servers total) based on the design and validation phases. • Integration with already deployed backup technology (using VMware Consolidated Backup) • Installation of One (1) Virtual Center Management Console in a guest Virtual Machine per site Phase V -Migrate (20 days - onsite) Physical to Virtual Migration Dell will assist City of Delray Beach in P2V migrations of up to forty -six (46) physical servers. Exchange 2003 Implementation and Migration Dell will perform services with the following phased approach: • Install Two (2) new 2003 exchange servers (one front end and one back end server) • Migrate up to 130 GB of data from old exchange 2003 environment to new exchange 2003 environment • The data will be moved over the WAN links to the new SAN/Exchange Environment Onsite Phase Key Services and Tasks Role Week and/or Offsite Day Initiation •Pre-installation and Sr. Consultant 1 Day • Onsite and planning tasks Planning a~.a.~.o~az~~ Page 7 Phase Key Services and Tasks Role Week and/or Day Onsite'1 Offsite Delivery Installation of 2 New Sr. Consultant 6 Days • Onsite Exchange servers • Configuration of 2 new Exchange 2003 servers • Migration of Existing Exchange mailboxes to new environment (up to 130 GB of data) • Knowledge transfer and testing Closeout • As Deployed Docs Sr. Consultant 2 Days • Off-site As used in this proposal, "Knowledge Transfer", "Demonstrations" and "Documentation", and alf references thereto, and the pricing quoted herein specifically exclude any Dell Training and Certification Services. Knowledge Transfer outlines only an informal transfer of basic knowledge of the Dell services from the on-site Dell engineer to Customer's local contact or IT representative. Dell Training and Certification Services offerings are available by Customer subject to a separate price quote. 4.0 Deliverables The following is a list of deliverables that will be provided under this proposal subject to time authorized through this agreement. If this agreement includes anot-to-exceed hour limit that is not sufficient for completion of the deliverable list, more time for completion will require Customer authorization via the Change Control process described in Section 6.0. Dell shall not be liable for completion of deliverables if Customer does not authorize such additional time. VMWare Design and Deployment • As-built Design documentation • Installation of up to Eight (8) ESX 3.x hosts (4 per site) • P2V migration of up to Forty six (46) servers 07.3.II.47Q215 Page 8 Exchange 2003 Implementation and Migration • Installation of up to Two (2) Exchange 2003 servers • Migration of up to 130 GB of mailbox data 5.0 Assumptions Dell may make certain assumptions while specifying the Services and deliverables detailed in this proposal. It is the Customer's responsibility to identify any incorrect assumptions or take immediate action which will make all of Dell's assumptions correct. Dell has made the following specific assumptions while specifying the Services detailed in this proposal: VMWare Design and Deployment • The necessary ESX 3.x server hosts are racked/stacked • The DeII~EMC shared storage system has been deployed by a certified DeII~EMC technician • Application testing in the virtual environment will be the responsibility of the Customer's staff. Dell will only test the migration at the level of starting/stopping the virtual machines. • Customer's IT staff are available to support migration efforts • Customer has procured all software licenses (ESX Server, Virtual Center and VMware Converter Enterprise) prior to consultant on-site visit • Slowness of customer's network may slow down speed of P2V migration. This may result in the authorization of additional time via the Change Control Process (Section 6.0) • All critical data has been backed up prior to consultant visit on-site. Dell will not be liable for any data loss during the length of the engagement • Dell assumes a minimum connection of 1 Gbps per second between facilities in order to conduct migration • A single resource can conduct between 2-3 P2V migrations per day Exchange 2003 Implementation and Migration • This proposal does not include: o Unified Messaging services, or integration with Digital PBX systems o Archival, journaling or discovery o New Active Directory design or consolidation from Windows NT o Any migration services for Exchange 5.x to Exchange 2003 o Any Assessment or migration planning consideration of non-Exchange messaging systems such as Notes, GroupWise, SendMail, etc. other than what is expressly defined in this proposal o Offline user data stores including mailboxes (e.g., ".pst" files) o Any end-user client machine software or configuration o Additional applications such as: instant messaging, collaboration, fax, backup/restore, data synchronization, systems management, account provisioning, o~.a.B.o~o2~ ~ Page 9 setc. o Active Directory remediation or troubleshooting. The existing AD architecture must be a healthy Windows 2003 Active Directory and meet the minimum requirements for installing Exchange 2003 o Outlook client deployment, profile configuration o Configuration of message policies enabling a-mail archival and journaling (unless otherwise specified in the proposal body) o Compliancy with government programs such as HIPAA, SOX, etc. (unless otherwise specified in the proposal body) o Microsoft Forefront services design or configuration • Key customer staff will be available for project meetings, round table discussions, and individual interviews, as needed. • Dell will be granted access to systems and documentation as needed. • Customer's data center will have sufficient power and cooling as needed for the hardware. • Customer will perform complete back-up of all data prior to project start date. Dell is not responsible for any back-up of data or for any data loss during the course of this proposal. • Dell is not responsible for Active Directory account creation and provisioning, including any synchronization between Active Directory and other directory services, such as Banner or LDAP-directory on campus. • The Exchange SAN will be configured by either EMC or Dell's EFD services organization prior to the Install phase of this engagement. This install will include all necessary LUN configurations for Exchange as well as any add-on software products which interact with Exchange, such as SnapView, Replication Manager, etc. DPS will not be responsible for any SAN configuration nor SAN software. • Mailbox migration will occur during normal business hours customer time, unless arranged and agreed to otherwise by the Dell Project Manager, Dell Consultant(s) assigned to this project, and the Customer project sponsor. • Dell is not responsible for project delays caused by customer facility or personnel challenges. • Customer understands and accepts that users will be unable to access their email and calendar data while they are being migrated. Users who object to temporarily being unable to access their data may be excluded from the mailbox migration phase of this project. 07.3.23.D70215 Page 10 6.0 Dell Personnel Skills & Qualifications Dell, will, at its sole discretion, determine the number of personnel and the appropriate skill sets necessary to complete the Services. Customer understands that Dell resources may include employees of Dell and/or a service provider or subcontractor to Dell. Dell personnel may work on-site at Customer location or off-site at a Dell or other location as determined by the needs of the Services. Dell has identified the following initial resource levels for these Services: Project Manager - PM The Dell Project Manager serves as the single point of contact (SPOC) for Dell project delivery and is responsible for assuring that the best possible solution is defined and implemented successfully for our customers. The Project Manager maintains constant focus on project timelines, resources, risks, issues and activities to ensure that quality deliverables are created and completed on budget and on schedule as defined by Statements of Work. Some specific tasks that are the responsibility of the Dell Project Manager include: • Plan and manage project schedule and budget • Plan and manage project communications • Plan project resource needs, determine resource assignments, review/approve hours • Manage the Customer relationship • Manage project team • Schedule and lead project kick-off, status meetings, quality reviews and closeout • Report project status and communicate with Customer contact on a regular basis • Provide project scope management • Process project change requests • Manage and monitor project risk/issues/escalations • Track and status progress against milestones • Assist with requirements definition • Assist with development of deliverables • Review/Approve deliverables Senior Exchange Consultant: It is the responsibility of the Technical Consultant to: • Understands Exchange technology and product requirements • Have demonstrated experience and knowledge in Exchange set-up and configuration • Be familiar with industry standards and vendor specifications • Participate in planning review sessions when designated Senior Virtualization Consultant It is the responsibility of the designated Virtualization Consultant to: • Provides technical direction and expertise • Understands server architecture, technology and product requirements • Oversee day-to-day execution of tasks • Coordinate with Project Manager & Executive Sponsor to ensure barriers are removed • Develop and assigns tasks o~.s.a.o7o21~ Page 11 7.0 Payment Criteria Service Fees: The estimated cost for this project is $92,500 (including expenses) NOTE: The price listed above is an estimate that should be used for budgetary purposes only. Please contact your Dell account team for an official Statement of Work and quote. o~.s,a.o~o2~ ~ Page 12 Customer Nam® Customer Number Date CITY OF DELRAY BEACH 1015934 o4r2orzoo7 ~ • TYCO LC f ~ . . 1 1 360050034 4237287 , , 5M MULTi-MODE FC CABLE LC- Customer Install 81,470.65 2 1 360028470 0 Dual Core Xeon Processor 5130 4MB Cache, 2.OOGHz, 1333MHz FSB, PE 2950 4,824.02 3 1 360029859 p Quad Core Xeon Processor E53102x4MB Cache, 1.60GHz, 1066MHz FSB, PE2950 61,191.65 4 1 360028426 0 Duai Core Xeon Processor 5150 4MB Cache, 2.66GHz, 1333MHz FSB, PE 2950 11,293.00 5 1 360026933 0 NEW NO MAINT REPLiSTOR WORKGROUP 9,389.96 6 1 349942098 p ARCSERVE BKUP 11.5 WIN PROD+IYR ENT MNT 1,971.80 7 1 359967048 4236926 QLogic 2460 4Gbps PCI-E FC HBA 80,114.62 8 1 360029624 0 Quad Core Xeon Processor E53102x4MB Cache, 1.60GHz, 1066MHz FSB, PE2950 51,191.65 9 1 360029986 0 ML6020 Control Module, LTO-3 14U-R 38,308.67 10 1 360030276 0 Enrollment - VMware infrastructure 3: install and Configure 5,830.00 Product SubTotai 355,586.02 Tax 0.00 Shipping & Handling 0.00 "`Total Purchase Price 355,586.02 (* Amounf denoted in $) LucianoGarza ~ 1-800-576-6038 Luciano_Garza@Oell.com ~ 44721 .~^ ~r ~~. -,wow.:' calability ache apacity i ront End rive Inte Connectiv rface _... __ annections nr~~~~~~uwui~~ and Drives Supported ower Supports up to 8 additional disk array enclosures (DAE4P) for a total of 60 drives in the storage array Up to 4GB Cache with automatic write cache destaging 30T6 with SATA II Drives (60 Drives) Four front-end optical ports and 4 iSCSI ports per array Dual, independent FC-AL interface ports on each drive Failover from each storage processor to both fibre channel loops is possible Navisphere Manager: complete con#iguration, management and event notification. Access Logix :Data protection, shared storage access, and security for heterogeneous SAN environments SnapView: Point-in-time view of information for non-disruptive backup MirrorView: Synchronous or asynchronous data mirroring to other Dell ~ EMC arrays SAN Copy :Migrate or distribute data within the SAN fabric 4 Direct Attached Servers Up to 128 SAN connected servers 73GB, 146GB and 300G6 2Gbit Fibre Channel Interface 73GB and 146GB 4Gbit Fibre Channel Interface SOOGB SATA II Drives 47-63Hz, 4800VA@200V, 5760VA@240V 20o-240VAC +/-10% Single Phase Dual Inlets NEMA L6-30P or IEC309-332 or IP-57 (Australia) DPE DAE4P Form Factor: 2U Form Factor: 3U Height: 8.3ficm (3.4in.} Height: 13.3cm (5.25in.) Width: 48.1cm) {18.9in.) Width: 45cm) (17.7in.) Depth: 80.2cm (31.6in.) Depth: 35.4cm (14in.) ,~ Brocade Ports on Demand Fibre Channel Switch . ..: .. y.. ~ - ~ .:.. .... . , . , 4100 SW200E • . Up to 32 Ports (16124!32) Up to 16 Ports (8!12116) ... r. Yes Yes "' x•~• 1 ^ 32x32 16x16 .. , 4Gbls, 2Gbls or 1Gbls FC 4Gb/s, 2Gbls or 1Gbls FC ~#. 'ILIA Processor(s) Front Side Bus L2 Cache. Chipset Memory PCt slats 5000: 667MHz or 1066MHz 5100: 1066MHz or 1333MHz 5300: 1066MHz 5000 Series: 2x2MB L2 Cache 5100 Series: 4MB L2 Cache 5300 Series: 2x4M6 L2 Cache Intel SOOOX Chipset 8 Sockets support up to 32GB Fully Buffered DIMMs (FBD) 3 PCI slots {3 X 64bit1133MHz PCI-X or 3xPCl Express (1x4 and 2x8 lane width) PERC 51i (optional): SAS 3.0 Gb/s RAID controller with Intel IOP333 processor and 256MB cache; SAS 5/i (base): 4 port 5AS controller with ARM966 processor (does not support RAID) Optional PERC 4e/DC (dual-channel PCI Express RAID controller); Optional PERC SIE adapter for external RAID storage 3 hard drive base options: 8 x 2.5" Hard Drive Option: 2.5" HD Option: up to 8 SAS HDs (10K) 4 x 3.5" Hard Drive Option: 3.5" HD Option: up to 4 SAS (10KI15K) or SATA {7200) drives 6 x 3.5" Hard Drive Option: 3.5" HD Option: up to 6 SAS (10K/15K) or SATA (7200) drives Peripheral bay options: Floppy Drive, DAT72 Tape Drive (not available with 6x3.5" hard drive base) Slim optical drive bay with choice of CD-ROM, DVD-ROM or Combo CD-RWlDVD-ROM Hot-plug hard drives; hot-plug redundant power; hot plug redundant cooling; ECC memory; Spare Row; Single Device Data Correction (SDDC); PERC 5/i integrated daughtercard with battery-backed cache; high availability failover cluster support; DRAC 5/i; support for internal tape device; tool-less chassis; cluster support 2.5" SAS (10k rpm): 36GB or 73GB hot-plug hard drives 3.5" SAS (10k rpm): 73GB, 146GB, 300GB hot-plug hard drives 3.5" SAS (15k rpm): 36GB, 73GB, 146GB hot-plug hard drives 3.5" SATA (7.2k rpm): 80GB, 160GB, 250GB hot-plug hard drives Dual embedded Broadcom NetXtreme II 5708 Gigabit4 Ethernet NIC with fail-over and load balancing. TOE (TCPIP Offload Engine) supported on Microsoft Windows Server 2003, SP1 or higher with Scalable Networking Pack. Standard 750 Watt hot-plug power supply; Optional redundant 750 Watt hot-plug power supply; Auto-switching universal 110/220 Volts Integrated IPMI 2.0 Base Management Controller DRACS/i for accessing the system independent of the OS status Dell OpenManage Embedded ATI ES1000 with 16MB memory Form Factor: 2U Front mounted LCD alphanumeric display shows error messages and codes and illuminates different colors to indicate system Two Quad-Core Intel Xeon 5000 sequence processors with up to 3.OGHz clock frequency or two Dual-Core Intel Xeon 5100 sequence processors with up to 3.OGHz clock frequency status Dell PowerVault ML.6~20 GM Tape ~ibrary_ 36, 82 or 128 cartridges (expandable to 40d cartridges with Expansion Module) (18 Mailbox Cartridges) . ~~~ , - 51.2TB . ~ 8DMBIs Native LTO3 160MB/s Compressed LTO3 _ II _ . 288GB/hr Native LTO3 - ~ 576GBlhr Compressed LTO3 • _ .. - .. _ 400GB/800GB (LTO3) Operator Panel Password-protected, context-sensitive LCD menu display with backlight Remote Management via Web Interface MTBF: Greater than 250,000 power on hours MTTR: Less than 30 minutes LVD SGSI Optional embedded 2Gbls fibre channel router enables fibre channel interface ^..- 350W Power: Redundant power supplies available Form Factor: 14U Height: 61.9cm (24.4in.) Depth: 79.8cm (31.4in.) Width: 44.2cm (17.4in.) Up to 6 LTO3 Drives 1 EMC MirrorView provides highly available data storage across campus, across the state or across the globe. By maintaining synchronous or asynchronous data mirroring between DeII/EMC CX arrays, MirrorView helps ensure data availability for important business functions. MirrorView is an array based application, minimizing the impact to your server while maximizing data uptime. MirrorView also integrates with EMC SnapView point-in-time snapshot software. Together, MirrorView and SnapView provide a unique solution for online data availability and disaster recovery. MirrorView is easily configured and managed from within EMCs Navisphere management software. In a MirrorView/Synchronous (MirrorViewlS} configuration, a server writes to the source array, which records the data and synchronously writes the same data to the target DelllEMC array. An acknowledgement is sent back to the server once the data has been written to both the source and target arrays, ensuring a complete transaction record on both arrays. In a MirrorView/Asynchronous (MirrorView/A) configuration, a server writes to the source array, which immediately acknowledges the write. The data can then be written to the target DeII/EMC array in the background, decreasing the original write time and eliminating the distance requirements of MirrorView/S. The resulting mirror can be used for fast failover to the target site. Restore, rather than recover, with fast restart from disk MirrorView/S Option By creating a synchronous mirror between #wo DeII/EMC arrays, MirrorViewlS maintains an exact byte-for-byte copy of your production data in a second location. The mirrored copy can be used for failover, online restore from backup and running backups against a SnapView snapshot of the remote mirror. MirrorView/S helps minimize exposure to internal issues and external disaster situations, and is designed to provide fast recovery time if a disaster does strike. Data is protected throughout the entire mirroring process. Fracture logs track changes and provide a source for restoring modifications to source data in the event that the source array loses contact with the target array during a failure. When the target array returns to availability, the pending writes in the fracture log are written to the target array restoring its consistent s#ate. Awrite-intent log is also kept in the unlikely event of a source array issue. Upon repair of a source array, MirrorViewlS wi11 access the write intent log to make any changes that were in process between the two arrays during the failure, to the source data. Then, a partial re-sync with the target array can take place to return to a consistent state between the source and target arrays. MirrorView/S now offers a new feature called Consistency Groups, which helps ensure consistent remote copies of data from one or more applications for disaster recovery purposes. Inter-related LUNs stay in sync and are recoverable in the event of an outage at the primary site. All LUNs in Consistency Group must reside in same array. There can be up to 8 LUNs in a Consistency Group on a CX400 or CX500, and up to 16 LUNs in a Consistency Group on a CX600 or CX700. MirrorViewlA Option MirrorView/A provides the ability to mirror data over long distances and help reduce network costs. Its ability to help reduce bandwidth requirements and minimize data exposure lies in the Delta Set architecture. MirrorView/A Delta Sets are disk-resident collections of writes that have occurred within a specific period of time. In addition to providing consistent restartable images at the target site, Delta Sets reduce the bandwidth needed between sites in two ways. First, if the same data is overwritten several times within a Delta Set, only the latest version of data is sent. Second is the ability to size your communication links to your average write workload rather than your peak workload. MirrorView/A also supports the array level Consistency Group feature. Remote data replication and system-based software MirrorView operates an the DeII/EMC J r array. By off-loading the mirroring process from the server to the array, the server is free to service application I/Os, instead of managing the data replication process. Because the DeII/EMC arrays are redundant, MirrorView operation is protected from a server failure. MirrorView can also be used to consolidate information to one centralized DeIIIEMC array for centralizing remote processes such as backups, decision-support queries, simplified disaster failover and remote data bunkering. MirrorView allows you to mirror up to four source arrays to one target array. These source arrays and target arrays can be in different locations. MirrorView provides for bi-directional mirroring. That means each DeIUEMC array can be both a source and a target to other DeII/EMC arrayshelping to make information available wherever your business requires. Concurrent mirroring capability of MirrorView/S enables you to synchronously mirror one source LUN to two different target DeII/EMC arrays. This is particularly helpful when business requirements dictate having a Gold Copynot part of any other activities or processesand another copy of the production data for parallel processing activities, such as backups or decision-support queries using SnapView. (MirrorView/A supports only one target LUN per source LUN.} Flexible choices for deploying MirrorView MirrorView enables long-distance remote mirroring through the same Fibre Channel switch that you use for your hosts. Depending on the distance between your two sites, you can use several options for FC-based mirroring for distances up to 60 km: Short Wave GBICs, Long Wave GBICs, Optical Link Extenders or Dense Wave Division Multiplexers (DWDM). DWDM extends MirrorView over Fibre Channel synchronous or asynchronous disaster restart capabilities up to 200km. DWDM enables you to multiplex MirrorView sessions with other DeII/EMC arrays over a single redundant Fibre Channel path. In addition to the high throughput and low delays enabled by Fibre Channel, connectivity costs can be reduced in this configuration. In addition, MirrorView/Asynchronous enables you to utilize existing WAN/1P bandwidth for maximum. s . ~ • - As part of Dell's Scalable Enterprise strategy, Dell offers server ~gµ ~ ~ t°''" virtualization solutions based on Dell PowerEdge servers and ~_:~. ~ ~ ' `' Y"~ ~'~` VMware ESX Server virtualization software, aimed at delivering leading pricelperformance, risk mitigation, flexibility, and an improved customer experience. VMware Technology VMware ESX Server is virtual machine software for partitioning and consolidating systems. Deployed on Dell PowerEdge servers, VMware ESX Server allows the user to create multiple "virtual machines" on a single physical server, each of which is then able to run a separate operating system and applications, without interfering with other virtual machines on the physical server. VMware VirtualCenter management software provides a central point of control for your data center's virtual compu#ing resources. It is acost-effective, highly scalable virtual machine platform with advanced resource management capabilities. VMotion technology enables the live migration of a running virtual machine to a different physical server without service interruption: allowing for fast reconfiguration and optimization of resources without impacting users. The Value of Dell and VMware Virtualiza#ion Solutions Dell recommends deployments of VMware ESX Server built on multiple 4-way industry- standard server building blocks, instead of larger proprietary SMP systems. By deploying VMware ESX Server on multiple 2-way and 4-way servers and leveraging the new VMware VMotion virtual-machine migration technology, DeII's solution aims #o deliver multiple benefits not available on single, larger SMP system-based VMware deployments: Risk mitigation: Virtual machines distributed among multiple smaller servers mitigate the impact of a hardware failure, compared to deployment on a single large SMP system. When one of a group of servers fails, only that server's virtual machines are affected. In the single large system scenario, a server failure would affect all of the virtual machines hosted by that server. Expansion flexibility: A VMware deployment based on smaller building blocks permits a more granular "pay as you grow" approach to expandability, whereby the user can add server capacity via smaller 4-way servers, as opposed to larger 8-way (and larger) systems. Operational flexibility: A VMware deployment based on multiple Dell PowerEdge servers and shared Dell ~ EMC storage, in conjunction with VMware's VMotion technology, allows the user to migrate virtual machines live, in real time, from one physical server to another. Virtual machines can be moved from server to server to respond to changes in workload demand, as well as to permit hardware upgrades or maintenance. Recommended Workloads Dell's server virtualization solutions are targeted towards specific workload deployments where they offer the most compelling value: Test and development environments: VMware virtualization software running on Dell PowerEdge 6650 servers can help a customer to consolidate multiple 1 and 2-way test and development servers onto fewer physical machines without sacrificing flexibility or functionality. Application consolidation: As a result of the paradigm of "One Application/One Server" common in server environments, many customers today are concerned about underutilized servers -those dedicated to non-mission-critical applications that are either run infrequently or when run, require only a small percentage of the server's capacity. VMware virtualization software on Dell servers allows customers to consolidate multiple legacy or underutilized applications onto fewer physical machines. with the goal of lowering complexity and TCO without compromising stability or security. M Dell and VMware Suppr~rt Services The Dell best practices configurations for VMware represent ideal solutions to be supported end-to-end by Dell, EMC, and VMware. These configurations include Dell's Gold level enterprise support by default and therefore allow customers to take advantage of 7 x 24 telephone support, a technical account manager as well as seamless support between Dell, EMC and VMware. Dell supports the hardware. Through its Gold level enterprise support, DeIE wil{ seamlessly transfer customers to VMware support for software questions or issues (A VMware support contract is required} and Dell will track the overall resolution of an issue through its technical account manager. Dell ~ EMC supports the SAN. Through Gold level enterprise support, Dell and its key storage partner EMC will seamlessly support server and SAN questions or problems and will track the overall resolution of issues through the Dell technical account manager. VMware supports its software. For seamless support, Dell requires that customers purchase or maintain a Platinum (7x24) support contract through VMware in order to be supported for issues related to the VMware software. For seamless support between Dell, EMC and VMware, Del] recommends the Best Practices Configurations for VMware ESX Server and VirtualCenter Management Platform described above. Please contact your Dell representative to learn more about Dell Enterprise Gold level support, or refer to the support services section of Dell.com. VMware Licenses Dell has the ability to resell licenses for VMware products through Dell S&P (Software and Peripherals}, which include: VMware ESX Server 2 Licensed per CPU - 2 or 4 per PowerEdge Server Virtual 5MP Licensed per CPU (optional) VirtualCenter Server License for each Management Platform (Dell PE 1850 best practices config recommended above.) VirtualCenter Management Pack (per CPU) Licenses for all Managed CPUs VMotion Licenses (per CPU} for VMotion-enabled CPUs Purchasing both hardware and software from Dell allows customers to benefit from a single point of contact as well as a single point of purchase. Discounts can be combined, and the purchasing process can be greatly simplified. i~~j o~ v r - zi ~~~Q ~ ~~4 CompServ Solution Concept: VMWare Server Virtualizatioln Prepared for: Created by: Creation date: .,~ j.. ~ CompSe~ City of Delray Beach Jim Box 5.21.07 CompServ, Inc. 2325 Ulmerton Rd. Suite 16 Clearwater, FL 33762 Tel.: 727.299.9220 Fax: 727.299.9420 URL www.compserv.com The following is a proprietary document of CompServ, Inc. CompServ controls and monitors access to and the use of all information generated by this document to which the user has access, and retains the sole and exclusive right to make format and content changes without prior written notice. This information has been developed by CompServ for the client and it is to be considered confidential, with no release of it contents to third parties or recreation of it contents to be permitted without previous written consent of CompServ, Inc. No responsibility is assumed for errors or omissions in the information and no warranty is created by or through the use of this information. City of Delray Beach VMWare Server Virtuafization Table of Contents ~" CampS~rv~ SITUATION STATEMENT ........................................................................................................ 3 KEY OBJECTIVES ...................................................................................................................... 3 ASSUMPTIONS ............................................................................................................................ 3 SOLUTION CONCEPT ............................................................................................................... 3 PHASE 1 (ASSESS AND DESIGN~ ................................................................................................... 4 PHASE 2 (DEPLOYMENT OF THE POLICE DEPARTMENT VIRTUAL INFRASTRUCTURE ................... 4 PHASE 3 (DEPLOYMENT OF THE CITY HALL VIRTUAL INFRASTRUCTURE ................................... 4 PROPOSAL ESTIMATE.. .................................................................................................... 5 ©CompServ, Inc. CONFIDENTIAL Page 2 City of Delray Beach VMWare_Server Virtualization Situation Statement c~ The City of Delray Beach (CODE) needs to consolidate their server infrastructure and is planning to implement VMWare to move to a virtual server infrastructure. CODB does not have specific experience with VMWare and virtualization and would like to have the entire infrastructure built for them with a single point of contact for support. Key Objectives CODB would like to build a highly available virtual infrastructure to replace 45 of their existing physical servers. There will be a redundant virtual and SAN infrastructure at both the Police Department and at City Hall. The equipment at the City Hall datacenter will serve as a disaster recovery fail-over facility. All data will be replicated between the two locations on an active- passive basis. CODB is looking for aturn-key implementation resulting in a single point of contact for support. Assumptions 1. Client's existing environment will support the hardware included in this quote with regard to HVAC, power, UPS, fiber connecting datacenters, network infrastructure (30 1 gig connections), and rack space (6 servers and SAN) at each location. 2. Client project management resource will plan and coordinate all IT functions involving VMWare use. 3. Client resource is available to assist the consultant in connecting to the network and servers. The duration and support required will be agreed prior to commencement of the assessment service. 4. Appropriate client resources are available to participate in comprehensive review. The attendees, time, duration and location of the review will be agreed prior to commencement of the assessment service. 5. Appropriate client resources will be available to assist and participate in testing, validation and actual deployment of network equipment. 6. All existing network diagrams, configuration files and IP addressing documentation including but not limited to; all end point equipment, router configuration files, subnet and VLAN information will be provided to CompServ. Solution Concept CompServ and HP will provide CODB with aturn-key solution converting 45 of their physical servers to Virtual Machines (including Exchange). This will be accomplished using five (5) quad core dual processor DL380s attached to a EVA4000 SAN (populated with 4TB storage). This virtual infrastructure will be completely replicated at the City Hall datacenter. These two environments will be connected with dedicated fibre allowing for controller based replication providing high availability of the virtual environment. The approach to this project will begin with an extensive assessment that will result in a detailed deployement plan that incorporated CODB's applications requirements and industry best practice methodologies. ©CompServ, Inc. CONFIDENTIAL Page 3 City of Delray Beach VMWare Server Virtualization ~~~ `~carrrpserv'~_ Phase 1 (Assess and Design) CompServ will begin this project by completing a discovery process of assessing all of the servers designated for virtualization. Once the assessment is complete and the physical environment is sufficiently documented a deployment plan will be developed for the conversion of the physical servers to virtual servers. Working with CODB a timeline will be established that will allow for proper execution while minimizing risk and impact. Develop a test script for each physical server to ensure functionality post virtualization. Phase 2 (Deployment of the Police Department Virtual Infrastructure) CompServ will install and configure the new infrastructure in the existing racks at the Police Department datacenter. This will include the following: • Rack all of the- equipment • Connect to existing LAN infrastructure • Connect the SAN fibre (HP Service) • Install VMWare ESX3 • Carve out the SAN based on the deployment plan (HP Service) o Snapshot • Setup the tape library to server as temporary backup solution until the City Hall is completed • Install VirtualCenter Management Console • Test and validated virtual environment • Commence physical to virtual conversions based on the deployment plan (including Exchange Server) • Install and configure CA Brigtstor on each Virtual Machine • Test and validate virtual server functionality Phase 3 (Deployment of the City Hall Virtual Infrastructure) CompServ will install and configure the new infrastructure at the City Hall datacenter to provide a high availability site for disaster recovery fail-over. This will include the following: • Rack all of the equipment • Connect to existing LAN infrastructure • Connect the SAN fibre (HP Service) • Install VMWare ESX3 • Carve out the SAN based on the deployment plan • Implement the replication process and commence the data replication (HP Service) • Test and validate the fail-over virtual environment • Implement the production backup solution • Test and validate virtual server functionality ©CompServ, Inc. CONFIDENTIAL Page 4 City of Delray Beach VMWare Server Virtualization Proposal Estimate C~ ~,,,.,-„c~ Product Description Price HP: DL,880 Ciuad Core Dual Processor w/16GB RAM (10 Servers] $ 149,025.10: VMWare ESX Virtual Infrastructure 3 Enterprise Included HP~GL~60Dual Core Dual Processorw/4GB RAM{15ervQr) $ 9,493. VMWare VirtualCenter Management Console Included HP S#orage Hardware~EVA4000 and MSL4048 $ 111,999.65 HP EVA4000Storage Array4TB Included HP MSL4048 Ultrium9604GB Fibre Channel Library Included -HR anti nuous Acres, Command View and Snapshot Software $ b3,837.60 HP Services and Support SAN & Repli~tion Software $ 73,696.60 Comp~terASSOCates BrightStorARCserver(45Severs) $ 22,360.00: BrightStor ARCserve Backup for Windows v. 11.5 + 1 Year Enterprise Maintenance - 45 servers - Included Brlg tStorARCserve Bac up Agent or Microso t Exc ange or Windows v. 11.5+ 1 Year Enterprise Maintenance Included BrightStor ARCserve Backup Tape Library Option for Windows v. 11.5+1YearEnterprise Maintenance Included `Product Total $ 430,412.29 Service Description Price Phase,l- gs$ess and Design $ 6,820.00 Assess Physical Environment Design Deployment Plan and Timeline Develop Test Script Rhase 2-Police Department` $ 26,160.00 Build-out Equipment Install and Configure VMWare Install and Configure SAN HP Service Convert 45 Physical Servers to Virtual Servers Test and Validate PhaSQ 3 , .City HaH $ 6,840.00 Build-out Equipment Install and Configure VMWare Install and Configure SAN HP Service Implement Replication Solution HP Service Test and Validate ;_ CompBerv Seru~Ge Tota) ;.$ 39,820.00 Tota I $ 470, 232.29 ©CompServ, Inc. 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V~ V O N ~ N ~ m a~ m m c m m ~ m d t ~n ~ ~ a3 c`a > m ~ ~ ~ U ~ N .Q = N m U n y~~ E O d~ U W N~ _~ ~~ d CC L ~ ~ L ~~ m i_ -Q Q~ m d '~ W~ vmi ~ d ~ n, ~ N J ~p m N V d N ~ i~ U` ~ U N f6 0 0 N N N AGENDA REQUEST AGENDA ITEM NUMBER: ~ V Request to be placed on: X Consent Agenda When: Special Agenda Workshop Agenda Description of agenda item: Approval to purchase SAN Mirroring with VMware Virtualization Solution (to include software, hardware, and installation as outlined in the proposal) from DELL Incorporated for $448,086.02 Funding coming from account number 334-6111-521-64.11 Additional proposals were requested and received as follows: CompServe, Inc- Hewlett Packard $470,232.79 Champion Solutions Group -IBM $570,237.22 ORDINANCE/RESOLUTION REQUIRED: YES NO X Draft of Resolution Attached: YES NO Recommendation: Approval is recommended by Finance Director and CIO. ~~ n Department Head Signature: -___1 Determination of Consistency with Comprehensive Plan: A City Attorney Review/Recommendation (if applicable) Date: June 05. 2007 N/A Budget Director Review (required on all items involving expenditure of funds): Funding available: Yes X~ Funding alternatives (if applicable): Account Number: Account Description: Account Balance: City Manager Review: Approved for Agenda: Hold Until: Agenda Coordinator Review: Received: Action: No Yes No ,. Approved: Disapproved: P.O. # Delray Beach Police Department 3Q0 West Atlantic Aventae Delray Beach, Florida 33444-3695 (561) 243-7888 Fax (561) 243-7816 Joseph L. Schroeder Chief of Police MEMI~RANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: SHARON L'HERROU. ADMINIS"T'RA"I"1VE OFFICE ~~ THROUGH: CITY MANAGER DATE: MAY 30. 2007 ' StIBJEC'1~: AGENDA ITEM # y • V . ~ -REGULAR MEETING OF JUNE 4.2007 .! VEHICLE EOIiIPMENT ITEM BEFORE COMMISSION The Police Department requests approval of $79,483.20 to Emergency Vehicle Supply (EVS) for the purchase of equipment for the 10 vehicles added to the tleet earlier this year. Phis expense has been approved in the FY2006-2007 budget. The equipment includes: the light package, laptop mounts, speakers, driver's license swipe machine. printer shelf; dome lights, ignition override switch, emergency light package, restraint seats, graphics, etc. BACKGROUND At the l 1!7/06 meeting. City Commission approved the purchase of ] 1 vehicles to expand the Police Department's fleet and add to the number of take-home vehicles available (as required in the PBA contract). Those vehicles have been purchased and must be converted into standard police vehicles by the addition of the required equipment. Previously, this was done through a variety of vendors. 'T'he Police Department has reduced the total cost by locating one vendor that can complete all of the necessary work, customise the vehicles to our needs, and still otTer a lower rate. A number of vendors were contacted. but declined to provide quotes for this project. One vehicle was completed as a demonstration model, and now the Department is ready to equip the remaining 10 vehicles. FUNDING SOURCE A total of $81.515 is available and budgeted for this purpose in the following accounts: 001-2117- 521-64.20, 001-21 19-~? 1-46.3 l , 001-21 19-ti21-(14.20. 001-? 121-521-46.31, and OO 1-21 l 9-521- 64.20. RECOMMENDATION The Police Department recommends approval. Serving wrtlr P.R.LD.F.. I'rnJ'essiorralisnr, Respect, Integrity, Diversity and F.xcelle~rce Sold To: DELRAY Bf.,ACH FLEET DEPT'. 434 S. SWlNTON AVE. DELRAY BEACI~ FL 33444 ~. ~- ~ ~. ~ ~~ Invoice ~~ t 3 2tID7 I~dceNumber: 5410 ~,~ti~-'~" ';ti ~_~~:~-~- lrrvo~ceDate: Feb 9, 2007 ~t~, r ~ ~~„~ ~-, 3/ z ~o~ Page: 1 L (~ U-t1-3,t~~~t (~~ ship To: ~, ~' DELRA Y BEACH FLEET DEPT. 434 S. SWItdT'ON AVE. ' DELRAYBEACH, FL 33444 Customer ID Customer PO Payment Terms -' DELRA Y BEACH FLEET A'et 30 Days ~ Sales ~ 1D Shippfng Method Ship Date Due Date ~ ~'~ ~FO1 nvsTALL z~si~7 ~1A7 _ ___ _I Quantity Item Description j Unit Price j Extens 1. DG45-00180 SC LEGENDLIGHTBARPACKAG£RED/BLt1EV1~'ITH~ 1,795.00 ! 1,795.00, REAR AMBER (CLEAR LENSES) FTD bFAL rr+ 1. IK-CV92 . OOK KIT FORD 06/OJ CROWN VIC ~ ~bG.laGe@E~ i. 52000SM-SD SC SMART SIREN W/SML CNTRL i I 1. EMOTE MICROPHONE CABLE ! ~~ 2 1. CT-SB SC MICROPHONE ~ _ I. 0.501 SC ASI24 SPEAKER _ .,~~~ ~~~~ , -'~~s~lh y~!~ 1. (X501-00 5124 MDUN7'lIVG KIi' :' j I. 194053636464 SC MIN!-!LS B/S t~/R 343.28 343.28., 1. 9000 C RUMBLER I.OW FRCQUT:NCYAMPIJFIER, ~ 372.50, 372.50! IM ER SPEAKERS AND 07CV BRA(7CETS 1. 1022 SC RUMBLER SPEAKERS AND BRACKETS FOR '0.5 ~i o~o7cv I ! 1. CSWGBKT NG OVER BRACKET I 6S.Oa G5.00E 1. YS2133A OVA90WSTROBEKIT2-151J3U j 199. I99.9t5 2. ZHIDEC ROBE TUBE ~ Ib. 32.Oq 1. 6102 -06 SC HEA DLIG HT FLA SHER 05/D7 C V ~ 39.9 39.951 2. 202243 C TRIOPTIC V6 Ij/B 229.43 468.86 1. 1014-3i 'SC CLIDA 4PK LOWPRO B/W 171.93, 17L93' 1. 1014-45 SC R/C CUDA LED LIGHTS ~ 17I.93 ~ 171.93 1. OWER TAMER V OPELAND POWER TAMER VS j 69.95 69.95 1. SCELLANEOUS M770NOVERiDESYSTEMW/HEAVYDUTY ~ 89.9 89.95 r~~~ ~' ~~,t ei NOT GARAGE OCR ~ -al! °( 'Sal - ~ `/. 2C? Subtotal sales lax Freight TOTAI. Continued Continued Contiraied 4661 JOHNSON ROAD -SUITE 1 COCONUT CREEK, FL 33073 TeI.954-428-5201 * Fax 954-~28-5202 .invoice Irmoice Numb: 5420 Invaiae Date: Feb 9, 2007 Page: 2 Sold Ta DELRAY BEACH FLEET DEPT. 434 S. SWINTON AVE. DELRAY BEACH, FL 33444 Ship To: DELRAY BEACH FLEET DEPT. 4.34 S. SWINI'ON AVE. DEZRAY BEACI-~ FL 33444 Customer ID Custanrer PO ~ ~~ Payment Terrirs _ DELRAY BEACH FLEET Net 30 Days Sales Rep IU Shipping Method Shit' Date Due Date JpDl --- _--- INSTALL 2f9/b7 3/11/07 Quantity Item Description Unit Price OGLE 1. SE BLOCK 6 SE BLOCK 6TERMINAL W/GRND ~ , , -, 15. I.00 CVDMLTALCV ME LIGHTRED/C~.R LED. CV 57. 1.00 -0102 fsR I2VOLTTRIPLE OUTLET PLUG 20. 1.00 NT-29 'FLOOR PLATE FOR L75200 ~ ~ ~j 65. 1.00 FCV~1k3-06 G KIT FOR CV 03'-06' f ~ _ 22. ~ ffal~'; G '~R ~~ 1.00 75200 - I~y~1 -235. fiR Eltctronrrx laptop Mount K 1.00 ANCF29 87, frR LO(XWG TRAY FOR PANASOMC CF29 ~ OMPUTER 1.00 A-0119 &R ADJUSTABLE ARMREST' ATTACHES TO 74, LOOR PLATE. 1.00 S(RLLANEOLIS RGE CUP HOLDERS 10, 1.00 SCELLANEDUS APER CLIP HOLDCR & LITERATURE RACK 20. 1. SCRLLANEOUS -SEEK M250, (TJ6000 390. 1. SCRLLANEOUS VISOR MICROPHONE {DA~350) 168. 1. SCRLLANEOUS PORT USB 24 HCIB 53. 1. S(7`:1.1ANEOUS FT USB 2.0 CABLE W/MINI END 20. 1. SCELLANEOUS USTOM PLATE 20. 1. S(~i.LANEOUS US'POM EXTENSION 20. 2. FL001A UISERS DDOR SKINSBLACK CY A. 1. 1191 DEC PRISONER SEAT CV ~-07' 420. I. RAPHIC~ 'VS CUSTOM GRAPHICS (GRAPHICS DESIGN) 295. Subtotal Sales Tax Frcight TOTAL Extension 15. 57. 235, 87. d90. 168. 53. Contiraied Contimterl Contirpced 4661 JOHNSON ROAD -SUITE 1 COCONUT CREEK, FL 33073 Tet. 954-428-5201 * Fax 954-42&52Q2 invoice brooice Number: 5410 IrrvaceDate: Feb 9, 2007 Page: Sold To: DELRA Y BEA CH FLEET DEPT. 434 S. SLVINF'ON AVE. DELRAY BEACH FL 33444 Ship To: DELRA Y BEACH FLEET DEPT. 434 S. SWINTON AVE. DELRAY BEACI~ FL 33444 Customer tD Customer PO ( Payment Terms DELiiAY BEACH FLEET ~ i ~ Net 30 Days Sales Rep ID Shipping Method ~ Ship Date ~___-~- Due Date JFOI ~ INSTALL 2/9/07 ~ 3~11/D7 Quantity Item Description Unit Price Extension 1.00 VIPER350HV VIPER 350HV CAR ALARM {3 REMOfiES) 15000 , 750. 1. LN4884B OTOROLA TRA VEL CHARGER 99.9 99.9 1. OW TINT USTOM WWDOWTINT I00. 100 0~ 1.00 AIb50.3253 U POWER INVERTER CF29 119.95 II9.95 1.00 RTA GRtP 2000 RTA GRIP 2000 Wjl'ANAVI SE MT 38.7 58.7 1.00 5CELLANEOi.IS IXMA iP90 PRINTER 229.915 229.95 1.00 B30-100 P IOOAMP POWER BREAKER a 26. Z6. 1.00 'STALLATION iEVS CUSTOMlNSTALLATTON i 1,30000 1,300. i ~~ :~ ~ t I i f 'itia3 ~"~ ~ ' ~ { r -- "~/~,~1~f I Subtotal Sales Tax Freight TOTAL 7,948.32 7,948.32 4661 JOHNSON ROAD -SUITE 1 COCONUT CREEK, FZ 33073 TeL 954-428.5201 * Fax 954-428-5202 ~t ., , t~ v r March 12.2007 City of Deh~ry Heaach Palioo Dapattmart 3h~ran L'Hesrou 300 W. Atlantic Av~-ue lklrsy Bosch, FL 33444 Ms. L'Herrou: Thee cutxeat model year ~Y Heach polico vehicloa boater pcodncod by Emergency Veluck Supply {EVS) of Coconut Creek, Flcrids vursti desigaad with several pt'Opr'io~'Ya state of the art products from EVS. While most of the icy wanaiztg cquzpmcttt inswiled auto that vehicles is twt propei+etary, we have developed several custom made brackets. mottats and as ignition ave~ncidc system that is Wcclusivt w EVS. Ix, addition w the oquipment, we have desigtx+d a custom wiring liaxtsesa that is spectSc slily to the City of Dalray Beach Police Department vehicles. Should you have any questions, please feel iz~ tc~ call me at 954.428.5201. Siaca~ely, (~ x'`~ Rob W'im V icx Presidoat 4661 Johnson Reed. Suite i. Cocacut Creek, Florida 33073 (Te1a~p3>mte) 954-428-5201 (Fax) 9?~4-42&5282 W Q a U a U J W ~ C .~ ~ ~ ~ 8' g~ ~ ~' ~ ~ ~' ~- ~ ~,~~ .~ ~ ~~~~~ ~~ ~ ~~ ~ ~ ~~ _~ ~ ~~ ~ ~~ ~ ~ ~.~~~ ~~ ~~ ~~ ~ o ~~m ~a ,~ u. ~ ~` ~' ~~ ~~~ .aa . ~ ,~ c ~ ,t " c ~~ ~ ~ ~ ~ ~ ~~ ~ _~ ~~ ~~ U ~ ~ © ~ ~3 W "' o ~ ~ _~u~ ~g~~ tai O t= ~~ ~~~a~o J C O Date: 5!30!07 AGENDA ITEM NUMBER 4~ L ~~ iJ~, O'ff' r rQgV AGENDA REQUEST Request to be placed on: X Consent Agenda _ Regular Agenda -Workshop Agenda _ Special Agenda When: une 2007 Description of agenda item (who, what, where, how much): The Delra Beach Police De artment BPD re uests a royal of urchases in the amount of $79,483. o Emergency Vehicle Supply (EVS) for equipment for the 10 vehicles added to the fleet earlier this year. This expense has been approved in the FY2006-2007 budget. This equipment package is necessary to convert the vehicles purchased into functional police cars. Equipment includes: the light package, laptop mounts, speakers, driver's license swipe machine, printer shelf, dome lights, ignition override switch, emergency light package, restraint seats, graphics, etc. Department Head>¢~,r + J ~~ y ,~~,~+ J~~' Signature: ~~~ar~ ( L~' (~~ City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds); Funding Available: es / No Initials: Account Number(s): -2117-521-64.20 001-2119-521-46 31 001-2119-521- 64.20 001-2121-521-46.31 and 001-2119-521-b4.20. Description: Vehicle Equipment Account Balance: Funding Alternatives: N/A Cf applicable) City Manager Review: Approved for Agenda: Yes / No Initials: Hold Until: Agenda Coordinator Review: Received: MEMORANDUM TO: Mayor and City Commissioners FROM: Kerry B. Koen, Fire Chief THROUGH: City Manager DATE: May 29, 2007 SUBJECT: (Fire Fighter Rescue Escape Devices (FFRED). ITEM BEFORE COMMISSION The recommended purchase of Fire Fighter Rescue Escape Devices (FFRED) to be mounted on existing self contained breathing apparatus. Request approval to purchase from manufacturer, RIT and Escape Systems, Inc. through Fisher Scientific Company (Fisher Safety) of Tampa, FL as a sole source vendor in the amount of $49,123.20. The recommended product is designed to interface safely with our present self-contained breathing apparatus harness assembly. This is the only product on the market that is able to do this at the time. BACKGROUND Several recent incidents in the United States and Canada have pointed to the need for Fire Fighters to be able to quickly make emergency exits from upper stories of mid-rise buildings if their primary means of exit becomes unusable. This equipment will enhance that capability and improve Fire Fighter safety. FUNDING SOURCE Funding is available in account # 115-2311-522-49.90. RECOMMENDATION Approve Purchase. ,F~'~. r-v ...-,..w,...c~•VV.e'.F•'.~`.'.'r~.L~.'.~: ~fYrpw~xm~z " Ali:..-....n.. SIRE-RESCUE ~PARTE ~~~~-i~~ r~c4Ra~ ~~_~~ DELIUY BEACH All-AmarictCity '' ~rMEMORANDUM iooi TO: David T. Harden, City Manager FROM: Kerry B. Koen, Fire Chief DATE: May 29, 2047 SUBJECT: Fire Fighter Rescue Escape Devices ~~ ~~~ iS .' ~Uf..f/ ~r~f=inn • FEfGHi._ANCJ B~ACi-€ The Fire-Rescue Department is seeking approval to purchase 119 Fire Fighter Rescue Escape Devices (FFRED) to be mounted on our existing self contained breathing apparatus. This equipment is designed to permit a trapped Fire Fighter to perform self- rescue procedures from upper floors of mid-rise buildings, and it will greatly enhance Fire Fighter safety in these circumstances. The cast of each FFRED is $412.80 for a total cost of $49,123.20. Funding is available in account #115-2311-522-49.90. We are also requesting the purchase be made through Fisher Scientifc Company of Tampa, Florida as a sole source provider, due to the unique design of this equipment, which is manufactured by Rescue and Escape Systems, Inc. and their distributorship agreement with Fisher Scientific Company. The recommended product is designed to interface safely with our present self-contained breathing apparatus harness assembly. This is the only product on the market that is able to do this at this time. A copy of this documentation is attached. An Agenda Request and a copy of the vendor's proposal are also included for your review and consideration. Kerry B. Koen Fire Chief KBK/rta. ce: Battalion Chief Accardi FIRE-RESCUE: GEPRRTMFNT h#ERGQIJARTERS • 501 WEST ATLANT{C ~VEI~Ut • GF.E.RAY E3E:t?Ch•f, Fl_t7i•'~IGA 33444-255~~ (561 } ;?43-'7400 • F°AX (5~i 1 } 243- C4Ei'1 f'1•infed {err Reoycled Paper RIT Rescue and Escape Systems, Inc. When there is no other way out! Chief Russell Accardi City of Delray Beach Fire Rescue 501 West Atlantic Ave. Delray Beach, FL 33444 Dear Chief Accardi, This Letter is to inform you that Fisher Safety is the Sole vendor for all products manufactured by RIT Rescue and Escape Systems in the city of Delray Beach, Florida. If there are any further questions on this matter, please do not hesitate to contact me. Yours truly, Chris Nightwine Regional Sales Manager 2300 Edison Boulevard Twinsburg, OH 44087 800-254-2990 330-405-5444 fx 330-487-5521 www.ritrescuesvstems.com info@ritrescuesystems.com Rightfax 5/3/2007 8:39 AM PAGE 2/003 Fax Server F I S H E R S C I ENT I F I C Q U O T A T I O N I I I MAY 3, 2007 PAGE: 1 1 I I I DELRAY BEACH FIRE DEPARTM FISHER SCIENTIFIC COMPANY LLC 1 I 5904-D HAMPTON OAKS PARKWAY 1 I 501 W ATLANTIC AVE SUITE 200 1 I TAMPA FL 33610 1 I DELRAY BEACH FL 33444 (800) 226-4732 1 I 1 1-------------------------------------------------------------------------------1 I CUST REF NBR QOUTE- RIT RESCUE ITEMS 1 1-------------------------------------------------------------------------------1 1 ACCOUNT NBR: 813864-001 I REQUESTOR: ROXANNE 1 I QUOTE NBR: 7123-8384-98 I PHONE: 0000000000 1 I TERMS: NET 30 DAYS I FOB: DEST 1 I DUE DATE: I AUTHORIZED BY: CRAIG HILL 1 1-------------------------------------------------------------------------------1 I I I *** PRICES ARE FIRM THRU 06/02/07 *** i I PLEASE REFER TO THE QUOTE NBR ON ALL CORRESPONDENCE 1 I THANK YOU FOR YOUR INTEREST IN FISHER SCIENTIFIC COMPANY LLC 1 I SAFETY REP: CARTER HALL I 1-------------------------------------------------------------------------------1 INBRI QTY ZUNI CATALOG NBR I DESCRIPTION I UNIT PRC I EXTD PRC 1 i-------------------------------------------------------------------------------1 I I I I I I I I 1 11 1201EAINON-CATALOG IFFRED RESCUE SYSTEM FOR SCBA 1 412.80 149,536.00 1 IVNDR NBR = 0083591 IVNDR CAT NBR = FRSSA50WFC I I I I I I I I I I--------- I (MERCHANDISE TOTAL 1 149,536.00 1 I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I l I I I I I I I I I I I I I I I I --------------------------------------------------------------------------------- Date: May 29, 2007 ::r, Request to be placed on: X Consent Agenda When: June. 2007 AGENDA ITEM NUMBER: AGENDA REQUEST Regular Agenda Workshop Agenda Special Agenda Description of agenda item (who, what, where, how much): Approval to purchase 119 Fire Fighter Rescue Escape Devices from the manufacturer, RIT and Escape Systems Inc through Fisher Scientific Company (Fisher Safety) of e ~g ~0 Tampa FL as a sole source vendor Funding is in account #115~A9-?~6-~~#=00. x,31 I - 5 ZZ Recommendation: Approve purchase. -~ `~y~C~3•~o l( 1 ~ ` ~ ' Department Head Signature:C~~~ City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): ~~~. Funding Available: ~o Initials: Account Number ~,tj' 2-~ ~ ~ -'~1 ~`~ ~ ~~~ 9(~, Description ` r~- ~; 4~'-~w 11 - ~ i.N~ f~/1't~ l~'1.L~-~-~. S Account Balance: ~~ ~~~~"1 Funding Alternatives: (if applicable) City Manager Review: Approved for Agend Ye / No Initials: Hold Until: Agenda Coordinator Review: S V. ~1 Received: oK MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS t FROM: AMY E. ALVAREZ, HISTORIC PRESERVATION PLANNER PAUL DORLING, AICP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER DATE: MAY 30, 2007 SUBJECT: AGENDA ITEM #~ • ~ - REGULAR MEETING OF JUNE 4, 2007 APPEAL OF THE HISTORIC PRESERVATION BOARD'S APPROVAL OF CONSTRUCTION AT 706 SE 2"d STREET LOCATED IN THE MARINA HISTORIC DISTRICT. ITEM BEFORE COMMISSION The action requested of the City Commission is consideration of an appeal of the Historic Preservation Board's (HPB) decision made on March 21, 2007. The HPB approved the Certificate of Appropriateness (COA) for the new construction of asingle-family residence located at 706 SE 2"d Street based on findings that the request was consistent with the Comprehensive Plan and met the criteria set forth in LDR Sections 4.5.1(E)(4), (E)(7), and (E)(8)(a-k), the Delray Beach Historic Preservation Design Guidelines, and the Secretary of the Interior's Standards for Rehabilitation. BACKGROUND At the March 21, 2007 Historic Preservation Board (HPB) meeting, a Certificate of Appropriateness (COA) for the construction of a new, 11,709 total square foot (8,129 under aic) two-story, single- family residence located at 706 SE 2"d Street was approved with conditions. Staff noted that the development was not consistent with the established structures within the 200 block of SE 7m Avenue nor the historic structures within the district. Staff made a recommendation to continue the COA request with direction, as opposed to denial, as this was the Board's first review of the subject application. Given the scale and mass of the structure, staff was unable to make positive findings with respect to the LDRs, the Delray Beach Historic Preservation Design Guidelines, and the Secretary of the Interior's Standards for Rehabilitation. Acomplete analysis of the aforementioned proposal is found in the attached Historic Preservation Board Staff Report of March 21, 2007. REVIEW BY OTHERS The Historic Preservation Board reviewed the request at its meeting of March 21, 2007 and followed the established quasi-judicial procedures in considering the project. The applicant offered testimony in support of the development proposal. The Board took testimony from members of the public who spoke both for and against the project. It was noted during the review that the property previously contained a contributing, 2,163 total square foot, one-story structure which was approved for demolition in 2005. As part of that demolition request, the Staff Report conditioned the future development with the following language, that the design of the new dwelling will be required to meet strict historic preservafion design guidelines to ensure compatibility with design and massing in relation to the surrounding area...Demolifion of the dwelling will not have an adverse effect on the Marina Historic District as it cannot be seen from the public right-of--way. City Commission Documentation, Meeting of June 4, 2007 Appeal of HPB Action - 706 SE 2`~ Street However, it can be seen from the Intracoastal Waterway and, as such, any new structure will have to be compatible with the other waten`ront properties in the district."As noted in the staff report, the development proposal does not meet this condition. APPEAL On April 4, 2007, Claudia Willis of 160 Marine Way and Cheryl Jones of 131 SE 7'h Street submitted an appeal of the Historic Preservation Board's action of the subject property. The basis of the appeal is that the actions taken by the Historic Preservation Board are inconsistent with the LDRs, the Delray Beach Historic Preservation Design Guidelines, and the Secretary of the Interior's Standards for Rehabilitation. The relief being sought is that the approval of the COA be reversed and the development request be denied. At the meeting of May 1, 2007, the City Commission considered the appeal and continued the item to the meeting of May 15, 2007 with direction that the architect go back and scale down the project pursuant to the suggestions offered by the applicant. Revised plans were submitted to Staff on the afternoon of Monday, May 14, 2007. Staff did not have the opportunity to fully review the revised plans prior to the meeting on May 15, 2007; therefore, the Commission postponed the reconsideration of the appeal until June 4, 2007. Staff review of the revised plans has been conducted and is summarized in the attached Planning and Zoning Memorandum dated May 30, 2007. SUMMARY While the revisions have improved the proposed development, there are remaining concerns that should be addressed as noted in the original recommendations outlined in the HPB Staff Report of March 21, 2007: • One-story elements with setback second story walls should be implemented to break up the mass on the east elevation; the views would remain, while the impact would be reduced; • As part of Staff's direction to the Board, the following was also recommended: 1. That the east elevation is broken up to provide one-story masses while setting back the second story; 2. That the east elevation is broken up to provide a less massive appearance with one and two story elements. The suggestions noted above would not only help to alleviate the impact on the Marina Historic District but also provide compatible new development within the historic rhythm along the Intracoastal Waterway and the Marina Historic District as a whole. With the changes suggested above, positive findings of the visual compatibility standards in LDR Section 4.5.1(E) could be made particularly to the requirement for "Scale of a Building" which states the following: The size of a building, the building mass in relation to open spaces, windows, door openings, balconies, and porches shall be visually compatible with the building size and building mass of historic sites buildings and structures within a historic district. The building in question is required to be compared to the building size and mass of historic sites, buildings, and structures in the Marina Historic District. However, Staff has compared the structure to the immediately adjacent structures, historic and non-historic, and illustrated that the revised proposal remains non-compatible with respect to scale and mass. 2 City Commission Documentation, Meeting of June 4, 2007 Appeal of HPB Action - 706 SE 2"d Street RECOMMENDATION Approve the appeal, thereby reversing the Historic Preservation Board's approval. Attachments: ^ Historic Preservation Board Memorandum Staff Report of March 21, 2007. ^ April 4, 2007 Appeal Letter from Claudia Willis and Cheryl Jones. ^ Staff Memorandum re: revised plans dated May 30, 2007. ^ List of Revisions per Applicant Dated May 1, 2007. 3 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA 1. This appeal of the approval of a Certificate of Appropriateness for the new construction of a single family residence located at 706 SE 2"d Street has come before the City Commission on June 4, 2007. 2. The Appellants, Appellee and City staff presented documentary evidence and testimony to the City Commission pertaining to the appeal of the approval of a Certificate of Appropriateness for the new construction of a single family residence located at 706 SE 2"d Street. All of the evidence is part of the record in this case. Required findings are made in accordance with Subsections I, II and III. LDR REQUIREMENTS a. LDR Section 4.5.1(E)(4), 4.5.1(E)(7) and 4.5.1(E)(8)(a-k), "Development Standards" provides guidelines in evaluating Certificates of Appropriateness for the alteration or addition of exterior architectural features Are these guidelines met? Yes No Have the overall objectives of the LDR's been met? Yes No II. DELRAY BEACH HISTORIC PRESERVATION DESIGN GUIDELINES: The Delray Beach Historic Preservation Design Guidelines suggest the following which apply with respect to the subject application: • The relationship of new construction adjacent to significant historic resources can either enhance or detract from the historic setting of the district. It does not appear that the structure, as proposed, would enhance the historic district within which it is located. • All new construction should complement the historic architecture of the district. While the style may be appropriate, the large mass, scale, and volume is not complementary. • The character of the massing should be compatible with the surrounding buildings. The mass of the proposed structure clearly outweighs that of the surrounding buildings, inclusive of the adjacent two-story structures located immediately to the north and south. Have the overall objectives of the Delray Beach Historic Preservation Design Guidelines been met? Yes No III. THE SECRETARY OF THE INTERIOR'S STANDARDS FOR REHABILITATION: The Secretary of the Interior's Standards for Rehabilitation recommend: New additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment. (Standard 9) Have the overall objectives of the Secretary of the Interior's Standards for Rehabilitation been met? Yes No 3. The City Commission has applied the LDR requirements in existence at the time the original site plan was submitted. 4. This decision is consistent with the goals, policies and objectives of the City's Comprehensive Plan. 5. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 6. Based on the entire record before it, the City Commission approves denies the appeal and hereby adopts this Order this day of June 4, 2007, by a vote of in favor and opposed. ATTEST: Rita Ellis, Mayor Chevelle Nubin City Clerk 2 Planning 8a Zoning Department MEMORANDUM TO: Mayor and City Commissioners FROM: Paul Dorling, AICP, Planning and Zoning Director Amy E. Alvarez, Historic Preservation Planner DATE: May 30, 2007 RE: 706 SE 2"d Street -Revised Plans The following revisions have been made to the subject development proposal per the submitted list at the City Commission meeting of May 1, 2007: • Northwest balcony eliminated; • Bedroom, bathroom and closet removed from second floor, west elevation; • Guest suite above garage removed; • East covered terrace eliminated; • Three-car garage reduced in size to accommodate only two cars; • Stair to guest suite removed. The following components do not appear to have been removed per the proposed revisions at the City Commission meeting of May 1, 2007: • Eliminate covered gallery; • Eliminate south loggia; • Eliminate roof over master covered terrace. The following chart shows a brief comparison of the two submittals and their differences: Previous Revised Difference Notes Plans Plans 1S` Floor Square Footage 6,646 5,957 - 689 3,727 under-air, 1,202 for garages, 1,029 open-air space 2"d Floor Square Footage 5,063 3,507 - 1,556 3333 under-air, 174 open-air space 7,060 under-air, 1,202 Total Square Footage 11,708 9,464 - 2,245 garages, 1,203 open-air spaces FAR* 52% 42% - 10% Average in sample area below is 18.1 /o. Lot Coverage 29% 27.72% - 1.28% Primarily due to revision of three-car garage. * FAR for all properties has included all area under roof. When only considering square footage of the enclosed spaces under-air and garages, the FAR of the revised plans is calculated at approximately 37%. Memo RE: Revised Plans for 706 SE 2"d Street, Marina Historic District Appeal to City Commission, June 4, 2007 Page 2 of 3 The following chart has been revised to show a comparison of the data on the revised plans with the immediately surroun ding properties in the 200 block of t he east side of SE 7th Avenue: Number * Address Bu ~t of Lot Size Footage FAR Stories 200 Marine Way 1948 2 20,855 3,319 16% 706 SE 2"d Street* --- 2 22,487 9,464 42% 203 SE 7th Avenue 1954 1 10,032 2,031 20% 209 SE 7th Avenue 1950 1 9,497 1,212 12.8% 213 SE 7th Avenue 1951 1 8,409 1,571 18.7% 219 SE 7th Avenue 1935 2 32,418.8 5,656 17.4% 229 SE 7tt' Avenue 1991 1 27,386 3,067 11.2% 237 SE 7th Avenue 1989 1 21,399 4,074 19% 711 SE 3~d Street 1989 1 12,632.4 3,820 30% " FAR for all properties has included all area under roof. When only considering square footage of the enclosed spaces under-air and garages, the FAR of the revised plans is calculated at approximately 37%. ANALYSIS In the 2005 Staff Report for the demolition, Staff assured the Board, as well as the public, that "the desian of the new dwelling will be required to meet strict historic preservation design guidelines fo ensure compatibility with design and massing in relation to the surrounding area'; and "anv new structure will have to be compatible with the other waterfront properties in the district." With that, it was demonstrated in the FAR table above that compatibility with the waterfront properties is not achieved in the subject proposal. While one may argue that the waterfront properties within the 300 block are compatible with the subject proposal, those properties are neither in close proximity nor are they examples of compatible development within the historic district. Existing out of scale development does not allow for certain design liberties to take place for new development, nor is it relevant to the visual compatibility requirements of the LDRs and guidelines. While Staff believes the revisions have improved in comparison to the original submittal, there are remaining concerns that should be addressed which are consistent with the original recommendations outlined in the HPB Staff Report of March 21, 2007: • One-story elements with setback second story walls should be implemented to break up the mass on the east elevation; the views would remain, while the impact would be reduced; • As part of Staff's direction to the Board, the following was also recommended: 1. That the east elevation is broken up to provide one-story masses while setting back the second story; 2. That the east elevation is broken up to provide a less massive appearance with one and two story elements. With the revisions suggested above, positive findings of the visual compatibility standards in LDR Section 4.5.1(E) could be made particularly to the requirement for "Scale of a Building" Memo RE; Revised Plans far 706 SE 2"d Street, Marina Histaric Distric# Appeal #a City Cammissian, June 4, 2007 Page 3 of 3 which states the following: The size of a building, the building mass in relation to open spaces, windows, door openings, balconies, and porches shall be visually compatible with the building size and building mass of historic sites, buildings, and structures within a historic district. 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I ;' I I I I I I I I I I II I I I I I I I I I I I I I I I I I I I I I I I I ______L_J L_J_____-____-_~_______-_ ~' ~~'~ ~~~ iij$~~~ ~ f .~ ..~ i': lj '4~oag ,(o~~ap ' ;aa~;S PAZ 3S 90L ': :;fig;: 1~;~ 3~N3QS3H AIIMI~d 37~NIS : e@i» .. ~~ F Y °~" ~;~ ~~ ~~ ~~} ~ F OFERAI' BEACH NI-AmericaCily ' ~ ~ ~ ~.~ 1993 t[gil HISTORIC PRESERVATION BOARD MEMORANDUM STAFF REPORT oEiRAr nucH fill-AmericaCity '~~~' 15911 GpOi Property Owner: Dana Parham Authorized Agent: Mark Krall Applicant: Francisco Perez, Project Architect Property Address: 706 SE 2nd Street, Marina Historic District HPB Meeting Date: March 21, 2007 COA: 2007-070 - ITEM BEFORE TH'E BOARD The item before the Board is the consideration of a Certificate of Appropriateness (COA 2007- 070) associated with the new construction of asingle-family dwelling located at 706 SE 2nd Street, Marina Historic District pursuant to Land Development Regulations (LDR) Section 2.4.6(H). - - - - --- BACKGROUND The subject property consists of Lot E less the east 148.3 feet of the north 145.6 feet,. The Moorings, Delray Beach, and is zoned R-1-AA. The Moorings is a 1943 resubdivision of the Blank-Nichols Subdivision (circa 1925, within Block 127). The Moorings subdivision reconfigured twelve (12) fifty foot (50') wide lots into five (5) larger lots. Lot E was later redivided into two (2) lots, creating the subject "flag lot" which has access from SE 2~d Street. The subject property inbound by five different properties as well as the Intracoastal Waterway. Access to SE 7cn Avenue is not available to this lot. A 2,163 square foot contributing, one-story, Cottage style single-family dwelling previously existed on the lot. At its meeting of August 17, 2005, the Board approved a COA request to demolish the aforementioned structure. At the time of review and based on available records, there was some confusion as to when the structure was built; a 1986 survey suggested that it was originally constructed in 1936, while the Property Appraisers website suggested 1956, and the building record card suggested 1936, 1951 and 1971. The building was demolished in October 2005. Upon review of the demolition application by the Board in 2005, one of the criteria the Board took into consideration was whether there were definite plans for the immediate reuse of the property. The owner at that time stated that, while not submitted for review, immediate plans were being made for the reuse of the property, with the construction of a new dwelling. The Staff Report that the Board reviewed at that time stated the following: if should be noted...that the design of the new dwelling will be required to meet strict historic preservation design guidelines to ensure compatibility wifh design and massing in relation to the surrounding area...Demolition of the dwelling will not have an adverse effect on the Marina Historic Districf as it cannot be seen from the public right-of--way. However, it can be seen from the Intracoastal Waterway and, as such, any new structure will have to be compatible with the other waterfront properties in the district. There are no other Board actions on record. The current application requests consideration to approve the new construction of a single- familydwelling. It is important to point out that the applicant met with Staff prior to application submittal. The applicant inquired about the review criteria and its applicability to the subject property. As previously noted, the subject property is a "flag lot" and is not directly located on a street within the Marina Historic District. Staff's reply to that inquiry was that it was unknown how the elevations would be reviewed and noted that the proposal was rather large. Upon application submittal and further consideration, it was clear that the required review criteria was applicable, athough it might be applied in a different manner as special circumstances exist. There are no other "flag lots" within any of the city's five (5) historic districts. A follow-up meeting between Staff and the consultants occurred with much of the discussion focused on compatibility. Therefore, as a way of looking at volume in an objective manner, Staff relayed that the proposed Floor Area Ratio (FAR) and the average FAR of the immediately adjacent properties also abutting the Intracoastal Waterway significantly differed. Details of the analysis are provided below. While the consultants argued against the FAR analysis and its use, Staff suggested that additional or different data be submitted to prove the case for compatibility. That information was not submitted. PROJECT DESCRIPTION The subject property contains approximately .5162 acres or 22,487 square feet, and is vacant. It is bordered by five other lots within the Marina Historic District, which face either SE 7tn Avenue or SE 2"d Street. Two of those properties, along with the subject property, are also bordered by the Intracoastal Waterway: 200 Marine Way, located directly to the north,. and 219 SE 7tn Avenue, located directly to the south. The proposed, two-story, single-family dwelling contains the following: • 8,129 square feet under-air, and 11,709 total square feet; • a one-story, three-car garage and two-story, two-car garage with guest suite above; • a 29% lot coverage and 52% Floor Area Ratio (FAR); • complete landscape plan with associated landscaping information, and; • swimming pool and spa. The access for the subject property is taken from SE 2"d Street, where a metal gate is located between the properties at 200 Marine Way (identified as "remainder of Lot E on Site Plan) and 203 SE 7tn Avenue. A brick paver drive leads to the principal portion of the property, which, as previously noted, is surrounded by a total of five different properties as well as the Intracoastal Waterway. The front of the property is considered the west, while the east, which is located on the aforementioned waterway, is the rear of the property. The proposed structure, whose height extends to thirty-four feet (34') at its highest peak, will contain approximately 6,645 total square feet on the first floor and approximately 5,062.5 total square feet on the second floor. A mix of one and two story components make up the structure. The west elevation, also considered the front of the structure, contains two separate garages, which face inward into a brick pavered motor court. While both garages contain multiple spaces, there are five individual doors for each of the five spaces. A combination of window types and styles may be found throughout: arched, casement, fixed, picture, sidelight and transom. All windows are proposed to be aluminum-clad wood. The picture windows, many of which are flanked by casement style sidelights, are primarily located on the east elevation (rear), to take advantage of the water views. Exterior finishes include smooth stucco walls, barrel the roof, wood soffit and fascia, and decorative tiles. The color scheme is a cream body with an olive finish for the windows. " ANALYSIS (Note -All LDRs and recommendations referred to from the Delray Beach Historic Preservation Design Guidelines have been cited as they presently exist. All structures or properties referred to as contributing are classified as such on the circa 1988 Marina Historic District Map) COMPLIANCE WITH THE LAND DEVELOPMENT REGULATIONS- Items identified in the Land Development Regulations shall specifically be addressed by the body taking final action on the site and development applicationlrequest. LDR Section 4.3.4(K) Development Standards Matrix: The applicable development standards for the R-1-AA zone district that relate to the proposal are as follows: Building Height Maximum Setbacks Front*'` Side Interior (North) South Rear Open Space Minimum Allowed/Required Provided 35' 34"` 30' 30' 10' 10' 10' 14'9"' 10' 10' 25% 47% "`Measured from ground level to highest peak. *~Front of property taken from west property line. Pursuant to LDR Section 2.4.6(H)(5), the Board must make a finding that any Certificate of Appropriateness which is to be approved is consistent with Historic Preservation purposes pursuant to Objective A-4 of the Future Land Use Element of the Comprehensive Plan and specifically with the provisions of LDR Section 4.5.1. Future Land Use Element Objective A-4• The redevelopmenf of land and buildings shall provide for the preservation of historic resources. The objective shall be met Through continued adherence to the City's Historic Preservation Ordinance and the following policies: Policy A-4.?: Prior to approval or recommending approval of any land use or development appficafion for property located within a historic district or designated as a historic site, the Historic Preservation Board musf make a finding That the requested action is consistent with the provisions of Section 4.5.1 of the Land Development Regulations relating to historic sites and districts and the `Delray Beach Historic Preservation Design Guidelines" LDR Section 4.5.1(E)(4), 4.5.1(E)(7) and 4.5.1(E)(8)(a-k), "Development Standards" provides guidelines in evaluating Certificates of Appropriateness for the alteration or addition of exterior architectural features. The guidelines are as follows: (E)(4) A historic site, or building, structure, site improvement, or appurtenance within a historic district shall be altered, restored, preserved, repaired, relocated, demolished, or otherwise changed in accordance with the Secrefary of Interior's Standards for Rehabilitation, as amended from time to time. See applicable Standards noted below. (E)(7) The construction of new buildings or structures within a designated historic district shall meet the same compatibility standards as any material change in the exterior appearance of an existing non-contributing building. Any material change in fhe exterior appearance of any existing non-contributing building, structure, or appurtenance in a designated historic district shall be generally compatible with the form, proportion, mass, configuration, ~ building material, fexture, color, and location of historic buildings, structures, or sites adjoining or reasonably approximate to the non-contributing building, structure, or site. The proposed structure, as noted above, requires general compatibility with the historic buildings adjoining or reasonably approximate to the proposed (non- contributing} structure. According to the original designation map of the Marina Historic District circa 1988, the subject property is abutted by two contributing structures (209 and 219 SE 7th Avenue) while five others are within close proximity (160 Marine Way, 200, 214, 222, 228 SE 7"' Avenue). With respect to the more impacting requirements such as proportion and mass, the proposed structure is not found to be generally compatible. Further analysis is provided below. (E)(8) All improvements to buildings, structures, and appurtenances shall be visually compatible. Visual compatibility shall be determined in terms of height, front facade proportion, proportion of openings (windows and doors), rhythm of solids to voids on front facades, rhythm of buildings on streets, rhythm of entrance and/or porch projections, relationship of materials, fexture and color, roof shapes, walls of continuity, scale of building, directional expression of front elevation. The following components of the aforementioned review criteria require further consideration and revisions: (a) Height: The height of proposed buildings or modifications shall be visually compatible in comparison or relation to the height of existing structures and buildings. The height of the subject application is within the maximum allowed height of thirty-five feet (35'). However, when looking at the surrounding structures (both contributing and non- contributing) within the 200 block of SE 7th Avenue of the Marina Historic District, the proposed dwelling contains a larger and more massive appearance. The surrounding properties do contain second-stories. However, their scale and massing do not call attention to their additional heights. It should be noted that, while the proposed application incorporates one-story elements, it also contains approximately forty-three percent (43%) of the total square footage on the second floor. (b} Front Facade Proportion: The front facade of each building or structure shall be visually compatible with and in direct relationship to the width of fhe building and to the height of the front elevafion of other adjacent or adjoining buildings within a historic district. The front elevation in this case is the west elevation. While the west elevation contains a more massive appearance than those of the surrounding properties, it may not be highly visible from the public right of way, such as SE 7"' Avenue and SE 2"d Street. Regardless, an attempt should be made to provide a more prominent front entry and possibly detach the accessory structures. Further, the east elevation, which is situated on the Intracoastal Waterway, is clearly not visually compatible with respect the proposed width and height in relation to the other adjacent or surrounding buildings. Staff has conducted field visits to the surrounding area in addition to reviewing property data, and upon review of the existing conditions in comparison with the proposed structure, visual compatibility cannot be found. (f) Rhythm of Entrance and/or Porch Projections: The relationship of entrances and porch projections to the sidewalks of a building shall be visually compatible with the prevalent architectural styles of entrances and porch projections on historic sites, buildings, and structures within a historic district. While there are no sidewalks with a direct relation to the subject application, a general review of the entrance and porch projections is being made. The main entrance is significantly setback from the foremost wall plane, which is connected to the structure. This is not typical or appropriate to this style of architecture or for the historic structures. The main entry should be further emphasized, placing more prominence on its location. Q) Scale of a Building: The size of a building, the building mass in relation to open spaces, windows, door openings, balconies, and porches shall be visually compatible with the building size and building mass of historic sifes, buildings, and structures within a historic district. When solely reviewing the proposed elevations and the attempt at visual compatibility with the surrounding properties, there is a clear difference between the two. The overall appearance of the subject application proposes a structure containing a vastly larger scale, mass, and volume. When compared to the historic structures, as the above noted review criteria states, there is an even clearer distinction. However, the table below takes the data of all other structures located within the same block of the subject property and compares the existing conditions with the proposed structure. When attempting to objectively relate structures with one another and take into consideration their lot size compared with the structures size, a Floor Area Ratio (FAR) may be .established. The average FAR in the sample area noted below is 18.1 %. The FAR of the proposed structure is 52%, a 287% increase. Address Year Built Number of Stories Lot Size Square ~ Footage FAR 200 Marine Way 1929 2 20,855 3,319 16% 706 SE 2" Street --- 2 22,487 11,709 52% 203 SE 7` Avenue 1954 1 10,032 2,031 20% 209 SE 7` Avenue 1950 1 9,497 1,212 12.8% 213 SE 7` Avenue 1951 1 8,409 1,571 18.7% 219 SE 7` Avenue 1935 2"'` 32,418.8 5,656 17.4% 229 SE 7` Avenue 1991 1 27,386 3,067 11.2% 237 SE 7` Avenue 1989 1 21,399 4,074 19% 711 SE 3~ Street 1989 1 12,632.4 3,820 30% "Subject property **Principal Structure contains 2 stories, accessory structure contains 1 story. The Secretary of the Interior Standards for Rehabilitafion recommends that: New additions, exterior alterations, or re/afed new construcfion shall not destroy historic materials that characterize the properfy. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural .features to protect the hisforic integrity of the property and ifs environment. (Standard #9) The overall volume of the proposed structure is not in keeping with the above noted Standard. While clearly differentiated from the old, the historic integrity of the Marina Historic District is not protected. The visibility from SE 7"' Avenue and SE 2"d Street may be minimal; however, the property is highly visible from the Intracoastal Waterway and the land to the east. In addition, the abutting properties will be highly impacted, as the mass of the proposed structure will tower over them. One could speculate that a structure of this size has the possibility of creating a "domino affect" of larger development within the 200 block of SE 7"' Avenue, as has happened in the 300 block of SE 7"' Avenue, creating a difficult situation for the smaller scaled properties on the west side of the street, and compromising the integrity of the historic district, as a whole. The Delray Beach Historic Preservation Design Guidelines recommend the following with respect to new construction: The relationship of new consfruction adjacent to significant historic resources can either enhance or detract from the historic setting of the district. It does not appear that the structure, as proposed, would enhance the historic district within which it is located. All new construction should compliment the historic architecture of the district. While the style may be appropriate, the large mass, scale, and volume is not complimentary. The character of the massing should be compatible with the surrounding buildings. The mass of the proposed structure clearly outweighs that of the surrounding buildings, inclusive of the adjacent two-story structures located immediately to the north and south. ASSESSMENT & CONCLUSION The City has recently conducted a comprehensive review of the LDRs as they pertain to the review of new development within the city's five (5) historic districts. The comprehensive review was a direct result of large-scaled development proposals that were inappropriate, out of scale, and not visually compatible to their respective historic districts. The subject proposal contains those same elements that forced the city into asix-month moratorium, and as such, requires a great deal of revision. Visual compatibility is the main determinant in the review criteria required by the Board for the properties within the districts, and it has clearly not been achieved. In the Staff Report for the demolition, the Staff assured the Board, as well as the public, that "the design of the new dwelling will be required to meet strict historic preservation design guidelines to ensure compatibility with design and massing in .relation to the surrounding area" and "any new structure will have to be compatible with the other waterfront properfies in the district "With that, it was demonstrated in the FAR table that compatibility with the waterfront properties was not a factor in the subject proposal. While one may argue that the waterfront properties within the 300 block are compatible with the subject proposal, those properties are neither in close proximity nor are they examples of compatible development within the historic district. Existing out of scale development does not allow for certain design liberties to take place for new development, nor is it relevant to the visual compatibility requirements of the LDRs and guidelines. It must be noted that while the LDRs do not require that applications maintain an FAR consistent or compatible with that of the surrounding areas, it is suggested that this would be an appropriate starting point at providing a more compatible development within the Marina Historic District. A reduction in the second story is clearly necessary. Additionally, one-story elements with setback second story walls should be implemented to break up the mass on the east elevation; the views would remain, while the impact would be reduced. There is a wonderful rhythm that the properties within the Marina Historic District create along the Intracoastal Waterway, and the application, as proposed, would permanently interrupt that rhythm. The application should not be approved as submitted. While it does not meet any of the required review criteria for visual compatibility, it could, essentially, be denied. However, in addition to an overall revision, Staff recommends that the application is continued with direction. The main points noted throughout the report are not new to the applicant, authorized agent, or developer, as they met with Staff during a preliminary meeting regarding the overall development. However, Staff received notification that the application would move forward for review by the Board as originally submitted. Therefore, based upon the analysis above and contained throughout the Staff Report, positive findings cannot be made with respect to LDR Sections 4.5.1(E)(4), (E)(7) and 4.5.1(E)(8)(a-k), the Delray Beach Historic Preservation Design Guidelines, and the Secretary of the Interior's Standards for Rehabilitation. ALTERNATIVE ACTIONS A. Continue with direction. B. Approve the Certificate of Appropriateness for 706 SE 2"d Street, Marina Historic District, based on positive findings with respect to LDR Sections 4.5.1(E)(4), (E)(7) and 4.5.1(E)(8)(a-k), the Delray Beach Historic Preservation Design Guidelines, and the Secretary of the Interior's Standards for Rehabilitation. C. Deny the Certificate of Appropriateness for 706 SE 2"d Street, Marina Historic District, based upon a failure to make positive findings with respect to LDR Sections 4.5.1(E)(4), (E)(7) and 4.5.1(E)(8)(a-k), the Delray Beach Historic Preservation Design Guidelines, and the Secretary of the Interior's Standards for Rehabilitation. l~-=- ~ RECOMMENDATION Continue the Certificate of Appropriateness for 706 SE 2"d Street, Marina- Historic District, based upon a failure to make positive findings with respect to LDR Sections 4.5.1(E)(4), (E)(7) and 4.5.1(E)(8)(a-k), the Delray Beach Historic Preservation Design Guidelines, and the Secretary of the Interior's Standards for Rehabilitation with the following direction: 1. That the property survey is revised to show the distance to the centerline and crown of road; 2. That the types of windows and their finish are noted within the window schedule; 3. That the overall scale and mass are reduced to provide a more visually compatible development; 4. That the east elevation is broken up to provide one-story masses while setting back the second story; 5. That the east elevation is broken up to provide a less massive appearance with one and two story elements; 6. That the entry is revised to be more prominent; 7. That consideration is given to separate the garage/guest cottage to provide an accessory structure; 8. That the windows contain multi-light configuration, rather than single panes of glass; 9. That the picture windows are divided and contain muntins; 10. That the parapets contain coping; 11. That windows appropriate to the style are used with more decorative elements; 12. That all wall-mounted lighting specifications are submitted; Report Prepared by: Amy E. Alvarez, Historic Preservation Planner Attachments: • Location Map • Survey • Proposed Site Ptan, Elevations, Floor Plans, and Landscape Plans • Photos of property and surrounding properties from across Intracoastal Waterway and SE 7fh Avenue ~ ~~ ~-! ~ ~ii~i a_- ~ iii '~ A T L A N T I C A V E N U E ~ ~ i iii !~ a o~~~ a Q o Q Q ~ a W S.E. IST ST. ~ MIRAMAR DRIVE 3 J (~ ~ Q _2 ~ Z 3 W W _ (n (~ a S.E. 2N0 ST. INGRAHAM NU i.i ~ i.i w vi vi ~ S.E. RD ST. BAY ~ ~ Z Z ~ ~ O ~ N m J ~ ~ ~ Q LANGER WAY ~ O ~ Z F- a w z w Q > S.E. qi}{ ST. Q CASUARINA U o ~' Q ~ a ~ ~ ~ F- BUCIOA RD. -' Z z W o Q ~~ ~l - W w - Z > > ~ ~ o ~ Q Q LLLLllJ S.E. 6iH ST. MELALEUCA RD. S = ~ ~ O ~ ~ Q ~aRlSSq O N 706 SE 2ND STREET -'~" CITY OF DELRAY BEACH, EL PLANNING 6e ZONING DEPARTMENT - 12-43-46-16-12-000-0051 - ®SUBJECT PROPERTY LOCATION MAP -- OlC/TAL BASE MAP SYS7EM -- MAP REE: LM986 ', sheet 2 012 (Sketch ofSurvey) -See Sheet 1 or 2 kx Legal De' ', Certificalrons, Property and other Survey related Bala. 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" ~ -r _ ~.~ li ,d, 1' W ^~ aW -~--~ ~~ 0 April 4, 2007 Ms. Chevelle Nubin City Clerk City of Delray Beach 100 NW 1st Avenue Delray Beach, Florida cc: Susan Ruby, City Attorney David Harden, City Manager Paul Dorling, Planning 8~ Zoning Director ~~ ~(~ CITY CLEkK Re: Appeal of the Historic Preservation Decision of COA 2007-070 Subject Properly: 706 SE 2nd Street, Marina Historic District Dear Ms. Nubin: This is a notice of appeal for action taken by the Historic Preservation Board on March 21, 2007, to approve the Certificate of Appropriateness (COo^007-070) for new construction of a single family residence on property located at 706 S ire tin the 11Aarina Historic District. The Historic Preservation Board's decision was inconsistent with the provisions set forth in the Land Development'Regulations for the City of Delray Beach, the Delray Beach Historic Preservation Design Guidelines and the Secretary of the Interior Standards for Rehabilitation. We are deeply concerned about the Historic Preservation Board's repeated approvals of these large-scale construction projects that do not comply with local ordinances and historic district guidelines- New construction that is not consistent or compatible with the designated historic district not only jeopardizes the historic integrity and character of the district, but has a direct impact on the surrounding historic neighborhood in which we reside (160 ~Aarine l~'ay and 131 S.E. Seventh Street). We are asking that the approval of Certificate of Appropriateness 2007-070 be reversed and that the application be subsequently denied by the Delray Beach City Commission. The owner of the subject property should be allowed to resubmit a new application with an appropriate design that is consistent, compatible and in compliance with the Land Development Regulations, Delray Beach Historic Preservation Design Guidelines and the Secretary of the Interior Standards for Rehabilitation. We are requesting that we be allowed to present our case to the City Commission at an upcoming meeting. Respectfully, ~ laudia Willis Cheryl Jones 160 Marine Way 131 S.E. Seventh Street Delray Beach, FL Delray Beach, FL I~HY-15-LUU r I ut 1 C ~ ~u rl"I r nn Ivu, LA911 OFFICES SHUBIN & BASS r, u~iu~ P R O F E S S I O II A L A S S O C l A T 1 0 H VIA FACSIMILE (561.243.3774), EMAIL, AND HAND DELIVERY May 15, ?007 C1levelle D. Nubia nubin@ci. delray-beach. fl.us City Clerk, City of Delray Beach City Hall 100 N.W. 1st Avenue, Second Floor Delray Beach, FL 3344=~ Re: .=1p~eal of the Historic Preservatio» Board's Decisior!/7(J6 Southeast ?" Sty~eet, item 9.A on the Alav 1 ~, 20U7 Commission Agefzc~a Dear Ms. Nubia: Slnibin & Bass, P.A. has been retained to assist Ms. Claudia Willis, who owns property anal resides at l64 Marine Way, and Ms. Cheryl Jones, who owns property and resides at 131 S.E. Seventh Street, (the '`Appellants") in their appeal of the Historic Preservation Board's (:``HPB") March 21, ?007 approval of a Certificate of Appropriateness ("COA") for the proposed construction of a single- family home at 706 S.E. Second Street ("Proposed Construction"). The Appellants have standing to take this appeal because they own property and reside within S00 feet of'the Proposed Construction site. On behalf of the Appellants and other affected residents and property owners of the City of Delray Beach, please let this con-espondence serve as a formal legal objection to item 9.A on tonight's Commission agenda and item 9.B on the April 17, ?007 agenda. Through this letter, we incorporate all of the proceedings below, including all documents presented for review, minutes, and recordings before the HPB and the Commission, into the record of this proceeding. Although the Appellants appeared and objected personally a.t the April 17 meeting along with their expert, as they will at tonight's meeting, we wanted to crystallize their objections to this project and make it abundantly clear to the City the legal basis for the Appellants' appeal. 46 S.W. 1st Street, 3rd Floor, Miami, FL 33130 Ph: 305.381-6060 Fx: 305.381.9457 www.shubinbass.com lldL~;M~aG~'r~~au~,~~If 9A I'IHT-1~-NUl lut 1C~3u rn rrln Ivu, r, u.~iu.~ The bases for the objection and appeal include, but are not limited. to, the following: (1) the City failed to follow its own laws including, but not limited to, ensuring that the HPB is comprised of 5 professionals and 2 laypersons; (2) the Proposed Construction and issuance of the COA are inconsistent with the City's comprehensive plan, its land development regulations, and the guidelines for development and historic preservation; and (3) the City failed to provide due process by (a) not adequately disclosing the content of the ex pay-te communications between the Commissioners and the applicant and (b) closing the public hearing portion of the quasi judicial proceeding, permitting the architect to submit revised plans, but failing to have those plans available for timely review by the Appellants or to permit the Appellants to present their objection to those revised plans. For those reasons, we ask that the City grant the appeal. of the COA. To the extent that the City denies this appeal., this firm maintains .that it has perfected the claims of this tine's clients regarding the propriety of the Proposed Construction and the issuance of the COA. Accordingly, please present this objection to the Commission and place it in the official "record" of tonight's hearing on this item. I will also be present to object in person, should we be permitted to do so. Sincerely, -~>~~-~ - Elaine D. Walter For the Firm. Cc: :Susan A. Ruby, Esq., City Attorney (561.278.4755 and CityAttoi-neyr~MyDelrayBeach.com) Cheryl Jones Claudia Willis Livia Landry SHUBIN & BASS, P. A. Page 1 of 1 Nubin, Chevelle From: Elaine D. Walter [ewalter@shubinbass.com] Sent: Monday, June 04, 2007 1:44 PM To: Nubin, Chevelle Cc: CityAttorney@MyDelrayBeach.com; warren adams; c_diver@netzero.com; Claudia Willis@bellsouth.net; LandryTennis@aol.com Subject: Objection to Item 9.A on the June 4, 2007 Commission Agenda Attachments: 6-4-07 letter of objection.pdf Dear Ms. Nubin, The attached document is a letter of objection to item 9.A on this evening's City of Delray Beach Commission Agenda (Appeal of the Historic Preservation Board's Decision/706 Southeast 2"d Street). Please enter it into the record of that proceeding. A copy of this letter was also fazed to your attention, and I will bring the original with me to the Commission meeting for your records. Thank you for your assistance. Regards, Elaine Walter Elaine D. Walter Shubin & Bass, P.A. 46 S.W. 1st Street Third Floor Miami, Florida 33130 t: (305) 381-6060 f:(305) 381-9457 e: ewalter~shubinbass.com IRS Circular 230 Disclosure: To comply with certain U.S. Treasury regulations, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this communication, including attachments, was not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding any penalties that may be imposed on such taxpayer by the Internal Revenue Service. In addition, if any such tax advice is used or referred to by other parties in promoting, marketing or recommending any partnership or other entity, investment plan or arrangement, then (i) the advice should be construed as written in connection with the promotion or marketing by others of the transaction(s) or matter(s) addressed in this communication and (ii) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. *** eSafe scanned this email for malicious content *** *** IMPORTANT: Do not open attachments from unrecognized senders *** QdeW+rM~Q~ Lw~'.ua~bi. d'm- Ue.~. 9. A 6/4/2007 ~~ \ LAW OFFICES SHUBIIV & BASS P R O F E S S I O N A L A S S O C I A T I O N VIA FACSIMILE (561.243.3774), EMAIL, AND HAND DELIVERY June 4, 2007 Chevelle D. Nubin nubin@ci . defray-beach. fl.us City Clerk, City of Delray Beach City Hall 100 N.W. 1st Avenue, Second Floor Delray Beach, FL 33444 Re: A~eal of the Historic Preservation Board's Decision/706 Southeast 2 Street, item 9.A on the June 4, 2007 Commission Agenda Dear Ms. Nubin: This letter concerns the continued objections of our clients, Ms. Claudia Willis, who owns property and resides at 160 Marine Way, and Ms. Cheryl Jones, who owns property and resides at 131 S.E. Seventh Street, (the "Appellants"), in their appeal of the Historic Preservation Board's ("HPB") March 21, 2007 approval of a Certificate of Appropriateness ("COA") for the proposed construction of asingle-family home at 706 S.E. Second Street ("Proposed Construction"). The Appellants have standing to take this appeal because they own property and reside within 500 feet of the Proposed Construction site. Appellants and their historic planner, Warren Adams, will be in attendance to present the Appellants' objections to the revised plans for the proposed construction of asingle-family home at 706 S.E. Second Street ("Proposed Construction"), should the Commission re-open the floor for comment. This letter serves to fully preserve Appellants' legal issues regarding those plans and the Commissions review thereof, should the floor not be re-opened. The legal bases for the objection and appeal include, but are not limited to, the following: (1) the City failed to follow its own laws including, but not limited to, ensuring that the HPB is comprised of 5 professionals and 2 laypersons; (2) the Proposed Construction and issuance of the COA are inconsistent with the City's comprehensive plan, its land development regulations, and the guidelines for 46 S.W. 1st Street, 3rd Floor, Miami, FL 33130 Ph: 305.381.6060 Fx: 305.381.9457 www.shubinbass.com development and historic preservation; and (3) the City failed to provide due process by (a) not adequately noticing the June 4, 2007 Commission meeting, (b) not adequately disclosing the content of the ex parte communications between the Commissioners and the applicant and (c) closing the public hearing portion of the quasi judicial proceeding, permitting the architect to submit revised plans, but failing to re-open the floor to the appellant to address or for public comment on those revised plans. For all of these reasons, we ask that the City grant the appeal of the COA. To the extent that the City denies this appeal, this firm maintains that it has perfected the claims of this firm's clients regarding the propriety of the Proposed Construction and the issuance of the COA. T'he factual bases for these assertions are contained, in part, in the record of the previous proceedings on this issue. Accordingly, through this letter, we incorporate all of the proceedings below, including all documents presented for review, minutes, and recordings before the HPB and the Commission, into the record of this proceeding. Additionally, the attached memorandum from historic planner Warren Adams to the Appellants outlines the continued areas of inconsistency between the Proposed Construction and the city's comprehensive plan, its land development regulations, and the guidelines for development and historic preservation. Please present this letter of objection to the Commission and place it in the official "record" of tonight's hearing on this item. As previously stated, the Appellants and their historic planner will be present to object in person, should they be permitted to do so. We will also present the originals of this letter, and the supporting enclosures, to the city clerk at that time. Sincerely, ,_.i% ~ Elaine D. alter For the Firm enclosures cc: Susan A. Ruby, Esq., City Attorney (561.278.4755 and Ci Attorney~a~MyDelrayBeach.com) Ms. Cheryl Jones Ms. Claudia Willis Ms. Livia Landry Mr. Warren Adams 2 SHUBIN & BASS, P. A. 1020 NW 8~' Street Boynton Beach, FL 33426 Claudia Willis 160 Marine Way Delray Beach, FL 33483 June 3, 2007 Dear Ms. Willis, Re: Appeal of the Historic Preservation Board's approval of new construction at 706 SE 2"d Street, Delray Beach With regard to the appeal against the above project, I have noted the following: 1. At the City Commission meeting of May 1, 2007, the applicants agreed to make a number of revisions to the original plans. The following appear to have been made: • Northwest balcony removed; • Bedroom, bathroom and closet removed from the second floor, west elevation; • The guest suite over the garage has been removed; • East covered terrace has been removed • The three-car garage has been reduced to a two-car garage; • The stair to the guest suite has been removed. However, the following agreed amendments do not appear to have been made: • Removal of the covered gallery; • Removal of the south loggia; • Removal of the roof over the master covered terrace. 2. Section 4.5.1(E)(7) of the Land Development Regulations states: `The construction of new buildings or structures within a designated historic district shall meet the same compatibility standards as any material change in the exterior appearance of an existing non-contributing building. Any material change in the exterior appearance of any existing non-contributing building, structure, or appurtenance in a designated historic district shall be generally compatible with the form proportion mass configuration. building material texture color and location of historic buildinas structures. or sites adioinina or reasonab/v approximate to the non-contributing building, structure, or site. Section 4.5.1(E)(8)Q) of the LDRs states: 'The size of a building, the building mass in relation to open spaces, windows, door openings, balconies, and porches shall be visually compatible with the building size and building mass of historic sites. buildinas and structures within a historic district'. The Delray Beach Historic Preservation Design Guidelines state: `All new construction should compliment the historic architecture of the district'. The Secretary of the Interior's Standards state: `New additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massina size scale and architectural features to protect the historic integrity of the property and its environment'. The revised plans have a total floor area of 9,464 square feet, which gives an FAR of 42% (the lot area is 22,487 square feet), and an under air floor area of 7,060 square feet, which gives an FAR of 31 %. Looking at the attached table, the total floor area of the historic structures ranges from 1,038 square feet to 5,656 square feet. The subject property is clearly much larger and therefore not compatible in terms of floor area with the district's historic structures. Even comparing it with the largest historic structure in the district (219 SE 7th Avenue) which, incidentally, is not wholly historic as it has been added to, the proposed new structure is not compatible. 219 SE 7th Avenue has a total floor area of 5,656 square feet (FAR 15%), and an under air floor area of 4,435 square feet (FAR 12%). While the LDRs are clear that new construction should be compatible with historic structures in a district, the City of Delray Beach Historic Preservation Planner has analyzed the scale of the new structure by placing additional emphasis on the immediately surrounding properties which contain both historic and non-historic structures. This is of clear benefit to the applicant as the more recent homes are generally larger than the majority of the historic building stock. Again, however, this analysis shows that, in terms of square footage, the proposed new structure is incompatible with the district as the next largest house (219 SE 7th Avenue) is 5,656 square feet and the largest FAR is 30% (711 SE 3~d Street). To comply with the LDRs, the total and under air square footage of the proposed new structure should be further reduced. Also, the massing of the proposed new house, in particular the east, and most visible, elevation, appears incompatible with the historic structures in the district. Consideration should be given to reducing the massing on this elevation by reducing the length of the frontage and removing some of the second story elements, both of which will have a positive impact on the current excessive square footage. 3. With regard to the recommendations in the City Preservation Planner's report of March 21, 2007, the following directions do not appear to have been met: • The overall mass and scale has not been sufficiently reduced to provide a more visually compatible development. • The east elevation has not been broken up to provide one-story masses and the second floor has not been set back. • The east elevation has not been broken up to provide a less massive appearance with one and two story elements. • The entry has not been revised to be more prominent. • The garages are not separate accessory structures. • Many of the windows have not been altered and there are still windows with large single panes of glass. • The parapets do not appear to have been amended to contain coping. 4. When approval for the demolition of the original structure on the site was given in 2005, the Staff Report stated that: "the design of the new dweUing will be required to meet strict historic preservation design .au~delrnes to ensure compat~brl~ty with design and massing in relation to the surrounding area_ ; and `anv new structure will have to be compatible with the other waferfront properties rn the d~strrct'. The applicant should therefore have been fully aware of the LDRs with regard to historic districts, the Delray Beach Historic Preservation Design Guidelines and the Secretary of the Interior's Standards for Rehabilitation prior to submitting an application for new construction. These are my initial comments on the amended proposal for the property at 706 SE 2"d Street, Delray Beach. Please contact me if you require any further information. Sincerely, Warren Adams Attached: Marina District Floor Area Ratio for Historic Structures Table c/c Cheryl Jones Marina District Floor Area Ratio Date Total Area Lot Area FAR SE 3rd Street 708 1928 4045 12569 32 SE 7th Avenue 214 1935 1038 5663 18 218 1950 2374 6426 37 219 1950,1985 5656 37290 15 222 1930 1491 6970 21 228 1935,1936 1301 7841 17 232 1935 1312 6970 19 238 1935 1855 6899 27 300 1957 2405 14282 17 303 1955 1710 8297 21 318 1978 5732 22286 26 340 1958 1876 9004 21 SE 4th Street 603 1943 1080 9848 11 Marine Wa 200 1929 3319 21840 15 U/A Area FAR 3010 24 776 14 1890 29 4435 12 849 12 1261 16 888 13 1520 22 1973 14 1674 20 0 0 1428 16 1080 11 2648 12 Total 35194 296 215 Properties 14 14 14 Average ..__ _ __ ,,.~~- ~~ ~.~ _ ~~; ,G .._..;~ MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: PAUL DORLING, AICP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER DATE: June 4, 2007 SUBJECT: Q.B SEPARATION OF 750' FROM LOT LINE TO LOT LINE FOR STAND ALONE BARS ITEM BEFORE COMMISSION Waivers to two LDR sections, the first, prohibits granting a waiver relating to use of land or structures while the second requires a minimum separation of 750' from lot line to lot line for stand alone bars. The waivers are sought in connection with the Last Resort Saloon located at 4305 South Federal Highway. BACKGROUND The applicant is relocating a stand alone bar (Las# Resort Saloon) from Tropic Isles Shops (Tropic Boulevard and South Federal Highway) to Pelican Harbor Shoppes (Tropic Isles Drive and South Federal Highway). Internal renovations have been completed and the applicant has requested a liquor license which requires confirmation from the City that the facility is permitted. The request included certification from a surveyor that a minimum 750' separation between this facility and a stand alone bar located in the shopping center to the north (Delray Shopping Center) was met. However in reviewing the request it was discovered that the surveyor measured from bar to bar verses from lot line to lot line as required by the LDRs. In one case the minimum separation is met (985') and in the other it is not (200'). The applicant is therefore seeking relief from the City Commission via these waiver requests. Waiver Analysis: Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. City Commission Regular Meeting -June 4, 2007 Waiver Request -Stand Alone Bars The applicant has submitted the following narrative in support of the waivers: "1 believe special circumstances apply given the size and scale of the bays located in the Pelican Harbor Shopper and South Delray Shopping Center. Given the circumstances the intent of the LDR requirement {separation of a minimum of 750 feet) is achieved. (985 feet of separation is provided). However LDR requires the measurement to be taken from the lot line resulting in only 200 feet of separation between lots': The request before you represents a unique situation involving very large lots which given the current LDR language would have the potential to require a much greater minimum distance between bars located on these properties than originally envisioned with the creation of the ordinance. Granting of the waivers under these unique conditions would even the playing field and would not diminish the intent of the ordinance to maintain a minimum separation of at least 750 feet between stand alone bars. RECOMMENDATION Approve the waivers to LDR Section 2.4.7(B)(1)(b)(i) prohibitions of waivers for use of land or structures and LDR Section 4.3.3 (~(2)(a) which requires a minimum separation of 750 feet from lot line to lot line between stand alone bars based on positive findings with LDR Section 2.4.7(6)(5). Attachments: ^ Waiver request letter from the applicant dated May 9, 2007 ^ Aerial exhibit 2 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUEST FOR LAST RESORT SALOON ORDER OF THE CITY COMMISSION OF THE CITY OF pELRAY BEACH, FLORIDA 1. These waiver requests have come before the City Commission on June 4, 2007. 2. The Applicant and City staff presented documentary evidence and testimony to the City Commission pertaining to the waiver requests by the Last Resort Saloon. All of the evidence is a part of the record in this case. Required findings are made in accordance with Subsection I. I. WAIVERS: LDR Section 2.4.7(B)(1(b)(i) provides that the City Commission may not consider a waiver to matters which pertain to the use of land or structures, under this section. LDR Section 4.3.3(V)(2)(a) requires a minimum separation of 750 feet from lot line to lot line between stand alone bars. The Applicant has requested a waiver to this section to allow for the relocation of the Last Resort Saloon. Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and, (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. Do the waiver requests mee# all the requirements of 2.4.7(8)(5)? Yes No 3. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the application was submitted and finds that its determinations set forth in this Order are consistent with the Comprehensive Plan. 1 4. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses supporting these findings. 5. Based on the entire record before it, the City Commission approves denies the waiver requests to LDR Sections 2.4.7(B)(1(b)(i) and 4.3.3(~(2)(a). 6. Based on the entire record before it, the City Commission hereby adopts this Order this 4th day of June, 2007, by a vote of in favor and opposed. ATTEST: Rita Ellis, Mayor Chevelle Nubin, City Clerk a Last Resort Saloon, Inc. 3205 S. Federal Highway #7 Delray Beach, Florida 33483 561-279-8686 City of Delray Beach 100 N.W. 1St Avenue Delray Beach, Florida 33444 May 9, 2007 Dear Mr. Paul Dorling, I would like to address the city commission to request a waiver of Ordinance 4.3.3(V)(2)(a) which separates stand alone bars by 750 feet from lot line to lot line. I believe special circumstances apply given the size and scale of the bays located in the Pelican Harbor Shoppes and South Delray Shopping Center. Given the circumstances the intent of the LDR requirement (separation of a minimum of 750 feet) is achieved. (985 feet of separation is provided). However LDR requires the measurement to be taken from the lot line resulting in only 200 feet of separation between lots. Because time is of the essesnce I ask to be heard at the next commission meeting on May 15, 2007. I am including some exhibits with this request. Sincerely, Beverly Storey Owner, Last Resort Saloon, Inc. w ~~ r .~ . ,~. ~~ ~~ ~ ti :~ ,..~.. , I,~ ~~~ l!. 3, ,~ ;,, _ ~ ~~ f®~ ~ ~ ( ' fi -- L.c~S~" oY'~ j~rrr~ ot~ ~~GS ri0~'~Vl{'V~l ~Olc/I~ ~~ ~ ~ 5 ~ ~~-~ - ,Set.l~'t ~elr~ Sh~PpinS ~~~~ '1SI ~ce~ No~fl~ ~"o ~~dX~ Boca Raton/Delray Beach News -Thursday, May 24, 2007 • www.bocanews.com 12 CITY OF DELRAY BEACH NOTICE OF PUBLIC NEARING The City Commission vdll conduct Public hearing On Monday, June 4, 2007, in the Commission Chambers a City Half, 700 N.W. ist Avenue, Del- ray Beach, Florida (or at any continu- atbn of such meeting which is set bo~I~ the City Commission). Pursuant t Section 30.15 bf the Code of Ordi- nances the City Commission will con sider a waiver of Lath Developmen Regulation Sections 2.4.7(B){i)(b)(i) and 4.3.3{V)(2)(a). The waiver rea, quest from Section 2.4.7(6)(7 )(b)(i) isl to waive the prohidtion against seek ~ ing a waiver for use of land or strut= lures regulations. The waiver request Irom Sectio 4.3.3(V)(2)(a) is to albw a retluctior, i the required separation distance Iro 'S0 lest to 200 lest when measured from lot line to lot line for Last Reso Saloon, Inc. a proposed stand elan bar to 6e located within the Pelican Harbdr Shoppes, and an existing stand alone bar within the South Oel- ray Shopping Center. Both tacililie are located within shopping center and the separation distance betwee the stand alone bar builtlings is ap ;proximately 9&5 feet. All interested parties are invited to at tend the public hearing and comment upon the proposed action or submi, their comments in writing on or before) the tlale of the hearing to the Plan• !. ning and Zoning Department. For fur- Iher information please contact Paul Dorling, AICP, Planning and Zoning Director, 100 NW 1st Avenue, Delra~ Beach, Florida 33444 (e-mail atII pzmail@tlelrayplanninq.org), Phon~ 561!243-704D, between the hours o 8:00 A.M. and 5'00 P.M. on weekday (excluding holidays). PLEASE BE ADVISED THAT IF Ai, PERSON DECIDES TO APPEAL ANY DECISION MADE BY THE CIT-YI' COMMISSION WITH RESPECT Tlry ANY MATTER CONSIDERED AT THIS HEARING, SUCH PERSON, WILL NEED A RECORD OF THEI PROCEEDING, ANO FOR THIS PUR-, POSE SUCH PERSON MAV NEEO~ I TO ENSURE THAT A VERBATIM, ~ RECORO OF THE PROCEEDING IS''~, I MADE, WHICH RECORD INCLUDES ! THE TESTIMONY AND EVIDENCE] UPON WHICH THE APPEAL IS'~i BASEO. THE CITY DOES NOT PRO- VIDE OR PREPARE SUCH RECORD ', PURSUANT TO FS. 2a5.0105. CITY OF DELRAY BEACH Chevelle D. Nubin. CMC City Gerk PuL4ish: Thurs. May 24, 2007 '~, Boca RatonlDelray Beach News I MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: DERRICK COOK, PLANNER PAUL DORLING, ACIP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER DATE: MAY 31, 2007 ~ ~ SUBJECT: AGENDA ITEM # REGULAR MEETING • EVENT. ITEM BEFORE COMMISSION The waiver request is to allow a site plan modification to be submitted under the °Act of God" provision within the Land Development Regulations (LDR) more than a year since the "event" occurred and to provide additional construction time beyond the three (3) year maximum from the date of the event. BACKGROUND The property was annexed into the City of Delray Beach on December 13, 1988, as a part of the enclave annexation act. It contains an existing ten (10) unit multifamily development located at 1000 N.E. 9~' Avenue. The multifamily development is an existing lawful nonconforming structure and site with respect to density and parking. The development experienced damage in October 2005 during Hurricane Wilma and the applicant wishes to substantially upgrade the site maintaining the existing density and parking. Pursuant to LDR Section 1.3.8(A), if a lawful nonconforming residential or commercial structure is damaged or destroyed by an Act of God (the event), the owner shall be permitted to rebuild the structure in accordance with the use and number of units permitted by the certificate of occupancy in existence prior to the occurrence of the event. Where necessary, in order to accommodate the same number ~of such units, structures may be reconstructed to heights previously established on building permit plans approved prior to the occurrence of the event. However, pursuant to LDR Section 1.3.8(B), in order to receive approval for rebuilding pursuant to the Section, application for building permits must be submitted within one year of the date on which the event occurred and ail reconstruction must be completed within three years from the date of the event. The applicant has experienced delays in recovering insurance monies for the damage and was unable to meet the above time line. Thus, the applicant is seeking relief from that requirement via this waiver request. Waiver Analysis: Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: City Commission Meeting -June 4, 2007 Waiver Request LDR Section 1.3.8(B) Page 2 (a) Shall not adversely affect the neighboring area; (b) Shall not significantly diminish the provision of public facilities; (c) Shall not create an unsafe situation; and/or (d) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. The following is a portion of the narrative submitted by the applicant in support of the waiver request: "...Due to circumstances beyond the control of our client, the one year restriction for permits could not be met. This property was purchased by our client shortly after Hurricane Wilma struck South Florida. However, the previous owner of this property had made an insurance claim with Citizens Property Insurance when Hurricane Wilma hit and our client did not want to alter the state of the building until this claim had been settled, thus stalling the submittal process..." The request before you represents a unique situation in that renovations to the property have been deferred because of litigation proceedings between the former owner of the property and Citizens Property Insurance. The applicant's client has maintained the integrity of the damaged property until the insurance claim has been resolved. It is reasonable to assume that similar relief would be granted to other property under similar circumstances. Therefore, granting of a waiver under this condition would not be a special privilege and required findings can be made. RECOMMENDATION Approve the waiver from LDR Section 1.3.8(B) which requires repairs associated with an "Act of God" to submit a building permit within one year of the date on which the event occurred and that all reconstruction must be completed within three years from the date of the event based on positive findings wi#h LDR Section 2.4.7(B) (5). Attachments: ^ Waiver request letter from the applicant dated May 2, 2007 ^ Letter from Property Owner dated April 30, 2007 ^ Location Map IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA ORDER OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA WAIVER REQUESTED BY HAMMOCK HOUSE 1. These waiver requests came before the City Commission on June 4, 2007. 2. The City staff, applicant, and other persons have presented documentary evidence and testimony to the City Commission pertaining to the waiver request of Hammock House. All of the evidence is part of the record in this case. 3. Waiver: Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body shall make a finding that the granting of the waiver: (a) shall not adversely affect the neighboring area; (b) shall not significantly diminish the provision of public facilities; (c) shall not create an unsafe situation; and (d) does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. 4. Reconstruction Necessitated by Acts of God: Per LDR Section 1.3.8 (B), permits must be submitted within one (1 } year of the date of which the "Act of God" occurred and all reconstruction must be completed within three (3) years from the date of the event. The Hammock House was damaged by Hurricane Wilma in October, 2005 and the applican# has just submitted for a permit. Should the waiver be granted? Yes No 5. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original site plan was submitted. 6. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained in the record including but not limited to the staff reports, testimony of experts and other competent witnesses which supports the findings set forth in this Order. 7. Based on the entire record before it, the City Commission finds consistency with the Comprehensive Plan and approves denies the waiver request and hereby adopts this Order this day of June, 2007, by a vote of in favor and opposed. Rita Ellis, Mayor ATTEST: Chevelle Nubin City Clerk 2 LAKE AVENUE N. }- Z dW N.E. 14TH ST. (LAKE AVE.) O Z 2 ~ ~ 3 ~r J~°I GEORGE 1 ~ ~ Z Z ~ ~ O O m m = O ~ Z N.E. 7TH N.E. 7TH CT. ST. LAKE AVENUE S. ~i x WAY ~ a J w > Q WITHERSPOON LANE ~ Q McKEE LN. ~ ~ U Q J_ Q w ~ z Z J a BOULEVARD Q Lil Q N S~B,~~rr~~~~R,-r HAMMOCK HOUSE ~- 12-43-46-09-49-000-0230 CITY OF DELRAY BEACH, Fl LOCATION MAP PLANNING do ZONING DEPARTMENT -- DIGITAL BASE MAP SYSTEM -- MAP Rth: LM1U1D WEINER & ARONSON, P.A. ATTORNEYS AT LAW The Clark House 102 North Swinton Avenue Delray Beach, FL 33444 Telephone: (561) 265-2666 Telecopier: (561) 272-6831 E-mail: jmankoff@zonelaw.com MICHAEL S. WEINER CAROLE J. ARONSON May 2, 2007 Mr. Paui Dorling Director of Planning and Zoning City of Delray Beach 100 N.W. 1 st Avenue Delray Beach, Florida 33444 ~,~~ JASON S. MANKOFF KERRY D. SAFIER SHAYNA M. REITMAN Via Hand-Delivery Re: Waiver Request for Hammock House located at 1000 NE 9~h Avenue Our File No.o LEHB004 Dear Paul: This letter is a waiver request pursuant to Section 2.4.7(6)(2) of the Delray Beach Land Development Regulations ("LDR") involving the granting of relief from ane (1) specific development regulation. Enclosed is a check in the amount of One Hundred Twenty Dollars ($120.00) made payable to the City of Delray Beach, representing the cost of our request for waiver to LDR Section 1.3.8 (B). To support a waiver, LDR Section 2.4.7(8)(5) requires that the aovernina body make a finding that granting a waiver: (A) Shall not adversely affect the neighboring area; (B) Shall not significantly diminish tFfe provision of public facilities; (C) Shall not create an unsafe situation; and (D) Does not result in the grant of a special privilege in that the same waiver would be granted under similar circumstances on other property for another applicant or owner. We meet or exceed the requirements of LDR Section 2.4.7(8)(5) for this waiver request. Thus, this waiver request should be approved based on the following: Pursuant to LDR Section 1.3.8(6), applications for building permits must be submitted within one year of the date on which the "Act of God" occurred and all reconstruction must be completed within three years from the date of the event. O:ILEHB0041Letter to Paul Dorfing re waiver request. Nlay 2. 2007.doc Mr. Paul Dorling May 2, 2007 Page 2 of 2 This is a request to allow a site plan modification to be processed even though it has been more than one (1) year from the "Act of God" and as a result, may take more than three years from the date of the event to complete construction. This waiver will not adversely affect the neighboring area, significantly diminish the provision of public facilities, create an unsafe situation or result in a grant of a special privilege to our client. Conversely, this project will better the surrounding neighborhood by creating an aesthetically pleasing development and in doing so enhance its character while promoting a safer environment. Due to circumstances beyond the control of our client, the one year restriction for permits could not be met. This property was purchased by our client shortly after Hurricane Wilma struck South Fiorida. However, the previous owner of this property had made an insurance claim with Citizens Property Insurance when Hurricane Wilma hit and our client did not want to alter the state of the building until this claim had been settled, thus stalling the submittal process. Enclosed please find a letter from our client further explaining these insurance issues. Moreover, a one year time restriction is not a suitable amount of time to allow for the many issues that accompany an "Act of God" to be resolved. Our client has continually shown a good faith effort with previous projects that have also been damaged by this same Hurricane which occurred in October, 2005.. These projects that have been submitted within the one year period .include Palm Terraces which was submitted in approximately April of 2006 and Courtyards at Martel Arms which was submitted in approximately November of 2005. Additionally, the Hammock House building located at 1014 NE 9t" Avenue received Site Plan Review and Appearance Board approval in approximately March 2006. As you are aware, our client intends to submit a Class III Site Plan Application combining both Hammock House properties, 1014 NE 9th Avenue and 1000 NE 9th Avenue, into one project. Consequently, a positive finding with respect to LDR Section 2.4.7(B)(5}, Waiver Findings can be made. Therefore. for the reasons enumerated above. we resnectfi~lly request that the above waiver be approved. However, due to the fact that our client did not own the property at the time the "Act of God" and due to these insurance issues, the circumstances for this project support this waiver. Thank you very much for your assistance in this matter. Very truly yours, Ja n S. Mankoff JS :ek Enclosure Cc: Dr. Barry Lehman (w/ enclosure) Michael S. Weiner, Esq. (w/o enclosure) O:ILEHB004\Letter to Paul Dorling re waiver request. May 2. 2007.doc HAMMOCK HOUSE DEVELOPMENT PARTNERS, LTD. DR. BARRY A. LEHMAN, GENERAL PARTNER 1928 THATCH PALM DRIVE BOCA RATON, FL 33432 Phone: (561)866-6142 Fax: (561)347.6405 bal@ogilviesearch.rnm Apri130, 2007 Mr. Paul Dorling Director of Planning and Zoning City of Delray Beach 100 N. W . 1St Avenue Delray Beach, FL 33444 12E: 10 unit apartment building located at 1000 N.E. 9~h Avenue, Delray Beach Dear Mr. Dorling: On October 24, 2005, Hurricane Wilma hit Delray Beach with devastating consequences. At the time of the hurricane, I owned the building located at 1014 N.E. 9 Avenue which is immediately adjacent to the above captioned property on its north side. The two buildings were almost identical in size and in design and both buildings house 10 rental apartments each. The damage from Hurricane Wilma to both buildings was immense. The roofs of both buildings were completely torn off by the high winds and all of the apartments in both buildings were subsequently soaked and destroyed by the heavy~rains that followed. Within days, I filed an insurance claim with Citizens Insurance Company, the carrier that wrote the wind insurance policy for my building. Many months later, and only because of the effective assistance of an independent insurance adjustor and the threat of litigation, my building was declared a total loss. I received a check from Citizens in the amount of $637,806.57 on June 2, 2006, some SEVEN months after I had suffered my loss!! Unfortunately, my total reimbursement was diminished by the limits of my wind policy and represented only 60% of my actual financial losses. ,~ Mr. Dan Larson, the owner of the adjacent building at the time Hurricane Wilma arrived, also suffered devastating damages to his building as a result of Wilma. He also filed a claim with Citizens for his building. However, realizing that he had not carried enough insurance on his building to repair it, Mr. Larson decided that he needed to sell his building in an "as is" condition as quickly as possible. On November 19, 2005, just several weeks after Hurricane Wilma hit, I signed a contract to purchase Mr. Carson's building in an "as is" condition. The terms of the contract also provided that Mr. Larson would retain all insurance proceeds due him for his losses as a result of Hurricane Wilma. The contract also provided that I would aid and assist Mr. Larson with his insurance claim even after I took ownership of his building. On February 19, 2006, I took title to Mr. Lazson's building located at 1000 N.E. 9`~ Avenue, Delray Beach. To this date, some 18 months later, Mr. Larson still has not received payment in full from Citizens Insurance Company for the losses sustained to his building as a result of Hurricane Wilma. Because Mr. Larson has not been paid by the insurance carrier, I have been very reluctant to start on my planned renovation of the building not wanting to disturb the current devastated state of the building while Mr. Carson's litigation with Citizens is pending. As a result of Mr. Carson's difficulties in collecting reimbursement for his losses from Citizens Insurance Company, I have endured an 18 month delay in implementing my master plan for the two adjacent buildings. In closing, I hope that the above narrative gives you a much cleazer picture of what happened 18 months ago and why it is taking so long for me to get this master plan underway. Very trul ours, ~i~--~ Dr. Barry A. ehman MEMORANDUM TO: MAy~OR AND CI~COMMISSIONERS FROM: R. BRIAN SHUTT, ASST. CITY ATTORNEY THROUGH: CITY ATTORNEY DATE: MAY 30, 2007 SUBJECT: AGENDA ITEM # - ` • ~ -REGULAR MEETING OF JUNE 4.2007 RESOLUTION N0.35-07 -RESOLUTION OF NECESSITY - SW 8TH AVE. ITEM BEFORE COMMISSION The attached Resolution of Necessity, if approved, will authorize City staff to prepare the assessment roll, mail notices and advertise a public hearing for the SW 8th Ave. Special Assessment District. This special assessment district is formed in order to charge part of the cost of the paving of SW 8th Ave., between SW 10th Street and SW 1 lth Street, to the adjacent property owners based on their front footage. The property owners cost shall not exceed $48.00 per lineal foot of frontage. BACKGROUND The actual estimated cost of construction per lineal foot, based on foot frontage, is $164.80. The cost of $48.00 per foot was determined based on a prior agreement with the Church, located along the entire length of the west side of SW 8th Ave. The remaining property owners assessment may not exceed that of the church as they are all receiving the same benefit, and thus must be assessed the same amount per foot. FUNDING SOURCE N/A RECOMMENDATION Staff recommends approval. RESOLUTION N0.35-07 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, DECLARING THE NECESSITY FOR PUBLIC IMPROVEMENTS FOR THE SOUTHWEST 8TH AVENUE AREA AS SHOWN ON EXHIBIT "A", AND DIRECTING THE ESTABLISHMENT OF A SPECIAL ASSESSMENT DISTRICT TO DEFRAY A PART OF THE EXPENSE FOR THE CONSTRUCTION OF A ROAD; PROVIDING FOR THE ESTIMATED COST OF THE IMPROVEMENTS; PROVIDING FOR THE PREPARATION OF THE ASSESSMENT ROLL. WHEREAS, the City Commission of the City of Delray Beach is authorized to impose special assessments pursuant to Article 8.4 of the City of Delray Beach Land Development Regulations and Chapter 170 of the Florida Statutes; and WHEREAS, the City Commission finds that there is a need for the paving of the SW 8th Avenue road right-of--way between SW 10th Street and SW 11th Street (improvements); and WHEREAS, the special assessment district will encompass the area as shown on Exhibit "A"; and WHEREAS, the area in which the improvements will be performed shall be known as the SW 8th Avenue Special Assessment District ("Assessment District"); and WHEREAS, the proposed improvements include the paving of the SW 8th Avenue road right-of--way; and WHEREAS, the estimated total cost to be assessed to the property owners shall not exceed the amount of $49,200.00; and WHEREAS, the City Commission directs City staff to place on file in the City Clerk's Office specifications and cost estimates for the improvements; and WHEREAS, the property owners may pay the special assessment in one lump sum no later than 60 days following final consideration of the special assessment after construction is completed or the property owners may pay the assessment in ten (10) annual installments at an interest rate of 8%; and WHEREAS, the lands upon which the special assessment shall be levied are all lots and lands adjoining and contiguous or bounding and abutting upon the road improvements or specifically benefited thereby and further designated by the map attached hereto as Exhibit "A"; and WHEREAS, the City Manager shall prepare and present to the Commission an assessment roll showing the lots and lands to be assessed and the amount of the assessment as to each. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City Commission hereby declares a need for the public improvements within the special assessment district in conformance with the above recitals and for the imposition of a special assessment in conformance with this resolution. Section 2. That this resolution shall take effect immediately upon passage. PASSED AND ADOPTED in regular session on this the _ day of , 2007. MAYOR ATTEST: City Clerk "+ ~ ~ ~~ ,~ t..~~..b.~ A +~ O ~>> ~>~/~ VJ O ~~~ VJ L .a--+ r r W s 00 (n .~ _l ~~ ^~ W ^~ W '~'^ v, ~, ~~ ~~ I _. ~ __. . _ __ ~__~ s u ~~_ ~ _-__ ., .. ~..... _~.~_ ,~ _ _---- ._.__ ---_-- - ~7fY 1~,LL ~1-S ~._~~_ 5'11 TtH J~t11E i _~_._ _ ~ ~ ~~ A ~`= 3 --®; ~ ; ~ ~ _._~__v- _ L __. __ _ ___ ~ ~ 0 E ~~ . ~~.__ ~__ .,, .. --- _~.~. ,~~__.~_ M ~~ ~ 4 e ~'' n ~ II C d H N d N N R C '~ 'a 3 V C _H d L a L U N N m N N ti 0 0 N M M O fA .' N 0 0 C C O O 0 0 0 0 0 ~ 0 0 0 0 0 0 00 00 00 00 O N rA C V ~ ~ R O ~ 69 69 b4 fH Mff3 6R y ~ d Q O ~~ 3~ ~ N 0 ~ H 1'~ O 1"'~ 3~ 1 d3 ~o 3~ ~ .~ 0 F 3 N w A a ° o ° o° ~ +~ A o o o 0 0 ~ ~ .~ o a i +~ 0 o0 00 00 0 ~ W ¢ ~ ~ ' w U Vyi N O O p Q~ ~ w U U ~ 0 0 o O o ~+ ~ ~ 00 00 00 00 00 ~ ~ ~ ~ ~ O O .--i .-. .-r r. .-r ~ d s fs s~ cs ~ ~ U U N 0 0, ~ w p M ~ y 0 0 0 0 Vl ~ pp O O O O ~ O O 0 ~ y ~ y 6~ ~ U Y C "O ~ 7 7 ky Q Q O~ Q C/~ ' G a Ui ' '", w ~ ~ ~ .C .C ' w o $ ~ ~ 0 0 o0 00 on U o o ~ ~n ~ ~ o o a .a U U r. r, r g N M1 ~C 0. N .--~ MEMORANDUM TO: YOR AND CITY COMMISSIONERS FROM: ROBERT A. BARCINSKI, ASSISTANT CITY MANAGER THROUGH: DAVID T. HARDEN, CITY MANAGER DATE: MAY 29, 2007 Q SUBJECT: AGENDA ITEM # 1 ' ~ -REGULAR MEETING OF JUNE 4, 2007 SPECIAL EVENT REQUEST/PALM BEACH FIESTAS PATRONALES AND BUSINESS EXPO ITEM BEFORE COMMISSION City Commission is requested to endorse the 2"d Palm Beach Fiestas Patronales and Business Expo sponsored by the Puerto Rican/Hispanic Chamber of Commerce for Palm Beach proposed to be held on August 3rd from 6:00 p.m. to midnight and August 4t1i from 3:00 p.m. to midnight, at the grounds of Old School Square. Approval is also requested for staff support for security and traffic control, the preparation of event signage and reserved parking at the CRA lot offNW 1St Avenue for VIPS and entertainers. BACKGROUND Attached is a special event permit with additional information about the event, a site plan and budget received from Mr. Santos Arroyo for this proposed event. The event was held at Old School Square last year for the first time. This will be a gated event held at Old School Square with an admission charge of $10.00. The event will include entertainment, food and beverage vendors. Alcoholic beverages will be sold. Although EMS assistance was not requested, our staff does feel on-site presence is needed based on last year's event. Staff also feels some staff time is needed for clean up. The estimated overtime costs for the event is $12,753 and signage is approximately $250. Per event policies and procedures there are no charges for City services since this is a second year event. RECOMMENDATION Staff recommends consideration of approval of the event and staff assistance for security, EMS service, clean up assistance and signage with the following conditions: 1. Receipt of a copy of the rental agreement from Old School Square two (2) weeks before the event. 2. Receipt of a copy of the general liability and liquor liability insurance certificates two (2) weeks before the event. 3. Receipt of a copy of the Hold Harmless Agreement two (2) weeks before the event. 4. Receipt of a copy of the Health Department approvals the day of the event. 5. Recommend change in policy and charge minimum of 30% ($3,900) of City costs for services. 6. Recommend the event end at 11:00 p.m., not midnight on both nights. RAB/db Attachment U:\wwdata\EventslPalm Beach P.R. Fiestas PatronaleslAgenda Memo Pa]m Beach Fiestas 2007.doc ~$~~~°-m~ City of Delray Beach ~ ~ * ° ° ' R ~.'~v Special Event Permit :$ Application ::<:;:::. f< - - - .r< :~ ~: .......:.~~~r~:~ PLEASE PRINT ~~~ ~x i3 Event Approved/Denied Date of ApprovatlDeniat 1. Event Name/'P'i~e: °~ N°~ 2. Event Date(s): ,, Re ~iP,~S Pais ~ l~i Event Time(s): 3. Event Sponsor/Producer. ~ " 4. Event Contact/Coordinator. s ~~ 5. Address: ~ ~ Q e a 6. Telephone Number. I- ~5a Cellular Number. .~ S'a 7. E-mail Address: ~-~,dN~ ©~ J,.~• ~o~ 8. Event Description: .~~P~~~-4.R a sa rn (If neighborhood block panty, then please skip questions ~i~-3b and go to question tF38) 9. Sponsor Category: (please check} City ^ Non-Profit/Charitable;,~rivate o Co- Sponsor -Non-Profit/Private ^ (M Non~oroflt attach proof o{:~1 c(sl, zY4~, c181. clt01 or cf ~JI 10. Event Lo~atioNAddress: d rd .~l~~al ~'~uG r~ &~.~.~-,n„~ ~~r~r~f vas Site plan attached: yes no (SI#e plan requlr+ed ibr enure event slue) 12. Event budget. attached: yss_~ no (Requlneat for all events) 13. Serving or salting alcoholic beverages: yes~_ no„~,~, !-f Yom, ~'oPY of license and alcohol -Iabil/ty Insurance riequlred tw o (2J weeks prior 14. to event Event c~r~'Ficate of insurance attached: yes ~ no ~~ (Required tw+a (2j weeks prior to ev~erit namir:g the C as addi'tional' Insured, a/ao nequlred for vendors) 15. Playing of amplified music: yes_~ no 16. (Waiver requlredj Requesting Police assistance: yes no {Traffic controYsecurlty} ~a~.~l c~a 17. Will supplement with private security: yes~_ no (-f yes, need plan attached) 18. Requesting Emergency Medical assistance: yes no ~( 19. Requesting barricade assistance : yes no X 20. Requesting trash removal/clean up assistance: yes no_ ~C 21. Requesting trash boxes and liners: yes~_ no 22. Requesting stage use: yes no_~_ (N yes, check type) Large stage covered ^ Large stage no cover ^ Smali stage ^ Haif small stage ^ 23. Requesting signage : yes~_ no Type: Event sign 4'x4'1 Directional signs -~.n i~L1.a,~ F~es~. Banner hanging, 7G Indicate dates required ~'v~ 3~~-Au,~ha0a'7. (Waiver required if more than one (1) week prior to event) 24. Food and beverage vendors: yes~_ no If yes, please provide the approximate number, as well as the name, address, and contact phone number of each vendor which is due no later than one week prior to the event 25. 26. 27. 28. Health Department approval: (see attached) yes no Other vendors: yes~_ no Tents: yes~_ no Qf yes, tent permits and fire inspections maybe needed) Will the event include amusement rides? requiring state approval? yes,~C _ no (If yes, type and location and copy of liability insurance requir+ed)(Also, please provide the name, address and contact phone number for each ..............s ...,....;.d... slwwr....:fA ww.a:e~ iai flan:~ -i~hi-i~i i»c~il~nPel ~~ X569 29. Will the event be gated? yes~c _ no (Show on-site map) 30. Will there be fireworks or other pyrotechnics? yes no_~_ (If yes, contact Fire Marshall) 31. Will there be cooking with compressed gas? yes~_ no (If yes, contact Fire Marshall) 32. Will you be providing port-a-lets for the event? yes no~_ pf yes,. locate on-site map. if no, indicate how you will handle restroom needs) ~` i1~ ~ ssz. !:~-~~-oom c1~ O td. Sch~ca ( S~ cazr~ 33. Will there be a charge for the event? yes no (If yes, indicate ticket prices) ~ ~np°~'/~~S©~- L i ear u+~.~ t J ~ ~r b 1d c~.g.9.- F 2~~ 34. Is reserved parking requested? yes~,^ no pf yes, indicate locations) ~~~ ~'s ~ ~~~r-.Q.,~,.~, C:(~.~ Ion 2 35. Neighborhood Block Parties (Neighborhood block • Is event sponsored by the Homeowner's Association? yes no,~C (!f not, then individuals} submitting permit application must also submit a petition signed by 57% of the homeowners who live on the block) • Please note the following:1) Approvals. will only be given for a one (1) bock area 2) Permit applications must be received in writing by the City Manager's Office at least thirty (30) days prior to the event.3) Consumption or sale of alcohol on City rights-of--way will .not be permitted.4) Structures other than barricades are not allowed in City rights-of-way.5) Homeowners Assoaation will be requiraed to pay all overtime costs that may be incurred as a result of City staff involved in the event. .ems; ~ ~ (fit ovo '~i~~'- O'~ went Contractor/C rdinator Date Please print:J~?~'~S ~ • ~ 22r~y~© Please enclose the appropriate non-refundable application fee payable to the City of Delray Beach, 100 N.W. 1St Avenue, Delray Beach, Florida 33444. For Staff Use Only j ,... Date Received °'~/ ~~~ ~ Application fee received $ /~ Site map Budget Certificate of insurance Hold Harmless agreement Security plan Waiver alcoholic beverage Railroad approval Coast Guard approval 501 c(3) or (d) certificate or letter Health Department approval Fire Inspector approval Police Department approval Public Works approval Parks and Recreation approval City Commission approval 3 o - ., P~srrc.~ Iizca~v f Hrsratvrc CHAM$ER QF GortMERCE F O A PAL N B E A G-H C.O VN T Y April 11, 2007 City of Delray Beach Attention: Mr. David T. Harden City Manager 100 N.W. 1~` Avenue Delray Beach, Florida 33444 Re: Event description and purpose The Palm Beach P.R Fiestas Patronales and Business Expo has been diligently planned and crafted to present a real taste of Puerto Rican culture, art and social way of life to those native to Puerto Rico, but now absent from the Island, for Latin Americans to relive memories of their home town celebrations and to those who are becoming aware of the rich culture of the Puerto Rican people. The central theme of Fiestas Patronales is to impart the historical deep roots transcending education, art, sports, ,food, music, business and government throughout our culture and history. The desire of the Palm Beach P.R. Fiestas Patronales and Business Expo is to exemplify the highest and noblest aspects of the people of Puerto Rico, to the greatest extent possible. Y urs truly, s Santos Arroyo President, Puerto Rican/ITispanic Chamber of Commerce for Palm Beach County Florida 9sa-sos-ZSSO 16735 8>I~' Road North Loxahatchee, F133470 E-Mai1:SANTOS t~'RCHAMBERONLINE.COM Tei: 561-889527 UR 954-806-1550 //~ w V• ~ ^ ~ ~~ ~ ~ -~-~ W O ~ O L V lj1 Nm.v 4) ~.~~°' ~ ~~ ~' •-~ ~ O ~,~.- ~ m o=~ ~'~'- ~ _ , v_~ v~ Q ~ . ~ t6 ~ ~ ~ .. 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I Table Exhibition ... ...~ ................~..nZ ~u~ ...... ~..........t ~i t $ Y. ~,FKVtrtt~menvm'nwwwwrw+~v~•.. ..... ..;..........., .... -~ ...,. i 0 0 0 0 ° 0 0 0 0 0 o 0 o co 0 0 0 0 0 0 0 0 0 0 0 0 0 am N ~ ~ d ' N N H9~ ~ ~' 6~ V .~..~ W c O 0 °~ ~ o a o° o0 0 c' o0 00 ~ ~ = ca b o o ~ ~ o r- ~ ~ X V ~ ~' .} ~ W - ' ' W '~ L ~ ~ ~ U O ~ O O o ~ F- C ~ N ~- F- L N ~ ~ ~ ''/~ ~ V! ~ Q n C ~ ~ ~,, o O ~ ~ i W r `O ' N (p ~, ~- ~ W V ~ ~ ~ O ~ v N ~ X RS ~ ~ ~ O w to cn c~ MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: RONALD HOGGARD, AICP, PRINCIPAL PLANNER `~`~Z~ PAUL DORLING, AICP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER DATE: MAY 29, 2007 SUBJECT: AGENDA ITEM # ~ O • ~ - JUNE 4, 2007 CONSIDERATION OF A CRA-INITIATED AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS (LDR1 AMENDING SECTION 4.4.13 "CENTRAL BUSINESS (CBD) DISTRICT " SUBSECTION 4.4.13(H)(1), TO PROVIDE AN EXEMPTION TO THE PROHIBITION OF OFFICE USES ON THE GROUND FLOOR OF BUILDINGS ON EAST ATLANTIC AVENUE. ITEM BEFORE COMMISSION The item before the Board is that of approval of an amendment to the Land Development Regulations to permit office uses on the ground floor of existing buildings on East Atlantic Avenue when at least 80% of the building's frontage is setback twenty-five (25) feet or greater. Pursuant to Section 1.1.6, an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. BACKGROUND On October 3, 2006, the City Commission approved an amendment to the Land Development Regulations (LDRs) relating to office uses on the ground floor of buildings on Atlantic Avenue, extending from I-95 to Ocean Boulevard. Under these regulations, new offices are prohibited from locating on the ground floor on East Atlantic Avenue. The purpose of the proposed amendment is to provide an exemption for existing buildings in the Central Core and Beach Areas of the Central Business District that have the majority of their building frontage set back 25' or greater. Additional background and analysis is provided in the attached Planning & Zoning Board Staff Report. REVIEW BY OTHERS The text amendment was considered by the Planning and Zoning Board on May 21, 2007. No one from the public spoke on the issue. The Board recommended approval on a 6 to 0 vote (Glickstein absent), by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. RECOMMENDATION By motion, approve on first reading Ordinance No. 21-07, amending Land Development Regulations (LDR) Section 4.4.13 "Central Business District," Subsection 4.4.13(H)(1), to provide an exemption to the prohibition of office uses on the ground floor of buildings on East Atlantic Avenue, by adopting the findings of fact and law contained in the staff report and finding that the request is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations, with second reading to occur on June 18, 2007. Attachments: Ordinance No. 21-07 Planning & Zoning Staff Report of May 21, 2007 ORDINANCE NO.21-07 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SECTION 4.4.13, "CENTRAL BUSINESS (CBD) DISTRICT", SUBSECTION 4.4.13(H)(1), TO PROVIDE AN EXEMPTION TO THE PROHIBITION OF OFFICE USES ON THE GROUND FLOOR OF BUILDINGS ON ATLANTIC AVENUE, EXTENDING FROM SWINTON AVENUE TO OCEAN BOULEVARD, UNDER CERTAIN CIRCUMSTANCES; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on May 21, 2007 and voted 6 to 0 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach adopted the findings in the Planning and Zoning Staff Report; and, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2. That Section 4.4.13, "Central Business (CBD) District", Subsection 4.4.13(H), "Special Regulations," of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended by amending Subsection 4.4.13(H)(1) to read as follows: (1) Office uses including financial institutions (e.g. banks, savings and loans, credit unions, and mortgage offices) shall not be allowed on the ground floor within businesses which have an entry from and/or windows along and/or frontage on Atlantic Avenue in the Central Core Area or the Beach Area. Office uses shall be allowed up to 50% of the ground floor as a permitted use within businesses which have an entry from and/or windows along and/or frontage on Atlantic Avenue in the West Atlantic Area and as a Conditional Use if greater than 50%. Office uses are allowed on floors other than the ground floor along Atlantic Avenue and on all floors elsewhere in the CBD district. This regulation shall not a~nly to existing buildings in the Central Core Area or the Beach Area that have 80% or more of their frontage at a setback of 25 feet or erg Ater. Section 3. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 4. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 5. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the _ day of , 2007. MAYOR ATTEST: CITY CLERK First Reading Second Reading 2 ORD. NO. 21-07 PLANNING AND ZONING BOARD MEMORANDUM STAFF REPORT MEETING DATE: MAY 21, 2007 AGENDA NO.: IV.A. AGENDA ITEM: CONSIDERATION OF AN AMENDMENT TO LAND DEVELOPMENT REGULATIONS (LDR) SECTION 4.4.13 "CENTRAL BUSINESS (CBD) DISTRICT," SUBSECTION 4.4.13(H)(1), TO PROVIDE AN EXEMPTION TO THE PROHIBITION OF OFFICE USES ON THE GROUND FLOOR OF BUILDINGS ON EAST ATLANTIC AVENUE. ITEM BEFORE THE BOARD The item before the Board is that of making a recommendation to the City Commission regarding a CRA-initiated amendment to the Land Development Regulations to permit office uses on the ground floor of existing buildings on East Atlantic Avenue when at least 80% of the building's frontage is setback twenty-five (25) feet or greater. Pursuant to Section 1.1.6, an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. BACKGROUND /ANALYSIS At its meeting of October 3, 2006, the City Commission approved an amendment to the Central Business District (CBD) of the City's Land Development Regulations (LDRs) [LDR Section 4.4.13(H)(1)] to provide regulations relating to office uses on the ground floor of buildings on Atlantic Avenue, extending from I-95 to Ocean Boulevard, as follows: "Office uses including financial insfifutions (e.g, banks, savings and loans, credit unions, and mortgage offices) shall not be allowed on the ground floor wifhin businesses which have an entry from and/or windows along and/or frontage on Atlantic Avenue in the Central Core Area or the Beach Area. Office uses shall be allowed up fo 50% of the ground floor as a permitted use within businesses which have an entry from and/or windows along and/or frontage on Atlantic Avenue in fhe West Atlantic Area and as a Conditional Use if greater than 50%. Office uses are allowed on floors ofher than the ground floor along Atlantic Avenue and on all floors elsewhere in the CBD district." Subsequent to adoption of the ordinance, there were some concerns raised by tenants/owners at the Waterway Condominium (900 E. Atlantic Avenue), which contains numerous business offices on the ground/first floor. While the existing uses are grandfathered in, the ordinance does prohibit the establishment of new office uses. This particular building is somewhat unique to Atlantic Avenue in that it is set back approximately 28' from the property line and up to 53' from the edge of the sidewalk. This design does not provide for easy access to the storefronts by pedestrians, and in fact, most of the visitors to the building get to the site from the parking lot on the south side of the building. Given the IV.A. Planning and Zoning Board Memorandum Staff Report, May 21, 2007 Amendment to LDRs Pertaining to Ground Floor Office Uses on East Atlantic Avenue Page 2 existing site design and building setback, the building is more conducive to office uses and not retail/pedestrian-oriented uses. Another property that has similar site design challenges is Atlantic Plaza, which is set back approximately 70' with a parking lot between the building and Atlantic Avenue. The only other properties/buildings on East Atlantic Avenue that have similar site conditions are the Delray Beach Marriott, the Marriott Residence Inn and the Citco gas station, which will require redevelopment of the site with any change of use. Redevelopment of these properties will need to comply with the CBD Development Standards [LDR Section 4.4.13(F)(4)], which require a minimum of seventy percent (70%) and a maximum of ninety percent (90%) of the building frontage to be set back no greater than ten feet (10') from the property line. Therefore, this modification will not apply to any future redevelopment of these properties or any other properties having frontage along Atlantic Avenue. It is noted that the Downtown Delray Beach 2004 Patron Profile, Cluster Analysis and Retail Development Strategy Update identified strategies for various areas (Clusters) throughout the downtown. The strategy for Cluster 6 (Atlantic Avenue, between NE/SE 5th Avenue and the Intracoastal Waterway) acknowledges that in order to maintain the continuity of pedestrian activity and add continuous storefronts on the north side of Atlantic Avenue, redevelopment of the Citco gas station and Atlantic Plaza is necessary. Further, the description of Cluster 8 (east of the Intracoastal Waterway) states the following: "While the "Retail Strategy" includes fhe addition of retailing and limiting the proliferation of "beach convenience shops" and ground floor office uses, the ability to lease these nonconforming structures in the short term until redevelopment provides a more retail and pedesfrian- oriented design is critical to the overall appearance and attractiveness to the Atlantic Avenue Corridor. " The proposed amendment provides an exemption for buildings in the Central Core and Beach Areas of the Central Business District that have the majority of their building frontage set back 25' or greater. While limited in its application, the exemption will enable these buildings to be leased, enhancing the Avenue, until such time that the properties are redeveloped. The exemption would not apply to the West Atlantic Avenue Neighborhood of the Central Business District, since office uses are already allowed to occupy up to 50% of the ground floor as a permitted use. Based upon the above, an amendment to the Land Development Regulations 4.4.13(H)(1), "Special Regulations" of the Central Business District (CBD) Regulations is requested as follows: (1) Office uses including financial institutions (e.g, banks, savings and loans, credit unions, and mortgage offices) shall not be allowed on the ground floor within businesses which have an entry from and/or windows along and/or frontage on Atlantic Avenue in the Central Core Area or the Beach Area. Office uses shall be allowed up fo 50% of the ground floor as a permitted use within businesses which have an entry from and/or windows along and/or frontage on Atlantic Avenue in the West Atlantic Area and as a Conditional Use if greater than 50%. Office uses are allowed on floors other than the ground floor along Atlantic Avenue and on all floors elsewhere in the CBD district. This regulation shall not apply to existing buildings in the Central Core Area or the Beach Area that have 80% or more of their frontage of a setback of 25 feet or greater. Planning and Zoning Board Memorandum Staff Report, May 21, 2007 Amendment to LDRs Pertaining to Ground Floor Office Uses on East Atlantic Avenue Page 3 REQUIRED FINDINGS: LDR Section 2.4.5(M)(5) (Findings): Pursuant to LDR Section 2.4.5(M)(5) (Findings), in addition to LDR Section 1.1.6(A), the City Commission must make a finding that the text amendment is consistent with and furthers the Goals, Objectives and Policies of the Comprehensive Plan. The proposed LDR amendment will enable buildings with storefronts that are not conducive to retail and pedestrian-oriented uses to be occupied by office uses, thereby promoting business activity and discouraging vacant storefronts along Atlantic Avenue. While the amendment does not specifically further the Goals, Objectives, and Policies of the Comprehensive Plan, it is not inconsistent with them. REVIEW BY OTHERS Community Redevelopment Agency (CRA) The CRA considered this request at its April 26, 2007 meeting. After considerable discussion, the Board was split 3/3 on the amendment. It is noted, however, that the full Board of the CRA had earlier authorized CRA staff to initiate this amendment. Downtown Development Agency (DDA): The DDA considered this amendment at its May 14, 2007. After discussion, the Board unanimously recommended approval of the proposed amendment. Courtesy Notices: Courtesy notices were provided to the following civic association: • Neighborhood Advisory Council Letters of objection and support, if any, will be provided at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The intent of the earlier amendment to prohibit office uses on the ground floor on East Atlantic Avenue was to facilitate the development of the downtown with a mix of uses which include pedestrian oriented retail activities on the ground floor with office and residential on the upper floors. Office uses are not encouraged along the street front facades on Atlantic Avenue as they create "holes" in the retail fabric of the street. However, this regulation creates an unnecessary hardship to lease existing buildings with storefronts that are not conducive to retail and pedestrian-oriented uses. The proposed amendment will allow those buildings to be occupied by office uses, thereby promoting business activity and discouraging vacant storefronts along Atlantic Avenue. The ability to lease these structures in the short term, until redevelopment provides a more retail and pedestrian-oriented design, is critical to the overall appearance and attractiveness of the Atlantic Avenue Corridor. While the amendment does not specifically further the Goals, Objectives, and Policies of the Comprehensive Plan, it is not inconsistent with them. Planning and Zoning Board Memorandum Staff Report, May 21, 2007 Amendment to LDRs Pertaining to Ground Floor Office Uses on East Atlantic Avenue Page 4 RECOMMENDED ACTION Move to recommend to the City Commission approval of the CRA-initiated amendment to Land Development Regulations Section 4.4.13 "Central Business District," Subsection 4.4.13(H)(1), to provide an exemption to the prohibition of office uses on the ground floor of buildings along East Atlantic Avenue, by adopting the findings of fact and law contained in the staff report and finding that the request is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. Attachment: ^ Proposed Ordinance s:lplanning & zoninglboardslp&z boardlldr amendment -offices on atlantic avenue.doc MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: MARK MCDONNELL, AICP, ASSISTANT PLANNING AND ZONING DIRECTOR PAUL DORLING, AICP, DIRECTOR PLANNING AND ZONING THROUGH: CITY MANAGER ~ DATE: MAY 30, 2007 SUBJECT: AGENDA ITEM # 1 ~ • ~ - REGULAR MEETING OF JUNE 4, 2007 ACTIVITIES DISTRICT (SAD)", SUBSECTION 4.4.25 (C) "REVIEW AND APPROVAL PROCESS." ITEM BEFORE COMMISSION The item before the Board is approval of aCity-initiated amendment to the Land Development Regulations to shift the authority for approval of site plans, landscape plans, and architectural elevations from the Planning and Zoning Board to the Site Plan Review and Appearance Board for projects located in Special Activities Districts (SADs). Pursuant to Section 1.1.6, an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. BACKGROUND The current language in the LDRs places the authority to approve site and development plans, landscape plans and architectural elevations associated with SAD-zoned properties with the Planning and Zoning Board. Site plans, landscape plans and architectural elevations are typically considered for approval by the Site Plan Review and Appearance Board (SPRAB), and this has also been the practice with recent SAD projects. This is a corrective LDR text amendment to direct approval authority to SPRAB consistent with all other zoning districts within the city. REVIEW BY OTHERS The text amendment was considered by the Planning and Zoning Board on May 21, 2007. No one from the public spoke on the issue. The Board recommended approval on a 6 to 0 vote, by adopting the findings of fact and law contained in the staff report and finding that the amendment is consistent with the Comprehensive Plan and meets criteria set forth in Section 2.4.5(M) of the Land Development Regulations. RECOMMENDATION By motion, approve on first reading Ordinance No. 20-07, amending Land Development Regulations (LDRs) Section 4.4.25 "Special Activities District (SAD)," Subsection 4.4.25 (C), "Review and Approval Process," to shift the authority to approve plans located in SAD zoning districts from the Planning and Zoning Board to the Site Plan Review and Appearance Board, by adopting the findings of fact and law contained in the Staff Report and finding that the request is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M)(5), with second reading to occur on June 19, 2007. Attachments: ^ Ordinance No. 20-07 ^ Planning and Zoning Staff Report of May 21, 2007 ORDINANCE N0.20-07 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF CODE OF ORDINANCES, BY AMENDING SECTION 4.4.25, "SPECIAL ACTIVITIES DISTRICT (SAD)", SUBSECTION 4.4.25(C), "REVIEW AND APPROVAL PROCESS", TO PROVIDE FOR THE REVIEW AND APPROVAL OF PLANS BY THE SITE PLAN REVIEW AND APPEARANCE BOARD AND NOT THE PLANNING AND ZONING BOARD; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on May 21, 2007, and voted _ to to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with and furthers the goals, objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2. That Section 4.4.25, "Special Activities District (SAD)", Subsection 4.4.25(C), "Review and Approval Process", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (C) Review and Approval Process: (1) General: All SAD's are established by an ordinance which is processed as i~ a rezoning. Concurrent with processing of the rezoning application, a complete site and development plan with, at least, preliminary engineering plans shall be processed. (2) Alternative Processing: A proposed SAD may proceed to first reading based upon a lesser submission provided that, if approved on first reading, prior to second reading a complete site and development plan including landscaping plans and architectural elevations must be processed through, and approved by the Site Plan Review and Appearance Board. However, in no event shall the time between first and second readings of the enacting ordinance exceed a period of 180 calendar days. In such an event, the rezoning process shall cease and the application considered denied without prejudice. A subsequent application may be processed thereafter anew. (3) Establishment: Vesting of a SAD project shall occur in the same manner as set for the establishment of a site plan approval [reference Sections 2.4.4 (D) and (E)], except that when the SAD is for a large Scale Mixed Use Development, the initial approval (validity) period shall be specifically stated in the enacting ordinance, but shall, in no event, be less than six (6) years. In the event that a SAD project does not become established, all uses, waivers, adjustments, and other actions taken pursuant to the SAD shall be void. In order to proceed to establish the same, or another, use it shall be necessary to process a rezoning request. Section 3. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 4. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 5. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 200_ ATTEST MAYO R City Clerk ORD. NO. First Reading Second Reading ORD. NO. PLANNING AND ZONING BOARD MEMORANDUM STAFF REPORT MEETING DATE: MAY 21, 2007 AGENDA NO: IV. B. AGENDA ITEM: CONSIDERATION OF AN AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS OF CODE OF ORDINANCES, BY AMENDING SECTION 4.4.25, "SPECIAL ACTIVITIES DISTRICT (SAD)", SUBSECTION 4.4.25(C), "REVIEW AND APPROVAL PROCESS", TO PROVIDE FOR THE REVIEW AND APPROVAL OF PLANS BY THE SITE PLAN REVIEW AND APPEARANCE BOARD AND NOT THE PLANNING AND ZONING BOARD; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. ITEM BEFORE THE BOARD The item before the Board is that of making a recommendation to the City Commission regarding aCity-initiated amendment to the Land Development Regulations (LDRs) Subsection 4.4.25(C). This section deals with the specific board to which authority is given to approve a complete site and development plan including landscaping plans and architectural elevations in areas zoned Special Activities District (SAD). Pursuant to Section 1.1.6, an amendment to the text of the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. BACKGROUND !ANALYSIS The current language in the LDRs places the authority to approve site and development plans, landscape plans and architectural elevations associated with SAD-zoned properties with the Planning and Zoning Board. Site plans, landscape plans and architectural elevations are typically considered for approval by the Site Plan Review and Appearance Board (SPRAB), and this has also been the practice with recent SAD projects. This is a corrective LDR text amendment to direct the authority to the SPRAB since this is consistent with approval of these types of plans in all other zoning districts within the city. REQUIRED FINDINGS LDR Section 2.4.5(M)(5) (Findings): Pursuant to LDR Section 2.4.5(M)(5) (Findings), in addition to LDR Section 1.1.6(A), the City Commission must make a finding that the text amendment is consistent with and furthers the Goals, Objectives and Policies of the Comprehensive Plan. Comprehensive Plan Policies: The goals, objectives and policies of the Comprehensive Plan were reviewed and there are no applicable goals, objectives or policies noted. While the amendment does not specifically further the Goals, Objectives, and Policies of the Comprehensive Plan, it is not inconsistent with them. Planning and Zoning Board Memorandum Staff Report -May 21, 2007 Amendment of Code of Ordinances Section 4.4.25, SAD REVIEW BY OTHERS Courtesy Notice: A courtesy notice was provided to the following civic association: ^ Neighborhood Advisory Council Letters of objection and support, if any, will be provided at the Planning and Zoning Board meeting. ASSESSMENT AND CONCLUSION The purpose of this City-initiated LDR text amendment is to redirect the authority to approve site plans, landscape plans and architectural elevations for projects in SAD zoning districts from the Planning and Zoning Board to the Site Plan Review and Appearance Board. Positive findings can be made with respect to LDR Section 2.4.5(M)(5). RECOMMENDED ACTION Move a recommendation of approval to the City Commission for aCity-initiated amendment to the Land Development Regulations (LDRs), amending Section 4.4.25 (C) to redirect the authority to approve site plans, landscape plans, and architectural elevations associated with SAD projects to the Site Plan Review and Appearance Board, by adopting the findings of fact and law contained in the Staff Report and finding that the request is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M)(5). Attachment: • Proposed Ordinance 20-07 2