Res 42-97 RESOLUTION NO. 42-97
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, VACATING AND ABANDONING A
PORTION OF THE DAVIS ROAD PROPERTY, LOCATED NORTH
OF WEST ATLANTIC AVENUE AT THE NORTHWEST
INTERSECTION OF THE LAKE WORTH DRAINAGE DISTRICT
CANAL E-4 AND LATERAL CANAL L-33, AS MORE
PARTICULARLY DESCRIBED HEREIN, AND RESERVING AND
RETAINING TO BOTH THE LAKE WORTH DRAINAGE DISTRICT
AND THE CITY OF DELRAY BEACH A UTILITY AND
MAINTENANCE EASEMENT OVER THE EASTERLY 24 FEET OF
SAID DAVIS ROAD PROPERTY, AS MORE PARTICULARLY
DESCRIBED HEREIN, AND RESERVING AND RETAINING A
UTILITY EASEMENT FOR THE PUBLIC OR PRIVATE
UTILITIES LOCATED WITHIN THE ABANDONED DAVIS ROAD
PROPERTY, AND SUBJECT TO THE RECEIPT AND ACCEPTANCE
OF A DEED FROM STANLEY G. TATE, TRUSTEE, FOR THE
WESTERLY 60 FEET OF THE TATE PROPERTY FOR ROAD
RIGHT-OF-WAY PURPOSES, AND SUBJECT TO THE TERMS OF
THE ACCESS AGREEMENT.
WHEREAS, the City Commission of the City of Delray Beach,
Florida, entered into an Access Agreement by and among the City of
Delray Beach, a Florida municipal corporation, Stanley G. Tare,
Trustee, the Lake Worth Drainage District, William H. Sned, Jr.,
Trustee, and Aurora Homes, Inc.; and
WHEREAS, pursuant to the terms of said Access Agreement,
the City of Delray Beach is abandoning a portion of the Davis Road
property, subject to certain conditions; and
WHEREAS, the application for abandonment of a portion of
said Davis Road property has been processed pursuant to Section
2.4.6(O), "Abandonment of Rights-of-Way", of the Land Development
Regulations of the City of Delray Beach; and
WHEREAS, pursuant to LDR Section 2.4.6(O) (3) (d), the
Planning and Zoning Board, as Local Planning Agency, formally reviewed
this petition on May 19, 1997, and recommended approval of the
abandonment, based upon positive findings pursuant to LDR Section
2.4.6(0)(5) and reserving and retaining to both the Lake Worth
Drainage District and the City of Delray Beach a utility and
maintenance easement over the easterly twenty-four feet (24') of the
Davis Road property, as more particularly described herein, and
reserving and retaining a utility easement for the public or private
utilities located within the abandoned Davis Road property, and
subject to the receipt and acceptance of a deed from Stanley G. Tare,
Trustee, for the westerly 60 feet of the Tate property for road
right-of-way purposes, and subject to the terms of the Access
Agreement; and
WHEREAS, the City Commission of the City of Delray Beach,
Florida, finds that its interest in the described property is no
longer needed for the public good and deems it to be in the best
interest of the City of Delray Beach to vacate and abandon said David
Road property for roadway purposes based upon positive findings
pursuant to LDR Section 2.4.6(O) (5), but does not abandon and retains
and reserves unto itself and the Lake Worth Drainage District a
utility and maintenance easement over the easterly twenty-four feet
(24') of the Davis Road property, and retains a utility easement for
the public or private utilities located within the abandoned Davis
Road property area, subject to receipt and acceptance of a deed from
Stanley Tate, as Trustee, for the westerly sixty feet (60') of the
Tate property for road right-of-way purposes, and subject to the
terms of the Access Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That pursuant to Chapter 177.101(5) and Chapter
166 of the Florida Statutes, it is hereby determined to vacate and
abandon all right and interest it holds to the following real
property for roadway purposes only, but does not abandon and retains
and reserves unto itself and the Lake Worth Drainage District a
utility and maintenance easement over the easterly twenty-four feet
(24') of the Davis Road property, and retains a utility easement for
the public or private utilities located within the abandoned area,
based upon positive findings pursuant to LDR Section 2.4.6(0) (5) and
subject to receipt and acceptance of a deed from Stanley Tate, as
Trustee, for the westerly sixty feet (60') of the Tare property for
road right-of-way purposes, and subject to the terms of the Access
Agreement:
A parcel of land in Section 18, Township 46 South,
Range 43 East, Palm Beach County, Florida, more
particularly described as follows:
Commence at the Southeast Corner of Lot 1, Block 1
of Sudan - Unit "A" according to the Map or Plat
thereof as recorded in Plat Book 28 at Page 144 of
the Public Records of Palm Beach County and run
South 89 degrees 45 minutes 41 seconds East 72.02
feet to a point, then run South 11 degrees 54
minutes 42 seconds West 553.56 feet to the Point of
Beginning; from Point of Beginning continue South
11 degrees 54 minutes 42 seconds West 774.23 feet
to the Northerly right-of-way for Lateral Canal No.
L-33, then run South 89 degrees 40 minutes 57
- 2 - Res. No. 42-97
seconds West along said Northerly right-of-way
65.49 feet, then run North 11 degrees 54 minutes 42
seconds East 774.69 feet, then run South 89 degrees
55 minutes 27 seconds East 65.38 feet to the Point
of Beginning. Containing 1.138 acres, more or
less.
Section 2. That there is hereby rese~ed and retained a
utility easement for the public or private utilities located within
the abandoned area hereinabove described in Section 1. and referred
to as the Davis Road property.
Section 3. That this abandonment of a portion of the Davis
Road property described in Section 1 above shall not become effective
and this resolution shall not be recorded in the Public Records of
Palm Beach County, Florida, until the City of Delray Beach receives
and accepts a deed from Stanley G. Tare, Trustee, for the westerly 60
feet of the Tate property for road right-of-way purposes.
PASSED AND ~OPTED in regular session on this the 20th day
of May, 1997.
ATTEST:
..... ~Cit~ CZerk'-/
i - 3 - Res. No. 42-97
LAKE IDA
PROPOSED
PROJECT
TEMPLE
SINAI
CONGRESS
A T L A SOUAR£
DELRAY
BEACH
M U N IC I P A L CONCR£SS
GOLF COURSE
N
~ ABANDONMENT OF A PORTION OF DAVIS ROAD
PLANNING DEPARTMENT
CITY OF DELRAY BEACH. FL
--- D/Gl}Ag. ~ASE ~IAP SY~'EM -- MAP REF: LM13B
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MANAGER ~1
SUBJECT: AGENDA ITEM #~,/9~.'~. - MEETING OF MAY 20, 1997
RESOLUTION NO. 42-97:
DATE: MAY 16, 1997
This is before the Commission to adopt a resolution abandoning a
portion of the Davis Road property located north of West Atlantic
Avenue, beginning at the northwest intersection of Lake Worth
Drainage District Canal E-4 and Lateral Canal L-33, and extending
northward approximately 774 feet.
If abandoned~ the Davis Road property will become part of the
Stanley Tare property to the west. In exchange for the
abandonment of the property, the western 60 feet of the Tare
property will be deeded to the City for the construction of a
new road that will provide access to the Tare parcel and a
proposed 282-unit multiple family development directly north,
known as Coral Trace.
The abandonment is scheduled for consideration by the Planning
and Zoning Board at its May 19, 1997 meeting. If the Board's
recommendation is anything other than approval, the Commission
will be asked to pull the item from the Consent Agenda for
consideration under the Regular Agenda.
Recommend approval of Resolution No. 42-97 based on positive
findings with respect to LDR Section 2.4.6(0) (5), subject to
conditions as outlined in the staff report.
TO: DAVID T. HARDEN, CITY MANAGER
THRU: O , RE R
DEPARTMENT OF PLANNING AND ZONING
SUBJECT: MEETING OF MAY 20, 1997 **CONSENT AGENDA**
ABANDONMENT OF DAVIS ROAD PROPERTY
The action requested of the City Commission is approval of the abandonment of
a portion of the Davis Road property generally located west of Congress Avenue
and north of W. Atlantic Avenue (at the northwest intersection of Lake Worth
Drainage District Canal No. E-4 and Lateral Canal No. L-33).
If abandoned, the Davis Road property will become part of the Stanley Tate property to
the west. In exchange for the abandonment of the property, the western 60' of the Tate
property will be deeded to the City for the construction of a road that will provide access
to the Tate parcel and a proposed 282-unit multiple family development directly north,
known as Coral Trace.
Prior to the granting of an abandonment the following findings must be made:
1. That there is not, nor will there be a need for the use of the right-of-way for any
public purpose;
2. That the abandonment does not, nor will not, prevent access to a lot of record; and,
3. That the abandonment will not result in detriment for the provision of access and/or
of utility services to adjacent properties or the general area.
City'Commi~sion Documentation
Abandonment of Davis Road Property
Page 2
The subject portion of the Davis Road property is currently covered with dirt and limited
access is available. A new road proposed on the west side of the Tate property will
provide access to both Tate's property and the proposed Coral Trace development to
the north. The Sudan subdivision, located north of the abandonment area, takes
access from the improved portion of Davis Road, and the Breezy Ridge Estates
subdivision to the south has access to W. Atlantic Avenue. Replacement easements
will be provided to cover the Lake Worth Drainage District, City, FPL, BellSouth, and
cable t.v. services.
Based on the above, the abandonment is not needed for any public purpose, will not
prevent access to any lot of record, or result in the detriment for the provision of access
and/or of utility services to adjacent properties or the general area.
The abandonment is scheduled for consideration by the Planning and Zoning Board at
its May 19, 1997 meeting. If the Board's recommendation is anything other than
approval, the Commission will be asked to pull the item from the Consent Agenda for
consideration under the Regular Agenda.
By motion, approve the abandonment of the subject portion of Davis Road property
based upon positive findings with respect to LDR Section 2.4.6(0)(5), subject to the
following conditions:
1. That a Lake Worth Drainage District easement be provided along the eastern 24' of
the abandonment area.
2. That a utility easement be provided along the eastern 24' of the abandonment area.
3. That a utility easement containing the existing north/south utility poles be provided
along the west side of the abandonment area.
4. That the resolution for the abandonment be effective when the City receives a deed
from Mr. Tate for the western 60' of the Tate property.
5. That a revised survey showing the replacement easements and easement
documentation be provided.
Attachments:
· Location Map and Survey
65.49'
LATERAL CANAL NE], L-33 Seg'4o's~'v
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THIS AGKEEMENT entered into tha -- day of October, 1996, by and among the
CITY OF DELKAY BEACH, a Florida municipal corporation, heteinatter ~¢fcn'ed to a~ ".City",
STANLEY G. TATE, TRUSTEE, her~inatter referred to ~ "Trustee", the LAKE WORTH
DR.A_INAOE DISTKICT, hereinat~er referred to as "District", WILLIAM H. SNED,/R., TRUSTEE,
her,'in~.t%r r~fu-.rrcd to as "Shed" and AURORA HOlVI~S, I}',TC., hcreinLfter r~fcrr~d to as "Aurora."
WH~R.EAS, Aurora h~s entered ~to a certain contract for puxch~e and s~le with Shed of
certain property described on E~bit A attached hereto and made a part hereof ("Shed Prop~-rty")
pursuant to which Aurora and Shed intend that the closing of the conveyance ofdQe to the Sncd
Property from Shed to Aurora ("Closing") would occur on or before April 30, 1997 ("Outside
Date"); and
WH~P, EAS, Trustee is the owner of ceftin prop~y located immediately north of the L-3
C~nal ~ more p~ticul~rly described on ~ attached hereto arid made a
Property"): and
WHEREAS, Trustee, District and the City are involved in certain litigation styled Stanley
O. Tote va. City of D¢lray Beach and Lake Worth Drainage District; Ca~ No. 93-~198 Al; Palm
Beach County Cir~ul~ Court ("Lawsuit'") with r~sl~ect to Davis Road and whether or not fi:ts ~'tions
of thc Cil'y and/or the Distfic~ cor~tittrted an inverse condun.maa~on of the Tal~ Property as mor~ fully
detailed m the Lawsuit; and
NOW, THB~FO~, in consid~ation often Doilar~ ($10.00) ~nd other good ~nd valuable
consideration, thc receipt, adequacy and sufficiency of which is hereby acknowledged, thc parti¢-~
intending to be legally bound, do hereby agree as follows:
'1. The r~eitations heretofore se~ forth ~re true ~d correct and are incorporated h~r;in
by this reference.
2. Shed' hereby agre~ that simultar~eous with thc Closing with Aurora and/or its
successors a~d assigns, Shed will deed or cause to be conveyed good and marketable title to the
right-of-way to the easlerly 30-feet of Mildred Smith parcel located on Atlantic Avenue, D¢lray
Beach, Florida, as mol~ pm'ticularly described on Exhibit C attached hereto and made a part hereof
("Shed Right-of-Way") for public road and utilhy purposes so that the City will have good arid
marketable litle to a 80-foot public road fight-of-way from Atlantic Avenue to thc Tote Property ia
the ~r~a shown on ~ ~ttach~d hereto and made a part hereof ("Initial l~ight-of-Way").
3. Aurora or its successors and assigns agrees that in the event Aurora or its successors
and ~signs acquires the Shed Property, that:
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a, Aurora w{ll obtain the necessary permits and shall clesiga and construct, in
accordance with applicable governmental requirements, a t~o (2) lane road right, of-way over the
"l~ght-of-Way" (as hereinafter defined), which d~sign, permitting and construction shall be
completed within one hun&ed fifty (150) days of the d~te the; Trustee shall convey the "Tare
Right-of-Way" (as hereinafter d~ffned) to the City. Tile term "Right-of-Way" shall mean the I~aal
Right-of-Way and Tam Right-of-Way, together with thc cor~-ucfion of a culvert over ~e L-33
Canal upor, which a two (2) lane r~ad and related ufili~ lines shnll ba coasU'ucted as pertained by
the Dis~ct and all other appropriate governmental authorities, over the L-33 Canal from the Initial
Right-of-Way to ~ Tat~ Right. of-Way, which Right-of-Way ia showr~ on ~ a~tached hereto
and made a part hereof',
b. Aurora stroll provide ~ppropriate payment and performance bonch naming the
City and Trustee as beneficiaries thereunder or clean ~rrex, ocahle letter of credit issued by a banking
institution a~ceFmble to Trustee in the amount of one hunctred ten percent (110%) of the costs (h~rd
and soft) to complete the Specified Improvements to guaran'ry payment and compl~on of thc
"Specified Improvements" (as hereina~¢r defined) on such Right-of-Way ("Security"). Th~ City
agrees that in the event that such Securiv/is delivered ~o the City and Aurora shall fail to complete
consu'uction of the Specified Improvements on the Right-of-Way within one hundred fifty (150)
days of conveyance of the Tale Right-of-Way, the City will enforce thc Secur/ty and cause such
Specifiect Improvements on thc Right-of-Way to be completed to thc extent or'thc $¢cur/ty; and
c. Aumrz agrees that upon Closing, r. hat it shall plat m access road to the City
in place of Owens Baker ro~ a~ccas, which access to~d shall be approved by ~h¢ City Attorney. It
is .anticipated that aa improved site plan ~howing the ~:cess to the water treatment plant will be
submitted by Aurora to the City in connection with a zon_!-g application to be subrnirtecl by Aurora
to the City, it being undo'mood and agreed tl~ an e~nent on the "Owens Baker Road" acccaa will
remain open to service existing houses ou~ide thc ~ite plnn or plat.
4. The DisWiet agrees that it will permit (in accordance with its policies) the consn'uc~on
of the Right-of-Way and the Specified Improvements over thc L-33 Canal ia the area shown on
~, provided that ir approves thc pinn~ for the consn'ucdon of such Right-of-Way and the
Specified Improvements over thc L,33 Canal, which approval shall not bc unreasonably withheld
or delayed.
5. The Cit~ a~rees that:
At the tin'Lc of conveyance of the Shed Right-of-Way and Taxa P4ght-of-Way
to the City, the City will deed or plat as appropriate all of its fight, tit. lc and interest in the
Right-of-Way to i~elf ~ a public "right-of-way" to provide public access for i~gress, egress end
utilities to the Shed Property and Tale Property;
b. Th, City will a~cept the Shed Right-of-Way and Tate Right-of-Way as public
right-of-way when given and will maintain the Right-oi:W~y after it is constructed;
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The City agrees that it shall submit to its City Commission tach applicauons ·
es requir~'d by the City Commission to vacate any right, of-way with and to convey to Trustee the
"Davis Road Property" (as hereinafter defined) to Trustee, subject to (i) a non.exclusive canal
rnaimenance easement which shall be provided and/or reserved by.the District over the easterly 24
feet of such Davis Kosd Property ("District Easement"); and (ii) a non-exclusive underground utility
c~ement which will be re~e~ed by the City under the easterly 24 feet of such Davis Road Property
("City Easement"). The parties recogrfize that the provision of this Paragraph $,c is merely to submit
~uch request to the City Commission' for authorization to implement and the City shall not be
obligated to convey or vacate such Davis Koad Property tuatil approved by the City Commission in
accordance with all applicable governmental requirementg. The City does not acknowledge that it
has any right, title or interest in Davis Road, but will consent ~o thc vacation of Davis Road for
purposes of clearing title thereto. The City will initiate a road vacation subject to thc non-exclusive
City Basement and District Easement and discla/m any interest according to Florida law and upon
the v~cafion thereof, will execute and deliver to Trustee a quit claim deed and release any fight, title
and interest to the Trustee as required to establish marketable record title under Florida law in
Trustee. subject to the non-exclusive City l:asement and Di~rict Basement. It being understood and
agreed that the location of the 24 foot easement and the language benefitting the District shall be the
same as that certain quit-claim deed recorded in Official Records book $?83, at Page 443 of the
Public Records of Palm Beach County, Florida. Further, that any abandonment of Davis Roar shall
be conditioned upon and subject to the District Basement and City Eaeme=t. In addition, it is the
intent of the parties float notwithstanding the abandonment and deeding of the Davis Road Property
to Trustee in no event will the City and the Disu-ict be forced tn purchase said Davis Road Property
from Trustee foil actions prior to this date; provided, however, the City and District shall be liable
to the extent provided at law or in equity for any damages or remedies Trustee may have with respect
to the remainder of the Tara Property. It is .understood and agreed that in the event the District and
the City condemn and take title to thc Tats Property pursuant to the judgment obtained by Tats in
the Lawsuit, that any portion of Davis Road Property be ,conveyed back or u'ansferred to the City and
the District pursuant to such judgment shall be at no charge to the Ci{'y and the District, provided ~a~
the City and the Disn'ict shall be liable for pursuant to such judgment for all damage~ or remedies
available at law or in equity for the remainder of the Tats Property.
d. The City services water and sewer se~ice for the Tats Property. Thc City
represents (i) that the water and sewer plant capacity necessary to serve the Tats Property with the
intended improvements thereon shall be available when needed; and (ii) the water and sewer lines
which shall be constructed by Aurora with/n the Right-of, Way (to a location adjacent to the
bo.undary of the Tats Property at a location acceptable to Trustee) shall be of sufficient ~ize and
capacity to enable the owner of thc Tats Property to connect m such line and if such line sh,,ll be
connected to the water and sewer plant in order to provide service to thc Tats Property as and when
needed.
The City hereby agrees that if the Specified Improvement~ ere not completed
by a date which is one hundred fifty (150) days after the conveyance of the Talc Right-of-Way
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("Completion Date") that ',.he City vzil! enforce the Security and promptly compl,te ;uch Specified
Improvements to the extent of the Security.
6. Trustee agrees that in the event the following "Prerequisites" (as hereinaf~r defined)
haw been provided on or before May 30, 1997 ("Out~id¢ Date"), then and in that event, Trustee
shall, subject to the provisions of Paragraph 8, ~onvcy by special warranty deed (with documentary
stamps to bc paid by Aurora) to the City thc Tare Pdght-of-Way, aubject to taxes for thc year of
conveyance md all subsequent years and all easements, restrictions, limitaQons and other matters
of record pertaining to the Tare Right-of-Way; provided, howe~¢r, Trustee shall relate any
mortgage he may have which encumbers thc Tge P, ight-o~Way. Aurora agre¢~ that all taxes for the
year of conveyance with respect to tha Tare P..ight-of-Way (prorated through tl~ date of Closing ~s
required by applicable governmental authority) will be p~id by Aurora by the time of platting. Thc
term "Prerequisites" shall mcan the occun'~nce o£ or the written waiver thereof by Trustee of all of
the following, to wit:
a. The conveyance of the Shed Right-of-Way to the City so that upon
convcya.nce of the Tare Right-of-Way, thc City will have good and marketable title to the entire
Right-of-Way, thereby providing public road right-of-way to and through the Tare Property in the
area shown on ~ ("T~te Right-of-Way");
b. Plans have been prepared and approved by dl applicable governmental
authorities and permits ha~¢ been issued for thc cons~n.mtion of a two (il) lane road within the entire
length of the Pdght-of-Way together with underground water and sewer linc~ theraunde{ so az to
provide for, upon completion, water and sewer lines which'shall provide for a water and sew~ line
connection adjacent to the Tatc Property within the Tare Right-of-Way of sufficient size and d~sign
to serve at least 200 units on the Tare Property as and when needed (collectively "Specified
Consm. tction");
c. That Aurora shall have provided ~o thc City and Trustee the Security in.an
amount sufficient.to ~ssure completion of the Specified Construction on or before the Completion
Date;
d. The Davis l~oad Property shall be conveyed to Trustee as aforesaid and an
ALTA Form B title insurance policy in thc amount orS1 ,~4 per square foot comprising the Davis
Road Property shall be issued to Tmstcc insuring such Davis Road Property, subject only to taxes
for the year of such conveyance and subsequent ye~s ~md a right-of-way m~inten~nce ~uement over
the easterly 24-feet thereof. The cost of such title insurai~ce policy shall be furnished ~nd paid for
by Aurora;
e. That the Davis 1Koad Froperty shall bc zoned and land used to the same zoning
and land usc category ea thc Tetc Property or the City may satisfy this rcquircment by certifying that
the existing zoning and land use for the Davis l~.oad Property is thc same zoning and land use as the
Tare Property;
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f. That on or before December 15, 1996, Aurora sh~ll f'~'~ish Tr~tee wi~'~ll -
su~eys ~d ~g~e~g &awings w~h would com6m~ E~bi~ A ~ou~ G, incisive
("Proposed ~bi~"), whkh Proposed E~ibits s~l b~ subject to ~e app~v~ by Tm~ee
sole ~d absolute ~scredon. In ~c event that Trustee does not approv~ ~c Proposed E~bi~ on
or before ~ ~lier to occ~ of December 15, 1996 or ten (10) days ~r ~c~ipt or.ch Proposed
E~biu by T~e, ~ Trustee, at Ms s~1¢ md excI~ive option, shall ~ve the right ~pon ~inen
notice to ~¢ Ci~, Shed ~d A~ora to elect to te~a~e ~i$ A~eem~ whe~upon ~s Aseem~t
shMl te~at~ ~d the p~es shMl be released of MI ~er obligations
respect 1o this A~ent, provided T~tee ~a~ retain all rights he may have in
· e Lawsuit;
g. ~e Ci~ shall (~cr satiating all govcr~cntal rc~k~mcn~ au~o~g
~ch ac~on) vacate ~y int~ ~ ~e dghl-of-way ~& ~ect ~o ~d discl~ ac~or~g ~o Florida
law dl agh~, ~e ~d ~t~rest ~o ~e approximately 64-foot ~p of lind located imm~a~iy
e~ md adjust to ~e Tate Prope~ as desc~bed on ~ ("Davis ~ad ~ope~"),
~o ~e Ci~ Em~ment ~d Dis~c~ Emem~nt which sh~l be p~vided ~or ~e~ over ~a e~ly
24-feet of such Da~s Road Prope~ ~ sMll quit claim ~to Trustee (~ doc~em~ ~ps
to he paid by A~o~) al of its figh~ ~le ~d interes~ if my, to the Davis Road
a r~se~a~on ot~ Ci~ Easement.
h. ~ Ci~ shall execule a doc~ent r~onably ~p~bl~ to Ta~e
sc~wled~g ~ ~e condition or,he Ci~ set fo~h in P~agraph 21 offs A~e~ent h~ been
satisfied or w~ved by ~e
i. ~e Dis~ct sh~l a~rov~ ~e localion ~d ~e legal d~sc~p~on of~
md other e~bi~ ~aring the Distich, s~d approval shall not b~ ~aso~bly
It is the intent of~e p~i~ &at ~ ~ ev~t ~ar ~e ~q~si~s hav~ be~ s~ad
p~or to ~ ~tsid~ Dare, ~e Ci~ ~ o~ ~ ~-of-Way, A~ora s~l
&~ Specked Improvements ~ ~ ~ght-of-Way on or befor~ ~ Compl~on Date ~d ~a~
s~h ~ghr-of-Way ~ ~e Specified ~provemen~ sh~ll be main~d m a publia fight-of-way
by ~e Ci~, reoo~g ~at ~ Tare Prope~ sh~l b~ entitled ~o c~b cu~ ~d uffiiW co~cfions
on ~ ~gM-of-Way to pe~ir remo~bl= inters, ~ss ~d utilities ~o
appro~mmely 200 residential dwell~i ~i~ ~r~on.
7. ~ Ci~ m~es no ~pr~sen~flom herein gu~g zon~g
&t n~ber of~ts per ~re. All zo~ng must go ~gh appEcable re~i~men~ by Ci~
Any referenc= herein to ~e number of ~irs shall be in~re~ed ~ me~ing road ~ ~d
specificagons for road ~e oEy. ~o~s~d~g ~g contained he~ ro ~e con~, nei~er
~ provisio~ of~is P~a~sph ? nor ~tefing into ~is b,greement shall aff~ct ~e exi~ng zo~ng
applicable ro ~e Tale Prope~.
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$. The pardes are cntc-fing i~to this Agreement with the understanding ~,d agreement
the£ this Agreement wili not affcc~ the outcome of the .[.,aw~uit in any way, including, but not lixn/~ed -
to: (i) if a judgment is rendered ~watding monetary damage~ to Trustee. the agreement of Trustee
a~ set forth h.rein to convey the Tatc Eight-of-Way, shall not affect Tmstce's right to retain such
monetary award with r~spect to the Tstc Kight-of-Way. notwith~t~ding ',he agreement to convey
such Tare Right-of-Way. (ii) to the extent that thc court order shall dcterm_ i~e that them w~ a total
talcing of the Tale Property, then any agreement of Tmstcc set forth herein would be subject to such
order and Trustee would be rel~a~ed of any obligation to conv~ the Tat~ Pdght-of-W.y pursuant to
this Agreement, a~ such Tare Right-of-Way would have been condemned by the City and/or the
District, and (iii) to the ext~m that the order determines that such taking constituted a temporary
taking, a~cess would not be deemed provid~t to the Tate Property pursuant to this Agreement until
such time as the Right-of-Way exi,ts as a public road and the Specified Improvements have been
completed. Neither this Agreement nor any documents drafted or executed in further~ce or
compliance with this Agreement. are admissible into evidence ia the Lawsuit, or any subsequent
litigation emanating from the Lawsuit (stroh as court ordered condemnation of all or any portion of
the Tare Property), as the parties hereby ~tipulate and agree that this Agreement constitutes
privileged settlement discu~$ior~.
9. This Agreement shall be binding upon the parties and their heir~, pcrsonaI
repr:~entatives and a.~igns.
10. This Agreement ~hall not b, recorded in the Public Records.
11. In the event any patty shall default in its obligations h~reunder, a~y party to this
Agreement shall be entitled to any and all remedies available at law or in equity, including, but not
limited, to an action for specific performange. ~II 'th~ :va'lit of any litigation pertaining to this
Agreement, the prevailing party shall be entitled to recover reasanable attorneys' fees and court co~t~
through all tn/al and appellat~ levels.
12. Thi~ Agreement r&all be con.m-tad and governed in accordance with law,z o£the ${ate
of Florida and in the event of any litigation hereunder, the venue for any such litigation, shall be ia
the Palm Beach County, Florida. All of thc parties to this Agreement have participated fully ia the
negotiation and preparation hereof and, accordingly, thi~ Agreement shall not be more strictly
constraed against any one of the parties hereto.
13. In co,~stming this Agreement, the ~ingular shall be deemed to include the plural, the
plural ~hall be deemed to includ, th: singular and the us, o£any gender shall include every other
gender and ali captior~.s and paragraph hv. adings shall be discarded.
14. All of the Exhibits to this Agreement are incorporated in and made a part of this
Agreement.
o5 16'97 FRI o$:$8 FAX 407 2~7§ 4755 DEL BCH CTY ATTY +~ CITY HALL
13. This Agreement ma}, sot be changed, altered o~: moclifi=d except ~ wriliag signed, by
the pazty agei~sc whom cnforccmeat of such a change would be sought. This Agzeerr[ent shall bc'
biuding upon the parties hereto and their respective successors and assi~'as.
16. Thc parties hereby e~re~ that time is of thc cssenc~ with respect to thc Prerequisites
~md performance of each of the parde~' obligations under this A~ce, mcnt.
17. The parties a~ree that in [he event that any date on which pefform~ce is to occur falls
on a S~mrday, Sunday or state or national holiday, .then the tim,, for such performance shall be
extended until thc next business day thereafter occurring.
18. This Agreement and any subsequent arnendmenr~ hereto may be executed in any
number ofcoun~rp~rts, each of which, when executed, shall be dc~med to he an original, and all of
wkich shall bc dccmccl to he one and the same insm.uncnt. Fac~milc l~ansmission si~;~aturcs shall
be deemed original signatures.
19. Any notices required or permitted to be ~iven under this A~eement shall be in
writing arid shall he deemed given if delivered by hand, sent by rccoinized avcmight courier (such
as Federal Express), ~ransmit~ed via facsimile mmsmission or mailed by certified or registered mail,
return zeccipt reque-~ted, in a postage prc-psid envelope, and addressed as follows:
If to the City at: The City of Delray Beach
100 N.W. lsl: Av~.
Deltas' B~ach~' FL 33444
Al%'n: City Manaoer
Telef~x: 5 61 - 2 ~ 3- ~ 7 7'4
If to Tate: St(~tley G, Tare
1175 N.B. 12~th Street
Suite 102
North Miami, FL 33
Telefax: (~ 05) g91-6705
With a copy ~o: R,uden, McCloskT, Smith,
Schuler & l~,us~cll, P.A.
200 ]East Broward Boulevard
lSth Floor
Fort Lauderdale, Florida 33301
Auendon: Barry E. Somer~'~cin, Bsq.
Tclefax: (305)
nS, 16'97 FRI .8:.58 FAX 4,7 278 4755 DEL BCH CTY ATTY -*-~-~ CITY HALL
SENTBY-' XEROX Telo¢opier ~/01~;11-12-96 ; 11:4.5 ; 95476~,4998.., 914.0'~655184.0;#
If to District: Lake Worth Drainage District
13081 Military Trail
At131: William G. Winters
Tel~fax:. 5 61 - 4 9 5 - 9 6 9 4
If to Sued: William H. Shad, Jr.,
2ti Dst'ara 5~rcet
P.O. Box 3746
West Palm Beach, FL 33402-3746
Te[efax; (407) 655-1640
If to Aurora: Aurora Homes, Inc.
Attn;
Tole fax:
Notices pcrson-lly delivered or sent by overnight courier shall b~- deemed given on the date of
r~:ipt, notices s~nt via fa,~simile trar~missiou shall be d¢¢m:d given upon transmission and notices
sent via c~rti~ted mail in accordance with the fotegoin§ sh~ll bc deemed $iyen when d~'positcd in the
U.S. Mails.
20. The City shall ,,,a~ate that portion of Davis Road lying ea.~ of the "Travis Property"
~o Aurora accordLng ~o the same terms and conditions of Paragraph $.c ~nd 6.$ r~fgrred to
This provision is subj¢¢~ to Travis releasing the City and the District Eom any and all causes of
action regarding the ¢losin~ of Davis Road. Ifa release is no£ obtained in · form approval by thc
Ci~ Attorney and Diswict Aaorncy, this Paragraph 20 shall be null and void, but the remah~d~ of
~his Agreem~m shall remain in effect,
21. Notwithstanding any of the terms and conditions of this Agreern~nt, the District's and
City's duty to perform hereunder arc subject to and conditioned upon Aurora closing with respect
to the pur~h~¢ of the Sued Property together with posting ofthg required Securiw for thc Specified
Improvemen~ aa providad in this A~reement. In the event that the conditions orr. he Prerequisites
und~ ll~is A~ree~nent have not been sa6sfied, then the District, Sued, the City and the Trustee shall
be completely excused of any duties, obligations or agreements hereunder eXCalX with respect to the
provisions of Para,apb g of this A~reemen,.
22. Aurora and/or Sued shall keep Tote advised on a monthly ba~is as to the status of the
conditions to Aurora's closing with respect to the Sued Property and their efforts lo obtain permits
and plans with regard to the Specified Improvements.
__1~$,16."97 FRI 05:$9 FAX 407 278 475~ DEL BCH CT¥ ATTY ~ CITY HALL ~Olt~
SENT ,BY: XEROX Telecopier ~017;11-12-~6 ; 11:46 ; 9591544996~ 914076551640:# g
IN WITNESS WHEKEOF, the p~r~ies have cx~ut~d lhi~ Agreemem as ofth~ day and year
flrst abovewriuen.
SIGNED, SEALED AND DELIVERED .. THE CITY OF DELRAY BEACH
IN THE PRESENCE OF:
~ity ~lerk f Nm~'/J?~ A1p~in
Tit~ Mayor -
.)~ ~, Stanley G~t~, Trustee
LAKE WORTH DRArNAOB DISTRICT
Title:. Manager
AURORA HOMES, INC.
By: v,,.
Title:. V IO.~ IPfl.~:~I P(:/~'T*-*-
ePpy_e.,das to form
g~.~ti:iency: · /? ~-.
for City of D le~y Beach
o$..16. 97 FRI 08:59 FAX 407 278 4755 DEL BCH ('TY ATTY -*-~-~ CITY HALL ~1}11
T~tIS ADDENDUM entered i~=o %he __- ray of 'J ,~ ,
129_~~, by a~d amonq =he Ci~ OF DE~Y B~CH, a Florida m~icipal
co,ora=ion, hereinafter re~arred =c as "City," ST~EY ~. rATE,
TRUSTEE, hereinafter referred =o as "T~s=ee," ~e ~ WOR~
D~INAGE DISTRICT, hereinafter r~ferre~ ~o as ~Distri==, · ~LLI~
H. S~, ~., TRUSTEE, hereinafter referred to as "Shed,"
A~O~ HO~S, INC., hereinafter =eferred to as ~Aurora."
~R~S, ~he par~ies hereto ~er~ into ~ Access
date~ October 31, 1296; ~
NOW, ~FORE, for ~ood ~ vatu~le consideration, it
agree~ as follows:
1. That all the original te~s ~ conditions of the Access
Agreement r~ain in full force ~d effect ~cept as herein
~pecifically ~en~ed.
e~te~t a co~t de~e~in~s ~hat T~s=ee o~e~ ~y ~ortion of the
64-foot area at t~e t~e of the $nt~ of ~e Final Jud~ent ia the
litig==ion styled S~i~ S. Tat~ v. C!t~ of Delray Beach, e~ al,
Case No. 93 - 5198 AI, (area descried i= ~bit G) , that
notwithst~ai~g the provision of this ~ara~aph, T~stee would be
entitled to recover d~aages for such area to ~e e~tent a co~t
wo=l~ othe~ise awar~ such d~e, but for this A~re~ent.
3. T~s A~de=a~ is giv~ to clarify the prior Access
Aqre~ent.
4. This Addend~ may be ~ecutea in ~y m~er
co~te~=rts, each of which, w~ ~e=ute~, shall be ~eemed
original, =~ all of which shall be de~e~ to be one ~a the
inst~ent. Facs~lm tran~ssio= si~&t~es w~ll be
original si~atures.
IN WI~SS ~REOF, the parties have executed this Adde=d~ to
u.v lt~ 97 FRI 08:59 FAX 407 278 4755 DEL Bf'H CT¥ ATTY ~- CITY HALL
Access Agreemmn= as of the day an~ year first above wr£~tmn.
SIGNED, SEALED, ~ DELIVERED
IH ~ P~S~CE OF: ~ CITY OF DEL~ B~CH
~pr~¢ed ~ t0 fo~and legal
Wi~ess (~elPr~) N~e: St~ley G. Tats,
T~s tee
Witness (Type/Print) Name:
LAKE WORT~ D~AI~AGE D I~TRI CT
By.-~ --_. _
Witness (Type/Print) Name: N~me:
Title:
Witness (Type/Print) Name:
Witness (Ty~e/Prin~) Name: William H. Shed, Jr.,
Trustee
Wi=ness (Type/Print) ..Name:
AURORA HOM~$, INC.
By:
Witness (Ty~e/Pr~t) Kamen N~e:
Ti tle:
Witness (Ty~e/Prin=) N~e:
o.~ 16 97 FRI og:t;o FAX 4o7 278 4755 DEL BCIt ('TY ATTY -~-*-- CITY HALL
January 17. 1997
~"L~ TI~L~COPTI~_I~. (40'"~ ~_~-1640
~.0. B~x 37~6 ,
~:~ P~m ~ea~. FL 3340~-3746
/
{.
memd~d' so i~st ~o reference ~o Ex.bit ~ in Pa~g~ph 3(a)
iR ad ~az ~ ~bit H is ~ ~e fo~ of Ex.bit H at~a~ed to ~s 1:~ ~ent.
going agg~t:ly ~e~ ~ ~ont ~f~e p~i~ ~i~
pl~ have ~he Ci~. ~: DistH~. ~ned ~d T~t~ ~c~e ~her~ in~ted
~on ~c Agreement shall be de~mcd am~d by
~, dcli~dn~ hcr:~ ~o you in c~ow fo~ (4) copi~ of
fo~ (4) cop~cs of my od~ si[na~ ~o ~e f~ile
~hic~ you ~e to hold in eso~w pending yo~ delive~ ~o me
~ ~1 of thC pa~ ~o ~¢ A~en¢ by t¢l¢¢o~y ~miisi~= p~or [o 3~ 31. 1997.
~ my soi~ disor:tion) pl~ b: sdwis~d tha~ ~e A~r~z ~I
Ve~ ~[y yours.
$t~l~ O. Tare,
DEL~Y B~CH LA~ WORSt
HOMES, NC.
Name:,
Trustee Title:
~'~ ~,t~; .
as t0 form
:ficiency: .....