Agenda 08-02-05
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100 E. Boynton Beach Boulevard. (561) 742-6000
City Commission
AGENDA
August 2,2005
Jerry Taylor
Mayor
At Large
Bob Ensler
Commissioner
District I
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Mack McCray
Vice Mayor
District II
Mike Ferguson
Commissioner
District III
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Carl McKoy
Commissioner
District IV
DISTRI T I
Kurt Bressner
City Manager
www.boynton-beach.org
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WELCOME
Thank you for attending the City Commission Meeting
THE AGENDA:
There is an official agenda for every meeting of the City Commissioners, which determines the order of
business conducted at the meeting. The City Commission will not take action upon any matter, proposal, or
item of business, which is not listed upon the official agenda, unless a majority of the Commission has first
consented to the presentation for consideration and action.
GENERAL RULES &. PROCEDURES FOR PUBLIC PARTICIPATION AT
CITY OF BOYNTON BEACH COMMISSION MEETINGS
· Consent Agenda Items: These are items which the Commission does not need to discuss individually
and which are voted on as a group.
· Regular Agenda Items: These are items which the Commission will discuss individually in the order
listed on the agenda.
· Voice Vote: A voice vote by the Commission indicates approval of the agenda item. This can be by either
a regular voice vote with "Ayes & Nays" or by a roll call vote.
SPEAKING AT COMMISSION MEETINGS:
The public is encouraged to offer comment to the Commission at their meetings during Public Hearings, Public
Audience, and on any regular agenda item.
City Commission meetings are business meetings and, as such, the Commission retains the right to limit
discussion on an issue.
· Public Hearings: Any citizen may speak on an official agenda item under the section entitled "Public
Hearings. "
· Public Audience: Any citizen may be heard concerning any matter within the scope of the jurisdiction of
the Commission.
· Regular Agenda Items: Any citizen may speak on any official agenda item(s) listed on the agenda after
a motion has been made and properly seconded.
.
ADDRESSING THE COMMISSION:
When addressing the Commission, please step up to either podium and state, for the record, your name and
address.
DECORUM:
Any person making impertinent or slanderous remarks or who becomes boisterous while addressing the
Commission will be barred from further audience before the Commission by the presiding officer, unless
permission to continue or again address the Commission is granted by the majority vote of the Commission
members present.
Please turn off all pagers and cellular phones in the City Commission Chambers while the City Commission
Meeting is in session.
City Commission meetings are held in the Boynton Beach City Commission Chambers, 100 East Boynton Beach
Boulevard, Boynton Beach. All regular meetings are held typically on the first and third Tuesdays of every
month, starting at 6:30 p.m. (Please check the Agenda Schedule - some meetings have been moved due to
Holidays/Election Day).
CITY OF BOYNTON BEACH
REGULAR CITY COMMISSION MEETING
AGENDA
August 2, 2005
6:30 P.M.
I. OPENINGS:
A. Call to Order - Mayor Jerry Taylor
B. Invocation by Reverend Rick Riccardi, Police Chaplain
C. Pledge of Allegiance to the Flag led by Commissioner Bob Ensler
D. Agenda Approval:
1. Additions, Deletions, Corrections
2. Adoption
II. OTHER:
A. Informational Items by Members of the City Commission
III. ANNOUNCEMENTS, COMMUNITY &. SPECIAL EVENTS, &. PRESENTATIONS:
A. Announcements:
1. Carolyn Sims Annual Family Day Picnic, Saturday, August 6, 2005 at
Wilson Park, 211 NW 13th Avenue from 12 - 6 p.m.
2. Vice Mayor Mack McCray has continued the tradition of the Greater
Boynton Beach School Supply Drive which runs through August 10, 2005.
Supplies include NEW pencils, pens, crayons, notebooks, notebook paper,
backpacks, calculators, lunch boxes, scissors, rulers and glue sticks. Drop
off points include City Hall, Public Library, City Hall in the Mall and Ezell
Hester, Jr. Community Center. The supplies donated will be given to the
schools to distribute.
B. Community and Special Events:
None
Agenda
Regular Commission Meeting
Boynton Beach, FL
August 2, 2005
C. Presentations:
1. Proclamations:
None.
2. 2005 Legislative Session Update by Senator Ron Klein.
IV. PUBLIC AUDIENCE:
INDIVIDUAL SPEAKERS WILL BE LIMITED TO 3-MINUTE PRESENTATIONS (at
the discretion of the Chair, this 3-minute allowance may need to be adjusted
depending on the level of business coming before the City Commission)
V. ADMINISTRATIVE:
A. Accept the resignation of Patricia Maitner, a regular member of the Code
Compliance Board.
B. Accept the resignation of Kimberlee McGow, a regular member of the Arts
Commission.
B. Appointments to be made:
Appointment
To Be Made
III Ferguson
IV McKoy
II McCray
III Ferguson
II McCray
III Ferguson
IV McKoy
II Ensler
III Ferguson
IV McKoy
II Ensler
Length of Term
Board Expiration Date
Adv. Bd. On Children & Youth Alt 1 yr term to 4/06
Adv. Bd. On Children & Youth Alt 1 yr term to 4/06
Cemetery Board Alt 1 yr term to 4/06
Code Compliance Board Alt 1 yr term to 4/06
Education Advisory Board Alt 1 yr term to 4/06
Education Advisory Board Reg 1 yr term to 4/06
Education Advisory Board Alt 1 yr term to 4/06
Education Advisory Board Stu 1 yr term to 4/06 (3)
Library Board Alt 1 yr term to 4/06
Library Board Alt 1 yr term to 4/06
Employees' Pension Board Reg 3 yr term to 4/08
2
Agenda
Regular Commission Meeting
Boynton Beach, FL
August 2, 2005
VI. CONSENT AGENDA:
Matters in this section of the Agenda are proposed and recommended by the City Manager for
"Consent Agenda" approval of the action indicated in each item, with all of the accompanying
material to become a part of the Public Record and subject to staff comments.
A. Minutes:
1. Agenda Preview Meeting - July 15, 2005
2. Regular City Commission Meeting- July 19, 2005
B. Bids and Purchase Contracts - Recommend Approval - All expenditures are
approved in the 2004-2005 Adopted Budget.
None.
C. Resolutions:
1. Proposed Resolution No. ROS-096 RE: Ratifying the
action of the South Central Regional Wastewater Treatment & Disposal
Board.
a. Authorization for the Chairman to sign the interlocal agreement
for the delivery and use of reclaimed water with Boynton Beach,
effective as of October 1, 2005. (Tabled to 8/02/05)
b. Assignment Agreements for the following golf courses: Delray
Dunes Golf and Country Club, Country Club of Florida, Hunters
Run Golf and Racquet Club, Pine Tree Golf Club and Quail Ridge
Country Club.(Tabled to 8/02/05)
2. Proposed Resolution No. ROS-126 RE: Approving and
authorizing the execution of Amendment No. 001 (Exhibit 'A') to the
Interlocal Agreement between the City of Boynton Beach and Palm Beach
County regarding the Lake Worth Lagoon Partnership Program.
3. Proposed Resolution No. ROS-127 RE: Approving
and authorizing the execution of an Agreement for Water Service Outside
the City Limits with Nelson R. Santos & Teresa Santos for the property at
4700 White Feather Trail, Boynton Beach, FL (13-45-42, W 160 FT of N
272.25 FT of NW % of SE % of NW %).
3
Agenda
Regular Commission Meeting
Boynton Beach, FL
August 2, 2005
4. Proposed Resolution No. ROS-128 RE: Approving a
three year interlocal agreement between Palm Beach County and the City
of Boynton Beach at an annual cost of $4,000 funded by the I.T.S.
Department Account #001-1510-513-41-10 where the City can directly
access the County's Dialogic Geographic-based Alert and Notification
System.
5. Proposed Resolution No. ROS-129 RE: Approving and
authorizing the execution of an Agreement between the City of Boynton
Beach for Joint Participation and Project Funding in the construction of
Lawrence Road, from Boynton Beach Blvd. to Gateway Blvd. (Palm Beach
County Project No. 1999507), and authorizing expenditures by the City in
the amount of $315,742.00.
6. Proposed Resolution No. ROS-130 RE: Approve the
City of Boynton Beach's 2005/2006 Community Development Block Grant
(CDBG) One-Year Action Plan.
D. Ratification of Planning and Development Board Action
None
E. Ratification of CRA Action:
1. Neelam (fka Schnars) Business Center (NWSP OS-022) Request
for Site Plan approval for a three (3) story, 8,754 square foot office/retail
building in a Mixed Use Low (MU-L) zoning district.
2. (Intentionally Left Blank)
3. 262S Lake Drive North (ZNCV OS-003) Request for relief from the
City of Boynton Land Development Regulations, Chapter 2, Zoning,
Section 5.C.2, requiring a seventy-five (75) foot minimum lot frontage to
allow a twenty-two (22) foot variance, resulting in a fifty-three (53) foot
minimum lot frontage within the R-1-AA Single family Residential zoning
district.
4. 62S NE lSth Place (Deasy Variance){ZNCV OS-OOS) Request for
relief from the City of Boynton Beach Land Development Regulations,
Chapter 2, Zoning, Section 5.C.2, requiring a ten (10) foot side yard
setback to allow a six (6) foot variance, resulting in a four (4) foot side
yard setback for a screen enclosure within the R-1-AA Single family
Residential zoning district.
4
Agenda
Regular Commission Meeting
Boynton Beach, FL
August 2, 2005
F. Approve Change Order #1 for the Library Expansion Project in the amount of
$189,963 to cover Contractor's General Conditions costs caused by the delayed
start of the project.
G. Approve Change Order #2 for the Library Expansion Project in the amount of
$85,615 to cover the Contractor's labor and material costs associated with
changing FPL power supply to the Civic Center from above ground to below
ground and installing two conduits for BellSouth phone lines.
H. Approve $5,000 donation to the Juvenile Transition Center, Inc. ESTEEM
Program, from the state law enforcement trust fund.
VII. CODE COMPLIANCE &. LEGAL SETTLEMENTS:
None
VIII. PUBLIC HEARING: 7:00 P.M. OR AS SOON THEREAFTER AS THE AGENDA PERMITS
The City Commission will conduct these public hearings in its dual capacity as Local
Planning Agency and City Commission
A.
PROJECT:
Condominium Hotels in Mixed Use Districts (CDRV
05-013)
Staff-initiated
Mixed Use-High Intensity (MU-H) and Mixed Use-Low
Intensity (MU-L) zoning districts.
Request to amend the Land Development Regulations,
Chapter 2, Section 6.F. Mixed Use Zoning Districts to add
"Hotel, Extended Stay" as a permitted use in the Mixed
Use-High Intensity (MU-H) zoning district; as a conditional
use in the Mixed Use-Low Intensity (MU-L) zoning district;
and to amend the definitions of "Hotel" and "Hotel,
Extended Stay" to include condominium hotel units. (1st
Reading of Proposed Ordinance No. 05-043)
AGENT:
LOCATION:
DESCRIPTION:
B.
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
Heritage Club @ Boynton Beach (LUAR 05-005)
Michael Weiner, Esq., Weiner & Aronson, P.A.
Thirty Six Hundred Holdings, LLC
Northwest corner of the intersection of Federal Highway
and Gulfstream Boulevard
Request to amend the Comprehensive Plan Future Land
Use Map from Local Retail Commercial to Special High
Density Residential (1st Reading of Proposed
Ordinance No. 05-044)
Request to rezone from C-3 Community Commercial to
PUD Planned Unit Development. (1st Reading of
Proposed Ordinance No. 05-045)
5
Agenda
Regular Commission Meeting
Boynton Beach, FL
August 2, 2005
Proposed Use:
Mixed use development containing 19,500 sq. ft. of
commercial development (office, retail, restaurant) and
166 multi-family residential units.
1. Heritage Club @ Boynton Beach (NWSP 05-014) Request New Site
Plan approval to construct 70 townhouse units, a four (4) story mixed
use building consisting of 84 dwelling units, 3,500 square feet of
restaurant, 4,100 square feet of retail, and 5,164 square feet of office.
The site plan also includes a three (3) story mixed use building consisting
of 12 dwelling units, 5,394 square feet of retail, and 1,380 square feet of
office, all of which, are proposed on an 8.302 acre parcel zoned PUD
Planned Unit Development.
2. Heritage Club @ Boynton Beach (HTEX 05-004) Request for a
height exception of 10 feet pursuant to the City's Land Development
Regulations, Chapter 2, Zoning, Section 4.F.2, to allow the decorative
towers to be 55 feet in height, a distance of 10 feet above the 45 foot
maximum height allowed in the (PUD) Planned Unit Development zoning
district.
IX. CITY MANAGER'S REPORT:
None.
X. FUTURE AGENDA ITEMS:
A. Workshop regarding City Hall/Public Safety Space Needs Report (8/30/05)
B. lnterlocal Agreement between the City and CRA - Boynton Beach Promenade
extension. (Proposed Resolution No. R05-091) Tabled to 9/20/05
C. lnterlocal Agreement between the City and CRA -- Old High School. (9/20/05)
D. Agreement for the Boynton Beach-Heart of Boynton Project - Phase I (9/20/05)
E. lnterlocal agreement between the City and CRA for land acquisition in the Heart
of Boynton Beach. (Tabled to 9/20/05)( Proposed Resolution No. R05-
119)
F. City Manager's Evaluation (October 2005)
G. Notification to residential areas of ordinance changes.
6
Agenda
Regular Commission Meeting
Boynton Beach, FL
August 2, 2005
XI. NEW BUSINESS:
A. Rights-ot-way in PUD - Preliminary review of request to amend the Land
Development Regulations, Chapter 2.5, Section 9, Internal PUD standards, F.
RIGHTS OF WAY to allow secondary roadways within a PUD to be approved with
right-of-way widths of less than 40 feet.
XII. LEGAL:
A. Ordinances - 2nd Reading - PUBLIC HEARING
1. Proposed Ordinance No. 05-029 RE: Amending the Land
Development Regulations (LDR) Chapter 2, Zoning, Section 6 and Section
8.5, to create an overlay district to reduce the front, side interior, and
side corner yard building setbacks for parcels currently zoned Office and
Professional District (C-1), Neighborhood Commercial District (C-2),
Community Commercial District (C-3), and General Commercial District
(C-4), located within targeted areas of the CRA.
2. Proposed Ordinance No. 05-039 RE: Annexing:f: 5.5 acres
of land to be reclassified and rezoned for development as part of the
Knollwood PUD.
3.
Proposed Ordinance No. 05-037
Comprehensive Plan Future Land Use
Residential (Palm Beach County) to
(Knollwood II)
RE: Amending the
Map from MR-5 Single Family
LDR Low Density Residential.
4. Proposed Ordinance No. 05-038 RE: Rezoning from AR-
Agricultural Residential (Palm Beach County) to PUD Planned Unit
Development. (Knollwood II)
5. Proposed Ordinance No. 05-040 RE: Rezoning 2.54 acres
from R-1-AA Single Family Residential to R-1-A Single Family Residential
(Future Land Use classification to remain Low Density Residential (LDR))
for the ultimate development of 10 single family residential lots. (Gerrity)
(Applicant requests postponement to August 16.)
6. Proposed Ordinance No. 05-041 RE: Amending the Land
Development Regulations, Chapter 2 Zoning, Section 5(J)(2) to increase
maximum building height for hospitals from 45 feet to 75 feet, while
retaining existing maximum floor provision of four (4) stories.
7
Agenda
Regular Commission Meeting
Boynton Beach, FL
August 2, 2005
7. Proposed Ordinance No. 05-042 RE: Approving the
Franchise Agreement between the City of Boynton Beach and Adelphia
Communications Corp.
a. Proposed Resolution No. R05-125 RE: Consenting to
assignment and change of control and consent to assignment of
cable system and franchise.
B. Ordinances -- 1st Reading
1. Proposed Ordinance No. 05-046 RE: Amending Chapter
16, "Parks and Recreation", Article II, "City Parks and Beaches" by
amending Section 16-82 to provide for an increase of Beach parking
permits and related fees and eliminating redundant language.
C. Resolutions:
1. Proposed Resolution No. R05-131 RE: Authorizing an
agreement with the State Department of Environmental Protection in
furtherance of an approved outdoor recreation project to develop the
Wilson Park property.
2. Proposed Resolution No. R05-132 RE: Authorizing an
agreement with the State Department of Environmental Protection in
furtherance of an approved outdoor recreation project to develop the
Jaycee Park property.
3.
Proposed Resolution No. R05-133 RE: Approving
refinancing of 1996 Utility Revenue Bond.
the
D. Other:
None.
XIII. UNFINISHED BUSINESS:
A. Building Colors along Major Roadways (CDRV 05-009) Proposal to
amend the Land Development Regulations, Chapters, 4 and 9 to limit building
colors, and require the review/approval for changes to building colors for
buildings located along Boynton Beach Boulevard, Federal Highway, and
Congress Avenue. (Tabled to 8/2/05)
8
Agenda
Regular Commission Meeting
Boynton Beach, FL
August 2, 2005
XIV. ADJOURNMENT:
NOTICE
IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THE CITY COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT THIS
MEETING, HE/SHE WILL NEED A RECORD OF THE PROCEEDINGS AND, FOR SUCH PURPOSE, HE/SHE MAY NEED TO ENSURE THAT A VERBATIM
RECORD OF THE PROCEEDING IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED.
(F.S. 286.0105)
THE CITY SHALL FURNISH APPROPRIATE AUXILIARY AIDS AND SERVICES WHERE NECESSARY TO AFFORD AN INDIVIDUAL WITH A DISABILITY AN
EQUAL OPPORTUNITY TO PARTICIPATE IN AND ENJOY THE BENEFITS OF A SERVICE, PROGRAM, OR ACTIVITY CONDUCTED BY THE CITY. PLEASE
CONTACT JOYCE COSTELLO, (561) 742-6013 AT LEAST TWENTY-FOUR HOURS PRIOR TO THE PROGRAM OR ACTIVITY IN ORDER FOR THE
CITY TO REASONABLY ACCOMMODATE YOUR REQUEST.
FIRST DRAFT AGENDA 8/1/2005 10:27 AM
S :\CC\WP\CCAGEN DA \AGENDAS\YEAR 2005\080205.DOC
9
m.-ANNOUNCEMENTS 8r. PRESENTATIONS
Item A.l.
"c arolyn Sims Annual
Family Day Picnic"
Saturday , August 6th, 2005
Wilson Park, 211 NW 13th Avenue
12 - 6 p.m.
~hare in fhe tradition and vision fhat ot1e pf our
great communrty S~ritSI .~e late !Clro~ ~ims,
held der f~lJer hetilri~jf \ f"\~,/
f:~'x't::-: t;~:;:~':--:.~ (~i:'. \'~:f~'r<~
l:~f::.;,"!{"~ ';::: !i~W,~ "J'
~ :~~,,;, ;-'0,.,,' ~
Cpildren's ~mes, ente. ~ent&t~nd fun'{~ +he lole family!
, r pi~ic b ; ~(" ~., ~ c4rs, blan., Iawt\!&~airs,
, : :' ~'/ :}., ,Ie "'f' 't,,:
.. nd .' ~ '. :tJ1!., i~~ reat IM,- th I>'!~ rid
~ring ,,,!~/iP b ~L of~Lo~r.s
f;}:!~r~' ~~ ~~:f~, Ple~ ~II C
l!aremci:loJleMc7 It; J,~ rn~~at 827-3051
". .... 'f~;f) f ]) r'i I:' ri ,;t l a 'r V' 'J" >:
. We Make
life fun!!
A City of Boynton Beach
Recreation and Parks Department
Wilson Center Event
BOynton Beech
Recreation and Par!>, Department
III.-ANNOUNCEMENTS & PRESENTATIONS
Item A.2.
City Conducts School Supply Drive
Vice Mayor Heads Up Annual Project
The City of Boynton Beach is again collecting supplies for children in the
city's schools. The "Great Boynton Beach School Supply Drive" will run
through the first day of school, Wednesday, August 10, 2005. Supplies
include pencils, pens, crayons, notebooks, notebook paper, backpacks,
calculators, lunch boxes, scissors, rulers and glue sticks. All supplies should
be new; no used items, please. Drop off points include Boynton Beach City
Hall, 100 E. Boynton Beach Blvd.; Boynton Beach Public Library, 208 S.
Seacrest Blvd.; City Hall in the Mall, Boynton Beach Mall, 801 N. Congress
Ave., next to Macy's; and the Ezell Hester, Jr. Community Center, 1901 N.
Seactest Blvd.
Vice Mayor Mack McCray, who has continued the City's tradition of the
school supply drive, said, "Today's students are our future leaders, and it is
imperative that we provide them with the tools they need to assist them in
theirE~ducation. This includes basic supplies, which will enable our young
people to better focus on the learning process."
The supplies will be given to the schools, which will determine how they will
be distributed to the children. The City will not give the supplies directly to
the students.
For additional information, call (561) 742-6010.
###
.....................
Jul 11 05 08:22p
III.-ANNOUNCEMENTS & PRESENTATIONS
Item C.2
THE FLORIDA SENATE
Tallahassee, Florida 32399-1100
COMMITTEES:
Transportation. VICe Chair
Commerce and Consumer Services
Criminal Justice
Education
Education Appropriations
Rules and Calendar
JOINT COMMITTEE:
Intergovernmental Relations
SENATOR RON KLEIN
30th District
FAX TRANSMISSION COVER SHEET
To:
Fax#:
From:
Subject:
Date:
Pages:
Janet
561-742-6090
Ashley Bodmer
Boynton Beach City Commission Agenda
July 11,2005
1 (including this cover sheet)
COMMENTS:
Senator Klein would like to request time on the August 2nd City Commission agenda to give the
Commission a review of the 2005 legislative session.
Thank you,
Ashley Bodmer
Legislative Aide
State Senator Ron Klein
561-274-4777
REPLY TO:
Cl 3333 South COngress Avenue, Suite 305 A, Defray Beach, Aorida 33445 (561) Zl4-4n7
a 42() Senate 0IIi0e Building, 404 South Monroe Street. Tallahassee. Rorida 32399-1100 (850) 487-5091
Senate's Website: www.flsenate.gov
TOM LEE
President of the Senate
CHARLIE CLARY
President Pro Tempore
V. ADMINISTRATIVE
ITEM A.
July 17,2005
Ms. Michele Costantino
eIM-.-
Code Compliance Board
The City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33435
Dear Michele;
As you know I began a new job on JW1C 1 after my earlier retirement in January. TIn I
weeks later, I became President of the Board of my church, which has other unique
responsibilities. With the two new positions, I do not believe that I have the time 01 th :
energy at this time to devote the time which would be necessary to also be a member ( f
the Code Compliance Board.
For that reason, I am tendering my resignation from the Code Board, effective
immediately. I appreciate the opportunity to serve on the Board and regret that such
notice is necessary. I understand that there is a potential new Board member in the wit gs
who may be able to fill my slot.
q;;;~
Patricia Maitner
::-'
V. ADMINISTRATIVE
ITEM B.
Pyle, Judith
From: Prainito, Janet
Sent: Tuesday, July 26, 2005 11 :49 AM
To: Pyle, Judith
Cc: Dennison, Arleen
Subject: FW: With regret
Judy: For the next agenda.
Arleen - Thank you.
From: Dennison, Arleen
Sent: Tuesday, July 26,200511:45 AM
To: Prainito, Janet
Subject: FW: With regret
Arts Commission resignation.
From: Kimunity2@aol.com [mailto:Kimunity2@aol.com]
Sent: Monday, July 18, 2005 6:20 PM
To: DennisonA@cLboynton-beach.f1.us
Subject: With regret
Dear Arleen:
It is with a great deal of regret that I must tender my resignation from the Arts Commission. My life and
commitments have changed considerably since I became a member of the commission and I find it increasingly
difficult to do justice to the position, and to my fellow commission members.
I have truly enjoyed this very challenging experience and the relationships that have developed as a result. If I
can be of any help in an adjunct or informal capacity, please don't hesitate to contact me.
Arleen, your commitment, professionalism and generosity are remarkable; I am most fortunate to have had the
opportunity to work with you. Thank you.
Best wishes,
Kim McGow
7/26/2005
V. ADMINISTRATIVE
ITEM C.
APPLICANTS ELIGIBLE FOR APPOINTMENT 08/u~/u:>
LAST FIRST 1 st CHOICE 2nd CHOICE 3rd CHOICE APPUCATION
NAME NAME SUBMITTED
Broenig Gerald Planning & Community 4/11/05
Development Board Development
Aaency
Fitzpatrick Michael Planning & 2/25/05
Development Board
Grcevic Sharon Planning and 12/20/04
Development Board
Lender Wayne Community 1/28/05
Redevelopment
Aaency
Lentz Barbara Arts Commission 7/7/05
McMahon James Recreation & Parks Planning & 1/8/05
Board Development
Board
-~
,
JAP
7/26/200511:31 AM
S:\CC\WP\BOARDS\APPMENTS\Board Year 2005\APPLlCANTS ELIGIBLE FOR APPT 08 02.doc
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM C.l. a..CU\.d b.
Requested City Commission Date Fina] Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
0 April 5, 2005 March ]4,2005 (Noon.) 0 June 7, 2005 May ]6,2005 (Noon)
0 Apri] ]9,2005 Apri] 4, 2005 (Noon) 0 June 2], 2005 June 6, 2005 (Noon)
0 May 3, 2005 Apri] ]8,2005 (Noon) 0 July 5, 2005 June 20, 2005 (Noon)
0 May]7,2005 May 2, 2005 (Noon) ~ Ju]y 19,2005 July 5, 2005 (Noon)
0 Administrative 0 Development Plans
NATURE OF ~ Consent Agenda 0 New Business
AGENDA ITEM 0 Public Hearing 0 Legal
0 Bids 0 UnfInished Business
0 Announcement 0 Presentation
0 City Manager's Report
RECOMMENDATION:
Motion to keeD this item on the table until AUGust 2. 2005 due to
the fact that staff is still reviewing the cost impact Of the
agreements.
EXPLANATION: On April 21, 2005, the South Central Regional Wastewater Treatment & Disposal
Board held its Regular Quarterly Annual meetil1g. At that time, the Board took
action on items that are now before the City Commission for ratification. This
City Commission ratification is the confirmation process for the action taken by
the S.C.R.W.T.D. Board.
PROGRAM IMPACT: None
FISCAL IMPACT: None
ALTERNATIvES: Not ratify their action
~ Yr]. ~~
Department Head's SIgnature
~~
ity Manager's Signature
City Clerk's Office
City Attorney / Finance / Human Resources
S:\CC\WP\CCAGENDA\Agenda Request Memos\Agenda Item Request - SCRWTD - 05-17-05 - revised for 7-19-05 meeting.dot
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM C.4.
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
0 April 5, 2005 March ]4,2005 (Noon.) ~ June 7, 2005 May ]6,2005 (Noon)
0 April ]9,2005 April 4, 2005 (Noon) 0 June 2], 2005 June 6, 2005 (Noon)
0 May 3, 2005 April ]8,2005 (Noon) 0 July 5, 2005 June 20, 2005 (Noon)
0 May ]7,2005 . May 2, 2005 (Noon) 0 July] 9, 2005 July 5, 2005 (Noon)
0 Administrative 0 Development Plans
NA TURE OF ~ Consent Agenda 0 New Business
AGENDA ITEM 0 Public Hearing 0 Legal
0 Bids 0 UnfInished Business
0 Announcement 0 Presentation
0 City Manager's Report
RECOMMENDATION:
Request postponement of the ratification of the action of the
South Central Regional Wastewater Treatment &. Disposal Board
until JulV 5~ lOgS. ., 1\ <t I 0....- \l.& . <".
EXPLANATION: On April 21, 2005, the South Central Regional Wastewater Treatment & Disposal
Board held its Regular Quarterly Annual meeting. At that time, the Board took
action on items that are now before the City Commission for ratification. This
City Commission ratification is the confirmation process for the action taken by
the S.C.R.W.T.D. Board.
PROGRAM IMPACT: None
FISCAL IMPACT: None
AL TERNATJVES:
Not ratify their action
~~arure
City Clerk's Office
City Attorney / Finance / Human Resources
S:\CC\WP\CCAGENDA\Agenda Request Memos\Agendaltem Request - SCRWTD - Revised for 06-07-05 Meeting.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM C.4.
Requested City Commission Dale Final Form Must be Turned Requested City Commission Dale Fina] Form Must be Turned
Meeting Dates in 10 City Clerk's Office Meeting Dates in to City Clerk's Office
0 April 5, 2005 March 14,2005 (Noon.) ~ June 7, 2005 May 16, 2005 (Noon)
0 April 19, 2005 April 4, 2005 (Noon) 0 June 21,2005 June 6, 2005 (Noon)
0 May 3, 2005 April 18,2005 (Noon) 0 July 5, 2005 June 20,2005 (Noon)
0 May 17, 2005 May 2, 2005 (Noon) 0 July 19,2005 July 5, 2005 (Noon)
0 Administrative 0 Development Plans
NA TURE OF rg) Consent Agenda 0 New Business
AGENDA ITEM 0 Public Hearing 0 Legal
0 Bids 0 Unfmished Business
0 Announcement 0 Presentation
0 City Manager's Report
RECOMMENDATION:
Request POstponement of the ratification of the action of the
South Central Regional Wastewater Treatment &. Disposal Board
until July 5, 2005. _ ~.<"
EXPlANATION: On April 21, 2005, the South Central Regional Wastewater Treatment & Disposal
Board held its Regular Quarterly Annual meeting. At that time, the Board took
action on items that are now before the City Commission for ratification. This
City Commission ratification is the confirmation. process for the action taken by
the S.C.R.W.T.D. Board.
PROGRAM IMPACT: None
FISCAL IMPAq:, None
ALTERNATIVES:
Not ratify their action
J2v\-~
City Manager's Signature
City Clerk's Office
City Attorney / Finance / Human Resources
-. ~C\WP\CCAGENDA\Agenda Request Memos\Agenda ltem Request - SCRWTD _ Revised for 06-07-05 Meeting. dot
S:\BVLLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOc
Ros-a€>7 ~l
RATIFICATION OF SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD
ACTION OF April 21, 2005
WHEREAS, the South Central Regional Wastewater Treatment and Disposal Board did
on April 21, 2005 by a vote of 8-0 approve AUTHORIZATION FOR THE CHAIRMAN TO
SIGN THE INTERLOCAL AGREEMENT FOR THE DELIVERY AND USE OF RECLAIMED
WATER WITH BOYNTON BEACH. EFFECTIVE AS OF OCTOBER 1, 2005.
WHEREAS, said Board action requires ratification by the City of Boynton Beach and
the City of Delray Beach.
NOW, THEREFORE, the City of Boynton hereby ratifies said Board action
independently.
The above action is hereby ratified in open session by the City of Boynton Beach this
D- day of M A'( , :A O()!) , by a vote.
CITY OF BOYNTON BEACH
By:
Mayor
Attest:
City Clerk
Approved as to form:
City Attorney
R05 -DB 7
INTERLOCAL AGREEMENT FOR THE DELIVERY AND USE
OF RECLAIMED IRRIGATION WATER
THIS AGREEMENT entered into between SOUTH CENTRAL REGIONAL
W ASTEW A TER TREATMENT AND DISPOSAL BOARD, with a mailing address of 1801
North Congress Avenue, Delray Beach, Florida 33445, hereinafter called "BOARD," and the
CITY OF BOYNTON BEACH, a Florida municipal corporation, with a mailing address of _
, Boynton Beach, Florida
, hereinafter called "BOYNTON
BEACH."
WIT N E SSE T H:
WHEREAS, BOARD maintains and operates an area-wide Wastewater Treatment
System which is capable of producing reclaimed water which may be used for productive and
beneficial purposes for agricultural and urban irrigation in accordance with local, state and
federal guidelines; and
WHEREAS, the BOARD is a Special District created by lnterlocal Agreement between
BOYNTON BEACH and the City of Delray Beach for the pUrpose of treating wastewater
produced by the customers of BOYNTON BEACH and the City ofDelray Beach, as weU as
producing reclaimed water therefrom .and distributing the same to BOYNTON BEACH and the
\., \, '"
City of Delray Beach for redistribution to their customers; and
WHEREAS, BOARD agrees to deliver reclaimed water and BOYNTON BEACH agrees
to receive and beneficially use this reclaimed water for the purposes set forth in this Agreement;
and
WHEREAS, local governments are encouraged to implement programs for the use of
reclaimed water by the State of Florida; and
WHEREAS, BOARD has determined to assist the citizens of the BOARD's regional area
who utilize large quantities of groundwater by making available reclaimed water as an alternative
source of water supply; and
WHEREAS, BOARD operates a reclaimed water program approved by the Department
of Environmental Protection.
NOW THEREFORE, based upon the foregoing, the parties agree to the following terms
and conditions:
1. TERM OF AGREEMENT, COSTS AND METERING
BOARD shall deliver and BOYNTON BEACH shall accept and use
reclaimed water to fulfill their irrigation needs, produced by BOARD at the South Central
Regional Wastewater Reclaimation Plant unless the flow is unavailable. Such water shall be
delivered to location(s), hereinafter the "delivery point," as described in Exhibit "A." BOARD
shall perform its obligations of delivery of reclaimed water and BOYNTON BEACH shall
perform its obligation of acceptance of such water as herein provided.
(a) This Agreement shall be effective until terminated by either party.
(b) The BOARD will make available to BOYNTON BEACH up to
fifty percent (50%) ofthe reclaimed water produced by the Regional Facility.
'.
(c) BOYNTON BEACH will pay to the BOARD a monthly
~
consumption charge which will be adjusted annually effective October 1 of each year based upon
the rate set by the BOARD. Notwithstanding the foregoing, in order to meet the fixed overload
of the reuse system during the initial year of operation, BOYNTON BEACH, the BOARD and
the City of Del ray Beach each will need to guarantee a minimum purchase per month.
-2-
Accordingly, BOYNTON BEACH agrees to pay a minimum of Eighteen Thousand Six Hundred
Dollars ($18,600.00) per month regardless of the consumption charge for the volume of
reclaimed water actua]]y received being lower than minimum purchase during the first year of
this Agreement, with the minimum purchase to be adjusted annually thereafter by the parties. To
the extent that the BOARD shaH incur a deficit in its reclaimed water revenues compared to the
cost of producing same, BOYNTON BEACH agrees to pay to the BOARD fifty percent (50%) of
such deficit.
(d) BOYNTON BEACH acknowledges that the BOARD has other
large users of reclaimed water, which currently have contracts with the BOARD. The BOARD
wiH supply its reclaimed water customers based on their contract priority and their beneficial use
of the water should a shortfall of supply occur.
2. USE OF RECLAlMED WATER; RESPONSIBILITY FOR IRRlGATION
SYSTEM
(a) BOYNTON BEACH shall use reclaimed water delivered by the
--
BOARD for irrigation or for other non-potable purposes in any manner detennined by
BOYNTON BEACH, except that use, application and discharge of reclaimed water shan comply
with local, state, and federal regulations.
(b) BOYNTON BEACH shaH be solely responsible for the operation
and mainfenance of all portions of the distribution and irrigation system located within the
subject property boundaries specified in Exhibit "A," attached herewith.
3. WATEROUALITY
BOARD agrees that reclaimed water delivered under this Agreement shall
-3-
meet or exceed the requirements of Chapter 62-610, Part II1, Florida Administrative Code and the
standards set forth in Exhibit "B."
4. VOLUME OF DELIVERY
The normal operating pressure range for the reclaimed water system is
between 50 psi and 70 psi. The BOARD will make every effort to deliver reclaimed water at a
minimum pressure of 60 psi at point of delivery. Should BOYNTON BEACH wish to alter the
reclaimed water operating delivery pressure, it shall be BOYNTON BEACH'S sole
responsibility to furnish and install a pressure reducing valve or booster pump on the property
side of the meter service. Reclaimed water shall be delivered by the BOARD to only one
delivery point as mutually determined by the BOARD and BOYNTON BEACH. BOYNTON
BEACH will be responsible for distribution on its property beyond said point. BOYNTON
BEACH hereby provides a license to the BOARD to enter on BOYNTON BEACH'S property
for the purposes of access to monitoring wells, if applicable for inspection, and to determine
compliance of the use of reclaimed water of the distribution system. The BOARD will, at its
expense, construct, operate, and maintain the transmission lines to the delivery point.
BOYNTON BEACH shall not request more reclaimed water than can be beneficially used by
BOYNTON BEACH.
5. DELIVERY OF RECLAIMED WATER UNDER ADVERSE
'"
CONDITIONS
Unforeseen circumstances may necessitate modification of normal
delivery of reclaimed water. If BOARD'S system or BOYNTON BEACH'S transmission or
distribution system fails for reasons or events beyond either party's control; then, delivery of
-4-
reclaimed water under this Agreement may be interrupted or limited in quantity. The BOARD
and BOYNTON BEACH shal1 make al1 reasonable efforts to make prompt repairs to its
respective system, Each party shaJI be obligated to the other to provide immediate oral notice of
such failures so that alternate systems may be put into operation as soon as possible. Nothing in
this agreement shal1 require the interconnection of the South Central Regional Wastewater
Rec1aimation Plant to provide additional flow to BOYNTON BEACH.
6. TEMPORARY SUSPENSION OF DELIVERY
The BOARD may suspend delivery of reclaimed water should the quality
of the reclaimed water exceed any of the parameters for water quality shown on Exhibit "B."
Nothing in this Agreement shaH prevent BOYNTON BEACH from keeping a permitted backup
supply to replace this reclaimed water should it become unavailable for whatever reason,
7. OPERA DON AND MAINTENANCE PRACTICES
BOYNTON BEACH will apply reclaimed water in accordance with all
appropriate local, state, and federal rules and regulations. Irrigation practices are to be limited to
those areas permissible by the Department of Environmental Protection and identified in Exhibit
"A" of the Agreement.
Reclaimed water irrigation systems shall protect human health and the
environment; which includes, but is not limited to, the following:
(a) BOYNTON BEACH shall install Reclaimed Water advisory signs
as appropriate. The signs shaH be installed and properly maintained by BOYNTON BEACH
around sites utilizing J'eclaimed water to designate the nature of the water and its non-potability.
In compliance with applicable rules and the following items:
-5-
Property access points
Along road frontage
Along adjoining residential usage
For (Spanish) speaking employees - use sign in Spanish
For golf courses - sign at first and tenth tee
(b) BOYNTON BEACH will take reasonable precautions to clearly
identify reclaimed water irrigation systems to prevent inadvertent human consumption.
( c) BOYNTON BEACH shall ensure that no cross-connections are
made between the reclaimed water system and other water systems, which includes the
installation of back flow prevention devices on the potable water system; and on existing wells
that are to remain connected for either potable water usage or for irrigation system purposes. The
installation of back flow devices shall adhere to BOYNTON BEACH'S (use), as amended.
BOYNTON BEACH shall be responsible for ensuring the installation of the required backflow
preventing devices.
(d) BOYNTON BEACH shall take reasonable precautions to inform
its employees, agents, residents, and invitees of the reclaimed water system, to prevent
inadvertent human consumption.
In addition, if applicable, BOYNTON BEACH shall inform all
existing r~sidents and new residents-regarding the proper use of reclaimed water.
(e) All costs for operating and maintaining BOYNTON BEACH'S
irrigation distribution system shall be paid by BOYNTON BEACH.
8. MONITORlNG
(a) BOYNTON BEACH shall give its approval to the BOARD to
conduct soil borings and locate monitoring wells, if applicable, on the property in areas agreeable
-6-
to BOYNTON BEACH so as not to interfere with BOYNTON BEACH'S operations. These
monitoring wells shall be installed and sampled at periodic intervals by the BOARD, at its
option.
(b) The BOARD shall be responsible for all permits to install
monitoring wells and responsible for abandonment of the well should it no longer be necessary
for monitoring.
9. EXCUSE FROM PERFORMANCE BY GOVERNMENTAL ACTS
If for any reason during the term of this Agreement, governmental
agencies shall fail to issue necessary permits, grant necessary approvals, or shall require any
change in the operation of the treatment, transmission and distribution systems or the application
and use of reclaimed water by BOYNTON BEACH, then to the extent that such requirements
shall affect the ability of any party to perform any of the terms of this Agreement, the affected
party shall be excused from performance thereof and this Agreement shall be amended by the
parties hereto in conformity with such permits, approvals, or requirements. If continued
performance of the Agreement is not possible, the Agreement shall be terminated.
lO. TERMINA TION OF AGREEMENT
Either party shall have the right to terminate this Agreement upon sixty
(60) days written notice to the other party.
11. DISCLAIMER OR REPRESENTATION AND WARRANTIES
The BOARD does not represent or warrant that the reclaimed water
delivered shall increase the productivity of the land described in Exhibit "A" nor result in
changes of any kind to the land, crops or vegetation.
-7-
12. NOTICES
All notices required or authorized under this Agreement shall be given in
writing and shall be delivered by U.S. Mail or by hand delivery to the party or parties, addressed
as follows:
City of BOYNTON BEACH
Boynton Beach, FL 33444
With a copy to:
City Attorneys' Office
Boynton Beach, FL 33444
South Central Regional Wastewater
Treatment & Disposal Board
1801 North Congress Avenue
BOYNTON BEACH, FL 33445
With a copy to:
Robert W. Federspiel, P.A.
Spinner, Dittman, Federspiel & Dowling, LLP
151 N.W. First Avenue
BOYNTON BEACH, FL 33444
13. INSPECTION
The BOARD shall have the right when reasonably necessary to allow
BOARD employees or agents to enter upon the subject property to review and inspect
BOYNTON BEACH'S operating practices, to inspect meters, irrigation equipment, monitoring
wells, potential cross connections, flowage, and the like, as they relate to this Agreement.
-8-
14. HOLD HARMLESS
To the extent permitted by law, BOYNTON BEACH shall hold the
BOARD, its agents, employees, assigns, contractors or subcontractors harmless for any damage
caused by the BOARD'S inability to deliver water to the delivery point or for damage which
occurs as a result of the quality of the reclaimed water so long as it meets the standards outlined
in paragraph 3.
15. DISCLAIMER OF THIRD PARTY BENEFICIARIES
This Agreement is solely for the benefit of the parties hereto and no right
or cause of action shall accrue to, by reason hereof, or for the benefit of any third party not a
party hereto.
16. SEVERABILITY
1f any part of this Agreement or any application thereof to any person or
circumstance is declared invalid for any reason, then such part, section, subsection, or other
portion, or the prescribed application thereof, shaH be severable and the remaining provisions of
this Agreement, and aH applications thereof not having been declared invalid, shall remain in
effect.
...., 1.
17. APPLICABLE LAW
This Agreement shall be construed according to the laws of Florida and
any action regarding this Agreement shaH be filed in the Fifteenth Judicial Circuit in and for
Palm Beach County.
18. EXHIBITS AND ADDENDUM
This Agreement incOlporates the following exhibits and addendum which
-9-
are specificaJJy made a part hereof.
Exhibit "A" - Legal Description of Property and Map of the
Property
Exhibit "B" - Reclaimed Water Quality Parameters
THIS WRITING (with Exhibits "A" and "B") constitutes the entire Agreement between the
parties and has been entered into voluntarily and with independent advice and legal counsel and
has been executed by the authorized representative of each party on the date written below.
Modifications to and waivers of the provisions herein shall be made only in writing by the parties
hereto.
SIGNED AND SEALED this 1L day of A p r i 1
, 200L.
SOUTH CENTRAL REGIONAL W ASTEW A TER
TREATMENT AND DISPOSAL BOARD
ByL c ~.r-~
Printed Name: Mui r C. Ferguson
Title: Ch a i rpe r so n
:~s~
Printed N~ : 4\>-.-\- J ~~ \
Title: ~;.. o;:"~ .....)".6.-
Approved as to legal form and sufficiency:
52-=-> f-
Robe~.Feders~ .
-10-
ATTEST:
City Clerk
Approved as to legal fonn and sufficiency:
By:
Printed Name:
Title:
'. .
.;.
CITY OF BOYNTON BEACH
By:
Jerry Taylor, Mayor
-11-
INTERLOCAL AGREEMENT FOR THE DELIVERY AND USE
OF RECLAIMED IRRIGATION WATER
THIS AGREEMENT entered into between SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD, with a mailing address of 1801
North Congress Avenue, Delray Beach, Florida 33445, hereinafter called "BOARD," and the
CITY OF BOYNTON BEACH, a Florida municipal corporation, with a mailing address of _
, Boynton Beach, Florida
, hereinafter called "BOYNTON
BEACH."
WIT N E SSE T H:
WHEREAS, BOARD maintains and operates an area-wide Wastewater Treatment
System which is capable of producing reclaimed water which may be used for productive and
beneficial purposes for agricultural and urban irrigation in accordance with local, state and
federal guidelines; and
WHEREAS, the BOARD is a Special District created by Interlocal Agreement between
BOYNTON BEACH and the City ofDelray Beach for the purpose of treating wastewater
produced by the customers of BOYNTON BEACH and the City of Delray Beach, as well as
producing reclaimed water therefrom and distributing the same to BOYNTON BEACH and the
City of Del ray Beach for redistribution to their customers; and
WHEREAS, BOARD agrees to deliver reclaimed water and BOYNTON BEACH agrees
to receive and beneficially use this reclaimed water for the purposes set forth in this Agreement;
and
WHEREAS, local governments are encouraged to implement programs for the use of
reclaimed water by the State of Florida; and
WHEREAS, BOARD has determined to assist the citizens of the BOARD's regional area
who utilize large quantities of groundwater by making available reclaimed water as an alternative
source of water supply; and
WHEREAS, BOARD operates a reclaimed water program approved by the Department
of Environmental Protection.
NOW THEREFORE, based upon the foregoing, the parties agree to the following terms
and conditions:
I. TERM OF AGREEMENT, COSTS AND METERING
BOARD shall deliver and BOYNTON BEACH shall accept and use
reclaimed water to fulfill their irrigation needs, produced by BOARD at the South Central
Regional Wastewater Reclaimation Plant unless the flow is unavailable. Such water shall be
delivered to location(s), hereinafter the "delivery point," as described in Exhibit "A." BOARD
shaH perform its obligations of delivery of reclaimed water and BOYNTON BEACH shall
perform its obligation of acceptance of such water as herein provided.
(a) This Agreement shall be effective until terminated by either party.
(b) The BOARD will make available to BOYNTON BEACH up to
fifty percent (50%) of the reclaimed water produced by the Regional Facility.
(c) BOYNTON BEACH will pay to the BOARD a monthly
consumptibn charge which will be adjusted annually effective October 1 of each year based upon
the rate set by the BOARD. Notwithstanding the foregoing, ill order to meet the fixed overload
of the reuse system during the initial year of operation, BOYNTON BEACH, the BOARD and
the City ofDelray Beach each will need to guarantee a minimum purchase per month.
-2-
Accordingly, BOYNTON BEACH agrees to pay a minimum of Eighteen Thousand Six Hundred
Dollars ($18,600.00) per month regardless of the consumption charge for the volume of
reclaimed water actually received being lower than minimum purchase during the first year of
this Agreement, with the minimum purchase to be adjusted annually thereafter by the parties. To
the extent that the BOARD shall incur a deficit in its reclaimed water revenues compared to the
cost of producing same, BOYNTON BEACH agrees to pay to the BOARD fifty percent (50%) of
such deficit.
(d) BOYNTON BEACH acknowledges that the BOARD has other
large users of reclaimed water, which currently have contracts with the BOARD. The BOARD
will supply its reclaimed water customers based on their contract priority and their beneficial use
of the water should a shortfall of supply occur.
2. USE OF RECLA.llv1ED WATER: RESPONSIBILITY FOR IRRIGATION
SYSTEM
(a) BOYNTON BEACH shall use reclaimed water delivered by the
BOARD for irrigation or for other non-potable purposes in any mafmer determined by
BOYNTON BEACH, except that use, application and discharge of reclaimed water shall comply
with local, state, and federal regulations.
(b) BOYNTON BEACH shall be solely responsible for the operation
and maintenance of all portions of the distribution and irrigation system located within the
subject property boundaries specified in Exhibit "A," attached herewith.
3. WATER QUALITY
BOARD agrees that reclaimed water delivered under this Agreement shall
-3-
meet or exceed the requirements of Chapter 62-610, Part ill, Florida Administrative Code and tbe
standards set forth in Exhibit "B."
4. VOLUME OF DELIVERY
The nonna] operating pressure range for the reclaimed water system is
between 50 psi and 70 psi. The BOARD will make every effort to deliver reclaimed water at a
minimum pressure of 60 psi at point of delivery. Should BOYNTON BEACH wish to alter the
reclaimed water operating delivery pressure, it shaH be BOYNTON BEACH'S sole
responsibility to furnish and install a pressure reducing valve or booster pump on the property
side of the meter service. Reclaimed water shall be delivered by the BOARD to only one
delivery point as mutually detennined by the BOARD and BOYNTON BEACH. BOYNTON
BEACH will be responsible for distribution on its property beyond said point. BOYNTON
BEACH hereby provides a license to the BOARD to enter on BOYNTON BEACH'S property
for the purposes of access to monitoring wells, if applicable for inspection, and to determine
compliance of the use of reclaimed water of the distribution system. The BOARD will, at its
expense, construct, operate, and maintain the transmission lines to the delivery point.
BOYNTON BEACH shall not request more reclaimed water than can be beneficially used by
BOYNTON BEACH.
5. DELIVERY OF RECLAIMED WATER UNDER ADVERSE
CONDITIONS
Unforeseen circumstances may necessitate modification of normal
delivery of reclaimed water. If BOARD'S system or BOYNTON BEACH'S transmission or
distribution system fails for reasons or events beyond either party's control; then, delivery of
-4-
reclaimed water under this Agreement may be interrupted or limited in quantity. The BOARD
and BOYNTON BEACH shall make all reasonable efforts to make prompt repairs to its
respective system. Each party shall be obligated to the other to provide immediate oral notice of
such failures so that alternate systems may be put into operation as soon as possible. Nothing in
this agreement shall require the interconnection of the South Central Regional Wastewater
Reclaimation Plant to provide additional flow to BOYNTON BEACH.
6. TEMPORARY SUSPENSION OF DELIVERY
The BOARD may suspend delivery of reclaimed water should the quality
of the reclaimed water exceed any of the parameters for water quality shown on Exhibit "B."
Nothing in this Agreement shall prevent BOYNTON BEACH from keeping a permitted backup
supply to replace this reclaimed water should it become unavailable for whatever reason.
7. OPERA TION AND MAlNTENANCE PRACTICES
BOYNTON BEACH will apply reclaimed water in accordance with all
appropriate local, state, and federal rules and regulations. Irrigation practices are to be limited to
those areas permissible by the Department of Environmental Protection and identified in Exhibit
"A" of the Agreement.
Reclaimed water irrigation systems shall protect human health and the
environment; which includes, but is not limited to, the following:
.:
(a) BOYNTON BEACH shall install Reclaimed Water advisory signs
as appropriate. The signs shall be installed and properly maintained by BOYNTON BEACH
around sites utilizing reclaimed water to designate the nature ofthe water and its non-potability.
In compliance with applicable rules and the following items:
-5-
Property access points
Along road frontage
Along adjoining residential usage
For (Spanish) speaking employees - use sign in Spanish
For golf courses - sign at first and tenth tee
(b) BOYNTON BEACH will take reasonable precautions to clearly
identifY reclaimed water inigation systems to prevent inadvertent hmnan consmnption.
(c) BOYNTON BEACH shall ensure that no cross-connections are
made between the reclaimed water system and other water systems, which includes the
installation of back flow prevention devices on the potable water system; and on existing wells
that are to remain connected for either potable water usage or for irrigation system purposes. The
installation of back flow devices shall adhere to BOYNTON BEACH'S (use), as amended.
BOYNTON BEACH shall be responsible for ensuring the installation ofthe required backflow
preventing devices.
(d) BOYNTON BEACH shall take reasonable precautions t6 infonll ~ ':
its employees, agents, residents, and invitees of the reclaimed water system, to prevent
inadvertent human consmnption.
In addition, if applicable, BOYNTON BEACH shall inform all
existing residents and new residents regarding the proper use of recl~ed water.
0,. \
(e) All costs for operating and maintaining BOYNTON BEACH'S
inigatioii distribution system shall be paid by BOYNTON BEACH.
8. MONITORING
(a) BOYNTON BEACH shall give its approval to the BOARD to
conduct soil borings and locate monitoring wells, if applicable, on the property in areas agreeable
-6-
to BOYNTON BEACH so as not to interfere with BOYNTON BEACH'S operations. These
monitoring wells shall be installed and sampled at periodic intervals by the BOARD, at its
option.
(b) The BOARD shall be responsible for all permits to install
monitoring wells and responsible for abandonment of the well should it no longer be necessary
for monitoring.
9. EXCUSE FROM PERFORMANCE BY GOVERNMENTAL ACTS
If for any reason during the term of this Agreement, governmental
agencies shall fail to issue necessary permits, grant necessary approvals, or shall require any
change in the operation of the treatment, transmission and distribution systems or the application
and use of reclaimed water by BOYNTON BEACH, then to the extent that such requirements
shall affect the ability of any party to perform any of the terms of this Agreement, the affected
party shall be excused from performance thereof and this Agreement shall be amended by the
parties hereto in conformity with such permits, approvals, or requirements. If continued
performance of the Agreement is not possible, the Agreement shaIrbe terminated.
10. TERMINATION OF AGREEMENT
Either party shall have the right to terminate this Agreement upon sixty
(60) days written notice to the other party.
11. DISCLAIMER OR REPRESENTATION AND WARRANTIES
The BOARD does not represent or warrant that the reclaimed water
delivered shall increase the productivity of the land descnoed in Exhibit "An nor result in
changes of any kind to the land, crops or vegetation.
-7-
12. NOTICES
All notices required or authorized under tms Agreement shall be given in
writing and shall be delivered by U.S. Mail or by hand delivery to the party or parties, addressed
as follows:
City of BOYNTON BEACH
Boynton Beach, FL 33444
With a copy to:
City Attorneys' Office
Boynton Beach, FL 33444
South Central Regional Wastewater
Treatment & Disposal Board
1801 North Congress Avenue
BOYNTON BEACH, FL 33445
With a copy to:
Robert W. Federspiel, P.A.
Spinner, Dittman, Federspiel & Dowling, LLP
151 N.W. First Avenue
BOYNTON BEACH, FL 33444
'. '
13. INSPECTION
The BOARD shall have the right when reasonably necessary to allow
BOARD employees or agents to enter upon the subject property to review and inspect
BOYNTON BEACH'S operating practices, to inspect meters, irrigation equipment, monitoring
wells, potential cross connections, flowage, and the like, as they relate to this Agreement.
-8-
14. HOLD HARMLESS
To the extent permitted by law, BOYNTON BEACH shall hold the
BOARD, its agents, employees, assigns, contractors or subcontractors harmless for any damage
caused by the BOARD'S inability to deliver water to the delivery point or for damage which
occurs as a result of the quality of the reclaimed water so long as it meets the standards outlined
in paragraph 3.
15. DISCLAIMER OF THIRD PARTY BENEFICIARIES
This Agreement is solely for the benefit of the parties hereto and no right
or cause of action shall accrue to, by reason hereof, or for the benefit of any third party not a
party hereto.
16. SEVERABILITY
If any part of this Agreement or any application thereof to any person or
circumstance is declared invalid for any reason, then such part, section, subsection, or other
portion, or the prescribed application thereof, shall be severable and the remaining provisions of
this Agreement, and all applications thereof not having been declared invalid, shall remain in
effect.
17. APPLICABLE LAW
This Agreement shall be construed according to the laws of Florida and
any action regarding this Agreement shall be filed in the Fifteenth Judicial Circuit in and for
Palm Beach County.
18. EXHIBITS AND ADDENDUM
This Agreement incorporates the following exhibits and addendum which
-9-
are specifically made a part hereof
Exhibit "A" - Legal Description of Property and Map of the
Property
Exhibit "B" - Reclaimed Water Quality Parameters
THlS WRITING (with Exhibits "A" and "B") constitutes the entire Agreement between the
parties and has been entered into volunt~ly and with independent advice and legal counsel and
has been executed by the authorized representative of each party on the date written below.
Modifications to and waivers of the provisions herein shall be made only in writmg by the parties
hereto.
SIGNED AND SEALED this ~ day of A p r i 1
, 200~.
SOUTH CENTRAL REGIONAL W ASTEW A TER
TREA TMENT AND DISPOSAL BOARD
BY:~ L_ ~r"---
Printed Name: Mil; r r Fprgll<:nn
Title: C h air per SOn
ATTEST:
~ted~2i:.(
J
Title: \:}C.?~.hv.. Dl.r;c.,b.,,..
.,........
Approved as to legal fonn and sufficiency:
ROb~~-;;;:;JP(
-10-
ATTEST:
City Clerk
Approved as to legal form and sufficiency:
By:
Printed Name:
Title:
CITY OF BOYNTON BEACH
By:
Jerry Taylor, Mayor
-11-
ASSIGNMENT AGREEMENT
ROb- oe7
*4
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with Delray
Dunes Golf and Country Club, concerning delivery and acceptance of reclaimed water dated the 18th
day of January, 1996, a copy of which is attached hereto and hereinafter referred to as the
"Reclaimed Water Agreement;" and
WHEREAS, the BOARD is modifying its reclaimed -water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD wiJI provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shall assume aU of the rights, duties and obligations of the BOARD under said
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective the 1st day of October, 2005.
,2. ,BOYNTON hereby agrees to accept and assume aU rights, benefits and obligations
created under the said Reclaimed Water Agreement pursuant to this assignment.
-:.~ IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
souro CENTRAL REGIONAL WASTEWATER
T NT AND DISPOSAL BOARD
APPROVED AS TO FORM
~~Lj
Bofd AttorneY ..
ATTESTED BY:
Secretary
APPROVED AS TO FOR1vl
City Attorney
CITY OF BOYNTON BEACH
By:
Mayor
ASSIGNMENT AGREEMENT
R0.5-087 *4
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
163.01, hereinafterreferred to as the "BOARD," and the CITY OF BOYNTON BEACH;
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with DeJray
Dunes Golf and Country Club, concerning delivery and acceptance of reclaimed water dated the 18th
day of January, 1996, a copy of which is attached hereto and hereinafter referred to as the
"Reclaimed Water Agreement;" and
WHEREAS, the BOARD is modifYing its reclaimed water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD will provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shaH assume an of the rights, duties and obligations of the BOARD under .SWd
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as fonows:
1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective the 1st day of October, 2005.
~ 2., BOYNTON hereby agrees to accept and assume all rights, benefits and obligations
created under the said Reclaimed Water Agreement pursuant to this assignment.
.., ~ IN WIlNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
SOUTH CENTRAL REGIONAL W ASTEW A TER
A TMENT AND DISPOSAL BOARD
~
erguson
Chairman
APPROVED AS T910RM
r2~1
Bo.atd Attorney
ATTESTED BY:
Secretary
APPROVED AS TO FOR1vl
City Attorney
'.
CITY OF BOYNTON BEACH
By:
Mayor
f\05-087
~4
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
] 63.0], hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with The
Country Club of Florida, concerning delivery and acceptance of reclaimed water dated the 18th day
of January, 1996, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed
Water Agreement;" and
WHEREAS, the BOARD is mOdifYing its reclaimed-water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD win provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shall assume an of the rights, duties and obligations of the BOARD under .s.aid
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one paT!Y to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective the 1st day of October, 2005.
,2...BOYNTON hereby agrees to accept and assume all rights, benefits and obligations
created under the said Reclaimed Water Agreement pursuant to this assignment.
-.:., IN WITNESS WHEREOF, the parties have executed this Assignment Agreementthe day
and year first above written.
SOUTH CENTRAL REGIONAL W ASTEW A TER
,;J'REATMENT AND DISPOSAL BOARD
~.
(~~.
By: w...
/ Printed Name: Mil; r r.
APPROVED AS TO FORM
Bplto~y4
ATTESTED BY:
Secretary
APPROVED AS TO FORM
City Attorney
..,.~
CITY OF BOYNTON BEACH
By:
Mayor
p..ps-{)e> 7 .
-:fl::t.t
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
]63.0], hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORJDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with The
Country Club of Florida, concerning delivery and acceptance of reclaimed water dated the 18th day
of January, 1996, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed
Water Agreement;" and
WHEREAS, the BOARD is modifying its reclaimed water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD wiJI provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign aU of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shaH assume all of the rights, duties and obligations of the BOARD under .said
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective the pI day of October, 2005.
c,2.,BOYNTON hereby agrees to accept and assume aU rights, benefits and obligations
created under the said Reclaimed Water Agreement pursuant to this assignment.
~ IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
SOUTH CENTRAL REGIONAL WASTEWATER
TREA T1yffiNT AND DISPOSAL BOARD
a;-J
)By:} t ~
/ Printed Name: Mui r c:
Chainnan
APli?tORM
B~rd Attorney
ATTESTED BY:
Secretary
APPROVED AS TO FORM
City Attorney
j.....
ClTY OF BOYNTON BEACH
By:
Mayor
ASSIGNMENT AGREEMENT
P-D5-DB7
~
~L.J
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
,2005, by and between th80UTH CENTRAL REGIONAL WASTEWATER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with Hunters
Run Golf & Racquet Club, concerning delivery and acceptance of reclaimed water dated the 17th day
of January, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed
Water Agreement;" and
WHEREAS, the BOARD is modif)ring its reclaimed water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD will provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shall assume aU of the rights, duties and obligations of the BOARD under said
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as foUows:
1. The BOARD hereby assigns aU rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective theIst day of October, 2005.
, 2., BOYNTON hereby agrees to accept and assume aU rights, benefits and obligations
created under the said Reclaimed Water Agreement pursuant to this assignment.
. IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
SOUTH CENTRAL REGIONAL W ASTEW A TER
NT AND DISPOSAL BOARD
. - E.~~~
P'N v
nnted aJlle: M 11 i r r. F p r g 11 '" n n
Chairman
APPROVED AS TO FORM
Bo2tomd
ATTESTED BY:
Secretary
APPROVED AS TO FORM
City Attorney
CITY OF BOYNTON BEACH
By:
Mayor
K05 - OB7 _ 4Fy
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
,2005, by and between thSOUTH CENTRAL REGIONAl.. \VASTEWATER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
163.01, hereinafterreferred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with Hunters
Run Golf & Racquet Club, concerning delivery and acceptance of reclaimed water dated the 17th day
of January, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed
Water Agreement;" and
WHEREAS, the BOARD is modifying its reclaimed water operations as a result of an
amendment to the InterIocal Agreement creating the BOARD, whereby the BOARD will provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shall assume all of the rights, duties and obligations of the BOARD under said
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as foIlows:
1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective theIst day of October, 2005.
,2.,BOYNTON hereby agrees to accept and assume an rights, benefits and obligations
created under the said Reclaimed Water Agreement pursuant to this assignment.
~ ~ IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
SOUTH CENTRAL REGIONAL W ASTEW A TER
MENT AND DISPOSAL BOARD
, L-
APPROVED AS TO FOWvt
~J-t/j
Boaf(~ttorney -
ATTESTED BY:
Secretary
APPROVED AS TO FORM
City Attorney
CITY OF BOYNTON BEACH
By:
Mayor
-c
AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD
AND HUNTERS RUN GOLF & RACQUET CLUB
CONCERNING DELIVERY AND ACCEPTANCE
OF RECLAIMED WATER
THIS AGREEMENT is made and entered into on this 00<:;1 \1
day of ~, by and between South Central
Regional Wastewater TreatmeA~~lnd Disposal Board, a municipal
corporation created pursuant to the laws of the State of
Florida (hereinafter BOARD), and Hunters Run Golf & Racquet
Club, (hereinafter RECIPIENT).
Accordingly, for and in consideration
contained herein, mutual understandings
contained herein, and other consideration,
sufficiency of which is hereby acknowledged
the parties covenant and agree as follows:
of the recitals
and agreements
the receipt and
by the parties,
SECTION 1. Recitals. The below recitals are true and
correct and form a material part of this Agreement.
1.1 The parties hereto represent to one another that each
has the full power and authority to enter into this Agreement
and to carry out their respective obligations thereunder. The
BOARD is composed of the Cities of Boynton Beach and Delray
Beach (the "Cities"), pursuant to an Interlocal Agreement
entered into pursuant to Chapter 163, Florida Statutes.
1.2 The parties recognize that reuse of Reclaimed Water is
in the public interest, as it recaptures an otherwise wasted
and unused water resource. The BOARD owns and operates
wastewater facilities which it proposes to upgrade to produce
Reclaimed Water suitable for irrigation o-f areas, such as
golf courses, parks, school grounds and cemeteries, and
RECIPIENT is willing to accept such Reclaimed Water for
irrigation purposes in the public interest.
1.3 In a normal-' year, RECIPIENTS will irrigate
approoximately 240 days and most of RECIPIENT'S daily
requirements will be needed during approximately 12 hours
commencing about sundown. BOARD agrees to use its best
eff~rts to supply Reclaimed Water on demand to RECIPIENT up to
the volume and at the charge set forth in this Agreement.
RECIPIENT has valuable golf courses that require access to
such Reclaimed Water and has expended substantial money and
effort and has fo~egone other avenues to meet its irrigation
requirements in reliance on this Agreement. The BOARD is not
required to upgrade its w~stewater system to produce Reclaimed
Water but is doing so in reliance upon the RECIPIENT entering
into this Agreement.
8.'-~'
RWSE/IlUHTERSlWN/DELlVER2 .J\GR
1
1.4 The RECIPIENT owns and controls land which is
described in Exhibit "A" (the "Property"), attached and made
a part hereof by reference.
1.5 RECIPIENT agrees to: (a) irrigate the Property using
Reclaimed Water; (b) maintain the storage facility, if
applicable, ponds and lakes, if applicable, pumps and
irrigation system to be located on the Property from the point
of delivery; and (c) upgrade its irrigation system when
reasonable and economical to utilize the volume of Reclaimed
Water accepted from the BOARD and as required to meet any
federal, state, or local requirements, (d) maintain compliance
with the operating restrictions for protecting human health
and the environment attached thereto as Exhibit "B".
1.6 Recipient shall accept the Reclaimed Water delivered
by the BOARD and use it for irrigation of the Property. The
BOARD shall be deemed to be in possession and control of the
Reclaimed Water until it shall have been delivered to the
RECIPIENT at the Point of Delivery. After such delivery, the
RECIPIENT shall be deemed to be in possession and control
thereof.
1.7 The RECIPIENT agrees to maintain all Federal, State
and governmental permits issued to it and necessary to allow
it to receive and utilize the Reclaimed Water pursuant to the
terms of this Agreement.
1.8 The right of the RECIPIENT to sell, transfer or
encumber the Property in areas irrigated with the Reclaimed
Water shall not be restricted by this Agreement. This
Agreement shall run with the land so long as the use of a
major portion of the Property shall continue to be for golf
course and related purposes. Any subsequent party in interest
to such golf course or courses shall be obligated to receive
and pay for Reclaimed Water under the same terms and
conditions of this Agreement, unless modified by mutual
consent of the BOARD and the buyer or transferee.
1.9 METER. The design and construction of the metering
facil~ty shall be the responsibility of the BOARD and must be
mutually approved in advance in writing by BOARD and
RECIPIENT. The meter will be utilized to measure the amount of
R~claimed Water delivered by the BOARD to RECIPIENT and the
BOARD shall operate, maintain, cause to be calibrated, and
repair said meter.
1.10 CONSTRUCTION. Upon completion of the engineering
design of the metering faCility, and the acceptance of same by
both parties, the metering facility will be constructed by the
BOARD and placed into service.
0-6-96
REUSE/RUNTERSRUH/DELlVERZ_AGR
2
1.11 COSTS AND OPERATION. The BOARD shall bear the cost of
constructing, owning. and maintaining the Reclaimed Water meter
and related appurtenances and the lines interconnecting
BOARD's system into the metering facility, including all
valves and appurtenances up to and including the discharge
flanges of the valves immediately downstream of the meter. The
parties agree that the RECIPIENT shall have reasonable
access to the metering facility, to all other Reclaimed Water
meters, check valves, and any other appurtenances thereto, to
verify flows, meter readings, meter calibrations, efficiency
of the check valves, and any other performance data necessary
to the operations of the Interconnection facility upon
reasonable advance notice to the Bo~rd. The metering device
shall be tested and calibrated, at BOARD's expense, at least
once. per year and repaired if required. Any errors in meter
reading and any discrepancy in meter results from a true and
correct measure of Reclaimed Water flow to RECIPIENT shall be
adjusted properly and retroactively to reflect the flow to
RECIPIENT. Any incorrect metering device shall be repaired
forthwith by the BOARD.
1.12 This agreement has been duly authorized by all named
parties. Pursuant to Section 3 (C) of the Interlocal
Agreement dated December 26, 1974, between the City of Boynton
Beach and th~ City of Delray Beach, this Agreement and all
provisions thereof have been contractually approved by a
majority vote of each City Council as the act of each City,
or, if such approval has not already been obtained, such
approval will be obtained and certified to RECIPIENT befor:~.
this Agreement shall become effective.
SECTION 2. Definitions. The parties agree that in constru~ng
this Agreement, the following words, phrases and terms shall
have the following meanings, unless the. context requires
otherwise:
2 . I "Agreement" means this Agreement between BOARD and
RECIPIENT.
2.2 "FDEP" means the Florida Department of Envirorunental
Proteption, and its s~ccessors.
2.3 "Fiscal Year" means October 1 to September 30 of the
folLo,wing year.
2.4 "GPO" means gallons per day.
2.5 "Irrigation system" means those pump stations, lines,
pipes, sprinkler heads, ponds and lakes, storage facilities,
if applicable, and pertinent equipment that are located on
RECIPIENT's property and used to store, spray and irrigate
with Reclaimed Water' that has been treated in accordance with
11-6-96
REVSE/HUNTERSRUH/DELIVER2.AGR
3
all applicable governmental regulations and in accordance with
the terms and provisions of this Agreement.
2.6 "MGD" means million gallons per day.
2.7 "Point of delivery" means the point at
which divides the BOARD's wastewater facilities
RECIPIENT's irrigation system, or as otherwise
engineering drawings approved by both parties.
the meter
from the
noted on
2.8 "Reclaimed Water" means wastewater that has been
treated in accordance with Section 3.4 of this Agreement.
2.9 "Reclaimed Water Disposal Facilities" means those
facilities necessary for the storage, if applicable,
transportation and disposal of wastewater previously treated
in accordance with applicable local, state and federal
standards and limitation at the plant to the standard of
Reclaimed Water. These facilities include, but are not limited
to, any Reclaimed Water transmission facilities, irrigation
systems and storage facilities, if applicable.
2.10 "Reclaimed Water Transmission Facilities" means the
BOARD's facilitLes used to transmit Reclaimed Water.
2.11 "Storage Facilities" means those facilities which may
be designed, permitted and constructed on the Property, if
apPlicable, or upon the BOARD's property, if applicable, and
which are necessary to store and hold Reclaimed Water in .,a
manner that complies with regulatory requirements.
2.12 "Wastewater" means the product received by the
wastewater treatment facility for treatment.
2.13 "Wastewater Facilities" means the BOARD's plant
located at 1801 North Congress Avenue, Delray Beach, Florida,
and Reclaimed Water transmission facilities, including all
interceptors, lines, pipes, meters, couplings, pumps, force
mains, and appurtenant equipment necessary to treat and
transmit the Reclaimed-Water.
SECTION 3. Grant of Licenso and Easement. R~CIPIENT hereby
gran-ts to BOARD an easement over the Property, including alS
foot:utility easement to be mutually agreed upon and located
in the approximate location depicted on Exhibit "C" attached
hereto, to allow construction, operation, maintenance and
repair of the BOARD's Reclaimed Water transmission main to
the point of delivery, and the right to transmit, deliver and
dispose of Reclaimed Water through the irrigation system and
storage facility, if applicable, on the Property in accordance
with and subject to the following conditions:
8-1>-96
REUSE/HUnTERSRUH/DELJVER2.AGR
4
3.1 Desiqn and installation of Certain Facilities. BOARD
agrees to design, permit, install and operate improvements and
additions at its existing wastewater treatment plant, and the
BOARD's Reclaimed Water transmission facilities, and to Permit
effluent disposal facilities in order to provide Reclaimed
Water at the point of delivery. RECIPIENT agrees to design,
permit, install and operate, at its sole expense, any storage
facility, if applicable, and the irrigation system on the
Property up to the point of delivery.
3.2 Permits and Approval for the Irriqation System.
Recipient shall be responsible, in cooperation with Board, for
obtaining and maintaining necessary governmental permits and
approvals in order to install and operate the irrigation
system: provided, however, that Board shall be responsible
for obtaining and maintaining all permits for Reclaimed Water
disposal facilities. For all wastewater facilities located
on its side of the point of delivery, Board shall be solely
responsible for obtaining, compiling, providing and complying
with all monitoring, sampling, testing, and reporting
requirements for the Reclaimed Water, which may be imposed by
government law, rule, permit, or approval. Recipient shall
grant Board upon reasonable advance notice to RECIPIENT access
to the irrigation system as needed to . assure continued
compliance with applicable laws and regulations, including,
but not limited to, any monitoring or testing requirements.
3.3 A. Delivery of Reclaimed Water. BOARD agrees to use
. its best efforts to make available. and deliver in the volume
and at the times requested, an annual volume of ReclaimeEl<
Water of at least 182.5 million gallons per year (MGY), with
maximum volume anyone day up to but not to exceed 500,000
gallons per day (GPD), at a rate of 1,042 gallons per minute
(GPM), for use on the Property and, at its cost, to connect
the BOARD's Reclaimed Water transmiSSIon facilities to
RECIPIENT's irrigation system at the point (s) of delivery
agreed upon and as shown in Exhibit "cn. Both RECIPIENT and
BOARD recognize that water supply and demand will vary
depending on a number of factors, primarily climatic
conditions.
B. Storaqe. The RECIPIENT shall maintain, in
compliance with all applicable laws and regulations, the
nec~~sary storage facilities on their property at their sole
expense.
3.4 Quality of Reclaimed Water. BOARD shall make
available to RECIPIENT Reclaimed Water of a quality consistent
with the requirements of "public access" treatment levels as
set forth in Chapter 17-610, Florida Administrative Code, or
its successor Code proviSions, or of a quality consistent with
more stringent requirements that may be imposed by any
governmental agency having jurisdiction and legal authority.
8-6-96
REUSE/HUHTERSRUN/DELIVERZ.AGR
5
In recognition of the need to supply Reclaimed Water, the
BOARD shall also be required to comply with effluent
limitations set forth in Exhibit "0". All Reclaimed Water
made available by BOARD under this Agreement shall, at a
minimum, have been treated by advanced treatment methods to
remove harmful levels of bacteria, viruses, and other
constituents or pollutants which could constitute a danger to
human health, and in accordance with all applicable f~deral,
state and local laws, rules T regulations, policies,
ordinances, resolutions, orders and permits and the
requirements of Exhibit "0". BOARD shall provide continuous
monitoring of chlorine and turbidity, as well as other
required ground and surface water quality sampling and
monitoring of Reclaimed Water as required by local, state and
federal regulations and by Exhibit" D" . BOARD agrees to
divert away as expeditiously as possible, from the irrigation
system, any Reclaimed Water which does not comply with the
terms and conditions of this Agreement or which does not meet
the applicable state, federal or local laws and regulations
and to promptly and fully notify RECIPIENT of such action.
Copies of all test results shall be available to RECIPIENT
upon request.
3.5 Minimum Purchase of Reclaimed Water by RECIPIENT.
Upon completion of construction of the wastewater facilities
and continuing for so long as BOARD complies with the
requirements set forth in this Agreement, RECIPIENT has an
obligation to pay for at least 182.5 million gallons annually
of Reclaimed Water for spray irrigation on the Property,
subject to conditions as set forth in Section 3.3 of this
Agreement. Notwi thstanding anything to the contrary.,
Recipient shall not be obligated to accept delivery of or pay
. for Reclaimed Water which does not comply with the terms
and conditions of this agreement. Such exception to
RECIPIENT'S obligation to accept delivery of such Reclaimed
Water by reason of the Board's failure :to meet the water
quality standards required in this Agreement shall relieve
RECIPIENT of its obligation to pay BOARD for the minimum
annual volume set forth above at the rates determined pursuant
to Paragraph 5 below only to the extent that the BOARD shall
not have made available to RECIPIENT such annual minimum
voluIqe..of Reclaimed Water meeting the requirements of this
Agreement through the completion of the then current fiscal
year. Recipient shall not transfer the water provided by
Boa~d to any third party or off of the Recipient's property
whicn is the subject of this agreement.
3.6 RECIPIENT shall be responsible for all maintenance of
water and its irrigation system on RECIPIENTS side of the
point(s) of delivery.
3.7 Nothing in this Agreement shall be construed to give
RECIPIENT any right to the exclusive receipt of BOARD's
Reclaimed Water supply.
8-G-Hi
1lEIISE/ HUlITEIlS IU.lNI DELI VER2 . JlGR
6
3.8 The BOARD agrees that it will not enter into
contracts with other recipients of Reclaimed Water for more
than its daily supply capacity as the same exists from time to
time.
SECTION 4. Term and Fees
4.1 Term. The Easement and this Agreement shall be in
effect for~period of twenty .(20) years commencing on the
date of execution of this Agreement. The term of the Easement
and this Agreement shall be automatically extended for
successive periods of ten (10) years each, upon the same terms
and conditions as herein provided, unless either party hereto
notifies the other by certified mail at least three years
prior' to the expiration of the initial term of this Agreement
or any renewal thereof, that this Agreement shall not be so
extended..
4.2 Payment of Fees. In return for. and in consideration
of BOARD's construction of facilities and delivery of
Reclaimed Water, RECIPIENT agrees to pay BOARD a one-time
connection fee of $4,300.00 and a volume charge of 20e for
each 1,000 gallons of Reclaimed Water used, (the "Volume
Charge") but on an annual basis not less than the above rate
times the minimum quantity RECIPIENT has agreed to purchase
under Section 3.5 together with a storage charge equal to Be,
(the "Storage Charge") for each 1,000 gallons of Reclaimed
Water the Volume Charge for which is paid for by RECIPIENT, as,
provided above. Such storage charge shall remain constant ancC
shall not be adjusted, during the term of this Agreement or
any extension. Payment of the connection fee shall be in one
lump sum no later than the commemcement of construction of the.
modification to the BOARD's' wastewater. facilities for the
treatment and production of Reclaimed Water. The Volume
Charge shall remain constant until the expiration of the
third (3rd) fiscal year from the Commencement of pumping
(provided that if less than six (6) months expires between the
time BOARD commences or makes available delivery of Reclaimed
Water and the end of the first fiscal year, such first year
shall.nQt count as the first fiscal year), after which the
price will be redetermined as provided in Section 5. The
BOARD shall render billings to RECIPIENT for both the.volume
charge and storage charge on a monthly basis for such
applicable charges on the basis of the greater of the actual
Reclaimed Water delivered or the volume charge and storage
charge for 1/12th of the minimum guaranteed annual volume
agreed to be accepted by RECIPIENT pursuant to Section 3.5
above; provided that RECIPIENT shall pay no more, on a fiscal
year basis, than (i) such minimum annual guaranteed volume
charge or (ii)charges for Reclaimed Water actually accepted
during the fiscal year, whichever is more.
8-6-96
REUSE/HtnITERSRUN/DELlVER2.AGR
7
4.3 In the event the BOARD shall not be able to deliver
Reclaimed Water in the minimum volume agreed to in Section 3.5
of this Agreement, as a result of its inability to do so and
through no action or inaction on the part of the RECIPIENT,
the RECIPIENT shall be entitled to a credit for such shortage
in the minimum agreed to volume (by a proportionate
reduction) .
SECTION 5. Future Adjustment of Price of Reclaimed Water.
The Volume Charge shall be adjusted after the first three (3)
fiscal years as aforesaid upward or downward based on the
year-to-year change in the actual operating costs of
producing, metering and delivering Reclaimed Water from
effluent and transmitting it to the point of delivery for the
RECIPIENT as it relates to the preceding year's Volume Charge,
however, such Volume Charge shall never be less than 20c per
thousand gallons nor shall an increase be applied if the
actual operating costs shall be less than said 20c per
thousand gallons. The first such adjustment shall occur
effective the first day of the fourth fiscal year following
the initial delivery of Reclaimed Water to RECIPIENT and
shall reflect the relative increase or decrease in actual
operating costs incurred by the BOARD during the second
fiscal year of delivery of Reclaimed Water to RECIPIENT as
compared to the third fiscal year and for each subsequent
year thereafter as compared to the previous year. The actual
operating cost and change therein shall be the basis for
determining the index for making the adjustments in the Volume
Charge. Actual operating costs ("Actual Operating Costs")
shall be determined in conformity with generally accepted
accounting principles consistently applied, except the
depreciation of plant and equipment and any other provision
for capital recovery, including interest on long term debt,
shall not be included as operating costs, as such costs are
properly allocable to wastewater customers. Any increase or
decrease in the Volume Charge shall be determined as soon as
reasonably practicable and shall be effective retroactive to
the scheduled date of adjustment and a sum due to the BOARD
as a result of the retroactive effect of such adjustment or
the cre9it due the RECIPIENT, if applicable, shall be
reflected in the next billings regularly submitted by BOARD to
RECIPIENT as provided in Subparagraph 5.4.
......
'1'
5.1 BOARD personnel shall establish, or cause to be
established, and maintain an accounting system in which such
current operating costs are recorded monthly in separate
accounts from sewage processing accounts. Costs shall be
recognized on a first-in first-out basis. The BOARD personnel
shall prepare and preserve any studies relating to the
allocation of operating costs on other than an actually
incurred basis. By way of example, the parties agree that all
operating and maintenance costs of labor, chemicals-and power,
permits, regulatory requirements, legal, engineering,
administration, testing, meter calibration and contract
8-6-96
REUSE/HUNTEPSRUN/DELlVER2_AGR
8
services may be allocated based on appropriate data or
studies. Such current operating costs shall be recorded on a
consistent ba~is from month to month and year to year, and the
total for each fiscal year shall be used to calculate a cost
per thousand gallons of Reclaimed Water delivered beginning
with the second fiscal year after the plant starts to deliver
Reclaimed Water to RECIPIENT.
5.2 By way of example, if delivery begins on October 6,
1996, the third fiscal year thereafter would be October 1,
1998 to September 30, 1999. Assume that the actual cost of
producing Reclaimed Water for the fiscal year October 1, 1997
through September 30, 1998 was 21e. Further, assume that the
Actual Operating Cost of producing and delivering Reclaimed
Water. to RECIPIENT during the second fiscal year to the end of
the third fiscal year (October I, 1997, through September 30,
1999) increased from 21e per thousand gallons to 23e per
thousand gallons. The index for increase would be calculated
by dividing the base cost of 21e per thousand gallons into the
2c increase in cost, resulting in an increase of 9.52% to the
previous years' Volume Charge of 20c per thousand gallons for
the fourth fiscal year, equal to 21.90c per thousand gallons
(2 + 21e = .0952, then 20e x 1.0952 = 21.90C).
5.3 As soon as reasonably practical, after each fiscal
year for which the cont:J:"act price is subject to adjustment ,
the BOARD shall prepare a statement showing in reasonable .
detail the actual operating costs to produce Reclaimed Water
from efflu~nt for the latest two fiscal years. For each such~
year, the statement shall also show (1) the number of gallons
in thousands of Reclaimed Water delivered to Reclaimed Water
users, (2) the cost per thousand gallons of Reclaimed Water
calculated by dividing such operating costs by such gallons,
( 3 ) the calculation of the ratio of change in cost per
thousand gallons from the earlier year to the later year, and
(4) the calculation of the adjusted price for the later year.
This statement shall be deemed to be the responsibility of the
BOARD, and the BOARD's Executive Director shall attest in
writing to the propriety of the costs and calculations shown
thereon. .
'.
5.4 By January 15 of each year, the BOARD'S Executive
Dire~tor shall submit to ~CIPIENT the supplemental statement
set ~torth in the preceding paragraph, together with the
attestation thereto by the BOARD. At the same time, the
BOARDS Executive Director shall submit to RECIPIENT a bill or
credit showing (l)the amount paid by the RECIPIENT for
. Reclaimed Water delivered in the current fiscal year, (2)the
amount payable for Reclaimed Water delivered in the current
fiscal year based on the adjusted price for the year as set
forth above, and (3)the difference. Any such difference shall
be either paid promptly by the RECIPIENT, or shown as a credit
in the next billing to the RECIPIENT.
8-6-96
REUSE/HlnfTERSRUN/OELIVERZ:AGR
9
5.5 For billing purposes only prior to the determination
of actual costs for adjusting the Volume Charge, during each
year subject to price adjustment, the BOARD may use a
tentative price per thousand gallons based on using budgeted
costs for the current year in the price adjustment calculation
set forth above.
5.6 . RECIPIENT, at its own expense, has the option of
examining the financial statements, general books and related
records, and production records of the BOARD.
5.7 Notwithstanding the above provisions, the price paid
by the RECIPIENT for Reclaimed Water shall be adjusted
downward in the event the BOARD offers Reclaimed Water to any
other non-governmental customer(s) upon substantially similar
terms and conditions for the same use of the Reclaimed Water
at a lower charge than RECIPIENT is or will be paying under
this Section 5. Such downward adjustment shall be made to
guarantee RECIPIENT that no other user of Reclaimed Water for
similar purposes shall receive a more favorable charge than
will also be given to RECIPIENT under similar circumstances.
5.8 To the extent that the BOARD receives governmental
or environmental noncapital improvement subsidies which are
provided to the BOARD for encouraging wastewater reuse and
which are intended to be applied pursuant to the terms of such
grant or subsidy to the operational costs of the Reclaimed
Water facility, as opposed to capital improvements or
expansion of such Reclaimed Water facility, the BOARD will
apply such funds, to the extent allowed, to its Reclaim~d
Water facility operating costs.
SECTION 6. Inspection. BOARD shall have the right to enter
RECIPIENT's property, upon proper identification and at any
reasonable time, in order to inspect the irrigation system as
may be necessary or desirable for the operation, safety,
protection, or preservation thereof, to determine compliance
with any law, order or regulation of any governmental
authority having jurisdiction, and for sampling at any
monitor.:ing wells located on the property. RECIPIENT shall have
the right to enter the BOARD's plant and properties and the
right of access to its wastewater facilities and records, at
anYfreasonable time, for the purpose of determining whether
the BOARD is in compliance with this Agreement.
SECTION 7. Assignments. This Agreement can be assigned by
RECIPIENT only with the prior written approval of BOARD, but
such approval shall not be unreasonably withheld, provided the
assignee shall assume this Agreement and shall demonstrate to
BOARD its financial ability to comply with the provisions
hereo f .
SECTION B. Notices; Proper Form. Any notice required or
allowed to be delivered hereunder shall be in writing and
8-6-96
REUSE/HmlTERSRUN/DELIVER2.AGR
10
shall be deemed to be delivered when (1) hand delivered to the
official hereinafter; designated, (2) upon receipt of such
notice when deposi tea in the United States mail, postage
prepaid, certified mail, return receipt r~quested, add~essed
to a party at the address set forth Opposlte the party name
below or at such other address as the party shall have
specified by written ~otice to the other party delivered in
accordance herewith:
BOARD
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
Executive Director
1801 North Congress Avenue
Delray Beach, FL 33445
RECIPIENT:
HUNTERS RUN GOLF & RACQUET CLUB
C/O Club Manager
3500 Clubhouse Lane
Boynton Beach, FL 33436
COpy TO:
Boynton Beach City Manager
P.O. Box 310
Boynton Beach, FL 33425-0310
COpy TO:
Del~ay Beach City Manager
100 N.W. 1st Avenue
Delray Beach, FL 33444
COpy TO:
Robert W. Federspiel, Esq.
501 East Atlantic Avenue
Delray Beach, FL 33483
r
I
SECTION 9. Notices; Default. Each of the parties hereto shall
give the other party ~itten notice of any defaults hereunder
and shall allow the de~aulting party 30 days from the date of
receipt to cure such defaults, except failure to deliver water
on demand. ;
, r
. ~ I
+ ' I
SECTION 10. Default by Either Party. If any party hereto fails
to perform or comply: wi th any of the conditions of this
Agreement, and if the! nonperformance shall continue for a
period of thirty (30) d~ys after the written notice thereof to
the non~performing paJtty, or if the performance cannot be
reasonably completed within the 30-day period, or if the non-
performing party does i;lOt in good faith commence performance
within the 30-day period and does not diligently proceed to
complete performance, Ithe non-performing party shall be in
default or breach of t~is Agreement.
8-6-96
REUSE/HUNTERSRrnIIDELlVER2.AGR
11
SECTION 11. Indemnification. In the event RECIPIENT shall fail
to comply with any reuse water rule or regulation of any
Federal, State or County or local agencies, except BOARD, or
violate any permit granted with regard to the use of the
irrigation system on the RECIPIENT's property, then RECIPIENT
shall indemnify the BOARD, its officers, governing board,
employees and agents~against all claims, demands, causes of
actions, suits, judgments, fines, penalties, or losses,
including all costs suffered or incurred by the BOARD by
reason of such failure. In the event the BOARD shall fail to
comply with any rule, regulation, order of any Federal, State
or County or local agency, or fail to deliver water meeting
the quality standards provided by this Agreement, then the
BOARD shall, to the extent allowed by law, indemnify the
RECIPIENT, its officers, board of directors, employees and
agents against all claims, demands, causes of actions, suits,
judgments, penalties, fines, or losses suffered or incurred by
the RECIPIENT as reason of such failure.
SECTION 12. Remedies of Default. If either party hereto shall
be in default hereunder as set forth in Section 10, then the
other party shall have the following remedy: bring suit for
the breach which has occurred without affecting the
obligations of the party to perform the balance of the
Agreement. The parties shall have the right not only to
injunctive relief, but also to recover any damages which a
party may incur as a result of the breach of this Agreement by
the other party. The parties further agree that any litigation
shall be brought in Palm Beach County, Florida, only, and the
parties agree that the proper venue for any such action would
only be in Palm Beach County, Florida. The parties further
waive any right to Jury trial they may have in any action
among them involving this Agreement or the alleged breach
thereof.
SECTION 13. Disclaimers of Third Party Beneficiaries. This
Agreement is sole~y for the benefit of the formal parties
hereto and no right or cause of action shall accrue upon or by
reason hereof or to ox from or for the benefit of any third
par~y~ot a formal party hereto.
SECTION 14. Severability. If any part of this Agreement is
fo~nd invalid or unenforceable by any court, such invalidity
or'unenforceability shall not affect the other parts of this
Agreement.
SECTION 15. Applicable Law. This Agreement and ~he provisions
contained herein shall be construed, controlled and
interpreted according to the laws of the State of Florida.
SECTION 16. Entire Agreement. This agreement contains the
entire Agreemen~ between the parties hereto with respect to
this transaction and supersedes all prior negotiations and all
prior written or oral understandings.
8-6-96
kEUSE/HUHTERSRUN/DELlVERZ.AGR
12
SECTION 17. Amendments. This Agreement may only be amended,
supplemented or discharged by an instrument in writing signed
by all parties hereto.
SECTION 18. Recordation. This Agreement or a mutually
agreeable memorandum thereof will be recorded in the public
records of Palm Beach County, Florida.
SECTION 19. Extent of Agreement. Each party shall advise the
other party, in writing, as to the status of its construction
document preparation and construction of associated
improvements on a monthly basis to ensure that both parties'
activities are progressing with reasonable diligence.
SECTION 20. Completion Date. The Board agrees to use its best
efforts have its Reclaimed Water facilities completed and
available for use for RECIPIENT and RECIPIENT agrees to use
its best efforts have its Irrigation System complete and to
accept delivery of Reclaimed Water from the BOARD on or before
November 1, 1997, subject to matters' beyond the reasonable
control of either party. Notwithstand~ng any provision of
this Agreement to the contrary, the RECIPIENT shall have the
absolute obligation to commence payments for the reclaimed
water upon the completion of construction as provided for in
Section 3.5 above.
SOUTH CENTRAL REGIONAL WASTEWATER
TREAT~NT AND DISPOSAL BOARD
By:
~ .f- /7.
/ i ;J./II L-.<
Chairman
-4' ~
,y' !/ i-. , . _ ,,/
L<~../~{-.;.i>~
/
APPROVED AS
A"
/
.;'~
ORM:
HUNil\S RUN GOLF & RACQU~ CLUB
B~~_ ~~4(
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""', /
-~
8-6-96
REuSE/HUNTERSRUN/DELlVER2.AGR
13
APPROVED BY:
~
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/
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Cit~~6f D..e~ray Beach, Mayor
APPROVED BY: //
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j, . . -,~. "'. i ,. ...jF
'.'..,/' ;,-~ '( c.<--7 /'. _ /'
j/ :..----r, I ./ '" /I ~
CiFi of B~inton~eaCh, Mayor
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8..6-96
REUSKlIMfT&RSRIJIf/ DELYVBRZ .AGR
14
EXHIBIT "A"
HUNTERS RUN GOLF & RACQUET CLUB located in Section
5, Township 46 South, Range 43 East, as recorded in
Plat Book 36 of the Public Records of Palm Beach
County, Florida.
"
. ~ ..;.
~ '
8-6-96
IlEUSEltnlNTERSRUN/DELIVEItZ _AGR
15
EXllIDITn
OPERA TINe RESTRl CTS
Reei pi ent shaH m.; ntain com pliancc wi th the f 0 Howing operating r cstri cti ODS for p rotecti n g
human health, welfare and safety, and the environment
y;\.
L The pub I ie shal I be noW, ed of the IlSe of reclaimed water by pomn g advisory si gus, notes
on score cards or other methods in accordance with Chapter 17-6J 0.468 F AC
1. Direct connections between the red.;med waler system and irrigation Water system shaJl
not be a/Jowe.d without the use of appropriate backfJow prevention devices.
3. No cross-connection to potable \\,Her systems shall be aI/owed.
4. All recl.;med water valves and outlelS shall be appropriately color coded and labeled in
accordance with Chapter i7-6J0.470 FAC to warn public and employees that the Water
is not intehdecl for' drinking. .
5.. Setback distances to potable water supply weHs and the use oflow trajectory nozzles shaJJ
be in accordance with Chapter 17-6J0.471 F AC
6. The USe ofrecJ.;med water shaJI be consistent with all applicable federal, state, amI 10caJ
Jaws and regulations.
.~
^.'\)S7~JT.B
Exhibit B
January 1995
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EXJHI31T D
EncJosu rc 'J
Board shall monitor the redaimcd water for the following parameters and llgrcx:s to divcrt redaimcd
water which exceeds the specified limits.
Parameter Sampling Frequency LimitCl}
Turbidity Continuous lNllJ
Chlorine Residual COni inuous (minimum)
Ch"'oride Continuous 350
CBODG'1 Daily 20
TSSOl Dailv 5
pH Hourly 6 to 7.5 unil5r~1
7.8 UOil5I61
Aluminum Annual 1.0
Arsenic Annual 0.] 0
Ber~y"ium Annual 0.]0
Boron Annual 0.50
Cadmium Annual O.OJ
Chromium Annual 0.1
Coball Annual 0.05
Copper Annual 0_2
Fluoride Annual LO
Iron Annual 3_0
Lead Annual 5.0
Lithium Annual :2.5
Manganese Annual 0.2
MoJybdenium Annual 0.005
Nickel Annual 0.02
Selenium Annual 0.02
Vanadium Annual OJo
Zinc Annual 2,0
BicarbQhatc (as CaCO-) Annual 120
,,. ~.
Calcium Annual (4)
MaQTItsium Annual (4)
~c.
Sodium Annual (4)
Sodium Adsorption Ratio Annual 6 units
(J)
0)
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(.(j
(5)
(6)
Maximum concentration c:xp~ssed inmg/L unless noted.
Carbonaceous Biochemical O>.:-ygcn Demand (eBOD).
Total Suspended Solids (TSS).
}nfonnation used in calculation of Sodium Adsorption Ratio (SAR).
Dailv a\"eTal!e
2-Hour dunition
"":'.7~74\D:HlBl1.D
Exhibit D
January J 995
1'. r~ , or ,
ASSIGNMENT AGREEMENT
go5-o87
*~
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
_,2005, by and between thSOUTH CENTRAL REGIONAL W ASTEW A TER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with Pine Tree
Golf Club, concerning delivery and acceptance of reclaimed water dated the 17 th day of January,
1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water
Agreement;" and
WHEREAS, the BOARD is modifying its reclaimed water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD,'whereby the BOARD will provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shall assume all of the rights, duties and obligations of the BOARD under said
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
I . The BOARD hereby assigns all rights, benefits and obligations Under the RecIaimed
Water Agreement to BOYNTON, effective the 1st day of October, 2005.
2. BOYNTON hereby agrees to accept and assume all rights, benefits and obligations
created undeTthe said Reclaimed Water Agreement pursuant to this assignment.
.:.~ IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
SOUTH CENTRAL REGIONAL WASTEWATER
TRE TMENT AND DISP AL BOARD
,
E-<
Muir C.
APPROVED AS TO FORM
BO)~-1
A TTESTED BY:
Secretary
APPROVED AS TO FORM
City Attorney
;..
CITY OF BOYNTON BEACH
By:
Mayor
AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD
AND PINE TREE GOLF CLUB CONCERNING DELIVERY
AND ACCEPTANCE OF RECLAIMED WATER
THIS AGREEMENT is made and entered into On this \ I day
of eX..>\").' ~, by and between South Central
Regional Wastewater Treat]nJ~~ and Disposal Board, a municipal
corporation created pursuant to the laws of the State of
Florida (hereinaf~er BOARD), and Pine Tree Golf Club
(hereinafter RECIPIENT).
Accordingly, for and in consideration
contained herein, mutual understandings
Contained herein, and other consideration,
sufficiency of which is hereby acknowledged
the parties covenant and agree as follows:
of the recitals
and agreements
the receipt and
by the parties,
SECTION 1. Recitals. The below recitals are true and
correct and form a material part of this Agreement.
1.1 The parties hereto represent to one another that each
has the full POwer and authority to enter into this Agreement
and to carry out their respective obligations thereunder. The
BOARD is composed of the Cities of Boynton Beach and Delray
Beach (the "Cities" ), pursuant to an Interlocal Agreement
entered into pursuant to Chapter 163, Florida Statutes.
1.2 The parties recognize that reuse of Reclaimed Water isc
in the public interest; as it recaptures an otherwise wasted
and unused water resource. The BOARD owns and operat.es
wastewater facilities which it proposes to upgrade to produce
Reclaimed Water SUitable for irrigation of areas, such as
golf courses, parks, school grounds and. cemeteries, and
RECIPIENT is willing to accept such Reclaimed Water for
irrigation purposes in the public interest.
1. 3 In a normal year, RECIPIENTS will irrigate
approximately 240 days and most of RECIPIENT'S daily
requirements will be needed during approximately 12 hours
commencing about sundown. BOARD agrees to use its best
efforts ,to SUpply Reclaimed Water on demand to RECIPIENT up to
the 'Volume and at the charge set forth in this Agreement.
RECIPIENT has valuable golf courses that require access to
such;iReclaimed Water and has expended Substantial money and
effort and has foregone other avenues to meet its irrigation
requirements in reliance on this Agreement. The BOARD is not
required to Upgrade its wastewater system to produce Reclaimed
Water but is doing so in reliance upon the RECIPIENT entering
into this Agreement.
7-23-96
REUSE\DELlVER2.AGR
1
1.4 The RECIPIEtlT owns and controls land which is
described in Exhibit "A" (the "Property"), attached and made
a part 'hereof by reference.
1.5 RECIPIENT agrees to: (a) irrigate the Property using
Reclaimed Waterj (b) maintain the storage facility, if
applicable, ponds and lakes, if applicable, pumps and
irrigation system to be located on the Property from the point
of deliveryj and (c) upgrade its irrigation system when
reasonable and economical to utilize the volume of Reclaimed
Water accepted from the BOARD and as required to meet any
federal, state, or local requirements, (d) maintain compliance
with the operating restrictions for protecting human health
and the environment attached thereto as Exhibit "B".
1.6 Recipient shall accept the Reclaimed Water delivered
by the BOARD and use it for irrigation of the Property. The
BOARD shall be deemed to be in possession and control of the
Reclaimed Water until it shall have been delivered to the
RECIPIENT at the Point of Delivery. After such delivery, the
RECIPIENT shall be deemed to be in possession and control
thereof.
1.7 The RECIPIENT agrees to maintain all Federal, State
and governmental permits issued to it and necessary to allow
it to receive and utilize the Reclaimed Water pursuant to the
terms of this Agreement.
1.8 The right of the RECIPIENT to sell, transfer or
encumber the Property in areas irrigated with the Reclaimed
Water shall not be restricted by this Agreement. This
Agreement shall run with the land so long as the use of a
major portion of the Property shall continue to be for golf
course and related purposes. Any subsequent party in interest
to such golf course or courses shall be obligated to receive
and pay for Reclaimed Water under the same terms and
conditions of this Agreement, unless modified by mutual
consent of the BOARD and the buyer or transferee.
1.9 METER. The design and construction of the metering
facLlity shall be the responsibility of the BOARD and must be
mutualay approved in advance in writing by BOARD and
RECIPIENT. The meter will be utilized to measure the amount of
Reglaimed Water delivered by the BOARD to RECIPIENT and the
BOARD shall operate, maintain, cause to be calibrated, and
repair s aid meter..
1.10 CONSTRUCTION. Upon completion of the engineering
design of the metering facility, and the acceptance of same by
both parties, the metering facility will be constructed by the
BOARD and placed into service.
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REUSE\DELIVERZ.AGR
2
1.11 COSTS AND OPERATION. The BOARD shall bear the cost of
constructing, owning and maintaining the Reclaimed Water meter
and related appurtenances and the lines interconnecting
BOARD's system into the metering facility, including all
valves and appurtenances up to and including the discharge
flanges of the valves immediately downstream of the meter. The
parties agree that the RECIPIENT shall have reasonable
access to the metering facility, to all other Reclaimed Water
meters, check valves, and any other appurtenances thereto, to
verify flows, meter readings, meter calibrations, efficiency
of the check valves, and any other performance data necessary
to the operations of the Interconnection facility Upon
reasonable advance notice to the Board. The metering device
shall be tested and calibrated, at BOARD's expense, at least
once per year and repaired if required. Any errors in meter
reading and any discrepancy in meter results from a true and
correct measure of Reclaimed Water flow to RECIPIENT shall ~e
adjusted properly and retroactively to reflect the flow to
RECIPIENT. Any incorrect metering device shall be repaired
forthwith by the BOARD.
1.12 This agreement has been duly authorized by all named
parties. Pursuant to Section 3 (C) of the Interlocal
Agreement dated December 26, 1974, between the City of Boynton
Beach and the City of Delray Beach, this Agreement and all
provisions thereof have been contractually approved by a
majority vote of each City Council as the act of each City,
or, if such approval has not already been obtained, such
approval will be obtained and certified to RECIPIENT before
this Agreement shall become effective.
SECTION 2. Definitions. The parties agree that in construing
this Agreement, the following words, phrases and terms shall
have the following meanings, unless the context requires
otherwise:
2.1 "Agreement" means this Agreement between BOARD and
RECIPIENT.
2.2 "FDEP" means the Florida Department of Environmental
Protection, and its successors.
2.3 "Fiscal Year" means October 1 to September 30 of the
f?llowing year.
2.4 "GPO" means gallons per day.
2.5 "Irrigation system" means those pump stations, lines,
pipes, sprinkler heads, ponds and lakes, storage facilities,
if applicable, and pertinent equipment that are located on
RECIPIENT's property and used to store, spray and irrigate
with Reclaimed Water that has been treated in accordance with
7-23-96
REUSE\OeLlVERl.AGR
3
all applicable governmental regulations and in accordance with
the terms and provisions of this Agreement.
2.6 "MGD" means million gallons per day.
2.7 "Peint of delivery" means the point at
which divides the BOARD's wastewater facilities
RECIPIENT's irrigation system, or as otherwise
engineering drawings approved by both parties.
the meter
from the
noted on
2.8 "Reclaimed Water" means wastewater that has been
treated in accordance with Section 3.4 of this Agreement.
2.9 "Reclaimed Water Disposal Facilities" means those
facilities necessary for the storage, if applicable,.
transportation and disposal of wastewater previously treated
in accordance with applicable local, state and federal
standards and limitation at the plant to the standard of
Reclaimed Water. These facilities include, but are not limited
to, any Reclaimed Water transmission facilities, irrigation
systems and storage facilities, if applicable.
2.10 "Reclaimed Water Transmission Facilities" means the
BOARD's facilities used to transmit Reclaimed Water.
2.11 "Storage Facilities" means those facilities which may
be designed, permitted and constructed on the Property, if
.applicable, or upon the BOARD's property, if applicable, and
which are necessary to store and hold Reclaimed Water in a
manner that complies with regulatory requirements.
2.12 "Wastewater" means the product received by the
wastewater treatment facility for treatment.
2.13 "Wastewater Facilities" means c the BOARD's plant
located at 1801 North Congress Avenue, Delray Beach, Florida,
and Reclaimed Water transmission facilities, including all
interceptors, lines, pipes, meters, couplings, pumps, force
mains, and appurtenant equipment necessary to treat and
transmit the Reclaimed Water.
SECTION 3. Grant of License and Easement. RECIPIENT hereby
grants to BOARD an easement over the Property, including a 15
fQot utility easement to be mutually agreed upon and located
irr the approximate location depicted on Exhibit "C" attached
hereto, to allow construction, operation, maintenance and
repair of the BOARD's Reclaimed Water transmission main to
the point of delivery, and' the right to transmit, deliver and
dispose of Reclaimed Water through the irrigation system and
storage facility, if applicable, on the Property in accordance
with and subject to the following conditions:
7-Z3-96
REUSE\DELlVERZ.AGR
4
3.1 Desian and installation of Certain Facilities. BOARD
agrees to design, permit, install and operate improvements and
additions at its existing wastewater treatment plant, and the
BOARD's Reclaimed Water transmission facilities, and to Permit
effluent disposal facilities in order to provide Reclaimed
Water at the point of delivery. RECIPIENT agrees to design,
permit, install and operate, at its sole expense, any storage
facili ty, if applicable, and the irrigation system on the
Property up to the point of delivery.
3.2 Permits and Approval for the Irriqation System.
Recipient shall be responsible, in cooperation with Board, for
obtaining and maintaining necessary governmental permits and
approvals in order to install and operate the irrigation
system: provided, however, that Board shall be responsible
for,obtaining and maintaining all. permits for Reclaimed Water
disposal facilities. For all wastewater facilities located
on its side of the point of delivery, Board shall be solely
responsible for obtaining, compiling, providi~g and complying
with all monitoring, sampling, testing, and reporting
requirements for the Reclaimed Water, which may be imposed by
government law, rule, permit, or approval. Recipient shall
grant Board upon reasonable advance notice to RECIPIENT access
to the irrigation system as needed to assure continued
compliance with applicable laws and regulations, including,
but not limited to, any monitoring or testing requirements.
3.3 . A. Delivery of Reclaimed Water. BOARD agrees to use
its best efforts to.make available and deliver in the volume
and at the times requested, an annual volume of Reclaimed
Water of at least 86 million gallons (MGY), with maximum
volume.anyone day up to but not to exceed 800,000 gallons per
day (GPD), at a rate of 1,750 gallons per minute (GPM), for
use on the Property and, at its cost, to connect the BOARD's
Reclaimed Water transmission facilities to RECIPIENT's
irrigation system at the point(s) of delivery agreed upon and
as shown in Exhibit "C". Both RECIPIENT and BOARD recognize
that wate~ supply and demand will vary depending on a number
of factors, primarily climatic conditions.
B. Storacie. The RECIPIENT shall maintain, in
compliance with all applicable laws and regulations, the
necessary storage facilities on their property at their sole
eXf~nse.
3.4 Quality of Reclaimed Water. BOARD shall make
available to RECIPIENT Reclaimed Water of a quality consistent
with the requirements of "public access" treatment levels as
set forth in Chapter 17-610, Florida Administrative Code, or
its SUccessor Code provisions, or of a quality consistent with
more stringent requirements that may be imposed by any
governmental agency having jurisdiction and legal authority.
In recognition of the need to supply Reclaimed Water, the
7-23-96
REUSE\DELlVER2 _AGR
5
BOARD shall also be required to comply with effluent
limitations set forth in Exhibit liD". All Reclaimed Water
made available by BOARD under this Agreement shall, at a
minimum, have been treated by advanced treatment methods to
remove harmful levels of bacteria, viruses, and other
constituents or pollutants which could constitute a danger to
human health, and in accordance with all applicable federal,
state and local laws, rules, regulations, policies,
ordinances, resolutions, orders and permits and the
requirements of Exhibit "D". BOARD shall provide continuous
monitoring of chlorine and turbidity, as well as other
required ground and surface water quality sampling and
monitoring of Reclaimed Water as required by local, state and
federal regulations and by Exhibit "D". BOARD agrees to
divert away as expeditiously as possible, from the irrigation
system, any Reclaimed Water which does not comply with the
terms and conditions of this Agreement or which does not meet
the applicable state, federal or local laws and regulations
and to promptly and fully notify RECIPIENT of such action.
Copies of all test results shall be.available to RECIPIENT
upon request.
3.5 Minimum Purchase of Reclaimed Water by RECIPIENT.
Upon completion of the construction of the wastewater
facilities and continuing for so long as BOARD complies with
the requirements set forth in this Agreement, RECIPIENT has an
obligation to pay for at least 86 million gallons annually of
Reclaimed Water for spray irrigation on the Property, subject
to conditions as set forth in. Section 3.3 of this Agreement.
Notwithstanding anything to the contrary, Recipient shall not
. be obligated to accept delivery of or pay for Reclaimed Water
which does not comply with the terms and conditions of this
agreement. Such exception to RECIPIENT'S obligation to accept
delivery of such Reclaimed.Water by reason of the Board's
failure to meet the water quality standards required in this
Agreement shall relieve RECIPIENT of its obligation to pay
BOARD for the minimum annual volume set forth above at the
rates determined pursuant to Paragraph 5 below only to the
extent that the BOARD shall not have made available to
RECIPIENT such annu_al minimum volume of Reclaimed Water
mee,ting the requirements of this Agreement through the
completion of the then current fiscal year. Recipient shall
not transfer the water provided by Board to any third party or
o~~ of the Recipient's property which is the subject of this
agreement.
3.6 RECIPIENT shall be responsible for all maintenance of
water and its irrigation system On RECIPIENTS side of the
point(s) of delivery.
7-23-96
REUSE\DELlVER2.AGR
6
3.7 Nothing in this Agreement shall be construed to give
RECIPIENT any right to the exclusive receipt of BOARD's
Reclaimed Water supply.
3.8 The BOARD agrees that it will not enter into
contracts with other recipients of Reclaimed Water for more
than its daily Supply capacity as the same exists from time to
time.
SECTION 4. Term and Fees
4.1 Term. The Easement and this Agreement shall be in
effect for a period of twenty (20) years commencing on the
date of execution of this Agreement. The term of the Easement
and this Agreement shall be automatically extended for
successive periods of ten (10) years each, upon the same terms
and conditions as herein provided, unless either party hereto
notifies the other by certified mail at least three years
prior to the expiration of the initial term of this Agreement
or any renewal thereof, that this Agr~ement shall not be so
extended.
4.2 PaYment of Fees. In return for and in consideration
of BOARD's construction of facilities and delivery of
Reclaimed Water I RECIPIENT agrees to pay BOARD a one-time
connection fee of $5,100.0Q and a volume charge of 20c for
each 1,000 gallons of Reclaimed Water used I (the "Volume
Charge") but on an annual basis not less than the above rate
times the minimum quantity RECIPIENT has agreed to purchase
under Section 3.5 together with a storage charge equal to Be';-
(the "Storage Charge") for each 1,000 gallons of Reclaimed
Water the Volume Charge for which is paid for by RECIPIENT, as
provided above. Su~h storage charge shall remain constant and
shall not be adjusted, during the term of this Agreement or
any extension. Payment of the connection fee shall be in one
lump sum no later than the commencement of construction of the
modification to the BOARD's wastelVater facilities for the
treatment and production of Reclaimed Water. The Volume
Charge shall remain constant until the expiration of the
third (3) fiscal year from the commencement of pumping
(provided that if less than six (6) months expires between the
time ~ARDcommences or makes available delivery of Reclaimed
Water and the end of. the first fiscal year, such first year
shall not count as the first fiscal year), after which the
pricE!:! will be redetennined as provided in Section 5. The
BOARD shall render billings to RECIPIENT for 'both the volume
charge and storage charge on a monthly basis for such
applicable charges on the basis of the greater of the actual
Reclaimed Water delivered or the volume charge and Storage
charge for 1/12th of the minimum guaranteed annual volume
agreed to be acCepted by RECIPIENT pursuant to Section 3.5
above; provided that RECIPIENT shall pay no more, on a fiscal
year basis, than (i) such minimum annual guaranteed volume
7-23-96
REuSE\DELIVERZ.AGR
7
charge or (ii)charges for Reclaimed Water actually accepted
during the fiscal year, whichever is more.
4.3 In the event the BOARD shall not be able to deliver
Reclaimed Water in the minimum volume agreed to in Section 3.5
of this Agreement, as a result of its inability to do so and
through no action or inaction on the part of the RECIPIENT,
the RECIPIENT shall be entitled to a credit for such shortage
in the minimum agreed to volume (by a proportionate
reduction) .
SECTION 5. Future Adjustment of Price of Reclaimed Water.
The Volume Charge shall be adjusted after the first three (3)
fiscal years as aforesaid upward or downward based on one-half
(~)of the year-to-year change in the actual operating costs
of producing, metering and delivering Reclaimed Water from
effluent and transmitting it to the point of delivery for the
RECIPIENT as it relates to the preceding year's Volume Charge,
however, such Volume Charge shall never be less than 20c per
thousand gallons nor shall an increase be applied if the
actual operating. costs shall be less than said 20c per
thousand gallons. The first such adjustment shall occur
effective the first day of the fourth fiscal year following
the initial delivery of Reclaimed Water to RECIPIENT and
shall reflect one-half (1) the relative increase or decrease
in actual operating costs incurred by the BOARD during the
second fiscal year of delivery of Reclaimed Water to RECIPIENT
as compared to the third fiscal year and for each subsequent
year thereafter as compared to the previous year. The actugJ
operating cost and change therein shall be the basis for
determining the index for making the adjustments in the Volume
Charge. Actual operating costs ("Actual Operating Costs")
shall be determined in conformity with generally accepted
accounting principles consistently applied, except the
depreciation of plant and equipment and any other provision
for capital recovery, including interest on long term debt,
shall not be included as operating costs, as such costs are
properly allocable to wastewater customers. Any increase or
decrease in the Volum~ Charge shall be determined as soon as
reasonably practicable and shall be effective retroactive to
the '~cheduled date of adjustment and a sum due to the BOARD
as a result of the retroactive effect of such adjustment or
th~ credit due the RECIPIENT, if applicable, shall be
reflected in the next billings regularly submitted by BOARD to
RECIPIENT as provided in Subparagraph 5.4.
5 . 1 BOARD personnel shall establish, or cause to be
established, and maintain an accbunting system in which such
current operating costs are recorded monthly in separate
accounts from sewage processing accounts. Costs shall be
recognized on a first-in first-out basis. The BOARD personnel
shall prepare and preserve any studies relating to the
allocation of operating costs on other than an actually
incurred basis. By way of example, the parties agree that all
7-23-96
REUSE\DELlVERZ.AGR
8
operating and maL -enance costs of labor, che ~als and power,
permits, regulatory requirements, legal, engineering,
administration, testing, meter calibration and contract
services may be allocated based on appropriate data or
studies. Such Current operating costs shall be recorded on a
consistent basis from month to month and year to year, and the
total for each fiscal year shall be used to"calculate a cost
per thousand gallons of Reclaimed Water delivered beginning
with the second fiscal year after the plant starts to deliver
Reclaimed Water to RECIPIENT.
5.2 By way of example, if delivery begins on October 6,
1996, the third fiscal year thereafter would be October 1,
1998 to September 30, 1999. Assume that the actual cost of
producing Reclaimed Water for the fiscal year October 1, 1997
through September 30, .1998 was 21~. Further, assume that the
Actual Operating Cost of producing and delivering Reclaimed
Water to RECIPIENT during the second fiscal year to the end of
the third fiscal year (October 1, 1997, through September 30,
1999) increased from 21~ per thousand gallons to 23~ per
thousand gallons. The index for increase would be calculated
by dividing the base cost of 21~ per ~housand gallons into
one-half (!) the 2c increase in cost, resulting in an increase
of 4.76% to the previous years' Volume Charge of 20c per
thousand gallons for the fourth fiscal year, equal to 20.95~
per thousand gallons (! x 2 = 1 + 21~ = .0476, then 20~ x
1.0476 = 20.95~).
5.3 As soon as reasonably practical, after each fiscal
year for which the contract price is subject to adjustment ,
the BOARD shall prepare a statement showing. in reasonable
detail the actual operating costs to produce Reclaimed Water
from effluent for the latest two fiscal years. For each such
year, the statement shall also spow (1) the number of gallons
in thousands of Reclaimed Water delivered to Reclaimed Water
users, (2) the cost per thousand gallons 9f Reclaimed Water
calculated by dividing such operating costs by such gallons,
( 3 ) the calculation of the ratio of change in cost per
thousand gallons from the earlier year to the later year, and
(4) the calculation of the adjusted price for the later year.
This statement shall be deemed to be the responsibility of the
BOARD, and the BOARD's. Executive Director shall attest in
writing, to the propriety of the costs and calculations shown
theredn.
;,5.4 By January 15 of each year, the BOARD'S Executive
Director shall submit to RECIPIENT the supplemental statement
set forth in the preceding paragraph, together with the
attestation thereto by the BOARD. At the same time, the
BOARDS Executive Director shall submit to RECIPIENT a bill or
credit shOwing (l)the amount paid by the RECIPIENT for
Reclaimed Water delivered in the current fiscal year, (2)the
amount payable for Reclaimed Water delivered in the current
fiscal year based on the adjusted price for the year as set
forth above, and (3)the difference. Any such difference shall
7-23-96
REUSE\DELlVERl_AGR
9
be either paid pL .ptly by the RECIPIENT, or
in the next billing to the RECIPIENT.
)wn as a credi t
5.5 For billing purposes only prior to the determination
of actual costs for adjusting the Volume Charge, during each
year subject to price adjustment, the BOARD may use a
tentative price per thousand gallons based on using budgeted
costs for the current year in the price adjustment calculation
set forth above.
5.6 RECIPIENT, at its own expense, has the option of
examining the financial statements, general books and related
records, and production records of the BOARD.
5.7 Notwithstanding the above provisions, the price paid
by the RECIPIENT for Reclaimed Water shall be adjusted
downward in the event the BOARD offers Reclaimed Water to any
other non-governmental customer(s) upon substantially similar
terms and conditions for the same use of the Reclaimed Water
at a lower charge than RECIPIENT is or will be paying under
this Section 5. Such downward adjustment shall be made to
guarantee RECIPIENT that no other user of Reclaimed Water for
similar purposes shall receive a mor~ favorable charge than
will also be given to RECIPIENT under similar circumstances.
5.8 To the extent that the BOARD receives governmental
or environmental noncapital improvement subsidies which are
provided to the BOARD for encouraging wastewater reuse and
which are intended to be applied pursuant to the terms of such
grant or subsidy to the operational costs of the Reclaimed
Water facility, as opposed to capital improvements or
expansion of such Reclaimed Water facility, the BOARD will
apply such funds, to the extent allowed, to its Reclaimed
Water facility operating costs.
5.9 The parties to this Agreement agree and recognize
that RECIPIENT is under no legal or other obligation to enter
into this Agreement for reuse of 'Ilastewater. RECIPIENT
currently has operating permits from FDEP and the Water
Management District to pump surface and ground water for all
RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump
this surface and ground water is substantially less than the
charges RECIPIENT wi:ll pay for Reclaimed Water under this
Agreement. RECIPIENT'S only consideration and motivation to
enter into this Agreement is to insure sufficient irrigation
water by receiving its full allocation of Reclaimed Water on
d~and in accordance with the rate and delivery conditions set
forth in this Agreement, . free from adverse environmental or
climatic impact. RECIPIENT has determined that the benefits
of this Agreement are only marginally economically feasible.
Therefore, if as a result of any action by the BOARD, the City
of Delray Beach or the City of Boynton Beach, RECIPIENT would
be required to pay charges in excess of those established
under Section 5, then RECIPIENT shall have the option of
canceling this Agreement upon sixty (60) days advance written
notice to the BOARD. .
7-2)-96
REUSE\DELlVER2.AGR
10
SECTION 6. Inspt. .:ion. BOARD shall have U right to enter
RECIPIENT's property, upon proper identification and at any
reasonable time, in order to inspect the irrigation system as
may be necessary or desirable for the operation, safety,
protection, or preservation thereof, to determine compliance
with any law, order or regulation of any governmental
authority having jurisdiction, and for sampling at any
monitoring wells located on the property. RECIPIENT shall have
the right to enter the BOARD's plant and properties and the
right of access to its wastewater facilities and records, at
any reasonable time, for the purpose of determining whether
the BO~~D is in compliance with this Agreement.
SECTION 7. Assignments. This Agreement can be assigned by
RECIPIENT only with the prior written approval of BOARD, but
such approval shall not be unreasonably withheld, provided the
assignee shall assume this Agreement and shall demonstrate to
BOARD its financial ability to comply with the provisions
hereof.
SECTION 8. Notices; Proper Form. Any notice required or
allowed to be delivered hereunder shall be in writing and
shall be deemed to be delivered when (1) hand delivered to the
official hereinafter designated, (2) upon receipt of such
notice when deposited in theUni ted States mail, postage
prepaid, certified mail, return receipt requested, addressed
to a party at the address set forth opposite the party' name
below, or at such other address as the party' shall have
specified by written notice to the other party delivered in
accordance herewith:
BOARD
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL" BOARD
Executive Director
1801 North Congress Avenue
Delray Beach, FL 33445
RECIPIENT
PINE TREE GOLF CLUB
C/O Club Manager
10600 Pine Tree Terrace
Boynton Beach, FL 33436
'.
COpy TO:
Boynton Beach City Manager
P.O. Box 310
Boynton Beach, FL 33425-0310
COpy TO:
Delray Beach City Manager
100 N.W. 1st Avenue
Delray Beach, FL 33444
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REUSE\DELIVERZ_AGR
11
COpy 'I'O:
Robert W. Federspiel, Esq.
501 East Atlantic Avenue
Delray Beach, FL 33483
SECTION 9. Notices; Default. Each of the parties hereto shall
give the other party written notice of any defaults hereunder
and shall allow the defaulting party 30 days from the date of
receipt to cure such defaults, except failure to deliver water
on demand.
SECTION 10. Default by Either Party. If any party hereto fails
to perform or comply with any of the conditions of this
Agreement, and if the nonperformance shall continue for a
period of thirty (30) days after the written notice thereof to
the non-performing party, or if the performance cannot be
reasonably completed within the 3D-day period, or if the non-
performing party does not in good faith commence performance
within the 3D-day period and does not diligently proceed to
complete performance, the non-performing party shall be in
default or breach of this Agreement.
SECTION 11. Indemnification. In the event RECIPIENT shall fail
to comply with any reuse water rule or regulation of any
Federal, State or County or local agencies, except BOARD, or
violate any permit granted with regard to the use of the
irrigation system on the RECIPIENT's property, then RECIPIENT
shall indemnify the BOARD, its officers ~ governing board,
employees and agents against all claims, demands, causes of
actions, suits, judgments, fines, penalties, or losses,
including all costs suffered or incurred by the BOARD by
reason of such failure. In the event the BOARD shall fail to
comply with any rule, regulation, order of any Federal, State
or County or local agency, or fail to deliver water meeting
the quality standards provided by this Agreement, then the
BOARD shall, to the extent allowed by :law, indemnify the
RECIPIENT, its officers, board of directors, employees and
agents against all claims, demands, causes of actions, suits,
judgments, penalties, fines, or losses suffered or incurred by
the RECIPIENT as reason of such failure.
SECTION 12. Remedies of Default. If either party hereto shall
be in default hereunder as set forth in Section la, then the
other party shall have the fqllowing remedy: bring suit for
th~ breach which has occurred without affecting the
obligations of the party to perform the balance of the
Agreement. The parties shall have the right not only to
injunctive relief, but also to recover any damages which a
party may incur as a result of the breach of this Agreement by
the other party. The parties further agree that any litigation
shall be brought in Palm Beach County, Florida, only, and the
parties agree that the proper venue for any such action would
only be in Palm Beach County, Florida. The parties further
wai ve any right to Jury trial they may have in any action
among them involving this Agreement or the alleged breach
thereof.
7-23-96
REUSE\DELlVERZ.AGR
12
SECTION 13. Dis, .:1imers of Third Party Bel :iciaries. This
Agreement is solely for the benefit of the formal parties
hereto and no right or cause of action shall accrue upon or by
reason hereof or to or from or for the benefit of any third
party not a formal party hereto.
SECTION 14. Severability. If any part of this Agreement is
found invalid or unenforceable by any court, such invalidity
or unenforceability shall not affect the other parts of this
Agreement.
SECTION 15. Applicable Law. This Agreement and the provisions
contained herein shall be construed, controlled and
interpreted according to the laws of the State of Florida.
SECTION 16. Entire Agreement. This agreement contains the
entire Agreement between the parties hereto with respect to
thi$ transaction and supersedes all prior negotiations and all
prior written or oral understandings.
SECTION 17. Amendments. This Agreement may only be amended,
supplemented or discharged by an instrument in writing signed
by all parties hereto.
SECTION 18. Recordation. This Agreement or a mutually
agreeable memorandum thereof will be recorded in the public
records of Palm Beach County, Florida.
SECTION 19. Extent of Agreement. Each party shall advise the
other party, in writing, as to the status of its construction
document preparation and construction of associated
improvements on a monthly basis to ensure that both parties'
activities are progressing 'with reasonable diligence. _,
SECTION 20. Completion Date. The Board agrees to use its best
efforts have its Reclaimed Water facilities completed and
available for use for RECIPIENT and RECIP~ENT agrees to use
its best efforts have its Irrigation System complete and to
accept delivery of Reclaimed Water from the BOARD on or before
November 1, 1997, subject to matters beyond the reasonable
control of either party. . Notwithstanding any provision of
this Agreement to the contrary, the RECIPIENT shall have the
absolute obligation to commence payments for the reclaimed
watexupon the completion of construction as provided for in
Section 3.5 above.
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT ~D DISPOSAL BOARD
/1
./f
ATTE.S TE rY4Y~. /71'1
~/
/#1 /J
/~./ /. ~Jt/
Secr'efa,aty -
By: ~~13 /p/., /r:,>~
Chairman ~
i'
7-23-96
REUSK\DKLlVERZ.AGR
13
APPRO~D AS TO F01A~:
/~ /1
<\ ~,-===-
Board Attorney
APPROVED BY:
/
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. ,/' -~;-/ "" -
h" ~// ,/'_ '~
--1/' /~' -~..~
Ci tY''.~0f D/e'iray !=}.each I Mayor
APPROVED/ BY : ,-
; ~>
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", /'0 ~~r' ,:.... I /,~ .... /r-"Z
.-' .-.I'"'/~ ? I ~----. Y ...., I ./' - ----==-.
Ci,ty of ,abynton J~~ach, Mayor
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7-23-96
REUSE\DELTVEIl2,AGR
./ /}
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tf
14
ASSIGNMENT AGREEMENT
*"
~05-0B7 -r
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with Pine Tree
Golf Club, concerning delivery and acceptance of reclaimed water dated the 17th day of January,
1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water
Agreement;" and
WHEREAS, the BOARD is modifying its reclaimed .water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD will provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting .such
assignment, shall assume all of the rights, duties and obligations of the BOARD under said
Agreement. . ~.c.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective the 1st day of October, 2005.
, 7., BOYNTON hereby agrees to accept and assume all rights, benefits and obligations
created under the said Reclaimed Water Agreement pursuant to this assignment.
::;. IN WIlNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
sourn CENTRAL REGIONAL W ASTEW A TER
TRE ENT AND DISPOSAL BOARD
""-
t~
Chairman
APPROVED AS TO FORM
~4
Bpfu-d Atto~y .
ATTESTED BY:
Secretary
APPROVED AS TO FORM
City Attorney
"
.;.
CITY OF BOYNTON BEACH
By:
Mayor
THIS AGREEMENT is made and entered into on this i {' ,day
of Ur.>0, ilc'i2S, by and between South Central
Regional Wastewater Treatm4tit' and Disposal Board, a municipal
corporation created pursuant to the laws of the State of
Florida (hereinafter BOARD), and Pine Tree Golf Club
(hereinafter RECIPIENT).
AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD
ANn PINE TREE GOLF CLUB CONCERNING DELIVERY
AND ACCEPTANCE OF RECLAIMED WATER
Accordingly, for and in consideration
contained herein, mutual understandings
contained herein, and other considera~ion,
sUfIiciency of which is hereby acknowledged
the parties covenant and agree as follows:
of the recitals
and agreements
the receipt and
by the parties,
SECTION 1. Recitals. The below recitals are true and
correct and form a material part of this Agreement.
1.1 The Parties hereto represent to one another that each
has the full POwer and authority to enter into this Agreement
and to carry out their respective obligations thereunder. The
BOARD is composed of the Cities of Boynton Beach and Delray
Beac h ' (the · Ci ties · ), pursuant to an Inter local Agreement
entered into pursuant to Chapter 163, Florida Statutes.
1.2 The parties recognize that reUse of Reclaimed Water is
in the public interest, as it recaptures an otherwise wasted
and unused water resource. The BOAlID owns and operat,es
wastewater facilities which it proposes to Upgrade to produce
Reclaimed Water SUitable for irrigation of areas, such as
golf courses, parks, School grounds and cemeteries, and
RECIPIENT is willing to accept Such Reclaimed Water for
irrigation purposes in the public interest.
1. 3 In a normal year, RECIPIENTS will irrigate
approximately 240 days and most of RECIPIENT'S daily
requirements will be needed during approximately 12 honrs
conun~nCing about SUndown. BOAlID agrees to use its best
efforts 'to SUPply Reclaimed Water On demand to RECIPIENT up to
the volume and at the charge set forth in this, Agreement.
RECl~IENT has valUable golf courses that require access to
Such Reclaimed Water and has expended substantial money and
effort and has foregone other avenues to meet its irrigation
requirements in reliance on this Agreement. The BOARD is not
required to upgrade its wastewater system to produce Reclaimed
Water but is doing So in reliance upon the RECIPIENT entering
into this Agreement.
7-23-96
!lEUSE\ DELIVER2. AGll
1
1.4 The RECIPIENT owns and controls land which is
described in Exhibit "An (the "Property"), attached and made
a part 'hereof by reference.
1.5 RECIPIENT agrees to: (a) irrigate the Property using
Reclaimed Water; (b) maintain the storage facility, if
applicable, ponds and lakes, if applicable, pumps and
irrigation system to be located on the Property from the point
of delivery; and (c) upgrade its irrigation system when
reasonable and economical to utilize the volume of Reclaimed
Water accepted from the BOARD and as required to meet any
federal; stater or local requirements; (d) maintain compliance
with the operating restrictions for protecting human health
and the environment attached thereto as Exhibit "Bn.
1.6 Recipient shall accept the Reclaimed Water delivered
by the BOARD and use it for irrigation of the Property. The
BOARD shall be deemed to be in possession and control of the
Reclaimed Water until it shall have been delivered to the
RECIPIENT at the Point of Delivery. After such delivery, the
RECIPIENT shall be deemed to be in posse"ssion and control
thereof.
1.7 The RECIPIENT agrees to maintain all Federal, State
and governmental permits issued to it and necessary to allow
it to receive and utilize the Reclaimed Water pursuant to the
terms of this Agreement.
1.8 The right of the RECIPIENT to sell, transfer or
encumber the Property in areas irrigated with the ReclaLmed
Water shall not be restricted by this Agreement. This
Agreem~nt shall run with the land so long as the use of a
major portion of the Property shall continue to be for golf
course and related purposes. Any subsequent party in interest
to such golf course or courses shall be obligated to 'receive
and pay for Reclaimed Water under the same terms and
conditions of this Agreement, unless modified by mutual
consent of the BOARD and the buyer or transferee.
1.9 METER. The design and construction of the metering
fac~lity shall be the responsibility of the BOARD and must be
mutually approved in advance in writing by BOARD and
RECIPIENT. The meter will be utilized to measure the amount of
Re#laimed Water delivered by the BOARD to RECIPIENT and the
BOARD shall operate, maintain, cause to be calibrated, and
repair said meter..
1.10 CONSTRUCTION. Upon completion of the engineering
design of the metering facility, and the acceptance of same by
both parties, the metering facility will be constructed by the
BOARD and plaqed into service.
7-Z3-96
REUSS\DSLTVERZ.AGR
2
1.11 COSTS AND OPERATION. The BOARD shall bear the cost of
constructing, owning and maintaining the Reclaimed Water meter
and related appurtenances and the lines interconnecting
BOARD's system into the metering facility, including all
valves and appurtenances "pto and including the discharge
flanges of the valves immediately downstream' of the meter. The
parties agree that the RECIPIENT shall have reasonable
access to the metering facility, to all other Reclaimed Water
meters, check valves, and any other appu~tenances thereto, to
verify flows, meter readings, meter calibrations, efficiency
of the check valves, and any other performance data necessary
to the operations of the Interconnection facility upon
reasonable advance notice to the Board. The metering device
shall be tested and calibrated, at BOARD's expense, at least
once per year and repaired if required. Any errors in meter
reading and any discrepancy in J.eter results from a true and
correct measure of Reclaimed Water flow to RECIPIENT shall pe
adjusted properly and retroactively to reflect the flow to
RECIPIENT. Any incorrect metering device shall be repaired
forthwi th by the BOARD. .
1.12 This agreement has been duly authorized by all named
parties. Pursuant to Section 3 (C) of the Interloca1
Agreement dated December 26, 1974, between the City of Boynton
Beach and the City of Delray 'Beach, this Agreement and all
provisions thereof have been contractually approved by a
majority vote of each City council as the act of each City,
or, if such approval has not already been obtained, such
approval will be obtained and certified to RECIPIENT before
this Agreement shall become effective.
SECTION 2. Definitions. The parties agree that in cOnstruing
this Agreement, the following words, phrases and terms shall
have the following meanings, unless the context requires
otherwise:
2.1 "Agreement" means this Agreement between BOARD and
RECIPIENT.
2.2 "FDEP'" means-the Florida Department of Environmental
ProteGtion, and its successors.
2.3 "Fiscal Year" means October 1 to September 30 of the
fq:~lowing year.
2.4 "GPD" means gallons per day.
2 . 5 .. Irrigation system" < means those pomp stations, lines,
pipes, sprinkler heads, ponds and lakes, storage fiicilities,
if applicable, and pertinent equipment that are located on
RECIPIENT's property and used to store, spray and irrigate
with Reclaimed Water that has been treated in accordance with
7-23-96
flEUSE\ OELIVER2 ,AGR
3
all applicable governmental regulations and in accordance with
the terms and provisions of this Agreement.
2.6 "MGD" means million gallons per day.
2.7 "Point of delivery" means the point at
which divides the BOARD's wastewater facilities
RECIPIENT's irrigation system, or as otherwise
engineering drawings approved by both parties.
the meter
from the
noted on
2.8 "Reclaimed Water" means wastewater that has been
treated in accordance with Section 3.4 of this Agreement.
2.9 "Reclaimed Water Disposal Facilities" means those
fa.cili ties necessary for the storage, if applicable,'
transportation and disposal of wastewater previously treated
in accordance with applicable local, state and federal
standards and limitation at the plant to the standard of
Reclaimed Water. These facilities include, but are not limited
to, any Reclaimed Water transmission facilities, irrigation
systems and storage facilities, if applicable.
2.10 "Reclaimed Water Transmission Facilities" means the
BOARD's facilities used to transmit Reclaimed Water.
2.11 "Storage Facilities" means those facilities which may
be designed, permitted and constructed' on the Property, if
-applicable, or upon the BOARD's property, if applicable, and
which are necessary to store and hold Reclaimed Water iI}. a
manner that complies with regulatory re.quirements.
2.12 "Wastewater" means the product received by the
wastewater treatment facility for treatment.
2.13 "Wastewater Facilities n means the BOARD's plant
located at 1801 North Congress Avenue, Delray Beach, Florida,
and Reclaimed Water transmission facilities, including all
interceptors, lines, pipes, meters, couplings, pumps, force
mains, and appurtenant equipment necessary to treat and
transmit the Reclaimed Water.
SECTION 3. Grant of License and Easement. RECIPIENT hereby
g~~nts to BOARD an easement over the Property, including a 15
foot utility easement to be mutually agreed upon and located
in the approximate location depicted on Exhibit "C" attached
hereto, to allow construction, operation, maintenance and
repair of the BOARD's Reclaimed Water transmission main to
the point of delivery, and' the right to transm{t, deliver and
dispose of Reclaimed Water through the irrigation system and
storage facility, if applicable, on the Property in accordance
with and subject to the following conditions:
7-23-96
REUSE\DELIVER2..i\GR
4
3.1 Desion and installation of Certain Facilities. BOARD
agrees to design, permit, install and operate improvements and
additions at its existing wastewater treatment plant, and the
BOARD's Reclaimed Water transmission facilities, and to Permit
effluent disposal facilities in order to provide Reclaimed
Water at the point of delivery. RECIPIENT agrees to design,
permit, install and operate, at its sole expense, any storage
facili ty, if applicable, and the irrigation system on the
Property up to the point of delivery.
3.2 Permits and A roval for the Irriqation S stem.
Recipient shall be responsible, in cooperation with Board, for
obtaining and maintaining necessary governmental permits and
approvals in order to install and operate the irrigation
system: provided, however, that Board shall be responsible
for obtaining and maintalningall. permits for Reclaimed Water
disposal facilities. For all wastewater facilities located
on its side of the point of delivery, Board shall be solely
responsible for obtaining~ compiling, providing and complying
with all monitoring, sampling, te'sting, and reporting
requirements for the Reclaimed Water, which may be imposed by
government law, rule, permit, or approval. Recipient shall
grant Board upon reasonable advance notice to RECIPIENT access
to the irrigation system as needed to assure continued
compliance with applicable laws and regulations, inClUding,
but not limited to, any monitoring or testing requirements.
3.3 - A. Delivery of Reclaimed Water. BOARD agrees to use
its best efforts to.make available and deliver in' the volume
and at the times requested, an annual volume of . Reclaimed
Water of at least 86 million gallons (MGY), with maximum
volume anyone day up. to but not to exceed 800,000 gallons per
day (GPD), at a rate. of 1,750 gallons per minute (GPM), for
use on the Property and, at its cost, to connect the BOARD's
Reclaimed Water transmission facilit{es to RECIPIENT's
irrigation system at the. point(s) of delivery agreed upon and
as shown in Exhibit "C". Both RECIPIENT and BOARD recognize
that water SUpply and demand will vary depending on a nUmber
of factors, primarily ~limatic conditions.
" B. Storaqe. The RECIPIENT shall maintain, in
compliance with all applicable laws and regulations, the
necessary storage facilities on their property at their sole
expense.
3.4 Quality of Reclaimed Water. BOARD shall make
available to RECIPIENT Reclaimed Water of a quality consistent
with the requirements of "public aCcess" treatment levels as
set 'forthin Chapter 17-610, Florida Administrative Code, or
its SUccessor Code prOVisions, or of a quality consistent with
more stringent requirements that may be imposed by any
governmental agency having jurisdiction.and legal authority.
In recognition of the need to Supply Reclaimed Water, the
1-23-96
JlEIJSE\DELlVER2 .AGR
5
BOARD shall also be required to comply with effluent
limi tations set forth in Exhibit "D ". All Reclaimed Water
made available by BOARD under this Agreement shall, at a
minimum, have been treated by advanced treatment methods to
remove harmful levels of bacteria, viruses, and other
constituents or pollutants which could constitute a danger to
human health, and in accordance with all applicable federal,
state and local laws, rules, regulations, policies,
ordinances, resolutions 1 orders and permi ts and the
requirements of Exhibit liD". BOARD shall provide continuous
moni toring of chlorine and turbidity, as well as other
required ground and surface water quality sampling and
monitoring of Reclaimed Water as required by local, state and
federal regulations and by Exhibit "D". BOARD agrees to
divert away as expeditiously as possible, from the irrigation
system, any Reclaimed Water which does not comply with the
terms and conditions of this Agreement or which does not meet
the applicable state, federal or local laws and regulations
and to promptly and fully notify RECIPIENT of such action.
Copies of all test results shall be" available to RECIPIENT
upon request.
3.5 Minimum Purchase of Reclaimed Water. by RECIPIENT.
Upon completion of the construction of the wastewater
facilities and continuing for so long as BOARD complies with
the requirements set forth in this Agreement, RECIPIENT has an
obligation to pay for at least 86 million gallons annually of
Reclaimed Water for spray irrigation on the Property, subject
to conditions as set forth in Section 3.3 of this Agreement.
Notwithstanding anything to the contrary, Recipient .shall not
be obligated to. accept delivery of or pay for Reclaimed Water
which does not comply with the terms and conditions of this
agreement. Such exception to RECIPIENT'S obligation to accept
delivery of such Reclaimed Water by reason of the Board's
failure to meet the water quality standards required in this
Agreement shall relieve RECIPIENT of its obligation to pay
BOARD for the minimum annual volume set forth above at the
rates determined pursuant to Paragraph 5 below only to the
extent that the BOARD shall not have made available to
REC:rPIENT such annual minimum volume of Reclaimed Water
meeting the requirements of this Agreement through the
completion of the then current fiscal year. Recipient shall
n~t transfer the water provided by Board to any third party or
off of the Recipient's property which is the subject of this
agreement.
3.6 RECIPIENT shall be responsible for all maintenance of
water and its irrigation system on RECIPIENTS side of the
point(s) of delivery.
7-23-91>
~SE\DELlVERZ"AGR
6
3.7 Nothing in this Agreement shall be construed to give
RECIPIENT any right to the exclusive receipt of BOARD I S
Reclaimed Water Supply.
3.8 The BOARb agrees that it will not enter into
contracts with other recipients of Reclaimed Water for more
than its daily Supply capacity as the same exists from time to
time.
SECTION 4. Term and Fees
4.1 Term. The Easement and this Agreement shall be in
effect for a period of twenty (20) years commencing on the
date of execution of this Agreement. The term of the Easement
and this Agreement shall be automatically extended for
successive periods of ten (10) years each, upon the Same terms
and conditions as herein provided, unless either party hereto
notifies the other by certified mail at least three years
prior to the expiration of the initial term of this Agreement
or any renewal thereof, that this Agr~ement shall not be so
extended.
4.2 PaYment of Fees. In return for and in consideration
of BOARD's construction of facilities and delivery of
Reclaimed Water, RECIPIENT agrees to pay BOARD a one-time
connection fee of $5,100.00 and a volUme charge of 206 for
each 1,000 gallons of Reclaimed Water used, (the "Voluine
Charge") but on an annual basis not less than the above rate
times the minimum quantity RECIPIENT has agreed to purchase
under Section 3.5 together with a storage charge equal to 8<<;
(the "Storage Charge") for each 1,000 gallons of Reclaimed
Water the Volume Charge for which is paid for by RECIPIENT, as
provided ~ove. SU9h storage charge' shall remain constant and
shall not be adjusted, during the term.of. this Agreement or
any extension. Payment of the connection fee shall be in one
lump sum no later than the commencement of construction of the
modification to the BOARD's wastewater facilities for the.
treatment and production of Reclaimed Water. The Volume
Charge shall remain constant Until the expiration of the
third (3) fisGal .yea:r; from the conunencement of pumping
(prov~d~d that if less than six (6) months expires between the
time BOARD commences Or makes available delivery of ReClaimed
Water and the end of. the first fiscal year,. such first year
shap not Count as the first fiscal year), after which the
price will be. redetermined as provided in Section 5.. The
BOARD shall render billings to RECIPIENT for both the volume
charge and storage charge on a mOnthly baSis for such
applicable charges on the basis of the greater of the actual
Reclaimed Water deliVered or the volume charge and storage
charge for 1/12th of the minimum guaranteed annual volume
agreed to be accepted by RECIPIENT pursuant to Section 3.5
above; prOvided that RECIPIENT shall pay no more, on a fiscal
year basis, than ( i ) Such minimum annual guaranteed vol wne
7-23-96
REuSE\OELlVERz.J\GJl
7
charge or (ii)charges for Reclaimed Water actually accepted
during the fiscal year, whichever is more.
4.3 In the event the BOARD shall not be able to deliver
Reclaimed Water in the minimum volume agreed to in Section 3.5
of this Agreement, as a result of its inability to do so and
through no action or inaction on the part of the RECIPIENT,
the RECIPIENT shall be entitled to a credit for such shortage
in the minimum agreed to volume (by a proportionate
reduction) .
SECTION 5. Future Adjustment of Price of Reclaimed Water.
The Volume Charge shall be adjusted after the first three (3)
fiscal years as aforesaid upward or downward based on one-half
(I) of the year-to-year change in the actual operating costs
of producing, metering and delivering Reclaimed Water from
effluent and transmitting it to the point of delivery for the
RECIPIENT as it relates to the preceding year's Volume Charge,
however, such Volume Charge shall never be less than 20c per
thousand gallons nor shall an increase be applied if the
actual operating costs shall be less than said 20c per
thousand gallons. The first such adjustment. shall 08cur
effective the first day of the fourth fiscal year following
the initial delivery of Reclaimed Water to RECIPIENT and
shall reflect one-half (~) the relative increase or decrease
in actual operating costs incurred by the BOARD during the
second fiscal year of delivery of Reclaimed Water to RECIPIENT
as compared to the third fiscal year and for each subsequent
year thereafter as compared to the previous year. The actual
operating cost and change therein shall be the basis for
determining the index for making the adjustments in the Volume
Charge. Actual operating costs ("Actual Operating Costs It)
shall be determined in conformity with _generally accepted
accounting principles consistently applied, except the
depreciation of plant and equipment and any other provision
for capital recovery, including interest on long term debt,
shall not be included as operating cost~, a~ such costs are
properly allocable to wastewater customers. Any increase or
decrease in the Volume Charge shall be determined as soon as
reaspnably practicable and shall be effective retroactive to
the scheduled date of adjustment and a sum due to the BOARD
as a result of the retroactive effect of such adjustment or
th~ credit due the RECIPIENT, if applicable, shall be
reflected in the next billings regularly submitted by BOARD to
RECIPIENT as provided in Subparagraph 5.4.
5.1 BOARD personnel shall establish, or cause to be
established, and maintain an accbunting system in which such
current operating costs are recorded monthly in separate
accounts from sewage processing accounts. Costs shall be
recognized on a first-in first-out basis. The BOARD personnel
shall prepare and preserve any studies relating to the
allocation of operating costs on other than an actually
incurred basis. By way of example, the parties agree that all
1-23-96
REUSE\DELlVERZ.AGR
8
operating and mai_ -enance costs of labor, che .::als and power,
permits, regulatory requirements, legal, engineering,
administration, testing, meter calibration and contract
services may be allocated based on appropriate data or
studies. Such CUrrent operating costs shall be recorded on a
consistent basis from month to month and year to year, and the
total for each fiscal year shall be used to calculate a cost
per thousand gallons of Reclaimed Water delivered beginning
with the second fiscal year after the plant starts to deliver
Reclaimed Water to RECIPIENT.
5.2 By way of example, if delivery begins on October 6,
1996, the third fiscal year thereafter would be October 1,
1998 to September 30, 1999. Assume that the actual cost of
producing Reclaimed Water for the fiscal year October 1, 1997
through September 30, -1998 was 216. Further, assume that the
Actual Operating Cost of producing and delivering Reclaimed
Water to RECIPIENT during the second fiscal year to the end of
the third fiscal year (October 1, 1997, through September 30,
1999) increased from 216 per thousand gallons to 23<: per
thousand gallons. The index for increase would be calculated
by dividing the base cost of 216 per thousand gallons into
one-half (t) the 2<: increase in cost, resulting in an increase
of 4.76% to the p'revious years' Volume Charge of 206 per
thousand gallons for the fourth fiscal year, equal to 20.956
per thousand gallons (I x 2 = 1 ~ 216 = .0476, then 206 x
1.0476 = 20.956).
5.3 As soon as reasonably practical, after each fiscal
year for which the contract price is subject to adjustment.~
the BOARD shall prepare a statement showing. in reasonable
detail the actual operating costs to produce Reclaimed Water
from effluent for the latest two fiscal years. For each such
year, the statement shall also spow (1) the number of gallons
in thousands of Reclaimed Water delivered to Reclaimed Water
users, (2) the cost per thousand gallons 'of Reclaimed Water
calculated by dividing Such operating costs by such gallons,
(3) the calculation of the ratio of change in cost per
thousand gallons from the earlier year to the later year, and.
(4) the calculation of the adjusted price for the later year.
This statement shall be-deemed to be the responsibility of the
BOARD, and the BOARD's Executive Director shall attest in
writing to the propriety of the costs and calculations shown
thereon.
5.4 By January 15 of each year, the BOARD'S Executive
Director shall submit to RECIPIENT the supplemental statement
set forth in the preceding paragraph, together with the
attestation thereto by the BOARD. At the same time, the
BOARDS Executive Director shall submit to RECIPIENT a bill or
credit ShOWing ( 1) the amount paid by the RECIPIENT for
Reclaimed Water delivered in the current fiscal year, (2)the
amount payable for Reclaimed Water delivered in the current
fiscal year based on the adjusted price for the year as set
forth above, and (3)the difference. Any Such difference shall
1-23-96
REuS&\DELlVERZ_AGR
9
be either paid pr..ptly by the RECIPIENT, or
in the next billing to the RECIPIENT.
)wn as a credit
5.5 For billing purposes only prior to the d~termination
of actual costs for adjusting the Volume Charge, during each
year subject to price adjustment, the BOARD may use a
tentative pric2 per thousand gallons based on using budgeted
costs for the current year in the price adjustment calculation
set forth above.
5.6 RECIPIENT, at its own expense, has the option of
examining the financial statements, general books and related
records, and production records of the BOARD.
5.7 Notwithstanding the above provlslons, the price paid
by the RECIPIENT for Reclaimed Water shall be adjusted
downward in the event the BOARD offers Reclaimed Water to any
other non-governmental customer(s) upon substantially similar
terms and conditions for the same use of the Reclaimed Water
at a lower charge than RECIPIENT is or will be paying under
this Section 5. Such downward adjustment shall be made to
guarantee RECIPIENT that no other user.of Reclaimed Water for
similar purposes shall receive a more favorable charge than
will also be given to RECIPIENT under similar circumstances.
5.8 To the extent that the BOARD receives governmental
or environmental noncapital improvement subsidies which are
provided to the BOARD for encouraging wastewater reuse and
which are intended to be applied pursuant to the terms of such
grant or subsidy to the operational costs of the Reclaimed
Water facility, as opposed to capital improvements or
expansion of such Reclaimed Water facility, the BOARD will
apply such funds, to the extent dllowed, to its Reclaimed
Water facility operating costs.
5.9 The parties to this Agreement .agree and recognize
that RECIPIENT is under no legal or other-obligation to enter
into this Agreement for reuse of wastewater. RECIPIENT
currently has operating permits from FDEP and the Water
Management District to pump surface and ground water for all
RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump
this surface and ground water is substantially less than the
cha-rges RECIPIENT will pay for Reclaimed Water under this
Agreement. RECIPIENT'S only consideration and motivation to
e~ter into this Agreement is to insure sufficient irrigation
water by receiving its full allocation of Reclaimed Water on
demand in accordance with the rate and delivery conditions set
forth in this Agreem~nt,.free from adverse environmental or
climatic impact. RECIPIENT has determined that the benefits
of this Agreement are only marginally economically feasible.
Therefore, if as a result of any action by the BOARD, the City
of Delray Beach or the City of Boynton Beach, RECIPIENT would
be required to pay charges in excess of those established
under Section 5, then RECIPIENT shall have the option of
canceling this Agreement upon sixty (60) days advance written
notice to the BOARD.
7-23-96
REUSE\DELIVERZ.AGR
10
SECTION 6. Inspt. .:ion. BOARD shall have tl right to enter
RECIPIENT's propertYr upon proper identification and at any
reasonable time, in order to inspect the irrigation system as
may be necessary or desirable for the operationr safety r
protection, or preservation thereofr to determine compliance
with any law, order or regulation of any governmental
authority having juriSdiction, and for sampling at any
monitoring wells located on the property. RECIPIENT shall have
the right to enter the BOARD's plant and properties and the
right of access to its wastewater facilities and recordsr at
any reasonable timer for the purpose of determining whether
the BOfu~D is in compliance with this Agreement.
SECT:tON 7. Assignments. This Agreement can be assigned by
RECIPIENT only with the prior written approval of BOARD, but
such approval shall not be unreasonably withheldr provided the
aS$ignee shall assume this Agreement and shall demonstrate to
BOARD its financial ability, to comply with the provisions
hereof. .
SECTION 8. Notices; Proper Form. Any notice required or
allowed to be delivered hereunder shall be in writing and
shall be deemed to be delivered when (T) hand delivered to the
official hereinafter designated, (2) upon receipt of such
notice when deposited in the United States mail, postage
prepaid, certified mail, return receipt requested, addressed
to a party at the address set forth opposite the party' name
below, or at such other address as the. party . shall have
specified by written notice to the other party delivered in
accordance herewith:
BOARD
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
Executive Director
1801 North Congress Avenue
Delray Beach! FL 33445
RECIPIENT
PINE TREE GOLF CLUB
C/O Club Manager
10600 Pine Tree Terrace
Boynton Beach, FL 33436
'.
.,
COpy TO:
Boynton Beach City Manager
P.O. Box 310
Boynton Beachr FL 33425-0310
COpy TO:
Delray Beach City Manager
100 N.W. 1st Avenue
Delray Beach, FL 33444
7-23-96
REUSE\DELlYERZ_AGR
11
COPY TO:
Robert W. Federspiel, Esq.
501 East Atlantic Avenue
Delray Beach, FL 33483
SECTION 9. Notices; Default. Each of the parties hereto shall
give the other party written notice of any defaults hereunder
and shall allow the defaulting party 30 days from the date of
receipt to cure such defaults, except failure to deliver water
on demand.
SECTION 10. Default by Either Party. If any party hereto fails
to perform or comply with any of the conditions of this
Agreement, and if the nonperformance shall continue for a
period of thirty (30) days after the written notice thereof to
the, non-performing party, or if the performance cannot be
reasonably completed within the 30-day period, or if the non-
performing party does not in good faith commence performance
within the 30-day period anq does not diligently proceed to
complete performance, the non-performing party shall be in
default or breach of this Agreement.
SECTION 11. Indemnification. In the event RECIPIENT shall fail
to comply with any reuse water rule or regulation of any
Federalr State or County or local agencies, except BOARD, or
violate any permit granted with regard to the use of the
irrigation system on the RECIPIENT's property, then RECIPIENT
shall indemnify the BOARD, its officers ~ governing board,
employees and agents against all claims, demands, causes of
actions, suits, judgments, fines, penalties, or lossesr
including all costs suffered or incurred by the BOARD by
reason of such failure. In the event the BOARD shall fail to
comply with any rule, regulation, order of any Federal, State
or County or local agency, or fail tod~liver water meeting
the quality standards provided by this Agreement, then the
BOARD shall, to the extent allowed by -law, indemnify the
RECIPIENT, its officers, board of directors, employees and
agents against all claimsr demands, causes of actions, suits,
judgments, penalties, fines, or losses suffered or incurred by
the RECIPIENT as reason of such failure.
SEC~ION 12. Remedies of Default. If either party hereto shall
be in default hereunder ~s set forth in Section 10, then the
ot~er party shall have the following remedy: bring suit for
th~ breach which has occurred without affecting the
obligations of the party to perform the balance of the
Agreement. The parties shall have the right not only to
injunctive relief, but also to recover any damages which a
party may incur as a result of the breach of this Agreement by
the other party. The parties further agree that any litigation
shall be brought in Palm Beach County, Florida, only, and the
parties agree that the proper venue for any such action would
only be in Palm Beach County, Florida. The parties further
waive any right to Jury trial they may have in any action
among them involving this Agreement or the alleged breach
thereo f .
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REUSE\DELIVER2.J\GR
12
SECTION 13. Dis, ..1imers of Third Party Be: :~ciaries. This
Agreement is solely for the benefit of the formal parties
hereto and no right or cause of action shall accrue upon or by
reason hereof or to or from or for the benefit of any third
party not a formal party hereto.
SECTION 14. Severability. If any part of this Agreement is
found invalid or unenforceable by any court, such invalidity
or unenforceability shall not affect the other parts of this
Agreement.
SECTION 15. Applicable Law. This Agreement and the provisions
contained herein shall be construed / controlled and
interpreted according to the laws of the State of Florida.
SECTION 16. Entire Agreement. This agreement contains the
entire Agreement between the parties hereto with respect to
this transaction and supersedes all prior negotiations and all
prior written or oral understandings.
SECTION 17. Amendments. This Agreement may only be amended,
supplemented or discharged by an instrument in writing signed
by all parties hereto.
SECTION 18. Recordation. This Agreement or a mutually
agreeable memorandum thereof wi.ll be recorded in the public
records of Palm Beach County/ Florida.
SECTION 19. Extent of Agreement. Each party shall advise the
other party, in writing, as to the status of its construction
document preparation and construction of associated
improvements on a monthly basis to ensure that both parties'
activities are progressing with reasonable diligence.
SECTION 20. Completion Date. The Board agrees to use its best
efforts have its Reclaimed Water facilities completed and
available for use for RECIPIENT and RECIPIENT agrees to use
its best efforts have its Irrigation System complete and to
accept delivery of Reclaimed Water from the BOARD on or before
November 1, 1997, subject to matters beyond the reasonable
control of either party.' Notwithstanding any provision of
this Agreement to the_contrary, the RECIPIENT shall have the
absQlu,te obligation to conunence payments for the reclaimed
water upon the completion of construction as provided for in
Section 3.5 above.
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
By: ;::]::;;,..~& ~.... 7~
Chainnan
7-23-96
REUSE\DELlVERZ .AGR
13
APPROVED AS TO FORM:
" .A1-
-<:~~
/ !
Board Attorney
APPROVED BY: /
" /.
L J~U~
Ci tY/0f D~'lray l?fi'ach T Mayor
AP;~~VED/BY : ~. .
. , ' -------- /;/
/, ~_. .,
.' '>~""; /"/ ~^l<->-1~/ cr-"'""----.
Ci:tY:- of/r6;nton/~€i~ch, Mayor
./~./ /~;i
/ /
:/
PI:?w.+N~
By :~_~~/-'C_,,'- . 'z _/,1.,~.-I A
. ,r-
7-23-96
REUSE\DELIVER2 ..llGR
14
ASSIGNMENT AGREEMENT
~ 11-
J.\05-087 ~
THIS ASSIGNMENT AGREEMENT is made and entered into this __ day of
,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with Quail
Ridge Country Club, concerning delivery and acceptance of reclaimed water dated the 5th day of
August, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water
Agreement;" and
WHEREAS, the BOARD is modifying its reclaimed water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD, .whereby the BOARD will provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intendS to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shall assume all of the rights, duties and obligations of the BOARD under said
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective the 1st day of October, 2005.
-
, 2.. BOYNTON hereby agrees to accept and assume all rights, benefits and obligations
created under the said Reclaimed Water Agreement pursuant to this assignment.
.-: ~. IN WITNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
SOU CENTRAL REGIONAL W ASTEW A TER
TREATMENT AND DISPOSAL BOARD
B~ c: ~-/u ~
P. dN 0
nnte ame: M"i.... C "'e....g.lson
Chairman
APPROVED AS TOlORM
B~it~meY '---"
ATTESTED BY:
Secretary
APPROVED AS TO FORM
City Attorney
1~
CITY OF BOYNTON BEACH
By:
Mayor
2. '.' '.'~! ~-:?~ t]
7
FIRST AMENDMENT AND RESTATEMENT OF
--- AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL
wAsTEWATER TREATMENT AND DISPOSAL
BOARD AND QUAIL RIDGE COUNTRY CLUB
CONCERNING DELIVERY AND ACCEPTANCE
OF RECLAIMED WATER
THIS FIRST AMENDMENT AND RESTATEMENT of that certain
AGREEMENT dated January 18, 1996, is made and entered into on this
J5 day of .stv~n~ , 1997, by and between South
Central Regional astewater Treatment and Disposal Board, a
municipal corporation created pursuant to the laws of the State of
Florida '(hereinafter BOARD), and Quail Ridge Country Club, Inc.
(hereinafter RECIPIENT).
WIT N E SSE T H:
WHEREAS, the BOARD and RECIPIENT have heretofore entered into
that certain Agreement Concerning Delivery and Acceptance of
Reclaimed Water dated January 18, 1995; and
WHEREAS ~ RECIPIENT has requested an Amendment to. such
Agreement to provide for'additional volumes of reclaimed water in.
order to allow RECIPIENT to supply reclaimed water for landscape
irrigation purposes to the Quail Ridge Property Owner's
Association, Inc. , (the "POA"), pursuant to the contractual
relationship between RECIP!ENT and the PDA; and
WHEREAS, the BOARD is agreeable to amending said Contract to
provide the additional volumes requested pursuant to the terms and
conditions set forth in this Amendment.
Accordingly, for and in consideration of the recitals
contained herein, mutual understandings and agreements contained
herein, and other consideration, the receipt and sufficiency.of
which is: hereby_ .acknowledged by)the, Parties, the Parties covenant
and agre~ as follows: - '. ';
SECTION 1. Recitals. The below recitals are true and correct
and fo:gq a material 'part of this Agreement.
1.1 The Parties hereto represent to one another that each has
the full power and authority to enter into this Agreemeht and to
carry out their respective obligations thereunder. The BOARD is
composed of the Ci ties of Boynton Beach and Delray Beach (the
"Cities"), pursuant to an Interlocal Agreement entered into
pursuant to Chapter 163, Florida Statutes.
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Reuse/Quail.rdg/restatement.amd
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8
1..2 The parties recognize that reuse of Reclaimed Water is in
the public interest, as it recaptures. an otherwise wasted and
unused water resource. The BOARD owns and operates wastewater
facilities which it proposes to upgrade to produce Reclaimed Water
suitable for irrigation of areas, such as golf courses, parks,
school grounds, cemeteries, and landscaping irrigation, and
RECIPIENT is willing to accept such Reclaimed Water for irrigation
purposes in the public interest.
1.3 In a normal year, RECIPIENTS will irrigate approximately
240 days and most of RECIPIENT'S daily requirements will be needed
during approximately 12 hours commencing about sundown, BOARD
agrees to use its best efforts to supply Reclaimed Water on demand
to REC1PIENT up to the volume and at the charge set forth in this
Agreement. RECIPIENT has valuable golf courses that require access
to such Reclaimed Water and has expended sUbstantial money and
effort and has foregbne other avenues to meet its irrigation
requirements in reliance on this Agreement. The BOARD is not
required to upgrade its wastewater system to produce Reclaimed
Water but is doing so in reliance upon the RECIPIENT entering into
this Agreement.
1.4 (a) The RECIPIENT owns and controls land (the "Property")
which is described in Exhibit "A", attached and made.a part hereof
by reference; (b) The RECIPIENT by contractual relationship will
have obtained the right to provide reclaimed water for landscaping
irrigation purposes to the POA's properties (the "POA Property")
which lie within the property described in Exhibit "A."
1 . 5 RECIPIENT agrees to: (a) irrigate the Property and
provide reclaimed water' for irrigating the POA. Property using
Reclaimed Water; (b) maintain the storage facility, if applicable,
ponds and lakes, if applicable, pumps and irrigation system to be
located on the Property from the point of delivery; and (c) upgrade
its irrigation system when reasonable and economical to utilize the
volume of Reclaimed Water accepted from the BOARD and as required
to .meet any federal, state, or local requirements, (d) maintain
compliance with the operating restrictions for protecting human
health and the environment attached thereto as Exhibit "B."
1.6 RECIPIENT shall accept the Reclaimed Water delivered by
the BQARD and use .Lt for irrigation of the P;roperty and the POA
Property. The BOARD shall be deemed to be in possession and
control of the Reclaimed Water until it shall have been delivered
to the RECIPIENT at the Point of Delivery. After.such~delivery,
the RECIPIENT shall be deemed to be in possession and control
thereo f .
1.7 The RECIPIENT agrees to maintain all Federal, State and
governmental permits issued to it and necessary to allow it to
4-9-97
Reuse/Quail.rdg/restatement.amd
2
9
receive and utilize the Reclaimed Water pursuant to the terms of
this Agreement.
1.8 The right of the RECIPIENT to sell, transfer or encumber
the Property .in areas irrigated with the Reclaimed Water shall not
be res tr icted by this Agreement. This Agreement shall run with the
land so long as the use of a major portion of the Property shall
continue to be for golf Course and related purposes. Any
subsequent party in interest to such golf course or courses shall
be obligated to receive and pay for Reclaimed Water under the same
terms and conditions of this Agreement, unless modified by mutual
consent of the BOARD and the buyer or tranSferee.
1.9 METER. The design and construction of. the metering
facility shall be the responsibility of the BOARD and must be
mutually approved in advance in writing by BOARD and RECIPIENT. The
meter will be utilized to measure the amount of Reclaimed Water
delivered by the BOARD to RECIPIENT and the BOARD shall operate,
maintain, cause to be calibrated, and repair said meter.
1.10 CONSTRUCTION. Upon completion of the engineering design
of the metering faCility, and the acceptance of Sante by both
parties, the metering facility will be constructed by the BOARD and
placed into service.
1.11 COSTS AND OPERATION. The BOARD shall bear the cost of
constructing, Owning and maintaining the Recl.aimed Water meter and
.related appurtenances and the lines interconnecting BOARD's system
into the metering faCility, including all valves and appurtenances
up to and including the discharge flanges of the valves immediately
downstream of the meter. . The parties agree that the RECIPIENT
shall have reasonable access to the metering faCility, to all.
other Reclaimed Water meters, check valves, and any other
appurtenances thereto, to verify flows, meter readings, meter
calibrations, efficiency of the check valves, and any other
perfonnance data necessary to the operations of the Interconn:ection
faci.lity upon reasonable advance notice to ~ the Board. The ~metering
device shall be tested and-.calibrated, at~.BOARD~s ,'expense, ,'tat::; ,leasti,t,;:> ..'
once per 'year and repaired :;if.~xequil:ed. 'An.y~'eo:ors;.:in.meter:'.reading::,~ ,.~,.
and any discrepancy in. meter results from a true' and correct
measure of ReClaimed Water flow to RECIP!EN'r shall be. adjusted
properr~ and retroactively to reflect the flow to RECIPIENT. Any
. incorrect metering device shall be repaired forthwith by the BOARD.
1.12 . This agreement has been duly authoriz~d by all named
parties. Pursuant to Section 3 (C) of the Interlocal Agreement
dated December 26, 1974, between the City of Boynton Beach and the
City of Delray Beach, this Agreement and all provisions thereof
have been contractua11y approved by a majori.ty vote of each City
Council as the act of each City, or, if Such approval has not
4-9-97
Reuse/Quail.rdg/restatement.amd
3
10
already been obtained, such approval will be obtained and certified
to RECIPIENT before this Agreement shall become effective.
SECTION 2. Definitions. The parties agree that in construing this
Agreement, the following words, phrases and terms shall have the
following meanings, unless the context requires otherwise:
2 . 1 "Agreement" means this Agreement between BOARD and
RECIPIENT.
2.2 "FDEP" means the Florida Department of Environmental
Protection, and its successors.
2.3 "Fiscal Year" means October 1 to September 30 of the
following year.
2.4 "GPD" means gallons per day.
2.5 "Irrigation system" means those pump stations, lines,
pipes, sprinkler heads, ponds and lakes, storage facilities, if
applicable, and pertinent equipment that are located on RECIPIENT's
property and used to store, spray and irrigate' with Reclaimed Water
that has been treated. in accordance with all applicable
governmental regulations and in. accordance wi th the terms and
provisions of this Agreement.
2 . 6 "MGD" means million gallons per day.
2.7 "Point of delivery" means the point at the meter which
divides the BOARD's wastewater facilities from the RECIPIENT's
irrigation system, or as otherwise noted on engineering drawings
approved by both parties.
2.8 "Reclaimed Water" means wastewater that has been treated
in accordance with Section 3.4 of this Agreement.
2.9 "Reclaimed Water Disposal Facilities n means those
facilities necessary for the. storage, .if.,applicablei transportation
and dis:gosfil of wastewater' previously treated'-in;"-accordancewith
applicable local, state and' federalstancliirds and limttation at the
plant to the standard of Reclaimed Water. These factii ties include,
but a~e not limited to, any Reclaimed .Water transmission
facilities, irrigation systems and storage facilities, if
applicable.
2.10 "Reclaimed Water Transmission Fac.ilit'ies" means the
BOARD's facilities used to transmit Reclaimed Water.
2.11 "Storage Facilities" means those facilities which may be
designed, permitted and constructed on the Property and the POA
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Reuse/Quail. rdg/restatement. amd
4
Property, if applicable, or upon the BOARD's property, if
applicable., and which are necessary to store and hold Reclaimed
Water in a manner that complies with regulatory requirements.
11
2.12 "Wastewater" means the product received by the wastewater
treatment facility for treatment.
2.13 "Wastewater Facilities" means the BOARD's plant located
at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed
Water transmission facilities, including all interceptors, lines,
pipes, meters, cOuplings, pumps, force mains, and appurtenant
equipment necessary to treat and transmit the Reclaimed Water.
SECTION 3. Grant of License and Easement. RECIPIENT hereby grants
to BOARD an easement over the Property including a 15 foot utility
easement to be mutually agreed upon and located in the apprOXLmate
location depicted on Exhibit "C" attached hereto, to allow
construction, operation, maintenance and .repair of the BOARD's
Reclaimed Water transmission main to the point of delivery, and the
right to transmit, deliver and dispose of Reclaimed Water through
the irrigation system and storage faCility, if applicable, on the
Property in accordance with and subject to the following
conditions:
3.1 Desi and installation of Certain Facilities. BOARD
agrees to design, permi t, install and operate improvements and
additions at its existing wastewater treatment plant, and the
BOARD's Reclaimed Water transmission facilities, and to Penult
effluent disposal facilities in order to provide Reclaimed Water at
the point of delive.x:y. RECIPIENT agrees to deSign, permit, install
and operate, at its sole expense, any storage faCility, if
applicable, and the irrigation system on the P~operty and the POA
Property up to the point of delivery.
3.2 Permits and A roval for the Irri ation S stem.
Recipient shall be .responsible, in cooperation with Board, for
obtaining and maintaining necessary governmental permits and
approvals in;orderto install and operate the irrigation system:
provideq,. .however,q :that .Board shall be responsible for obtaining
and maintaining all permits for Reclaimed Water disposal
faCilities. For all. wastewater facilities located on its side of
the poiJ;lt of delivery, Board shall be solely responsible for
obtai.n.i'ng, compiling, Providing .and complying-with all monitoring,
sampling, testing, and, reporting requirements for the Reclaimed
Water, which may be imposed by government law, rule, permit, or
approval.. Recipient shall grant Board upon reasonable advance.
notice to RECIPIENT access to the irrigation system as 'needed to
assure continued compliance with applicable laws and regulations,
inc~uding, but not limited to, any monitoring or testing
reqUirements.
4-9-97
Reuse/Qua~1-rdg/restatement.amd
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12
3.3 Delivery of Reclaimed Water. BOARD agrees to use its best
efforts to make available and deliver in the volume and at the
times requested, an annual volume of Reclaimed Water of at least
584,000,000 gallons (MGY), with maximum volume anyone day up to
but not to exceed 3,690,000 (1,230,000 north connection and
2,460,000 south connection respectively) gallons per day (GPD), at
a rate of 7,688 (2,563 north connection and 5,125 south
connection respectively) gallons per minute (GPM), for use on the
Property and the POA Property and, at its co~t, to connect the
BOARD's Reclaimed Water transmission facilities to RECIPIENT's
irrigation system at the point(s) of delivery agreed upon and as
shown in Exhibit "C". Both RECIPIENT and BOARD recognize that water
supply ,and demand will vary depending on a number of factors,.
primarily climatic conditions.
3.4 Quality of Reclaimed Water. BOARD shall make available
to RECIPIENT Reclaimed Water of a quality consistent with the
requirements of "public access" treatment levels as set forth in
Chapter 62-610, Florida Administrative Code, or its successor Code
provisions, or of a quality consistent with more stringent
requirements that may be imposed by any governmental agency having
jurisdiction and legal authority. In recognition of the need to
supply Reclaimed Water, the BOARD shall also be required to comply
with effluent limitations set forth in Exhibit "0". All Reclaimed
Water made available by BOARD under this Agreement shall ( at a
minimum, have been treated by advanced treatment methods to remove
harmful levels of bacteria, viruses, and other constituents or
pollutants which could constitute a danger to human health, and" in
accordance with all applicable federal, state and local laws,
rules, regulations, policies, ordinances, resolutions, orders and
permits and the requirements of Exhibit "D". BOARD shall provide
continuous monitoring of chlorine and turbidity, as well as other
required ground and surface water quality sampling and monitoring
of Reclaimed Water as required by local, state and federal
regulations and by Exhibit "0". BOARD agrees to divert away as
expeditiously as possible, from the irrigation system, any
Reclaimed Water which does not comply with the terms and
conditions of this Agreement or which does not meet the applicable
state, ,f~?eral-or local laws and regulations and.to promptly and
fully notify RECIPIENT of such action. Copies of all- test results
shall be available to RECIPIENT upon request.
<...,
3.5 Minimum Purchase of Reclaimed Water by RECIPIENT. Upon
receipt of all necessary governmental permits and,,'approvals by all
parties and completion of construction of wastewater facilities and
continuing for so long as BOARD complies with the requirements set
forth ~n this Agreement, RECIPIENT has an obligation to pay for at
least 440,000,000 million gallons annually of Reclaimed Water for
spray irrigation on the Property and the POA Property, subject to
condi tions as set forth in Section 3. 3 of this Agreement.
4-9-97
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13
Notwithstanding anything to the contrary, Recipient shall not he
obligated to accept delivery of or pay for Reclaimed Water which
does not comply with the terms and conditions of this agreement.
Such exception to RECIPIENT'S obligation to accept delivery of such
Reclaimed Water by reason of the Board's failure to meet the water
quality standards required in this Agreement shall relieve
RECIPIENT of its obligation to pay BOARD for the minimum annual
volume set forth above at the rates determined pursuant to
Paragraph 5 below only to the extent that the BOARD shall not have
made available to RECIPIENT such annual minimum volume of Reclaimed
Water meeting the requirements of this Agreement through the
completion of the 'then current fiscal year. Recipient shall not
transfer, the water provided by Board to any third party for use off
of the Recipient's or the POA Property. Notwi thstanding the
foregoing, the minimum purchases as above described shall be broken
down into two (2) phases:
a. Phase I - for the irrigation of the Property (the
golf courses) the RECIPIENT obligation shaLl commence at the time
and in the manner as specified in this Agreement with respect to
180,000,000 million gallons year (MGY).
b. Phase I~ - for the irrigation of the Property and
the POA Property the minimum obligations as described above shall
be increased to 440,000,000 million gallons per year (MGY) upon
connection of the supply lines from the RECIPIENT system to the
POA's delivery system, provided that such connection and increase
in the obligation shall occur not later than
six months (6) fOllowing the delivery of Reclaimed Water for Phase
I, above.
3. 6 RECIPIENT shall be responsible for all maintenance of
water and its irrigation system on RECIPIENTS side of the point(S)
of delivery.
3.7 Nothing in this Agreement shall be construed to g-tve
RECIPIENT any right to the exclusive receipt of BOARD's Reclaimed
Water supply.
".
3.8' The BOARD agrees 'that it will not enter into contracts
with other recipients of Reclaimed Water for more than its daily
SUpply.::gapaci ty as the same exists from time to time. .
SECTION 4. Term and Fees
4.. 1 Term. The Easement and this Agreement shall be in effect
for a period of twenty (20) years commencing on the date of
execution of this Agreement. The term' of the Easement and this
Agreement shall be automatically extended for successive periods of
ten (10) years each, upon the same terms and conditions as herein
4-9-97
Reuse/Quail.rdg/restatement.amd
7
'-4
provided, unless either party hereto notifies the other by
certified mail at least three years prior to the expiration of the
initial term of this Agreement or any renewal thereof, that this
Agreement shall not be so extended.
4.2 Payment of Fees. In return for and in consideration of
BOARD's construction of facilities and delivery of Reclaimed
Water, RECIPIENT agrees to pay BOARD a one-time connection fee of
Six Thousand Five Hundred Dollars ($6,500.00) for the north
connection, and Nine Thousand Dollars ($9,000.00) for the south
connection, and a volume charge of 20e for each 1,000 gallons of
Reclaimed Water used (the "Volume Charge"), but on an annual basis
not less than the above rate times the minimum quantity RECIPIENT
has agreed to purchase under Section 3.5, together with a storage
charge equal to 8e (the "Storage Charge") for each 1,000 gallons of
Reclaimed Water the Volume Charge for which is paid for by
RECIPIENT, as provided above. Such Storage Charge shall remain
constant and shall not be adjusted during the term of this
Agreement or any extension hereof. Payment of the connection fee
shall be in one lump sum no later than the commencement of
construction of the modification to the BOARD's wastewater
facilities for the treatment and production of Reclaimed Water.
The Volume Charge shall remain constant until the expiration of
the third ( 3 ) fiscal year from the commencement of pumping
(provided that if less than six (6) months expires between the time
BOARD commences or makes available delivery of Reclaimed Water and
the end of the first fiscal year, such first year shall not count
as the. first fiscal year), after which the price will ~be
redetermined as provided in Section 5. The BOARD shall render
billings. to RECIPIENT for the volume charge on a monthly basis for
such applicable charg.es on the basis of tn-e greater of the actual
Reclaimed Water delivered or the volume charge for 1/12th of the
minimum guaranteed annual volume agreed to be accepted by RECIPIENT
pursuant to Section 3.5 above; provided that RECIPIENT shall pay no
more, on. a fiscal year basis,. than ( i) such minimum annual
guaranteed volume charge or (ii) charges for Reclaimed Water
actually accepted during_the fiscal year, whichever is more.
. ,
4 .3' In the event the . BOARD shall not be. able to deliver
ReclaImed Water in the m2nimum volume agreed to in Section 3.5 of
this Agreement, as a result of its inability to do so and through
no actIon or inaction on the part of the RECIPIENT, the RECIPIENT
shall be entitled to a credit for such shortage in the minimum
agreed to volume (by a proportionate reduction).
SECTION 5. Future Adjustment of Price of Reclaimed Water.
The Volume Charge shall be adjusted after the first three (3 )
fiscal years as aforesaid upward or downward based on one~half (!)
of the year-to-year change in the . actual operating costs of
producing, metering and delivering Reclaimed Water from effluent
4-9-97
Reuse/Quail:rdg/restatement.amd
8
and transmitting it to the point of delivery for the RECIPIENT as
it relates to the preceding year's Volume Charge, however, sUch
Volume Charge shall never'be less than 20e per thousand gallons nor
shall an increase be applied if the actual operating costs shal~ be
less than said 20e per thousand gallons. The first such adjustment
shall Occur effective the first day of the fourth fiscal year
fol~owing the initia~ de~ivery of Reclaimed Water to RECIPIENT and
sha~l reflect one-half (!) the relative increase or decrease in
actnal operating costs incurred by tbe BOARD during the second
fiscal year of delivery of Reclaimed Water to RECIPIENT as
compared to the third fiscal year and for each subsequent year
thereafter as compared to the previous year. The actual operating
cost and change therein shall be the basis for determining the
index for making the adjustments in the VOlume Charge. Actua~
operating costs ("Actual Operating Costs ") shall be determined in
conformity with generally accepted. acConnting princip~es
consistently applied, except the depreciation of plant and
equipment and any other provision for capital recovery, inc~nding
interest on ~ongterm debt, shall not be included as operating
costs, as such costs are properly allocable to wastewater
Customers. Any increase or decrease in the Volume Charge shall be
determined as Soon as reasonably practicable and Shall be effective
retroactive to the scheduled date of adjustment and a sum due to
the BOARD as a result of the retroactive effect of snch adjustment
Or the credit due the RECIPIENT, if appliCable, shall be reflected
in the next billings regularly submitted by BOARD to RECIPIENT as
provided in Subparagraph 5.4.,,<
5.1 BOARD personnel shall establish, or cause to be
establiShed, and maintain an accounting system in which Such
current operating costs are recorded monthly in separate accounts
from sewage processing accounts. Costs sha~~ be, reCOgnized on a
first-in first-out basis. The BOARD personnel shal~ prepare and
preserve any studies re~ating to the a~~ocation of operating COSts
on other than an actually incurred basis. By way of example, . the
parties' agree that a~~ operating and maintenance costs of ~abor,
chemica~s and power, permits, regu~atory requirements, ~ega1,
engineering, administration, testing, meter Calibration and
contract, .services may be 'allocated based' on ,appropriate 'data or
studies.' Such current, operating costs sha~~ be recOrded on a
consistent basis 'from month to month and year to year, and the
tota~ 1i,!r each fisca~ year shall be used to ca~cn~ate a cost per
thousarid ga~lons of Rec~aimed Water de~ivered beginning with the
second fiscal year after the plant starts to deliver Reclaimed
Water to RECIPIENT.
5.2 By way of examp~e, if delivery begins on October 6,~996,
the third fiscal year thereafter WOU~d be October 1, 1998 to
September 30, 1999. Assume that the actual cost of producing
ReClaimed Water for the fiscal year October 1, 1991 through
4-9-97
Reuse/Quail-rdg/restatement_amd
9
15
1 r~
September 30, 1998 was. 216. Further, assume that the Actual
Operating Cost of producing and delivering Reclaimed Water to
RECIPIENT during the second fiscal year to the end of the third
fiscal year (October 1, 1997, through September 30, 1999) increased
from 216 per thousand gallons to 236 per thousand gallons. The
index for increase would be calculated by dividing the base cost of
21e per thousand gallons into one-half (!) the 26 increase in cost,
resulting in an increase of 4.76% to the previous years' Volume
Charge of20e per thousand gallons for the fourth fiscal year,
equal to 20.956 per thousand gallons (! x 2 = 1 7 216 = .0476, then
20e x 1.0476 = 20.956).
5.3 As soon as reasonably practical, after each fiscal year
for which the contract price is subject to adjustment , the BOARD
shall prepare a statement showing in reasonable detail the actual
operating costs to produce Reclaimed Water from effluent for the
latest two fiscal years. For each such year, the statement shall
also show (1) the number of gallons in thousands of Reclaimed Water
delivered to Reclaimed Water users, (2) the cost per thousand
gallons of Reclaimed Water calculated by dividing such operating
costs by such gallons, (3) the calculation of the ratio of change
in cost per thousand gallons from the earlier year to the later
year, and (4) the calculation of the adjusted price for the later
year. This statement shall be deemed to be the responsibility of
the BOARD, and the BOARD's Executive Director shall attest in
wri ting to the propriety of the costs and calculations shown
thereon.
5 . 4 By January 15 of each year ,the BOARD'S Executive
Director shall submit to RECIPIENT the supplemental statement set
forth in the preceding paragraph, together~with the attestation
thereto by the BOARD. At the same time, t.he BOARDS Executive
Director shall submit to RECIPIENT a bill or credit showing (l)the
amount paid by the RECIPIENT for Reclaimed Water delivered in the
current fiscal year, (2) the amount payable for Reclaimed Water
delivered in the current fiscal year based on the adjusted price
for the year as set fort~ above, and (3)the difference. Any such
difference shall be either paid promptly by the RECIPIENT, or shown~
as a credit in the next bi11ing to the RECIPIENT.
~.5 For billing purposes only prior to the determination of
actuaf costs. for adjusting the Volume Charge, during each year
subject to price adjustment, the BOARD may use a tentative price
per thousand gallons based on using budgeted costs for the current
year in the price. adjustment calculation set forth above~
5.6 RECIPIENT, at its own expense, has the option of
examining the. financial statements, general books and related
records r and production records of the BOARD.
4-9-97
Reuse/Quail.rdg/restaternent.amd
10
17
5.7 Notwithstanding the above provisions, the price paid by
the RECIPIENT for Reclaimed Water shall. be adjusted downward in the
event the BOARD offers Reclaimed. Water to any other non-
governmental customer ( s ) upon substantially similar terms and
conditions for the same use of the Reclaimed Water at a lower
charge than RECIPIENT is or will be paying under this Section 5.
Such downward adjustment shall be made to guarantee RECIPIENT that
no other user of Reclaimed Water for similar purposes shall
receive a more favorable charge than will also be ,given to
RECIPIENT under similar circumstances.
5.8 To the extent that the BOARD receives governmental or
environmental noncapital improvement subsidies which are provided
to the BOARD for encouraging wastewater reuse and which are
intended to be applied pursuant to the terms of such grant or
subsidy to the operational costs of the Reclaimed Water faCility,
as opposed to capital improvements or eXpansion of such Reclaimed
Water facility, the BOARD will' apply such funds, to the extent
allowed, to its Reclaimed Water facility operating costs.
5.9 The parties to this Agreement agree and recognize that
RECIPIENT is under no legal or other obligation to enter into this
Agreement for reuse of wastewater. RECIPIENT currently has
operating perinitsfrom FDEP and the Water Management District to
pump surface and ground water for all RECIPIENT'S irrigation needs
and RECIPIENT'S costs to pwnp this surface and ground water is
substantially less than the charges RECIPIENT will pay for
Reclaimed Water under this Agreement. RECIPIENT'S only
consideration and motivation to enter into this Agreement is to
insure sufficient irrigation water by receiving its full
allocation of Reclaimed Water on demand in accordance with the
rate and delivery conditions set forth in this Agreement, free
from adverse erivironmentiil or climatic impact -. RECIPIENT has
determined that the benefits of this Agreement are only marginally
economically feasible. Therefore, if as a result of any action by
the BOARD, the City of Delray Beach or the City of Boynton Beach,
RECIPIENT would be required to pay charges in eXcess of those
established under Section 5 r. . then RECIPIENT shall 'have ....the option
of cancel'.ing this Agreement upon sixty (60) days advance written
notice to 'the BOARD.
SECTION-' .6. Inspect:ion. BOARD shall have the right to enter
RECIP lENT's Property and the POA Property, upon proper
identification and at any reasonable time, in order to inspect the
irrigation system as may be necessary or desi;r:-able ,; 'for the
operation, safety, protection, or preservation thereof, to
determine compliance with any law, order or regulation of any
governmental authority having jurisdiction, and for sampling at any
moni toring wells located on the Property and the POA Property.
RECIPIENT shall have the right to enter the BOARD's plant and
4-9-97
Reuse/Quail.rdglrestatement.amd
11
I f~
properties and the right of access to its wastewater facilities and
records, at any reasonable time, for the purpose of determining
whether the BOARD is in compliance with this Agreement.
SECTION 7. Assignments. This Agreement can be assigned by RECIPIENT
only with the prior written approval of BOARD, but such approval
shall not be unreasonably withheld, provided the assignee shall
assume this Agreement and shall demonstrate to BOARD its financial
ability to comply with the provisions hereof.
SECTION 8. Notices; Proper Form. Any notice required or allowed to
be delivered hereunder shall be in writing and shall be deemed to
be delLvered when (1) hand delivered to the official hereinafter
designated, (2) upon receipt of such notice when deposited in the
United States mail, postage prepaid, certified mail, return receipt
requested, addressed to a party at the address set forth opposite
the party' name below, or at such other'address as the party shall
have specified by written notice to the other party delivered in
accordance herewith:
BOARD
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
Executive Director
1801 North Congress Avenue
Delray Beach~ FL 33445
RECIPIENT
QUAIL RIDGE COUNTRY CLUB
C/O Club Manager
3715 Golf Road
BOYnton Beach, FL 33436
COPY TO:
BOYnton Beach City Manager
P.O. Box 310
Boynton Beach, FL 33425-0310
COPY TO:
Delray Beach City Manager
100 N.W. 1st Avenue
Delray Beach, FL 33444
.,
~
COPY TO:
Robert W. Federspiel, Esq.
501 East Atlantic Avenue
Delray Beach, FL 33483
SECTION 9. Notices; Default. Each of the parties hereto shall give
4-9-97
Reuse/Quai1.rdg/restatement.amd
12
the other party written notice of any defaults hereunder and shall
allow the defaulting parLy 30 days from the daLe of receipL to cUre
such defaults, except failure to deliver water on demand.
19
SECTION 10. Default by Either Party. If any party hereLo fails Lo
perform or comply with any of the conditions of this Agreement, and
if the nonperformance shall continue for a period of thirty (30 )
days after the written notice tbereof to the non-performing party,
Or if the performance cannot be reasonably completed within the
3D-day period, or if the nonperforming party does not in good faith
commence performance within the 3D-day period and does not
diligently proceed to complete performance, the non-performing
party shall be in default or breach of this Agreement.
SECTION 11. Indemnification. In the event RECIPIENT shall fail to
comply with any reuse water rule or regulation of any Federal,
State or County or local agencies, except. BOARD, or violate any
permit granted with regard to the use of the irrigation system on
the RECIPIENT's Property and the POA Property, then RECIPIENT shall
indemnify the BOARD, its officers, governing board, employees and
agents against all claims, demands, causes of actions, suits,
jUdgments, fines, penalties, or losses, including all costs
suffered or incurred by the BOARD by reason of such failure. In
the eVent the BOARD shall fail to comply with any rule, regulation,
order of any Federal, State or County Or local agency, or fail to
deliver water meeting the guality standards prOVided by this
Agreement, then the BOARD shall, to the extent aHowed by law;
indemnify the RECIPIENT, its Officers, board of directors,
employees and agents against all claims, demands, causes of
actions, suits, jUdgments, penalties, fines, or losses Suffered or
incurred by the RECIPIENT as reason of Such failure.
SECTION 12. Remedies of Default. If either party hereto shaH be in
default hereunder as set forth in Section 10, then the other party
shall have the fOllowing remedy, bring suit for the breach which
has occurred without affecting the obligations of the party to
perform the balance of the Agreement. The parties shall have the
right not - only to - injunctive relief, but also to .reCover any
damages wh.lch a Party may ii1cur as a reSult of the breach of ,this
Agreement by the other party. The Parties further a!Jrj>e that any
litigation shall be brought in Palm Beach County, -Florida, only,
and th~iparties agree that the proper venue for any such action
WOuld only be in Palm Beach County, Florida; The parties further
waive any right to Jury trial they may have in any action among
them involving this Agreement or the aHeged breach theniof.
SECTION 13. Disclaimers of Third Party Beneficiaries. This
Agreement is solely for the benefit of the formal parties hereto
and no right or cause of action shall aCcrue upon Or by reason
hereof or to or from or for the benefit of any third party not a
4-9-97
Reuse/QuaiL.rdg/restatement.amd
13
formal party hereto.
SECTION 14. Severability. If any part of this Agreement is found
invalid or unenforceable by any court, such invalidity or
unenforceability shall not affect the other parts of this
Agreement.
SECTION 15". Applicable Law. This Agreement and the provisions
contained herein shall be construed, controlled and interpreted
according to the laws of the State of Florida.
SECTION.16. Entire Agreement. This agreement contains the entire
Agreement between the parties hereto with respect to this
transaction and supersedes all prior negotiations and all prior
written or oral understandings.
SECTION 17. Amendments. This Agreement. may only be amended,
supplemented or discharged by an instrument in writ~ng signed by
all parties hereto.
SECTION 18. Recordation. This Agreement or a mutually agreeable
memorandum thereof will be recorded in the public records of Palm
Beach County, FlDrida.
SECTION 19. Extent of Agreement. Each party shall advise the other
party, in writing,. as to the status of its construction document
preparation and construction of associated improvements on '.a
monthly basis to ensure that both parties' activities are
progressing with reasonable diligence.
SECTION 20. Compl.etion Date. The Board agrees to use its. best
efforts have its Reclaimed Water facilities completed and available
for use for RECIPIENT ?rrd RECIPIENT agrees to use its best efforts
to have its Irrigation System complete and to accept delivery of
Reclaimed Water from the BOARD on or before November 1, 1997,
subject to matters beyond the reasonable control of either party.
SECTION 21. Cross-Connection. RECIPIENT desires to connect its
south course irrigation system. with its north course irrigation
system, which will require crossing the Woolbright Road and L-26
canal_,~ In that the BOARD will also have to cross both rights-of-
way tot connect its reclaimed water transmission facilities to
RECIPIENT's irrigation system, the BOARD agrees to obtain a price
from its Contractor for the installation of. such pipe for
RECIPIENT. The RECIPIENT shall then be authorized to either
contract directly with the BOARD's Contractor for such pipe
installation or to obtain its own contractor.
4-9-97
Reuse/Quail.rdg/restatement.amd
14
21
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
. 1
/ .. i.
By: ti-LLz..-~Le j 1. / CL<J-L'.CAJ_<2..k.,
- cIJfi~an :J
APPROVED AS TO FORM:
//7/ ./?
';~ /./ /
I. :~. .
BoarcV Attorney I
QUAIL
RIDGE COUNTRY CLUB, INC.
a~1 u:i t~,
By:
APPROZ. D BY: ///'/./..._.//
- ~2-c::/,
.>f~ D-( ;?"'L~
Ci~:t>Ofp~lra:y/13each, Mayor
APPROVED BY:/
/ . / ./
/ /V
j' JJ2
//7
/?r-
Beach,
Mayor
""
4-9-97
Reuse/Quai1.rdg/restatement.amd
15
EXHIBIT B
OPERA TIN G RESTRJ as
Recipient shalJmaintaln compliance with the following operating restrictions for protecting
humaB health, welfare and safety, and the environment
l'\.
J. The public shall be notified of the use of reclaimed Wdter by posting advisory signs, notes
on score cards or other methods in accordance with Chapter ]7..{)]0.468 FAC.
2. Direct connections between the reclaimed water system and irrigation water system shall
not be allowed without the use of appropriate backflow prevention devices.
3. No cross-connection to potable water systems shall be allowed.
4. All reclaimed water valves and outlets sh~l be appropriately color coded and labeled in
accordance mth Chapter ]7:-6]0.470 FACto warn public and employees that the water
is not intended for drinking.
5. Setback distances to potable water supply wells and the use of low trajectory Dazzles shall
be in accordance with Chapter 17-6]0.471 FAC
6. The use of reclaimed water shall be consistent with all applicable federal, Sl.ate, and local
Jaws and reQUlations.
A:.:n4n::HlBIT.1l
Exhibit B
January J995
P"rc 1 of 1
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EXHIBIT 0
Enclosure
Board sh(ill monitor the reclaimed water for the follo\\"ing parameters and agrees to di\'en reclaimed
waler \\hich exceeds the specified limits.
Parameter Sampling Frequency Limitll)
Turbid iry Continuous 2 NTU
Chlorine Residual Continuous I (minimum)
C~oride Continuous 350
CBOD(7) Daily 2D
T5501 Daily 5
pH Hourly 6 to 7.5 units'~)
7.8 unitsl61
Aluminum Annual 1.0
Arsenic Annual 0.10
Beryllium Annual 0.10
Boron Annual 0.50
Cadmium Annual O.OJ
Chrr,miunl Annual D.I
Coball Annual 0.05
Copper Annual 0.2
Fluoride Annual LO
Iron Annual 5.0
Lead Annual 5.0
Lithium Annual 2.5
Manganese Annual 0.2
Molybdenium Annual 0.005
Nickel Annual 0.02
Selenium Annual 0.02
Vanadium l Annual 0.10
Zinc i Annual 2,0
Bicafbomne (as CaCO-) Annual 120
.>. (4)
Calcium Annual
Magnesium Annual (4)
Sodium Annual (4)
Sodium Adsorotion Ratio Annual 6 units
.(1)
Q)
(3)
(4)
(5)
(6)
Maximum concentration eXPressedinmgIL unless noted.
Carbonaceous Biochemical Oxygen Demand (CBOD).
Total Suspended Solids (TSS). .
Infonnation used in calculation of Sodium Adsorption Ratio (SAR).
Daily a\'erage
2-Hour duration
\\,:'.757~\EXHIBll.D
Exhibit D
January '995
Pa~ I of I
AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD
AND QUAIL ~IDGE COUNTRY CLUB
CONCERNING DELIVERY AND ACCEPTANCE
OF RECLAIMED WATER
THIS AGREEMENT is made and entered into on this Ig!~
day of ~j.,.,""lj4_L<-l 1996, by and between South Central
Regtonal Wastewatev Treatment and Dtsposal Board, a muntctpal
corporaUon created pursuant to the laws of the State of
Florida (hereinafter BOARD), and Quail Ridge Country Club,
(hereinafter RECIPIENT).
Accordingly, for and in consideration
contained herein, mutual understandings
contained herein, and other consideration,
sufficiency of which is hereby acknowledged
the parties covenant and agree as follows: .
of the recitals
and agreements
the receipt and
by the parties,
SECTION 1. Recil:als. The below recitals are true and
correct and form a material part of this Agreement.
1.1 The parties hereto represent to one another that each
has the full Power and authority to enter into this Agreement
and to Carry out their respective obligations thereunder. The
BOARD is composed of the Cities of Boynton Beach and Delray
Beach (the "Cities"), pursuant to an Interlocal Agreement
entered into pursuant to Chapter 163, Florida Statutes.
1.2 The Parties recognlze that reuse of Reclaimed Water is
in the public interest, as it recaptures an otherwise wasted
and unUsed water resource. The BOARD owns and operates
wastewater faciliUes which it proposes to~upgrade to produce
ReClaimed Water Suitable for irrigation of areas, Such as
golf courses, parks, school grounds and cemeteries, and
RECIPIENT is willing to accept Such Reclaimed Water for
irrigation purposes in the public interest.
1.3 In a nonna-l year, RECIPIENTS will irrigate
apprpximately 240 .days and most of RECIPIENT'S daily
requirements will be needed during approximately 12 hours
co_encing about sundown. BOARD agrees to USe its best
effoctsto SUpply Reclaimed Water on demand to RECIPIENT up to
1" ,i-,
the 'volume and at the charge set forth in this Agreement.
RECIPIENT has valuable golf courses that require access to
such Reclaimed Water and has expended Substantial money and
effort and has foregone other avenues to meet its irrigation
requtrements in reliance on this Agreement. The BOARD is not
required to Upgrade its waste~ater system to prOduce Reclaimed
Water but is doing so tn reliance upon the RECIPIENT entering
into this Agreement.
12-5-95
RRUSR/QUAILRIDGE/DRLVRRy.AGR
1
1.4 The RECIPIENT owns and controls land which is
described in Exhibit nA" (the >>Property"), attached and made
a part hereof by reference.
1.5 RECIPIENT agrees to: (a) irrigate the Property using
Reclaimed Water; (b) maintain the storage facility, if
applicable, ponds and lakes, if applicable, pumps and
irrigation system to be located on the Property from the point
of delivery; and (C) upgrade its irrigation system when
reasonable and economical to utilize the volume of Reclaimed
Water accepted from. the BOARD and as required to meet any
federal, state, or local requirements, (d) maintain compliance
with the operating restrictions for protecting human health
and the environment attached thereto as Exhibit "B".
1.6 Recipient shall accept tpe Reclaimed Water delivered
by the BOARD and use it for irrigation of the Property. The
BOARD shall be deemed to be in possession and control of the
Reclaimed Water until it shall have been delivered to the
RECIPIENT at the Point of Delivery. After such dglivery, the
RECIPIENT shall be deemed to be in possession and contro~
the reo f .
-1.7 The RECIPIENT agrees to maintain all Federal, State
and governmenta~ permits issued to it and necessary to allow
it ,to receive and utili~e the R~claimed Water pursuant to the
terms of this Agreement.
1.8 The right of the RECIPIENT to sell, transfer or
encUmber the Property in areas irrigated with the Reclaimed
Water shall not be restricted by this Agreement. This
Agreement shall run with the land so long as the use of a
major portion of the Property shall ~ontinue to be for golf
course and related purposes. Any.subsequent party in interest
to such golf course or Courses shall be obligated to receive
and pay for Reclaimed Water under the same terms and
conditions of this Agreement, unless modified by mutual
consent of the BOARD and the buyer or transferee.
'. )..9 METER. The design and construction of the metering
facility sha~l be the responsibility of the BOARD and must be
mutua~ly approved in advance in writing by BOARD and
",RECIPIENT. The meter will be utilized to measure the amount of
'~Reclaimed Water delivered by the BOARD to RECIPIENT and the
BOARD shall operate, maintain, cause to be calibrated, and
repair said meter.
1.10 CONSTRUCTION. Upon completion of the engineering
design of the metering facility, and the acceptance of same by
both parties, the metering facility will be constructed by the
BOARD and placed into service.
12-5-95
REUSRIQUAILRIDGR/DRLVERy.AGR
2
1.11 COSTS AND OPERATION. The BOARD shall bear the cost of
constructing, owning and maintaining the Reclaimed Water meter
and related appurtenances and the lines interconnec.ting
BOARD's system into the meter ing f ac Hi ty , including all
valves and appurtenances up to and including the discharge
flanges of the valves immediately downstream of the meter. The
parties agree that the RECIPIENT shall have reasonable
aCcess to the metering facility, to all other Reclaimed Water
meters, check valves, and any Other appurtenances thereto, to
verify flows, meter readings, meter calibrations, efficiency
of the check valves, and any other performance data necessary
to the operations of the Interconnection facility upon
reasonable advance notice to the Board. The metering device
shall be tested and calibrated, at BOARD's expense, at least
once per year and repaired if required. Any errors in meter
reading and any discrepancy in meter results from a true and
correct measure of Reclaimed Water flow to RECIPIENT shall be
adjusted properly and retroactively to reflect the flow to
RECIPIENT. Any incorrect metering device shall be repaired
forthwi th by the BOARD. .
1.12 1~is agreement has been duly authorized by all named
parties. pnrsuant to Section 3 (C) of the Interlocal
Agreement dated December 26, 1974, between the City of Boynton
Beach and the City of Delray Beach, this Agreement and all
provisions thereof have been contractually approved by a
majority vote of each City Council as t~ act of each Ci~,
or, . if such approval has not already been Obtained, such
approval will be obtainei:l and certified to RECIPIENT before
this Agreement shall become effective.
SECTION 2. Definitions. The parties agree that in construing
this Agreement, the following words, phrases and terms shall
have the fOllowing meanings, unless the context requires
otherwise:
2 . I "Agreement" . means this Agreement between BOARD and
RECIPIENT.
. .
2 . 2. "FDEP" means 1;he Florida Department of Environmental
Prot~ctfonT and its SUccessors.
2.3 "Fiscal Year" means October I to September 30 of the
following year.
2.4 "GPn" means gallons per day.
2 . 5 "Irrigation system" means those Pump stations, Hnes,
pipes, sprinkler heads, ponds. and lakes; storage facilities,
if appliCable, and pertinent equipment that. are located on
RECIPIENT's property. and used to store, spray and irrigate
with Reclaimed Water that has been treated in accordance with
12-5-95
REUSBIQUAILRIDGE/DELVERY0 AGR
3
all applicable governmental regulations and in accordance with
the terms and provisions of this Agreement.
2.6 "MGD" means million gallons per day.
2.7 "Point of delivery" means l::he point at the meter
which divides the BOARD's wastewater facilities from the
RECIPIENT's irrigation system, or as otherwise noted on
engineering drawings approved by both parties.
2.8 "Reclaimed Water" means wastewater that has been
treated in accordance with Section 3.4 of this Agreement.
2.9 "Reclaimed Water Disposal Facilities" means those
facilities necessary for the storage, if applicable,
transportation and disposal of wastewater previously treated
in accordance with applicable local, state and federal
standards and limitation at the plant to the standard of
Reclaimed Water. These facilities include, but are not limited
to, any Reclaimed Water transmission' facilities, irrigation
systems and storage facilities, if applicable.
2.10 "Reclaimed Water Transmission Facilities" means the
BOARD's facilities used to transmit Reclaimed Water.
2.11 "Storage Facilities" means those facilities which may
be designed, permitted and constructed on the Property, if
applicable, or upon the BOARD's property; if applicable, and
which are necessary to store and hold Reclaimed Water in' a
manner that complies with regulatory requirements.
2 . 12 "Wastewater" means the product received by the
.wastewater treatment facility for treatment.
2.13 "Wastewater Facilities" means the BOARD's plant
located at 1801 North Congress Avenue, Delray Beach, Florida,
and Reclaimed Water transmission facilities, including all
interceptors, lines, pipes, meters, couplings, pumps, force
mains, and appurtenant equipment necessary to treat and
transmit the Reclaimed Water.
SECTION 3. Grant of License and Easement. RECIPIENT hereby
grants to BOARD an easement over the Property, including a 15
foqt utility easement to be mutually agreed upon and located
in the approximate location depicted on Exhibit "C" attached
hereto, to allow construction, operation, maintenance and
repair of the BOARD's Reclaimed Water transmission main to
the point of delivery, and the righ~ to transmit, deliver and
dispose of Reclaimed Water through the irrigation system and
storage facility, if applicable, on the Property in accordance
with and subject to the following conditions:
12-5-95
REUSEIQUAILRIDGR/DELVERY.AGR
4
3.1 Desi n and installation of Certain Facilities. BOARD
agrees to design, permit, install and operate improvements and
additions at its existing wastewater treatment plant, and the
BOARD's Reclaimed Water transmission facilities, and to Permit
effluent disposal facilities in order to provide Reclaimed
Water at the point of delivery. RECIPIENT agrees to design,
permit, install and operate, at its sole expense, any storage
facility, if applicable, and the irrigation system on the
Property up to the point of delivery.
:?2 Permits and Approval for the Irriqation System.
Recipient shall be responsible, in cooperation with Board, for
obtaining and maintaining necessary governmental permits and
approvals in order to install and operate the irrigation
system: provided, however, that Board shall be responsible
for obtaining and maintaining all permits for ReClaimed Water
disposal facilities. For all wastewater facilities located
on its ~ide of the point of delivery, Board shall be soiely
responsible for obtaining, compiling, providing and complying
with all monitoring, sampling, testing, and reporting
requirements for the Reclaimed Water, which may be imposed by
government law, rule, permit, or approval. Recipient shall
grant Board upon reasonable advance notice to RECIPIENT access
to the irrigation system as needed to assure continued
compliance with applicable laws and regulations, including,
but not limited to, any monitoring or testing requirements.
3.3 Delivery of Reclaimed Water. BOARD agrees to use its
best efforts to make available and deliver in the volume and
at the times requested, an annual volume of Reclaimed Water or
at least 224 million gallons (MGY), with maximum volume any
one day up to but not to exceed 1,600,000 (700,000 and 900,000
f.or north and south connections, respectively) gallons per day
(GPD), at a rate of 3,333 (1,460 and 1,875 _for north and south
connections, respectively) gallons per minute (GPM), for use
on the Property and, at its cost, to. connect the BOARD's
Reclaimed Water transmission facilities to RECIPIENT's
irrigation system at the point(s) of delivery agreed upon and
as shown in Exhibit "C". Both RECIPIENT and BOARD recognize
that water supply and-demand will vary depending on a number
of ~qctors, primarily climatic conditions.
3.4 Ouality of Reclaimed Water. BOARD shall make
available to RECIPIENT Reclaimed Water of a quality consistent
with the requirements of "public access" treatment levels as
set forth in Chapter 62-610, Florida Administrative Code, or
its successor Code proviSions, or of a quality consistent with
more stringent requirements that may be 'imposed by any
governmental agency having j~risdiction and legal authority.
In recognition of the need to Supply Reclaimed Water, the
BOARD shall also be required to comply with effluent
limitations set forth in Exhibit "0". All Reclaimed Water
12-5-95
REUSEIQUAILRIDGR/DELVERY.AGR
5
made available by BOARD under this Agreement shall, at a
minimum, have been treated by advanced treatment methods to
remOVe harmful levels of bacteria, viruses, and other
constituents or pollutants which could constitute a danger to
human health, and in accordance with all applicable federal,
state and local laws, rules, regulations, POlicies,
ordinances, reso 1 utions , orders and permits and the
requirements of Rxhibit "D", BOARD shall provide Continuous
mpnitoring of chlorine and turbidity, as well as other
required ground and surface water quality Sampling and
monitoring of Reclaimed Water as reguired by local, state and
federal regnlations and' by Exhibit "D", BOARD agrees to
divert away as expeditiously as Possible, from the irrigation
system, any Reclaimed Water which does not comply with the
terms and conditions of this Agreement or which does not meet
the applicable state, federal or local laws and regulations
and to promptly and fully notify RECIPIENT of such action.
Copies of all test results shall be available to RECIPIENT
upon request,
3.5 Minimum Purchase of Recla.imed Water b RECIPIENT.
Upon receipt of all necessary governmental permits and
approvals by all parties and completion of construction of
wastewater facilities and continuing for so long as. BOARD
complies with the requirements set forth in this Agreement,
RECIPIENT has an bbliga tion to pay for at 1 eas t ~ lllill1:on I Td "" l. '-' I
gallons annually of Reclaimed Water for spray irrigation on ~./
the Property, subject to conditions as set forth in Section )Y'~
3.3 of this, Agreement. NotWithstanding anything to. the "~'^ \:::,
contrary, Reclplent shall not be obllgated to accept dellvery ~
of or pay for Reclaimed Water which does not comply with
the terms and conditions of this agreement, Such exception to
RECIPIENT'S obligation to accept delivery of Such ReClaimed
Water by reason of the Board's failure.to meet the water
quality standards required in this Agreement shall relieve
RECIPIENT of its obligation to pay BOARD for the minimum
annual volume set forth above at the rates determined pursuant
to Paragraph 5 below only to the extent that the BOARD shall
not have made available to RECIPIENT Such annual minimum
volume of Reclaimed Water meeting the requirements of this
Agreement through the completion of the then current fiscal
year ."Recipient shall not transfer the water provided by
Board to any third party or off of the Recipient's property
whi~h is the subject of this agreement.
3.6 RECIPIENT shall be responsible for all maintenance of
water and its irrigation system on RECIPIENTS side of the
point(s) of ~elivery.
3.7 Nothi~g in this Agreement shall be construed to give
RECIPIENT any right to the exclusive receipt of BOARD's
ReClaimed Water SUPply.
12-5-95 ..
REUSRIQOAILRIDGE/DRLVERy.AGR
6
3.8 The BOARD agrees that it will not enter into
contracts with other recipients of Reclaimed Water for more
than its daily snpply capacity as the same exists from time to
time.
SECTION 4. Term and Fees
4.1 Term. The Easement and this Agreement shall he in
effect for-aperiod of twenty. (20) years cOllllllencing on the
date of execution of this Agreement. The term of the Easement
and this Agreement shall be antomatically extended for
successive periods of ten (10) years. each, upon the Same terms
and conditions as herein provided, unless either party hereto
notifies the other by certified mail at least three years
prior to the expiration of the initial term of this Agreement
Or any renewal thereof, that this Agreement shall not be. so
extended.
4.2 PaYment of Fees. In return for and in Consideration
of BOARD's construction of facilities and delivery of
Reclaimed Water; RECIPIENT agrees to pay BOARD a one-time
connection fee of $8,600.00 ($4,300.00 each for north and
south connections) and a volume charge of 20~ for each 1,000
gallons of Reclaimed Water used, (the "Volume Charge") but on
an annnal basis not less than the above rate times the minimum
quantity RECIPIENT has agreed to purchase under Sectiou 3.5
together with a storage charge equal to 8~ (the "Storage
Charge) for each 1,000 gallons of Reclaimed Water, the Volume
Charge for which is paid for by RECIPIENT, as provided above':'
Such Storage Charge shall remain constant and shall not be
adjusted during the tenn of this Agreement or any extension
hereof. Payment of the connection fee shall be in one lump
SUm no later than the commencement of construction of the
modification to the BOARD's wastewater facilities for the
treatment and prodnction of Reclaimed Water. The Volume
Charge' shall remain Constant until the expiration of the
third ( 3) fiscal year from the COllllllencement of pumping
(prOvided that if less than six (6) months expires between the
time BOARD commences or makes available delivery of Reclaimed
Water and the end of the first fiscal year, Such first year
shal~ .n9t count as the first fiscal year), after which the.
price will be redetermined as prOvided in Section 5. The
BOARD shall render billings to RECIPIENT for the volume charge
on ~monthly basis for Such applicable charges on the basis of
the greater of the actual Reclaimed Water delivered or the'
volume charge for 1/12th of themininnrm guaranteed annual
volume agreed to be accepted by RECIPIENT pursuant to Section
3.5 above; provided that RECIPIENT shall pay no more, on a
fiscal year basis, than ( i) Such mininnrm annual guaranteed
volume Charge or (ii)charges for Reclaimed Water actually
accepted during the fiScal year, whichever is more.
12-5-95
REUSE/QUAILRIDGR/DRLVRRYoAGR
7
4.3 In the event the BOARD shall not be able to deliver
Reclaimed Water in the minimum volume agreed to in Section 3.5
of this Agreement, as a result of its inability to do so and
through no action or inaction on the part of the RECIPIENT,
the RECIPIENT shall be entitled to a credit for such shortage
in the minimum agreed to volume (by a proportionate
reduction).
SECTION 5. Future Adjustment of Price of Reclaimed Water.
The Volume Charge shall be adjusted. after the first three (3)
fiscal years as aforesaid upward or downward based on one-half
(~) of the year-to-year change in the actual operating costs
of producing, metering and delivering Reclaimed Water from
effluent and transmitting it to the point of delivery for the
REC;IPIENT as it relates to the preceding year's Volume Charge,
however, such Volume Charge shall never be less than 20<: per
thousand gallons nor shall an increase be applied if the
actual operating costs shall be less than said 20<: per
thousand gallons. The first such adjustment shall occur
effective the first day of the fourth fiscal year following
the initial delivery of Reclaimed Water to RECIPIENT and
shall reflect one-half (1) the. relative increase or decrease
in actual operating costs incurred Py the BOARD during the
second fiscal year of delivery of Reclaimed Water to RECIPIENT
as compared to the third fiscal year and for each subsequent
year thereafter as compared to the previous year. The actual
operating cost and change therein shall be the basis for
determining the index for making the adjustments in the Volume
Charge.. Actual operating costs ("Actual Operating Costs",")
shall be determined in conformity with generally accepted
accounting principles consistently applied, except the
depreciation of plant and equ~pment and any other provision
for capital recovery, including interest on long term debt,
shall not be included as operating costs,: as such costs are
properly allocable to wastewater customers. Any increase or
decrease in the Volume Charge shall be determined as soon as
reasonably practicable and shall be effective retroactive to.
the scheduled date of adjustment and a sum due to the BOARD
as a result of the retroactive effect of such adjustment or
the credit due the ;RECIPIENT, if applicable, shall be
refl~ted in the next billings regularly submitted by BOARD to
RECIPIENT as provided in Subparagraph 5.4.
,:"". 5. 1 BOARD personnel shall establish, or cause to be
established, and maintai.n an accounting system in which such
current operating costs are recorded monthly in separate
accounts from sewage processing accounts. Costs shall be
recognized on a fi.rst-in first-out basis. The BOARD personnel
shall prepare and preserve, any studies relating to the
allocation of operating costs on other than an actually
incurred basis. By way of example, the parties agree that all
oPerating and maintenance costs of labor, chemicals and power,
12-5-95
RRUSR/QUAILRIDGE/OELVERY.AGR
8
permits, regulatoD, requir~neuts, legal, engineering,
administration, testing, meter calibration and contract
services may be allocated based on appropriate data Or
studies. Such current operating costs shall be recorded on a
consistent basis from month to month and year to year, and the
total for each fiscal year shall be used to calculate a cost
per thousand gallons of Reclaimed Water delivered beginning
with the second fiscal year after the plant starts to deliver
Reclaimed Water to RECIPIENT.
5.2 By way of example, if delivery begins on October 6,
1996, the third fiscal year thereafter would be October 1,
1998 to September 30, 1999. Assume that the actual cost of
producing Reclaimed Water for the fiscal year October 1, 1997
through September 30, 1998 was 21~. Further, aSsume that the
Actual Operating Cost of producing and delivering Reclaimed
Water to RECIPIENT during the second fiscal year to the end of
the third fiscal year (October 1, 1997, through September 30,
1999) increased from 2l~ per thousand gallons to 23~ per
thousand gallons. The index for increase would be calculated
by dividing the base cost of 21~ per thousand gallons into
one-half {Il the 2~ increase in cost, resulting in an increase
of 4.76% to the previous years' Volume Charge of. 20~ per
thousand gallons for the fourth fiscal year, equal to 20.95~
per thousand gallons (i x 2 - 1 . 21~ - .0476, then 20~ x
1.0476 = 20.95C).
5.3 As soon as reasonably practical, after each fiscal
year for which the contract Price is subject to adjustment. ,.
the BOARD shall prepare a statement ShOWing in reasonable
detail the actual operating costs to produce Reclaimed Water
from effluent for the latest two fiscal years. For each Such
year, the statement shall also show (I) the number of gallons
in thousands of ReClaimed Water delivered .to Reclaimed Water
users, (2) the Cost per thousand gallons of Reclaimed Water
calculated by dividing such.operating costs by Such gallons,
(3) the calculation of the ratio of change in cost per
thousand gallons from the earlier year to the later year, and
(4)the calculation of the adjusted price for the later year.
This statement shall be- deemed to be the responsibility of the
BOAR!;>, and the BOARD's ExeCutive Director shall attest in
Writing' to the propriety of the costs and calCulations shown
thereon. .
5.4 By January 15 of each year, the BOARD'S Executive
Director shall submit to RECIPIENT the supplemental statement
set forth in the preceding paragraph, together with the
attestation thereto by the BOARD. At the same time, the
BOARDS Executive Director shall submit to RECIPIENT a bill or
credit ShOWing {l)the amount paid by the RECIPTENT for
Reclaimed Water delivered in the current fiscal year, (2)the
amount payable for Reclaimed Water delivered in the current
12-5-95
RRUSR/QUAILRIDGRIDBLVERY.AGR
9
fiscal year based on the adjusted price for the year as set
forth above, and (3)the difference. Any such difference shall
be either paid promptly by the RECIPIENT, or shown as a credit
in the next billing to the RECIPIENT.
5.5 For billing purposes only prior to the determination
of actual costs for adjusting the Volume Charge, during each
year subject to price adjustment, the BOARD may use a
tentative price per thousand gallons based on using budgeted
costs for the current year in the price adjustment calculation
set forth above.
5.6 RECIPIENT, at its own expense, has the option of
examining the financial statements, general books and related
records, and production records of the BOARD.
5.7 Notwithstanding the above provisions, the price paid
by the RECIPIENT for Reclaimed Water shall be adjusted
downward in the event the BOARD offers Reclaimed Water to any
other non-governmental customer(s) upon substantially similar
terms and conditions for the same use of the Reclaimed Water
at a lower charge than RECIPIENT is or will be paying under
this Section 5. Such downward adjustment shall be made to
guarantee RECIPIENT that no other user of Reclaimed Water for
similar purposes 'shall receive a more favorable charge than
will also be given to RECIPIENT under similar circumstances.
5.B To the extent that the BOARD receives governmental
or environmental noncapital improvement subsidies which a~e
provided .to the BOARD for encouraging wastewater reuse and
which are intended to be applied pursuant to the terms of such
grant or subsidy to the operational costs of the Reclaimed
Water facility, as opposed to capital improvements or
expansion of such Reclaimed Water facility, the BOARD will
apply such funds, to the extent allowed,. to its Reclaimed
Water facility operating costs.
5.9 The parties to this Agreement agree and recognize
that RECIPIENT is under no legal or other obligation to enter
into this Agteement .:for reuse of wastewater. RECIPIENT
currently has operating permits from FDEP and the Water
Management District to pump surface and ground water for all
RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump
thi,~ surface and ground water is substantially less than the
charges RECIPIENT will pay for Reclaimed Water under this
Agreement. RECIPIENT'S only consideration and motivation to
enter into this Agreement is to insure sufficient irrigation
water by receiving its full allocation of Reclaimed Water on
demand in accordance with the rate and delivery conditions set
forth in this Agreement, free from adverse environmental or
climatic impact. RECIPIENT.has determined that the benefits
of this Agreement are only marginally economically feasible.
12-5-95
REUSE/QUAILRIDGE!DELVERY.AGR
10
Therefore, if as a result of any action by the BOARD, the City
of Delray Beach or the City of Boynton Beach, RECIPIENT would
be reguired to pay charges in eXcess of those established
under Section 5, then RECIPIENT shall have the option of
canceling this Agreement upon sixty (60) days advance written
notice to the BOARD.
SECTION 6. Inspec~ion. BOARD shall have the right to enter
RECIPIENT's property, upon proper identification and at any
reasonable time, in order to inspect the irrigation system as
may be necessary Or desirable for the operation, safety,
protection, or preservation thereof, to determine compliance
with any law, order or regulation of any governmental
authority having jUriSdiction, and for sampling at any
mOnitoring wells located on the property. RECIPIENT shall have
the right to enter the BOARD's plant and properties and the
right of access to its wastewater facilities and records, at
any reasonable time, for the purpose of determining whether
the BOARD is in compliance with this Agreement.
SECTION 7. Assignments. This Agreement can be assigned by
RECIPIENT only with the prior written approval of BOARD, but
Such approval shall nOt be unreasonably withheld, provided the
assignee shall assume this Agreement and shall demonstrate to
BOARD its financial ability to Comply with the proviSions
hereof.
SECTION 8. Notices; Proper Form. Any notice required or
allowed to be delivered hereunder sha~l be in writing aria
shall be deemed to be delivered when (1) hand delivered to the
official hereinafter deSignated, (2) upon receipt of such
notice when deposited in the United State" mail, postage
prepaid, certified mail, return receipt requested, addressed
to a party at the address set forth opposite the party' name
below, or at Such other address as the party shall have
specified by written notice to the other party delivered in
accordance herewith:
BOARD
...
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
Executive Director
1801 North Congress Avenue
Delray Beach, PL 33445
RECIPIENT
QUAIL RIDGE COUNTRY CLUB
C/O Club Manager
3715 Golf Road
Boynton Beach, FL 33436
12-5-95
RRUSE/QUAILRIDGR/DELVERy.AGn
11
COpy TO:
Boynton Beach City Manager
P.O. Box 310
Boynton Beach, FL 33425-0310
COpy TO:
Delray Beach City Manager
100 N.W. 1st Avenue
Delray Beach, FL 33444
COpy TO:
Robert W. Federspiel, Esq.
501 East Atlantic Avenue
Delray Beach, FL 33483
SECTION 9. Notices; Default. Each of the parties hereto shall
give the other party written notice of any defaults hereunder
and shall allow the defaulting party 30 days from the date of
receipt to cure such defaults, except failure to deliver water
on demand.
SECTION 10. Default by Either Party. If any party hereto fails
to perform or comply with, any of the conditions of this
Agreement, and if the nonperformance shall continue for a
period of thirty (30) days after the written notice thereof ~o
the non-performing party, or if the performance cannot be
reasonably completed within the 3D-day period, or if the non-
performing party does nQt in good faith commence performance
within the 30~day period and does not diligently proceed to
complete performance, the non-performing party shall be in
default or breach of this Agreement.
SECTION 11. Indemnification. In the event RECIPIENT shall fail
to comply with any reuse water rule or regulation of any
Federal, State or County or local agencies, except BOARD, or
violate any permit gI'anted with regard to the use of the
irrigation system on the RECIPIENT's property, then RECIPIENT
shal'l'indemnify the BOARD, its officers, governing board,
employees and agents against all claims, demands, causes of
actions, suits, judgments, fines, penalties, or losses,
inciluding all costs suffered or incurred by the BOARD by
reason of such failure. In the event the BOARD shall fail to
comply with any rule, regulation, order of any Federal, State
or County or local agency, or fail to deliver water meeting
the quality standards provided by this Agreement, then the
BOARD shall, to the extent allowed by law, indemnify the
RECIPIENT, its officers, board of directors, employees and
agents against all claims, demands, causes of actions, suits,
12-5-95
REUSE/QUAILRIDGE/DELVERY.AGR
12
judgments, penalties, fines, or losses suffered or incurred by
the RECIPIENT as reason of such failure.
SECTION 12. Remedies of Default. If either party hereto shall
be in default hereunder as set forth in Section 10, then the
other party shall have the follOwing remedy: bring suit for
the breach which has occurred without affecting the
obligations of the party to perform the balance of the
Agreement. The parties shall have the right not only to
injunctive relief, but also to recover any damages which a
party may incur as a result of the breach of this Agreement by
the other party. The parties further agree that any litigation
shall be brought in Palm Beach COunty, Florida, only, and the
parties agree that the proper venue for any Such action Would
onlY be in Palm Beach COunty, Florida. The parties further
waive any right to Jury trial they may have in any action
among" them involving this Agreement or the alleged breach
thereof.
SECTION 13. Disclaimers of Third Party BenefiCiaries. This
Agreement is solely for the benefit of the fOrmal parties
hereto and no right or cause of actiOn shall aCcrue upon or by
reason hereof or to or from or for the benefit of any third
party not a formal party hereto.
SECTION 14. Severability. If any part of this Agreement is
found invalid Or unenforceable by any court, Such invalidity
or unenforceability shall uot affect the other parts of this
Agreement.
SECTION 15. Applicable Law. This Agreement and the provlslons
Contained herein shall be construed, Controlled and
interpreted according to the laws of the State of Florida.
SECTION 16. Entire Agreeaoent. This agreement contains the
entire Agreement between the parties hereto with respect.to
this tranSaction and snpersedes all prior negotiations and all
prior written or oral understandings.
SECTION 17. Amendments. This Agreement may only be amended,
suppl~nted or discharged by an instrument in writing signed
by all parties hereto.
SE~ION 18. RecOrdation. This. Agreement or a mutually
agre~able memorandum thereof will be recorded in the public
records of Palm Beach County, Florida.
SECTION 19. Extent of Agreement. Each party shall advise the
other party, in writing, as to the status of its construction
document preparation and construction of" aSsociated
improvements on a monthly basis "to ensure that both parties'
activities are progressing with reasonable diligence.
12-5-95
RRUSE/QUAILRIDGR/DELVRRY.AGR
13
SECTION 20. Completion Date. The Board agrees to use its best
efforts have its Reclaimed Water facilities completed and
available for use for RECIPIENT and RECIPIENT agrees to use
its best efforts to have its Irrigation System complete and to
accept delivery of Reclaimed Water from the BOARD on or before
November 1, 1997, subject to matters beyond the reasonable
control of either party.
SECTION 21. Cross-Connection. RECIPIENT desires to connect
its south course irrigation system with its north course
irrigation system, which will require crossing the Woolbright
Road and L-26 canal. In that the BOARD will also have to
cross both rights-of-way. to connect its reclaimed water
transmission facilities to RECIPIENT's irrigation system, the
BOARD agrees to obtain a price from its Contractor for the
installation of such pipe for RECIPIENT. The RECIPIENT shall
then be authorized to either contract directly with the
BOARD's Contractor for such pipe installation or to obtain its
own contractor.
.,-,
\,\-r\ --
By : V "f\. .y------
cliairritan
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DIS_P-P~AL BOARD
i '"
, \
\ J
\ ~..
\\ \~------------
! I
ATTESTED BY.:
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~./..../ . ....~ ...... ...---;..-
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'''~)
_~/..r
APPROVED AS TO FORM: /}
.~ . {II
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Board ....Attorney f
QUAIL RIDGE C ~UB
/VA/9r-
APitROVED;-J?~-: .. L.
d~
,.. :/~,; ,-1l-..~.
c~y 6f D~ay Beach, Mayor
APP::;)JY:2
City of Boynton ach, Mayor
12-5-95
RRUSE/QUAILRIDGBIDELVRRY.AGR
14
R-XHIBrr A
LEGAL DESCRIPTION OF PROPERTY
(To Be Provided By Recipient)
gUAIL RIDGE (A PLANNED UNIT DEVELOPMENT)
PLAT NO.1
BEING A SUBDMSION OF A PORTION OF THE NE 1/4 OF
SEGTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, Ai\ID A
PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH,
RANGE 43 EAST, VILLAGE OF GOLF l\ND PALM BEACH COUNTY,
FLORIDA
PLAT NO.2
BEING A SUBDMSION OF A PORTION OF THE NE 1/4 OF
SECTION 36, TOWNSHIP 45 SOUTH RANGE 42 EAST, PALM
BEACH COUNTY, FLORIDA
PLAT NO.3 _
BEING A SUBDTVISION OF A PORTION OF THE N 1/2 OF SECTION
36, TOWNSHIP 45 SOUTH, RANGE 42 EAST,
V1LLAGE OF GOLF AND PALM BEACH COUNTY, FLORIDA
PLAT NO. 3A
BEING A SUBDTVISION OF A PORTION OF THE NW 1/4 OF - ~.c.
SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, PALM
BEACH COUNTY, FLORIDA
PLAT NO.4
BEING A SUBDIVlSION OF A PORTION OF THE N 1/2 OF SECTION
- . -'
36, TOWNSHIP 45 SOUTH. RANGE 42 EAST, PALM BEACH -
COUNTY, FLORIDA
PLAT NO.5
BEING A SUBDIVISION OF A PORTION- OF THE NE 1/4 OF
. .
SEQTION 36. TOWNSHIP 45 SOUTH, RANGE 42 EAST AND A
PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH,
RANGE 43 EAST PALM BEACH COUNTY. FLORIDA.
PLAT NO. 6
BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF
SECTION 31, TOWNSHIP 45 SOUTH. RANGE 43 EAST. VILLAGE
OF GOLF AND PALM BEACH COUNTY. FLORIDA
PLAT .NO. 7
BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE...,HALF
OF SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST. PALM
BEACH COUNTY, FLORIDA
Pae-e 1 of 3 - Exhibit '.
PLAT NO.8
BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE-HALF
OF SECTION 31. TOWNSHIP 45 SOUTH, RANGE 43 EAST. PALM
BEACH COUNTY, FLORIDA
PLAT NO.9
BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE-HALF
OF\SECTION 31, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA
PLAT NO. 10
BEING A SUBDIVlSION OF A PORTION OF THE NW 1/4 OF
SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST AND A
PORTION OF THE NE 1/4 OF SECTION 36, TOWNSHIP 45 SOUTH.
RANGE 42 EAST, PALM BEACH COUNTY. FLORIDA
PLAT NO. 11
BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF
SECTION 31. TOWNSHIP 45 SOUTH. RANGE-43 EAST. PALM
BEACH COUNTY, FLORIDA
PLAT NO. 12
BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF
SECTION 36, TOWNSHIP 45 SOUTH. RANGE 42 E.AST, PALM
BEACH COUNTY, FLORIDA '
PLAT NO. 13
BEING A SUBDNISION OF A PORTION OF-THE NW 1/4 OF
SECTION 31. TOWNSHIP 45 SOUTH, RANGE 43 EAST. PALM
BEACH COUNTY, FLORIDA
PLAT NO. 14 .
IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
. BEACH COUNTY, FLORIDA, BEING A RE-PLATOF TRACTS 105,
11~, 120 AND PORTIONS OF TRACTS 73, 74,87,88, 106, 107, 117
Al'iD 118 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION
30. TOWNSHIP 45 SOUTH, RANGE 43 EAST. PLAT BOOK 5, PAGE
73 AND OTHER LANDS
PLAT NO. 15
IN SECTION 30, TOWNSHIP 45 SOUTH. RANGE 43 EAST. PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF
TRACTS 53, 54, 75, 76, 85 AND 86 PALM BEACH FARMS
COMPANY PLAT NO.8, SECTION 30. TOWNSHIP 45 SOUTH,
RANGE 43 EAST, PLAT BOOK 5. PAGE 73 AND OTHER LANDS
~ "If
PLAT NO. 16
IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF
TRACTS 73. 74. 75, 86. 87 A1\JD 88 PALIVI BEACH FARMS
COMPANY PLAT NO.8. SECTION 30, TOWNSHIP 45 SOUTH,
RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS
"" PLAT NO. 17
IN SECTION 30, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF
TRACTS 85,86,87,106,107,108,117 AND l18 PALM BEACH
FARl\tIS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45
SOUTH, RANGE 43 EAST, PLAT BOOK 5. PAGE 73 AND OTHER
LA~DS
PLAT NO.. 18
IN SECTION 30, TOWNSHIP 45 SOUTH~ RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF
TRACTS 51,52,53.54.76,77,78, 84 AND 8 PALM BEACH
FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45
SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER
LANDS
PLAT NO. 19
IN SECTION 30, TOWNSHIP 45 SOUTH; RANGE 43 EAST, 'PALM
BEACH COUNTY. FLORIDA, BEING A RE-PLAT OF TRACTS 19, 20, .
45 Al'ID 46 AND PORTIONS OF TRACTS 12,. 13, 14, 21, 43. 44. 51,
52, 53 AND 54 PALM BEACH FARMS COMPANY PLAT NO.8,
SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK
5, PAGE 73 AND OTHER LANDS
, PLAT NO. 20
IN SECTION 30, TOWNSHIP 45 SOUTB, RANGE 43 EAST, PALM
BEACH ~OUNTY, FLORIDA. BEING A RE-PLAT OF TRACTS 22,41,
4:Z:"AND PORTIONS OF TRACTS II, 12,21, 43.53.54,55 AND 56
PALM BEACH FARMS COMPANY PLAT NO.8. SECTION 30,
TOWNSHIP 45 SOUTH. RANGE 43 EAST, PLAT BOOK 5, PAGE 73
AND OTHER LANDS
PLAT NO. 21
IN SECTION 30, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF TRACTS 115.
116, 110, 109, 83 AND PORTIONS OF TRACTS 117, 108, 84, 85,
78,77.51 AND 52 PALM BEACH FARMS COMPANY PLAT NO.8,
SECTION 30. TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOE:
5. PAGE 73 AND OTHER LANDS
EXHIBIT B
OPERA TINe RESTRlcrs
Recipient shall maintain compliance with the fOllowing operating restrictions for protecting
human bealth, welfare and safety, and the environment
1'<\.
L The pnblie shall be notified of the use of reclaimed Water by posting advisory signs, notes
on score cards or other methods in accordance with Chapter 17-610.468 F AC.
2. Direct connections between the reclaimed Water system and inigation Water system shall
not be allowed without the use of appropriate backflow prevention devices.
. 3. No cross-connection to potable water systems shall be allowed.
4. All reclaimed water valves and outlets sh(lll be appropriately color coded and labeled in
accordance with Chapler 17,", 10.470 F AC to warn public and employees that the water
is not intended for drinking,
5. Setback distances to POtable water supply wells and the use of low trajectory nozzles shall
be in accordance with ChapterJ7-610A71 FAC
6. The use of reclaimed water shall be consistent with all applicable fedecal, Siate, and local
Jaws and re2111ations.
Jl:.~S7 4\O:JImrr..B
Exhil?it B
January J 995
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EXHIBIT D
Enclosure 'A'
Board s~1I monitor thc redaimcd water for the following parameters and agrcx:s to di\'cn reclaimed
water ",hich occeds the specjfied limits.
Par3meler Sampling FrC{juency Limitll1
T urbidit). Continuous 2 NTU
Chlorine Residual Continuous (minimum)
Cl;J.1oride Continuous 350
CBOD(~) Daily 20
TSS(J} Daily 5
pH Hourly 6 to 7.5 units(5)
7.8units(6)
Aluminum Annual 1.0
Arsenic Annual 0.10
Beryllium Annual O.JO
Boron Annual 0,50
Cadmium Annual 0.01
Chromium Ann ual 0.]
Cabah Annual 0.05
Copper Annual 0.2
Fluoride Annual 1.0
Iron Annual 5.0
Lead Annual 5.0
Lilhit;m Annual 2.5
Manganese Annual 0.2
Molybdenium Annual 0.005
Nickel Annual 0,02
Selenium Annual 0.02
Vanadium Annual 0.1 0
Zinc r - Annual 2,0
Bicarbonate, (as CaCO~) Annual J20
.>. (4)
Calcium AnnUal
Magnbium Annual (4)
Sodium Annual (4).
Sodium Adsomtion Ratio Annual 6 uni15
(1)
Q)
(3)
(4)
(5)
(6)
Maximum concentration expn;ssed .in mgIL unless noted.
Carbonaceous Biochemical O).-ygen Demand (CBOD).
Total Suspended Solids (TSS).
Information used in calculation of Sodium Adsorption Ratio (SAR).
Daily average .
2-Hour duration
'I\':'J~7~\EXHIBI1,D
Exhibit D
January J 995
P.~ 1 of I
ASSIGNMENT AGREEMENT
WIl
KOS-087 J
THIS ASSIGNMENT AGREEMENT is made and entered into this _ day of
,2005, by and between thSOUTH CENTRAL REGIONAL WASTEWATER
TREA TMENT AND DISPOSAL BOARD, an entity created pursuant to Florida Statues Chapter
163.01, hereinafter referred to as the "BOARD," and the CITY OF BOYNTON BEACH,
FLORIDA, a Florida municipal corporation, hereinafter referred to as "BOYNTON."
WITNESSETH;
WHEREAS, the BOARD has heretofore entered into that certain Agreement with Quail
Ridge Country Club, concerning delivery and acceptance of reclaimed water dated the 5th day of
August, 1997, a copy of which is attached hereto and hereinafter referred to as the "Reclaimed Water
Agreement;" and
WHEREAS, the BOARD is modifying its reclaimed. water operations as a result of an
amendment to the Interlocal Agreement creating the BOARD, whereby the BOARD will provide
wholesale reclaimed water services only to the City of Del ray Beach and the City of Boynton Beach;
and
WHEREAS, in order to implement such modification and the mode of operation as above
described, the BOARD, by this Agreement, intends to assign all of its rights, duties and obligations
under the said Reclaimed Water Agreement to BOYNTON, and BOYNTON, in accepting such
assignment, shall assume all of the rights, duties and obligations of the BOARD under ~s~qi.d
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration from one party to the other, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. The BOARD hereby assigns all rights, benefits and obligations under the Reclaimed
Water Agreement to BOYNTON, effective the 1st day of October, 2005.
~
,2. BOYNTON hereby agrees to accept and assume all rights, benefits and obligations
created underthe said Reclaimed Water Agreement pursuant to this assignment.
:; .~. IN WllNESS WHEREOF, the parties have executed this Assignment Agreement the day
and year first above written.
---SOO-TH CENTRAL REGIONAL WASTEWATER
TMENT AND DISPOSAL BOARD
"
t~
By:
Printed Name: Mu ire.
Chainnan
ATTESTED BY:
Secretary
APPROVED AS TO FORM
City Attorney
'.
CITY OF BOYNTON BEACH
By:
Mayor
) - -:~ t.<3) h:.
7
FIRST AMENDMENT AND RESTATEMENT OF
AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL
wAsTEWATER TREATMENT AND DISPOSAL
BOARD AND QUAIL RIDGE COUNTRY CLUB
CONCERNING DELIVERY AND ACCEPTANCE
OF RECLAIMED 'WATER
THIS FIRST AMENDMENT AND RESTATEMENT of that certain
AGREEMENT dated January 18, 1996, is made and entered into on this
J,; day of ~V~b~ , 1997, by and between South
Central Regional astewater Treatment and Disposal Board, a
municipal corporation created pursuant to the laws of the State of
Florida (hereinafter BOARD), and Quail Ridge Country Club, Inc.
(hereinafter RECIPIENT).
WIT N E SSE T H:
WHEREAS, the BOARD and RECIPIENT have heretofore entered into
that certain Agreement Concerning Delivery and Acceptance of
Reclaimed Water dated January 18, 1995; and
WHEREAS, RECIPIENT has requested an Amendment to. such
Agreement to provide for additional volumes of reclaimed water in-
order to allow RECIPIENT to supply reclaimed water for landscape
irrigation purposes to the Quail Ridge Property Owner's
ASSOCiation, Inc., (the "POA"), pursuant to the contractual
relationship between RECIP1ENT and the POA; and . ~,
WHEREAS, the BOARD is agreeable to amending said Contract to
provide the additional volumes requested pursuant to the terms and
conditions set forth in this Amendment.
Accordingly, for and in consideration of the recitals
contained herein, mutual understandings and agreements contained
herein, and other conSideration, the receipt and s.ufficiency.of
which iShereby~-acknowledged by.;the-parties, the Parties covenant
and agre?,as follows: - ',.
SECTION 1. Recitals. The below recitals are true and correct
and form a material part of this Agreement.
., ~ .....
1.1 The Parties hereto represent to one another that each has
the full power and authority to enter into this Agreement and to
carry out their respective obligations thereunder. The BOARD is
composed of the Ci ties of Boynton Beach and Delray Beach (the
"Ci ties" ), pursuant. to an Interlocal Agreement entered into
pursuant to Chapter 163, Florida Statutes.
4-9-97
Reuse/Quai1.rdg/restatement.amd
1
B
1.2 The parties recognize that reuse of Reclaimed Water is in
the public interest, as it recaptures _ an otherwise wasted and
unused water resource _ The BOARD owns and operates wastewater
facilities which it proposes to upgrade to produce Reclaimed Water
suitable for irrigation of areas, such as golf courses, parks,
school grounds, cemeteries, and landscaping irrigation, and
RECIPIENT is willing to accept such Reclaimed Water for irrigation
purposes in the public interest.
1.3 In a normal year, RECIPIENTS will irrigate approximately
240 days and most of RECIPIENT'S daily requirements will be needed
during approximately 12 hours commencing about sundown. BOARD
agrees to use its best efforts to supply Reclaimed Water on demand
to RECIPIENT up to the volume and at the charge set forth in this
Agreement. RECIPIENT has valuable golf courses that require access
to such Reclaimed Water and has expended substantial money and
effort and has foregone other avenues to meet its irrigation
requirements in reliance on this Agree~ent. The BOARD is not
required to upgrade its wastewater system to prOduce Reclaimed
Water but is doing so in reliance upon the RECIPIENT entering into
this Agreement.
1.4 (a) The RECIPIENT owns and controls land (the "Property")
which is described in Exh.ibit "A", attached and made.a part hereof
by reference; (b) The RECIPIENT by contractual relationship will
have obtained the right to provide reclaimed water for landscaping
irrigation purposes to the POA's properties (the "POA Property")
which lie within the property described in Exhibit "A."
1.5 RECIPIENT agrees to: (a) irrigate the Property and
provide reclaimed water. for irrigating the POA, Property using
Reclaimed Water; (b) maintain the storage facility, if applicable,
ponds and lakes, if applicable, pumps and irrigation system to be
located on the Property from the point of delivery; and (c) upgrade
its irrigation system when reasonable and economical to utilize the
volume of Reclaimed Water accepted from the BOARD and as required
to . meet any federal, state, or local requirements, (d) maintain
compliance with the ope~ating restrictions for protecting human
heal.th .and the environment attached thereto as Exhibit "B. It
1.6 RECIPIENT shall accept the Reclaimed Water delivered by
the BOARD and use Lt for irrigation of the P~operty and the POA
Property. The BOARD shall be deemed to be in possession and
control of the Reclaimed Water until it shall have been delivered
to the RECIPIENT at the Point of Delivery. After such :;delivery,
the RECIPIENT shall be deemed to be in possession and control
thereof.
1.7 The RECIPIENT agrees to maintain all Federal, State and
governmental permits issued to it and necessary to allow it to
4-9-97
Reuse/Quai1.rdg/restatement.amd
2
9
receive and utilize the Reclaimed Water pursuant to the terms of
this Agreement.
1.8 The right of the RECIPIENT to sell, transfer or encumber
the Property in areas irrigated with the Reclaimed Water shall not
be restricted by this Agreement. This Agreement shall run with the
land so long as the use of a major portion of the Property shall
continue to be for golf course and related purposes. Any
subsequent party in interest to such golf course or COurses shall
be obligated to receive and pay for Reclaimed Water under the Same
terms and conditions of this Agreement, unless modified by mutual
consent of the BOARD and the buyer or transferee.
1 . 9' METER. The design and construction of the metering
facility shall be the responsibility of the BOARD and must be
mutually approved in advance in writing by BOARD and RECIPIENT. The
meter will be utilized to measure the'amount of Reclaimed Water
delivered by the BOARD to RECIPIENT and th~ BOARD shall operate,
maintain, cause to be calibrated, and repair said meter.
1.10 CONSTRUCTION. Upon completion of the engineering design
of the metering facility, and the acceptance of same by both
parties, the metering facility will be constructed by the BOARD and
placed into service.
1.11 COSTS AND OPERATION. The BOARD shall bear the cost of
constructing, owning and maintaining the Reclaimed Water meter and
related appurtenances and the lines interconnecting BOARD's system
into the metering faCility, including all valves and appurtenances
up to and including the discharge flanges of the valves immediatel.y
downstream of the meter. The parties agree that the RECIPIENT
shall have reasonable access to the metering faCility, to all
other Reclaimed Water meters, check valves., and any other
appurtenances thereto, to verify flows, meter readings, meter
calibrations, efficiency of the check valves, and any other
performance data necessary to the operations of the Interconnection
facility upon reasonable advance notice to. the Board. The . metering
device shall be tested and .calibrated, at;,BOARD~s.eXPense,.tat~,.least;>.::.
once per :year and repai.red~'i.f:'required. 'AnyHttl:Ors:=in meter:;,readJ.ng..;:
and any" discrepancy in. meter results from a true. and COrrect
measure of ReClaimed Water flow to RECIPIENT shall be adjusted
properly and retroactively to 'reflect the flow to RECIPIEN'I'. Any
. incorrect metering device shall be repaired forthwith by the BOARD.
1.12 This agreement has been duly authorized by all named
parties. Pursuant to Section 3 (C) of the Interiocal Agreement
dated December 26, 1974, between the City of Boynton Beach and the
Ci ty 0 f Delray Beach, this Agreement and all provisions thereof
have been contractually approved by a majority vote of each City
Council as the act of each City, or, if Such approval has not
4-9-97
Reuse/Quail.rdg/restatement.amd
3
JO
already been obtained, such approval will be obtained and certified
to RECIPIENT before this Agreement shall become effective.
SECTION 2. Definitions. The parties agree that in construing this
Agreement, the following words, phrases and terms shall have the
following meanings, unless the context requires otherwise:
2 . 1 "Agreement" means this Agreement between BOARD and
RECIPIENT.
2 . 2 "FDEP" means the Florida Department of Environmental
Protection, and its successors.
2.3 "Fiscal Year" means October 1 to September 30 of the
following year.
2.4 "GPD" means gallons per day.
2.5 "Irrigation system" means those pump stations, lines,
pipes, sprinkler heads, ponds and lakes, storage facilities, if
applicable, and pertinent equipment that are located on RECIPIENT's
property and used to store, spray and irrigate with Reclaimed Water
that has been treated. in accordance with all applicable
governmental regulations and in. accordance with the terms and
provisions of this Agreement.
2.6 "MGD" means million gallons per day.
2 . 7 "Point of delivery" means the point at the meter which
divides the BOARD's wastewater facilities from the RECIPIENT.'s
irrigation system, or as otherwise noted on engineering drawings
approved by both parties.
2.8 "Reclaimed Water" means wastewater that has been treated
in accordance with Section 3.4 of this Agreement.
2 .9 .. Reclaimed Water Disposal Facilities n means those
facilities necessary for the. storage, .if~applicable,:,.transportation
and dis]?osal of wastewater. previously treated "in < acCordance with
applicable ,local , state and federal standards and limitation at the
plant to the standard of Reclaimed Water. These facilities include,
but are not limited to, any Reclaimed Water transmission
faciliiies, irrigation systems and storage facilities, if
applicable.
2.10 "Reclaimed Water Transmission Facilities" means the
BOARD's facilities used to transmit Reclaimed Water.
2.11 "Storage Facilities" means those facilities which may be
designed, permitted and constructed on the Property and the POA
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Reuse/Quail.rdg/restatement.amd
4
Property, if applicable, or upon the BOARD's. property, if
applicable., and which are necessary to store and hold Reclaimed
Water in a manner that complies with regulatory requirements.
11
2.12 "Wastewater" means the product received by the wastewater
treatment facility for treatment.
2.13 "Wastewater Facilities" means the BOARD's plant located
at 1801 North Congress Avenue, Delray Beach, Florida, and Reclaimed
Water transmission facilities, including all interceptors, lines,
pipes, meters, cOuplings, pumps, force mains, and appurtenant
equipment necessary to treat and transmit the Reclaimed Water.
SECTION 3'. Grant of License and Easement. RECIPIENT hereby grants
to BOARD an easement over the Property including a 15 foot utility
easement to be mutually agreed upon and located in the approximate
location depicted on Exhibit "C" attached hereto, to allow
construction, operation, maintenance and repair of the BOARD's
Reclaimed Water transmission main to the pomt of delivery, and the
right to transmit, deliver and dispose of Reclaimed Water through
the irrigation system and storage facility, if appliCable, on the
Property in accordance with and subject to the following
conditions:
3.1 Desi n and installation of Certain Facilities. BOARD
agrees to design, permit, install and operate improvements and
additions at its existing wastewater treatment plant, and the
BOARD's Recla.imed Water transmission facilities, and to Perm.i.t
effluent disposal facilities in order to provide Reclaimed Water at
the point of delivery. RECIPIENT agrees to design, permit, install
and operate, at its sol.e expense, any storage facility, if
applicable, and the irrigation system on the Property and the POA
Property up to the point of delivery.
3. 2 Permi ts and Approval for the IrriQation Svstem.
Recipient shall be responsible, in cooperation with Board, for
obtaining and maintaining necessary governmental permits and
approvals in;.orderto install and operate the irrigation system:
provided, however , that Board shall be responsible for obtaining
and ma~rttaining all permits for Reclaimed Water disposal
facilities. For all wastewater facilities located on its side of
the point of delivery, BoaJ;:d shall be solely responsible for
obta~rig, compiling, providing and complying' with all monitoring,
sampling, testing, and~ reporting requirements for the Reclaimed
Water, which may be imposed by government law, rule, permit, or
approval. Recipient shall grant Board upon reasonable advance
notice to RECIPIE~T access to the irrigation system as needed to
assure continued compliance with applicable laws and regulations,
inClUding, but not limited to, any monitoring or testing
requirements.
4-9-97
Reuse/Quai1.rdg/restatement.amd
5
3.3 Delivery of Reclaimed Water. BOARD agrees to use its best
efforts to make available and deliver in the volume and at the
times requested, an annual volume of Reclaimed Water of at least
584,000,000 gallons (MGY), with maximum volume anyone day up to
but not to exceed 3,690,000 (1,230,000 north connection and
2,460,000 south connection respectively) gallons per day (GPD), at
a rate of 7,688 (2,563 north connection and 5,125 south
connection respectively) gallons per minute (GPM), for use on the
Property and the POA Property and, at its co~t, to connect the
BOARD's Reclaimed Water transmission facilities to RECIPIENT's
irrigation system at the point(s) of delivery agreed upon and as
shown in Exhibit "C". Both RECIPIENT and BOARD recognize that water
supply and demand will vary depending on a number of factors,
primarily climatic conditions.
3.4 Quality of Reclaimed Water. BOARD shall make available
to RECIPIENT Reclaimed Water of a quality consistent with the
requirements of "public access" treatJ.nent levels as set forth in
Chapter 62-610, Florida Administrative Code, or its successor Code
provisions, or of a quality consistent with more stringent
requirements that may be imposed by any governmental agency having
jurisdiction and legal authority. In recognition of the need to
supply Reclaimed Water, the BOARD shall also be required to comply
with effluent limitations set forth in Exhibit "D". All Reclaimed
Water made available by BOARD under this Agreement shall, at a
minimum, have been treated by advanced treatment methods to remove
harmful levels of bacteria, viruses, and other constituents or
pollutants which could constitute a danger to human health, "and in
accordance with all applicable federal, state and local laws,
rules, regulations, policies, ordinances, resolutions, orders and
permits and the requirements of Exhibit "D". BOARD shall provide
continuous monitoring of chlorine and turbidity, as well as other
required ground and surface water quality sampling and monitoring
of Reclaimed Water as required by local, state and federal
regulations and by Exhibit "D". BOARD agrees to divert away as
expeditiously as possible, from the irrigation system, any
Reclaimed Water which does not comply with the terms and
conditions of this Agreement or which does not meet the applicable
sta~e, federal.or local ~aws and regulations and to promptly and
fully notify RECIPIENT of such action. Copies of all. test results
shall be available to RECIPIENT upon request.
j . 5 Minimum Purchase of Reclaimed Water by RECIPIENT. Upon
receipt of all necessary governmental permits and approvals by all
parties and completion of construction of wastewater facilities and
continuing for so long as BOARD complies with the requirements set
forth ~n this Agreement, RECIPIENT has an obligation to pay for at
least 440,000,000 million gallons annually of Reclaimed Water for
spray irrigation on the Property and the POA Property, subject to
condi tions as set forth in Section 3.3 of this Agreement.
4-9-97
Reuse/Quai1.rdg/restatement.amd
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13
Notwithstanding anything to the contrary, Recipient shall not be
obligated to accept delivery of or pay for Reclaimed Water which
does not comply with the terms and conditions of this agreement.
Such exception to RECIPIENT'S obligation to accept delivery of such
Reclaimed Water by reason of the Board's failure to meet the water
quality standards required in this Agreement shall relieve
RECIPIENT of its obligation to pay BOARD for the minimum annual
volume set forth above at the rates determined pursuant to
Paragraph 5 below only to the extent that the BOARD shall not have
made available to RECIPIENT such annual minimum volume of Reclaimed
Water meeting the requirements of this Agreement through the
completion of the then current fiscal year. Recipient shall not
transfer the water provided by Board to any third party for use off
of the Recipient's or the POA Property. NotWithstanding the
foregoing, the minimum purchases as above described shall be brOken
down into two (2) phases:
a. Phase I - for the irrigation of the Property (the
golf courses) the RECIPIENT obligation shall commence at the time
and in the manner as specified in this Agreement with respect to
180,000,000 million gallons year (MGY).
b. Phase II - for the irrigation of the Property and
the POA Property the minimum obligations as described above shall
be increased to 440,000,000 million gallons per year (MGY) upon
connection of the supply lines from the RECIPIENT system to the
PDA's delivery system, provided that such connection and increase
in the obligation shall occur not later than
six months (6) following the delivery of Reclaimed Water for Phase
I, above.
3.6 RECIPIENT shall be responsible for all maintenance of
water and its irrigation system on RECIPIENTS side of the point(s)
of delivery.
3.7 Nothing in this Agreement shall be construed to give
RECIPIENT any right to the exclusive receipt of BOARD's Reclaimed
Water supply.
3 . R.1'he BOARD agrees that it will not enter into contracts
with other recipients of Reclaimed Water for more than its daily
SUpply capacity as the same exists from time to time.
.-
SECTION 14. Term and Fees
4.1 Ternl. The Easement and this Agreement shall be in effect
for a period of twenty (20) years commencing on the date of
execution of this Agreement. The term' of the Easement and this
Agreement shall be automatically extended for successive periods of
ten (10) years each, upon the same terms and conditions as herein
4-9-97
Reuse/Quail.rdg/restatement.amd
7
1'l
provided, unless either party hereto notifies the other by
certiIied mail at least three years prior to the expiration of the
initial term of this Agreement or any renewal thereof, that this
Agreement shall not be so extended.
4.2 Payment of Fees. In return for and in consideration of
BOARD's construction of facilities and delivery of Reclaimed
Water, RECIPIENT agrees to pay BOARD a one-time connection fee of
Six Thousand Five Hundred Dollars ($6,500.00) for the north
connection, and Nine Thousand Dollars ($9,000.00) for the south
connection, and a volume charge of 206 for each 1,000 gallons of
Reclaimed Water used (the "Volume Charge"), but on an annual basis
not less than the above rate times the minimum quantity RECIPIENT
has agreed to purchase under Section 3.5, together with a storage
charge equal to 8e (the "Storage Charge") for each 1,000 gallons of
Reclaimed Water the Volume Charge for which is paid for by
RECIPIENT, as provided above. Such Storage Charge shall remain
constant and shall not be adjusted during the term of this
Agreement or any extension hereof. Payment of the connection fee
shall be in one lump sum no later than the commencement of
construction of the modification to the BOARD's wastewater
facilities for the treatment and production of Reclaimed Water.
The Volume Charge shall remain constant until the expiration of
the third ( 3 ) fiscal year from the commencement of pumping
(provided that if less than six (6) months expires betweeJl the time
BOARD commences or makes available delivery of Reclaimed Water and
the end of the first fiscal year, such first year shall not count
as the first fiscal year), after which the price will be
redetermined as provided in Section 5. The BOARD shall render
billings to RECIPIENT for the volume charge on a monthly basis for
such applicable charges on the basis of the greater of the actual
Reclaimed Water delivered or the volume charge for 1/12th of the
minimum guaranteed annual volume agreed to be a.ccepted by RECIPIENT
pursuant to Section 3.5 above; provided that RECIPIENT shall pay no
more, on. a fiscal year basis,. than (i)such minimum annual
guaranteed volume charge or (ii)charges for Reclaimed Water
actually accepted during the fiscal year, whichever is more.
4.3 In the event the .BOARD shall not be able to deliver
Reclaimed.Water in the nlinimum vo.lume agreed to in Section 3.5 of
this Agreement, as a result of its inability to do so and through
no act~on or inaction on the part of the RECIPIENT, the RECIPIENT
shall be entitled to a credit for such shortage in the minimum
agreed to volume (by a proportionate reduction)_
SECTION 5. Future Adjustment of Price of Reclaimed Water.
The Volume Charge shall be adjusted after the first three (3)
fiscal years as aforesaid upward or downward based on one-half (!)
of the year-to-year change in the actual operating costs of
producing, metering and delivering Reclaimed Water from effluent
4-9-97
Reuse/Quail.cdg/restatement.amd
8
and transmitting it to the point of delivery ~or the RECIPIENT as
it relates to the preceding year's Volume Charge, however, such
Volume Charge shall never"be less than 20~ per thousaud gallons nor"
shall an increase be applied if the actual operating costs shall be
less than said 20~ per thousand gallons. The first such adjustment
shall Occur effective the first day of the fourth fiscal year
following the initial delivery of Reclaimed Water to RECIPIENT and
shall reflect one-half (ll the relative increase or decrease in
actual operating costs incurred by the BOARD during the second
fiscal year of delivery of Reclaimed Water to RECIPIENT as
compared to the third ~iscal year and for each subsequent year
thereafter as compared to the previous year. The actual operating
cost and change therein shall be the baSis for determining the
index for making theadjustmellts in the Volume Charge. Actual
operating costs ("Actual Operating Costs It) shall be determined in
conformity with generally accepted, accounting principles
consistently applied, except the depreciation of plant and
equipment and any other provision for capital recovery, inclUding
interest on long term debt, shall not be "included as operating
costs, as Such costs are properly allocable to wastewater
customers. Any increase or decrease in the Volume Charge shall be
determined as SOon as reasonably practicable aud shall be effective
retroactive to the scheduled date of adjustment and a sum due to
the BOARD as a result of the retroactive effect of Such adjustment
or the credit due the RECIPIENT, if appliCable, shall be reflected
in the next billings regularly submitted by BOARD to RECIPIENT as
provided in Subparagraph 5.4.
5.1 BOARD personnel shall establish, or cause to be
establiShed, and maintain an accounting system in which Such
current operating costs are recorded monthly in separate accounts
from sewage processing accounts. Costs shall be reCOgnized on a
first-in first-out basis. The BOARD personnel "shall prepare and
preserve any studies relating to the allocation. of operating costs
on other than an actually incurred basis. By way of example, the
parties agree that all Operating and maintenance costs of labor,
chemicals and power, permits, regulatory requb:ements, legal.,
engineering, administration, testing, meter cal.ibration and
contract services may be::.allocatedbased: on appropriate data or.
studies " ,Such current" operating costs shal.l be recorded on a
conSistent' basis ~from month to month and year to year, and the
total for each fiscal year shall be nsed to calcul.ate a cost per
thousaqq gal.lons of Reclaimed Water del.ivered beginning with the
second .. fiscal year after the plant starts to deliver Reclaimed
Water to RECIPIENT.
5.2 By way of example, if delivery begins on October 6, ~1996,
the third fiscal year thereafter would be October 1, 1998 to
September 30, 1999 . Assume that the actual Cost of producing
Reclaimed Water for the fiscal year October 1, 1997 through
4-9-97
Reus.e/Quai.l. rdg/restatement.amd
9
15
16
September 30, 1998 was 216. Further, assume that the Actual
Operating Cost of producing and delivering Reclaimed Water to
RECIPIENT during the second fiscal year to the end of the third
fiscal year (October 1, 1997, through September 30, 1999) increased
from 216 per thousand gallons to 23e per thousand gallons. The
index for increase would be calculated by dividing the base cost of
2le per thousand gallons into one-half (!) the 26 increase in cost,
resulting in an increase of 4.76% to the previous years' Volume
Charge of 20e per thousand gallons for the fourth fiscal year,
equal to 20.95~ per thousand gallons (! x 2 = 1 7 216 = .0476, then
20e x 1.0476 = 20.956).
5.3 As soon as reasonably practical, after each fiscal year
for which the contract price is subject to adjustment , the BOARD
shall prepare a statement showing in reasonable detail the actual
operating costs to produce Reclaimed Water from effluent for the
latest two fiscal years. For each such year, the statement shall
also show (1) the number of gallons in thousands of Reclaimed Water
delivered to Reclaimed Water users, (2) the cost per thousand
gallons of Reclaimed Water calculated by dividing such operating
costs by such gallons, (3) the calculation of the ratio of change
in cost per thousand gallons from the earlier year to the later
year, and (4) the calculation of the adjusted price for the later
year. This statement shall be deemed to be the responsibility of
the BOARD, and the BOARD's Executive Director shall attest in
writing to the propriety of the costs and calculations shown
thereon.
5.4 By January 15 of each year, the BOARD'S Executive
Director shall submit to RECIPIENT the supplemental statement set
forth in the preceding paragraph, together.with the attestation
thereto by the BOARD. At the same time, the BOARDS Executive
Director shall submit to RECIPIENT a bill or credit showing (l)the
amount paid by the RECIPIENT for Reclaimed Water delivered in the
current fiscal year, (2) the amount payable for Reclaimed Water
delivered in the current fiscal year based on the adjusted price
for the year as set forth above, and (3) the difference. Any such
difference shall be either paid promptly by the RECIPIENT, or shown
as a c:r.:edi t in the next bi11ing to the RECIPIENT.
5.5 For billing purposes only prior to the determination of
actua;t. costs for adjusting the Volume Charge, during each year
subje6t to price adjustment, the BOARD may.use a tentative price
per thousand gallons based on using budgeted costs for the current
year in the price adjustment calculation set forth above~
5.6 RECIPIENT, at its own expense, has the option of
examining the financial statements, general books and related
records, and production records of the BOARD.
4-9-97
Reuse/Quail.rdg/restatement.amd
10
17
5.7 Notwithstanding the above provisions, the -price paid by
the RECIPIENT for Reclaimed Water shall be adjusted downward in the
event the BOARD offers Reclaimed Water to any other non-
governmental customer (s) upon substantially similar terms and
condi tions for the same use of the Reclaimed Water at a lower
charge than RECIPIENT is or will be paying under this Section 5.
Such downward adjustment shall be made to guarantee RECIPIENT that
no other user of Reclaimed Water for similar purposes shall
receive a more favorable charge than will also be given to
RECIPIENT under similar circumstances.
5.8 To the extent that the BOARD receives governmental or
environmental noncapital improvement subsidies which are provided
to the BOARD for encouraging wastewater reuse and which are
intended to be applied pursuant to the terms of such grant or
subsidy to the operational costs of the Reclaimed Water faCility,
as opposed to capital improvements or expansion of such Reclaimed
Water facility, the BOARD will- apply such funds, to the extent
allowed, to its Reclaimed Water facility op~rating costs.
5.9 The parties to this Agreement agree and recognize that
RECIPIENT is under no legal or other obligation to enter into this
Agreement for reuse of wastewater. RECIPIENT currently has
operating permits from FDEP and the Water Management District to
pump surface and ground water for all RECIPIENT'S irrigation needs
and RECIPIENT'S costs to pump this surface and ground water is
substantially less than the charges RECIPIENT will pay for
Reclaimed Water under this Agreement. RECIPIENT'S only
consideration and motivation to enter into this Agreement is ta~'
insure sufficient irrigation water by receiving its full
allocation of Reclaimed Water on demand in accordance with the
rate and delivery conditions set forth in this Agreement, free
from adverse environmental or climatic impact. RECIPIENT has
determined that the benefits of this Agreement are only marginally
economically feasible. Therefore, if as a result of any action by
the BOARD, the City of Delray Beach or the City of Boynton Beach,
RECIPIENT would be required to pay charges in excess of those
established under Section 5, . then RECIPIENT sha11 . have.the option
of canceling this Agreement upon sixty (60) days. advance written
notice to.the BOARD.
SECTION. 6. Inspection. BOARD shall have the right to enter
RECIPIENT's Property and the POA Property, upon proper
identification and at any reasonable time, in order to inspect the
irrigation system as may be necessary or desirable,' .for the
operation, safety, protection, or preservation thereof, to
determine compl iance with any law, order or regulation of any
governmental authority having jurisdiction, and for sampling at any
monitoring wells located on the Property and the POA Property.
RECIPIENT shall have the right to enter the BOARD's plant and
4-9-97
Reuse/Quai1.rdg/restatement.amd
11
J (~
properties and the right of access to its wastewater facilities and
records, at any reasonable time, for the purpose of determining
whether the BOARD is in compliance with this Agreement.
SECTION 7. Assignments. This Agreement can be assigned by RECIPIENT
only with the prior written approval of BOARD, but such approval
shall not be unreasonably withheld, provided the assignee shall
assume this Agreement and shall demonstrate to BOARD its financial
ability to comply with the provisions hereof.
SECTION 8. Notices; Proper Form. Any notice required or allowed to
be delivered hereunder shall be in writing and shall be deemed to
be delivered when (1) hand delivered to the official hereinafter
designated, (2) upon receipt of such notice when deposited in the
United States mail, postage prepaid, certified mail, return receipt
requested, addressed to a party at the address set forth opposite
the party' name below, or at such other'address as the party shall
have specified by written notice to the other party delivered in
accordance herewith:
BOARD
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
Executive Director
1801 North Congress Avenue
Delray Beach~ FL 33445
RECIPIENT
QU~L RIDGE COUNTRY CLUB
C/O Club Manager
3715 Golf Road
Boynton Beach, FL 33436
COpy TO:
Boynton Beach City Manager
P.O. Box 310
Boynton Beach, FL 33425-0310
COpy TO:
Delray Beach City Manager
100 N.W. 1st Avenue
Delray Beach, FL 33444
COpy TO:
Robert W. Federspiel, Esg;
501 East Atlantic Avenue
Delray Beach, FL 33483
SECTION 9. Notices; Default. Each of the parties hereto shall give
4-9-97
Reuse/Quai1.rdg/restatement.arnd
12
19
the other party written notice of any defaults hereunder and shall
allow the defaulting party 30 days from the date of receipt to cUre
such defaults, except failure to deliver water on demand.
SECTION 10. Default by Either Party. If any party hereto fails to
perform or comply with any of the conditions of this Agreement, and
if the nonperformance shall continue for a period of thirty (30)
days after the written notice thereof to the non-performing party,
or if the performance cannot be reasonably completed within the
3D-day period, or if the nonperforming party does not in good faith
commence performance within the 3D-day period and does not
diligently proceed to complete performance, the non-performing
party shall be in default or breach of this Agreement.
SECTION 11. Indemnification. In the event RECIPIENT shall fail to
comply with any reuse water rule or regulation of any Federal,
State or County or local agencies, except BOARD, or violate any
permit granted with regard to the use of th~ irrigation system on
the RECIPIENT's Property and the POA Property, then RECIPIENT shall
indemnify the BOARD, its officers, governing board, employees and
agents against all claims, demands, causes of actions , suits,
judgments, fines, penalties, or losses, including all costs
suffered or incurred by the BOARD by reason of Such failure. In
the event the BOARD shall fail to comply with any rule, regulation,
order of any Federal, State or County or local agency, or fail to
deliver water meeting the quality standards provided by this
Agreement, then the BOARD shall, to the extent allowed by law,
indemnify the RECIPIENT, its officers, board of directors;"
employees and agents against all claims, demands, causes of
actions, suits, judgments, penalties, fines, or losses suffered or
incurred by the RECIPIENT as reason of such failure.
SECTION 12. Remedies of Default. If either party_ .hereto shall be in
default hereunder as set forth in Section 10, then the other party
shall have the following remedy: bring suit for the breach which
has occurred without affecting the obligations of the party to
perform the balance of the Agreement. The parties shall have the
right not. only to injunctive relief, but also to recover any
damages which a party may-incur as a result of the -breach of this
Agreement' by the other party. The parties further agree that any
litigation shall be brought in Palm Beach County, -Florida, only,
and the parties agree that the proper venue for any such action
would orrly be in Palm Beach County, Florida: The parties further
waive any right to Jury trial they may have in any action among
them involving this Agreement or the alleged breach thereof.
SECTION 13. Disclaimers of Third Party Beneficiaries. This
Agreement is solely for the benefit of the formal parties hereto
and no right or cause of action shall accrue upon or by reason
hereof or to or from or for the benefit of any third party not a
4-9-97
Reuse/Quai1.rdg/restaternent.amd
13
20
formal party hereto.
SECTION 14. Severability. If any part of this Agreement is found
invalid or unenforceable by any court, such invalidity or
unenforceability shall not affect the other parts of this
Agreement.
SECTION 15. Applicable Law. 'rhis Agreement and the provisions
contained herein shall be construed, controlled and interpreted
according to the laws of the State of Florida.
SECTION 16. Entire Agreement. This agreement contains the entire
Agreement between the parties hereto with respect to this
transact~on and supersedes all prior negotiations and all prior
written or oral understandings.
SECTION 17. Amendments. This Agreement may only be amended,
supplemented or discharged by an instrument in writing signed by
all parties hereto.
SECTION 18. Recordation. This Agreement or a mutually agreeable
memorandum thereof will be recorded in the public records of Palm
Beach County, Florida.
SECTION 19. Extent of Agreement. Each party shall advise the other
party, in writing,. as to the status of its construction document
preparation and construction of associated improvements on a
monthly basis .to ensure that both parties' activities are
progressing with reasonable diligence.
SECTION 20. Completion Date. The Board agrees to use its best
efforts have its Reclaimed Water facilities completed and available
for use for RECIPIENT ?nd RECIPIENT agrees to use its best efforts
to have its Irrigation System complete and to accept delivery of
Reclaimed Water from the BOARD on or before November 1, 1997,
subject to matters beyond the reasonable control of either party.
SECTION 21. Cross-Connection. RECIPIENT desires to connect its
south c~urse irrigation system with its north course irrigation
system, 'which will require crossing the Woolbright Road and L-26
canal. In that the BOARD will also have to cross both rights-of-
way to.;:.; connect its reclaimed water transmission facilities to
RECIPIBNT's irrigation system, the BOARD agrees to obtain a price
from its Contractor for the installation of. such pipe for
RECIPIENT. The RECIPIENT shall then be authorized to either
contract directly with the BOARD's Contractor for such pipe
installation or to obtain its own contractor.
4-9-97
Reuse/Quail.rdg/restatement.amd
14
21
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
~
J' . i /
By', ~ kL'~i~~<1-.s.,,-<~)
APPROVED AS TO FORM:
//( //'i
J...-------, / /
Board/Attorney /
QUAIL
RIDGE COUNTRY CLUB, INC.
fJ~ I w:$ tJJ
I
By:
APPROZ D BY: .....//~......~..//?
. /.
..7~ /C--t~~
Ci~~/of/D~lraY/Beach, Mayor
AJ?:pRO\T:ED BY V ..,
/-. ~.
j// .
..ry-
Mayor
4-9-97
~euse/Quail.rdg/restatement.amd
15
Examrr B
OPERATING RESTRlCTS
Recipient shall maintain compliance with the following operating restrictions for protecting
human health, welfare and safety, and the environment
1'\.
). The public shall be notified of the use of reclaimed water by posting advisory signs, notes
on score cards or other methods in accordance with Chapter )7-6) 0.468 F AC.
2. Direct connections between the reclaimed water system and irrigation water system shall
not be allowed without the use of appropriate bacJdlow prevention devices.
3. No cross-connection to potable water systems shall be allowed.
4. All reclaimed water valves and outlets sh~l be appropriately color coded and labeled in
accordance with Chapter 17-6l0A70 FAC to warn public and employees that the water
is not intended fOf drinking.
5. Setback distances to potable water supply wells and the use of low trajectory Dazzles shall
be in accordance with Chapter 17-6l0A71 FAC.
6, The use of reclaimed water shall be consistent with all applicable federal, sUlie, and local
Jaws and reQUlarions.
~:,..
Exhihit B
January ]995
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EXHIBIT D
Enclosure fA
Board sh{lll monitor the reclaimed water for the following parameters and agrees to di\'en reclaimed
water v.hich exceeds the specified limits.
Parameter Sampling Frequency Limit'l)
T urbidif) Continuous 2 NTU
Chlorine Residual Continuous 1 (minimum)
C~oride Continuous 350
CBODC'I Daily 20
TSS(3) Daily 5
pH Hourly 6 to 7.5 units'S)
7.8 units(6)
Aluminum Annual LO
Arsenic Annual 0.10
Beryllium Annual 0.10
Boron Annual 0.50
Cadmium Annual 0.01
Chromium Annual 0.1
Cobalt Annual 0.05
Copper Annual 0.2
Fluoride Annual 1.0
Iron Annual 5.0
Lead Annual 5.0
Lithium Annual 2.5
Manganese Annual 0.2
Molybdenium Annual 0.005
Nickel Annual 0.02
Selenium I Annual 0.02
Vanadium t Annual 0.10
Zinc Annual 2,0
Bicarbol}ate (as CaCO) Annual 120
Calcium Annual (4)
~gnesium Annual (4)
Sodium Annual (4)
Sodium Adsomtion Ratio Annual 6 un its
(l)
(2)
(3)
(4)
(5)
(6)
Maximum concentration expressed in mgIL unless noted.
Carbonaceous Biochemical Ox'ygen Demand (CBOD).
Total Suspended Solids (fSS).
Information used in calculation of Sodium Adsorption Ratio (SAR).
Daily average
2-Hour duration
W:..J'<1~\[XHIBI1.D
Exhibit D
January 1995 .
h~ lofl
AGREEMENT BETWEEN SOUTH CENTRAL REGIONAL
WASTEWATER TREATMENT AND DISPOSAL BOARD
AND QUAIL RIDGE COUNTRY CLUB
CONCERNING DELIVERY AND ACCEPTANCE
OF RECLAIMED WATER
THIS AGBEEMENT is made and entered into on this /~!~
day of lk.~ U.H..... 1996, by and between South Central
Regional wai;tewate:rj Treatment and Disposal Board, a municipal
corporation created pursuant to the laws of the State of
Florida (hereinafter BOARD), and Quail Ridge Country Club,
(hereinafter RECIPIENT).
Accordingly, for and in consideration
contained herein, mutual understandings
contained herein, and other conSideration,
sufficiency of which is hereby acknowledged
the parties covenant and agree as follows:
of the recitals
and agreements
the receipt and
by the parties,
SECTION 1. Recitals. The below recitals are true and
correct and form a material part of this Agreement.
1.1 The parties hereto represent to one another that each
has the full power and authority to enter into this Agreement
and to carry out their respective obligations thereunder. The
BOARD is cOmposed of the Cities of Boyntou Beach and Delray
Beach (the "Cities"), pursuant to an Interlocal Agreement
entered into pursuant to Chapter 163, Florida Statutes.
1.2 The parties recognize that reuse of Reclaimed Water is
in the public interest, as it recaptures an otherwise wasted
and unused water resource. The BOARD owns and operates
wastewater facilities which it proposes to ~pgrade to produce
Reclaimed Water suitable for irrigation of areas, such as
golf courses, parks, school grounds and cemeteries, and
RECIPIENT is Willing to accept Such Reclaimed Water for
irrigation purposes in the public interest.
1.3 In a norma). year, RECIPIENTS will irrigate
appro~imately 240 days and most of RECIPIENT'S daily
requIrements will be needed during approximately 12 hours
commencing about sundown. BOARD agrees to use its best
efforts to supply Reclaimed Water on demand to RECIPIENT up to
the' 'volume and at the charge set forth in this Agreement.
RECIPIENT has valuable golf cou-rses that require access to
Such Reclaimed Water and has expended substantial money and
effort and has foregone other avenues to meet its irrigation
requirements in reliance on this Agreement. The BOARD is not
required to upgrade its wastewater system to produce ReClaimed
Water but is doing so in reliance Upon the RECIPIENT entering
into this Agreement.
12-5-95
RRuSE/QUAILRIDGRIDELVERYoAGR
1
1.4 The RECIPIENT owns and controls land which is
described in Exhibit "A" (the "Property"), attached and made
a part hereof by reference.
1.5 RECIPIENT agrees to: (a) irrigate the Property using
Reclaimed Water; (b) maintain the storage facility, if
applicable, ponds and lakes, if applicable, pumps and
irrigation system to be located on the Property from the point
of delivery; and (C) upgrade its irrigation system when
reasonable and economical to utilize the volume of Reclaimed
Water accepted from. the BOARD and as required to meet any
federal, state, or local requirements, (d) maintain compliance
with the operating restrictions for protecting human health
and the environment attached thereto as Exhibit "B".
1.6 Recipient shall accept tpe Reclaimed Water delivered
by the BOARD and use it for irrigation of the Property. The
BOARD shall be deemed to be in possession and control of the
Reclaimed Water until it shall have. been delivered to the
RECIPIENT at the Point of Delivery. After Such d~livery, the
RECIPIENT shall be deemed to be in possession and control
thereof.
1.7 The RECIPIENT agrees to maintain all Federal, State
and governmental permits issued to it and necessary to allow
it to receive and utili~e the Reclaimed Water pursuant to the
terms of this Agreement.
1. B The right of the RECIPIENT to sell, transfer or
encumber the Property in areas irrigated with the Reclaimed
Water shall not be restricted by this Agreement. This
Agreement shall run with the land so long as the use of a
major portion of the Property shall contLnue to be for golf
course and related purposes. Any subsequent party in interest
to such golf course or courses shall be obligated to receive
and pay for ReClaimed Water under the same terms and
conditions of this Agreement, unless modified by mutual
consent of the BOARD and the buyer or transferee.
-
1 .,9 METER. The design and construction of the metering
facility shall be the responsibility of the BOARD and must be
mutually approved in advance in writing by BOARD and
RECIPIENT. The meter will be utilized to measure the amount of
Rec1aimed Water delivered by the BOARD to RECIPIENT and the
BOARD shall operate, maintain, cause to be calibrated, and
repair said meter.
1.10 CONSTRUCTION. Upon completion of the engineering
design of the metering facility, and the acceptance of same by
both parties, the metering facility will be constructed by the
BOARD and placed into service.
12-5-95
REUSR/QUAILRIDGR/DRLVERy.AGR
2
1.11 COSTS AND OPERATION. The BOARD shall bear the cost of
constructing, owning and maintaining the Reclaimed Water meter
and related appurtenances and the lines. interconnecting
BOARD's system into the metering facility, including all
valves and appurtenances up to and including the discharge
flanges of the valves immediately downstream of the meter. The
parties agree that the RECIPIENT shall have reasonable
aCcess to the metering facility, to all other Reclaimed Water
meters, check valves, and any Other appurtenances thereto, to
verify flows, meter readings, meter calibrations, efficiency
of the check valves, and any other perfonnance data necessary
to the operations of the Interconnection facility upon
reasonable advance notice to the Board. The metering device
shall be tested and calibrated, at BOARD's expense, at least
once per year and repaired if required. Any errors in meter
reading and any discrepancy in meter results from a true and
correct measure of Reclaimed Water flow to RECIPIENT shall be
adjusted prOperly and retroactively to reflect the flow to
RECIPIENT. Any inCorrect metering device shall be repaired
forthwith by the BOARD.
1.12 This agreement has been dUly authorized by all named
parties. Pursuant to Section 3 ( C) of the Interloc al
Agreement dated December 26, 1974, between the City of Boynton
Beach and the City of Delray Beach, this Agreement and all
provisions thereof have been contractually approved by a
majority vote of each City Council as the act of each City,
br, if such approval has not already been obtained, such
approval will be obtained and Certified to RECIPIENT befor~
this Agreement shall become effective.
SECTION 2. Definitions. The parties agree that in cOnstruing
this Agreement, the fOllowing words, Phrases and terms shall
have the fOllowing meanings, unless the Context requires
otherwise:
2.1 "Agreement" means this Agreement between BOARD and
RECIPIENT.
2.2 . "FDEp. means tl!e Florida Department of Environmental
Protection, and its successors.
2.3 "Fiscal Year" means October 1 to September 30 of the
fOllowing year.
~~ ~
;
2.4 "GPD" means gallons per day.
2.5 "Irrigation system" means those pump stations, lines,
pipes, sprinkler heads, ponds' and lakes, storage facilities,
if apPlicable, and pertinent equipment that are located on
RECIPIENT's property. and used to store, Spray and irrigate
with Reclaimed Water that has been treated in accordance with
12-5-95
REUSE/QUAILRIDGR/DELVERy.AGR
3
all applicable governmental regulations and in accordance with
the terms and provisions of this Agreement.
2.6 "MGD" means million gallons per day.
2 . 7 "Point of deli very" means the point at
which divides the BOARD's wastewater facilities
RECIPIENT's irrigation system, or as otherwise
engineering drawings approved by both parties.
the meter
from the
noted on
2.8 "Reclaimed Water" means wastewater that has been
treated in accordance with Section 3.4 of this Agreement.
2.9 "Reclaimed Water Disposal Facilities" means those
facilities necessary for the storage, if applicable,
transportation and disposal of wastewater previously treated
in accordance with applicable local, state and federal
standards and limitation at the plant to the standard of
Reclaimed Water. These facilities include, but are not limited
to, any Reclaimed Water transmission. facilities, irrigation
systems and storage facilities, if applicable.
2.10 "Reclaimed Water Transmission Facilities" means the
BOARD's facilities used to transmit Reclaimed Water.
2.11 "Storage Facilities" means those facilities which may
be designed, permitted and constructed on the Property, if
applicable, or upon the BOARD's property, if applicable, and
which are necessary to store and hold Reclaimed Water in a
manner that complies with regulatory requirements.
2.12 "Wastewater" means the product received by the
wastewater treatment facility for treatment.
. 2.13 "Wastewater Facilities" means the BOARD's plant
located at 1801 North Congress Avenue, Delray Beach, Florida,
and Reclaimed Water transmission facilities, including all
interceptors, lines, pipes, meters, couplings, pumps, force
mains, and appurtenant equipment necessary to treat and
transmit the Reclaimed Water.
SEC~ION 3. Grant of License and Easement. RECIPIENT hereby
grants to BOARD an easement over the Property, including a 15
foot utility easement to be mutually agreed upon and located
in:.the approximate location depicted on Exhibit "C" attached
hereto, to allow construction, operation, maintenance and
repair of the BOARD's Reclaimed Water transmission main to
the point of delivery, and the right to transmit, deliver and
dispose of Reclaimed Water through the irrigation system and
storage facility, if applicable, on the Property in accordance
with and subject to the following conditions:
12-5-95
REUSR/QUAILRIDGR/DELVERY.AGR
4
3.1 Desi n and installation of Certain Facilities. BOARD
agrees to design, permit, install and operate improvements and
additions at its existing wastewater treatment plant, and the
BOARD's Reclaimed Water transmission facilities, and to Permit
effluent disposal facilities in order to provide Reclaimed
Water at the point of delivery. RECIPIENT agrees to design,
permit, install and operate, at its sole expense, any storage
facility, if applicable, and the irrigation system on the
Property up to the point of delivery.
3.2 Permits and Approval for the Irriqation System.
Recipient shall be responsible, in cooperation with Board, for
obtaining and maintaining pecessary governmental permits and
approvals in order to install and operate the irrigation
system: provided, however, that Board shall be responsible
for obtaining and maintaining all permits for Reclaimed Water
disposal facilities. For all wastewater facilities located
on its ~ide of the point of delivery, Board shall be solely
responsible for obtaining, compiling, providing and complying
with all monitoring, sampling, testing, and reporting
requirements for the Reclaimed Water, which may be imposed by
government law, rule, permit, or approval. Recipient shall
grant Board upon reasonable advance notice to RECIPIENT access
to the irrigation system as needed to aSSure continued
compliance with applicable laws and regulations, including,
but not limited to, any monitoring or testing requirements.
3.3 Delivery of Reclaimed Water. BOARD agrees to use its
best efforts to make available and deliver in the volume a~q
at the times requested, an annual volume of Reclaimed Water of
at least 224 million gallons (MGY), with maximum volume any
one day up to but not to exceed 1,600,000 (700,000 and 900,000
for north and south connections, respectively) gallons per day
(GPD), at a rate of 3,333 (1,460 and 1,875 for north and south
connections, respectively) gallons per minute (GPM), for use
on the Property and, at its cost, to. connect the BOARD's
Reclaimed Water transmission facilities to RECIPIENT's
irrigation system at the point(s) of delivery agreed upon and
as shown in Exhibit "C". Both RECIPIENT and BOARD recognize
that water supply and-demand will vary depending on a number
of factors, primarily climatic conditions.
3.4 Quali tv of Reclaimed Water. BOARD shall make
aVq.:i;:lable to RECIPIENT ReClaimed Water of a quality consistent
with the requirements of "public access" treatment levels as
set forth in Chapter 62-610, Florida Administrative Code, or
its successor Code proviSions, or of a quality consistent with
more stringent requirements that may be ,imposed by any
governmental agency having juriSdiction and legal authority.
In recognition of the need to supply Reclaimed Water, the
BOARD shall also be required to comply with effluent
limitations set forth in Exhibit "D". All ReClaimed Water
12-5-95
REUSR/QUAILRIDGE/DELVERY.AGR
5
made available by BOARD under this Agreement shall, at a
minimum, have been treated by advanced treatment methods to
remove harmful levels of bacteria, viruses, and other
constituents or pollutants which could constitute a danger to
human health, and in accordance with all applicable federal,
state and local laws, rules, regulations, POlicies,
ordinances, resolutions, orders and pennits and the
requirements of Rxhibit "D". BOARD shall provide continuous
mpnitoring of chlorine and turbidity, as well as other
required ground and surface water quality sampling and
monitoring of Reclaimed Water as required by local, state and
federal regulations and. by Exhibit "D". BOARD agrees to
divert away as expeditiously as Possible, from the irrigation
system, any Reclaimed Water which does not comply with the
terms and conditions of this Agreement or which does not meet
the applicable state, federal or local laws and regulations
and to promptly and fully notify RECIPIENT of such action.
Copies of all test results shall be available to RECIPIENT
upon request.
3.5 Minimum Purchase of Reclaimed Water b RECIPIENT>
Upon receipt of all necessary governmental permits and
approvals by all parties and completion of construction of
wastewater facilities and continuing for so long as. BOARD
complies with the requirements set fOrth in this Agreement,
REClP lENT has an bbliga tion to pay for at 1 east _~ mill ron I To '" ILL I ~
gallons annually of Reclaimed Water for spray irrigation on ~/_
the Property, subject to conditions as set forth in Section,~:;
3 - 3 of this Agreement. Notwithstanding anything to t,!e '':\^ ~
contrary, Recipient shall not be obligated to accept deli very . .~,
of or pay for Reclaimed Water which does not comply with
the terms and conditions of this agreement. Such exception to
RECIPIENT'S obligation to accept delivery of such Reclaimed
. Water by reason of the Board's failure to meet the water
quality standards required in this Agreement shall relieve
RECIPIENT of its obligation to pay BOARD for the minimum
annual volume set forth above at the rates determined pursuant
to Paragraph 5 below only to the extent that the BOARD shall
not have made available to RECIPIENT such annual minimUm
volume of Reclaimed Water meeting the requirements of this
Agreement through the ~ompletion of the then current fiscal
year >, Recipient shall not transfer the water provided by
Board' to any third party or off of the Recipient's property
which is the subject of this agreement.
3.7 Nothing in this Agreement shall be construed to give
RECIPIENT any right. to the exclusive receipt of BOARD's
Reclaimed Water SUpply.
12-5-95
REUSEIQUAILRIDGR/DRLVERY:AGR
6
J.8 The BOARD agrees that it will not enter into
contracts with other recipients of Reclaimed Water for mOre
than its daily supply capacity as the Same exists from time to
time.
SECTION 4. Term and Fees
4.1 Xerm. The Easement and this Agreement shall be in
effect for a period of twenty. (20) years cOllllllencing on the
date of execution of this Agreement. The term of the Easement
and this Agreement shall be automatically extended for
sUccessive periods of ten (10) years. each, upon the Same terms
and conditions as herein provided, unless either party hereto
notifies the other by certified mail at least three years
prior to the expiration of the initial term of this Agreement
or any renewal thereof, that this Agreement shall not be so
extended.
4.2 Pavment of Fees. In return for and in consideration
of BOARD's construction of facilities and delivery of
Reclaimed Water; RECIPIENT agrees to pay BOARD a one-time
connection fee of $8,600.00 ($4,300.00 each for north and
south connections) and a volume charge of 20e for each 1,000
gallons of ReClaimed Water used, (the "Volume Charge) but on
an annual basis not less than the above rate times the minimum
quantity RECIPIENT has agreed to purchase under Section 3.5
together with a storage charge equal to 8e (the "Storage
Charge") for each 1,000 gallons of Reclaimed Water, the Volume
Charge for which is paid for by RECIPIENT, as provided above~<
Such Storage Charge shall remain COnstant and shall not be
adjusted during the term of this Agreement or any extension
hereof. Payment of the connection fee shall be in one lump
SUm no later than the COllllllencement of construction of the
modification to the BOARD's wastewater f,!cilities for the
treatment and production of Reclaimed Water. The Volume
Charge shall remain constant until the expiration of the
third ( 3) fiscal year from the COllllllencement of pumping
(prOVided that if less than six (6) months expires between the
time BOARD commences or makes available delivery of Reclaimed
Water and the end of t}le first fiscal year, Such first year
shall not COunt as the first fiscal year), after which the..
price'" will be redetermined as provided in Section 5. The
BOARD shall render billings to RECIPIENT for the volume charge
on a..monthly basis for such applicable charges On the basis of
thef'greater of the actual Reclaimed Water del.ivered or the
Volume charge for 1/12th of the minimum guaranteed annual
volume agreed to be accepted by RECIPIENT purSUant to Section
3.5 above; provided that RECIPIENT shall pay no more, on a
fiscal. year basis, than ( i) Such minimum annual guaranteed
vol ume charge or ( ii) charges for Reclaimed Water actually
accepted during the fiscal year, whichever is more.
12-5-95
RRUSE/QUAILRIDGR/DELVERY.AGR
7
4.3 In the event the BOARD shall not be able to deliver
Reclaimed Water in the minimum volume agreed to in Section 3.5
of this Agreement, as a result of its inability to do so and
through no action or inaction on the part of the RECIPIENT,
the RECIPIENT shall be entitled to a credit for such shortage
in the minimum agreed to volume (by a proportionate
reduction) .
SECTION 5. Future Adjustment of Price of Reclaimed Water.
The Volume Charge shall be adjusted. after the first three (3)
fiscal years as aforesaid upward or downward based on one-half
(!) of the year-to-year change in the actual operating costs
of producing, metering and delivering Reclaimed Water from
effluent and transmitting it to the point of delivery for the
RECIPIENT as it relates to the preceding year's Volume Charge,
however, such Volume Charge shall never be less than 20~ per
thousand gallons nor shall an increase be applied if the
actual operating costs shall be less than said 20c per
thousand gallons. The first such adjustment shall occur
effective the first day of the fourth. fiscal year following
the initial delivery of Reclaimed Water to RECIPIENT and
shall reflect one-half (!) the. relative increase or decrease
in actual operating costs incurred Py the BOARD during the
second fiscal year of delivery of Reclaimed Water to RECIPIENT
as compared to the third fiscal year and for each subsequent
year thereafter as compared to the previous year. The actual
operating cost and change therein shall be the basis for
determining the index for making the adjustments in the Volume
Charge.. Actual operating costs ("Actual Operating Costs")
shall be determined in conformity with generally acceptea
accounting principles consistently applied, except the
depreciation of plant and equipment and any other provision
for capita~ recovery, including interest on long term debt,
shall not be included as operating costs, as such costs are
properly allocable to wastewater customers:. Any increase or
decrease in the Volume Charge shall be determined as soon as
reasonably practicable and shall be effective retroactive to
the scheduled date of adjustment and a sum due to the BOARD
as a result of the retroactive effect of such adjustment or
the credit due the .RECIPIENT, if applicable, shall be
reflected in the next billings regularly submitted by BOARD to
RECIPIENT as provided in Subparagraph 5.4.
.... 5.1 BOARD personnel shall establish, or cause to be
est~lished, and maintain an accounting system in which such
current operating costs are recorded monthly in separate
accounts from sewage processing accounts. Costs shall be
recognized on a first-in first-out basis. The BOARD personnel
shall prepare and preserve any studies relating to the
allocation of operating costs on other than an actually
incurred basis. By way of example, the parties agree that all
operating and maintenance costs of labor, chemicals and power,
12-5-95
REUSR/QUAILRIDGE/DELVERY.AGR
B
permits, regulatory requir~nents, legal, engineering,
administration, testing, meter calibration and Contract
services may be allocated based on appropriate data or
stndies. Such current operating costs shall be recorded on a
consistent baSis from month to month and year to year, and the
total for each fiscal year shall be used to calculate a cost
per thousand gallons of Reclaimed Water delivered beginning
with the second fiscal year after the plant starts to deliver
Reclaimed Water to RECIPIENT.
5.2 By way of example, if delivery begins On October 6,
1996, the third fiscal year thereafter wonld be October 1,
1999 to September 30, 1999. Assume that the actual cost of
producing Reclaimed Water for the fiscal year October 1, 1997.
through September 30, 1999 was 21~. Further, assume that the
Actual Operating Cost of producing and delivering Reclaimed
Water to RECIPIENT during the seCond fiscal year to the end of
the third fiscal year (October 1, 1997, through September 30,
1999) increased from 21~ per thonsand gallons to 23~ per
thonsand gallons. The index for increase would be calcnlated
by diViding the. base cost of 2l~ per thousand gallons into
one-half (f) the 2~ increase in cost, resulting in an increase
of 4.76% to the previous years' Volume Charge of 20~ per
thousand gallons for the fourth fiscal year, equal to 20.95~
per thousand gallons (1 x 2 ~ 1 + 21~ ~ .0476, then 20~ x
1.0476 = 20.950).
5.3 As soon as reasonably practical, after each fiscal
year for which the Contract price is sUbject to adjustment .~.
the BOARD shall prepare a statement showing in reasonable
detail the actual operating costs to produce Reclaimed Water
from effluent for the latest two fiscal years. For each such
year, the statement shall also show (1) the nnmber of gallons
in thousands of Reclaimed Water delivered to Reclaimed Water
users, (2) the Cost per thousand gallons 0< Reclaimed Water
calculated by diViding such.operating costs by such gallons,
(3) the calculation of the ratio of change in cost per
thousand gallons from the earlier year to the later year, and
(4) the calculation of the adjusted price for the later year.
This statement shall be deemed to be the responsibility of the
BOARD, and the BOARD's Executive Director shall attest in
writIng. to the propriety of the Costs and calcUlations shown
thereon.
.,; 5 . 4 By January 15 of each year, the BOARD' S Executive
Director shall Submit to RECIPIENT the supplemental statement
set forth in the. preceding paragraph, together with the
attestation thereto by the BOARD. At the same time, the
BOARDS Executive Director shall submit to RECIPIENT a bill or
credit Showing (l)the amount paid by the RECIPIENT for
Reclaimed Water delivered in the current fiscal year, (2)the
amount payable for Reclaimed Water delivered in the current
12-5-95
RRUSRIQUAILRIDGR/DRLVERY0 AGR
9
fiscal year based on the adjusted price for the year as set
forth above, and (3)the difference. Any such difference shall
be either paid promptly by the RECIPIENT, or shown as a credit
in the next billing to the RECIPIENT.
5.5 For billing purposes only prior to the determination
of actual costs for adjusting the Volume Charge, during each
year subject to price adjustment, the BOARD may use a
tentative price per thousand gallons based on using budgeted
costs for the current year in the price adjustment calculation
set forth above.
5.6 RECIPIENT, at its own expense, has the option of
examining the financial statements, general books and related
records, and production records of the BOARD.
5.7 Notwithstanding the above provlslons, the price paid
by the RECIPIENT for Reclaimed Water shall be adjusted
downward in the event the BOARD offers Reclaimed Water to any
other non-governmental customer(s) upon substantially similar
terms and conditions for the same use.of the Reclaimed Water
at a lower charge than RECIPIENT is or will be paying under
this Section 5. Such downward adjustment shall be made to
guarantee RECIPIENT that no other user of Reclaimed Water for
similar purposes shall receive a more favorable charge than
will also be given to RECIPIENT under similar circumstances.
5.8 To the extent that the BOARD receives governmental
or environmental noncapital improvement subsidies which are
provided to the BOARD for encouraging wastewater reuse and
which are intended to be applied pursuant to the terms of such
grant or subsidy to the operational costs of the Reclaimed
Water facility, as opposed to capital improvements or
expansion of such Reclaimed Water facility, the BOARD will
apply such funds, to the extent allowed,cto its Reclaimed
Water facility operating costs.
5.9 The parties to this Agreement agree and recognize
that RECIPIENT is under no legal or other obligation to enter
into this Ag.:reement for reuse of wastewater. RECIPIENT
currently has operating permi ts from FDEP and the Water
Managem~nt District to pump surface and ground water for all
RECIPIENT'S irrigation needs and RECIPIENT'S costs to pump
this surface and ground water is substantially less than the
cha.tfges RECIPIENT will pay for Reclaimed Water under this
Agreement. RECIPIENT'S only consideration and motivation to
enter into this Agreement is to insure sufficient irrigation
water by receiving its full allocation of Reclaimed Water on
demand in accordance with the rate and delivery conditions set
forth in this Agreement, free from adverse environmental or
climatic impact. RECIPIENT has determined that the benefits
of this Agreement are only marginally economically feasible.
12-5-95
REUSE/QUAILRIDGE/DELVERY.AGR
10
Therefore, if as a result of any action by the BOARD, the City
of Delray Beach or the City of Boynton Beach, RECIPIENT would
be required to pay charges in eXcess of those established
under Section 5, then RECIPIENT shall have the option of
canceling this Agreement upon sixty (60) days advance written
notice to the BOARD.
SECTION 6. Inspec~ion. BOARD shall have the right to enter
RECIPIENT's property, upon proper identification and at any
reasonable time, in order to inspect the irrigation system as
may be necessary or desirable for the operation, safety,
protection, or preservation thereof, to determine compliance
with any law, order or regulation of any governmental
authority haVing juriSdiction, and for sampling at any
monitoring wells located on the property. RECIPIENT shall have
the'right to enter the BOARD's plant and properties and the
right of access to its wastewater facilities and records, at
any reasonable time, for the purpOSe of determining whether
the BOARD is incompliance with this Agreement.
SEC,!,ION 7. Assignments. This Agreement can be assigned by
RECIPIENT only with the prior written approval of BOARD, but
such approval shall not be unreasonably Withheld, provided the
assignee shall assume this Agreement and shall demonstrate to
BOARD its financial ability to comply with the provisions
hereof.
SECTION 8. Noi:ices; Proper Form. Any notice required or
allowed to be delivered hereunder shall be in writing and
shall be deemed to be delivered when (1) hand dellvered to the.
official hereinafter deSignated, (2) upon receipt of such
notice when deposited in the United States mail, postage
prepaid, certified mail, return receipt requested, addressed
to a party at the address set forth opposite the party' name
below, or at such other address as the.. party shall have
specified by written notice to the other party delivered in
accordance herewith:
BOARD
\" '-. -.,.
SOUTH CENTRAL REGIOnAL WASTEWATER
TREATMENT AND DISPOSAL BOARD
Executive Director
1801 North Congress Avenue
Delray Beach, FL 33445
RECIPIENT
QUAIL RIDGE COUNTRY CLUB
C/O Club Manager
3715 Golf Road
Boynton Beach, FL 33436
12-5-95
REnSBIQUAILRIDGR/DELVERY.AGR
11
COpy TO:
Boynton Beach City Manager
P.O. Box 310
Boynton Beach, FL 33425-0310
COpy TO:
Delray Beach City Manager
100 N.W. 1st Avenue
Delray Beach, FL 33444
COPY TO:
Robert W. Federspiel, Esq.
501 East Atlantic Avenue
Delray Beach, FL 33483
SECTION 9. Notices; Default. Each of the parties hereto shall
give the other party written notice of. any defaults hereunder
and shall allow the defaulting party 30 days from the date of
receipt to cure such defaults, except failure to deliver water
on demand.
SECTION 10. Default by Either Party. If any party hereto fails
to perform or comply with. any of the conditions of this
Agreement, and if the nonperformance shall continue for a
period of thirty (30) days after the written notice thereof to
the non-performing party, or if the performance cannot be
reasonably completed within the 30-day period, or if the non-
performing party does not in good faith commence performance
within the 30~day period and does not diligently proceed to
complete performance, the non-performing party shall be in
default or breach of this Agreement.
SECTION 11. Indemnification. In the event RECIPIENT shall fail
to comply with any reuse water rule or regulation of any
Federal, State or County or local agencies, except BOARD, or
violate any permit granted with regard to the use of the
irrigation system on the RECIPIENT's property, then RECIPIENT
sha~l . indemnify the BOARD, its officers, governing board,
employees and agents against all claims, demands, causes of
actions, suits, judgments, fines, penalties, or losses,
inqJ.uding all costs suffered or incurred by the BOARD by
reason of such failure. In the event the BOARD shall fail to
comply with any rule, regulation, order of any Federal, State
or County or local agency, or fail to deliver water meeting
the quality standards provided by this Agreement, then the
BOARD shall, to the extent allowed by law, indemnify the
RECIPIENT, its officers, board of directors, employees and
agents against all claims, demands, causes of actions, suits,
12-5-95
REUSE/QUAILRIDGE/DELVERY.AGR
12
judgments, penalties, fines, or losses suffered or incurred by
the RECIPIENT as reason of such failure.
SECTION 12. Remedies of Defaul~. If either party hereto shall
be in default hereunder as set forth in Section 10, then the
other party shall have the following remedy, bring suit for
the breach which has ocCurred without affecting the
obligations of the party to perfonn the balance of the
Agreement. The parties shall have the right not only to
injunctive relief, but also to recover any damages which a
party may incur as a result of the breach of this Agreement by
the other party. The parties further agree that any litigation
shall be brought in Palm Beach COunty, Florida, only, and the
parties agree that the proper venue for any such action would
only be in Palm Beach County, Florida. The parties further
waive any right to Jury trial they may have in any action
among them involving this Agreement or the alleged breach
thereof.
SECTION 13. Disclaimers of Third Par~y Beneficiaries. This
Agreement is solely for the benefit of the fonnal parties
hereto and no right or cause of action shall aCcrue upon or by
reason hereof or to or from or for the benefit of any third
party not a formal party hereto.
SECTION 14. Severabi1i~y. If any part of this Agreement is
found invalid or unenforceable by any court, Such invalidity
or unenforceability shall not affect the other parts of this
Agreement.
SECTION 15. Applicable Law. This Agreement and the provisions
contained herein shall be construed, Controlled and
interpreted according to the laws of the State of Florida.
SECTION 16. En~ire Agreeaen~. This agreement Contains the
entire Agreement between the parties hereto with respect.to
this transaction and supersedes all prior negotiations and all
prior written or oral understandings.
SECTION 17. Amendmen~~. This Agreement may only be amended,
supplemented or discharged by an instrument in writing signed
by all parties hereto.
SECTION 18. Recorda~ion. This Agreement or a mutually
agr~~able memorandum thereof will be recorded in the public
records of Palm Beach County, Florida.
SECTION 19. EX~en~ of Agreemen~. Each party shall advise the
other party, in writing, as to the status of its construction
document preparation and construction of aSSociated
improvements on a monthly basis to ensure that both parties'
activities are progressing with reasonable diligence.
12-5-95
REUSR/QUAILRIDGR/DELVERy.AGR
13
SECTION 20. Completion Date. The Board agrees to use its best
efforts have its Reclaimed Water facilities completed and
available for use for RECIPIENT and RECIPIENT agrees to use
its best efforts to have its Irrigation System complete and to
accept delivery of Reclaimed Water from the BOARD on or before
November 1, 1997, subject to matters beyond the reasonable
control of either party.
SECTION 21. Cross-Connection. RECIPIENT desires to connect
its south course irrigation system with its north course
irrigation system, which will require crossing the Woolbright
Road and L-26 canal. In that the BOARD will also have to
cross both rights-of-way to connect its reclaimed water
transmission facilities to RECIPIENT's irrigation system, the
BOARD agrees to obtain a price from its Contractor for the
installation of such pipe for RECIPIENT. The RECIPIENT shall
then be authorized to either contract directly with the
BOARD's Contractor for such pipe installation or to obtain its
own contractor.
SOUTH CENTRAL REGIONAL WASTEWATER
TREATMENT AND DISroSAL BOARD
(- --.........
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By:
ATTESTED BY:
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APPROVED AS TO FORM: /1
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Board "'Attorney {
QUAIL
/V;6/9r-
By:
AP~.ROVE!l:--~~: .
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C~~y 6f Deftay Beach, Mayor
APP::dF;:2
City of Boynton ach, Mayor
12-5-95
REUSE/QUAILRIDGE/DELVERY.AGR
14
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
(To Be Provided By Recipient)
QUAIL RIDGE (A PLANNED UNIT DEVELOPMENT)
PLAT NO. 1
BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF
SE~TION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, N\lD A
PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH,
RANGE 43 EAST, \lILLAGE OF GOLF ~AND PALM BEACH COUNTY,
FLORIDA
PLAT NO.2
BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF
SECTION 36, TOWNSHIP 45 SOUTH RANGE 42 EAST, PALM
BEACH COUNTY. FLORIDA
PLAT NO.3
BEING A SUBDIVISION OF A PORTION OF THE N 1/2 OF SECTION
36. TOWNSHIP 45 SOUTH, RANGE 42 EAST,
VlLLAGE OF GOLF AND PALM BEACH COUNTY, FLORIDA
PLAT NO. 3A
BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF
SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, PALM -~"-
BEACH COUNTY, FLORIDA
PLAT NO.4.
BEING A SUB.DIVISION. OF A PORTION OF THE N 1/2 OF SECTION
36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, PALM BEACH
COUNTY, FLORIDA
, , PLAT NO.5
BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF
. -
SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST AND A
PORTION OF THE NW 1/4 OF SECTION 31, TOWNSHIP 45 SOUTH, .
RANGE 43 EAST PALM BEACH COUNTY, FLORIDA.
PLAT NO. 6
BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF
SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST, VILLAGE
OF GOLF AND PALM BEACH COUNTY, FLORIDA
PLAT NO.7
BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE-HALF
OF SECTION 31. TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA
Page 1 of 3 - Exhibit 'p
5/l011g~
PLAT NO.8
BEING A SUBDIVlSION OF A PORTION OF THE NORTH ONE-HALF
OF SECTION 31, TOWNSHIP 45 SOUTH. RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA
PLAT NO. 9
BEING A SUBDIVISION OF A PORTION OF THE NORTH ONE-HALF
OF\SECTION 31. TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA
PLAT NO. 10
BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF
SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST AND A
PORTION OF THE NE 1/4 OF SECTION 36, TOWNSHIP 4S SOUTH,
RANGE 42 EAST, PALM BEACH COUNTY, FLORIDA
PLAT NO. 11
BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF
SECTION 31, TOWNSHIP 45 SOUTH, RANGE~43 EAST, PALM
BEACH COUNTY, FLORIDA
PLAT NO. 12
BEING A SUBDIVISION OF A PORTION OF THE NE 1/4 OF
SECTION 36, TOWNSHIP 45 SOUTH, RANGE 42 EAST, PALM
BEACH COUNTY, FLORIDA .
PLAT NO. 13
BEING A SUBDIVISION OF A PORTION OF THE NW 1/4 OF
SECTION 31, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA
PLAT NO. 14
IN SECTION 30, TowNsHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF TRACTS 105,
119, 120 AND PORTIONS QF TRACTS 73,74,87,88, 106, 107, 117
AND 118 PALM BEACH FARMS COMPANY PLAT NO.8, SECTION
30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE
73 AND OTHER LANDS
PLAT NO. 15
IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF PORTIONS OF
TRACTS 53, 54, 75, 76. 85 AND 86 PALM BEACH FARMS
COMPANY PLAT NO.8. SECTION 30, TOWNSHIP 45 SOUTH,
RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS
Page 2 of 3 - Exhib
5110/
PLAT NO. 16
IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTI, FLORIDA, BEING A RE-PLAT OF PORTIONS OF
TRACTS 73, 74. 75, 86, 87 Al'JD 88 PALM BEACH FARMS
COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45 SOUTH
- . ,
RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER LANDS
"" PLAT NO. 17
IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTY, FLORlDA, BEING A RE-PLAT OF PORTIONS OF
TRACTS 85,86,87, 106, 107, 108, 117 AND l18 PALM BEACH
FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45
SOUTH, RANGE 43 EAST. PLAT BOOK 5, PAGE 73 AND OTHER
LANDS
PLAT NO. 18
IN SECTION 30, TOWNSHIP 45 SOUTH; RANGE 43 EAST, PALM
BEACH COUNTY, FLORlDA, BEING A RE-PLAT OF PORTIONS OF
TRACTS 51,52,53,54,76,77,78, 84 AND 8 PALM BEACH
FARMS COMPANY PLAT NO.8, SECTION 30, TOWNSHIP 45
SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73 AND OTHER
LANDS
PLAT NO. 19
IN SECTION 30, TOWNSHIP 45 SOUTH; RANGE 43 EAST, 'PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF TRACTS 19, 20,
45 AND 46 AND PORTIONS OF TRACTS 12, 13, 14, 21, 43, 44, 51,
52, 53 AND 54 PALM BEACH FARMS COMPANY PLAT NO.8,
SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK
5, PAGE 73 AND OTHER LANDS
-. PLAT NO. 20
IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTI, FLOR.IDA, BEING A RE-PLAT OF TRACTS 22,41.
42.,:.AND PORTIONS OF TRACTS 11, 12,21, 43,53,54,55 AND 56
PALM BEACH FARMS COMPANY PLAT NO.8, SECTION 30,
TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK 5, PAGE 73
AND OTHER LANDS
PLAT NO. 21
IN SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM
BEACH COUNTY, FLORIDA, BEING A RE-PLAT OF TRACTS 115,
116, 110, 109,83 AND PORTIONS OF TRACTS 117, 108,84,85,
78,77,51 AND 52 PALM BEACH FARMS COMPANY PLAT NO.8,
SECTION 30, TOWNSHIP 45 SOUTH, RANGE 43 EAST, PLAT BOOK
5, PAGE 73 AND OTHER LANDS
Page 3 of 3 - Exhibit
t:::11C\Ir
EXHIBIT B
OPERA TINe RESTRlCTS
Recipient shall maintain C<lmpliance wid, the fOllowing operating restrictions for protecting
human health, welfare and safety, and the environment
""
I. ne public sball be notified of the use of reclaimed water by posting advisory signs, notes
on score cards or other methods in accordance with Chapter 17-6J0.468 FAC
2. Direct C<lnnections between the reclaimed water system and irrigation water system shall
not be allowed without the use of appropriate backflow prevention devices.
3~ No cross-connection to potable water systems shall be aJJowed.
4. All reclaimed water valves and outlets sb~l be appropriately color coded and labeled in
accordance with Chapter J7~ 10.470 F AC to warn public and employees that the water
is not intended for drinking.
5. Setback distances to potable water supply weJJs and the use of low trajectory nozzles shall
be in accordance with Chapter I 7-6 lOA 7 I FA C
6. The use of reclaimed water shaJJ be consistent with all applicable federal. sLate, and local
laws and re~lations~
"
A:.~5U\EXHmJT.B
Exhil:>it B
January] 995
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EXHIBIT D
Enclosure fA'
Board s~11 monitor the reclaimed water for the follo"'.ing parameters and agrees 10 divert reclaimed
water which C).ceeds the specified limits_
Parameler Sampling Frequency Limit'J)
T urbidit} Continuous 2 NTV
Chlorine Residual Continuous (minimum)
CJMoride Continuous 350
CBODG) Daily 20
TSS(3) Daily 5
pH Hourly 6 10 7.5 unit5I~)
7.8uni15(6)
Alumiimm Annual LO
Arsenic Annual O.lO
Beryllium Annual 0.] 0
Boron Ann ual 0.50
Cadmium Annual 0.01
Chromium Annual 0.1
Coball Annual 0.05
Copper Annual 0.2
Fluoride Annual LO
Iron Annual 5.0
Lead Annual 5.0
Lithium Annual 2.5
Manganese Annual 0.2
Molybdenium Annual 0.005
Nickel Annual 0.02
Selenium Annual 0.02
Vanadium Annual 0.]0
Zinc Annual 2.0
BicarbQ}1ale (as CaCO-) Annual 120
." ..). (4)
Calcium Annual
Magn..esium Annual (.4)
Sodium Annual (4)
Sodium Adsorolion Ratio Annual 6 unilS
(l)
(2)
(3)
(4)
(5)
(6)
Maximum concentration expressed .in mgIL unless noted.
Carbonaceous Biochemical O),:ygen Demand (CBOD).
Total Suspended Solids (fSS).
Information used in calculation of Sodium Adsorption Ratio (SAR).
Daily average
2-Hour duration
W:..7~7~\EXHIBI1.D
Exhibit D
January J 995
P.&~ J of J
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CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORlVl
VI.-CONSENT AGENDA
ITEM C.2.
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
[g] August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon)
0 August 16,2005 August 1,2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon)
0 September 6, 2005 August 15,2005 (Noon) 0 November 1,2005 October 17,2005 (Noon)
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15, 2005 October 31, 2005 (Noon) .-,
:-J
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,
0 Administrative 0 Development Plans
NATURE OF [g] Consent Agenda 0 New Business
AGENDA ITEM 0 Public Hearing 0 Legal
0 Bids 0 Unfmished Business
0 Announcement 0 Presentation
0 City Manager's Report
..)
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RECOMMENDATION:
Motion to approve and execute by resolution Amendment No. 001 (Exhibit 'A') to the Interlocal
Agreement between the City of Boynton Beach and Palm Beach County regarding the Lake
Worth Lagoon Partnership Program.
EXPLANATION:
The Utilities Department received grant approval from the Lake Worth Lagoon Grant Program,
managed by Palm Beach County and funded by the Florida Department of Environmental
Management. The grant program focuses on storm water discharged into the Lake Worth
Lagoon and storm water improvement projects that will improve the water quality of the lagoon.
The storm water improvement plan for the INCA neighborhood project was approved for this
reimbursable grant in the amount of $500,000. The INCA project is located on NE 7th Street
between NE 10th Avenue and NE ih Avenues. Permits required by the South Florida Water
Management and the U.S. Army Corp. of Engineers are in place and we anticipate that
construction will begin by the end of July or early August, 2005.
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
PROGRAM IMPACT:
Agreement No. S0089, Amendment No. 001 (Exhibit 'B') revises the original agreement with the
addition of Paragraph 23 as follows:
"Grantee (Palm Beach County Board of Commissioners) funds have been used for the acquisition
of land for this project. The Grantee agrees that the funds used to purchase the land shall not be
used as match to any other Agreement (Lake Worth Lagoon Grant Partnership) supported by
State or Federal funds."
Since this amendment is retroactive to the date of the original agreement, it applies to all grant
funding for storm water improvements under the Lake Worth Lagoon Grant Partnership.
FISCAL IMPACT:
Amendment No. 001 will have no Fiscal Impact on this project. The City must verify expenditures
of $900,000 in matching funds to request payment for all or any portion of the $500,000 grant
funding. The construction bid for the INCA project, awarded by the City Commission on June
21,2005 for $4,130,097 included approximately $3,000,000 for storm water improvements making
it unnecessary to request payment for land acquisition costs.
By comparison, the city recently received reimbursement of $169,647.46 under this same grant for
work related to the Twenty Outfall Structures Storm Water Improvement project.
AL TERNA TIVES:
There is no alternative. If the city includes land acquisition costs as a portion of matching funds
for t is project, se costs would be denied.
Kofi eng
Director of Utilities
fffJM ;k~~$
. Kurt Bress r
ity Manager
Utilities Department
Department Name
Attachments:
Exhibit' A' - Amendment No. 001 for execution
Exhibit 'B' - DEP Agreement No. S0089
bc: Kofi Boateng, Director of Utilities
Paul Fleming, Sr. Project Manager
Barb Conboy, Manager, Utilities Admin.
PMT File
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM. DOC
1 RESOLUTION R05-
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, AUTHORIZING EXECUTION OF AN
5 AMENDMENT NO. 001 TO THE INTERLOCAL
6 AGREEMENT BETWEEN THE CITY AND PALM
7 BEACH COUNTY FOR A LAKE WORTH LAGOON
8 PARTNERSHIP PROGRAM REIMBURSABLE GRANT
9 IN THE AMOUNT OF $500,000 FOR THE NE 7TH
10 STREET STORMW A TER IMPROVEMENTS PROJECT;
11 AND PROVIDING AN EFFECTIVE DATE.
12
13 WHEREAS, the Utilities Department has received grant approval from the
14 Lake Worth Lagoon Partnership Grant Program managed by Palm Beach County
15 and funded by the Florida Department of Environmental Protection; and
16 WHEREAS, the grant is to be applied to the Stormwater improvement
17 program planned for the INCA neighborhood located on NE 7'h Street between
18 NE I Olh Avenue and NE 7'h Avenues; and
19 WHEREAS, Amendment No. 001 to the Interlocal Agreement will add
20 language to restrict grant funds used for land acquisition from being used as match
21 to any other Agreement supported by State or Federal funds.
22
NOW, THEREFORE, BE IT RESOLVED BY THE CITY
23
COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
24
Section 1.
The foregoing "Whereas" clauses are hereby ratified and
25
confirmed as being true and correct and are hereby made a specific part of this
26
Resolution upon adoption hereof.
27
Section 2.
Upon recommendation of staff, this Commission does
28
hereby authorize the City Manager to execute Amendment No. 001 to the
29
Interlocal Agreement between the City and Palm Beach County for a Lake Worth
S:\CA\RESO\Agreements\lnterlocals\lnterlocal- INCA Stormwater Grant Amendment.doc
1
Lagoon Partnership Program reimbursable grant in the amount of $500,000 to be
2
applied to the Stonnwater improvement program planned for the INCA
3
neighborhood located on NE ih Street between NE lOth A venue and NE ih
4
Avenues, which is attached hereto as Exhibit "A".
5
Section 3.
That this Resolution shall become effective immediately
6
upon passage.
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8
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10
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PASSED AND ADOPTED this _ day of August, 2005.
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commi ssi oner
Commissioner
ATTEST:
City Clerk
(Corporate Seal)
S:\CA\RESO\Agreements\lnterlocals\lnterlocal - INCA Stormwater Grant Amendment.doc
EXHIBIT 'A'
INTERLOCAL AGREEMENT
BETWEEN
PALM BEACH COUNTY AND THE CITY OF BOYNTON BEACH
AGREEMENT #R2003-1556
NE 7th Street Stormwater Improvements
AMENDMENT NO. 001
GRANTEE
CITY OF BOYNTON BEACH
DEPARTMENT OF UTILITIES
124 E. WOOLBRIGHT ROAD
BOYNTON BEACH, FLORIDA 33435
...c.
THIS AGREEMENT, entered into on the 19th day of August, 2003, is hereby revised as
follows:
· Exhibit B is hereby revised to include the attached Amendment No. 1 to DEP Agreement
No. S0089.
All other terms and conditions of the Agreement shall remain unchanged.
CITY OF BOYNTON BEACH
PALM BEACH COUNTY, FLORIDA
BY ITS BOARD OF COUNTY
COMMISSIONERS
By:
By:
Tony Masilotti, Chairman
Date
Mayor
Date
ATTEST:
ATTEST:
By:
By:
Sharon R. Bock, Clerk
Date
Date
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
By:
By:
i~
Town's Attorney
Assistant Gounty Attorney
APPROVED AS TO TERMS AND
CONDITIONS:
By:
Director, Department of
Environmental Resources
Management
T:\eer\coastal\Lake Worth Lagoon\DEP Grants\02-03S0089\B-Beach\InterlocaI\IA-amend.doc
EXHIBIT 'A'
INTERLOCAL AGREEMENT
BETWEEN
P Al,M BEACH COUNTY AND THE CITY OF BOYNTON BEACH
AGREEMENT #R2003-1556
NE ih Street Stormwater Improvements
AMENDMENT NO. 001
GRANTEE
CITY OF BOYNTON BEACH
DEPARTMENT OF UTILITIES
124 E. WOOLBRIGHT ROAD
BOYNTON BEACH, FLORIDA 33435
THIS AGREEMENT, entered into on the 19th day of August, 2003, is hereby revised as
follows:
. Exhibit B is hereby revised to include the attached Amendment No. 1 to DEP Agreement
No. S0089.
All other terms and conditions of the Agreement shall remain unchanged.
CITY OF BOYNTON BEACH
PALM BEACH COUNTY, FLORIDA
BY ITS BOARD OF COUNTY
COMMISSIONERS
By:
By:
Mayor
Date
Tony Masilotti, Chairman
Date
ATTEST:
ATTEST:
By:
By:
Date
Sharon R. Bock, Clerk
Date
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
By:
By:
Town's Attorney
Assistant County Attorney
APPROVED AS TO TERMS AND
CONDITIONS:
By:
Director, Department of
Environmental Resources
Management
T:\eer\coastal\Lake Worth Lagoon\DEP Grants\02-03S0089\B-Beach\Interloca1\IA -amend. doc
Department of Environmental
Resources Management
323 Belvedere Road. Building 502
West Palm Beach. FL 33406.1548
(561) 233.2400
FAX: (561) 233.2414
www.pbcgov.com
.
Palm Beach County
Board of County
Commissioners
Tony Masilotti, Chairman
,. Greene. Vice Chairperson
Karen T Marcus
Jeff Koons
Warren H. Newell
Mary McCarty
Burt Aaronson
County Administrator
Robert Weisman
"An Equal Opportunity
Affinnative Action Employer"
@ printBd on fBCyclBd paps,
EXHIBIT 'B'
June 7, 2005
rm~@~DW~@
JUN " r\
. >.)
Paul M. Fleming
City of Boynton Beach
Department of Utilities
J 24 E. Woolbright Road
Boynton Beach, Florida 33435
BOYNTON BEACH UTILITIES
Dear Mr. Fleming~
SUBJECT:
LAKE WORTH LAGOON C1RANT FROGRAM
AMENTIMENTS TO INTERLOCAL AGREEMENTS
Enclosed are two copies of Amendment No. I to the Inttdocal Agreem(;,-.i ;";0
R2003-1557. This amendment upon execution will add the fee em
modifications to the DEP Agreement No SOOlN The amendmenT to the DEP
Agreement indudes language to restrict grant fnnds u$cd for land acqulf-:ition
from being used as match to any other /\ ~n'ement supported hy State OJ
Federal funds and standard language rdattd te 8pf,cic:~~i audit requiH;men~.",
Please bave an authorized repn-:sentativ,:; ~hr the Ciry rev 11;':"1 and ~)g(1 tbe
e~}Q.S€d amendments and return heth oIi(~in,"J d~:,~'.t;m\?nts.s'lith .sigllann~s 1'.0
th~ letterhead address. Vou af~. advi>.;e.t to keciJ a (';'JP}{ of th.i' c''\.::i:utcd
amendments fer your records
If you have any questions, please call me ,], S6 ;"2 B-2M)(i or MichatJ Stahl dt
561/233-2512.
Q
Richard E. Walesky, D;rector
Environmental Resources Management
REW:ms
Enclosure
ce. Ann Helfant, PRe Attomey's Office
~rYJ-eJ- )
EXHIBIT'B'
DEP AGREEMENT NO. S0089
AMENDMENT NO.1
THIS AGREEMENT as entered into on the 15th day of July, 2003, between the STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION (hereinafter referred to as the "Department") and the
PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS (hereinafter referred to as "Grantee" or
"Recipient") is hereby amended.
WHEREAS, due to hurricane activity during the month of September, 2004, which directly impacted the
geographic allocation of the Grantee, the schedule for this project has been delayed; and,
WHEREAS, Project No. 02-5 Garden Avenue Drainage - Phase I has been revised to avoid construction
and operation of a retention area on the West Palm Beach Golf Course due to a necessary precaution to avoid
disturbance of arsenic contaminated soils and groundwater at the golf course; and,
WHEREAS, the Grantee has requested and the Department has agreed to a no-cost time extension of the
Agreement through December 30, 2006; and,
wHEREAS, in order to reflect the aforementioned changes in project description and schedule, Attachment
A needs to be replaced in its entirety; and,
,
wHEREAS. the Grantee understands that certification forward of State Fiscal Year 2002-2003 funds
supporting ~s Agreement beyond June 30th of each year is subject to the approval of the Governor's Office; and.
WHEREAS. the Grantee has requested an end date that extends beyond the current authorized funding
period; and,
wHEREAS, the Grantee understands that if the Governor's Office does not approve the Department's
request to certify the funds forward, the Grantee will not be eligible for reimbursement for the activities covered by
the remaining unpaid State Fiscal Year 2002-2003 funds; and,
wHEREAS, additional changes to the Agreement are necessary.
NOW. THEREFORE, the parties hereto agree as follows::
Paragraph 2. is hereby revised to change the completion date of the Agreement from June 30, 2005 to
December 30. 2006 and to include the following as a separate subparagraph:
The Grantee understands and agrees that certification forward of the State Fiscal Year 2002-2003 funds
supporting this Agreement beyond June 30th of each year is subject to the approval of the Governor's
Office.
Paragraph 10. is hereby deleted in its entirety and replaced with the following:
10.
A.
In addition to the requirements of the preceding paragraph, the Grantee shall comply with
the applicable provisions contained in Attachment C-l (Revised Special Audit
Requirements), attached hereto and incorporated herein by reference. Exhibit 1 to
Attachment C-l summarizes the funding sources supporting the Agreement for purposes
of assisting the Grantee in complying with the requirements of Attachment C-l. A
revised copy of Exhibit 1 must be provided to the Grantee for each amendment which
authorizes a funding increase or decrease. If the Grantee fails to receive a revised copy of
Exhibit 1, the Grantee shall notifY the Department's Grants Development and Review
Manager at 850/245-2361 to request a copy of the updated information.
DEP Agreement No. S0089, Amendment No.1. Page 1 of3
EXHIBIT 'B'
B. The Grantee is hereby advised that the Federal and/or Florida Single Audit Act
Requirements may further apply to lower tier transactions that may be a result of this
Agreement The Grantee shall consider the type of financial assistance (federal and/or
state) identified in Attachment C-l, Exhibit 1 when making its deter$nation. For
federal financial assistance, the Grantee shall utilize the guidance provided under OMB
Circular A-133, Subpart B, Section _.210 for determining whether the relationship
r~resents ~t ofa subrecipient or vendor. For state financial assistance, the Grantee
shall utilize the fonn eiititled "Cheeklfst . -for Nonstite Otganizations
RecipientlSubrecipient vs Vendor Determination" (fonn number FSAA _ CL2) that can be
found under the "LinkslForms" section appearing at the following website:
htt;p:/lwww.fsaa.state.fl.us!
The Grantee should confer with its chief financial officer, audit director or contact the
Department for assistance with questions pertaining to the applicability of these
requirements.
The language included in the Agreement as Paragraph 23. shall hereinafter be referenced as Paragraph 24.
The following language is hereby added to the Agreement as Paragraph 23.:
23. Grantee matching funds have been used for the acquisition of land for this project. The Grantee
agrees that the :funds used to purchase the land shall not be used as match to any other Agreement
supported by State or Federal funds.
Attachment A, Project Work Plan is hereby deleted in its entirety and replaced with Attachment A-I,
Revised Project Work Plao, attached hereto and made a part of the Agreement. All references in the
Agreement to Attachment A shall hereinafter refer to Attachment A-I, Revised Project Work Plan.
Attachment C, Special Audit Requirements is hereby deleted in its entirety and replaced with Attachment
C-I, Revised Special Audit Requirements, attached hereto and made a part of the Agreement All
references in the Agreement to Attachment C shall hereinafter refer to Attachment C-I, Revised Special
Audit Requirements.
REMAINDER OF PAGE INTENTIONALLY LEFf BLANK
DEP Agreement No. S0089, Amendment No.1, Page 2 of3
EXHIBIT 'B'
In aU other respects, the Agreement of which this is an Amendment and attachments relative thereto, shall
remain in ful1 force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed the day and year
last written below.
PALM BEACH COUNTY BOARD OF
COUNTY COMMISSIONERS
STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
By:
*Chairman or designee
By:
Secretary or designee
Date:
Date:
Approved as to form and legal sufficiency:
T7dl;zt~
DEP Contracts Administrator
PBC Assistant Attorney
A~;~
PBC ERM ~irector .
Approved as to form and leglllity:
k~~~
*For Agreements with governmental boards/commissions: If someone other than the Chairman signs this
Amendment, a resolution, statement or other document authorizing that person to sign the Amendment on behalf of
the Grantee or must accompany the Amendment.
List of attachments/exhibits included as part of this Amendment:
Specify
Type
Attachment
Attachment
Letter/
Number
A-I
C-I
Description (include number of Dages)
Revised Project Work Plan (6 Pages)
Revised Special Audit Requirements (5 Pages)
D EP Agreement No. S0089, Amendment No. I, Page 3 of 3
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORlVl
VI.-CONSENT AGENDA
ITEM C.3.
Requested City Commission Date Final Form Must be Turned Requested City Commission
Meetilll!. Dates in to City Clerk's Office Meeting Dates
[gJ August 2, 2005 July ] 8, 2005 (Noon.) 0 October5,2005
0 August] 6, 2005 August I, 2005 (Noon) 0 October] 8, 2005
0 September 6, 2005 August 15, 2005 (Noon) 0 November I, 2005
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005
Date Final Form Must be Turned m
to City Clerk's Office
September 19,2005 (Noon)
October 3, 2005 (Noon)
October 17,2005 (Noon)
. ..
-< _.~
October 3], 2005 (Noon)
0 Administrative 0 Development Plans
NATURE OF [gJ Consent Agenda 0 New Business
AGENDA ITEM 0 Public Hearing 0 Legal
0 Bids 0 Unfinished Business
0 Announcement 0 Presentation
0 City Manager's Report
"
.-.....
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RECOMMENDATION:
Motion to approve and authorize signing of an Agreement for Water Service Outside the City Limits with Nelson R.
Santos & Teresa Santos for the property at 4700 White Feather Trl, Boynton Beach, FL (13-45-42, W 160 FT of N
272.25 FT of NW 1/4 of SE 1/4 of NW 1/4).
EXPLANATION:
The parcel covered by this agreement includes a single-family home. Only potable water is available for connection
to the property at this time. (See location map)
PROGRAM IMPACT:
A Water Distribution main exists in the vicinity, allowing for the service to this parcel. No additional construction
will be required by the City to serve this property.
FISCAL IMPACT: None
AL TERNA TlV
~'i.
: None. This parcel is within the Utilities service ar
"
. .~-..
s Signature
[,{i,l,t/~~
Department Name
City Attorney / Finance / Human Resources
XC:
Peter Mazze]]a (wi copy of attachments)
Michael Rumpf, Planning & Zoning
Anthony Penn
File
"
S:\BULLETIN\FORMS\A.GENDA ITEM REQUEST FORM.DOC
1 RESOLUTION NO. ROS-
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, AUTHORIZING AND DIRECTING
5 EXECUTION OF AN AGREEMENT FOR WATER
6 SERVICE OUTSIDE THE CITY LIMITS AND
7 COVENANT FOR ANNEXATION BETWEEN THE CITY
8 OF BOYNTON BEACH AND NELSON R. SANTOS AND
9 TERESA SANTOS; PROVIDING AN EFFECTIVE DATE.
10
11
12 WHEREAS, the subject property is located outside of the City limits, but within our
13 water and sewer service area, located at 4700 White Feather Trail, Boynton Beach, Florida
14 (13-45-42, W. 160 Ft ofN 272.25 Ft ofNW ]/4 ofSE Y4 ofNW 1/4); and
15 WHEREAS, the parcel covered by this agreement will include a single-family home
16 which only potable water is available for connection at this time; and
17 WHEREAS, a water distribution main exists in the vicinity allowing for the service to
18 this parcel; and
19 WHEREAS, no additional construction will be required by the City to serve this
20 property.
21 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
22 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
23
Section 1.
The foregoing "Whereas" clauses are hereby ratified and confirmed as
24 being true and correct and are hereby made a specific part of this Resolution upon adoption
25 hereof.
26
Section 2.
The City Commission hereby authorizes and directs the City Manager
27 to execute a Water Service Agreement between the City of Boynton Beach, Florida and
28 NELSON R. SANTOS and TERESA SANTOS, which Agreement is attached hereto as
S:\CA \RESO\Agreements\Water Service\Santos Water Service AgreemenLdoc
Exhibit "A".
2
Section 3.
This Resolution shall become effective immediately upon passage.
3
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10
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PASSED AND ADOPTED this _ day of
, 2005.
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
Attest:
City Clerk
S:\CA\RESO\Agreements\Water Service\Santos Water Service Agreement.doc
TillS INSTRUMENT PREPARED BY:
James A. Cherof, Esquire
3099 East Commercial Blvd.
Suite 200
Ft. Lauderdale, FL 33308
AGREEMENT FOR WATER SERVICE OUTSlDE
THE ClTY LlMlTS AND COVENANT FOR ANNEXA nON
. TI-llS AGREEMEN)' made on this _ day of ,200_, by and between
J)!2. ( ~~" (2. ~fos ~ .7P.fe.~a.... S?-~-f-o.s. hereinafter called the "Customer", and the OTY
OF BOYNTON BEACH, a municipal corporation of the State of Florida, hereinafter called the
"City".
WHEREAS, Customer owns real property outside of the jurisdictional limits of the City of
Boynton Beach, Florida; and
WHEREAS, Customer has requested that the City of Boynton Beach, Florida provide water
service to the property owned by Customer; and
WHEREAS, the City of Boynton Beach has the ability to provide water service to Customer's
property; and
WHEREAS, the City of Boynton Beach has a policy which conditions the grant of water
services outside of its jurisdictional limits on annexation of the property to be serviced into the City at
the earliest practicable time.
NOW THEREFORE, for and in consideration of the privilege of receiving water service from
the Municipal Water System and the mutual covenants expressed herein, the City of Boynton Beach
and the Customer, his heirs, successors and assigns, agree as follows:
1. The City agrees to provide Customer with water service from its Municipal Water
System to service the real property described as follows and which Customer represents is owned by
Customer: (Exlnbit A)
2. The Customer and the City hereby agree that there are 1fI- Equivalent Residential
Connections which City shall service.
3. 1be Customer agrees to pay all costs and fees of engineering, material, labor,
installation and inspection of the facilities as required by the City of Boynton Beach Code of
Ordinances or Land Development regulations to provide service to the Customer's premises. 'The
Customer shall be responsible for installation in conformance with all codes, rules and regulations
applicable to the installation and maintenance of water service lines upon tbe Customer's premises.
1
All such lines shall be approved by the Director of Utilities and subject to inspection by the City
Engineers. The City shall have the option of either requiring the Customer to perform the work
necessary to conform the lines or the City may have the work performed on behalf of the Customer,
in which case the Customer will pay in advance all estimated costs thereof. In the event the City has
such work performed, the Customer will also advance such additional funds as may be necessary to
pay the total actual costs incurred by the City.
4. Any water main extension made pursuant to this Agreement shall be used only by the
Customer, unless written consent is granted by the City of Boynton Beach for other parties to
connect. All connections shall be made in accordance with the Codes and regulations of Boynton
Beach.
5. Title to all mains, extensions and other facilities extended from the City Water
Distribution System to and induding the metered service to Customer shall be vested in the City
exclusively unless otherwise conveyed or abandoned to the property owner.
6. The Customer agrees to pay all charges, deposits and rates for service and equipment
in connection with water service outside the City limits applicable under City Ordinances and rate
schedules which are applicable which may be changed from time to time.
7. Any rights-of-way or easements necessary to accommodate the connections shall be
provided by the Customer to the City.
8. The Customer shall, contemporaneously execute and deliver to the City an Irrevocable
Special Power of Attorney granting to the City the power and authority to execute and advance on
behalf of the Customer a voluntary petition for annexation. Customer covenants that it shall
cooperate with the City and not raise opposition or challenge to such annexation if and when
annexation is initiated. The property shall be subject to annexation at the option of the City at any
time the property is eligible under any available means or method for annexation. Customer will
inform any and all assigns or purchasers of any or part of this property of this covenant and of the
irrevocable special power of attorney, but Customer's failure to provide such notice shall not
constitute a defense or bar to the City's rights as set forth herein. The Customer acknowledges that
the consideration of initially connecting to the City's water supply is sufficient to support the grant of
the power of attorney any subsequent disconnection or lack of service shall in no way impair the
power of attorney nor constitute a diminution or lack of consideration.
2
9. Annexation is intended to be and is hereby made a covenant running with the land
described in paragraph 1 above. This Agreement and the power of attorney referenced herein is to be
recorded in the Public Records of Palm Beach County, Rorida, and the Customer and all subsequent
transferee, grantees, heirs or assigns of Customer shan be binding on the Customer and all successors
and assigns.
lO. It is agreed that tbe City shall have no liability in the event there is a reduction,
impairment or termination in water service to be provided under this Agreement due to any
prohibitions, restrictions, limitations or requirements oflocal, regional, State or Federal agencies or
other agencies baving jurisdiction over such matters. Also, the City shall have no liability in the event
there is a reduction, impairment or termination of water service due to acts of God, accidents, strikes,
boycotts, blackouts, fIre, earthquakes, other casualties or other circumstances beyond the City's
reasonable control.
II. The Customer hereby agrees to indemnify, defend and hold harmless the City of
Boynton Beach, Florida, its Mayor, Members of the City Commission, Officers, employees and agents
(Both in their individual and official capacities) from and against all claims, damages, law suits and
expenses including reasonable attorneys fees (whether or not incurred on appeal or in connection with
post judgment collection) and costs rising out of or resulting frornthe Customer's obligation under or
performance pursuant to this Agreement including disputes for breach of warranty of title.
12. No additional agreements or representations shall be binding on any of the parties
hereto unless incorporated in this Agreement. No modifications or change in this Agreement shall be
valid upon the parties unless in writing executed by the parties to be bound thereby.
13. The Customer warrants to the City that Customer holds legal and beneficial title to the
property which is the subject of this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this /J t day of
TULY , 200S~
WITNESS:
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FOR INDIVIDUAL (S) NOTARIZATION:
STATE OF FLORIDA )
) ss:
COUNTY OF PALM BEACH)
1 HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
afores.d and in the CouB!Y aforesaid to take acknowledgments, personally appeared
eLs, !\J 1<. . I 'Cr'f'J't't S; hfof to me known to be the
person(s) described in and who executed the foregoing instrument that he/she acknowledged before
me that he/she executed the same; that the individual was personally known to me or provided the
following proof of identification: FIr; n 4'~ .o,L.
WI1NESS my hand and official seal in the County and State last aforesaid this IJ t day of
Jt.<-lV ,200..s:-
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Notary Public
WITNESS:
CITY OF BOYNTON BEACH, FLORIDA
Kurt Bressner, City Manager
A TrEST:
City Oerk
STATE OF FLORIDA )
4
) ss:
COUNTY OF PALM BEACH)
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, personally appeared
, City Manager and , City Oerk
respectively, of the City named in the foregoing agreement and that they severally acknowledged
executing same in the presence of two subscribing witnesses freely and voluntarily under authority
duly vested in them by said City and that the City seal affixed thereto is the true corporate seal affixed
thereto is the true corporate seal of said City.
WITNESS my hand and official seal in the County and State last aforesaid this
, 200_.
day of
(Notary Seal)
Notary Public
Approved as to form:
City Attorney
5
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Property Information
Location Address: 4700 WHITE FEATHER TRL
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Municipality: UNINCORPORATED
Parcel Control Number: 00-42-45-13-00-000-3030
Subdivision:
Official Records Book: 17981 Page: 1423 Sale Date: Dec-2004
LeQal Description: 13-45-42, W 160 FT OF N 272.25FT OF NW 1/4 OF SE 1/4 OF NW 1/4
Owner Information
Name: SANTOS NELSON R &.
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Mailing Address: 4700 WHITE FEATHER TRL
BOYNTON BEACH FL 33436 1527
Sales Information
Sales Date Book/Page Price Sale~ Owner
Dec-2004 17981/1423 $325,000 WARRANTY DEED SANTOS NELSON R &.
Nov-2004 17981/1421 $118,000 WARRANTY DEED AGERTON JACK &.
Oct-1998 10706/1524 $115,000 WARRANTY DEED CECERE STEVEN C
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[Exemptions
Exemption Information Unavailable.
Appraisals
Tax Year:
Improvement Value:
Land Value:
Total Market Value:
Use Code: 0100
2004 2003 2002 r- Tax Year 2004
$81,78 $67,50 $67,50 Number of Units: 1
$21,60 $20,00 $20,00 *Total Square Feet: 2505
$103,38 $87,50 $87,50 Acres: 1
Description: RESIDENTIAL
* in residential propeFties may indicate living area.
Assessed and Taxable Values
Tax Year: 2004
Assessed Value: 103,38
Exemption Amount:
Taxable Value:
fIr.._.....,
Tax Values
Tax Year:
Ad Valorem:
Non Ad Valorem:
Total Tax:
~
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Record Search I Information I Exemptions I Community , Employment I New Home Buyer I Office Locations
Value Adiustment Board I Save Our Homes I Senior Corner I Disclaimer
http://www.co.pa1m-beach.fl.uslpapa/aspx/web/detail_info.aspx?p _ entity=OO424513000003.. _ 7/1/2005
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Owner Names
SANTOS NELSON R a.
SANTOS TERESA
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http://www.co.palm-beach.fl.us/papalaspxlweb/all Owner.aspx?entity _id=004245130000030... 7/1/2005
THIS INSTRUMENT PREPARED BY:
James A. Cherof, Esquire
3099 East Commercial Blvd.
Suite 200
FI. lauderdale, Fl 33308
IRREVOCABLE SPECIAL POWER OF ATTORNEY
(By Individuals)
8T A TE OF FLORIDA
COUNTY OF Po..lm 8eo-cl
I~ /l/dsol'1 (2, SC\~+O! ~ 7efp~c...... S:.-V\.-fo"- , hereinafter "Grantee", hereby
make, constitute, and appoint THE CITY OF BOYNTON BEACH, FLORIDA, true and
lawful attorney in fact for Grantee and in Grantee's name, place and stead, for the sole
purpose of executing on behalf of Grantee the power to initiate, maintain, and complet~~
a voluntary petition for annexation of the real property described herein into the CITY
OF BOYNTON BEACH. This power shall extend to the CITY OF BOYNTON BEACH
full and complete authority to act on Grantee's behalf to accomplish annexation by any
avaiJable means. The real property which is the subject of this power is described as
follows:
OO-lfZ-Lf~-13-oo -oco- 3050
The powers and authority of my attorney, THE CITY OF BOYNTON BEACH,
FLORIDA, shall commence and be in full force and effect on the Is-+- day of
Jkl ~ 20 ~and the powers and authority shall be irrevocable by
Grantee.
IN WITNESS WHEREOF, we have hereunto set our hands and seals the M_
day of_ 3_~__, in the year two thousand and lL~~.
Sealed and delivered in the presence of
~,tV4/J x:f~~y
Owner Signaturel
-/. I er;;" S:q VI+ 05
Printed Owner Name
,;(~C\.""v'-o. ~. ~ ('......r L::' ~
PfiU. d Witness Name
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Witness Signature
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Printed Witness Name
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Printed Owner Name
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Printed Witness Name
J::.~ 3. I(~
p~';i~sIN:: Lfee'f
STATE OF FLORIDA )
) ss:
COUNTY OF PALM BEACH )
THE FOREG NG INSTRUMENT was ackn\,wledged before me fhis If' /day
of JlA..l-, 20 O~ by Ne U oN fC'. a-- Ie reJa Jla. i1 17>-, and
, who are known to me or who have produced
, as identification and who-ditfldid not take an oath.
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NOTARY PUBUC f,. f, L1 ~ I
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Type or Print Name
Commission No.
My Commission Expires:
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CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM C.4
Requested City Commission
Meeting Dates
Date Final Fonn Must be Turned
in to City Clerk's Office
Requested City Commission
Meeting Dates
Date Final Fonn Must be Turned
in to City Clerk's Office
rg] August 2, 2005
D August 16,2005
D September 6, 2005
D September 20, 2005
July 18,2005 (Noon.)
D October 5, 2005
D October 18, 2005
D November 1,2005
D November 15, 2005
September 19,2005 (Noon)
August 1,2005 (Noon)
October 3, 2005 (Noon)
August 15,2005 (Noon)
October 17, 2005 (Noon)
September 6,2005 (Noon)
October 31, 2005 (Noon)_.
.~ .>
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--:-r;:
NATURE OF
AGENDA ITEM
D Administrative
rg] Consent Agenda
D Public Hearing
D Bids
D Announcement
D City Manager's Report
D
D
D
D
D
~.._-
c::
Development Plans
New Business
::'7
'::".t
- --~. -...,,""
Legal
Unfinished Business
Presentation
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C)
RECOMMENDATION:
Motion to approve a three year interlocal agreement between Palm Beach County and the City of Boynton Beach at an annual
cost of $4000 funded by the ITS. Department Account #001-1510-513-41-10 where the City can directly access the
County's Dialogic Geographic-based Alert and Notification System.
EXPLANATION:
This agreement will provide for a geographic-based callout to alert citizens and visitors of imminent threat to life or property,
an instruction to take immediate protective action, or notification of important or useful information. The County has
committed to purchase, install and operate a Dialogic Geographic-based Alert and Notification system (GeoCast Web) that
meets the needs of the Palm Beach County Emergency Management and various Palm Beach County general government
agencies
PROGRAM IMPACT:
The regional notification system will provide another layer and venue of communication to our residents and can be used in
conjunction with the city's TeleWorks First Responder system.
FISCAL IMPACT:
The term of this agreement is for three years at an annual cost of $4000. Funds are available in the I.T.S. Department's
telecommunication budget (001-1510-513-41-10).. By eliminating the city's outdated Dialogic system, this alternative will
provide savings of $8000 annually, while utilizing the County resources including geographic data, addresses, and phone
records for the residents of Boynton Beach
AL TERNA TIVES:
Do not enter into an agreement with Palm Beach County and rely on the city's Dialogic and TeleWorks First Responder
systems only.
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM. DOC
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
City Attorney! Finance! Human Resources
I.T.S.
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM. DOC
'","'".."_....IilI.....~... .....,...... """',;_W..k"'~"""",,.;"'.""__€,.>i,r>',."
23
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RESOLUTION ROS-
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, AUTHORIZING AND DIRECTING THE
MAYOR AND CITY CLERK TO EXECUTE AN
INTERLOCAL AGREEMENT BETWEEN THE CITY OF
BOYNTON BEACH AND PALM BEACH COUNTY
WHERE THE CITY CAN DIRECTLY ACCESS THE
COUNTY'S DIALOGIC GEOGRAPHIC-BASED ALERT
AND NOTIFICATION SYSTEM; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, this agreement will provide for a geographic-based callout to alert
16
citizens and visitors of imminent threat to life or property, an instruction to take immediate
17
protective action or notification of important or useful information.
18
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21
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1.
The foregoing "WHEREAS" clauses are true and correct and hereby
22
ratified and confirmed by the City Commission.
Section 2.
The City Commission does hereby authorize and direct the Mayor and
24 City Clerk to execute an Agreement between Palm Beach County and the City of Boynton
25 Beach, where the City can directly access the County's Dialogic Geographic-based Alert and
26 Notification System, which Agreement is attached hereto as Exhibit "A."
27
28
Section 3
That this Resolution shall become effective immediately upon passage.
1
S:\CA\RESO\Agreements\InterJocals\ILA - PBC Dialogic Alert System.doc
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PASSED AND ADOPTED this _ day of August, 2005.
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
ATTEST:
City Clerk
(Corporate Seal)
2
S:\CA \RESO\Agrcements\lnterlocals\JLA . PBC Dialogic Alert System.doc
INTEROFFICE MEMORANDUM
TO: \VlLFRED 11-\ WKINS
FROM: PETER WALLACE
SUBJECT: REGIONAL NOTFICATION SYSTEM
DATE: 7/7/2005
CC: KURT BRESSNER
The ITS department would like to utilize the Pahn Beach County Geographic-based alerts and
notification system to alert citizens and visitors of an imminent threat to life or property, or provide
instruction to take immediate protective action. The Regional Notification system will provide
another layer and venue of communications to our residents and can be used in conjunction with the
city's Tele\Vorks First Responder system.. The system will reside at Pahn Beach County EOC and
accessible via the web. The intent is to make the system available to the public safety departments
such as Police, Fire, Dispatch, EOC staff, Public \Vorks, and Utilities. Access and usage including
content will fall under the current APM that governs the city's dialogic system.
The interlocal agreement (attached) has been reviewed and approved by David Tolces of the city's
legal department. E-mail correspondence attached. The term is for three (3) years at an annual cost
of $4000 (four thousand dollars). Money is allotted in the ITS telecommunication budget for this
expenditure.
In light of the active hurricane season last year and early activity including one named storm this year,
were the city's infrastructures to be damaged, this external system would potentially be accessible via
the Web. By eliminating the city's outdated Dialogic system, this alternative will provide savings of
$8000 yearly while utilizing County resources including geographic data, addresses, and phone
records for the residents of Boynton Beach.
Please advise if we may proceed in this direction.
INTERLOCAL AGREEMENT
THIS INTER LOCAL AGREEMENT, made and entered into this day
of2005, by and between PALM BEACH COUNTY, a political subdivision of the State of
Florida ("County") and Boynton Beach, Florida, a municipal corporation ("Municipality"),
each one constituting a public agency as defined in Part I of Chapter 163, Florida Statutes.
WITNESSETH:
WHEREAS Section 163.01 of the Florida Statutes, known as the Florida Interlocal
Cooperation Act of 1969, authorized local governmental units to make the most efficient
use of their powers by enabling them to cooperate with other localities on a basis of mutual
advantage and thereby to provide services and facilities in a manner and pursuant to forms
of governmental organization that will accord best with geographic, economic, population
and other factors influencing the needs and development oflocal communities, and
WHEREAS the County and the Municipality are continually identifying more
effective service delivery methods which result in overall savings to the taxpayers of the
County and the Municipality; and
WHEREAS the County has committed to purchase, install and operate a Dialogic
Geographic-based Alert and Notification System ("GeoCast Web") that meets the needs of
Palm Beach County Emergency Management and various Palm Beach County general
government agencies; and
WHEREAS the County and the Municipality have determined that the ability to
provide consistent, timely geographic-based alerts and notifications to residents and visitors
is critical to the effective and efficient provision of public safety and general government
services; and
WHEREAS it has been determined mutually beneficial to all Parties to execute this
Agreement which sets forth the parameters under which the Municipality can directly
access the County's Geographic-based Alert and Notification System, saving the taxpayers
of both the County and the Municipality, as well as receiving the public safety benefit of
consistent and timely geographic-based alerts and notifications; and
WHEREAS Section 163.01, Florida Statutes, permits public agencies to enter into
interlocal agreements with each other to jointly exercise any power, privilege or authority
which such agencies share in common and which each might exercise separately.
NOW THEREFORE in conjunction with the mutual covenants, promises and
representations contained herein, the parties hereto agree as follows:
SECTION 1: PURPOSE
1.01 The purpose of this Agreement is to set forth the parameters under which the County
will make access to its Dialogic Geographic-based Alert and Notification System
("System") available to the Municipality. This Agreement identifies the conditions
of use, the cost of access and on-going use, and the ability of the Municipality to
participate in the operational decisions relating to the GeoCast Web System.
1.02 Definitions
1.021 Dialogic Alert: A Geographic-based callout to alert citizens and visitors of
an imminent threat to life or property, or an instruction to take immediate
protective action. An example of a Dialogic Alert would be an evacuation
order.
1.022 Dialogic Notification: A Geographic-based callout to notify citizens and
visitors of important or useful information. An example of a Dialogic
Notification would be a call notifying a citizen of a license expiration.
1.023 System: The Dialogic Geographic-based Alert and Notification System
funded, purchased, installed, maintained, and owned by the County. The
system includes a computer server, the GeoCast web software, an ArcIMS
license, the Dialogic Communicator 9.2 server, 58 telephone lines, and
geocoded maps.
1.024 Dialogic System Administrator: An employee with the Emergency
Management Division of the County's Department of Public Safety
responsible for day to day administration and management ofthe System and
the County's designated contact person pursuant to various sections of this
Agreement.
1.025 Agreement: This Interlocal Agreement, including any amendments or
supplements hereto, executed and delivered in accordance with the terms
hereof.
SECTION 2: ADMINISTRATION OF THE COUNTY'S SYSTEM AND USE
PROCEDURES
2.01 The Palm Beach County Division of Emergency Management is charged with
responsibility for administering the System. Within the Emergency Management
Division a position entitled "911 SpecialistJDialogic System Administrator" will be
the Municipality's day to day contact and can be reached at 561-712-6485. The
Division of Emergency Management is staffed :from 8:00am to 5:00pm, Monday
through Friday, excluding County holidays. After hours emergency contact will be
made through the Emergency Management Division's County Waming Point at
561-712-6428 and the County Warning Point will notify the on-call Emergency
Management Division personnel.
2.02 The Municipality shall follow all polices, procedures, and standard operating
procedures in place at the time of this Agreement, as well as those developed in the
future and issued to the Municipality by the System Administrator. The
Municipality agrees to comply with any enforcement actions required by these
policies and procedures for mis-use or abuse of the County System.
SECTION 3: DIALOGIC GEOGRAPHIC-BASED ALERT AND NOTIFICATION
SYSTEM MAINTENANCE PROGRAM
3.01 The Dialogic Geographic-based Alert and Notification System consists of a
computer server, the GeoCast web software, an ArcIMS license, the Dialogic
Communicator 9.2 server, 58 telephone lines, and geocoded maps.
3.02 The County will perform routine and preventative maintenance on the System
according to its established procedures. This maintenance includes trouble shooting
and making all repairs on a 24/7/365 basis as well as performing preventative
maintenance on the entire System including, but not limited to, server equipment,
GIS maps, and databases associated with the System, but not including
Municipality's equipment.
SECTION 4: MUNICIPALITY RESPONSIBILITIES AND EQUIPMENT
4.01 The Municipality's equipment will be a computer or computers connected to the
Internet, each equipped with a web browser compatible with ArelMS. The
Municipality shall be required to keep its equipment in proper operating condition
and ensure a functioning Internet connection to access the System. The
Municipality shall be solely responsible for maintenance of its computers, web
browsers, and Internet-connectivity.
4.02 Within 15 days of the execution of this Agreement, the Municipality shall provide
the County with a single Municipal Representative who shall be the Municipality's
single point of contact for matters relating to this Agreement.
4.03 Within 15 days of the execution of this Agreement, the Municipality shall provide
the County with a list of person/positions who are authorized to utilize the System
on behalf of the Municipality, under the authority of the Municipal Representative.
4.04 The Municipality shall receive certain access codes to the County's System and shall
be responsible for safe guarding the code information from release to unauthorized
parties. The Municipality shall be responsible for notifying the System
Administrator prior to, or within 2 hours of terminating employees or commercial
service providers which had knowledge of the access codes so that the access codes
can be modified and the System secured.
4.041 Service staff directly employed by the Municipality shall be considered
authorized to receive access codes for maintenance of the Municipality's
connection to the System.
4.042 Commercial service providers are not considered authorized to receive
access codes for the County system. Municipalities that plan to use
commercial services for subscriber maintenance must include confidentiality
requirements in their contracts with the commercial service providers. These
requirements must be reviewed and approved (which approval will not
unreasonably be withheld) by the System Administrator and the County
Attorney's Office prior to the Municipality executing its contract with a
commercial system provider.
4.05 The Municipality is solely responsible for the performance and operation of the
Municipality's equipment and any damages or liability resulting from the use
thereof. Should the County identify malfunctioning Municipality-owned equipment,
the County will notify the Municipal Representative and the Municipality shall
discontinue use of the specific equipment until repairs are completed. The County
may, after proper notification, disable the connection of the equipment to the System
after properly notifying the Municipality in writing if the equipment is causing
problems with the System.
4.06 Nothing in this Agreement shall represent a commitment by the County or shall be
construed as intent by the County to fund any portion of the Municipality's
Equipment or Internet connectivity.
SECTION 5: ANNUAL SYSTEM ACCESS AND USAGE CHARGE
5.01 The Municipality will be assessed an annual access and usage charge in the amount
of $4000 (Four Thousand Dollars). The County may review the annual access and
usage charge every three (3) years beginning October I S\ 2008. Following such a
review, the County may adjust the charge for the following fiscal year and provide
notice to the Municipality no later than April I sl prior to the commencement of the
fiscal when the adjustment will take effect. The adjusted fee will be applicable for
the upcoming fiscal year and will automatically become part of this Agreement on
October 1 sl of the applicable year for which the Municipality agrees to be bound.
5.02 If the effective date of this Agreement is between November 15th and September
30th, the Municipality will be charged pursuant to section 5.01. This charge will not
be prorated.
5.03 The Municipality agrees that in the event of any termination ofthe Agreement, the
annual access and usage charge shall not be reimbursed.
SECTION 6: BILLING SCHEDULE
6.01 Each November 15th, the County will invoice the Municipality for the annual access
and usage charge, in the amount of the charge described in Section 5.01.
6.02 Upon receipt of any invoice, the Municipality will immediately review same and
report any discrepancies to the County within 10 days of receipt. Payment will be
due to the County within 30 days of receipt of the invoice. Payments shall be sent
to:
Public Safety Department
Fiscal Manager
20 S. Military Trail
West Palm Beach, FL 33415
Attn: Alert and Notification Interlocal Agreement #
, Invoice #
SECTION 7: COUNTY RESPONSIBILITIES
7.01 The County shall be responsible for the maintenance and operation ofthe System.
The County shall notify the Municipal Representative in advance of scheduled
maintenance which impacts the users of the System and shall respond to
emergencies in the time frames and according to the procedures identified.
7.02 The County shall be responsible for all costs and fees associated with the operation
ofthe System.
7.03 The County shall be responsible for the management of all payments made pursuant
to Section 5.01
7.04 The County shall maintain access to the System throughout the term of this
Agreement except for times of scheduled preventative maintenance, where it will be
required to disable access to the System for a pre-determined length of time or
during times of system failures.
7.05 The County will provide notification of System problems and time for System
restoration to the Municipal Representative or designee if access to the System will
be inaccessible for more than two hours.
SECTION 8: IMDEMNIFICA TION AND LIABILITY
The County makes no representations about the design and capabilities of the
County System. The Municipality has decided to enter into this Agreement and use
the County's System based on its review of the system design, system capability,
manufacturing and install details contained in the County's contract with Dialogic
Communications Corporation and subsequent testing data that may exist. The
County agrees to use its best efforts to provide the Municipality with the use of the
System described in this Agreement, but makes no guarantee as to the continual,
uninterrupted use of the Dialogic Geographic-based Alert and Notification System,
or its fitness for the alert and notification needs of the Municipality.
The Municipality as a Florida municipality agrees to be fully responsible as set forth
in Section 768.28, Florida Statutes, for its own negligent acts or omissions or
tortious acts which result in claims or suits against the County and agrees to be
liable to the limits set forth in Section 768.28, Florida Statutes, for any damages
proximately caused by said acts or omissions. Nothing herein is intended to serve as
a waiver of sovereign immunity by the Municipality to which sovereign immunity
applies. Nothing herein shall be construed as consent by a State agency or
subdivision of the State of Florida to be sued by third parties in any matter arising
out of any contract.
The County, as a political subdivision of the State, agrees to be fully responsible as
set forth in Section 768.28, Florida Statutes, for its own negligent acts or omissions
or tortious acts which result in claims or suits against the Municipality, and shall be
liable to the limits set forth in Section 768.28, Florida Statutes, for any damages
proximately caused by said acts or omissions. Nothing herein is intended to serve as
a waiver of sovereign immunity by the County to which sovereign immunity
applies. Nothing herein shall be construed as consent to be sued by third parties in
any matter arising out of any contract.
The parties to this Agreement and their respective officers and employees shall not
be deemed to assume any liability for the acts, omissions, and negligence of the
other party. Further, nothing herein shall be construed as a waiver of sovereign
immunity by either party, pursuant to Section 768.28, Florida Statutes.
Neither the County or the Municipality shall be liable to each other and for any third
party claim, which may arise out of the services provided hereunder or of the alert
and notification system itself, its operation or use, or its failure to operate as
anticipated, upon whatever cause of action any claim is based. The System is
designed to assist qualified governmental and emergency service professionals. It is
not intended to be a substitute for the exercise of judgment or supervision of those
professionals.
The terms and conditions of this Interlocal Agreement incorporate all the rights,
responsibilities, and obligations of the parties to each other. The remedies provided
herein are exclusive. The County and the Municipality waive all remedies,
including, but not limited to, consequential and incidental damages.
SECTION 9: OWNERSHIP OF ASSETS
All assets and services maintained under Section 4 of this Agreement will remain
assets of the Municipality at all times. Parts incorporated into assets owned by the
Municipality will immediately become a part of the asset and will be the property of
the Municipality. All other assets involved in the System will remain the County's,
despite the Municipality's financial contribution to their maintenance, renewal and
replacement.
SECTION 10: TERM OF AGREEMENT
The initial term of this Agreement is for three (3) years and shall commence upon
the effective date of the agreement. The effective date of the Agreement is the date
the Agreement is filed with the Clerk of the Circuit Court as provided in Sec.17.
herein, after execution by all municipalities joining in the Agreement and the Board
of County Commissioners. The Agreement may be renewed for an additional three
(3) year term thereafter. At least eight months prior to the expiration of this
Agreement's term, the Municipality shall provide the County with a request to
renew this Agreement. Such Renewal Amendment will require approval of both
parties and the County may not unreasonably withhold its approval of the Renewal
Agreement.
SECTION 11: AMENDMENTS TO THIS AGREEMENT
This Agreement may be amended from time to time by written amendment executed
by both the Board of County Commissioners and the Municipality.
SECTION 12: TERMINATION
This Agreement may be terminated by either party with or without cause. Any
termination shall be effective only on October 1 st of any year and shall be with a
minimum of six months notice.
,-""y",,,-,,,,,,,-,,,,,,,,,,,,,,,,,,,,,,,,.,,,,,,"_.~--,,~~,...,,,,-,,,......;-,
SECTION 13: ANNUAL BUDGET APPROPRIATIONS
The County and Municipality's performance and obligations to pay pursuant to this
Agreement are contingent upon annual appropriation for its purpose by the Board of
County Commissioners and the Municipality.
SECTION 14: NOTICES
Any notice given pursuant to the terms of this Agreement shall be in writing and
done by Certified Mail, Return Receipt Requested. The effective date of such notice
shall be the date of receipt as evidenced by the Return Receipt. All notices shall be
addressed to the following:
As to the County:
County Administrator
301 North Olive Avenue
West Palm Beach, FL 33401
Director, Public Safety Department
20 S. Military Trail
West Palm Beach, FL 33415
With copy to:
Dialogic System Administrator
20 S. Military Trail
West Palm Beach, FL 33415
County Attorney's Office
301 North Olive Avenue
West Palm Beach, FL 33401
As to the Municipality:
(Manager, Mayor, etc.)
(Municipal Representative)
SECTION 15: APPLICABLE LAW/ENFORCEMENT COSTS
This section shall be governed by the laws ofthe State of Florida.
SECTION 16: EQUAL OPPORTUNITY PROVISION
The County and the Municipality agree that no person shall, on the grounds of race,
color, sex, national origin, disability, religion, ancestry, marital status or sexual
orientation be excluded from the benefits of, or be subjected to, any form of
discrimination under any activity carried out by the performance of this Agreement.
SECTION 17: FILING
A copy of this Agreement shall be filed with the Clerk of the Circuit Court in and
for Palm Beach County, Florida.
SECTION 18: ENTIRE AGREEMENT
This Agreement and any Exhibits attached hereto and forming a part thereof as if
fully set forth herein, constitute all agreements, conditions, and understandings
between the County and Municipality concerning the System. All representations,
either oral or written, shall be deemed to be merged into this Agreement. Except as
herein otherwise provided, no subsequent alteration, waiver, change or addition to
this Agreement shall be binding upon County or Municipality unless reduced to
writing and signed by them.
SECTION 19: DELEGATION OF DUTY
Nothing contained herein shall be deemed to authorize the delegation of the
Constitutional or Statutory duties of County or Municipal officers.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
day and year first above written.
SHARON R. BOCK
Clerk & Comptroller
PALM BEACH COUNTY, FLORIDA
BY ITS BOARD OF COUNTY
COMMISSIONERS
ATTEST:
By:
By:
Deputy Clerk
Chairman, Tony Masilotti
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
APPROVED AS TO TERMS AND
CONDITIONS
By:
By:
County Attorney
ATTEST:
(MUNICIP AUTY NAME)
By:
By:
Mayor
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM C.S.
Requested City Commission Date Final Fonn Must be Turned Requested City Commission Date Final Fonn Must be Twned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
[gI August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon)
0 August 16,2005 August], 2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon)
0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17,2005 (Noon)
0 September 20, 2005 September 6,2005 (Noon) 0 November 15, 2005 October 31,2005 (Noon)
NA TURE OF
AGENDA ITEM
o
[gI
o
o
o
o
Administrative 0 Development Plans
Consent Agenda 0 New Business
Public Hearing 0 Legal ;---
Bids 0 Unfinished Business
Announcement 0 Presentation C;)
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RECOMMENDATION: Ul -;-'1
Motion to approve and authorize signing ofthe Agreement between the City of Boynton Beach and Palm BWch ,::'~l=;
County for Joint Participation and Project Funding in the Construction of Lawrence Road, from Boynton Beach ::r:
Blvd. to Gateway Blvd. (Palm Beach County Project no. 1999507), and authorizing expenditures by the City in the
amount of $315,742.00.
City Manager's Report
EXPLANATION:
The proposed widening and roadway improvements to Lawrence Road by Palm Beach County will require the
relocation and/or replacement of certain water and wastewater pipelines located within the County right-of-way.
Much of the pipeline work involves the replacement and relocation of 1,923 linear feet of unlined, cast iron sewage
force main (approximately 30 years old) with new epoxy-lined ductile iron force main; replacement of 144 linear feet
of 16-inch diameter water main as part of a new canal crossing; and the replacement of various valves and fittings
necessary to assure proper operation of the system. A contingency amount of $28, 819.50 is also included in the
contract for miscellaneous adjustments and protecting existing facilities.
PROGRAM IMPACT:
This is a renewal and replacement project necessitated by the re-design of the Lawrence Road paving and drainage
systems. The new sewage force main being installed should provide a useful life of an additional 50 years or greater,
thereby minimizing future repair costs to the Utility.
FISCAL IMPACT:
The total cost to the City of this funding agreement, in the amount of $315,742.00, will be paid from the Utility
renewal and replacement accounts (405-5000-590-96-02 WTR 119; 405-5000-590-96-04 SWR 098)
ALTERNATIVES:
Re-design of the roadway and drainage system requires much of the construction being proposed through this
agreement. Realistically, there are no alternatives to approving the Joint Participation and Funding Agreement if the
roadway is to be modified as proposed.
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
UTILITIES
Department Name
~:,mn~~A IY
Cc: Peter Mazzella (wi one copy of attached agreement)
Barbara Conboy
Mary Munro, Finance Dept.
City Attorney
File
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
^._.A"'"...._'...._....~M__"'.__"'""""~""''''''''''^'...,'~.....,;<;"',..-...<'';L''''.N' "
1 RESOLUTION NO. R05-
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, AUTHORIZING AND DIRECTING THE
5 CITY MANAGER TO EXECUTE AN AGREEMENT
6 BETWEEN THE CITY OF BOYNTON BEACH AND
7 PALM BEACH COUNTY FOR JOINT PARTICIPATION
8 AND PROJECT FUNDING IN CONSTRUCTION OF
9 LAWRENCE ROAD, BOYNTON BEACH BOULEVARD
10 TO GATEWAY BOULEVARD; AND PROVIDING AN
11 EFFECTIVE DATE.
12
13 WHEREAS, the County of Palm Beach and City of Boynton Beach desire to jointly
14 participate in the construction of utility adjustments to water distribution and/or sewage
15 transmission systems and other improvements, along the right-of-way of Lawrence Road from
16 Boynton Beach Boulevard to Gateway Boulevard roadway improvements; and
17 WHEREAS, the City Commission of the City of Boynton Beach, upon
18 recommendation of staff, deems it to be in the best interests of the residents and citizens of the
19 City of Boynton Beach to approve the Agreement between the City of Boynton Beach and
20 Palm Beach County for Joint Participation and Project Funding in Construction of Lawrence
21 Road, Boynton Beach Boulevard to Gateway Boulevard, Palm Beach County, Florida.
22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
23 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
24
Section 1.
The foregoing "Whereas" clauses are hereby ratified and confirmed as
25 being true and correct and are hereby made a specific part of this Resolution upon adoption
26 hereof.
27
Section 2.
The City Commission of the City of Boynton Beach, Florida, upon
28 recommendation of staff, hereby authorizes and directs the appropriate City Officials to
29 execute an Agreement between Palm Beach County and City of Boynton Beach for, a copy of
S:\CA\RESO\Agreements\lnterlocals\lLA psc - Construction of Lawrence Road.doc
1 said Agreement is attached hereto as Exhibit" A".
2
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That this Resolution shall become effective immediately upon passage.
Section 3.
, 2005.
PASSED AND ADOPTED this _ day of
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
ATTEST:
City Clerk
(Corporate Seal)
S:\CA\RESO\Agreements\lnterlocaIS\ILA psc - Construction of Lawrence Road.doc
Department of Engineering
and Public Works
P.D. Box 21229
West Palm Beach, FL 33416-1229
(561) 684-4000
www.pbcgov.com
.
Palm Beach County
Board of County
Commissioners
Tony Masilotti, Chairman
'ie L. Greene, Vice Chairperson
Karen T. Marcus
Jeff Koons
Warren H. Newell
Mary McCarty
Burt Aaronson
County Administrator
Robert Weisman
"An Equal Opportunity
Affirmative Action Employer"
~ printed on recycled paper
~~@~ow~@
JUL 0 5 2005
BOYNTON BEACH UTILITIES
June 20, 2005
City of Boynton Beach Utilities Department
124 East Woolbright Road
Boynton Beach, FL 33435-6040
ATTN: Mr. Peter V. Mazzella, Deputy Director
RE:
JOINT PROJECT P ARTICIP A TION/FUNDING AGREEMENT
IN THE CONSTRUCTION OF LAWRENCE ROAD,
BOYNTON BEACH BOULEVARD TO GA TEW A Y BOULEVARD
PALM BEACH COUNTY PROJECT NO. 1999507
Dear My. Manella:
Enclosed herewith are three original joint project participation/funding agreements for
your utility work on the referenced project. Bergeron Land Development, Inc., was the
lowest responsive bidder. The contract for $ 5,030,578.15 is anticipated to be awarded
by the Board of County Commissioners on August 16, 2005 and includes your items of
work in the amount of $315,742.00.
Please review and request the City to execute the agreements and return all three
origin~Js for execution by the County.
If you have any questions regarding this matter, please feel free to contact this office.
Sincerely,
Omelio A. Fernandez, P.E., Director
Engineering/Public Works Operations
OAF/<Y~~f~
pc: Tanya N. McConnell, P.E., Deputy County Engineer
Marlene R. Everitt, Assistant County Attorney-w./Attachment
Carl R. Miller, Director, Construction Coordination-w./Summary
Bob Ward, Fiscal Manager I, Administrative Services-w./Attach.
ec: Steven B. Carrier, Five Year Road Program Manager, Roadway Production
David L. Young, P.E., Special Projects Manager, Roadway Production Div.
William R. Sears, P.E., Project Engineer, Roadway Production Division
Carl L. Hussey, P.E., Utility Coordinator, Roadway Production-w./Attach.
F:\ROADW A Y\AGRM1i1997509 .BBU-L TR. wpd
AGREEMENT BETWEEN PALM BEACH COUNTY, FLORIDA
AND
THE CITY OF BOYNTON BEACH
FOR JOINT PARTICIPATION AND PROJECT FUNDING
IN CONSTRUCTION OF
LA WRENCE ROAD,
BOYNTON BEACH BOULEVARD TO GATEWAY BOULEVARD
PALM BEACH COUNTY, FLORIDA
PALM BEACH COUNTY PROJECT NO. 1997509
THIS AGREEMENT, made and entered into this
day of
2005, by and between PALM BEACH COUNTY, a political subdivision
in the State of Florida, herein referred to as "COUNTY" and the "CITY OF BOYNTON
BEACH", a municipality in the State of Florida, herein referred to as the "CITY",
WITNESSETH:
WHEREAS, COUNTY and CITY desire to jointly participate in the
construction of utility adjustments to water distribution and/or sewage transmission systems
and other improvements, hereinafter referred to as the "Work" along the right-of-way of
Lawrence Road from Boynton Beach Boulevard to Gateway Boulevard roadway
improvements, hereinafter referred to as the "Project"; and
WHEREAS, Florida Statutes, Section 163.01, allows governmental units to
make the most efficient use of their powers by enabling them to cooperate with other
localities on a basis of mutual advantage; and
WHEREAS, both COUNTY and CITY declare that it is in the public interest
that the "Work" be constructed with the aforementioned PROJECT: and
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein, the Parties to this Agreement agree as follows:
I. The CITY agrees to pay directly to the COUNTY costs attributable to construction
of the "Work" along the right-of-way of the "Project" as outlined and shown in the Bid
Documents for Palm Beach County Project No. 1997509.
1
AGREEMENT WITH THE CITY OF BOYNTON BEACH
2. Said summation of costs is stated in the amount of$3]5,742.00 in
accordance with the attached bid tabulation (Attachment "A") and summary
(Attachment "B") for the specified work.
3. Costs shall be adjusted upon actual contract costs and completion of the
project using contract unit prices and actual constructed quantities, said quantities
being measured by the Palm Beach County Engineering and Public Works
Department.
4. The CITY agrees to fund those contributions set forth in Paragraphs I
through 3 above within thirty (30) days of receiving written notice from the
COUNTY that funding is required.
5. The COUNTY is to be responsible for administering the funds in
accordance with the Agreement.
6. The CITY is to be responsible for, and agrees to provide or cause to be
performed all inspection services during construction of the "Work" and final
certification for the aforementioned "Work" as it relates to the CITY's work
7. The COUNTY shall obtain CITY approval for any change orders which
increase the cost attributable to the construction ofuti]ity adjustments to water
distribution and/or sewage transmission systems and other improvements to an
amount greater than the contract amount as stated in Paragraph 2 of this agreement.
The CITY shalt be responsible for any cost caused by the CITY's delays including but
not limited to change orders attributable to the roadway improvements as it relates to
the CITY's work.
8. In the event that additional work and funding is required, the additional
cost attributable to said construction of the "Work" as outlined in the specifications
for this project is the responsibility of the CITY. In the event of an under run
attributable to said construction of the "Work", as outlined in the specification, the
CITY will be credited the excess amount.
2
AGREEMENT WITH THE CITY OF BOYNTON BEACH
9. The CITY shall indemnify, defend, and hold harmless the COUNTY against
any actions, claims, or damages arising out of CITY's negligence in connection with this
Interlocal Agreement to the extent permitted by law. The foregoing indemnification shall not
constitute a waiver of sovereign immunity beyond the limits set forth in Section 768.28,
Florida Statutes, nor shall the same be construed to constitute agreement to indemnify the
COUNTY for the COUNTY's negligent acts or omissions.
10. The COUNTY shall indemnify, defend, and hold harmless the CITY against
any actions, claims, or damages arising out of COUNTY's negligence in connection with this
l11terlocal Agreement to the extent permitted by law. The foregoing indemnification shall not
constitute a waiver of sovereign immunity beyond the limits set forth in Section 768,28,
Florida Statutes, nor shall the same be construed to constitute agreement to indemnify the
CITY for the CITY's negligent acts or omissions.
II. All provisions of this Agreement calling for the expenditure of ad valorem tax
money by either COUNTY or CITY are subject to annual budgetary funding and should
either Party involuntarily fail to fund any oftheir respective obligations pursuant to this
Agreement, this Agreement may be terminated,
12. Any and all notices required or permitted to be given hereunder shall be deemed
received three (3) days after same are deposited in U.S. Mail sent via certified mail, return
receipt requested.
All notice to the CITY shall be sent to:
City of Boynton Beach
124 East Woolbright Road
Boynton Beach, FI 33435-6040
ATTN: Mr. Peter V. Mazzella
Deputy Director of Utilities
All notice to the COUNTY shall be sent to:
George T, Webb, P.E., County Engineer
Engineering and Public Works Department
P.O. Box 21229
West Palm Beach, FL 33416-1229
A TTN: ROADWAY PRODUCTION
3
AGREEMENT WITH THE CITY OF BOYNTON BEACH
IN WITNESS WHEREOF, the Parties unto this Agreement have set their hands and
seals on the day and date first written above.
CITY OF BOYNTON BEACH
PALM BEACH COUNTY, FLORIDA,
BY ITS
BOARD OF COUNTY COMMISSIONERS
BY: Kurt Bressner, City Manager
BY:
Tony Masilotti, Chairman
ATTEST:
ATTEST:
JANET M. PRAINITO,
CITY CLERK
SHARON R. BOCK,
CLERK & COMPTROLLER
BY:
BY:
(DATE)
(DATE)
By:
APPROVED AS TO TERMS
AND CONDITIONS
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
BY:
City Attorney
BY:
Assistant County Attorney
F:\ROADW A Y\AGRMTlI997509.BBU_J2F.wpd
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fECT NAME: LAWRENCE ROAD, BOYNTON BEACH BOULEVARD TO
GATEWAY BOULEVARD
fECT NUMBER: 1997509 BERGERON LAND DEVELOPMENT, INC.
ITEM OUANTITY /UNITS UNIT PRICE . AMOUNT
CITY OF BOYNTON BEACH UTILITY ITEMS
UTILITY PIPE REMOVAL 1,580LF $ 13.25 $ 20,935.00
(18" OR LESS)
UTILITY PIPE GROUT 270 LF $ 13.25 $ 3,577.50
(8" OR LESS)
PIPE (DI), F&I, FLANGED n LF $ 330.00 $ 23,760.00
CEMENT LINED, CLASS 53,16 IN
PIPE (DI), F&I, RESTRAINED, n LF $ 330.00 $ 23,760.00
CEMENT LINED, CLASS 50,16 IN
PIPE(D.Q,F&IRESTRAINED, I,923LF $ 61.00 $117,303.00
EPOXY LINED, CLASS 50, 8 IN
PIPE (DI), F&I RESTRAINED, 48 LF $ 55.00 $ 2,640.00
CEMENT LINED, CLASS 50, 8 IN
WATER FITTINGS, F&I, DI, 3 TN $ 7, no.OO $ 23,160.00
CEMENT LINED
SAN SEWER FITTINGS, F&I, DI, 3 TN $ 9,930.00' $ 29,790.00
EPOXY LINED
VALVE AS'SM, ADJUST & MODIFY 22 EA $ 440.00 $ 9,680.00
OR RELOCATE
ATTACHMENT "B"
VALVE ASSM, F&I, CI, 3 AS $ 4,965.00 $ 14,895.00
V AC/AIR COMB 150 PSI, 1"
VALVE ASSM, F&I, CI, 1 EA $ 662.00 $ 662.00
GATE, 150 PSI, 6"
VALVE ASSM, F&I, CI, 2EA $ 1,210.00' $ 2,420.00
GATE, 150 PSI, 8"
VALVE ASSM, F&l, CI, 1 EA $ 1,985.00 $ 1,985.00
AIR RELEASE VALVE, 150 PSI, 2 IN
VALVE ASSM, F&I, cr, 1 EA $ 3,310.00 $ 3,310.00
BUTTERFLY VALVE, 150 PSI, 16 IN
CHEMICAL GROUT, REPAIR lEA $ 4,080.00' $ 4,080.00
(MANHOLE)
F&I 16" X 8" TAPPING SADDLE, lEA $ 4,965.00 $ 4,965.00
VALVE & BOX
ATTACHMENT "B"
fECT NAME: LAWRENCE ROAD, BOYNTON BEACH BOULE V ARD TO
GATEWAY BOULEVARD
fECT NUMBER: 1997509 BERGERON LAND DEVELOPMENT, INC.
ITEM QUANTITY /UNITS UNIT PRICE AMOUNT
CITY OF BOYNTON BEACH UTILITY ITEMS(continued)
CITY OF BOYNTON BEACH UTILITY ITEMS SUBTOTAL $ 286,922.50
CONTINGENCY ITEMS
PREMIUM FOR CONFLICT 5 EA $ 3,860.00 $ 19,300.00
CONDITION (SEE SP's)
FLOW ABLE FILL 10CY $ 181.95 $ 1,819.50
SUPPORT & PROTECT 50LF $ 22.00 . $ 1,100.00
16" WATERMAlN
SUPPORT & PROTECT 50 LF $ 22.00 $ 1,100.00
8" WATERMAlN
SUPPORT & PROTECT 50LF $ 21.00 $ 1,100.00
8" FORCE MAIN
ADruST UTILITY MANHOLES 5 EA $ 880.00 $ 4,400.00
(INCL. CONCRETE COLLAR)
CONTINGENCY ITEMS SUBTOTAL $ 28,819.50
GRAND TOTAL $ 315,742.00
,vA Y'AGRM1\l 997509BBU-SUM.wpd
2
VI.-CONSENT AGENDA
ITEM C.6
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
Requested City Date Final Form Must be
Commission Meetinq Turned in to City Clerk's
Dates Office
[8J August 2. 2005 July 18.2005 (Noon.)
0 August 16. 2005 August 1. 2005 (Noon)
0 September 6.2005 August 15. 2005 (Noon)
0 September 20. 2005 September 6.2005 (Noon)
Requested City Date Final Form Must be
Commission Meetinq Dates Turned in to City Clerk's Office
o October 5. 2005
o October 18. 2005
o November 1. 2005
o November 15. 2005
September 19. 2005 (Noon)
October 3,2005 (Noon)
October 17. 2005 (Noon)
( --
c:
October 31. 2005 (NoQf1J
f'.)
, i-I
0 Administrative 0 Development Plans \J
NATURE OF [8J Consent Agenda 0 New Business ....~
AGENDA ITEM 0 Public Hearing 0 Legal .;,..
0 .r.:-
0 Bids Unfinished Business l~t
0 Announcement 0 Presentation
0 City Manager's Report
r_, --.:
~c
_..J~
'Ii
~-qw
-. r<i
O:.t>
1""1"1 C")
RECOMMENDATION: Staff recommends Commission approval by Resolution R05-_ The City of Boynton
Beach's 2005/2006 Community Development Block Grant (CDBG) One-Year Action Plan.
EXPLANATION: At the City Commission meetings of July 5th and July 19th. the City Commission. having
reviewed both Citizen Review Committee and staff recommendations for funding next fiscal year. determined that
the following activities will receive funding as detailed in the One Year Action Plan:
Aid to Victims of Domestic Assault...................................................20.000
Boynton Beach Faith Based CDC .................................................... 70,000
Citizens Concerned About Our Children ............................................7.500
Community Caring Center.... .......... ...... ............ ................ ... .... ......... 50.000
Fair Housing Center (administrative)..................................................... 10,000
Housing Rehab & Delivery..............................................................217,558
PBC Resource Center..... ....................................... ......................... .25.000
Planning & Administration ..............................................................110,464
R. M. Lee CDC .................................................................................80.000
Summer Camp Scholarships............................................................11 ,800
TOTAL.......................................................................................... $602,322
PROGRAM IMPACT: The CDBG program's purpose is to help the City of Boynton Beach meet the needs of its
lower income residents by offering a wide range of Community Development Activities.
FISCAL IMPACT: The City Of Boynton Beach expects to receive $602,322 for this program to continue its
Community Development efforts.
Development
Community Improvement Division
Division Name
Beach would have to use ad valorem dollars, or would have to
ALTERNATIVES:
discontinue its revit
S:\Community Improvement\Agenda Requests\2005\CC 8-2-05 CDBG 1 YearPlan.doc
4
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19
I
20 I
I
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1
2
RESOLUTION ROS-
3
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, APPROVING THE ADOPTION OF THE
CITY OF BOYNTON BEACH'S 2005-06 COMMUNITY
DEVELOPMENT BLOCK GRANT ONE-YEAR
CONSOLIDATED ACTION PLAN; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the City of Boynton Beach is entering into its ninth year of receiving
federal grant funds as an entitlement community; and
WHEREAS, a One-Year Action Plan has been developed with activities listed,
setting forth how the City intends to utilize the funds available to best address urgent needs,
which plan is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA THAT:
Section I.
The foregoing "Whereas" clauses are hereby ratified and confirmed
23 as being true and correct and are hereby made a specific part of this Resolution upon adoption
24 hereof.
25
Section 2.
The City Commission of the City of Boynton Beach hereby approves
26 the adoption of the City of Boynton Beach's 2005-06 One Year Action Plan, which Plan is
27 attached hereto as Exhibit "A" and made a part hereof.
28
29
Section 3.
This Resolution shall become effective immediately upon passage.
S:\CA\RESO\05-06 One Year Plan (Comm lmp).doc
" '------,.,"~"',-~~y.'>
1
2 PASSED AND ADOPTED this day of August, 2005.
3
4 CITY OF BOYNTON BEACH, FLORIDA
S
6
7 Mayor
8
9
10 Vice Mayor
11
12
13 Commissioner
14
IS
16 Commissioner
17
18
19 Commissioner
20 ATTEST:
21
22 City Clerk
S:\CA\RESO\OS-06 One Year Plan (Corrun Imp).doc
VI.-CONSENT AGENDA
ITEM E.!
CITY OF BOYNTON BEACE
AGENDA ITEM REQUEST FORM
Requested City Commission
Meeting Dates
Date Final Form Must be Turned
in to City Clerk's Office
Requested City Commission
Meeting Dates
Date Final Fonn Must be Turned
in to City Clerk's Office
[8] August 2, 2005
D August 16, 2005
D September 6, 2005
D September 20, 2005
July 18,2005 (Noon.)
D October 5, 2005
D October 18, 2005
D November I, 2005
D November 15,2005
September 19,2005 (Noon)
August 1,2005 (Noon)
October 3, 2005 (Noon)
August 15,2005 (Noon)
October 17,2005 (Noon)
September 6, 2005 (Noon)
October 3 1,2005 (Noon)
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NATURE OF
AGENDA ITEM
D Administrative
[8] Consent Agenda
D Public Hearing
D Bids
D Announcement
D City Manager's Report
D Development Plans
D New Business
D Legal
D UnfInished Business
D Presentation
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RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Consent
Agenda. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12,
2005. For further details pertaining to the request, see attached Department of Development Memorandum No.
PZ 05-122.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
Neelam (fka Schnars) Business Center (NWSP 05-022)
J. Ernest Brady, Stephen James Inc.
Anand D. Patel (Contract Purchaser)
924 N. Federal Highway
Requestfor Site Plan approval for a three (3) story, 8,754 square foot office/retail
building in a Mixed Use Low (MU-L) zoning district.
PROGRAM IMPACT: N/A
~SCALIMPACT: N/A
ALTERNATIVES: A9rf N/A
DovelopM~
City Manager's Signature
2"fu \
vt--././ X
Plannillg and Z ~Director City Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\PROJECTS\Schnars Business Ctr\Neelam NWSP 05-022\Agenda Item Request NeeJam (fka Schnars) Bus. Ctr NWSP 05-022 8-
2-05.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
DEPARTMENT OF DEVELOPMENT
Memorandum PZ 05-122
DATE:
RE:
Chair & Members Community Redevelopment Agency Board
~Q0
Michael Rumpf, \ "-
Planning & Zoning Director
Ed Breese,
Principal Planner
July 6, 2005
Neelam (fka Schnars) Business Center - 924 North Federal Highway
(NWSP 05-022)
Re-review of expired site plan
TO:
THROUGH:
FROM:
Staff has received a request for New Site Plan approval (NWSP 05-022) of the previously approved
Schnars Business Center (NWSP 02- 024) at 924 North Federal Highway. The project also previously
received a Time Extension (SPTE 04-003). However, the original approval has now expired, the
property is under contract and the applicant would like to construct the project as previously
approved, under the name Neelam Business Center.
Staff has conducted a review of the proposed plans to ensure consistency with the original approved
drawings. Additionally staff has taken into consideration any changes in the development regulations
since original approval, for conformance purposes.
Attached is the original staff report (NWSP 02-024) dated January 29, 2003 and an updated set of
Conditions of Approval (COA's), based upon the re-submitted plans.
Staff concludes that the site plan (NWSP 05-022) is consistent with the previously approved plan and
recommends approval, contingent upon all comments indicated in Exhibit "C" - Conditions of
Approval. The Technical Application Review Team (TART) recommends that the deficiencies
identified in this exhibit be corrected on the set of plans submitted for building permit. Also, any
additional conditions recommended by the Board or City Commission shall be documented
accordingly in the Conditions of Approval.
DEVELOPMENT DEPARTMENT
MEMORANDUM NO. PZ 03-025
SITE PLAN REVIEW STAFF REPORT
COMMUNITY REDEVELOPMENT AGENCY BOARD AND CITY COMMISSION
January 29, 2003
DESCRIPTION OF PROJECT
Project Name/No.: Schnars Business Center /NWSP 02-024
Property Owner: Ruth R. Dolly
Applicant/ Agent: Jeffrey Schnars, Schnars Engineering Corporation
Location: 924 North Federal Highway
Land Use/Zoning: Existing:
General Commercial/C-4 (West Parcel),
Mixed-Use/ Single-Family R-1-A (East Parcel)
Proposed:
Mixed-Use (MX)/Mixed-Use Low (MU-L)
Type of Use:
Professional offices and retail
Project size:
Site Area:
Building Area:
Floor Area:
Lot Coverage:
22,838 square feet (0.52 acres)
3,388 square feet (0.08 acre)
8,754 square feet
15.4%
Adjacent Uses:
(see Exhibit "A" - Location Map)
North -
N.E. 9th Avenue right-of-way, and farther north, Boynton Beach
F.O.E. #3944 lodge building, zoned C-4;
South -
An auto repair business (ND Auto Repair shop) zoned C-4;
East
Single-family neighborhood, zoned R-1-A; and
West -
North Federal Highway right-of-way, and farther west, a retail
business (M&M Appliances), zoned C-4.
Site Characteristics: The site is a vacant, rectangular-shaped lot, overgrown with grasses. The site
is cleared and contains a row of Australian pines along the northeast property
line. The site contains four (4) parcels (Lots 20, 21, 22, and 23) dissected by a
20-foot wide unimproved alley. On the west side of the unimproved alley, are
located lots 21 through 23 with a General Commercial (GC) future land use
designation and zoned General Commercial (C-4), while on the east side, is lot
20 with a Mixed Use land use classification (MX) and zoned Single-Family (R-1-
A).
Proposal:
The developer proposes to construct a three (3) story, 8,754 square foot office
/ retail building located on a 0.52-acre lot (see Exhibit "B" - Proposed Site
Plan). The proposed building height is 44 feet - 11 inches, which is below the
75-foot maximum allowed in the MU-L zoning district. A concurrent rezoning
Page 2
Schnars Business Center - Site Plan Review Staff Report
Memorandum No. PZ 03-025
request (LUAR 02-013) is proposed to bring all parcels under a single district as
well as to utilize the preferable development restrictions of the MU-L district.
Also being processed concurrently are a reclassification of parcels 21, 22, and
23 to Mixed Use, and the abandonment of a 20-foot wide alley (ABAN 02-003)
(see Exhibit "C" - Conditions of Approval).
Concurrency:
a. Traffic-
A traffic study for this project was submitted and sent to the Palm Beach
County Traffic Division for their review and approval. Staff has received
confirmation from Palm Beach County's Traffic Division regarding
standards compliance.
b. Drainage-
Conceptual drainage information was provided for the City's review. The
City's concurrency ordinance requires drainage certification at time of
site plan approval. The Engineering Division is recommending that the
review of specific drainage solutions be deferred until time of permit
review, when more complete engineering documents are required.
Driveways: On-site traffic circulation will consist of two (2), new driveway entrances
measuring 24 feet wide providing ingress and egress along North Federal
Highway and N.E. 9th Avenue. The entrance driveway on North Federal Highway
is proposed to be located approximately 90 feet from N.E. 9th Avenue. As this
driveway is proposed along a roadway classified greater than a local street, it
must be separated from an intersection by not less than 180 feet. Therefore, the
comments require the relocation or elimination of the driveway or receiving relief
through the variance process. The second entrance drive on N.E. 9th Avenue is
proposed at 120 feet from the North Federal Highway. A two-way drive aisle
would provide access to the parking area located around the building, to the
south and east portion of the property.
Parking Facility: The Land Development Regulations require a minimum of one parking space per
300 square feet for an office use and one parking space per 200 square feet for
a retail use. Using these ratios, the required number of parking spaces is 34.
This is based on 19 spaces required for 5,726 square feet of gross floor area of
office space (2nd and 3rd floors), and 15 spaces required for 3,028 square feet of
retail space (1st floor). The applicant proposes a total of thirty-five (35) spaces
for the proposed use, including two (2) spaces designated for handicap use
along the southeast portion of the building and a 12-foot wide by 35-foot long
loading area located at the southeast corner of the property, in front of the
dumpster enclosure. All spaces, except the handicap space will be dimensioned
nine feet by eighteen feet (9' x 18').
Landscaping: The landscaping of the site will fully meet the code requirements when staff
comments are incorporated. The proposed pervious or "green" area is 6,098
square feet or 26.9% of the total site. The project perimeter landscaping
includes a 7-foot wide buffer along the north (N.E. 9th Avenue) and west (N.
Federal Highway) property lines.
The north buffer will contain Montgomery Palm, Cabbage Palm, Guava, Red Tip
Cocoplum, Imperial Blue Plumbago, Variegated Giant Liriope, and a Wax Myrtle
Page 3
Schnars Business Center - Site Plan Review Staff Report
Memorandum No. PZ 03-025
Hedge. The west buffer will contain Montgomery Palm trees and a Wax Myrtle
hedge.
A continuous Wax Myrtle hedge supplemented with Montgomery Palm Trees is
proposed along the south property line. The applicant will provide the required
six (6) foot masonry wall along the eastern property line of the site to separate
the office/retail use from the adjacent Single-family zoning district. Along the
side (east) perimeter buffer, inside of the wall, the landscape plan proposes two
(2) Gumbo Limbo trees, two (2) White Bird of Paradise, and a row of red Hibicus
hedges.
The foundation plantings around the building are extensive, exceed code
requirements and further enhance the site. This planting includes Red Tip
Cocoplum, Purple Bougainvillea, Imperial Blue Plumbago, Evergreen Giant
Liriope, and Xanadu Philodendron. The project entrances located on the
western and northern property lines will be enhanced with Wax Myrtle hedges
and will contain four (4) Tibouchina Granulosa trees meeting the code
requirements for signature trees. The development will be provided with the
required amount of perimeter and internal landscaping as required in the Land
Development Regulations, Chapter 7.5 Article II.
Building and Site: Building and site regulations will be fully met when staff comments are
incorporated into the permit drawings.
Community Design: The applicant describes the proposed building design as a Georgian style,
three-story structure with a flat tile roof (Skandia by Entegra). All fa~ades of
the building have been designed and articulated with architectural elements
such as shutters, molding, and score lines positively contributing to the overall
appearance of both the proposed building and North Federal Highway. The
exterior walls of the proposed structure will have a smooth stucco finish painted
between a light yellow (Glidden White Whisper 44YY 84/042) and dark yellow
scheme (Glidden Candle Wax 79/168). The accent trim; windows and doors
will be white (Glidden). Additional features such as aluminum railings will be
painted black. The proposed entrances of the building will have covered double
doors facing North Federal Highway and the east portion of the property
adjacent to the parking area. Window planter boxes are located outside the
second and third floor windows above the entrances, which further enhances
the building's east and west fa~ades. The building height of 44 feet - 11 inches,
is below the maximum 75 feet allowed in the MU-L district. This proposed
design is original, as it offers no similarities with any other buildings in the
immediate area. Staff support this building design as proposed because it will
set higher standards for future development along Federal Highway and is
consistent with the underlying concept of the new MU-L zoning district.
Signage:
Three (3) wall signs measuring 21 square feet each are proposed on the west
elevation, fronting on North Federal Highway. A freestanding monument sign is
proposed along North Federal Highway measuring seven feet and three inches
(7'-3") high by eight feet and eight inches (8'-8") wide with the property
address located on top. It will depict the name of the building's tenants. The
monument sign will receive color and texture treatments similar to those of the
Page 4
Schnars Business Center - Site Plan Review Staff Report
Memorandum No. PZ 03-025
building. The base of the sign will be enhanced with Yellow Lantana shrubs. The
proposed wall signs and the freestanding sign comply with sign standards
including maximum sign area and height as set forth in the Land Development
Regulations, Chapter 21.
RECOMMENDATION:
Staff recommends that this site plan request be approved, subject to the comments included in Exhibit
"C" - Conditions of Approval. The Technical Review Committee (TRC) recommends that the
deficiencies identified in this exhibit be corrected on the set of plans submitted for building permit.
xc: Central File
S:\Planning\SHARED\WP\PROJECTS\Schnars Business Center\NWSP 02-024\Statf report. doc
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Location Map
SCHNARS BUSINESS CENTER
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CONDITIONS OF APPROVAL
New Site Plan
Project name: Neelam Business Center (flea Schnars Business Center)
File number: NWSP 05-022
Reference: 151 Review plans identified as a New Site Plan with a Julv 5. 2005 Planning and Zoning Department
date stamp marking.
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS - General
Comments:
1. A Royal Poinciana is depicted adjacent to the dumpster enclosure and will X
create a vertical conflict with Solid Waste trucks. Please relocate at time of
permitting.
PUBLIC WORKS - Traffic
Comments:
2. Provide a traffic analysis and notice of concurrency (Traffic Performance X
Standards Review) from Palm Beach County Traffic Engineering prior to
issuance of first permit.
3. All work done within the Federal Highway right-of-way shall require FDOT X
approval and permitting.
4. The typical section on Sheet C-l is not in conformance with City Standards X
for pavement sections. Please correct at time of permitting.
ENGINEERING DIVISION
Comments:
5. All comments requiring changes and/or corrections to the plans shall be X
reflected on all appropriate sheets.
6. Please note that changes or revisions to these plans may generate additional X
comments. Acceptance of these plans during the TART process does not
ensure that additional comments may not be generated by the Commission
and at permit review.
7. Indicate by note on the Landscape Plan, that within the sight triangles there X
shall be an unobstructed cross-visibility at a level between 2.5 feet and 8
feet above the pavement (LDR, Chapter 7.5, Article II, Section S.H.)
8. The provided loading zone may hinder Solid Waste pickup. Collection of X
Solid Waste takes precedence over loading and unloading. If the Loading
Zone is occupied when Solid Waste arrives, trash may not be picked up.
Staff recommends relocating the Loading Zone to accommodate both needs.
9. Provide an engineer's certification on the Drainage Plan as specified in X
LDR, Chapter 4, Section 7.F.2.
10. Full Drainage Plans, including drainage calculations, in accordance with the X
LDR, Chapter 6, Article N, Section 5 will be required at the time of
COA
07/07/05
2
I u
DEP ARTMENTS INCLUDE REJECT
permitting.
II. Paving, Drainage and Site details will not be reviewed for construction X
acceptability at this time. All engineering construction details shall be in
accordance with the applicable City of Boynton Beach Standard Drawings
and the "Engineering Design Handbook and Construction Standards"
and will be reviewed at the time of construction permit application.
UTILITIES
Comments:
12. Please provide a timeline that clearly illustrates when water and sewer X
services will be required to serve the proposed project. Your starting date
for the timeline should be the date of City Commission approval. Also
provide milestone dates for permit application, the start of construction, and
the setting of the first water meter. This time line will be used to determine
the adequacy of water and wastewater treatment capacity for your project
upon the project's completion, so please be as accurate as possible.
13. No Utility Plan was included with this submittal, therefore the Utilities X
Department considers this plan incomplete as submitted. However, the
proposed Site Plan is an existing site located within the Utilities' service
area, and is located where utility support is available. In addition, this
project has come before this committee when it was initially reviewed and
approved approximately 1 Yz years ago. Therefore, we are providing only a
cursory review of the proposed Site Plans as submitted at this time.
Additional comments may be required after a Utility Plan has been
submitted.
14. Palm Beach County Health Department permits may be required for the X
water and sewer systems serving this project (CODE, Section 26-12).
15. Fire flow calculations will be required demonstrating the City Code X
requirement of 1,500 g.p.m. (500 g.p.m. some residential developments)
with 20 p.s.i. residual pressure as stated in the LDR, Chapter 6, Article IV,
Section 16, or the requirement imposed by Insurance underwriters,
whichever is greater (CODE, Section 26-16(b)).
16. The LDR, Chapter 6, Article IV, Section 16 requires that all points on each X
building will be within 200 feet of an existing or proposed fire hydrant.
Please demonstrate that the plan meets this condition, by showing all
hydrants.
17. The CODE, Section 26-34(E) requires that a capacity reservation fee be X
paid for this project either upon the request for the Department's signature
on the Health Department application forms or within seven (7) days of Site
Plan approval, whichever occurs first. This fee will be determined based
COA
07/07/05
3
DEPARTMENTS INCLUDE REJECT
upon final meter size, or expected demand.
18. Water and sewer lines to be owned and operated by the City shall be X
included within utility easements. Please show all proposed easements on
the engineering drawings, using a minimum width of 12 feet. The
easements shall be dedicated via separate instrument to the City as stated in
CODE Sec. 26-33(a).
19. A building permit for this project shall not be issued until this Department X
has approved the plans for the water and/or sewer improvements required to
service this project, in accordance with the CODE, Section 26-15.
20. PVC material not permitted on the City's water system. All lines shall be X
DIP.
21. Utility construction details will not be reviewed for construction X
acceptability at this time. All utility construction details shall be in
accordance with the Utilities Department's "Utilities Engineering Design
Handbook and Construction Standards" manual (including any updates);
they will be reviewed at the time of construction permit application.
FIRE
Comments: NONE X
POLICE
Comments: NONE X
BUILDING DIVISION
Comments:
22. The elevator shall be designed to comply with 2001 FBC, Section 3003.4.2. X
The minimum length and width shall be 76"x24" to accommodate a
stretcher in the horizontal position.
23. The elevator shall comply with 2001 FBC, Section 11-4.10 for handicap X
accessibility requirements.
24. A minimum of two (2) exits is required from each level and they shall be X
remotely located per the 2001 FBC, Section 1004.2.1, 1004.1, 1004.1.2,
1004.1.4.
25. Elevators shall not be in a common enclosing shaft with a stairway, and the X
path of travel from one flight of stairs to the next shall not pass directly in
front of elevator doors.
COA
07107/05
4
.
DEPARTMENTS INCLUDE REJECT
26. Clearly show access to the first-story tenant. Is it under the stairs? ClarifY. X
The minimum clear width between the stairs and the wall of the first floor
tenant space shall comply with 2001 FBC, Table 1004.1.
27. This building is classified as Type II construction. Wood roof and trusses X
are not permitted by code for Type II construction. Read 2001 FBC, Table
500 for compliance.
PARKS AND RECREATION
Comments: NONE X
FORESTER/ENVIRONMENTALIST
Comments: NONE X
PLANNING AND ZONING
Comments:
28. Increase the size of the Sabal Palms to 16- 20 feet of overall height and the X
Montgomery palms to 18-20 feet of overall height.
29. Ensure buffer wall is placed along the entire south property and is extended X
westerly to the proposed dumpster enclosure.
ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY BOARD
CONDITIONS
Comments:
I NONE X
ADDITIONAL CITY COMMISSION CONDITIONS
Comments:
2. To be determined.
MWRJscS:\Planning\SHARED\WP\PROJECTS\Schnars Business Ctr\Patel NWSP 05-022\COA.doc
DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA
PROJECT NAME: Nee/am Business Center-
APPLICANTS AGENT: Anaheim Properties
APPLICANTS ADDRESS: 1155 SW 25 th Avenue Boynton Beach, FL 33426
DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: August 2, 2005
TYPE OF RELIEF SOUGHT: Request Site Plan approval for a three (3) story, 8,754 square foot
office/retail building in a Mixed Use Low (MU-L) zoning district.
LOCATION OF PROPERTY: 924 North Federal Highway, Boynton Beach
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida
appearing on the Consent Agenda on the date above. The City Commission hereby adopts the
findings and recommendation of the Community Redevelopment Agency Board, which Board found
as follows:
OR
THIS MATTER came on to be heard before the City Commission of the City of Boynton
Beach, Florida on the date of hearing stated above. The City Commission having considered the
relief sought by the applicant and heard testimony from the applicant, members of city administrative
staff and the public finds as follows:
1. Application for the relief sought was made by the Applicant in a manner consistent with
the requirements of the City's Land Development Regulations.
2. The Applicant
HAS
HAS NOT
established by substantial competent evidence a basis for the relief requested.
3. The conditions for development requested by the Applicant, administrative staff, or
suggested by the public and supported by substantial competent evidence are as set
forth on Exhibit "C" with notation "Included".
4. The Applicant's application for relief is hereby
_ GRANTED subject to the conditions referenced in paragraph 3 hereof.
DENIED
5. This Order shall take effect immediately upon issuance by the City Clerk.
6. All further development on the property shall be made in accordance with the terms
and conditions of this order.
7. Other
DATED:
City Clerk
S:\Planning\SHARED\WP\PROJECTS\Schnars Business Ctr\Patel NWSP 05-022\DO.doc
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Chair Heavilin opened the floor to the public, and closed it when no one wished to speak.
Mr. Fenton took issue with the passive voice in some of the Conditions of Approval, pointing out item
1 that asks: "Please indicate number and size of containers." He felt that a more declaratory or
dictatorial tone was in order. Mr. Johnson responded that staff was confident that all the conditions
would be met and if not, permits would not be issued. Staff felt that it had protected the City with
the Conditions of Approval. A large number of the conditions had already been satisfied.
Mr. DeMarco confirmed with the agent that the applicants were in agreement with all 71 Conditions
of Approval and were adding two more. He expressed appreciation for what the developers had
done for that corner of the City.
Mr. Johnson declared that staff agreed with the two new conditions of approval suggested by the
applicant.
Motion
Ms. Horenburger moved to amend the Comprehensive Plan Future Land Use Map from Local Retail
Commercial to Special High Density Residential (LUAR 05-005). Vice Chair Tillman seconded the
motion that passed 5-0.
Motion
Ms. Horenburger moved to approve the request to rezone from C-3 Community Commercial to PUD
Planned Unit Development (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0.
Motion
Ms. Horenburger moved to approve the Site Plan approval for the Heritage Club at Boynton Beach
(NWSP 05-014) subject to all 73 Conditions of Approval. Mr. Fenton seconded the motion.
Chair Heavilin commented that the applicant had raised the bar for development in Boynton Beach.
She thought it was the best project the board had seen. Mr. Mankoff commended City staff for its
efforts.
The motion passed 5-0.
Motion
Mr. Fenton moved to approve the request for height exception of 10 feet for Heritage Club of
Boynton Beach (HTEX 05-004). Vice Chair Tillman seconded the motion that passed 5-0.
C. New Site Plan
1.
Project:
Neelam (fka Schnars) Business Center
(NWSP 05-022)
J. Ernest Brady, Stephen James Inc.
Anand D. Patel (Contract Purchaser)
924 N. Federal Highway
Request for Site Plan approval for a three (3) story,
8,754 square foot office/retail building in a Mixed
Use Low (MU-L) zoning district.
Agent:
Owner:
Location:
Description:
Ed Breese, Principal Planner, stated that this property had changed hands and the site plan approval
expired. The new owner would like to build the same building as previously approved.
11
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Chair Heavilin opened the floor for the public, and closed it when no one wished to speak.
Motion
Ms. Horenburger moved approval of NWSP 05-022, Neelam Business Center, request for Site Plan
approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L)
zoning district. Vice Chair Tillman seconded the motion that passed 5-0.
THE MEETING RECESSED FROM 8:06 P.M. TO 8:12 P.M.
D. Condominium Hotels in Mixed Use Districts
Code Review
1.
Project:
Condominium Hotels in Mixed Use Districts
(CDRV 05-013)
Staff-initiated
Mixed-Use High Intensity (MU-H) and Mixed Use
Low Intensity zoning districts
Request to amend the Land Development
Regulations, Chapter 2, Section 6.F Mixed Use
Zoning Districts to add "Hotel, Extended Stay" as a
permitted use in the Mixed Use-High Intensity (MU-
H) zoning district; as a conditional use in the Mixed
Use-Low Intensity (MU-L) zoning district; and to
amend the definitions of "Hotel" and "Hotel,
Extended Stay" to include condominium hotel units.
Agent:
Location:
Description:
Dick Hudson, Senior Planner, reviewed this request, stating that the "condo hotel" had become a
popular product in the hotel industry since the project could be financed more like a residential
condominium project. Many local governments are revisiting their LDRs and making revisions to
address this type of project and insure that the facilities truly operate as hotels and not residential
developments. An owner would be limited to a six-month stay per year to assure that individuals do
not take up permanent residence in the units. The condo hotels would probably take the form of an
"extended stay hotel," so City staff is recommending that the City Commission amend the permitted
uses table for the "Mixed Use-High" zoning district to make it clear that "extended stay hotels,"
which would be the likely category to accommodate a condo hotel, are permitted in that district.
Staff recommended approval of this item.
Ms. Horenburger inquired whether the County's Bed Tax would come into play for stays shorter than
six months. Mr. Hudson responded that it would be subject to the Bed Tax because it would be
considered transient lodging.
Ms. Horenburger asked the difference between the condo hotel and the condo with mostly seasonal
residents. Mr. Hudson said that a condo was considered a residence and the residential parking
regulations would apply. A hotel was considered a commercial use. The parking requirements for
condos and hotel condos were very similar (one bedroom condos call for 1.33 per unit and hotel
condos call for 1.25 per unit).
Mr. DeMarco asked if the condo laws would apply to the hotel condos. Mr. Hudson believed it did.
Mr. DeMarco suggested the City contact someone who could give an authoritative answer on this.
12
VI.-CONSENT AGENDA
ITEM E.3
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
Requested City Commission Date Final Fonn Must be Turned Requested City Commission Date Final Fonn Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
1ZJ August 2, 2005 July 18,2005 (Noon.) D October 5, 2005 September 19,2005 (Noon)
D August 16, 2005 August 1,2005 (Noon) D October 18, 2005 October 3, 2005 (Noon)
D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17,2005 (Noon)
D September 20, 2005 September 6, 2005 (Noon) D November 15, 2005 October 3 1,2005 (Noon)
NATURE OF
AGENDA ITEM
D
1ZJ
D
D
D
D
Administrative
Consent Agenda
Public Hearing
Bids
D
D
D
D
D
Development Plans
New Business
.: )
:-") --i
-:-<
" "-,
'. -.
,J.';
Announcement
City Manager's Report
Legal
UnfInished Business
Presentation
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RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Consent
Agenda. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12,
2005. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-121.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
2625 Lake Drive North (ZNCV 05-003)
Jeff Tomberg
Avon Investments, Inc.
2625 Lake Drive North
Request for relief from the City of Boynton Beach Land Development Regulations,
Chapter 2, Zoning, Section 5.C.2, requiring a seventy-fIve (75) foot minimum lot frontage
to allow a 22-foot variance, resulting in a fIfty-three (53) foot minimum lot frontage
within the R-l-AA Single-family Residential zoning district.
PROGRAM IMPACT:
FISCAL IMPACT:
ALTERNATIVES:
N/A
N/A
N/A
~~~J:;5
l&J~ ~-
Planning and oning Director Ci~ Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\PROJECTS\2625 Lake Drive North\Agenda Item Request 2625 Lake Dr North ZNCV 05-002 8-2-05.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 05-121
STAFF REPORT
To:
Chair and Members
Community Redevelopment Agency Board and City Commission
From:
Michael Rumpf
Planning and Zoning Director
Eric Lee Johnson( AICP W
Planner 0
Through:
Meeting
Date:
July 12( 2005
File No: ZNCV 05-003
Location: 2625 Lake Drive North (Lots 31 & 32 in Lakeside Gardens)
Owner: Avon Investments Incorporated
Project: Construct a single-family detached home
Request: Request for relief from the City of Boynton Beach Land Development Regulations( Chapter
2( Zoning( Section 5.C.2( requiring a seventy-five (75) foot minimum lot frontage to allow
a 22-foot variance( resulting in a fifty-three (53) foot minimum lot frontage within the R-
1-AA Single-family Residential zoning district.
BACKGROUND
Mr. Jeff Tomberg( agent for the property owner (Avon Investments Incorporated) submitted the
variance request on April 20( 2005 (see Exhibit "e"). As of today( this office has not received any letters
of support or denial by the neighboring property owners. The subject property is comprised of two (2)
lots( zoned R-1-AA( single-family residential (see Exhibit "A" - Location Map). They are located on the
east side of Lake Drive North( just south of the intersection of Lake Drive North and Dimick Road. The
lots were platted on January 22( 1922 as part of the Lakeside Gardens subdivision. Both lots combined
form a single parcel that is dimensioned 53 feet in width and 160.69 feet in depth. The width of the lot
is wider at the street front (Lake Drive North) than it is at the rear (along the Intracoastal Waterway).
Evidently( the owner was able to acquire a three (3) foot wide sliver of land from the property to the
south (Lot 33). This sliver of land is approximately 55 feet deep. A single-family detached home was
previously built on the property. However( Building Permit #04-4869 permitted the demolition of the
existing house. Now( the 0.188-acre parcel is vacant and does not conform to current R-1-AA zoning
district regulations as it relates to lot width. The owner applied for a building permit (#05-1493) to
construct a new single-family detached dwelling.
The district regulations of the R-1-AA zoning district are as follows:
. Minimum lot area: 7(500 square feet if lot is platted prior to June 13( 1975
. Front and Rear setback: 25 feet;
. Side setback: 7.5 feet if lot is platted prior to June 13( 1975
. Maximum Lot Coverage: 35%
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Page 2
2625 Lake Drive North Variance
File No. ZNCV 05-003
The survey (Exhibit "8") shows that placement and configuration of the house, proposed on the subject
parcel, would be located 25 feet from the front property line, seven and one-half (7-lh) feet away from
the side property lines, and over 39 feet from the rear property line. The placement of the new house
would comply with code, except that the lot frontage does not meet the minimum required by the R-1-
AA zoning district. The property has been zoned R-1-AA since 1961.
ANALYSIS
According to Chapter 1.5, Article II, Section 2.1.0. of the Land Development Regulations, the zoning
code variance cannot be approved unless the board finds the following:
a. That special conditions and circumstances exist which are peculiar to the land, structure/ or
building involved and which are not applicable to other lands/ structure~ or buildings in the same
zoning district.
b. That the special conditions and circumstances do not result from the actions of the applicant.
c. That granting the variance requested will not confer on the applicant any special privilege that is
denied by this ordinance to other lands/ buildings/ or structures in the same zoning district.
d That literal interpretation of the provisions of this ordinance would deprive the applicant of rights
commonly enjoyed by other properties in the same zoning district under the terms of the ordinance
and would work unnecessary and undue hardship on the applicant.
e. That the variance granted is the minimum variance that will make possible the reasonable use of
the land, building/ or structure.
f. That the granting of the variance will be in harmony with the general intent and purpose of this
chapter [ordinance] and that such variance will not be injurious to the area involved or othe/Wise
detrimental to the public welfare.
g. For variances to minimum lot area or lot frontage requirements/ that property is not available from
adjacent properties in order to meet these requirements/ or that the acquisition of such property
would cause the adjacent property or structures to become non-conforming. The applicant for
such variances shall provide an affidavit with the application for variance stating that the above
mentioned conditions exist with respect to the acquisition of additional property.
Staff reviewed the requested variance focusing on the applicant's response to the above criteria
contained in Exhibit "C". With regards to the applicant's response to criteria 'a// and ''b/; special
conditions or circumstances appear to be peculiar to the land on which this variance is being sought.
Despite the fact that the property owner acquired a three (3) foot wide sliver, the lots were platted in
1922 with widths of 25-foot. During the course of time, various property owners combined two or more
lots to form parcels that were practical to build upon. The subject property is one such parcel where
two (2) lots have been combined and a house could be built and meet the zoning district's required
setbacks. With regard to criteria" e', no special privilege would be granted to the applicant because a
number of similar lots within this subdivision (with 50-foot lot frontage) have houses built upon them
(see Exhibit "0" - Aerial photograph). Likewise, literal interpretation of provisions of the hardship
criteria would in fact, deprive the applicant of the rights previously enjoyed by other properties in the
same zoning district within the same subdivision. With respect to criteria "e' and "t', the variance
sought would be the minimum necessary to make possible the reasonable use of the land for a single-
Page 3
2625 Lake Drive North Variance
File No. ZNCV 05-003
family detached home. Granting of the variance would not change the nature or character of the
neighborhood due to the fact that there was a house already built on the property. Contemporary
homes (built within this area of the city) tend to be constructed larger in size than their predecessors.
Larger homes are the product of rising property values in conjunction with diminishing supply of vacant
properties, especially within desirable areas of the city. Staff has no objection to larger homes, as long
as these homes are built in accordance with the regulations of the R-1-AA zoning district. It appears as
though the proposed survey shows the placement of the house would comply with all setback
regulations. Lastly, the aerial photograph shows that the subject property is bounded by Lot 33 of
Lakeside Gardens to the south (improved with a single-family home), and a 4.2-foot wide walk
easement of the plat to the north; the subject lots cannot be expanded to either the north or the south.
It should be noted that last year, Mr. Rod Regan attempted to abandon the walk easement to the north
in order to acquire additional property. However, his abandonment request was denied by the City
Commission. Therefore, there would be no future opportunity for acquiring additional property.
Under Chapter 2/ Section 11.1.C.3, Non-Conforming Lots, a detached, single-family dwelling may be
constructed on any parcel in an R-1-AA district, without requiring a variance, provided that it meets the
following requirements: 1) the parcel contains at least one whole platted lot; 2) the parcel has a
frontage of not less than 60 feet, and a lot area of not less than 6/750 square feet in area; and 3) it
would not be possible to acquire property from adjacent parcels so as to make the subject parcel
conforming, without causing the adjacent parcels or structures thereon to become non-conforming or
more non-conforming. The applicant would meet all of the criteria for being allowed to construct a
home without the necessity of a variance under these non-conforming provisions, except if the applicant
has 53 foot frontage and not the requisite 60 feet, a deficit of 7 feet.
CONCLUSIONS/RECOMMENDATION
As analyzed above, the proposed variance request would appear to comply with the entire above-
referenced criteria. It is a challenge to the city to know when to adhere to new zoning regulations, and
therefore through attrition bring neighborhoods up to current standards, and when to recognize
development rights established, in part, by original platting. However, staff has arrived at this
conclusion based on the fact that the property remains as originally platted, various properties in the
neighborhood have been improved that are similar in size, that the total width of the subject lot is only
eight (8) feet narrower than the minimum width required for the R-1-AA zoning district for a legal non-
conforming lot, and based on the inability to expand the subject lot to a conforming width. Therefore,
staff recommends approval of the requested variance of 22 feet, to reduce the minimum required lot
frontage from 75 feet to 53 feet, within the R-1-AA zoning district. No conditions of approval are
recommended by staff. Any conditions of approval added by the Community Redevelopment Agency or
City Commission will be placed in Exhibit "E" - Conditions of Approval.
S:\Planning\SHARED\WP\PROJECfS\2625 Lake Drive North\Staff Report.doc
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EXHIBIT C
Application for variance of Rod Regan, Avon Investments, Inc.
Statement of Special Conditions:
A. Special conditions exist which are peculiar to the land which are not applicable
to other land in the same zone and district. Result from the property being platted
prior to the modern zoning codes. This Plat dates back more than 50 years. At
the time the individual lots were platted in 25-foot frontage by 160' depth. The
applicant owns Lots 31 and 32, and has a 3' parcel relating to Lot 33.
B. The special conditions arise from the lot having been previously platted and the
City amending or altering the size frontage requirements for single family
residential lots. The non-conforming use existed prior to the purchase of the
property by the applicant.
C. Granting the variance will not confer on the applicant any special privilege denied
by this ordinance against other lands or structures in the same zoning district, or
simply allow the applicant to build on property he currently owns that previously
had a residence on it.
D. Literal interpretation of provisions of this chapter would deprive the applicant of
the rights commonly enjoyed by other properties in the same zoning district by
precluding him from building on a previously-built residential lot, which at the time
it was originally platted and built upon, the two lots conformed with necessary
zoning codes. Currently the zoning and ordinance in questions requires a 60-foot
frontage, and the applicant does not have 60 front feet.
E. The variance granted is the minimum variance that will make possible the
reasonable use of this property. The reasonable use of this land is for a single
family residence, and without the variance this property is non-conforming
because it does not have the necessary frontage to comply with the ordinance.
F. The granting of the variance is consistent with the purpose of this chapter and the
variance does not change the nature or character of the neighborhood; nor does
it change the nature or character of the lot; nor is it otherwise detrimental to the
public welfare. Granting the variance will permit the applicant to remain consistent
with the nature and character of the existing neighborhood and consistent with the
existing use of the property. It is not injurious to the character of the neighborhood
in any respect.
G. Variance of minimum lot front requirements is not available to be purchased by
the applicant, as the property on Lot 33 currently has a residence on it and the
necessary frontage cannot be acquired by the applicant on the south side. On the
north side there is an easement for ingress and egress to the Lake Worth
waterway which cannot be acquired by applicant. There is no possible way to
acquire sufficient frontage to comply with the zoning code.
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EXHIBIT "E"
Conditions of Approval
Project name: 2625 Lake Drive North
File number: ZNCV 05-003
Reference:
DEPARTMENTS INCLUDE REJ.:d
PUBLIC WORKS- General
Comments: None X
PUBLIC WORKS- Traffic
Comments: None X
UTILITIES
Comments: None X
FIRE
Comments: None X
POLICE
Comments: None X
ENGINEERING DIVISION
Comments: None X
BUILDING DIVISION
Comments: None X
PARKS AND RECREATION
Connnents: None X
FORESTER/ENVIRONMENTALIST
Comments: None X
PLANNING AND ZONING
Comments: None X
ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY BOARD
CONDITIONS
Conditions of Approval
2
DEPARTMENTS INCLUDE REJECT
Comments:
1. None X
ADDITIONAL CITY COMMISSION CONDITIONS
Comments: I
I 2. To be determined. I I
S:\Planning\SHARED\WP\PROJECTS\2625 Lake Drive North\COA.doc
S:\Planning\Planning Templates\Condition of Approval 2 page -P&D ORA 2003 form.doc
DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA
PROJECT NAME: 2625 Lake Drive North
APPLICANT'S AGENT: Mr. Jeff Tomberg, J.D.; P.A.
APPLICANT'S ADDRESS: 626 Southeast 4th Street Boynton Beach, FL 33435
DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION:
August 2, 2005
TYPE OF RELIEF SOUGHT: Request for relief from the City of Boynton Beach Land
Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-five (75) foot
minimum lot frontage to allow a 22-foot variance, resulting in a fifty-three (53) foot minimum lot
frontage within the R-1-M Single-family Residential zoning district.
LOCATION OF PROPERTY: 2625 Lake Drive North
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida
appearing on the Consent Agenda on the date above. The City Commission hereby adopts the
findings and recommendation of the Community Redevelopment Agency Board, which Board found
as follows:
OR
THIS MATTER came on to be heard before the City Commission of the City of Boynton
Beach, Florida on the date of hearing stated above. The City Commission having considered the
relief sought by the applicant and heard testimony from the applicant, members of city administrative
staff and the public finds as follows:
1. Application for the relief sought was made by the Applicant in a manner consistent with
the requirements of the City's Land Development Regulations.
2. The Applicant
HAS
HAS NOT
established by substantial competent evidence a basis for the relief requested.
3. The conditions for development requested by the Applicant, administrative staff. or
suggested by the public and supported by substantial competent evidence are as set
forth on Exhibit "C" with notation "Included".
4. The Applicant's application for relief is hereby
_ GRANTED subject to the conditions referenced in paragraph 3 hereof.
DENIED
5. This Order shall take effect immediately upon issuance by the City Clerk.
6. All further development on the property shall be made in accordance with the terms
and conditions of this order.
7. Other
DATED:
City Clerk
S:\Planning\SHARED\WP\PROJECTS\2625 Lake Drive North\DO.doc
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
coverage with the proposed project would be 38.5% or a variance of 3.5%. Staff had not received
any letters in support or denial from the surrounding property owners. Staff recommended that the
project be denied for lack of traditional hardship. The board may wish to consider, however, that an
ordinance to amend the LOR to allow maximum lot coverage of 45% in R-l-AA zoning districts had
passed first reading at the City Commission and was scheduled for second reading on July 19, 2005.
If the ordinance passed, this issue would be moot.
Attorney Jeff Tomberg appeared on behalf of the owners, Mr. and Mrs. John Trach. He stated
that there was a pending Code Enforcement issue on this property for the addition of a balcony that
would be between the first and second floor of the home. The variance was being sought because
his clients hired a contractor to put in a balcony, assuming he had pulled the appropriate permits
and gotten the appropriate permissions. The contractor proceeded to erect the balcony. Code
Enforcement notified the Trachs that they were in violation of the City's Code. If the variance were
not granted, it would seem unfair to have the Trachs tear down the balcony now and come back for
a new permit if the new LOR ordinance were approved at the next City Commission meeting. The
Code case had not proceeded to the fine stage and was not going to be heard again until the
September Code meeting.
After discussion by the board, it was decided to continue this item pending Commission action.
Motion
Ms. Horenburger moved to continue request ZNCV 05-002 until the next regularly scheduled CRA
meeting pending Commission action. Vice Chair Tillman seconded the motion that passed 5-0.
2.
Project:
Agent:
Owner:
Location:
Description:
2625 Lake Drive North (ZNCV -05-003)
Jeff Tom berg
Avon Investments, Inc.
2625 Lake Drive North
Request for relief from the City of Boynton Beach
Land Development Regulations, Chapter 2, Zoning,
Section 5.C.2, requiring a seventy-five (75) foot
minimum lot frontage to allow a 22-foot variance,
resulting in a fifty-three (53) foot minimum lot
frontage within the R-l-AA Single-Family
Residential zoning district.
Eric Johnson, Planner, presented a summary of the request for variance, stating the subject property
is comprised of two lots that form a single parcel, zoned R-l-AA. The lots were platted in 1922 as
part of the Lakeside Gardens subdivision. The 0.188-acre parcel is vacant and does not conform to
current R-l-AA zoning district regulations related to lot width. The owner applied for a building
permit to construct a new single-family detached dwelling. From a preliminary review, the placement
of the house would comply with Code, except that the lot frontage does not meet the minimum
required by the R-l-AA zoning district. According to the Code on non-conforming Lots, the applicant
would meet all of the criteria for being allowed to construct a home without the necessity of a
variance, under these non-conforming provisions, except the applicant has 53 feet of frontage and
not the requisite 60 feet, a deficit of 7 feet. Staff recommended approval of the requested variance
of 22 feet, to reduce the minimum required lot frontage from 75 feet to 53 feet.
Jeff Tomberg, agent for Avon Invesbnents, Inc., asserted that Avon Investments had been
building homes in Boynton Beach for the last eight to nine years. He had built in excess of 100
4
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
homes in the Cypress Creek community and was in the process of building and rebuilding in Atlantis
Country Club. They believe that this house would be an asset to the community.
Chair Heavilin opened the floor to the public.
Mike Mrotek, 2624 Lake Drive North, Boynton Beach, speaking on behalf of the Lakeside
Gardens residents, expressed opposition to the granting of this variance because there was a 30%
difference between the Code and the request.
Chair Heavilin closed the floor to the public since no one else came forward to speak.
Jeff Tomberg stated that the variance should be granted because all of the legal criteria necessary
to allow the variance had been met. The house would comply with all setback and other
requirements.
Chair Heavilin voiced the opinion that the City had a number of lots in the City that were platted
many years ago and did not conform to the current Code. She thought the board should continue to
address the 50-foot lot frontage requests as special cases. The board supported her view.
Motion
Mr. DeMarco moved to approve the request (ZNCV 05-003) for relief from the City of Boynton Beach
Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-five (75) foot
minimum lot frontage to allow a 22-foot variance, resulting in a fifty-three (53) foot minimum lot
frontage within the R-1-AA Single-Family Residential zoning district. Vice Chair Tillman seconded the
motion that passed 5-0.
3.
Project:
625 NE 15th Place (Deasy Variance) (ZNCV 05
05-005)
Maryanne and John Duncan
Maryanne Deasy
625 NE 15th Place
Request for relief from the City of Boynton Beach
Land Development Regulations, Chapter 2, Zoning,
Section 5.C.2, requiring a ten (10) foot side yard
setback to allow a six (6) foot variance, resulting in
a four (4) foot side yard setback for a screen
enclosure within the R-1-AA Single-Family
Residential zoning district.
Agent:
Owner:
Location:
Description:
Ed Breese, Principal Planner, stated that the request had been initiated due to the homeowner's
desire to screen an existing pool. The former owner did not take the location into account and as a
result, created a situation that now limits the applicant's ability to construct the enclosure within the
setback regulations. Based on the traditional hardship criteria, staff believed that the variance
request should be denied.
However, the board has previously granted variances for other than hardship criteria, and may want
to consider that: 1) This was not a case where the applicant built the maximum size pool knowing it
would preclude the installation of a screen enclosure and was now requesting to vary the City
regulations to accommodate one; 2) The subject request represents the minimum amount of area
required to screen the pool and deck, based upon the existing improvements; and 3) Staff had not
5
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CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM E.4
Requested City Commission Date Final Fonn Must be Turned Requested City Commission Date Final Fonn Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
I:8J August 2, 2005 July 18,2005 (Noon.) D October 5, 2005 September 19,2005 (Noon)
D August 16, 2005 August 1,2005 (Noon) D October 18, 2005 October 3, 2005 (Noon)
D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17,2005 (Noon)
D September 20, 2005 September 6, 2005 (Noon) D November 15,2005 October 31, 2005 (Noon)
D Administrative D Development Plans ~ --' !
I:8J D t
NATURE OF Consent Agenda New Business ~-
,.~="
AGENDA ITEM D Public Hearing D Legal
D D G.:>
Bids Unfmished Business
D D _r.':)
Announcement Presentation
D City Manager's Report
\",i..)
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~., (:)
RECOMMENDATION: Please place this request on the August 2, 200S City Commission Agenda under Consent
Agenda. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12,
200S. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ OS-118.
'1
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EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
625 NE 15th Place (Deasy Variance) (ZNCV 05-005)
Maryanne and John Duncan
Maryanne Deasy
62S NE ISth Place
Request for relief from the City of Boynton Beach Land
Development Regulations, Chapter 2, Zoning, Section S.C.2,
requiring a ten (10) foot side yard setback to allow a six (6) foot variance, resulting in a
four (4) foot side yard setback for a screen enclosure within the R-l-AA Single-family
Residential zoning district.
PROGRAM IMPACT: N/A
~SCALIMPACT: NM
AL TERNA TIVES: N/ A
D'Vel~'
l.cJ ~
Planning and Zo . g irector City Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\PROJECTS\625 NE 15th Place - Deasy\Agenda Item Request 625 NE PI (Deasy)ZNCV 05-005 8-2-05.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM,DOC
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM #05-118
Staff Report
Community Redevelopment Agency Board
Meeting
Date:
July 1, 2005
File No:
ZNCV 05-005
Location:
625 NE 15th Place (Lot 17, Yachtsman's Cove Subdivision)
Owner:
Maryanne Deasy
Project:
Pool screen enclosure for an existing single-family dwelling.
Variance
Request:
Relief from Chapter 2, Zoning Section 5.C.2, requiring a ten (10) foot side yard
setback to allow a six (6) foot variance, resulting in a four (4) foot side yard
setback for a screen enclosure within the R-1-AA Single-family Residential zoning
district.
BACKGROUND
The subject property and surrounding neighborhood is zoned R-1-AA, single family residential
(see Exhibit "A" - Location Map). The lot, developed in 1979, conforms to the current R-1-AA
zoning district building and site regulations. The subject neighborhood is developed with single-
family homes. The rear of the subject property currently abuts Seaview Mobile Home Park,
which was recently approved for a townhouse development called the Seaview Park Club.
The property is located on the north side of NE 15th Place with a depth of approximately 131
feet and a frontage of 75 feet. The subject variance is requested because the previous owners
of the house chose not to have a screen enclosure erected when the pool was constructed. By
not constructing a screen enclosure around the pool, they followed only the appropriate pool
setbacks, which allowed the edge of the water to be at eight (8) feet from the side property line.
The deck around the pool extends an additional four (4) feet from the waters edge, leaving four
(4) feet to the property line (see Exhibit "B" - Survey). As constructed, these improvements met
code at the time of installation and still do today. However, the new owner is desirous of
constructing a screen enclosure around the pool due to her allergies associated with insect
bites, and has submitted a letter from Dr. Michael Chidester in support of her request (see
Exhibit "C"). Screen enclosures, those with screen walls and roof, are required to comply with
the minimum building regulations, which in this case is ten (10) feet for a side yard. In order to
comply with the code, the screen enclosure would be two (2) feet into the pool. The applicant
also advised staff, in a pre-application meeting to discuss the potential variance, that a
contractor had been hired to build and install the screen enclosure, and prior to obtaining a
permit, the contractor has already pre-fabricated the screen panels (but has not installed them).
The applicant has also submitted with the variance application, letters in support of her variance
request from the most affected property owner, the one to the east, the property owner on the
west side of her property and the property owner across the street (see Exhibit "0").
Page 2
Deasy Variance
File No. ZNCV 05-005
ANALYSIS
The code states that the zoning code variance cannot be approved unless the board finds the
following:
a. That special conditions and circumstances exist which are peculiar to the land, structure,
or building involved and which are not applicable to other lands, structures or buildings in
the same zoning district.
b. That the special conditions and circumstances do not result from the actions of the
applicant.
c. That granting the variance requested will not confer on the applicant any special privilege
that is denied by this ordinance to other lands, buildings, or structures in the same zoning
district.
d. That literal interpretation of the provisions of this ordinance would deprive the applicant of
rights commonly enjoyed by other properties in the same zoning district under the terms of
the ordinance and would work unnecessary and undue hardship on the applicant.
e. That the variance granted is the minimum variance that will make possible the reasonable
use of the land, building, or structure.
f. That the granting of the variance will be in harmony with the general intent and purpose of
this chapter [ordinance] and that such variance will not be injurious to the area involved or
otherwise detrimental to the public welfare.
(Exhibit "E" contains the applicant's response to the above criteria.)
Staff conducted the analysis focusing primarily on items "a", "b" and "c" above, which require
that the request is initiated by special conditions and circumstances that are peculiar to the
subject land, structure, or building, which are not the result of the actions of the applicant.
Additionally the granting of the variance would not confer on the applicant any special privilege
that is denied by the regulations to other properties within the same zoning district.
Despite the responses from the applicant, a variance is to be granted on the basis of a
hardship, which is established by characteristics other than those created by the landowner, or
previous owner(s), by various site improvements or alterations. The emphasis of criteria "a", "b"
and "c", in order to justify a hardship, is on natural or unique limitations relative to other
properties within the neighborhood that are similarly zoned. The variance should make more
equitable the regulations when applied to the various properties within the area. Alternatively
stated, in order to meet criterion "c", one should assume that the same structure proposed
similarly on an adjacent property could be constructed without a variance.
The subject request has been initiated due to the homeowner's desire to screen an existing
pool. The previous owner, who had the pool constructed, did not take into consideration when
determining the pool's ultimate location, that they could be limiting themselves or future owners
in the construction of a screen enclosure. As a result, the former owner has created a situation
that now limits the applicant's ability to construct the enclosure within the setback regulations.
The same size pool and deck could have been constructed within the back yard, following code
regulations, and still allowed room for the screen enclosure, without need for a variance. While
Page 3
Deasy Variance
File No. ZNCV 05-005
not due to actions of the applicant, those of the previous owner created the hardship, and
ultimately result in the failure to meet the special conditions language contained in a - c above.
With respect to cntena "dO and "eO, traditionally, variances are intended to prevent the total
denial of reasonable use of a piece of property. If this were applicable to the subject case, then
denial of the ability to build the pool screen enclosure would be construed as a denial of the
reasonable use of the property. Staff does not concur with this position, but rather believes that
the existing improvements on the property, which include the home and an unscreened pooi,
represent "reasonable use" of a parcel zoned for single-family homes. It should however be
noted, the applicant has submitted a letter from a doctor, indicating that the screen enclosure
would be beneficial to the applicant relative to her allergies. While not necessarily denying
reasonable use of the property, a potential argument could be made for the reasonabie
enjoyment of the property and certain improvements thereon.
Regarding criteria "f', as noted eadier, the applicant has submitted letters of support from her
neighbor to the east, immediately abutting the side yard into which the pool enclosure would
encroach. This particular property, 635 NE 15th Place, has a pool which would be adjacent to
the applicant's, and the trustees for the property state they "... do not object to a screened in
pool cover for the existing pool...". Additionally, letters of support are attached from the property
owner to the west of the applicant and a neighbor across the street.
Staff recommends that the request for relief from Chapter 2, Zoning, Section 5,C.2, to allow a
four (4) foot side setback for a screen enclosure, resulting in a six (6) foot variance to the
minimum ten (10) side yard requirement within the R-1-AA zoning district, be denied due to the
lack of traditional hardship, and due to the circumstances not being peculiar to the lot itself.
CONCLUSIONS/RECOMMENDATION
Staff is supportive of residential redevelopment and associated improvements and recognizes
that past vanance requests have been reviewed by the City using more than the traditional
critena, or interpretations of this criteria, which places greater emphasis on economic potential,
minor home improvements, and characteristics of or impact upon surrounding properties. For
these reasons, staff offers the following additional information for consideration:
1. The pool was built prior to the applicant's purchase of the property. It is not an instance
where the applicant built the maximum size pool knowing it would preclude the
installation of a screen enclosure, and is noW requesting to vary the City regulations to
accommodate one; and
2. The subject request represents the minimum amount of area required to screen the pool
and deck, based upon these existing improvements; and
3. Staff has received no letters of objection, but received only letters of support of the
proposed expansion from adjacent property owners. Specifically, a letter from the
abutting property owner to the east of the subject property, which would be the most
impacted by the proposed screen enclosure.
J:ISHRDATAIPlanningISHARED\WP\PROJECTSI 625 NE 15" Place Deasy Variance\ZNCV 05-005lSTAFF REP.doc
...
1 in. = 74.9 feet
625 NE 15th Place - Deasy Variance EXHIBIT A
EXHIBIT B
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I. D. lIIideSl8r, ...., P.A.
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IIIenIaI Medicine
2601 F1llg1a Ave.
S~316
Wc:st Palm Beacb, Florida 33407
PhOJle 56J-655-9170
FIIlt S61-6SS-3622
May 16, 2005
Re: MaryAnne Deasey
Ms. Deasey has asked me to write in support of her getting a screened in porch
secondary to her allergies to insect bites. I feel that this would be of significant
benefit for her and any assistance you could render would be appreciated.
If you have any questions or concerns p~ease feel free to contact me.
TO: CITY OF BOYNTON BEACH
PLANNING & ZONING
BOYNTON BEACH, FL. 33425
PLEASE BE ADVISED WE, ADRIAN H. WINCHELL, TRUSTEE
OF THE ADRIAN H. WINCHELL REVOCABLE LIVING TRUST
AND HELEN J. WINCHELL, TRUSTEE OF THE HELEN J.
WINCHELL REVOCABLE LIVING TRUST, LOCATED AT 635
N.E. 15TH PL. LOT # 16 OF YACHTMANS COVE, BOYNTON
BEACH, FL. HEREBY DO NOT OBJECT TO A SCREENED IN
POOL COVER FOR THE EXISTING POOL, LOCATED AT 625
N.E.15TH PL. LOT # 17 OF YACHTMANS COVE, BOYNTON
BEACH, FL.
ADRIAN H. WINCHELL. TRUSTEE
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HELEN J~~~;LL, TRUSTEE
DATED 5/16/05
Page 1
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EXHIBIT "0"
EXHIBIT 0
May 17,2005
Code Commissioners
City of Boynton Beach, Florida
fl OTIC E
As the YJesfem.adjacenUancbowner.fa the property ~:at 625. NE 15th Place. in
Boynton Beach-r owned by John-and: Maryanne ~ ! hereby declare that I have no
objection to the erection of a screened patio enclosure around the Duncans' existing
swllluuiuQ poot-r despite the fact that the enclosure's measur~ts do not conform
precisely to the city's regulations relating to the allowable distance from their property's
eastern bounds. y Iifle..
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-615 NE 15th Place
Boynton Beach, Florida
EXHIBIT 0
RICHARD F. HARTWIG
620 NE 15TH PL
BOYNTON BEACH, FL 33435
April 17,2005
To Whom It May Concern:
I have no objection to my neighbors, John and Maryanne Duncan, at 625 NE 15th PL.
building a screen enclosure over their pool.
Sincerely,
~~/d~
Richard F. Hardwig
EXHIBIT E
Addendum to Application for Variance for John Duncan and Maryanne Deasy-Duncan.
Page 2. MAY I 8 L005
Question 4
A. That special conditions and circumstan~es ~XiSL~lliiii~ to the
land, structure or building involved and which are not applicable to other
lands, structures or buildings in the same zoning district;
Special conditions exist in that this is where the pool had been previously
been permitted to be built. The pool construction and the home
construction were completed at the same time (circa 1979). The unique
conditions for variance would not exist if the pool construction were
different.
B. That the special conditions and circumstances do not result from the actions of
the applicant;
These conditions came into existence during the construction of the
residence around 1979. Maryanne and John Duncan purchased the
property in 2004 and Maryanne since 1996.
c. That granting the variance requested will not confer on the applicant any
special privilege that is denied by this Ordinance to other lands, buildings or
structures in the same zoning district;
This is not a special privilege as there are many screened pools and
porches within the area. The screening provides comfort and enjoyment
for all the homes having the structure from the insects that are abundant
in the same area.
D. That literal interpretation of the provisions ofthis chapter would deprive the
applicant of rights commonly enjoyed by other properties in the same zoning
district under the terms of the Ordinance and would work unnecessary and
undue hardship on the applicant;
The screen enclosure surrounding the pool will block most biting insects
that the owner, Maryanne, is allergic to. (See letter from Dr, MD
Chidester) This will allow her the peaceful and healthful enjoyment of
her home that many other homeowners have within the zoning district.
E. That the variance granted is the minimum variance that will make possible
the reasonable use of the land, building or structure;
The screen structure will be permanently attached to the existing
improvements (refer to Aerial Photo - teal highlighting). No additional
property will be used.
EXHIBIT B
F. That the granting of the variance will be in harmony with the general intent and
purpose of this chapter and that such variance will not be injurious to the area
involved or otherwise detrimental to the public welfare;
The structure will be harmonious with the intent and purpose of the chapter.
Screen Porches and Pool structures generally enhance the value of the
property as evidenced by the sheer number of homes having them. When
reviewing real estate sales advertisements, one will notice the attention to
homes having such structures.
G. Variances to minimum lot area or lot frontage requirements, that property is not
available from adjacent properties in order to meet these requirements, or that the
acquisition of such property would cause the adjacent property or structures to
become nonconforming. Applicant shall provide an affidavit with the application
for variance stating that the above mentioned conditions exist with respect to the
acquisition of additional property.
Our current neighbor has no interest in selling any of his property. If he
were to sell us sufficient property to bring our property into compliance, his
house and pool would no longer be in conformance with the current code.
EXHIBIT "F"
Conditions of Approval
Project name: 625 NE 15th Place - Deasy Variance
File number: ZNCV 05-005
Reference:
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS- General
Comments: None X
PUBLIC WORKS- Traffic
Comments: None X
UTILITIES
Comments: None X
FIRE
Comments: None X
POLICE
Comments: None X
ENGINEERING DIVISION
Comments: None X
BUILDING DIVISION
Comments: None X
PARKS AND RECREATION
Comments: None X
FORESTER/ENVIRONMENTALIST
Comments: None X
PLANNING AND ZONING
Comments: None X
ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY BOARD
CONDITIONS
Conditions of Approval
2
DEPARTMENTS INCLUDE REJ~
Comments:
1. None X
ADDITIONAL CITY COMMISSION CONDITIONS
Comments:
1. To be determined.
S:\Planning\SHARED\WP\PROJECTS\625 NE 15th Place - Deasy\COA.doc
S:\Planning\Ptanning TempJates\Condition of Approval 2 page -P&D ORA 2003 form.doc
DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA
PROJECT NAME: 625 NE 15th Place-Deasy
APPLICANT'S AGENT: Maryanne Deasy
APPLICANT'S ADDRESS: 625 NE 15th Place Boynton Beach, FL 33435
DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: September 6,2005
TYPE OF RELIEF SOUGHT: Relief from Chapter 2, Zoning Section 5.C.2, requiring a ten (10) foot
side yard setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a
screen enclosure in a R-1-AA Single-family Residential zoning district.
LOCATION OF PROPERTY: 625 NE 15th Place
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida
appearing on the Consent Agenda on the date above. The City Commission hereby adopts the
findings and recommendation of the Community Redevelopment Agency Board, which Board found
as follows:
OR
THIS MATTER came on to be heard before the City Commission of the City of Boynton
Beach, Florida on the date of hearing stated above. The City Commission having considered the
relief sought by the applicant and heard testimony from the applicant, members of city administrative
staff and the public finds as follows:
1. Application for the relief sought was made by the Applicant in a manner consistent with
the requirements of the City's Land Development Regulations.
2. The Applicant
HAS
HAS NOT
established by substantial competent evidence a basis for the relief requested.
3. The conditions for development requested by the Applicant, administrative staff, or
suggested by the public and supported by substantial competent evidence are as set
forth on Exhibit "C" with notation "Included".
4. The Applicant's application for relief is hereby
_ GRANTED subject to the conditions referenced in paragraph 3 hereof.
DENIED
5. This Order shall take effect immediately upon issuance by the City Clerk.
6. All further development on the property shall be made in accordance with the terms
and conditions of this order.
7. Other
DATED:
City Clerk
- ......... __~"...,~n.n^ 1~""'TC'\a')~ "U= 1l;th DI:::ar-,:._ np:::t~v\no_doc
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
homes in the Cypress Creek community and was in the process of building and rebuilding in Atlantis
Country Club. They believe that this house would be an asset to the community.
Chair Heavilin opened the floor to the public.
Mike Mrotek, 2624 Lake Drive North, Boynton Beach, speaking on behalf of the Lakeside
Gardens residents, expressed opposition to the granting of this variance because there was a 30%
difference between the Code and the request.
Chair Heavilin closed the floor to the public since no one else came forward to speak.
Jeff Tomberg stated that the variance should be granted because all of the legal criteria necessary
to allow the variance had been met. The house would comply with all setback and other
requirements.
Chair Heavilin voiced the opinion that the City had a number of lots in the City that were platted
many years ago and did not conform to the current Code. She thought the board should continue to
address the 50-foot lot frontage requests as special cases. The board supported her view.
Motion
Mr. DeMarco moved to approve the request (ZNCV 05-003) for relief from the City of Boynton Beach
Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a seventy-five (75) foot
minimum lot frontage to allow a 22-foot variance, resulting in a fifty-three (53) foot minimum lot
frontage within the R-l-M Single-Family Residential zoning district. Vice Chair Tillman seconded the
motion that passed 5-0.
3.
Project:
625 NE 15th Place (Deasy Variance) (ZNCV OS
05-005)
Maryanne and John Duncan
Maryanne Deasy
625 NE 15th Place
Request for relief from the City of Boynton Beach
Land Development Regulations, Chapter 2, Zoning,
Section 5.C.2, requiring a ten (10) foot side yard
setback to allow a six (6) foot variance, resulting in
a four (4) foot side yard setback for a screen
enclosure within the R-l-M Single-Family
Residential zoning district.
Agent:
Owner:
Location:
Description:
Ed Breese, Principal Planner, stated that the request had been initiated due to the homeowner's
desire to screen an existing pool. The former owner did not take the location into account and as a
result, created a situation that now limits the applicant's ability to construct the enclosure within the
setback regulations. Based on the traditional hardship criteria, staff believed that the variance
request should be denied.
However, the board has previously granted variances for other than hardship criteria, and may want
to consider that: 1) This was not a case where the applicant built the maximum size pool knowing it
would preclude the installation of a screen enclosure and was now requesting to vary the City
regulations to accommodate one; 2) The subject request represents the minimum amount of area
required to screen the pool and deck, based upon the existing improvements; and 3) Staff had not
5
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
received any letters of objection and had received many letters of support from adjacent property
owners.
Maryanne Deasy, 625 N.E. 15th Place, Boynton Beach, stated that they wanted a screen
enclosure for two reasons: 1) all the debris that blew into their pool after the hurricanes, and 2) her
allergies to insect bites.
Mr. Fenton inquired about the height of the screen enclosure, and Ms. Deasy responded that it
would not be higher than the one-story house. Mr. DeMarco inquired whether other homeowners in
their neighborhood had screen enclosures on their pools, and Ms. Deasy responded that of the eight
or so neighbors with pools, four homes had screened enclosures. Chair Heavilin asked whether
affixing the support posts to the existing concrete would be a violation. Mr. Breese responded that
the Building Department would require special anchors.
Chair Heavilin opened the floor for the public and closed it when no one came forward.
Marie Horenburger felt that this was a self-imposed hardship since they were aware of the situation
when they purchased the property.
Motion
Mr. DeMarco moved to approve the request (ZNCV 05-005) for relief from the City of Boynton Beach
Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a ten (10) foot side yard
setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen
enclosure within the R-1-M Single-Family Residential zoning district. Vice Chair Tillman seconded
the motion that passed 4-1, Ms. Horenburger dissenting.
B. Land Use Amendment/Rezoning
1.
Project:
Heritage Club at Boynton Beach (LUAR 05-
005)
Michael Weiner, Esquire, Weiner & Aronson, P.A.
Thirty Six Hundred Holdings, LLC
Northwest corner of the intersection of Federal
Highway and Gulfstream Boulevard
Request to amend the Comprehensive Plan Future
Land Use Map from Local Retail Commercial to
Special High Density Residential; and
Agent:
Owner:
Location:
Description:
Request to rezone from C-3 Community Commercial
to PUD Planned Unit Development
Proposed Use:
Mixed use development containing 19,500 sq. ft. of
commercial development (office, retail, restaurant)
and 166 multi-family residential units
6
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM F
Requested city Commission Date Final Form Must be Turned Requested City Commission
M~Dates in to City Clerk's Office Meetin2 Dates
[81 August 2, 2005 July 18, 2005 (N00lL) 0 October 5, 2005
0 August 16,2005 August I, 2005 (Noon) 0 October 18, 2005
0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005
Date Final Form Must be Turned m
to City Clerk's Office
September 19,2005 (Noon)
October 3, 2005 (Noon)
October 17,2005 (Noon)
October 31,2005 (Noon)'
--.....
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0 Administrative 0 Development Plans
~ 0 ,..)
NATURE OF Consent Agenda New Business
AGENDA ITEM 0 0 -"-J
Public Hearing Legal , .
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0 Bids 0 Unfinished Business h)
0 Announcement 0 Presentation (::-::)
(.,;.j
0 City Manager's Report
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RECOMMENDATION: Approve change Order # 1 for the Ubrary Expansion Project in the amount of $189,963 to
cover Contractor's General Conditions costs caused by the delayed start of the project.
EXPLANA nON; This negotiated amount already has been paid to the contractor via a Construction Change Directive and
needs to be added to the General Conditions Contract Sum. The original city contract anticipated a start date of October 10,
2004, but the project was delayed about seven months due to a variety of issues out of the contractor's control. The major
delays were caused by the Civil Engineer who closed their local office in November and did not respond to utility plan
revision requests either timely or completely. The Architect ultimately had to bring in a different Engineer and start over.
At that point, our city started the plan review process all over again. (See attached timeline and correspondence.)
PROGRAM IMPACT: The Notice to Proceed was issued on May 3, all pennits are now in place, and the project has
commenced.
FISCAL IMPACT: Adds $189,963 to the Contract Sum. Funds to come from the general CIP account.
ALTERNATIVES: Halt the project.
IKF~d#l4J~
Librmy
Department Name
Resources
S:\BlJU.ETIN\FORMS\AGENDA ITEM REQUEST FORM-DOC
Library Construction Project
Timeline concerning Contractor
2004:
. July 27 - pre-bid meeting
. Aug 13 - Hurricane Charlie
. Aug 24 - bid opening
. Sept 5 - Hurricane Frances
. Sept 7 - Commission tables contract award
. Sept 13 - Hurricane Ivan
. Sept 21 _ Commission awards contract to Sessoms Constrnction $5,727,485.
. Sept 25 - Hurricane Jeanne
. Oct 10 - Purchase Order 050512 to Sessoms
. Oct 19 - Plans Received by Bldg Dept
. Oct 29 - Comments received back from Bldg Dept
. Nov 5 _ Comments addressed and plans (excluding civil) ready for re-submittal
o Architects learned that local branch of civil engineering firm was shut down, local staff
was let go, and all items relating to project was relocated to Miami.
. Nov 19 - Payment of $275,649.30 to Sessoms (bond, insurance, permits)
. Nov 24 - Sessoms agrees to 60 day extension (to Jan 22, 2(05)
2005:
. Ian 21 - Traffic Impact Statement completed and submitted
. Jan 24 - Project Meeting (see notes 012405)
. Jan 24 _ Sessoms agrees to 30 day extension to Feb 25 "with the understanding cost escalation is a
factor and will be evaluated at a later time."
. Feb 14 _ County Engineer sends Letter of Determination that "the proposed expansion project
meets the Traffic Performance Standards of PBe."
. Feb 16 - Project Meeting (see notes 021605)
. Feb 23 - Project Meeting (see notes 022305)
. Feb 25 _ Sessoms agrees to another extension until March 1 "with the understanding additional
verifiable costs will be paid."
. Mar 1 _ Sessoms agrees to another extension to April 1 in a letter which includes the following
conditions:
o "We will be given a change order to cover subcontractor and material escalated costs.
o Our overhead for this project as a result of remaining idle will be paid.
o Anticipated profits for this period will be paid Our profit on this project is $220,000.
This translates to $481 per day over a 457 day project."
(Lee Sessoms verbally advised that this letter was copied to City Manager and other relevant
city depts.)
. Mar 4 - Project Meeting (see notes 030405)
. Mar 9 _ Meeting to address project delays and cost increases with Architects, Sessoms and City
Pr9ject Manager includes Chief Bingham, Jeff Livergood, Mary Munro, and Carol Doppler.
. Mar 10 _ Sessoms sends letter with a preliminary breakdown of cost increases as they relate to the
delay encountered on the project. He copies City Manager, Janet Prainito, and James Cherof.
. Mar 10 _ Architects deliver revised signed & sealed constrnction documents including review
only copy of civil engineering sheets for city review. These are rejected again by city engineering
review staff.
. Mar 28 _ Architect continues to have response issues from their Civil Engineer.
. Mar 30 _ Sessoms agrees to another extension to May 4 with statement: "Agreed under the
condition costs and accelerated costs are paid by the City through the date of NTP" .
. April 1 _ Architect emails recommendation re: contractor's requested increase.
. April 28 _ Architect (on behalf of city) finishes negotiations with Contractor re: request for cost
consideration due to time delay in issuance ofNTP.
. April 29 _ Agreement reached for a total increase of $189,963 to be added to contract for a total
revised contract amount of $5,917,488.
. May 3 - City issues Notice to Proceed.
. May 11 _ Sessoms picks up Clearing, Grubbing and Tree Removal Permit and starts clearing
. June 9 - Constroction Sub-Contractors Mtg
. June 15 - Full Permit ready
. July 12 - Sessoms picks up full permit
Library Memorandum
TO:
VIA:
FROM:
DATE:
SUBJ:
Kurt Bressner, City Manager
Wilfred Hawkins, Ass't City Manager
Virginia K Farace, Library Director
April 29, 2005
Library Expansion: Contractor Additional General Conditions
Attached are documents reflecting the outcome of negotiations between the Architect,
Sam Ferreri of Schenkel Shultz, and the Contractor, Lee Sessoms of Sessoms
Construction, concerning the contractors request for cost consideration due to the time
delay in issuance of a Notice to Proceed.
Agreement was reached and the recommendation is contained in the Architect's letter of
April 28, 2005. (Attachment #1) The monetary adjustment is for an additional $185,000
for General Conditions for services up through May 3,2005; and an increase of $4,963
for the increase in the Builder's Risk Policy due to the time extension on the policy. The
total is $189,963.
In a meeting this morning, it was further agreed as to how to implement the monetary
adjustment. As recommended by the Architect in his letter of April 29, 2005,
(Attachment #2), a new line item called "Mobilization" is created in the contractor's
Schedule of Values. Once the Notice to Proceed is issued, the contractor can submit a
bill for Mobilization costs in the amount of $211,000 minus retention for a payment of
$189,963. When Change Order No 1 for that same amount ($189,963) is signed and
approved, it will be used for General Conditions and be added to the contract for a total
revised contract amount of$5,917,448.
We are all proceeding on the understanding that the Utilities civil drawings will be
signed, sealed and submitted Monday morning. With your approval to the process
outlined here, we intend to issue a Notice to Proceed on Tuesday, May 3, and to submit
Sessoms' request for Mobilization costs. Also, Change Order No 1 will be initiated.
Attachments
Copy: Sam Ferreri, SchenkelShultz Architects
Lee Sessoms, Sessoms Construction
I . . .
:\ ..,., . '. . '.. ... .:.- .. . . " :
SCHENKELSHULTZ
o 0 " ARC HIT E C T U R to ::: ::; -'
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April 28. 2005
Mrs. Virginia Farace, Library Director
City of Boynton Beach
P.O. Box310
Boynton Beach, FL 33425-0310
RE: City of BO)'llton Beach City Library
Library Expansion I Remodel
Contractor Additional General Conditions Negotiations
Dear Virginia,
As requested by the City of Boynton Beach. we SCHENKELSHl.:rI.TZ engaged in negotiations ...vi1h
Sessoros Construction to discussion and C01IlC to a mutual agreement on cost in reference to 1he additional
General Conditions and Builder's Risk for this project due to the time delay in issuance of the Notiee to
Proceed After several weeks of discussions between SCHENKELSHUL TZ and Sessoms Constructions,
the following terms were agreed upon:
Iten1.S agreed to:
1. 5185,000.00 fC'r General Conditions for services up to May 3,2005.
2. Understanding that this cost doeS not include the additional cost in association with material
cost increase and will be reviewed as subcontractors are signed onto the project.
SCH.E~SHULTZ is committed to working on Value Engineering items to minimize
additional cost.
3. $4,963.00 for L~e increase in the Builder's Risk policy due to the time extension of this policy.
Item to be determined:
1. At this present time, SCHENKELSHUL TZ and Sessoms ConstrUction are unable to come to
mutual consent on the teuns of the daily rate which would be due after May 3, 2005 if the
Notice to Proceed is not issued by May 3, 2005. The current daily rate in whieh
SCHENKELSHULTZ recommends is S898.00 ($185,000.00 (negotiated GC) /206 days). The
current daily n:.ted request~d by Sessom5 Consntetion is 51,111.00 (GC+ anticipated profit per
day).
SCHENKELSHl)L TZ is presenting this recommendatiol1, a; outlined above, to the City of Boynton Beach
for review and. approval. Please note that per our discussions with Sessoms Construction, they stated that
they are not in the position t:> mobilize until they can bill and be paid for the additional cost mentioned
above. We recommend that we re-evaluate the general cond:.tions in the schedule of values to allow for early
payment ifnecessary.
~:;'.
rreri, AlA
Cc: Lee Sessoms/Sessoms Construction
Altcrraon PlrillipsfSCHENKELSHUL TZ
03208021 owner outgoing
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April 27:2005
Via faX/mail (561,697.52101
Mr. Sam Ferreri, PriQClpat . .
SCH'ENKElSHUL lZ Aj'{CHITECIU.RE
. 1300 North Congress Avenue
West Palm Seach. Fl33409
. Re: #379 - BOYNTON .B~CH CITY LIBRARY
BId Number: #(l17-2610-041CJD
Dear Sarno .
. Per our :conv~atlon t1iis 'morning, I. am writing' you to confinn our CO~tion the morning 'of'
. 04122/05. .
I was in receipt of your reiponse to my clalm for my daily. costs on the subject project. In that
' response, yo~ stat~ that you felt we ~hould .be paid. 15% of our actual ~ts. as our total remedy for
overhead and ,profit This was diaeussed at OUr Wednesday' project meeting, and I explained .that
'. there was no way that those numbers would work for OUr firm. .
We sUbmitted oUr bid for this project almost eight months agp; and by no 'fault of our own, we-are 'Still
awaiting a Notice to proceed (NTP). There is no language in the contract documents that address
this ul1usual condition. .
Nearly six million .doflari of my com~ny's bonding has been tied lJp in this. project during this tIme,
preventing' my exganization to pursue profitabte work. Throughout. this time my General
Superintendent and I have accommodated SCHENK!LSHUl TZ and the owners with weekly
meetings to discuss three issl:les:
-The perm it
'-our claim
--Po~sible cost reductiona with Value Engineering (which, as we have disCUssed, witlllkely be a
false economy),
. A lot of time and effort has been extended on this project, and we have nothin'g to show for it but a
sevQorely-impac::ted cash flow and an increasingly disinterested sub base that originally bid the
p~e~ .
The 15% tha(you propoSed is a ludicrous sum for the time and effort we have put forth to this point.
I nave sent you a revIsed spreadsheet wIth adjusted days on Friday and have included them with
this correspondence.' . .
Bottom' line, In order to mak~ this job work. our.company can accept no less than $165,000.00 fOr
our daily costs. By acquiescing to this degree, we are s~vSrely affecting our anticipate.d bottom line
:,ind are essentially donaUng money to the project when we have' no obligation to do so; Clear in
mind that this figure dQe$ not address the followi~ Issues:
-Any delays after 5/3/05 which will rel~te to an adctitional daily cost of S'1,111.oo
7485 Davie Road Extension . Hollywood; FL 33024
Br?war~. (954) 431-7900 · Fa" (954) 436:.6789 .CO CB01l34
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SCHENKELSHUL TZ ARCHITECTURE
April 27. 200~ .
Page Two
. ..subcontractor Price escalations'. . .
. -Increase cost of BUilder's Risk'lnsurance ,($4,963;00 +15%; $5,707.00)
Weare told that we will have B NTP on 0510'3/05. which I find unlikely pasedon..the J:tislOry of ,this proje(!t
to date. In the event we receiVe oUr NTP in'the Mar future, be advised that we will not proceed wlth any
work until our daily casts are agreed to and e device is in place ,that will enable uS to, bill and ~ paid for
this immediately. .
under theoircumslances, we have nO altemative put to' eval,uate the possibility' of terminating our
contraotual obiigations as we have been hanging by a thread waiting fot this project to commence.' In the
event .that we' are forced into that sllliation. we will still- take any 'measure n~ry to protect our
interests, and the offer of a reduced claim of- $185,000.00 will be rescinded a'ld reevaluated. It 'is our
, Intent to wOrk through this process and complete the: project!o a timely manner.
In oide~ to pr~ With the work. we...vill need the fol1r;JVi1lng:
. . .' ,
-Contract Amendment for S,85jOOO.OO plus $5.707.00 for incraased' Builder's ,Risk to be billed,and
paid upon issuance of NTP , . , " .
.CommitIllent that subcotitractor's' cost escalation will be paid, " '.
-An increase to ourdaHy cost foreach day pa~t 05f03J05 at an amount of $1,11,1 ~OO
. .
In addition. IlWould' help if we had .3 reasonable no\mcation of precisely wh~r. cOnstruction will s~rt In
orde,r to mobilize ourworkfotoe.
Again, I stress that we are doing our b~t to work with everyone Involved In this project If you have any
questions regar:d1ng this letter, do not hesita~a t6-contact me.
Very truly yours. '
Cc: Fletcher L Sessoms, SCCI
Fred Jones, seel
, Bcib Scott: .secl .
Virginia Farace, library Director
Attachments
:t.S/mb
04/Z~/Z005 17:J5 ~AA oblb~IOZlU
~CtlbN~bL ~tlUL~
--.-- --
SESSOMS CONSTRUCTION
If!jUU4/UUI
H" SCEENKELSHULTZ @ OO:J
04/27/05 WED 15:54 FAX 9544366789
. Sessoms
.E CONSTRUCTION
COMPANY, INC.
. --: ==:r.:..... - ~
#379 --BOYNTON BEACH CITY LIBRARY
Bid Number: #017-261 Q-04/CJD
'-:- :.. ~ :.:
7485 D'avie Road Extension · HotJywood F'L 33024
Broward (954) 431.7900 · Fax (954) 436-6789
CG CBO Jl34
Increase in Builder's Risk Insurance
Quote €l9/07/2004
Quote 0412512005
Total Difference
15% OH & P
Total
$ .38,642.00
43.604.00
$ 4,963.00
7~4.00
$ 5.707.0Q
G:\379 - Boynton Bead'! Library\C01;t EscaIlIti:lfl\8ul1der's RIsk . B
04127/05
04/2~/2005 17:36 FAX 5616975210
SCHENI\EL SHliLTZ _
SESSOMS CONSTRUCTION
I4J 005/007
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Insurance and Bonds
5979 N.W. 1~1 Stttll!t · SI1\t1: 10.5 - ~o. BQlt 9315 . MiNl\i Lal<es. Auridll33014 . We (305) 822-7800. Browatd (954) 463-S601
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September 07, 2004
Sessoms Constl'UCtion Co., Inc..
7485 Davie Road Exwnsion
Hollywood,FL 33024
R.e~ Boyton Bed Libraxy
Dear Flet.l::her:
FolloWing is Builder's Ri..qk quote for the above:, please note we can issue policy upon
request, however, quote expires 10/1/04.
Special Fonn. excluding ilood and. quake, Limit $1,200,000 Renovation. $4,300,000
Addition, S20,OOO Transit, $20,000 Temporary. Storegc. No coV'eragB fro e)cistins
building. $5,000 Deductible ADIt, except for Wind, 2% ofval~ at risk at time oflogs.
550,000 mini.o:1llJn per occurrence.
Term premium 53'8,6.4.2
Should you have any question or ~eed to bind CO"l/el'age, please contact cut office.
s~. .
Raysa~k~ /
A<::count Manag;-.... 07
"
TOTRL P.01
09/07/04 TUB 13:a7 [TX/HI NO 5741]
V"t/'O/~VVv J..I...JV CI1A ')OJ..Ui1lv~J..V
,:J\';l1L':"l\.L~nLILJ.~
04/21/05 WED 16:55 F~ 9544366189
.. . r
Callinsworth, Alter, Fowler, Dowling'(Q french Group, Inc.
Insurance and Bonds .
5979 N.W. 151 Satt't · Suiu: 105 'It Mi;zmi. I.:akes, Florida 33014
D.1de (305)' 8~7S00 · Broward (954) ~601 · ~ (305) 362-2#3
COVER SHEET
Commercial Insurance Department
SESSOMS CONSTRUCTION
('
'l0VVOfUVI
-+H SCBBNKELSHULTZ ~oos
1I\J.7rJJ r. III
---
----
DATE: ~ f:Z:=5",A .5 / )
FAX SENT TO {COMPANY NAME) : LLI~.
. ~~4d~"c-7~
FAX SENTTO FAX NUMBER ~
ATTENTlONOF .: -~
FAX SENT BY (NAME) := ~
TOTAL PAGES. (INCLUDING COVER SHEET); /.
~
- ~,~
RE: ~J!A.~~~
.. . .. 8/ZJ ~
C.OMMENTS:
-
:On:f1I'Ill.U1g our quotBtion.
\rch Spcc;ialty.
3uil~ Risk..
\Il risk exclndiog flood and' 'lUflk;e.
\rcb. Builders Risk form.
~imit: S 1,200.000 rcncrvatlon.
S4.300~OQO addition. 43 C, 04 8 ~
ferrn Pretnlum: $ 41,425 plus tI1X,. plusS 3S,plus $4. ::::- .... -
;>cd: 5,000 AOP, 3% values at risk at time ofloss fot wind subject to 50,000 min ~cr occ~.
;20,,000- TiMsit
;20,OOO'tempo~ storage.
~dafl;= 5/3/04 Term. 16 months-
!Xcludes~ terrorism,tnol4,eybertctrOrisnL
- I
THE "IIFORMATlON c~ED n~ THJG ~/lX IS lHTEHoal oNLY fOR TliE u~ Of 1liE IHDMDUAl.{S) KO..UED J\6C\IE.. IFlHE Me-AOER IS
~T 1I4E lNTafOEO REaPlEM1'(Of:C ~"'GENT RaPQNSIIIlE TO DE1.IVE~ IT TO -mE IN't'ENOECI REClP1Sli} yOU ARE ~'(
AtMSEO THl.T ~ C~a.aHo\nOH. DESlRUCTION OR COPT1HG"OF THfS CCwawNlCAitON IS PROHIBITEO./F yoU H4\iE REOElVED
Ms COIACUNfCATlCN IN ERROR. PLEASE B~ ICSNO El'fcUQtf'to NOTIfY us IWEbfATaY BY TEI.EP~AND F{eT\.IRN T1iE ORIGIJIbU.
LCEsQlGE 1'0 us I!Y W.1l Kr l10lE ABQVG -.Dt)RE~.
.'" w_. . ....... ~""... I<JC;"Cft"; all Clall;~~ ~ ':a~~ ....&1' .a~ ,""uusER
04/2S/05 MO~ 15:23 [TX/RX NO 9D55)
SCHhNl\hL ~ULTZ_
SESSOMS CONSTRUCTION
.H-t
@007/007
SCBENKBLSHULTZ ~ 006
V~/~O/LUU~ ~/:Jli ~AA ~li~liYlaZ~U
04/.21/05 WED 15:55 FAX 95~4366769
Boynton Beach City Library
Sessoms Construction Company, Ine. Cost per Day
Emplovee Rate D8r l)iJV Total Rate per Dav
Bob Scott, General SUperintendent (33%) $320.00 $105.46
Scott Wells. Suoerintendent $272.00 ..
~ -"
Lee Sessoms. Project Manager (50%) _ $344.00 $171.75
Trailet $13.42
Anticipated Profit
$220.000 J 457 days = $481.40 per day $481.40
General Llabilitv InSJJt'Mce $150.68
Partial Rata Per Da~ $922.72
Delav From Ten Davs From CDntract 206
Total cost Less Scott Wells $190.079.33
$cott Wells as adiusted below" I $15171.00
Less Trailer Costs to 21ltlOS ($1.624.00
Total Costs from 10/10/04 Throuah 411/05 $203.626.33
Total Costs from 4/1/05 Throu~h 5/3/05133 I: ays) $36,663.00
Grand Total 5240,289.33
'l..11.-
-\
.Scott Wells was working on this project from 1/13/05 thru 2/17/05 (36 days) at
flJlI rate
I $272 x 36 days = $ 9,97!;1
! He work~d from 2/17/05 to 4/1105 (44 days) on another project in the capacity
! of a carpenter at his fulf rate of pay. Daduc.tipg carpenter wagos from his rate
\ leaves premium we are paying to be billed to City of BDynton Beach
1$272 -.$15"4 = $118
1$118 x44 days ~ $ 5.192
I
1$ 9.979 "" $ 5,192 = $15,171
I Total Rate per Day After 4/1/05 will M $1.111.
I
l,ncrS$e coat in Builder's Risk Insurance. $5,'107.00 riot included in above
.04/29/2005 15:21 FAX 5616975210
SCHEXKEL SHULTZ
. 0011005
. . . '. " . .
. ..
.. . .
. . '.' '. ,',. .
SCHENKELSHULTZ
LI ,= ^RC4ITECTUR~ ::lOD
AilAe,flivnftttT "# )
April 29, 2005
Mrs. Virginia Farace, Library Director
City of BoyrtTon Beach
P.O. Box 310
Boynton Beach. FL 33425-0310
RE: City of Boyuton Beach City library
Library Expansion I Remodel
Schedule of Values Revision for mobilization
Dear Virginia,
As discussed at Today's meeting, it is SCHENKELSHULTZ recommendation that $211,000.00 be shifted to
a new line called "Mobilization". The current "General Conditions" line item will show as SO.OO on the
finalized pay application. Once Change Order Ko. 1 is signed and approved by all parties, in the amount of
$189,%3.00, it wiH be used for the General Conditions for this project. The transfer to the "Mobilization"
line item will allow Sessoms Consttuction to be able to bill for the cost associated wirh rhe delay of starting
this project as well as lost general conditions and profit Attached is a copy of how the final pay application
should look. The new contract amount will add $189,963.00 to the present value of$5,727,485.oo for a total
revised COntract amount of $5,917,448.00.
Please feel free to call us if you have any questions.
Sincerely,
SCHENEKELSHUL 1Z
~
Al Phillips
Anachment
Cc: Lee Sessoms/Sessoms Construction
Sam Ferreri, AIAlSCHENKELSHUL TZ
03208021 owner outgoing
G;\()320000\D320ii02 Boynton Beach Iibrary\DPIL.~020S02 FaJ1Ite GC nc:~ti.tionOl 042.0S.doe
1300 J'\~r.~ : '~-1'":..::re....... '''_~t',:L.:C. \\\'$[ Ptlm Beach. Flor~cia 33;.09
J-'h~l:l~ 3ti:.tl97-3:l51 . F:=.x ~til-S::--.;=_0 .. -v....... "dl~Tl=h.h.:;I;.o.L:'r:T .. .'\rL-Lilc>':~u,,:::,j l.,,-'CI'\C 1'(,:..'. --\.--\-COOO93",
Oi/29/2005 15:21 FAX 56169i5210
SCHENKEL SHULTZ
SESSOMS CONSTRUCTION
@OO2l005
-+-H SCHENKEL SHULTZ ~ 001
04/29/05 FRI 14~55 FAX 9544386789
. Sessoms
_ CONSTRUCTION
COMPANY, INC.
. 0- " -
CEIVED
APR 2 9 Z005
IBY:~
o~
7485 Davie Road Ex.tension · Hollywood FL 33024
Broward (954) 431-7900 · Fax (954) 436-6789
CG CBOl134
~
J
LETTER OF TRANSMITTAL
Pate:
Job NO.~
Re:
04129/05
379-
Boynton Beach City Ubrary
208 South Seacrest Boulevard
Boynton Beach, FL 33435
Bid Number: #Q17-261D-04ICJD
To:
SCHENKELSHUL 12 ARCHITECTURE
1300 North Congress Avenue
West Palm Beach, FL 334U9
Attn.:
Mr. Sam Ferreri I Mrs. Ch:>li Aronson
GENTLEMEN:
We are sending ~ Attached 0 Under separate copy via
Fax
the following Items:
o COpy of letter from ; . . . . . , . . . . . . . . . . - - - - _ . . . . . 0 . . . . 0 . Oated
COPIES NUMBER DESCRIPTION
I
1 Pencil Application and Certificate for Payment No. 02 I
.. Mobilization line Item $ from General Conditions ~;SfJuctural Concrete. Amount is a gross I
figure of the $185.000.00 plus $4,963 (Builders Risk increase). ..
I
I
I
i
THESE ARE TRANSMmEP AS CHECKED BELOW:
~ For Approval D Checked
D For Final Approval 0 Checked as Noted
0 For Your Use 0 Disapproved
0 For Your Information 0 As Requested
Cl ror Your Attention
cc: Virginia Fa.race. Library Director
o Submit_Copies for DIstribution
o Return_Corrected Copl€s
o Revise & Resubmit_Copies for Approval by AlE
o
Lee Sessoms, Vice President
mb
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~~iAIA Document G70f' - 2001
Change Order
PROJECT (Name and address):
Boynton Beach Library
208 South Seacrest Blvd.
Boynton Beach, FL 33435
TO CONTRACTOR (Name and address):
Sessoms Construction
7485 Davie Rd. Ext.
Holly'Wood;FL33024
CHANGE ORDER NUMBER: 001
DATE: May I I. 2005
OWNER: ~
ARCHITECT: ~
CONTRACTOR: ~
FIELD: 0
OTHER: 0
ARCHITECT'S PROJECT NUMBER: 0320802
CONTRACT DATE: May 04, 2005 Notice to Proceed
CONTRACT FOR: General Constmction
THI:CONTRACTISCHAN<;E()AS FOLLOWS:
(Include. where app/ical;Jle, any undisputed amount attributable to previously executed Construction Change Directives)
The original Contract Sum was
The netchange by previously authorized Change Orders
The Contract Sum priorto this'Change Order was
The Contract Sum will be increased by this Change Order in the amount of
The new Contract Sum including this Change Order will be
The Contract Time will be unchanged by Zero ( 0 ) days.
The date of Substantial Conipletion as of the date of this Change Order therefore is September 2, 2006.
$
$
$
$
$
5,727,485.00
0.00
5,727,485.00
189,963.00
5,917,448.00
NOT~: This Change Otderdoesnot include changes in the Contract Sum, Contract Time or Guaranteed Maximum Price which
ba~ebeen aUtl)()ri~l:dpYc.:onsiruction<::~m~eDirective until the cost and time have been agreed upon by both the Owner and
Contractor, in which.casea ChangeOrtleril(executed to supersede the Construction Change Directive.
. ..-. ........ . ,- -- -. --... ,. .... . ,- .'. ....-.. -. ....-."~
NOTVAMIPt.J~TJtSIJ:;NEDI3YTf-IEAR(;HITECT, CONTRACTOR AND OWNER.
Sessoms Construction CO, I IY\C...
CONTRACTOR (Firm name)
City of Boynton Beach
OWNER (Firm name)
208 South Seacrest Blvd., Bounton
Beach, FL 33435
ADDRESS
P'~" Hollywood. FL
ADDRESS
BY(Sig~""J . .
l.Vl? ~~,~\C:ePre3Iderl\-
(Typed name)
05)\10105
DATE I
BY (Signature)
(Typed name)
DATE
RECEIVED
MA'< 1 6 2005
Sessoms Constr. Co.
AlA Document G7011V _ 2001. Copyright @1979, 1987,2000 and 2001 by The American Institute of Architects. All rights reserved. WARNING: This
AlA" Document is prolecled by U.S. Copyright Law and Inlernational Treaties. Unauthorized reproduction or distribution of this AlAe Document, or 1
any portion ot it. may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This
document was produced by AlA software at 15:30:44 on 05/11/2005 under Order No.l000169773_2 which expires on 3/21/2006, and is not for resale.
User Notes: (761903194)
SCHENKELSHULTZ
ODD ARCHITECTURE ODD
April 28, 2005
Mrs. Virginia Farace, Library Director
City of Boynton Beach
P.O. Box 310
Boynton Beach. FL 33425-0310
RE: City of Boynton Beach City Library
Library Expansion I Remodel
Contractor Additional General Conditions Negotiations
Dear Virginia,
As requested by the City of Boynton Beach. we SCHENKELSHUL TZ engaged in negotiations with
Sessoms Construction to discussion and come to a mutual agreement on cost in reference to the additional
General Conditions and Builder's Risk for this project due to the time delay in issuance of the Notice to
Proceed. After several weeks of discussions between SCHENKELSHUL TZ and Sessoms Constructions,
the following terms were agreed upon:
Items agreed to:
I. $185,000.00 for General Conditions for services up to May 3, 2005.
2. Understanding that this cost does not include the additional cost in association with material
cost increase and will be reviewed as subcontractors are signed onto the project.
SCHENKELSHUL TZ is connnitted to working on Value Engineering items to minimize
additional cost.
3. $4,963.00 for the increase in the Builder's Risk policy due to the time extension of this policy.
Item to be determined:
I. At this present time, SCHENKELSHUL TZ and Sessoms Construction are unable to come to
mutual consent on the terms of the daily rate which would be due after May 3,2005 if the
Notice to Proceed is not issued by May 3,2005. The current daily rate in which
SCHENKELSHULTZ recommends is $898.00 ($185,000.00 (negotiated GC) /206 days). The
current daily rated requested by Sessoms Construction is $1,111.00 (GC+ anticipated profit per
,
, day).
s,CHENKELSHULTZ is presenting this recommendation, as outlined above, to the City of Boynton Beach
for review and approval. Please note that per our discussions with Sessoms Construction, they stated that
they are not in the position to mobilize unbl they can bill and be paid for the additional cost mentioned
above. We recommend that we re-evaluate the general conditions in the schedule of values to allow for early
payment if necessary.
..
Cc: Lee Sessoms/Sessoms Construction
Alterraon PhillipslSCHENKELSHUL TZ
0320802/ owner outgoing
G:\0320000\0320802 Boynton Beach librarylDP\Letten\0320802 Farace survey auth 092S03.doc
1300 North Congress Avenue. West Palm Beaeh. Florida .H409
Phone 561.697-3451 . Fax 561-697-5210 . www.sl'henkelshullz.colll . Arl'hiteetoral Lieellse No. AA-C000937
Ulll",/U<> nr.1J .La:all t-hA ~;)44atStS7lS~
. .
SESSOMS CONSTRUCTION
~~~ SCBENKELSHULTZ
\~O"l
, .
8;
Sessoms
CONSTRUCTION
COMPANY,.INC.
April 27.'2005
Via faXlmail (561.697.5210)
Mr. S.am Ferreri, PrifJCipal
SCHENKELSHUL lZ ARCHITECTU.RE
1300 North Congress Avenue
West Palm Beach. FL 33409
. Re: #379 - BOYNTON BEACH CITY LIBRARY
Bid Number: #017-2610-04/CJD
()ear Sam,
. Per our ~versation tnismoming, I am writing you to confirm our conVersation the. morning -of
. 04122105.
I Was in receipt of your response to my claim for m.y daily. costs on the subject project. In that
response, you stat~ that you felt we shoUld. ~ paid. 16% of our actual ~ts as our total remedY fOr
overhead and .profit This was discussed at our WednesdaY' project meeting. and , explained . \hat
there was no way that those numbers would work for bur firm.' .
We submitted our bid for this project almost eight months ag9; and by no fault of our oWn, we are still
awaiting a Notice to ProOOed (NTP). The(e Is no language in thE! contract documents that address
this unusual condition..' .
Nearly sIX million ,dollarS of my com~ny's bonding has been tied up in this',project during this time.
preventing. my organization to pursue profitable work. ThroUghout this time my General
superintendent and I have accommodated SCHENKELSHUL TZ and the owners with weekly
:meetings to discuss three issues: .
-The permit
-Our Claim
-Possible cost reductions with Value Engineering (which, as we have discuss~. will'likeiy be a
false economy).
. A lot of time and effort has been extended on this project. and we have nothing to shoW for it, but a
severely-!mpacted cash flow and an increasiogy disinterested sub'. base that originally bid the
project. . " .
The 15% thafyou propoSed is ~ ludicrous sum for the time and effort we have put forth to this point. .
I nave sent you a revised spreadsheet With adjusted days on Friday and have included them with
this correspondence.' . . .
Bottom' line. in order to make this job work. our.company can accept no less than $185,000.00 for
our daily costs. By acquiescing to this degree, we are ~~erely affecting OUr anticipated bottom line
and are essentially donating money to the project when We have' rio obligation to do so: Bearin
mind that this figure does not address the following issues:
-Any delays after 5/3105 which will relate to an additional daily ,cost of $'1,111.00
e~
.,~
:::IMJ"-L __ ~:~
7485 Davie Road Extension · Hollywood; FL 33024
Broward,(954) 431-7900 . Fax (954) ~36~6789 · ~G CBOll34
. G:\379 .l3oynton 8e8ch Ubrary\Cost ~\ation\0427Q5-185 offer B
. .
04/27/05 WED 15:54 FAX.9544366789
SESSOMS CONSTRUCTION
-+++ SCBENKELSBULTZ
, '~'\oi;;.~~:"",,::<
~002
SCHENkELSHUl T2 ARCHITECTURE
April 27, 2005
Page Two .
..subcontractor price escalations' . ,
-Increase cost of Builder's Risk'Insurance . ($4,963.00 +1,5% E:: $5,70!.00)
Weare told that we wil~ have a NTP on 05103105, which I find unlikely pas~d On the history of ,this proj~t .
to date. fn the event we receiVe our ~p in'the near f!Jture, be advised that we will not JX'CICeed with any
work until OUr dally costs are agreed to and a device is In place, that will enable us to, bill and be paid for
this Immediately. ,
Under the -circumstances, we have no 'alternative l>uf to' evaI~ate the Possibility' of terminating OUr
contractual obligations as we have been hanging by a tJ:vead wafting for this project to commenCe. ' In the
event ,that we' are f~ into ,that situation. we will still, take any' measure' n~ssary to protect oUr
intere'sts, and tI1e offer of a reduced dalm of. $185.000.00 Will be rescfndOd and reevaluated. 'It is our
. 'intent to wOrk through this process and complete the project ~n a timely manner.
In order to prOceed With the work; we ~i'l need the foUowlng:
' .
-cOntract Amendment for $185;000.00 'plus $5.n)7.00 for increased BUilder's Risk t6 be lulled. and
paid upon Issuance of NTP , . "
-Commitment that subc,ontractor's' cost escalation will be paid" ,
, -An inci'ease to our 'daily cost for each day ~,t 05103105 at an am'ount of $1,1 1-1:00
. ,
rn addition, It\vould' help if we had ,a reasonable noUflcation of preciS~ wh~ cOn~tructlon Will start in .
order to mobilize our workfotc;:e. , "
Agaln;.'1 stress that we are doirig our be!jt to work with e'l&ryone involved In this 'project. If you have any
questiOns regar:ding this I~ller, do not hesitate, to contact me.' ,
Very trury yours. .
Cc:' Fletcher L. Sessoms, seer
Fred Jones, SCCI '
" BOb Scott; ,SeCI '
. Virginia Farace,libnVy Director
Attachments
t-SJmb
04/27/05 WED 15:54 FAX 9544366789
SESSOMS CONSTRUCTION
~~~ SCHENKELSHULTZ
141003
. ,
.. Sessoms
.. CONSTIWCTION
_ COMPANY, INC.
#379 -"BOYNTON BEACH CITY LIBRARY
Bid Number: #017-261 0-04/CJD
-=- " -:::
7485 Davie Road Extension. Hollywood FL 33024
Broward (954) 431-7900 · Fax (954) 436~6789
CG CBOJ 134
Increase in Builder's Risk Insurance
Quote 09/07/2004
Quote 04/25/2005
Total Difference
15% OH & p
Total
$ ,38,642.00
43,604.00
$ 4,963.00
744.00
$ 5.707.QQ
,
,
G:\379 - Boynton Beach Library\Cost Escalation\Bullder's Risk _ B
04127105
04/27/05 WED 15:55 FAX 9544366789
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SESSOMS CONSTRUCTION
~~~ SCBENKELS~~TZ
_ ,.~,02_4
Collinsworth. Alter. fowler. Dowling i(Q french Group, Inc.
Insurance and Bonds
?:
$t9 N.W. ,~, Stn.r · _IOS . P.n 11oo< llll5 · M'..........., florido33014 . DlW 00S) ltlJ.7!OO . s.-.. ~_,
MItt fax (305) ~-4294 · CIL fax ~ ~.244.1
September 07, 2004
Sessoms Construction Co., Inc.
1485 Davie Road ExtensiOI1
Holl~FL 33024
R.c: Boyton Beach Library
Deer FletCher:
FollOWing is BUilder's Risk qUOte for the above. pJease DOle we can issue poli~ upon
request, however, qUOte expires 10/1104.
Special Porm, exeluding flood and quake. Limit $1,200.000 Renovation. $4,300,000
Addition, $20,000 Tl'IlDsit, $20,000 Temporary. Storage, No coverage fro e)(isting
bUilding. $5.000 Deductible AOP. except for W~ 2% ofvaJues at risk at tUne afloss,
$50,000 minimum per oceur.rebce.
Term j)r'eInimn S38.642
~
Should you have any ttbeStion or ~eed to bind covetage,.pJease contact our office.
iA=-~~
TOTFI.. P.01
09/07/04 TUE 13:37 (TX/RX NO 5741]
04/2.7/05
WED 15:55 FAX 9544366789
. r
SESSOMS CONSTRUCTION
r
-+++ SCHENKELSHULTZ l4J 005
I" V. 7' J Jr. j / I
Collinsworth, Alter, Fowler, Dowling 'at french Group, Inc.
Insurance and Bonds .
S979N.W.151 Saect. Suite 105. MWni I..akes,Florida 33014
Dade (3OS) 822-7800 · Browvd (954) 46>8601 · M (305) 362-2443
COVER SHEET
Cornn.tcI8Ilnaurance Department
DATE:
~.2-_~~5
:~)
:~~
ATTENTlONOF ,.~
FAX SENT BY (NAME) :
TOTAL PAGES. (INCLUDING COVER SHEET): /.
,
FAX SENT TO (COMPANY NAME)
FAX SENT TO FAX NUMBER
~
RE: ~, /'J-'~Fk~~
. 718/2J .~
.. /
COMMENTS:
:Onfinning ow; quotation.
\rcJ; Spec:ia1ty.
:luitders Risk.
\ll iJ-isk excluding flood and quake.
\.rch Builders Risk loon.
~imit: S 1,200.000 renovation.
$4.300,000 addition. A 3 (, o4!f. 8~
renn Ptemiwn: $ 41,425 plus tJIx, plusS 35.p1119 54.:;::' -, ~
)eel: 5,000 AOP, 3% values at risk at time of loss tOJ: wind subject to 50,000 miD. per oecurreoc:e.
;20..000- Transit
;20.000' temporary stDrage.
;tart date: 513/04 Tean 16 months.
~ludes: terrorism.tnold,oybem::ttOrism.
THE INFORMATION CONTAINED" THIS FAX Il!iIN1"eHOED cti\..Y FOR TtfE U8E Of THE INCI'JIDUAL($) HMEO A8O\IE. . THE. ~ IS
IfOT TttE INf'EMDEO RECWiIENT(OIt ~ RPfIONSIILJ! TO DELI\IER IT TDTHE IN'tENClED RECIPIENT) yOu ARE HERSeY
AD\IIBED TtfAT AIff OISSDltMTION. D&B1'RUCTION ORCCIP'tItGl:If TttI8 COIMJNICA11ON t8 PRCIHBITEO, If YCtJ H4VE RECEIvED
THa o-'r~TION IN ERROR,1'LEA8E IEICIMD EHOUGH1O NOTFY us lIeEIMlaY 8Y TElEPHONe AND ReTURN 'THE OR~
~ 10 us rtWM. AT THE A8CM5~_
... ..."'" · ........ ......... -,....- al I Dar.:ll:. ~ C:af:IJ: ,..061' "ROVE "LIMBER.
04/25/05 MON 15:23 [TX/RX NO 9055]
04/27/05 WED 15:55 FAX 9544366789
SESSOMS CONSTRUCTION
-+-H SCIlENKELSHULTZ
~006
Boynton Beach City Library
Sessoms Construction Company, Inc. Cost per Day
Emplovee Rate per Day Total Rate per Day
Bob Scott, General Superintendent (33%) $320.00 $105.46
Scott Wells, Suoerintendent $272.00 *
Lee Sessoms, Project Manager (50%) . $344.00 $171.75
Trailer $13.42
Anticipated Prof"1t
$220,000 /457 days ~ $481.40 per day $481.40
General Liability Insurance $150.68
.
Partial Rate Per Day $922.72
DelayFrom Ten Days from Contract 206
Total Cosl Less Scott Wells $190,079.33
Scott Wells 8S adiusted below. $15,171.00
Less Trailer Costs to 2/8105 ($1,624.00
Total Costs from 10/10104 Throuoh 411/05 $203,626.33
.
Total Costs from 411/05 Thl'Ough 513/05 '33 [ ays) $36,663.00
:
. Grand Total $240,289.33
1.:11.-
-\
-'
a.,eott Wells was working On this project from 1/13105 thru 2/17105 (36 days) at
full rate
$272 x 36 days = $ 9,979
He worked from 2/17/05 to 411105 (44 days) on another project in the capacity
of a carpenter at his full rate of pay. Deducting carpenter wages from his rate
leaves premium we are paying to be billed to City of Boynton Beach
$2724154 = $118
$118 x 44 days = $ 5,192
$ 9,979 + $ 5,192 = $15,171
Total Rate per Day After 411/05 will be $1,111.
Increase cost in Builder's Risk Insurance a $5,707.00 not included in above
~\1"~~~
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CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM G.
Requested City Commission Date final fonn Must be Turned Requested City Commission Date Final fonn Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
[8J August 2, 2005 July 18, 2005 (Noon,) 0 October 5,2005 September 19,2005 (Noon)
0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon)
0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17,2005 (Noon)
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15, 2005 October 31, 2005 (Noon)
NATURE OF
AGENDA ITEM
o
[8J
o
o
o
o
Administrative 0 Development Plans ,~
( ~,
Consent Agenda 0 New Business .".
L
Public Hearing 0 Legal .'.
Bids 0 Unfinished Business N
01
Announcement 0 Presentation J
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RECOMMENDATION: Approve change order # 2 for the Library Expansion Project in the amount of$85,615 t~ (J
cover the Contractor's labor and material costs associated with changing FPL power supply to the Civic Center from
above ground to below ground, and installing two conduits for BellSouth phone lines.
City Manager's Report
EXPLANATION: Electricity to the Civic Center is currently provided by FPL overhead lines coming from Seacrest Blvd.
These lines need to be rerouted in order to move forward with construction as they are in the path of the library expansion.
Florida Power and Light will remove the pole and reroute the lines underground but the city/project has to provide a protected
conduit underground to accommodate the electric service lines to the Civic Center. The above ground pole and lines
providing that service cannot be removed until this new conduit is available to FPL. BellSouth has 600 phone lines running
east to west that will be partially covered by the new entrance and needs two additional conduits to assure a future repair
route.
PROGRAM IMP ACT: The poles are preventing the contractor from proceeding as one pole is located directly in the
footprint of the new foundation. The overhead lines are also inhibiting use of tall equipment trying to cross underneath to
access the property. The phones lines service 600 homes on the west side of Sea crest Blvd.
FISCAL IMPACT: Adds $85,615 to the Contract Sum. Funds to come from the general CIP account.
AL TERNA TIVES: Other alternatives have been rejected by FPL or are more costly to the city.
(I( 1~
Library
Department Name
Department Head's Signature
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
\..iAIA Document G70r" - 2001
Change Order
PROJECT (Name and address):
Boynton Beach Library
208 South Staertst BlVd.
Boynton Beach, FL 33435
TO CONTRACTOR (Name and address):
Sessoms"ConstructioIl
1485 DaVie Rd. Ext.
HollYwood, FL 33024
CHANGE ORDER NUMBER: 002
DATE: July 25, 2005
OWNER: r8J
ARCHITECT: r8J
CONTRACTOR: r8J
FIELD: 0
OTHER: 0
ARCHITECT'S PROJECT NUMBER: 0320802
CONTRACT DATE: May 04, 2005 NOlice to Proceed
CONTRACT FOR: General Construction
TffECONTRACTlSCHANGEDAS FOLLOWS:
(lnclilde. whereapp . isputed anwunt attributable to previously executed Construction Change Directives)
li:J.c;l\lde C(l$UgfuTIlI duit for FPL to run lines underground to the Civic Center for power and abandon the above
ogr()tJridJii1,~s,fun . ng lot.
$
$
S
$
$
5.727,485.00
189,963.00
5.917,448.00
85.615
6,003,063.00
rized Change Orders
ge Order was
by this Change Order in the amount of
is Change Order will be
ged by THD ( TBD ) days.
IllpIc:yon as of the date of this Change Order therefore is September 2, 2006
~QtE:This,
.li.~ye been onstlUcq'
CQntr:l.ct(jr.IlliWI1IshSllSe a Change?
t:l1anges in the Contract Sum, Contract Time or Guaranteed Maximum Price which
e Directive until the cost and time have been agreed upon by both the Owner and
cds executed to supersede the Construction Change Directive.
NQ"VAtI(jill~IJ~;$l~NEDBY THE ARCHITECT, CONTRACTOR AND OWNER.
sa 1Z
~CHITE,g'\"'rffrnti'name)
Sessoms Construction
CONTRACTOR (Firm name)
7485 Davie Rd. Ext., Hollywood, FL
33024
ADDRESS
City of Boynton Beach
OWNER (Firm name)
208 South Seacrest Blvd., Bounton
Beach, FL 33435
ADDRESS
'Z
BY (Signature)
Lee Sessoms, Vice President
(Typed name)
(Typed name)
DATE
DATE
DATE
AlA Document G701"'- 2001. Copyright (> 1979, 1987,2000 and 2001 by The American Institute of Architects. All rights reserved. WARNING: This
AlA" Document is protected by U.S. Copyright law and International Trea1les. Unauthorized reproduction or distribution of this AlAe Document, or 1
any portion of it, may resul1 in severe civil and criminal penalties, and will be prosecuted 10 lhe maximum extent possible under the law. This
document was produced by AlA software at 15'13:35 on 07/2512005 under Order No.10oo169n3_2 which expires on 3121/2006. and is not for resale.
User Notes: (2366607797)
--.--..-.... ............... v....~, ~ VV..L
~ Sessoms
,. CONSTRUCT,ION
_ COMPANY, INC.
JUly 25,2005
-
-
Via fax/mail
Virginia K. Farace, Library Director
Boynton Beach City library
THE CITY OF BOYNTON BEACH
208 South Sea crest Boulevard
Boynton Beach, FL 33435
Re: #379 - Boynton Beach City Library
Permit #04-4476
Dear Ms. Farace:
Please allow this letter as my authorization to permit John Marks Ill, our Superintendent,
to sign for revised Change Order #02 in the amount of $85,615.00.
Very truly yours,
b- Lee Sessoms (License # CG C049662)
Vice President
Cc: AI Phillips, SCHENKELSHUL TZ ARCHITECTURE
1mb
Sworn to and subscrfbed. before me this
25th day of JUly, 2005.
~/)~
Notary Public
,:;;~, MICHELE D. BURNS
:: ') MY COM...ISSION Ii 00125876
. ';31. EXPIRES: July 20, ;1006
";')TARY F'l Notwy s.iMoo & BonclInir. Itle.
G) MICHELED.BURNS
, MY COMMISSION., ,00125876
, EXPIRES: July 20. 200e
l-llQO.3-NQTAIlY Fl ~ Sorw;QO & BonclInQ. It'le
7485 Davie Road Extension. Hollywood, FL 33024
8roward (954)431-7900 · Fax (954) 436-6789 . CG c:aOl134
:::;~
C:\G Drive Info\379 -Bovnton L1brarv\Chanoe Orderl07 -25-05 JM to sian CO 2
ft~ii~~.
:;'.... ~~,~
\.:..~.
La.Jtj_~I:~^i:....-:: ~~
- "".'
From: Stephen Cotton [mailto:stephen.cotton@tlc-eng.com]
Sent: Tuesday, July 12, 2005 8:02 AM
To: Phillips, AI
Subject: RE: Boynton Beach Library- Added cost for Underground Electrical
The cost appears to be an acceptable value to the owner.
-----Original Message-----
From: Phillips, AI [mailto:aphillips@schenkelshultz.com]
Sent: Monday, July 11, 2005 7:06 PM
To: stephen.cotton@tJc-eng.com
Cc: Phillips, AI; Ferreri, Sam
Subject: Boynton Beach Library- Added cost for Underground Electrical
Good Evening Stephen,
Have you had a chance to look at the cost for the added electrical items at Boynton
Beach Library. Please let us know what you think of the cost.
Thank you,
)I{terraon Plii{fips
CONSTRUCTION ADMINISTRATION
SCHENKELSHULTZ
1300 N. Congress Ave.
West Palm Beach, FL 33409
Phone: 561-697-3451
Fax: 561-697-5210
.
---,'
./
'~
Sessoms
CONSTRUCTION
COMPANY, INC.
.-.=
7485 Davie Road Extension · Hollywood FL 33024
Broward (954) 43 I -7900 · Fax (954) 4 36~6789
REQUEST FOR CHANGE ORDER CG CBOI 134
MEMORANDUM
DATE:
July. 2005
AI Phillips, SCHENKELSHUL TZ ARCHITECTURE
TO:
FROM:
Lee Sessoms, Vice President
RE:
#379 - BOYNTON BEACH CITY LIBRARY
Bid #017-2610-04/CJD
RCO # 01 REVISED
Description of Proposed Change: Labor and material associated with changing power
supply to the Civic Center from above ground to below ground. This ReO specifically
excludes any additional concrete work or demolition work other than trenching. secl
cannot be held liable for any damage to BellSouth cables. We will endeavor to protect as
best as possible, however, since they were installed in 1961 we have no idea what
condition they are in.
Reason for Change: Per Proposal Request #01 issued 06/09/05.
Additional Cost:
SCCI Overhead and Profit (15%):
Subtotal:
City Permit Fee (2%):
Subtotal:
SCCI Bond Premium (1%):
PROPOSED CHANGE IN CONTRACT AMOUNT:
$ 72,265
$ 10.840
$ 83,105
$ 1,662
$ 84,767
$ 848
$ 85,615
PROPOSED CHANGE IN CONTRACT TIME: To Be Determined (TBD) days
Cc: Virginia Farace. Library Director
Attachment: Supplier/Subcontractor Proposal
LS/mb
C;\G Drive Info\379 - Boynton Ubrary\Change Order\01 Rev
07/22/2aS5 19:~1
19548677E143
~,-__,-"., 1j;.1-~"""" I ,,-l.......
.-.----/
eleon
ELECTRIC INCORPORATED
215Cl NoW, 33tll1 stnIet. SuIt8 C. p~no Beach. F\.. 330GB
(IilM~49
(95A)91~g FAX
STATIi UCENSE
ecooo1331
July 21 , 2005
B..EQugST FOR G.~NGe ORDER
Jab No-: 5602'
R.C.a. No.: 1 R3
R.F.P. No.:
SESSOMS CONSTRUCTION
7485 Davie Road
Hol~ood,FL 33024
Attention:
Robert Scott
Project:
BOYNTON BEACH LIBRARY
BOYNTON BeACH, FLORIDA
Referencs: Underground Electrical for Civic Centsr
'-----..--'
Gentlemen:
We propose to Increase. our contract total In the amount of;. SEVENTY TWO
THOUSAND 'l"WO HUNDRED SIXTY FIVE DOLLARS AND NO'. CENTS ($12.285.22 )
for the following: '
Proposal:
Eleon Electric, Inc. proposes to fumish and install the following electrica' changes:
TelePhone Work
Utility Work
TOTAL
$ 19,678.12
1.52.587.10
$ 72,265.22
Drawi~ E102 Revision # 3 Datad.!l3/05 .
~ Add (2) 48 condits/Wire for new utility feed for CiVic Center.
Drawinas E..4g1.B.!~ion 112 Dated 6/3105
_ Demo existing SWItchgear.
_ Add new 800 amp disconnect and RT gutter.
_ Add (2) 4" conduitslwire between the 600 amp disconnect $nd gutter.
_ Install new power feeds to (1) existing panel and the building main power feed.
'~./'
P""1I1Dfl
ReO '\R3
07/22/05 FRI 09:51 [TX/RX NO 5611)
~I{~~{,~~~ ~~;D~
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r=.'-\.,.I~I" ~L-~~ f T'\.&.......
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"--./
Note: As per requested from Sessom's Construction to install just North of
existing buUding. Routing to follow existing cable locations.
- Add (2) 4- eonduitslfull string and J-bo~es for Telecom.
Exclusions
- Dewatering and shoring of trenches
- Concrete encasement of conduits .
- Our bId price does not Include any cost for the existing Bellsouth direct burled, cable if
damaged during this installation of the new conduits for BellsDuth. We have included
hand digging to minimuze the chance of damage to the direct-buried cable.
TOTAL This Request For Change Order$72,265.22
STIPULA TIONS= This proposal is baaed solely on the usual cost elements such as
labor, material, and normal markups and does not include any amount far additional
changes in the sequence of work, delays, disruptions. rescheduling, extended
overhead, overtime, acceleration, and/or impact costs; and the right is expressly
reserved to request an equitable change order for any and all of theSe related items
prior to final settlement of this contract. General C;;ontractor work not Included
(concrete, trenching. chopping, painting, etc.) unless otherwise noted. This proposal
--,' must be acoepted within 5 days. after which time it will be subject to escalation. We are
currently requesting a time extension of 0 days in conjunction with 'this change.
~
o
o
We will be pleased to proceed With this work upon receipt of your change order
in the above amo~nt. .
Inasmuch as we are proceec::ling with this work as directed, we would appreciate
receiving your change order in the above amount.
Inasmuch as this work has been completed, we wDuld apprecia iving your
change order in the above amount
:AYNE ROSS
Project Manager
ce: file
.........~./
Page 2 of 2
ReD 111t~
07/22/05 FRI 09:51 [TX/RX NO 5611)
~I-L~-' ~~ iO:~~ rnu'-
project Name: BOYNTON BEACH CITY LIBRARY
RCO #: 1
:J~!Stl., '( Il)qq
T-nH t'llll-'l4r It'Ilt'Ib I:' -~ql
GRAND TTL
Date: 7/2112005
Estimate '/#: 5602
~~. t'"" ~I ~i ~... ~~_..\...."" _OJ_\f'- ,,~ J..'-~r -~r'~ '-'-'-~ ~~11' 'j"r. -... r .~ ~ ~JL-:l:F -)~",'rr' " .... i ,,'" ~, ,r'7"l"'~ rr~l' 1'.o.I1~~~-:"" \"" > 1 '" I" '~':1''''' ,. r:rl-~ '-"j
;!-\;.!~~: ):,1;;. ;\~_c> ~'~?T<~ ',,', .~?:~ ':; ~~"~" ~i~:, ~;~~'~"0' ':.-:'~:')"~:~';;;;i~ ~'> '.>f .;;: n , :,f~. ~'_::#;';~:";:;-''''T:7'''~~; :'" :~7~9;C;,~' ~;:'l
~2<.!..1~lJ":rc1.Vfl.lt.t~, ,r,.: :",,,,,}Jlu,,I.;,,,,;~,,,,,,'0""""'i/:C1;~""";"':';',l ,,,')_~>;iI;i~+"~:;;'L'<'.~Jt.",,,,,,<,..~c'ii,;Jj
[~aterial]
TsJC 6.5%
Overhead: 10%
Fee: 5%
$33,917~61
$37,309.37
$39,174.84
(T otal Materlaq:
539,114.84
[Project QuotalExpcn$eS (taxable)]
Switchgear: $2,300.00
light Axtures: $0.00
fif9 Alarm : $0,00
TVSS $0.00
Card ASsess System $0.00
Material Handling: $0.00
UftslToDla: $0,00
TeBting: $0.00
Pttrmitting: $0.00
Temp Power/Storage: $0.00
Sum Expenses: $2,300,00
6-5%
10%
5%
$2,449.50
52;594.45
$2,829.17
$2,829.17
$9.116.18
Tax:
Overhead:
Fee:
Subtotal:
Irrotal Proi.ct Ex~ena-1:
[Lab""] rate % of hours
Ganeral Foreman @ $58 30% $8.854.59
straight Time J-man @ $44 70% $15,319.61
Straight Time App @ $39 0% $0.00
Overtime F-man @ $6 0% $0.00
Overtime J-man 0 $11 0% $0.00
Overtime App @ $9 0% SO.OO
rr_l Labor]: $Z3.974.20
. [Project Exp.n... (non.taxable))
Labor rate % of hours
Project MBnBgef @ $65 5.00% $1.818.52
S~perintendant @ $80 7.50% $2,238.26
Estimator 0 SSO 3.00% $895.30
Clean-up @ $15 5.00% $373,04
Admlnlstabve <<I $25 O.Dp% $0.00
As Builta @ $58 1_0Q",(, $28BA9
L8yout @ $58 2.00% $576.97
Safety Program CD $60 1.60% $298.43
SUm Expenses: $6,287.01
Subtotal:
$6,287.01
Total Material
Total labor
Total Ellp.nS8B
$39,174.84
$23,974.20
$9,118.18
SUBTOTAL Reo
. S72~28S.22
BONDelf applicable)
TOTAL BOND
rate:
0.00%
. 50.00
TOl'AL AMOUNT OF Reo:
$72.265.22
Page 1
07/21/05 THU 18:26 [TX/RX NO 5601]
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00505
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Elcon Electric
* * BID TAKE - OFF DETAILS - FORMAT 2 · ·
. .. Job: BOYNTO~ BEACH CITY' U8RARY · · Job Number: WAR05802 ."* Bid Date: 6/24/2005 .. ..
P.~. 1 Dat. 7/21/2005 8!2]!46 ~
2 Mi.Q81~~Rous It...
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2 ~RA~.L BaSE FOR ~M~m
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2 EltC1.0DI!: SHOanlS or 'l'RDfCtlf;S
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2 4" I'Ve 90 !;LBo"
2 4 N PVC COUI;'I>DlG
2 .;n P\7C ~ ~PTU
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7:10.00
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12.DO
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82:5.00
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19.117
4.535
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2 EXCLUD~ SHORING of "~CHms
:2 excLDtI~ CONCRI!J'l'Il I!:NCAS5MEBT OF
2 4- pVC 90ft 40
2 4" pvc CONoux'f $Cjf 40
2 4 of PVC 90 ELaOlf
2 4- PVC OOOI'LI~G
2 4" lave HALl: ADAPTI!;l\
2 .." l:.ocnIO't
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2 U THHlf cO S'1'R
0.00
1.00
3.00
1.00
1.00
1.00
LOO
1.00
400.00
13.32
4.00
8.00
4.00
4.00
4.00
1720.00
430.00
..567
4.567
It.l1?
4.535
6.207
8.10
9.&62
6.788
1.827
S15.~"1a
1597.50
lSg.7!>
58.58
la2lL 1503
6(/.826
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36.283
24.S:l9
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11614.977
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IPR #1 UNDERGROI,)tJbIS!J1 lpPL COAICXJITs 1':1\b NtJmtJ> 1<1'10 Name>
- a....kout Muldpllers: Count -1 M..rial eo.C 11: 1.00 ~r Hours - 1.00
00$14
00515
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01003
56. ''7~
532.!>OC
1611.7$0
58,575
Tutallll
2 M~se.~laneou~ Items
2 'I" colfbCI'l' HUS ~ nfS
2 CleMO
Z 6DO~ 3~ .3. ~9~b bIScoNN~ -
2 1/4X4 RD ~D TOOGLs DLT 42tl
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2 *2 - n IfIItJ: 'I'SIlM I.a.1!IOR
2 JIG - 'I/O W1aB TEaM LAaD~
<! 12X1.2xCi aT G'l,lTTElt - QUOT'ED
2 1/4X. IU> Hl"oD oroGGLl!l BLT 42n.
2 6110LS POLARIS TAl'S. ll'l' mJ'X~Q
2 11 GIlOlnlb BAll '" 6HOLE . 1\'1' 'su
>>> GROUrlDllIG "DlSCONNECT_c
2 1-:1./4" EIft
2 1-1/4" ~ CON" 00Mr STY
2 1-1/4" tLA"lC aU'HIWQ
2 1-1/." 2MT COOP COMP STEEL
0.00
2.00
1.00
1.00
4.00
l.'.Dl)
4.0D
1.00
LOO
6.00
".00
-1.00
0.506
69.225
3'.405
:1.$8.1153
0.S06
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2.00
2.00
5.00
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6.~D4
1..05!5
6.85.
Page: 1
~U.326
2.023
3.03_
2'76 . ~O
)'...0
159.771
13.1107
2.110
34.270
Laber
Unit
<11I0 MuntJ>
0.001
B,ODO
0.500
0.500
8.000
0.1150
1.000
0.320
1.000
1.00D
0.001
1.850
o. 20
I<NO Nome>
0.00:1.
0.!00
4.000
0.160
0,160
1.000
0,320
1.000
l.ODO
1.000
0.04'
0,020
1 </tiel. NiMe>.
0.7&0
16.000
la.OOO
0.150
0.750
0.330
O.SOO
8.000
0.150
1.000
2.000
0.070
0.2:;0
0.313
O.SOO
LAbar Hr
&tended
-0.001
8.00
0.50
0.50
16.00
120.000
6.000
3.840
6.000
6.000
0.825
3.,00
1.280
172..'
0.001
0.50
..00
64.000
2.131
4.000
2.!S!i0
.;000
4.000
4.000
7...:) 68
8.600
17..18
l.~oo
16.00
15.00
0.600
12.000
1.320
0.500
8.00
O.~OO
4.00
2.00
3.500
0.500
0.52!>
2.500
D~" : 7/1Z1f2DOI 8:<lJ:61 AM
07/21/05 THU 16:26 [TX/RX NO 5601J
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Eleon ~'.ctrh~
· W BID TAKE p QFF DETAILS -. FORMAT 2 '* ·
__ * Job: BOYNTON BEACH CITY UBRARY Of.. Job Number. WAR.D5602 .. Bid Dllte: 8/2412005 -- .
~age 2 Date 7/21/2005 B:23:51 AM
SlNef
tJ1
2 1-1/" ~KT 1 HOLE STRA~ 5.00 0.753 3.765 0.053 0.265
2 .3/0 TKH~ eu ~~~ 50.00 3_333 ~~6. 673 D.03:l 1.1500
2 2" I:M1' 10.00 4.775 .7.7" 0.090 0.\100
2 2" ~ coNN OD~P S~L :Z.OO 14.391 ~B.792 O.!lOD l.. 000
2 2" l'J.J\STIC BOSKlaJO 2.00 2.2l'l~ 4.53'7 0,500 LOOO
2 2" Oa.ttS'N\O'r STRAPS 2.00 1.896 3.191 0.050 (I.1Oa
2 .1/0 ~HN CO ST~ 100.00 2.U6 214.508 0.024 2.420
2 lei '1'KHN CD STll z~.oo 0.61)'- 1!L027 0.012 0.308
2 2" La BODY LOa UL OS3 46.053 2.500 2.500
2 COVi:~ zlN 8966 1.00 10.701 10.701 o.1~c O.lS0
~ GJ\$KE~ 2J:N 8876 1.00 2.446 2.H6 0.001 0.001
~>> .0tIA DISC TO RT GUTTER ccc
2 ... 1iiM'1' 60.00 :\.2.645 7~S.1578 0.210 12.600
:l .." KMT CONN CClM~ !iT!. ".00 120.963 1183.85J. 1.000 4.000
2 -1M i!Ift '0 ex,El0ll 2.00 7fi.Q~5 153.7J.O 1.:lJJ 2.666
:2 4" ~ CQlJP calli' STIIlEL 6.00 !2.6.~ 955.892 1.250 7.500
2 3SD MeN TH~ CU STR 360.00 (;.799 244:!l. liOO 0.044 1!\,1l84
2 .1 'l'lDlN C1] STl\ 90.00 1.en 164.421 0.020 Leoo
2 .- UN~STRUT s~PS 10.00 3.073 30.725 0.015 0.750
2 .- p~TIC BDSHING 4.00 ~.962 39.946 1.000 4.000
>>> 1fT GUTTIfJf 'fa SUII.DING I/IIAIN <<0:;
2 4" EM'1' 10.00 1.2. 645 12fi.446 o ;:n 0 2.100
2 4" !:H'1' CO!fN COItP Sn. 4.00 120.963 483.8!H 1.000 4.000
2 500 NCH THHN CU S~~ 100.00 9.581- illS' .'106 0,050 5.000
2 13 'l'HRN CU STR 2!i.DO 1.141 2B.531 0.016 0.400
2 4" Ub!IS'l:IlUT S'1'IU'oE'S 2.00 3.073 6.145 D.07!1 D.l!lO
2 4" P~T~C ~~~krNG 4.00 9.962 39.948 1.000 4.000
2 4" f,B BODY 1.00 27:z.4S9 272.459 6.250 6.250
2 coVER 3-1/27N~4IN BD6!1 1.00 27.545 27.~.~ 1),190 0.1~0
2 ~SKET )-1/3I~~'I~ 08?9 1.00 4..2' 4.4~~ (1.(101 ~5ir'
ToMllI 7.....87
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01005
ol009
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Page: jZ
PIlla: 7121/200S 8:23:62 AM
07/21/05 TBU 16:26 [TI/RI NO 5601]
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VI.-CONSENT AGENDA
ITEM H.
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to Citv Clerk's Office Meeting Dates in to Citv Clerk's Office
[g] August 2, 2005 July 18,2005 (Noon.) D October 5, 2005 September 19, 2005 (Noon)
D August 16, 2005 August I, 2005 (Noon) D October 18, 2005 October 3, 2005 (Noon)
D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17,2005 (Noon)
:."-)
-'-
D D October 31, 2005 (Noon}; --l
September 20, 2005 September 6, 2005 (Noon) November 15,2005
-
- -'1
D Administrative D Development Plans 01 --
[g] D '--,.
NATURE OF Consent Agenda New Business 'J
AGENDA ITEM D Public Hearing D Legal
['..) "
D Bids D Unfinished Business ~ =-~~
~- f~(-~i~
D Announcement D Presentation '.:.:~
=c
D City Manager's Report
RECOMMENDATION: Approval ofa $5,000.00 donation to the Juvenile Transition Center, Inc. ESTEEM
Program, from the state law enforcement trust fund.
EXPLANA TION: In accordance with Florida State Statute 932.705 the Boynton Beach Police Department maintains
a law enforcement trust fund which has a current balance in excess of $15,000.00. In accordance with the statute, the
department is required to expend or donate 15 percent of the proceeds in the trust fund for the support or operation of any
drug treatment, drug abuse, drug prevention, crime prevention, drug abuse education, safe neighborhood or school resource
officer program. The Juvenile Transition Authority ESTEEM program which serves the Boynton Beach community, includes
a strong anti-drug/anti-crime educational component and as a result, is qualified to receive funding from the law enforcement
trust fund. The JTC is an established program that has received funding in the past.
PROGRAM IMPACT: Educational and personal development opportunities for youth residing in the City of Boynton
Beach.
FISCAL IMPACT: The law enforcement trust fund contains sufficient funds to provide for this donation. Current
balance in excess of$25,000.00.
ALTERNATIVES: None.
~eoo" S;gn,,,,,:
Po he E'-.
Department Name
City Attorney / Finance / Human Resources
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
71ie Juvenile rrransition Cente~ Inc.
1901 !N Seacrest (jjlvtf.
(Boynton (Beacn, tEL 33435
Jul.y 14, 2005
Contact Infor.mation
organization Name:
The Juvenile Transition Center, Inc.
Program/Project Name:
Encouraging Students Through Education,
Employment & MSntoring (ESTEEM)
Contact:
stephanie Mingo-McKoy, Executive Director
1901 N. Seacrest Bl.vd.
Boynton Beach, FL 33435
Office-(561) 742-6557 Cell-(561) 306-0252
ESTEEM Program Description
A. Organizational ~ssion
The Juvenile Transition Center's mission is to mitigate the
incidents of youth violence and juvenile delinquency by providing
education enrichment, mentoring and job training skills to youth
ages 12-18 in Palm Beach County-
C. ESTEEM Progr~ Services
The Juvenile Transition Center, rnc is a public service
organization that provides educational enrichment, economic
development and personal empowerment services to the youth of Palm
Beach County through a program called ESTEEM. ESTEEM is an
acronym for Encouraging Students Through Education, Employment &
Mentoring.
ESTEEM primary focus is a year-round educationally based program
for youth currently attending a public or private school, unlike
many traditional youth programs, which are recreationally based.
ESTEEM serves at-risk youth ages 12-18 whose family meets the
federal low-income guidelines and who has also demonstrated a need
1
for services, evidenced by at-risk barriers (juvenile delinquent,
dropout, truant, one or more grade levels behind, pregnancy, use,
sale or distribution of illegal drugs, etc). ESTEEM provides an
extremely detailed case management file on every program
participant from the initial application until the student exits.
As mentioned previously, each student is required to participate
year-round. At the end of their term, recommendations for
subsequent terms will be made for those students to remain active
or the student will be recommended for follow-up status, which
means they will be come inactive. Active ESTEEM students are
offered a comprehensive continuum of services designed to generate
characteristics that are indicative of pro-social citizens- Those
services include the following:
EDUCATIONAL ENRICHMENT
Academic Remediation- Students are pre-tested using the FCAT
competencies & TABE assessments, if their scores indicate any
deficiencies, they are then identified and placed in academic
remediation non-tradition class setting. The academic
remediation component provides educational support to improve
educational excellence among those underrepresented minority
youth in the areas of the Florida Comprehensive Achievement
Test (FCAT), and other norm-referenced tests. This component
offers tutoring and homework assistant from State Licensed
Teachers in the four core disciplines (Math, Science, English,
and Social Studies) to all active participants in an effort to
achieve the maximum level of productivity.
Academic Intensification- This component was designed for the
highly intelligent, economically disadvantaged, at-risk youth
that demonstrated mastery (loth grade level or higher) on their
TABE pre-test. The academic intensification component
provides tutoring/homework assistance in honors and Advanced
Placement (AP) classes, SAT/ACT practice sessions and
workshops, and registration for college entrance examination
(SAT, ACT, etc.) as well as, Financial Aid workshops and
College selection techniques. Students are required to register
for a college exam, take the test, and report scores to the
schools of their choice and to the ESTEEM program.
ECONOMIC DEVELOPMENT
Job Training Skills- This is a very critical element, mainly
because it helps to develop the proper work ethics (grooming,
job searches, completing application, telephone skills,
interviewing for the job, punctuality, performance, and job
2
1m: Stephanie Mingo-Mc~Fa:r: +1 (tlt11 )~~t1\,tl:StH:H
10_ \..Jnlcr IllIll"'I..-Lf"\
retention) of each student. In an effort to promote self-
sufficiency, the JTC has partnered '"i th the business communi tJ
to provide on-the-job training experiences to our program
participants. This collaboration presents opportunities that
could lead to gainful employment with area Municipal Government
Agencies and corporations (Wal-Mart superstore, Wendy's,
Target, and Simon Malls). ESTEEM participants will be
monitored once weekly by a JTC Job Coach to verify their
attendance, performance and to ensure compliance with the child
labor laws.
Not:e: Fa:mi~y members are a~so e~igib~e t:o at:t:end our job
t:raining sessions, conduct: t:echno~ogy-based job searches, and
exa:mine t:he book of job ~ead.s t:o assist: in t:he t:ransit:ion of
we~fare-t:o-work init:iat:ives, which u~t:imat:e~y reduces t:he
une~~oyment rate.
PERSONAL EMPOWERMENT
Mentor/Mentee Services- Each student will be assigned to an
Adult Mentor for the purpose of learning to live as a
productive contributing member of society, an active listener,
offering sound advice, and bestowing leadership qualities. The
students will reciprocate by mentoring (reading, listening,
offering positive advice) children (ages 5-10) in the after
school program under the direction of the City of Boynton
Beach's Recreation Department. Students are encouraged to
participate through a point system. Students can earn up to
(2) points for each session, every 50 points can be redeemed
for a $20 gift certificate from business partners (Target,
Simon Mall, or Wal-Mart) .
Druqlcr~ Free Communieies- students are encouraged
to be productive and positively involved to enhance
the quality of life in their community. This element
of the curriculum addresses: substance abuse, crime
prevention and abiding by the law. students are
motivated to attend these seminars and workshops by
earning points that could be used to participate In
opportunities such as: Educational Fairs, School
supplies, Recreational field trips, gift certificates,
etc.
3
om: :jtepnanle Mm9o-MC'r-~I': Tl,nOl ~Ol:t~OHI
10: LHler- II\11MLt:"-
r~". ,"'t~-u 10;""
r n'=tll:: .J VI.J t 11'-11 :o~a,. ....v., .-., L,................ 'L,.L.'-" ,.,
Florida Universities partnership programs- FUPP is a
partnership between the Juvenile Transition Center and Florida
A & M University, Florida state University, University of
central Florida, University of South Florida, and Florida
Atlantic University. The Universities offer agencies such as
the Juvenile Transition Center, the opportunity to participate
in educational fairs throughout the year. During those
educational fairs, students are given the chance to earn Full
Academic Scholarships. The key is preparation. Because the
JTC target population is economically disadvantaged at-risk
youth, who might possibly be a first generation college
student, they may have the privilege of entering college with a
minimum grade point average of 2.0 and a SAT score of 900.
Instead of the standard minimum of 3.0 grade point average, and
SAT or ACT with a minimum score of 1100 or 17. Currently, the
Juvenile Transition Center has eight students attending Florida
A & M University, Florida State University and University of
Central Florida. Through developed partnerships we have opened
the doors that many of our participants didn't realize existed.
D. Conc~usion
While it is vitally important to support the efforts of post
secondary opportunities for the disproportionately
underrepresented student, it is equally as important to ensure
that those students are adequately prepared educationally,
socially, culturally, and economically- The Juvenile
Transition Center, Inc. ESTEEM program provides a detailed
college, economic and personal development path for all program
participants.
Should the need materialize for additional information please
feel free to contact me at immediately by phone (561) 742-6557,
(561)306-0252 or email: chillout@bellsouth.net
4
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VIII.-PUBLIC HEARING
ITEM A.
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
[8J August 2, 2005 Ju]y ]8,2005 (Noon.) 0 October 5, 2005 September 19, 2005 (Noon)
0 August 16, 2005 August 1, 2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon)
0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17, 2005 (Noon)
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 October 31, 2005 (Noon)
CJ
c~}-;
NATURE OF
AGENDA ITEM
o Administrative
o Consent Agenda
[8J Public Hearing
o Bids
o Announcement
o City Manager's Report
o Development Plans
o New Business
[8J Legal
o Unfinished Business
o Presentation
.._-;~....
.( .",..-.
_) --r:
~ ex}
'~ (=)
w
, ,
--'
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mq
-'1 co
-1"1
'~c:) ~~~ ~
RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Public Hearing
and Legal, Ordinance - First Reading. The Community Redevelopment Agency Board recommended that the subject request
be approved on July 12,2005. For further details pertaining to the request, see attached Department of Development
Memorandum No. PZ 05-092.
EXPLANATION:
PROJECT:
AGENT:
LOCATION:
Condominium Hotels in Mixed Use Districts (CDRV 05-013)
Staff-initiated
Mixed Use-High Intensity (MU-H) and Mixed Use-Low Intensity (MU-L) zoning
districts
Request to amend the Land Development Regulations, Chapter 2, Section 6.F. Mixed
Use Zoning Districts to add "Hotel, Extended Stay" as a pennitted use in the Mixed
Use-High Intensity (MU-H) zoning district; as a conditional use in the Mixed Use-Low
Intensity (MU-L) zoning district; and to amend the definitions of "Hotel" and "Hotel,
Extended Stay" to include condominium hotel units.
DESCRIPTION:
PROGRAM IMPACT:
FISCAL IMPACT:
ALTERNATIVES:
Plannmg and Zonin ector City Attorney / Finance / Hmnan Resources
S:\PlanningISHARED\WPISPECPROJ\ ODE REVlEw\CDRV 05-013 Condo Hotels\Agenda Item Request Condominium Hote]s in MU Dist CDRV 05-
013 8-2-05.dot
S:\BULLET1N\FORMS\AGENDA ITEM REQUEST FORM.DOC
1 ORDINANCE NO. 05-
2
3 AN ORDINANCE OF THE CITY OF BOYNTON BEACH,
4 FLORIDA AMENDING LAND DEVELOPMENT
5 REGULATIONS, CHAPTER 2 "ZONING", SECTION 6.F.
6 MIXED USE ZONING DISTRICTS TO ADD "HOTEL,
7 EXTENDED STAY" AS PERMITTED AND
8 CONDITIONAL USES AND AMEND THE DEFINITIONS
9 FOR "HOTEL" AND "HOTEL, EXTENDED STAY";
10 PROVIDING FOR CONFLICTS, SEVERABILITY,
11 CODIFICATION AND AN EFFECTIVE DATE.
12
13 WHEREAS, the Land Development Regulations of the City of Boynton Beach
14 provide for the Mixed Use-High Intensity and Mixed Use-Low Intensity zoning districts; and
15 WHEREAS, both "hotel" and "boutique hotel" are included as allowable uses in the
16 Mixed Use High zoning district; and
17 WHEREAS, definitions for both "hotel" and "boutique hotel", as well as a definition
18 for "hotel, extended stay" are included in the definition section for the Mixed Use District as
19 provided in the City's Land Development Regulations; and
20 WHEREAS, although "hotel, extended stay" is included in the definition section,
21 "hotel, extended stay" is not listed in the Schedule of Permitted, Principal, Accessory and
22 Conditional Uses (Table 6.F.l); and
23 WHEREAS, the City Commission, upon recommendation of staff, and the
24 Community Redevelopment Agency, desires to amend the Land Development Regulations of
25 the City of Boynton Beach to provide amendments regarding the Mixed Use-High Intensity
26 (MU-H) and Mixed Use-Low Intensity (MU-L) zoning categories to provide for the inclusion
27 of "hotel, extended stay" as an authorized use, and to amend the definitions of hotel and hotel,
28 extended stay within the Mixed Use District;
29 WHEREAS, the City Commission finds that the amendments contained in this
30 ordinance are in the best interest of the health safety and welfare of the residents and citizens
31 of the City of Boynton Beach.
32 NO',," THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
33 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
34
Section 1.
The foregoing whereas clause is true and correct and is now ratified and
S:\CA\Ordinanccs\LDR Changes\Amdending LDR - Chapter 2.- 6.F. (Hotel extended stay),doc
confirmed by the City Commission.
Section 2.
Chapter 2. "Zoning", Section 6.F. of the Land Development
2
3 Regulations of the City of Boynton Beach Code of Ordinances is hereby amended by adding
4 the words and figures in underlined type, and by deleting the words and figures in struck-
5 through type, as follows:
6 Chapter 2, Section 6.F. Mixed Use Zoning Districts
7
8 TABLE 6F-l
9 SCHEDULE OF PERMITTED PRINCIPAL, ACCESSORY AND CONDITIONAL USES
10
11
12 16. Definitions. The following are supplement definitions applicable only to the Mixed
13 Use Zoning Districts, and therefore take precedence over definitions in other portions of the Code in
14 case of conflict.
15
16
17 Hotel: A building or portion thereof containing twenty (20) or more guest rooms, efficiency units or
18 suites designed for the temporary lodging of transient guests rented on a daily basis and occupied Qy
19 the same occupant for less than thirty (30) consecutive days. Ancillary facilities may include
20 conference facilities, restaurants, bars, recreation facilities, ballrooms, banquet rooms and meeting
21 rooms. Access to the guest quarters shall be through an inside lobby and corridors or from an exterior
22 court which is within a secured area. The hotel rooms may be under single ownership or may be
23 owned individually, provided all rooms are under single management, which provides for central
24 reservations and maid services, and receipt and disbursement of keys and mail by the attendant at the
25 desk in the lobby or office. No hotel unit shall be converted to or used as a multifamily dwelling
26 without the prior approval of the City Commission and compliance with all applicable land
27 development regulations and the comprehensive plan.
28
29 Hotel, Boutique: A small luxury hotel containing ten (10) to twenty (20) guest rooms. Meal service
30 is usually breakfast only, but in some instances high-quality dinner and/or lunch service and room
31 service may also be provided.
32 Hotel, Extended Stay: Any all-suite hotel that provides visitors with a full kitchen and more than
33 5% of its rooms are occupied for at least thirty (30) days and no more thaFI one htmdred and eighty
34 (180) days. where no room is occupied for more than one hundred and eighty (80) days in a calendar
35 year by the same occupant. The hotel rooms may be under single ownership or may be owned
36 individually, provided all rooms are under single management, which provides for central reservations
37 and maid services, and receipt and disbursement of keys and mail by the attendant at the desk in the
USE GROUPfUSE MU-L ZONE MU-H WNE
Residential or Lodging Use Group
Bed and Breakfast C N
Boutique Hotel N C6
Hotel C p
Hotel Extended Stav C p
Home Occupation p p
S:ICAIOrdinances\LDR ChangeslAmdending LDR - Chapter 2.- 6.F. (Hotel extended stay).doc
1
2
3
4
5
6
7
8
9
10 Section 3. Each and every other provision of the Land Development Regulations
11 not herein specifically amended, shall remain in full force and effect as originally adopted.
12 Section 4. All laws and ordinances applying to the City of Boynton Beach In
13 conflict with any provisions of this ordinance are hereby repealed.
14 Section 5. Should any section or provision of this Ordinance or any portion
15 thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not
16 affect the remainder of this Ordinance.
17 Section 6. Authority is hereby given to codify this Ordinance.
18 Section 7. This Ordinance shall become effective immediately.
19 FIRST READING this _ day of August, 2005.
20 SECOND, FINAL READING AND PASSAGE this _ day of
21 August, 2005.
22 CITY OF BOYNTON BEACH, FLORIDA
23
24
25 Mayor
26
27
28 Vice Mayor
29
30
31 Commissioner
32
33
34 Commissioner
35
36
37 Commissioner
38 ATTEST:
39
40 City Clerk
S:\CA \Ordinances\LDR Changes\Amdending LDR - Chapter 2.- 6.F. (Hotel extended stay).doc
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DMSION
MEMORANDUM NO. PZ 05-092
TO:
FROM
Chairman and Members
Planning and Development Board
Dick Hudson, AICP p(--
Senior Planner
Michael W. Rump;l\ (Xl/
Director of Planning and Zoning
THROUGH:
DATE:
May 27, 2005
SUBJECT:
Condominium Hotels in Mixed Use districts
CDRV 05-013
NATURE OF REOUEST
Staff is proposing an amendment to the Land Development Regulations, Chapter 2, Section 6.F.
Mixed Use Zoning Districts to add "Hotel, Extended Stay" as a permitted use in the Mixed Use-
High Intensity (MU-H) zoning district; as a conditional use in the Mixed Use-Low Intensity (MU-L)
zoning district; and to amend the definitions of "Hotel" and "Hotel, Extended Stay" to include
condominium hotel units.
BACKGROUND
The development regulations for the Mixed Use-High Intensity/Mixed Use-Low Intensity zoning
districts currently list both "Hotel" and "Boutique Hotel" as permitted uses in the MU-H district.
Definitions are provided for both of these uses, as well as a definition for "Hotel, Extended Stay",
although "Hotel, Extended Stay" is not listed in the "Schedule of Permitted, Principal, Accessory
And Conditional Uses" (Table 6.F.l).
Recent pre-application conferences with prospective developers, as well as professional
conferences staff members have attended indicate that condominium hotels are becoming a
major component in the hospitality market in South Ronda and in other vacation markets (see
attached article, Exhibit A). Additionally, one development recently approved in the City has
marketed hotel units as "Condominium Hotel units". Staff foresees additional requests for the
use and therefore is proposing the code review.
ANALYSIS
Due to the difficulty in obtaining conventional financing for hotel projects in recent years, the
"condominium hotel" or "condo hotel" has a become a popular product in the hotel industry. A
condo hotel is essentially a hotel where the individual rooms are owned by separate owners, as
opposed to having the entire block of rooms owned by a single hotel owner/operator. Since the
individual rooms are sold to separate owners, the overall condo hotel project can be financed
more like a residential condominium project, rather than a hotel, which has led to a surge in
their popularity among hotel developers in recent years.
Page 2
CDRV 05-013
Condominium Hotels in Mixed Use Districts
From an operational and appearance standpoint, a condo hotel essentially looks and functions
like any other hotel, with a management company in place to operate the facility and make
provisions for such things as a central reservation system, maid service, maintenance, etc.
Typically, all units are furnished the same for consistency purposes such that a hotel guest
would not be able to tell from outward appearance that the rooms were owned individually.
Since condo hotels are a relatively new concept that are likely to continue to grow in popularity,
many local governments in South Florida are now reviSiting their land development regulations
and making revisions as necessary to address the attributes of such projects and to ensure that
the facilities truly operate as hotels and not residential developments. For example, since the
condo hotel rooms are owned by individual owners who may choose to occupy the hotel room at
some time during the year, local governments are putting maximum length of stay limitations in
their code to ensure that individual owners do not take up permanent residence in the units.
The State of Florida defines "transient lodgings", which includes hotels, as "lodgings rented or
leased to a specific party for a period of up to six months" and permits counties to levy a Tourist
Development Tax (hotel bed tax) on them. Staff opines that limiting an individual's stay to "not
more than 180 days in a calendar year" will provide that assurance.
Since a condo hotel would likely take the form of an "extended stay hotel," City staff is
recommending that the City Commission amend the City's definition of "extended stay hotel" as
described below to address the attributes of the condo hotel and place appropriate limitations
and requirements on such use. In addition, staff is recommending that the City Commission
amend the permitted uses table for the "Mixed Use-High" zoning district to make it clear that
"extended stay hotels", which would be the likely category to accommodate a condo hotel, are
permitted in that district.
The development of condo hotels is likely to be in conjunction with a mixed use project, which
may include residential units; staff needs to also ensure that maximum allowable densities will
not be exceeded. This would only become a problem if, at some future date, there was a
request to convert hotel units to multi-family dwellings.
The code amendments staff is recommending are attached (Exhibit B).
RECOMMENDATION
It is staff's opinion that the proposed amendments to the Mixed Use zoning district regulations
are the minimum necessary to achieve the desired results; therefore staff recommends that the
proposed amendments be carried forward to the Community Redevelopment Agency Board for
their review and comments.
Exhibits
S:\PLANNING\SHARED\WP\SPECPROJ\CODE REVIEW\CDRV 05-013 CONDO HOTELS\STAFF REPORT. DOC
EXHIBIT A
Condo Hotel Trends - A Look at the Big Picture in Vacation
Home Ownership
By Joel Greene
...................................--.....---.......----.-.....-.--.............-.-......-----.----.-.--.........-.........---....-............---.........-.-.-.---....---.--.........-.---...------.-..............
. .
I Condo hotels are one of the hottest products in today's real estate market. New properties are [
I cropping up in different parts of the country and new buyers are entering the market daily. I
i Things have been moving so quickly in terms of condo hotels, but sometimes it's worth taking a i
I moment to step back and look at the big picture. I
Condo Hotels In General: There is a spreading enthusiasm about the condo hotel concept.
More people are recognizing its potential and therefore creating demand for more inventory.
Condo Hotel Buyers: The average buyer is 35-50 years old. Buyers for Florida properties,
where condo hotels are most prevalent, come from all over the U.S. On the international front,
most foreign buyers interested in U.S. property are from South America and Europe.
The vast majority of buyers want condo hotel units primarily as investments and are focused on
the potential for appreciation with the side benefit of hassle-free ownership. They see the ability
to actually use their condo hotel unit as a vacation home as important but secondary to their
goal of investment diversification.
Condo Hotel Market: Virtually every single property that has come on the market to date has
sold out in pre-construction. Most of these properties are mega high-rise buildings with on
average 200-500 units, and with some in excess of 1,000 units.
The speed with which these properties sell out is often as surprising to buyers as it is to the
1 developers themselves. For example, the MGM Grand in Las Vegas, a 576-unit condo hotel, was I
I expected to sell out in two years. It sold out in two months! The Platinum, a 255-unit property in I
Hot Areas: South Florida continues to be an extremely popular area and one that has shown
strong and steady appreciation. As already mentioned, the condo hotel trend which began in
South Florida has now spread out west. Las Vegas is leading the pack with many new condo and
condo hotel developments in all price ranges being built.
I Growth in Florida: Looking at South Florida, it's easy to see what is happening. Miami Beach, !
I the hottest area, is all built up. There just isn't any undeveloped land. That's causing a couple of I
I things to happen. Developers are heading to the northern end of Miami Beach (North Beach) and 1
"..:",i: areas still further north such as to Sunny Isles and Ft. Lauderdale. "".",;:
A new trend is developers buying existing structures in Miami Beach and either upgrading them,
as in the case of The Mimosa which was the former Brazil Motel, or knocking them down and
. starting overt as in the case of One Bal Harbour in which a mUlti-family, high-rise building !
i (Harbour House) was demolished and a five-star condo hotel built In its place. I
! Finally, some properties are beginning to crop up inland. These condo hotels may not have 1
i oceanfront views; however, they're within a few short blocks of a beach. Because they're not on I
U~e o~€l..<!!!t...!Dese prol?ertie.?...!end t.Q...~rice_c;! mo~_ecQ!l2!!l ica.Uy..:.....__............_......_._......._____.____......._.........J
....._...............,.................................._...._.....................................................................................................................................n..............................................................................................................-...........................-........
, .
: ~
Properties: The most popular properties continue to be those with a franchise name, one that
brings a reputation for four- to five-star quality or a name that is already well-known. A prime
example is Canyon Ranch Living in Miami Beach. People recognize the Canyon Ranch name and
feel confident that this property will be of the same five-star caliber as its Arizona counterpart. Of:
course, it doesn't hurt that this property will have a 60,000 sq. ft. rooftop spa and fitness center. I
The Selling Process: A lot of properties take reservations of more than half the total project
long before they've even prepared their purchase contracts. This means that many of the best
units are reserved months before any money changes hands and often before even the first
spade of ground has been turned over. Those early investors are seeing some amazing
appreciation on their investments.
Prices: Like anything for which there is more demand than supply, prices keep going up, up, up. ~
Developers often raise their prices 3-5 times from when they start selling until they sell out. .
Developers are no longer discounting prices at the beginning of the selling process when they are l
anxious to get a few sales under their belt. This used to be common practice; it is no more !
because demand is so great.
There are sometimes, however, some price adjustments made at the very tail end of the sellout
phase when developers want to close out their property and move on to their next project.
Generally speaking, with regard to price, the best time to get in is usually early on in the first
pre-construction offering.
Quality: Most condo hotels being built are of four- to five-star quality. The reason is two-fold: 1) I".'
There is demand for the types of services provided by four- and five-star properties, and 2)
Oceanfront land is so costly that it makes more sense for the developer to put in a luxury
property with units that he can sell at a premium price rather than lower priced units.
Financing: It's getting a little easier to get condo hotel financing. There was a time when most
banks and mortgage companies weren't even familiar with the term condo hotels. They now
know it and also recognize the viability of these properties. They are more accommodating in
expediting these loans.
Contracts: Contracts that allow assignability have become rare. In the past, at some properties
buyers could place a deposit on a unit in the pre-construction phase and then flip their unit prior
to when they had to close. Developers now want to be sure that they don't compete to sell their
last few units with investors who purchased early at pre-construction prices and are now re-
selling them at below the developer's current prices.
Resales: Some condo hotel unit resales come on the market. Of course, this is to be expected.
Some of the earliest buyers now want to move on to something or somewhere else. However,
the resale market is still relatively small, and it's hard to find a bargain.
: Advice to New Buyers: How can buyers choose a condo hotel unit that will be a good
I investment? It's best if they can work with a real estate broker who specializes in condo hotels
! and can make them aware of all products on the market. Aside from that, they should look for .
L..t~..~.!2.ttQ.YYl.~.g.~J~.!!l..~.~.t~.:............................................................................._..............................................._._..._..-...........................................-.......................................................................1
r--Locaiion":-oReaT"esta"te-olsma-j'j'O"abo"u"t"lOcatiO"i1:'-aeachfront"propertioesooTn-S-outh-;=i"orida-havedone-"O--- i
! exceptionally well in recent years. Their appreciation has been significant. If you prefer a I
i property that is not on the ocean, it's a good idea to select one in an area where you can expect !
! to have business driven to your property, such as near a major convention center or in !
I Downtown Miami near the finanoal district. I
~ Franchise: It's always safest to go with a major company, well-known internationally. Four I
1 Seasons, Hilton, Starwood, Rosewood, Setai and Trump are excellent examples. Ask yourself, i
1 would you likely stay in a Holiday Inn for $69 or the independent hotel across the street for $627 i
1 Many investors or hotel guests will pay a little more for the comfort level they get with a well- i
o:::::::::o:!' :n:::e:~:::::::~:n;:::are the management companies and their rental sharing :o::::::.::::i:
program. You will likely feel more comfortable investing your money in a condo hotel with an
experienced, top-notch management company vs. an independent operator. Also, it's worth
noting that an established management company does worldwide marketing and likely has a
i state-of-the-art reservation system that will help ensure your unit Is rented as much as possible. I
L~o!!l.!;J~_~C?_~rf~o~_'}!.ttl2LL EZ!Do~~r:!o!fle~.:ofQ.!BLmo_"'_'_'_'___"O_."m_o_._..__.----~r:!l.<;:1~_0~~"!?!B!!.t~~~_~!!9 ust 9..l..lQ_04....J
EXHIBIT B
Chapter 2, Section 6.F. Mixed Use Zoning Districts
TABLE 6F-l
SCHEDULE OF PERMITTED PRINCIPAL, ACCESSORY AND CONDITIONAL USES
USE GROUPIUSE MU-L ZONE MU-H ZONE
Residential or Lodging Use Group
Bed and Breakfast C N
Boutique Hotel N Co
Hotel C p
Hotel. Extended Stav C p
Home Occupation p p
16. Definitions. The following are supplement defmitions applicable only to the Mixed Use
Zoning Districts, and therefore take precedence over definitions in other portions of the Code in case of
conflict.
Hotel: A building or portion thereof containing twenty (20) or more guest rooms, efficiency units or
suites designed for the temporary lodging of transient guests rented on a daily basis and occupied by the
same occupant for less than thirty (30) consecutive days. Ancillary facilities may include conference
facilities, restaurants, bars, recreation facilities, ballrooms, banquet rooms and meeting rooms. Access to
the guest quarters shall be through an inside lobby and corridors or from an exterior court which is within
a secured area. The hotel rooms may be under single ownership or may be owned individually. provided
all rooms are under single management. which provides for central reservations and maid services. and
receipt and disbursement of keys and mail by the attendant at the desk in the lobby or office. No hotel
unit shall be converted to or used as a multifamily dwelling without the prior approval of the City
Commission and compliance with all applicable land development regulations and the comprehensive
plan.
Hotel, Boutique: A small luxury hotel containing ten (10) to twenty (20) guest rooms. Meal service is
usually breakfast only, but in some instances high-quality dinner and/or lunch service and room service
may also be provided.
Hotel, Extended Stay: Any all-suite hotel that provides visitors with a full kitchen and more than 5% of
its rooms are oeeupied for at least thirty (30) days ane no more than oae lNmaree ane eighty (180) days.
where no room is occupied for more than one hundred and eis.zhty (180) days in a calendar year by the
same occupant. The hotel rooms may be under single ownership or may be owned individually. provided
all rooms are under single management. which provides for central reservations and maid services. and
receipt and disbursement of keys and mail by the attendant at the desk in the lobby or office. Compliance
with the length of stay limitation in this paragraph shall be certified by affidavit of the licensee at the time
of issuance and renewal of the applicable City occupational license. Management shall maintain a guest
register for each twelve ~2) month period following issuance and renewal of the occupational license that
shall be available for ins ection by the City. upOn written request. for a minimum of twelve (12) months
following the close of the prior twelve month period. No extended stay hotel unit shall be converted to or
used as a multifamily dwelling without the prior approval of the City Commission and compliance with
all applicable land development relZUlations and the comprehensive plan.
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Chair Heavilin opened the floor for the public, and closed it when no one wished to speak.
Motion
Ms. Horenburger moved approval of NWSP 05-022, Neelam Business Center, request for Site Plan
approval for a three (3) story, 8,754 square foot office/retail building in a Mixed Use Low (MU-L)
zoning district. Vice Chair Tillman seconded the motion that passed 5-0.
THE MEETING RECESSED FROM 8:06 P.M. TO 8:12 P.M.
D. Condominium Hotels in Mixed Use Districts
Code Review
1.
Project:
Condominium Hotels in Mixed Use Districts
(CDRV 05-013)
Staff-initiated
Mixed-Use High Intensity (MU-H) and Mixed Use
Low Intensity zoning districts
Request to amend the Land Development
Regulations, Chapter 2, Section 6.F Mixed Use
Zoning Districts to add "Hotel, Extended Stay" as a
permitted use in the Mixed Use-High Intensity (MU-
H) zoning district; as a conditional use in the Mixed
Use-Low Intensity (MU-L) zoning district; and to
amend the definitions of "Hotel" and "Hotel,
Extended Stay" to include condominium hotel units.
Agent:
Location:
Description:
Dick Hudson, Senior Planner, reviewed this request, stating that the "condo hotel" had become a
popular product in the hotel industry since the project could be financed more like a residential
condominium project. Many local governments are revisiting their LDRs and making revisions to
address this type of project and insure that the facilities truly operate as hotels and not residential
developments. An owner would be limited to a six-month stay per year to assure that individuals do
not take up permanent residence in the units. The condo hotels would probably take the form of an
"extended stay hotel," so City staff is recommending that the City Commission amend the permitted
uses table for the "Mixed Use-High" zoning district to make it clear that "extended stay hotels,"
which would be the likely category to accommodate a condo hotel, are permitted in that district.
Staff recommended approval of this item.
Ms. Horenburger inquired whether the County's Bed Tax would come into play for stays shorter than
six months. Mr. Hudson responded that it would be subject to the Bed Tax because it would be
considered transient lodging.
Ms. Horenburger asked the difference between the condo hotel and the condo with mostly seasonal
residents. Mr. Hudson said that a condo was considered a residence and the residential parking
regulations would apply. A hotel was considered a commercial use. The parking requirements for
condos and hotel condos were very similar (one bedroom condos call for 1.33 per unit and hotel
condos call for 1.25 per unit).
Mr. DeMarco asked if the condo laws would apply to the hotel condos. Mr. Hudson believed it did.
Mr. DeMarco suggested the City contact someone who could give an authoritative answer on this.
12
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Ms. Horenburger declared the law only applies to the type of sale. Chair Heavilin's understanding
from the project that was already taking reservations for their condo hotel units is they would be
under the Condominium Declarations statute.
Chair Heavilin opened the floor to the public, and closed it when no one came forward.
Chair Heavilin commented there was a growing trend across the country for condo hotel units.
Motion
Vice Chair Tillman moved to approve CDRV 05-013, request to amend the Land Development
Regulations, Chapter 2, Section 6.F Mixed Use Zoning Districts to add "Hotel, Extended Stay" as a
permitted use in the Mixed Use-High Intensity (MU-H) zoning district; as a conditional use in the
Mixed Use-Low Intensity (MU-L) zoning district; and to amend the definitions of "Hotel" and "Hotel,
Extended Stay" to include condominium hotel units. Mr. DeMarco seconded the motion that passed
5-0.
VII. Pulled Consent Agenda Items
A. Approval of Minutes from June 9. 2005 Meetinq
Attorney Spillias stated that on page 19 under Future Agenda Items, in the second paragraph, sixth
line, "he had been the attorney for" should be replaced with "his firm had represented."
Also, on page 20 in the second paragraph, it should properly read: "In the middle of public hearing,
staff or the applicant should not be called to answer questions, Attorney Spillias said, so anyone
from the public does not raise the question of his or her time being taken up with questions."
On the last page, the last motion should read that it passed 5-0, because Ms. Horenburger left
before the motion. Also, the fact that she left should be placed before the motion.
Motion
Ms. Horenburger moved to approve the minutes of the June 9, 2005 meeting as amended. Vice
Chair Tillman seconded the motion that passed 5-0.
D. Consideration of Prooertv Exchange Agreement Between St. Paul AME Church and the CRA
Attorney Spillias commented that on page one of the lease agreement, paragraph 1. TERM, the
ending date should be 2006 instead of 2005.
Motion
Vice Chair Tillman moved approval of Consent Agenda Item D. as amended. Mr. DeMarco seconded
the motion that passed 5-0.
J. Facade Grant Reimbursement - Bovnton/Delrav Academy - $15.000.00
Vice Chair Tillman was concerned the building on which a Fa93de Grant was requested was in limbo
as to whether it would be an educational institution or not. He was not comfortable with issuing a
grant to an entity if the use/name changed. The School District had not made a decision about this
yet.
13
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VIII.-PUBLIC HEARING
ITEM B.
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
[2] August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon)
0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 October 3,2005 (Noon)
0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17,2005 (Noon)
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 October 31, 2005 (Noon)
-~-:;
0 Administrative 0 Development Plans
NATURE OF 0 Consent Agenda 0 New Business
AGENDA ITEM [2] Public Hearing [2] Legal
0 Bids 0 Unfmished Business
0 Announcement 0 Presentation
0 City Manager's Report
....) --i
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RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Public Hearing
and Legal, Ordinance - First Reading. The Community Redevelopment Agency Board recommended that the subject request
be approved on July 12,2005. For further details pertaining to the request, see attached Department of Development
Memorandum No. PZ 05-115.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
Heritage Club at Boynton Beach (LUAR OS-OOS)
Michael Weiner, Esquire, Weiner & Aronson, P.A.
Thirty Six Hundred Holdings, LLC
Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard
Request to amend the Comprehensive Plan Future Land Use Map from Local Retail
Commercial to Special High Density Residential; and
Request to rezone from C-3 Community Commercial to PUD Planned Unit Development.
Proposed Use: Mixed use development containing 19,500 sq. ft. of commercial
development (office, retail, restaurant) and 166 multi-family residential units.
PROGRAM IMPACT:
FISCAL IMPACT:
ALTERNATIVES:
Developm ent Director
lc)~
Planning and g DIrector CIty Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\PROJECTSlHeritage Club @ Boynton Beach\LUAR 05-005\Agenda Item Request Heritage Club @ BB LUAR 05-005 8-2-
05.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
1 ORDINANCE NO. 05-
2
3 AN ORDINANCE OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, AMENDING ORDINANCE
5 89-38 BY AMENDING THE FUTURE LAND USE
6 ELEMENT OF THE COMPREHENSIVE PLAN
7 FOR A PARCEL OWNED BY THIRTY SIX
8 HUNDRED HOLDINGS, LLC, AND LOCATED
9 ON THE NORTHWEST CORNER OF THE
10 INTERSECTION OF FEDERAL HIGHWAY AND
11 GULFSTREAM BOULEVARD; CHANGING THE
12 LAND USE DESIGNATION FROM LOCAL
13 RET AlL COMMERCIAL (LRC) TO SPECIAL
14 HIGH DENSITY RESIDENTIAL (SHDR);
15 PROVIDING FOR CONFLICTS, SEVERABILITY,
16 AND AN EFFECTIVE DATE.
17
18 WHEREAS, the City Commission ofthe City of Boynton Beach, Florida has
19 adopted a Comprehensive Future Land Use Plan and as part of said Plan a Future Land
20 Use Element pursuant to Ordinance No. 89-38 and in accordance with the Local
21 Government Comprehensive Planning Act; and
22 WHEREAS, the procedure for amendment of a Future Land Use Element of a
23 Comprehensive Plan as set forth in Chapter 163, Florida Statutes, has been followed;
24 and
25 WHEREAS, after two (2) public hearings the City Commission acting in its
26 dual capacity as Local Planning Agency and City Commission finds that the
27 amendment hereinafter set forth is consistent with the City's adopted Comprehensive
28 Plan and deems it in the best interest of the inhabitants of said City to amend the
29 aforesaid Element of the Comprehensive Plan as provided.
30 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
31 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
S:\CA\Ordinances\planning\Land Use\Heritage Club.doc
1
Section l: The foregoing WHEREAS clauses are true and correct and
2 incorporated herein by this reference.
Section 2:
Ordinance No. 89-38 of the City is hereby amended to reflect the
3
4 following:
5 That the Future Land Use of the following described land located on the
6 Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard in
7 Boynton Beach, Florida shall be changed from Local Retail Commercial (LRC) and
8 shall now be designated as Special High Density Residential (SHDR):
9 See legal description attached hereto.
10
11
12 Subject to easements, restrictions, reservation and rights of way of record.
13
14
15 Section 3: That any maps adopted in accordance with the Future Land Use Element
16 ofthe Future Land Use Plan shall be amended accordingly.
17 Section 4: All ordinances or parts of ordinances in conflict herewith are hereby
18 repealed.
19 Section 5: Should any section or provision of this Ordinance or any portion thereof
20 be declared by a court of competent jurisdiction to be invalid, such decision shall not affect
21 the remainder of this Ordinance.
22 Section 6: This Ordinance shall take effect on adoption, subject to the review,
23 challenge, or appeal provisions provided by the Florida Local Government Comprehensive
24 Planning and Land Development Regulation Act. No party shall be vested of any right by
25 virtue of the adoption of this Ordinance until all statutory required review is complete and
26 all legal challenges, including appeals, are exhausted. In the event that the effective date is
S:\CA\Ordinances\Planning\Land Use\Heritage Club.doc
1 established by state law or special act, the provisions of state act shall control.
2
FIRST READING this _ day of
,2005.
3 SECOND, FINAL READING and PASSAGE this ___ day of
4 2005.
5 CITY OF BOYNTON BEACH, FLORIDA
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21 ATTEST:
22
23
24 City Clerk
25
26 (Corporate Seal)
27
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
S:\CA\Ordinances\Planning\Land Use\Heritage club.doc
LEGAL DESCRIPTION
THAT CERTAIN PLACE, PARCEL OR TRACT OF LAND SITUATE, LYING AND BEING IN
THE CITY OF BOYNTON BEACH, COUNTY OF PALM BEACH AND STATE OF FLORIDA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
LAND IN SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY,
FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
THAT PART OF THE SOUTH HALF(SI/2) OF THE SOUTHWEST QUARTER (SW1I4) OF THE
NORTHEAST QUARTER (NE1I4) OF SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST,
PALM BEACH COUNTY, FLORIDA,LYING EAST OF THE EAST RIGHT-OF-WAY LINE OF
OLD DIXIE HIGHWAY, AS NOW LAID OUT AND IN USE, WEST OF THE WEST RIGHT-OF-
WAY LINE OF STATE ROAD 5 (US NO.1), AS DESCRIBED IN OFFICIAL RECORDS BOOK
160, PAGE 581, AND NORTH OF THE RIGHT-OF- WAY OF GULFSTREAM BOULEV ARD,AS
DESCRIBED IN OFFICIAL RECORDS BOOK 944, PAGE 117, LESS THE FOLLOWING
DESCRIBED TRACTS:
TRACT A:
COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF THE
FLORIDA EAST COAST RAIL WAY WITH THE EAST-WEST QUARTER SECTION LINE OF
SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA;
THENCE NORTHERLY ALONG SAID EASTERLY RIGHT-OF- WAY LINE, A DISTANCE OF
370.00 FEET; THENCE EASTERLY AT RIGHT ANGLES WITH THE SAID EASTERLY RIGHT-
OF- WAY LINE, A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING; THENCE
CONTINUE EASTERL Y ALONG THE SAME COURSE, A DISTANCE OF 60.00 FEET;
THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE, A
DISTANCE OF 30.00 FEET;THENCE WESTERLY AT RIGHT ANGLES TO THE LAST
DESCRIBED COURSE, A DISTANCE OF 60.00 FEET; THENCE SOUTHERLY AT RIGHT
ANGLES TO THE LAST DESCRIBED COURSE,A DISTANCE OF 30.00 FEET TO THE POINT
OF BEGINNING.
TRACTB
COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF THE
FLORIDA EAST COAST RAIL WAY WITH THE EAST-WEST QUARTER SECTION LINE OF
SECTION 4,TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA;
THENCE EASTERLY ALONG SAID EAST-WEST QUARTER SECTION LINE, A DISTANCE
OF 80.90 FEET; THENCE NORTHERLY PARALLEL WITH THE SAID EASTERLY RIGHT-OF-
WAY LINE OF THE FLORIDA EAST COAST RAIL WAY, A DISTANCE OF 62.67 FEET TO AN
INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY LINE, OF GULF STREAM
BOULEVARD, THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF- WAY LINE,A
T)IST ANCE OF 12.00 FEET TO THE POINT OF BEGINNING, THENCE CONTINUE EASTERLY
.LONG THE NORTHERLY RIGHT-OF-WAY LINE OF GULFSTREAM BOULEVARD, A
DIST ANCE OF 40.0 FEET; THENCE NORTHERLY AT RIGHT ANGLES, A DISTANCE OF 40.0
FEET,THENCE WESTERLY AT RIGHT ANGLES, A DISTANCE OF 40.0 FEET, THENCE
SOUTHERLY AT RIGHT ANGLES, A DISTANCE OF 40.00 FEET TO THE POINT OF
BEGINNING.
TRACT C:
COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF
THE FLORIDA EAST COAST RAIL WAY WITH THE EAST -WEST QUARTER SECTION LINE
OF SECTION 4,TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA;
THENCE EASTERLY ALONG SAID EAST-WEST QUARTER SECTION LINE, A DISTANCE
OF 80.90 FEET; THENCE NORTHERLY PARALLEL WITH THE SAID EASTERLY RIGHT-OF-
WAY OF THE FLORIDA EAST COAST RAILWAY, A DISTANCE OF 62.67 FEET TO AN
INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY LINE, OF GULFSTREAM
BOULEVARD, THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, A
DISTANCE OF 70.55 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO
THE SOUTH HAVING A RADIUS OF 1950.08 FEET AND A CENTRAL ANGLE OF 5
DEGREES 59 MINUTES 38 SECONDS; THENCE EASTERLY ALONG THE ARC OF SAID
CURVE, A DISTANCE OF 204 FEET; THENCE CONTINUE EASTERLY ALONG SAID RIGHT-
OF- WAY LINE, TANGENT TO SAID CURVE,A DISTANCE OF 68.82 FEET TO THE POINT OF
BEGINNING OF THE PARCEL TO BE HEREIN DESCRIBED; THENCE CONTINUE
EASTERLY ALONG THE SAME COURSE, A DISTANCE OF 217.96 FEET TO THE POINT OF
CURV ATURE OF A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 20
FEET AND A CENTRAL ANGLE OF 72 DEGREES 27 MINUTES 50 SECONDS; THENCE
EASTERLY AND NORTHERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 25.29
FEET TO A POINT IN THE WESTERLY RIGHT-OF-WAY LINE OF U.S. HIGHWAY NO.1 (S.R.
NO.5); THENCE NORTHERLY ALONG SAID RlGHT-OF-WAY LINE TANGENT TO SAID
CURVE, A DISTANCE OF 180.03 FEET; THENCE WESTERLY MAKING AN ANGLE WITH
THE PRECEDING COURSE OF 107 DEGREES 33 MINUTES 34 SECONDS, MEASURED FROM
NORTH TO WEST, A DISTANCE OF 263.45 FEET; THENCE SOUTHERLY MAKING AN
ANGLE WITH THE THE PRECEDING COURSE OF 98 DEGREES 33 MINUTES 12 SECONDS
MEASURED FROM EAST TO SOUTH, A DISTANCE OF 187.60 FEET TO THE POINT OF
BEGINNING AFOREDESCRIBED.
TRACT D:
THAT PORTION OF THE SOUTH ONE HALF(SI/2) OF THE SOUTHWEST ONE QUARTER
(SWl/4) OF THE NORTHEAST ONE QUARTER (NEl/4) OF SECTION 4, TOWNSHIP 46
SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, LYING WEST OF THE
WESTERLY RlGHT-OF-WA Y LINE OF STATE ROAD NO.5 ( U.S. HIGHWAY NO.1) AS
DESCRIBED IN OFFICIAL RECORDS BOOK 160,PAGE 581, OF THE PUBLIC RECORDS OF
PALM BEACH COUNTY, LYING EAST OF A LINE PARALLEL TO SAID RlGHT-OF-WAY
LINE AND FORTY FEET WEST THEREOF AND LYING NORTH OF A LINE NINETEEN (19)
FEET SOUTH OF AND PARALLEL TO THE NORTH BOUNDARY OF SAID SOUTH ONE
HALF (S1/2) OF THE SOUTHWEST ONE QUARTER (SWl/4) OF THE NORTHEAST ONE
QUARTER (NEl/4) OF SAID SECTION 4.
1 ORDINANCE NO. 05-
2
3 AN ORDINANCE OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, REGARDING THE
5 APPLICATION OF NEW CENTURY COMPANIES,
6 LLC AND THIRTY SIX HUNDRED HOLDINGS,
7 LLC, AMENDING ORDINANCE 02-013 TO REZONE
8 A PARCEL OF LAND LOCA TED ON THE
9 NORTHWEST CORNER OF THE INTERSECTION
10 OF FEDERAL HIGHWAY AND GULFSTREAM
11 BOULEVARD, BOYNTON BEACH, FLORIDA, AS
12 MORE FULLY DESCRIBED HEREIN, FROM
13 COMMUNITY COMMERCIAL (C-3) TO PLANNED
14 UNIT DEVELOPMENT (PUD); PROVIDING FOR
15 CONFLICTS, SEVERABILITY, AND AN
16 EFFECTIVE DATE.
17
18 WHEREAS, the City Commission of the City of Boynton Beach, Florida has adopted
19 Ordinance No. 02-013, in which a Revised Zoning Map was adopted for said City; and
20 WHEREAS, Thirty Six Hundred Holdings, LLC, owner of the property located on the
21 Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard in
22 Boynton Beach, Florida, as more particularly described herein, has filed a Petition, through its
23 agent Weiner & Aronson, P.A., pursuant to Section 9 of Appendix A-Zoning, of the Code of
24 Ordinances, City of Boynton Beach, Florida, for the purpose of rezoning a parcel of land, said
25 land being more particularly described hereinafter, from Community Commercial (C-3) to
26 Planned Unit Development (PUD); and
27 WHEREAS, the City Commission conducted a public hearing and heard testimony
28 and received evidence which the Commission finds supports a rezoning for the property
29 hereinafter described; and
30 WHEREAS, the City Commission finds that the proposed rezoning is consistent with
31 an amendment to the Land Use which was contemporaneously considered and approved at the
S:\CA \Ordinances\Planning\Rezoning\Rezoning - Heritage Club.doc
1 public hearing heretofore referenced; and
2 WHEREAS, the City Commission deems it in the best interests of the inhabitants of
3 said City to amend the aforesaid Revised Zoning Map as hereinafter set forth.
4 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
5 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
6
Section 1.
The foregoing Whereas clauses are true and correct and incorporated
7 herein by this reference.
8
Section 2.
The following described land, Northwest comer of the intersection of
9 Federal Highway and Gulfstream Boulevard in the City of Boynton Beach, Florida, as set forth
10 as fol1ows:
11 See legal description attached hereto.
12
13
14 be and the same is hereby rezoned from Community Commercial (C-3) to Planned Unit
15 Development (PUD). A location map is attached hereto as Exhibit "A" and made a part of this
16 Ordinance by reference.
17
Section 3. That the aforesaid Revised Zoning Map of the City sha1l be amended
18 accordingly.
19
Section 4. All ordinances or parts of ordinances In conflict herewith are hereby
20 repealed.
21 Section 5. Should any section or provision of this Ordinance or any portion thereof be
22 declared by a court of competent jurisdiction to be invalid, such decision shall not affect the
23 remainder of this Ordinance.
24 Section 6. This ordinance shall become effective immediately upon passage.
S:\CA \Ordinances\PJanning\Rezoning\Rezoning - Heritage Club.doc
1
FIRST READING this _ day of
,2005.
2
SECOND, FINAL READING and PASSAGE this _ day of
,2005.
3
4
5
6
7
8
9
10
11
12
13
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18 ATTEST:
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21 City Clerk
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23 (Corporate Seal)
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
S:\CA \OrdinanceslPlanning\Rezoning\Rezoning - Heritage Club. doc
LEGAL DESCRIPTION
THAT CERTAIN PLACE, PARCEL OR TRACT OF LAND SITUATE, LYING AND BEING IN
THE CITY OF BOYNTON BEACH, COUNTY OF PALM BEACH AND STATE OF FLORIDA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
LAND IN SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY,
FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
THAT PART OF THE SOUTH HALF(S1I2) OF THE SOUTHWEST QUARTER (SW1/4) OF THE
NORTHEAST QUARTER (NE1/4) OF SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST,
PALM BEACH COUNTY, FLORIDA,L YING EAST OF THE EAST RIGHT -OF- WAY LINE OF
OLD DIXIE HIGHWAY, AS NOW LAID OUT AND IN USE, WEST OF THE WEST RIGHT-OF-
WAY LINE OF STATE ROAD 5 (US NO.1), AS DESCRIBED IN OFFICIAL RECORDS BOOK
160, PAGE 581, AND NORTH OF THE RIGHT-OF-WAY OF GULF STREAM BOULEVARD,AS
DESCRIBED IN OFFICIAL RECORDS BOOK 944, PAGE 117, LESS THE FOLLOWING
DESCRIBED TRACTS:
TRACT A:
COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT -OF - WAY LINE OF THE
FLORIDA EAST COAST RAILWAY WITH THE EAST-WEST QUARTER SECTION LINE OF
SECTION 4, TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA;
THENCE NORTHERL Y ALONG SAID EASTERLY RIGHT -OF- WAY LINE, A DISTANCE OF
370.00 FEET; THENCE EASTERLY AT RIGHT ANGLES WITH THE SAID EASTERLY RlGHT-
OF-WAY LINE, A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING; THENCE
CONTINUE EASTERLY ALONG THE SAME COURSE, A DISTANCE OF 60.00 FEET;
THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE, A
DISTANCE OF 30.00 FEET;THENCE WESTERLY AT RIGHT ANGLES TO THE LAST
DESCRIBED COURSE, A DISTANCE OF 60.00 FEET; THENCE SOUTHERLY AT RIGHT
ANGLES TO THE LAST DESCRIBED COURSE,A DISTANCE OF 30.00 FEET TO THE POINT
OF BEGINNING.
TRACT B
COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF- WAY LINE OF THE
FLORIDA EAST COAST RAILWAY WITH THE EAST-WEST QUARTER SECTION LINE OF
SECTION 4,TOWNSHIP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA;
THENCE EASTERLY ALONG SAID EAST-WEST QUARTER SECTION LINE, A DISTANCE
OF 80.90 FEET; THENCE NORTHERLY PARALLEL WITH THE SAID EASTERLY RIGHT-OF-
WAY LINE OF THE FLORIDA EAST COAST RAILWAY, A DISTANCE OF 62.67 FEET TO AN
INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY LINE, OF GULFSTREAM
BOULEVARD, THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE,A
DISTANCE OF 12.00 FEET TO THE POINT OF BEGINNING, THENCE CONTINUE EASTERLY
ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF GULF STREAM BOULEVARD, A
DISTANCE OF 40.0 FEET; THENCE NORTHERLY AT RIGHT ANGLES, A DISTANCE OF 40.0
FEET,THENCE WESTERLY AT RIGHT ANGLES, A DISTANCE OF 40.0 FEET, THENCE
SOUTHERLY AT RIGHT ANGLES, A DISTANCE OF 40.00 FEET TO THE POINT OF
BEGINNING.
TRACT C:
COMMENCING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF
THE FLORIDA EAST COAST RAILWAY WITH THE EAST-WEST QUARTER SECTION LINE
OF SECTION 4,TOWNSHlP 46 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA;
THENCE EASTERLY ALONG SAID EAST-WEST QUARTER SECTION LINE, A DISTANCE
OF 80.90 FEET; THENCE NORTHERL Y PARALLEL WITH THE SAID EASTERLY RIGHT-OF-
WAY OF THE FLORIDA EAST COAST RAIL WAY, A DISTANCE OF 62.67 FEET TO AN
INTERSECTION WITH THE NORTHERLY RIGHT -OF- WAY LINE, OF GULFSTREAM
BOULEVARD, THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, A
DISTANCE OF 70.55 FEET TO THE POINT OF CURVATURE OF A CURVE CONCA VE TO
THE SOUTH HA VING A RADIUS OF 1950.08 FEET AND A CENTRAL ANGLE OF 5
DEGREES 59 MINUTES 38 SECONDS; THENCE EASTERLY ALONG THE ARC OF SAID
CURVE, A DISTANCE OF 204 FEET; THENCE CONTINUE EASTERLY ALONG SAID RIGHT-
OF- WAY LINE, TANGENT TO SAID CURVE,A DISTANCE OF 68.82 FEET TO THE POINT OF
BEGINNING OF THE PARCEL TO BE HEREIN DESCRIBED; THENCE CONTINUE
EASTERLY ALONG THE SAME COURSE, A DISTANCE OF 217.96 FEET TO THE POINT OF
CURVATURE OF A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 20
FEET AND A CENTRAL ANGLE OF 72 DEGREES 27 MINUTES 50 SECONDS; THENCE
EASTERLY AND NORTHERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 25.29
FEET TO A POINT IN THE WESTERLY RIGHT -OF- WAY LINE OF U.S. HIGHWAY NO.1 (S.R.
NO.5); THENCE NORTHERLY ALONG SAID RIGHT-OF-WAY LINE TANGENT TO SAID
CURVE, A DISTANCE OF 180.03 FEET; THENCE WESTERLY MAKING AN ANGLE WITH
THE PRECEDING COURSE OF 107 DEGREES 33 MINUTES 34 SECONDS, MEASURED FROM
NORTH TO WEST, A DISTANCE OF 263.45 FEET; THENCE SOUTHERLY MAKING AN
ANGLE WITH THE THE PRECEDING COURSE OF 98 DEGREES 33 MINUTES 12 SECONDS
MEASURED FROM EAST TO SOUTH, A DISTANCE OF 187.60 FEET TO THE POINT OF
BEGINNING AFOREDESCRIBED.
TRACT D:
THAT PORTION OF THE SOUTH ONE HALF(Sl/2) OF THE SOUTHWEST ONE QUARTER
(SW1/4) OF THE NORTHEAST ONE QUARTER (NEl/4) OF SECTION 4, TOWNSHlP 46
SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA, LYING WEST OF THE
WESTERLY RIGHT-OF-WAY LINE OF STATE ROAD NO.5 (U.S. HIGHWAY NO.1) AS
DESCRIBED IN OFFICIAL RECORDS BOOK 160'p AGE 581, OF THE PUBLIC RECORDS OF
PALM BEACH COUNTY, LYING EAST OF A LINE PARALLEL TO SAID RIGHT-OF-WAY
LINE AND FORTY FEET WEST THEREOF AND LYING NORTH OF A LINE NINETEEN (19)
FEET SOUTH OF AND PARALLEL TO THE NORTH BOUNDARY OF SAID SOUTH ONE
HALF (S1I2) OF THE SOUTHWEST ONE QUARTER (SW1/4) OF THE NORTHEAST ONE
1UARTER (NE1I4) OF SAID SECTION 4.
TO:
FROM:
THROUGH:
DATE:
PROJECT NAME/NUMBER:
REQUEST:
DEVELOPMENT DEPARTMENT
PLANNING & ZONING DIVISION
MEMORANDUM NO. PZ 05-115
Chair and Members
Community Redevelopment Agency Board and
Mayor and City CO~s~
Dick Hudson, AICPIJf
Senior Planner
Michael W. Rum~~
Director of Planning and Zoning
June 27, 2005
Heritage Club @ Boynton Beach
LUAR 05-005
Amend the Future Land Use designation from Local Retail
Commercial to Special High Density Residential and rezone the
property from C-3 Community Commercial to PUD Planned Unit
Development
Property Owner:
Applicant! Agent:
Location:
Parcel Size:
Existing Land Use:
Existing Zoning:
Proposed Land Use:
Proposed Zoning:
Proposed Use:
PROJECT DESCRIPTION
Thirty Six Hundred Holdings, LLC
New Century Companies, LLC and Thirty Six Hundred Holdings,
LLC / Weiner & Aronson, P .A.
Northwest corner of the intersection of Federal Highway and
Gulfstream Boulevard (Exhibit "A")
:t8.302 acres
Local Retail Commercial
C-3 Community Commercial
Special High Density Residential
PUD Planned Unit Development
Mixed use project containing 19,538 sq. ft. of commercial (office,
retail and restaurant) and 166 multi-family residential units
Page 2
File Number: LUAR 05-005
Heritage Club @ Boynton Beach
Adjacent Uses:
North:
Developed property (self-service storage) designated Local Retail
Commercial and zoned C-3 Community Commercial
South:
Developed outparcel (adult entertainment) designated Local Retail
Commercial and zoned C-3 Community Commercial, then the
right-of-way of Gu/fstream Boulevard, then developed commercial
(fast-food and office building) designated Local Retail Commercial
and zoned C-3 Community Commercial
East:
Right-of-way of Federal Highway then undeveloped property in
the Town of Gu/fstream designated Recreation and zoned OR
Outdoor Recreation
West:
Rights-of-way of Old Dixie Highway and the Florida East Coast
Railroad, then vacant property in Palm Beach County designated
MR-5 (5 dujac) and zoned RS-Single-family Residential
EXECUTIVE SUMMARY
Staff recommends approval of the requested land use amendment and rezoning for the
following reasons:
1. The proposed land use amendment and rezoning are consistent with applicable
Comprehensive Plan policies; as well as meeting the review criteria, required by the
Land Development Regulations for land use amendments and rezonings;
2. The project will replace an antiquated and declining strip commercial center with a
mixed-use project that will be both an aesthetic and fiscal improvement at the City's
southern "gateway";
3. The project's location on Federal Highway supports the "Eastward Ho" initiative, which
emphasizes redevelopment of the coastal areas where infrastructure is in place, as
opposed to encouraging development in patterns of sprawl to the west; and,
4. The project proposes a sizeable number of residential units in a variety of sizes and
styles, with a commercial portion designed to provide a year-round customer and
employment base, which supports the revitalization of the downtown.
PROJECT ANALYSIS
The parcels, which are the subject of this land use amendment, total :t8.302 acres. Because of
the size of the property under consideration, the Florida Department of Community Affairs
classifies this amendment as a "small scale" amendment. A "small-scale" amendment is
adopted prior to forwarding to the Rorida Department of Community Affairs and is not reviewed
for compliance with the state, regional and local comprehensive plans prior to adoption.
Page 3
File Number: LUAR 05-005
Heritage Club @ Boynton Beach
MASTER PLAN/SITE PLAN
PUD regulations require the concurrent approval of a project master plan with the rezoning. In
this case, the Site Plan is to serve as the master plan. The Site plan will be discussed in detail
during the Site Plan approval process; however, a brief overview is presented here.
The proposed site plan divides the property into two distinct areas, both in function and in
architectural design. The commercial uses are placed on the ground floors of two four-story
structures along the Federal Highway frontage and include 9,494 square feet of retail space,
6,544 square feet of office space and a restaurant containing 3,500 square feet of space.
Condominium residential uses occupy the upper floors. To the west of the mixed use building
on the north is a residential building, also containing 4 stories. This building and the mixed use
building fronting on Federal Highway contain a total of 84 residential units. The south mixed
use building has 12 residential units on the upper floors. A five-unit townhouse structure, three
stories in height, is west of the south mixed use building. The two mixed use structures are
separated by a "main street" that forms an entry into the property from Federal Highway and
connects with the townhouse uses on the western portion of the site. The north buildings
enclose a 4-level parking structure, two outdoor recreation areas and a one-story
clubhouse/activity area. The south commercial building and the adjacent townhouses enclose a
2-level parking structure. Broad sidewalks and landscaped plazas along Federal Highway create
pedestrian-friendly areas.
West of the mixed-use structures, 65 three-story, fee-simple townhouses are proposed, with 10
fronting on Gulfstream Boulevard and 17 fronting on Old Dixie Highway. The remaining 38
units are internal to the project. A swimming pool and clubhouse are provided for use by the
townhouse occupants. In addition to the access to the townhouse area provided from the
"main street", a secondary access is provided on Gulfstream Boulevard and a one-way service
road is provided from Federal Highway to Old Dixie Highway at the north of the property.
The mixed use buildings and their adjacent residential structures are designed in a "post-
modern" architectural style, while the townhouses are "traditional" in design. In using different
architectural styles, the developers have created two distinct areas for the development, with
the more vibrant and urbane mixed use portion along Federal Highway and a quieter residential
portion along Gulfstream Boulevard and Old Dixie Highway.
Consistent with the requirements of staff, the applicant has provided an additional 20 feet of
right-of-way along Old Dixie Highway and will be providing off-site improvements along Old
Dixie Highway and Gulfstream Boulevard, which include on-street parking, drainage
improvements and sidewalks. Sidewalks fronting the mixed use portion along Federal Highway
will be widened to form pedestrian-friendly plazas.
REVIEW
The criteria used to review Comprehensive Plan amendments and rezonings are listed in the
Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C.
Comprehensive Plan Amendments: Rezonings. These criteria are required to be part of a staff
analysis when the proposed change includes an amendment to the Comprehensive Plan Future
Land Use Map.
Page 4
File Number: lUAR 05-005
Heritage Club @ Boynton Beach
a. Whether the proposed rezoning would be consistent with applicable comprehensive
plan policies including but not limited to, a prohibition against any increase in
dwelling unit density exceeding 50 in the hurricane evacuation zone without written
approval of the Palm Beach County Emergency Planning Division and the City's risk
manager. n?e planning department shall also recommend limitations or
requirements, which would have to be imposed on subsequent development of the
property, in order to comply with policies contained in the comprehensive plan.
The property is not located within the hurricane evacuation zone, therefore review and approval
by the Palm Beach County Emergency Planning Division is not required. Other policies and
directions contained in the City's Comprehensive Plan and other pertinent plans are discussed
below.
Objective 1.15 of the Future land Use Element states:
"n?e City shall encourage planned development projects which are sensitive to
characteristics of the site and to surrounding land uses, and mixed-use projects in
locations which are appropriate, and utilize other innovative methods of regulating land
development"
While the attendant policies have not been updated to fully address some of the more recent
and innovative additions to the land Development Regulations, the intent of this objective is
clear.
Policy 1.13.4 affirms the City's determination to discourage urban sprawl and to encourage
mixed use projects. Section "B" of that policy states:
''Demonstrate, in all future development and redevelopment in the City, land use
patterns that are non-strip in nature and demonstrate the ability to attract and
encourage a functional mix of uses. "
The proposed project is located in Planning Area V, as defined in the "Federal Highway Corridor
Community Redevelopment Plan", and the requested land use amendment is for the Special
High Density Residential designation. Policy 1.16.1 of the land Use Element reads, in part:
"Special High Density Residential: This land use category shall consist of
redevelopment and infill residential areas assigned to this land use category
in the portion of the designated Community Redevelopment Area identified
as Planning Area I and Planning Area V in the "Federal Highway Corridor
Community Redevelopment Plan'; adopted on May 15, 2001.
The uses allowed in this land use category shall be limited to, but shall not
necessarily include, the following:
Residential uses with a gross density of not more than 20.0 dwelling units
per acre. .. Office and retail commercial uses may be considered if clearly
accessory and subordinate to residential uses, occupying not more than ten
Page 5
File Number: LUAR 05-005
Heritage Club @ Boynton Beach
percent of the area of a planned unit development. A Floor Area Ratio
(FAR) up to 0.20 may be considered for non-residential uses. "
The proposed project is consistent with the cited definition. Additionally, the project will replace
an antiquated and declining strip commercial center with a mixed-use project that will be both
an aesthetic and fiscal improvement at the City's southern "gateway".
b. Whether the proposed rezoning would be contrary to the established land use
pattern, or would create an isolated district unrelated to adjacent and nearby
districts, or would constitute a grant of special privilege to an individual property
owner as contrasted with the protection of the public welfare.
The proposed rezoning would not create an isolated district, but would relate to the adjacent
commercially designated lands to the south of Gateway Boulevard along Federal Highway.
While the property immediately west of the property across the Old Dixie Highway and FEC
rights-of-way is presently vacant and lies within unincorporated Palm Beach County, there are
directions for future development of this site for residential use upon its annexation into the
City. The residential portion of the proposed development will form a transition to this property
and the residential neighborhood farther to the west. Additionally, it will not constitute a grant
of special privilege to an individual property owner as contrasted with the protection of the
public welfare.
c. Whether changed or changing conditions make the proposed rezoning desirable.
Over time, the existing and obsolete shopping center has been in a state of decline
accompanied by an influx of marginal and undesirable commercial uses mingling with some few
desirable and long-time commercial uses. The proposed mixed use project will serve to
revitalize the southern "gateway" to the City. The project proposes 166 residential units in a
variety of sizes and styles, while the commercial portion is designed to provide a year-round
customer and employment base. The planned efficient use of the space will replace a large,
mostly vacant parking and sparse landscaping with a desirable project that engages the
surrounding streets.
d. Whether the proposed use would be compatible with utility systems, roadways, and
other public facilities.
Impact analyses provided by the applicant state that current water use is estimated at 34,000
gallons per day. The City's Water Utilities Department anticipates the water demand of the
proposed development would be 71,380 gallons per day; an increase of 37,380 gallons per day..
Projected sewer capacity demand would be 32,121 gallons per day.
According to the traffic analysis provided by the applicant, the maximum commercial intensity
under the existing land use would generate 5,817 trips per day. With the proposed
redevelopment, the trip generation drops to 4,175 external trips per day, for a reduction of
1,642 trips per day. With respect to solid waste, the Palm Beach County Solid Waste Authority
has stated that adequate capacity exists to accommodate the county's municipalities throughout
the 10-year planning period. The School District of Palm Beach County has reviewed the
Page 6
File Number: LUAR 05-005
Heritage Club @ Boynton Beach
application and has determined that adequate capacity exists to accommodate the resident
population. The City's Fire and Life Safety Division has stated that the Fire Department expects
to be able to maintain an adequate level of service for the subject project with current or
anticipated staffing. Lastly, drainage will also be reviewed in detail as part of the site plan
approval process, and must satisfy all requirements of the city and local drainage permitting
authorities.
e. Whether the proposed rezoning would be compatible with the current and future
use of adjacent and nearby properties, or would affect the property values of
adjacent or nearby properties.
As discussed above, the proposed development would relate to the adjacent commercially
designated lands to the south of Gateway Boulevard along Federal Highway. While the
property immediately west of the property across the Old Dixie Highway and FEC rights-of-way
is presently vacant and lies within unincorporated Palm Beach County, the "Problems and
Opportunities" section of the Future Land Use Support Documents contains directions for future
development of this site for residential use upon its annexation into the City. The residential
portion of the proposed development will form a transition to this property and the residential
neighborhood farther to the west.
f. Whether the property is physically and economically developable under the existing
zoning.
The property is currently developed; however, as the existing shopping center is in a state of
economic and physical decline, the City will be better served with the proposed redevelopment
of the property.
g. Whether the proposed rezoning is of a scale which is reasonably related to the
needs of the neighborhood and the city as a whole.
The property is less than 10 acres in size, but has frontages on Federal Highway, Gateway
Boulevard and Old Dixie Highway. The aesthetic quality of the proposed redevelopment project
will greatly improve the aesthetic quality of this portion of the Federal Highway corridor, which
is a major gateway into the City.
h. Whether there are adequate sites elsewhere in the city for the proposed use, in
districts where such use is already allowed.
There are only two other sites currently existing within the City where a similar project could be
considered without land assemblage; both sites are currently developed with successful
commercial centers. Redevelopment of these sites would not have the impact on the image of
the City that redevelopment of the subject site will have, since neither of them are located in
such proximity to the "gateways" to Boynton Beach.
CONCLUSIONS/RECOMMENDATIONS
As indicated herein, this request is consistent with relevant policies contained in the
Comprehensive Plan and the Federal Highway Corridor Redevelopment Plan; will not create
Page 7
File Number: LUAR 05-005
Heritage Club @ Boynton Beach
additional impacts on infrastructure that have not been anticipated in the Comprehensive Plan;
will be compatible with adjacent land uses and will contribute to the overall economic
development of the City. Therefore, staff recommends that the subject request be approved.
If the Community Redevelopment Agency Board or the City Commission recommends
conditions, they will be included as Exhibit "B".
ATTACHMENTS
S:\PIannlng\SHARED\Wp\PROJECTS\Heritage Oub @ Boynton Beach\LUAR 05-005\STAFF REPORT LUAR 05-005.doc
LOCATION MAP
Heritage Club @ Boynton Beach
LUAR 05-005
Exhibit A
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
received any letters of objection and had received many letters of support from adjacent property
owners.
Maryanne Deasy, 625 N.E. 15th Place, Boynton Beach, stated that they wanted a screen
enclosure for two reasons: 1) all the debris that blew into their pool after the hurricanes, and 2) her
allergies to insect bites.
Mr. Fenton inquired about the height of the screen enclosure, and Ms. Deasy responded that it
would not be higher than the one-story house. Mr. DeMarco inquired whether other homeowners in
their neighborhood had screen enclosures on their pools, and Ms. Deasy responded that of the eight
or so neighbors with pools, four homes had screened enclosures. Chair Heavilin asked whether
affixing the support posts to the existing concrete would be a violation. Mr. Breese responded that
the Building Department would require special anchors.
Chair Heavilin opened the floor for the public and closed it when no one came forward.
Marie Horenburger felt that this was a self-imposed hardship since they were aware of the situation
when they purchased the property.
Motion
Mr. DeMarco moved to approve the request (ZNCV 05-005) for relief from the City of Boynton Beach
Land Development Regulations, Chapter 2, Zoning, Section 5.C.2, requiring a ten (10) foot side yard
setback to allow a six (6) foot variance, resulting in a four (4) foot side yard setback for a screen
enclosure within the R-1-M Single-Family Residential zoning district. Vice Chair Tillman seconded
the motion that passed 4-1, Ms. Horenburger dissenting.
B. Land Use Amendment/Rezonino
Description:
Heritage Club at Boynton Beach (LUAR 05-
005)
Michael Weiner, Esquire, Weiner & Aronson, P .A.
Thirty Six Hundred Holdings, LLC
Northwest corner of the intersection of Federal
Highway and Gulfstream Boulevard
Request to amend the Comprehensive Plan Future
Land Use Map from Local Retail Commercial to
Special High Density Residential; and
1.
Project:
Agent:
Owner:
Location:
Request to rezone from C-3 Community Commercial
to PUD Planned Unit Development
Proposed Use:
Mixed use development containing 19,500 sq. ft. of
commercial development (office, retail, restaurant)
and 166 multi-family residential units
6
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
New Site Plan
2.
Project:
Heritage Club at Boynton Beach (NWSP 05-
014)
Michael Weiner, Esquire, Weiner & Aronson, P .A.
Thirty Six Hundred Holdings, LLC
3629 South Federal Highway
Request New Site Plan approval in order to
construct 70 townhouse units, a four (4)-story
mixed-use building consisting of 84 dwelling units,
3,500 square feet of restaurant, 4,100 square feet
of retail, and 5,164 square feet of office. The site
plan also includes a three (3)-story mixed-use
building consisting of 12 dwelling units, 5,394
square feet of retail, and 1,380 square feet of
office, all of which are proposed on an 8.302-acre
parcel zoned Planned Unit Development (PUD)
Agent:
Owner:
Location:
Description:
Heiaht Exception
3.
Project:
Heritage Club at Boynton Beach (HTEX 05-
004)
Jason S. Mankoff, Weiner & Aronson, P.A.
Thirty-Six Hundred Holdings, LLC
Northwest comer of the intersection of Federal
Highway and Gulfstream Boulevard
Request for a height exception of 10 feet pursuant
to the City's Land Development Regulations,
Chapter 2, Zoning, Section 4.F.2, to allow the
decorative towers to be 55 feet in height, a
distance of 10 feet above the 45-foot maximum
height allowed in the (PUD) Planned Unit
Development zoning district.
Agent:
Owner:
Location:
Description:
All three Heritage Club items were heard simultaneously, since they were integral to the rezoning
request.
Dick Hudson, Senior Planner, reported that the subject property was currently classified as Local
Retail Commercial and zoned Community Commercial. The request is to change the Future Land
Use Map to Special High Density Residential and rezone to Planned Unit Development for the
purpose of building a Mixed Use project containing slightly less than 20K sq. ft. of commercial space,
which includes office, retail, and restaurant space. There are 160 mUlti-family residential units. Staff
recommends approval for the following reasons:
o The proposed land use amendment and rezoning are consistent with the applicable
Comprehensive Plan policies and also meet the review criteria required for the Land
Development Regulations.
o The project will replace an antiquated and declining strip commercial center with a
mixed-use project that will be an aesthetic and physical improvement at the Oty's
southern gateway.
7
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
o The project supports the "Eastward Ho" Initiative, which emphasizes redevelopment
of the coastal area where infrastructure is already in place as opposed to
encouraging development patterns in the suburban areas to the west.
o The project proposes a sizeable number of residential units in a variety of sizes and
styles, with a commercial portion designed to provide a year-round customer and
employment base, which supports the revitalization of the downtown.
Eric Johnson, Planner, displayed a map that showed the townhouse buildings on the west side and
two mixed-use buildings along Federal Highway. The property in the southeast corner was not part
of the project. The office square footage is 6,544 sq. ft. The retail square footage is 9,494 sq. ft.
Restaurant area is 3,500 sq. ft. There would be 70 townhouse units and 96 multi-family units.
The project meets the Traffic Performance Standards of Palm Beach County, contingent upon the
dedication of a right-turn lane into the development from North Federal Highway. Staff reviewed the
project for concurrency with respect to potable water, sanitary sewer, Police/Fire, drainage, and
school and all conditions were met. There are three points of ingress and egress, two on Federal
Highway and a third on Gulfstream Boulevard.
Mr. DeMarco asked Mr. Johnson if the entrances to the property were one-way or two-way, and Mr.
Johnson explained the configuration of the different ingresses and egresses.
Ms. Horenburger asked how people coming from the west on Gulfstream Boulevard would access
the property. The response was that they would have to go north on Federal Highway and make a
U-turn. She asked if there were a plan for a U-turn lane and the response was affirmative. There is
no ingress from Gulfstream Boulevard.
Chair Heavilin inquired about which parking garage the residents would use. Mr. Johnson said that
any shared parking would occur in Building 2. Staff had reviewed the shared parking aspect of the
project and technically, it met the requirements with parking spaces to spare. However, the
applicant had to make the owners aware that they would only have one parking spot. Parking
spaces cannot be designated for just one use in a shared parking scenario. Ms. Horenburger
believed that no parking spot would be designated for the residents and requested clarification.
Mr. Johnson elaborated, saying shared parking occurred in Buildings 1 and 2, but the restaurant
users would only have access to the parking garage in Building 2. Persons living in Building 1 would
have access to a space in the parking garage in Building 1. People in Building 2 would also have
access to a space in Building 2, except that during peak times, there would probably not be any
guest type spaces.
Vice Chair Tillman inquired whether there would be a bottleneck at the turnaround at the end of the
main drive aisle. Mr. Johnson responded that the City's Engineering Department had reviewed it for
turning movements and radii and found no problem.
Mr. Johnson stated that the applicant had been made aware of the shared parking restrictions and
he thought the applicant would be willing to put this in the Homeowners Association documents. Ms.
Horenburger wanted to make awareness of the parking restriction by the residents a condition of
approval.
8
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Jason Mankoff affirmed that they were going to designate twelve of the parking spaces in Building
2 for the twelve units in that Building. Also, they would have documentation in the contract advising
buyers that they would only be guaranteed one space.
Mr. Johnson reviewed the Height Exception. The buildings comply with Code, but there are some
decorative elements that exceed the forty-five foot height maximum height in a PUD. However, the
features of the building that exceed the height limits are interesting and make the whole project
"work."
Staff felt that the proposed project was good for the City and recommended approval of the Height
Exception and Site Plan.
Chair Heavilin invited the CRA Planner to add her comments at this time. She thought this should
become a regular feature in future hearings.
Vivian Brooks, CRA Planner, had participated in the Technical Review Committee. In spite of having
to work around the use on the southeast corner, the applicant had hidden the garages and actively
addressed Old Dixie Highway, Gulfstream Boulevard, and Federal Highway. All the townhouses
connect with walkways to the sidewalks. They were going to create a community that would,
hopefully, set the trend for the rest of Old Dixie Highway and the other projects that will occur in
that area. She thought the project was interesting architecturally, with no long, unbroken expanses.
They had done a good job and she recommended approval of the project.
Mr. Fenton asked Ms. Brooks to comment on the architectural value of the features that ca./Ied for
the Height Exception. Ms. Brooks said the features added value to the project to a focal gateway
project in the south. To have something that stands out architecturally was what the City had been
looking for on its gateways. The applicants for the project on Woolbright Road and Federal Highway
were asked to bring that project up in height. She personally liked it.
Mr. DeMarco inquired whether the project would have security and protection from surrounding
uses, particularly the one to the southeast. Ms. Brooks responded that the community was
protected visually and physically since an actual phYSical structure, Building 2, separated them.
Jason Mankoff of Weiner & Aronson, P.A., 209 N. Seacrest Boulevard, Boynton Beach,
spoke as agent for the project. Robert Mathias, David Biggs, and J. P. DiMisa, prinCipals with the
developer, New Century Companies, were present along with Jim Knight, principal of Thirty-six
Holdings, the current owner of the property and Stuart Debowsky and Jose Samuel with MSA
Architects. Jeffrey Schnars, President of Schnars Engineering, and Hugh Johnson, landscape
architect with Architects Alliance, were in attendance as well. Mr. Mankoff distributed a booklet
summary of the project to the board members and showed visual renderings of the Site Plan to the
board and to the audience. Mr. Mankoff stated that this project was very similar to a successful
project they had completed in Delray Beach.
stuart Debowsky, project manager of MSA Architects, said they were proud to present this
project to the City. This is a mixed-use project that has % condominium units, 84 of which are in
Building 1. The residents in Building 1 have exclusive use of the parking spaces and Building 2 only
has 12 residential units. There are three-story townhouses with 70 units to the west.
They had tried to put together a project resembling a village. The east-west road was meant to
simulate a "main street" concept, with angled parking and a large pedestrian arcade. The applicant
is planning a cafe concept for the corner of Building 1 in support of a theme of street activity, both
9
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
day and night. They were considering townhouse models with two "fronts," so they would not have
to present their "back" to Old Dixie Highway. They hoped that all the elements they were putting
together would be reminiscent of a village that had come together over a period of years.
Ms. Horenburger asked what they had done to screen the uses to the north of the project. She had
been told there would be a parking garage between the residential and that area and it appears the
residences would be facing it.
Stuart Debowsky said that it was a tough site on all sides: cars on Federal Highway, the train on Old
Dixie Highway, the use to the southeast, and the storage facility on the north. They had created an
access/service road as an adequate buffer. The first unit occurs thirty to forty feet from the edge of
that. Special care had been taken to screen the property on all sides with landscaping, but
especially on the northern boundary. They felt the actual living spaces were set well apart from the
northern border.
Mr. DeMarco asked why they had chosen the name Heritage Club. Mr. Mankoff responded that
there were other Heritage Clubs in Delray Beach and it was like a brand name. In regard to the
property to the south, if they were able to acquire it, they could possibly have a Phase II. Mr.
DeMarco then asked about the price ranges of the units.
Robert Mathias, New Century Companies, said the condo building would have one, two, and
three bedrooms and they would be between $200-400K and the townhouse units would be between
$400-500K.
Mr. Fenton questioned what kind of noise buffering the developer had in mind for the units next to
the railroad tracks. Mr. Mathias responded they were going to use landscaping and building
materials that would provide an amazing amount of sound insulation. They had developed two
projects close to railroad tracks and they had not had any issues.
Jose Samuels, MSA Architects, commented that the taller features helped to create visual appeal
for the project. Most main streets did not have long buildings with flat tops, but ones of varying
heights.
Marie Horenburger asked staff whether additional density or height would be involved if the
developer were able to obtain the parcel on the southeast corner. She thought this might occur
since the property owner to the southeast was asking an exorbitant amount of money, additional
incentives might be involved.
Mike Rumpf, Planning & Zoning Director, stated that this project had come in under the current land
use and zoning scheme - it solved the problems. To go outside that, because the developer was at
those thresholds, would exceed what the system allows and would be inconsistent with the Corridor
Plan. Prior proposals were well above the current thresholds. Ms. Horenburger thought it would be
nice to have a more cohesive site as the entrance to the City.
Mr. Mankoff stated the applicant agreed to all 71 conditions of approval. He praised staff for their
assistance and cooperation in the planning of this important, gateway project. The applicant added
two conditions based on the discussions at this meeting: 1) designate twelve spaces for the
condominium owners, and 2) provide notice in the condo documents or in the contract at the time of
signing that each of the individual owners would only be guaranteed one space. They believed that
the height was important for the project and that they had met all the requirements for such a
request.
10
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Chair Heavilin opened the floor to the public, and closed it when no one wished to speak.
Mr. Fenton took issue with the passive voice in some of the Conditions of Approval, pointing out item
1 that asks: "Please indicate number and size of containers." He felt that a more declaratory or
dictatorial tone was in order. Mr. Johnson responded that staff was confident that all the conditions
would be met and if not, permits would not be issued. Staff felt that it had protected the City with
the Conditions of Approval. A large number of the conditions had already been satisfied.
Mr. DeMarco confirmed with the agent that the applicants were in agreement with all 71 Conditions
of Approval and were adding two more. He expressed appreciation for what the developers had
done for that corner of the City.
Mr. Johnson declared that staff agreed with the two new conditions of approval suggested by the
applicant.
Motion
Ms. Horenburger moved to amend the Comprehensive Plan Future Land Use Map from Local Retail
Commercial to Special High Density Residential (LUAR 05-005). Vice Chair Tillman seconded the
motion that passed 5-0.
Motion
Ms. Horenburger moved to approve the request to rezone from C-3 Community Commercial to PUD
Planned Unit Development (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0.
Motion
Ms. Horenburger moved to approve the Site Plan approval for the Heritage Club at Boynton Beach
(NWSP 05-014) subject to all 73 Conditions of Approval. Mr. Fenton seconded the motion.
Chair Heavilin commented that the applicant had raised the bar for development in Boynton Beach.
She thought it was the best project the board had seen. Mr. Mankoff commended City staff for its
efforts.
The motion passed 5-0.
Motion
Mr. Fenton moved to approve the request for height exception of 10 feet for Heritage Club of
Boynton Beach (HTEX 05-004). Vice Chair Tillman seconded the motion that passed 5-0.
C. New Site Plan
Neelam (fka Schnars) Business Center
(NWSP 05-022)
J. Ernest Brady, Stephen James Inc.
Anand D. Patel (Contract Purchaser)
924 N. Federal Highway
Request for Site Plan approval for a three (3) story,
8,754 square foot office/retail building in a Mixed
Use Low (MU-L) zoning district.
Ed Breese, Principal Planner, stated that this property had changed hands and the site plan approval
expired. The new owner would like to build the same building as previously approved.
1.
Project:
Agent:
Owner:
Location:
Description:
11
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
VIII.-PUBLIC HEARING
ITEM B.l
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
[gJ August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon)
0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon)
0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005 October 17,2005 (Noon)
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 October 31, 2005 (Noon)
NATURE OF
AGENDA ITEM
. -
.n
'} '---1
0 Administrative 0 Development Plans -:; .-<
-'
0 Consent Agenda 0 New Business ' _'TI
-, ,",..,
[gJ Public Hearing 0 Legal C" " ,=.J
0 Bids 0 Unfinished Business ,""~
0 0 -- ,-
Announcement Presentation --" A_
"
0 '-,',<.;D
City Manager's Report ,..,.,.... .T-...:Pi
--.....
~'
(J
RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Public Hearing, ::r::
to be combined with the corresponding Land Use Amendment and Rezoning item. The Community Redevelopment Agency
Board recommended that the subject request be approved on July 12,2005, subject to all conditions, plus the additional
conditions regarding designation of parking spaces for condominium units and documentation within sales documents
regarding limitation of one (I) parking space per condo unit for the twelve units in building 2. For further details pertaining
to the request, see attached Department of Development Memorandum No. PZ 05-117.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRlPTION:
Heritage Club @ Boynton Beach (NWSP 05-014)
Michael Weiner, Esquire, Weiner & Aronson, P.A.
Thirty Six Hundred Holdings, LLC
3629 South Federal Highway
Request New Site Plan approval in order to construct 70 townhouse units, a four (4)-story
mixed-use building consisting of84 dwelling units, 3,500 square feet of restaurant, 4,100
square feet of retail, and 5,164 square feet of office. The site plan also includes a three
(3)-story mixed-use building consisting of 12 dwelling units, 5,394 square feet of retail,
and 1,380 square feet of office, all of which, are proposed on an 8302-acre parcel zoned
PUD Planned Unit Development.
PROGRAM IMP ACT:
FISCAL IMPACT:
ALTERNATIVES:
Devel p.
~ ~ P.R....
./ Planning and Zoning::Director City Attorney / Finance / Human Resources
S:IPlanning\SHARED\WPIPROJECTS\Heritage Club @ Boynton Beach\NWSP 05-014\Agenda Item Request Heritage Club NWSP 05-014 8-2-05.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 05-117
STAFF REPORT
TO:
Chair and Members
Community Redevelopment Agency and City Commission
DATE:
Michael Rumpf
Planning and Zoning Director
Eric Lee Johnson, AICP ~,.'-'
Planner 0
July 6, 2005
THRU:
FROM:
PROJECT NAME/NO:
Heritage Club / NWSP 05-014
REQUEST:
New Site Plan
PROJECT DESCRIPTION
Property Owner: Thirty Six Hundred Holdings, LLC
Applicant: New Century Companies, LLC and Thirty Six Hundred Holdings, LLC
Agent: Mr. Michael Weiner, Esquire / Weiner & Aronson, P.A.
Location: Northwest corner of the intersection of Federal Highway and Gulfstream
Boulevard (Exhibit "A'')
Existing Land Use: Local Retail Commercial (LRC)
Existing Zoning: Community Commercial (C-3)
Proposed Land Use: Special High Density Residential
Proposed Zoning: PUD Planned Unit Development
Proposed Uses:
Office:
Retail :
Restaurant:
Residential:
6,544 square feet
9,494 square feet
3,500 square feet
70 townhouse units
96 multi-family units
Acreage:
::1:8.302 acres
Adjacent Uses:
North:
Developed property (self-service storage) designated Local Retail Commercial
and zoned C-3 Community Commercial;
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 2
South:
Developed outparcel (adult entertainment) designated Local Retail Commercial
and zoned C-3 Community Commercial, then the right-of-way of Gulfstream
Boulevard, then developed commercial (fast-food and office building)
designated Local Retail Commercial and zoned C-3 Community Commercial;
East:
Right-of-way of Federal Highway then undeveloped property in the Town of
Gulfstream designated Recreation and zoned OR Outdoor Recreation; and
West:
Rights-of-way of Old Dixie Highway and the Florida East Coast Railroad, then
vacant property in Palm Beach County designated MR-5 (5 du/ac) and zoned
RS-Single-family Residential.
PROPERTY OWNER NOTIFICATION
Owners of properties within 400 feet of the subject conditional use were mailed a notice of this request
and its respective hearing dates. The applicant certifies that they posted signage and mailed notices in
accordance with Ordinance No. 04-007.
BACKGROUND
Proposal:
Mr. Michael Weiner, agent for the property owner (Thirty Six Hundred Holdings,
LLC) is requesting to develop a large scale, mixed-use project. The survey shows
that the subject property is currently developed with a one (l)-story shopping
center and related parking areas. The intent is to raze the existing shopping center
and redevelop the site with 13 townhouse buildings and two (2) mixed-use
buildings, including their interior parking garages. Approval of this project is
contingent upon the approval of the accompanying request to amend the Future
Land Use Map and rezone (LUAR 05-005) the property from Community
Commercial (C-3) to Planned Unit Development (PUD). It should be noted that the
current PUD regulations permit neighborhood commercial uses within the
residential development, but require that the areas designated for commercial
activities not front on exterior or perimeter streets and preferably are located
centrally within the project. Staff is proposing an amendment to the Land
Development Regulations, Chapter 2.5 Planned Unit Development, Section 9.D.
Commercial Standards, to allow for commercial uses in PUDs to front on exterior or
perimeter streets, when such locations are consistent with adopted redevelopment
policies and plans. Therefore, approval of this site plan is contingent upon the staff
initiated request for code review (CDRV 05-011). Also, the PUD zoning district
allows for a maximum height of 45 feet. The applicant submitted an accompanying
request for height exception (HTEX 05-004) because as proposed, decorative
features of the building would exceed the 45-foot height threshold (see Exhibit "c"
- Conditions of Approval).
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 3
ANALYSIS
Concurrency:
Traffic: Generally, anticipated project traffic is generated by two factors, namely the
proposed use and its intensity. Intensity is typically measured by the proposed
building area (in square feet). The project's traffic statement was reviewed and
approved by the Palm Beach County Traffic Division. Based on the Traffic
Division's review, it has been determined that the residential portion of the
proposed mixed-use redevelopment project is located within the Coastal Residential
Exception Areas of Palm Beach County, while the retail and office components
generate less daily and peak hour trips than the existing retail space which is to be
demolished. The project meets the Traffic Performance Standards of Palm Beach
County, contingent upon the provision of a southbound exclusive right-turn lane on
North Federal Highway leading to the project access driveway. No building permits
are to be issued after the build-out date of 2008 (see Exhibit "C" - Conditions of
Approval).
Utilities: The purchase of up to 5 million gallons of potable water per day from Palm Beach
County Utilities would supply potable water for this project (projected to a total of
83,885 gallons per day). Local piping and infrastructure improvements may be
required for the project, dependent upon the final project configuration and fire-
flow demands. These local improvements would be the responsibility of the site
developer and would be reviewed at the time of permitting. Sufficient sanitary
sewer and wastewater treatment capacity is currently available to serve the project
total of 44,225 gallons per day, subject to the applicant making a firm reservation
of capacity, following approval of the site plan.
Police/Fire: For the purposes of this study, a statistical analysis was completed to show the
percentage of increase of police calls for service for the selected project area. A
crime analysis for 2004 shows that there have been 9,814 calls for service for zone
5, which represents 14.4% of all calls for service. There are no other existing
developments to use as a comparison for this assessment. It must be noted that
this project is one of six (6) mixed-use projects planned for completion. An
increase of 12% of total calls for service is projected from proposed citywide
growth. The subject project would have a direct impact on providing an adequate
level of public service to this area. The need for additional officers in Zone 5 is
evident by the high percentage of calls for service that one officer is currently
handling. Due to new development throughout the city, all city services will be
affected. Service requirements for the police department will be impacted greatly
and the demand for more police personnel and equipment will be needed to
balance the increase in population.
Fire staff reviewed the site plan and determined that current staffing levels would
be sufficient to meet the expected demand for services. Infrastructure
requirements such as hydrants and roadways would be addressed during the
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 4
permitting process (see Exhibit "c" - Conditions of Approval).
Drainage: Conceptual drainage information was provided for the City's review. The
Engineering Division is recommending that the review of specific drainage solutions
be deferred until time of permit review (see Exhibit "c" - Conditions of Approval).
School: Regarding school concurrency, the proposed project lies within Concurrency Service
Areas (CSA) 19 and SAC 283. Based on the School District of Palm Beach County's
adopted multiplier's for an average multi-family dwelling unit, the proposed
development may generate 14 elementary school students, seven (7) middle school
students, and 10 high school students. The School District determined that
adequate capacity exists to accommodate the projected resident children.
Driveways: The project can be characterized as "urban infill, mixed-use" development whereby
front building setbacks are minimal and off-street parking is relegated to a
subordinate role. The site plan shows that the development would be divided into
two (2) distinct areas, namely, the townhouse portion and the mixed-use portion.
The plans show that parking garages would provide for the majority of off-street
parking spaces for the mixed-use portion. The garages are intentionally proposed
as hidden structures located within the core of the project and virtually unseen from
the major roadways. Likewise, the project is not proposing traditional driveways or
surface parking lots like that of "suburban"-type of projects (where driveways
connect to off-street parking located in front of the buildings).
The site plan shows that vehicles would enter the site from three (3) points of
entry. Utilizing the existing curb-cut, the main entrance is proposed on Federal
Highway. This entrance would serve as the primary point of ingress for both the
mixed-use portion and the townhouse portion of the development. Vehicles
traveling southbound on Federal Highway would enter the site by utilizing the
deceleration lane proposed on Federal Highway and drive within the 15-foot wide
ingress lane. The egress lane would also be 15 feet wide and allow for right-turn
(south) traffic movement. The driveway, drive aisles, and turning radius, internal
to the development, would be improved to conform to current city engineering
standards.
An alternate entrance is also proposed along Federal Highway, at the northeast
corner of the site. However, this entrance would only be used as a one (l)-way
service drive for mixed-use Building 1. The drive aisle would connect to Old Dixie
Highway. Although not dimensioned, when scaled, it appears as though the
driveway opening would be 15 feet in width.
The third pOint of ingress is proposed along Gulfstream Boulevard. This driveway
opening would serve as the secondary point of ingress but proposed for only the
townhouse portion of the site. It would be gated and no access would be permitted
to the mixed-use areas. Although not dimensioned, when scaled, it appears as
though the driveway opening would be 15 feet in width. Likewise, the egress lane
would also be 15 feet in width. It would allow for right (west) and left (east) turn
traffic movements onto Gulfstream Boulevard.
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 5
Parking Facility: Off-street parking proposed within the development must meet the requirements in
Chapter 2, Section 11.H. of the Boynton Beach Land Development Regulations.
The project proposes a mix of residential, retail, restaurant, and office uses. One-
bedroom apartment units require one and one-half (1112) parking spaces. Two
bedroom apartment units require two (2) parking spaces. The project proposes
166 dwelling units (a mixture of one, two, and three bedrooms), requiring 330
parking spaces. Retail uses proposed within mixed-use projects require one (1)
parking space per 200 square feet of gross leasable floor area. For this project, a
total of 48 parking spaces would be required for the retail uses. Office uses require
one (1) parking space per 300 square feet of gross floor area, The project
proposes 6,544 square feet of office and therefore, would require 21 parking
spaces. Restaurants require one (1) parking space per two and one-half (2-112)
seats but not less than one (1) parking space per 100 square feet of gross floor
area. The site plan proposes 3,500 square feet and therefore, would require 35
parking spaces. In conclusion, under these standardized parking methodologies, a
total of 434 parking spaces would be required. In summary, the plan would provide
46 surface parking spaces, 235 parking garage spaces, and 140 townhouse garage
spaces. The project would only provide a grand total of 421 parking spaces, a
deficiency of 13 spaces. To comply, the applicant submitted a shared parking
analysis which demonstrates that 413 parking spaces would be required, resulting
in an excess of eight (8) spaces.
Building 1 proposes a mix of residential, commercial, restaurant, and office uses,
requiring 237 parking spaces. The parking garage internal to Building 1 would
provide only 152 spaces. Fifteen surface spaces are also proposed near Building 1,
which provides a total of 167 parking spaces but a deficit of 70 spaces. It should
be noted that the residential portion of Building 1 would require 164 spaces. The
intent is to restrict access to the garage to be used solely by the residents who
reside within Building 1. The commercial users would park in the surplus spaces
provided by Building 2.
The townhouse portion of the development would be self-sufficient in terms of its
required parking. The townhouses would require 145 spaces and would provide
155 spaces. This would be accomplished by providing 140 garage spaces and 15
on-street parking spaces. In addition to the off-street parking, the project is
proposing 21 on-street parking spaces within the Old Dixie Highway and Gulfstream
Boulevard rights-of-way. However, these spaces cannot contribute towards the
number of provided parking spaces. According to the applicant, however, they will
be unrestricted and open for public use.
Landscaping:
The cover sheet tabular data indicates that the proposed pervious areas would
equal 3.112 acres or 37.52% of the site. The tree removal plan (sheet T-1)
indicates the subject site currently contains 93 trees with a total of 955 caliper
inches to mitigate. The existing tree species are as follows: Black Olive, Cabbage
palm, Fish Tail palm, Mahogany, and several unknown trees. Eight (8) of the 93
trees would remain. The landscape plan proposes a 110% replacement of the
caliper inches, with a total of 62 canopy trees, 185 small non-shade trees, 164
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 6
palm trees, 34 small palm trees, 7,013 shrubs, and 3,381 groundcover plants.
According to the plant list, 226 of the 423 trees or 53% would be native. The
landscape plan also proposes a total of 6,073 plants or 58% of the shrubs / hedges
/ accents would be native species.
The plant material proposed along Federal Highway within the east landscape
(east) buffer would consist of the following species: Ixora Nora Grant, Dwarf Ilex
Holly, Golden Duranta, Redtip Cocoplum, Dwarf Bougainvillea shrub, Eugenia,
Washingtonia palm, Zahidi Date palm, Tree Ligustrum, and Florida Royal palm.
The Florida Royal palm trees would be 25 feet tall at the time of installation. Their
height would help soften the upper stories of the four (4) story buildings.
Ligustrum trees are proposed in between the Royal palm trees. These smaller
trees are strategically placed to provide more of a human scale. Both trees would
not interfere with overhead lines along Federal Highway.
The south landscape buffer would be 10 feet in depth in areas where it abuts the
out-parcel to the south. The existing mature Black Olives would remain and eight
(8) Pigeon Plum trees are also proposed to help soften the two (2) story parking
structure. A row of Redtip Cocoplum hedges are proposed (along the periphery of
the subject property) adjacent to the sides of the out-parcel. A row of Pigeon plum
trees are proposed along Gulfstream Boulevard within the fee-simple lot area of the
three (3)-story townhouses. A row of Live Oak trees are proposed outside the fee-
simple area and within both the right-of-way for Gulfstream Boulevard and Old
Dixie Highway. In addition, the developer is proposing trees and shrubs at the
northwest corner of Federal Highway and Gulfstream Boulevard, which would serve
as a grand entrance into the City. Staff fully supports the installation of the trees
and shrubs within the rights-of-way. However, all plant material proposed outside
the property line must be excluded from the plant list in terms of meeting the
minimum required landscape requirement (see Exhibit "CIf - Conditions of
Approval).
In the past, the Old Dixie Highway corridor was not improved to current City
standards. Therefore, the developer will be required to set aside the western 20
feet of the subject property for right-of-way purposes. As proposed, the
townhouse buildings along Old Dixie Highway would be setback 20 feet from the
sidewalk interior. The interior of the sidewalk would demarcate between private
and public ownership. This 20-foot wide setback area would also function as the
western landscape buffer. A black aluminum rail fence (42 inches in height) is
proposed within the buffer area. It would be setback approximately six (6) feet
from the back of the sidewalk. Additionally, either Pigeon Plum trees or Live Oak
trees, in conjunction with various shrubs / groundcover (Purple Crinum Lily, Dwarf
Indian Hawthorne, and Tricolor SheffJera) is also proposed within this 20 foot wide
buffer, within the limits of the fee-simple area of the townhouses. It should be
noted that the choice of canopy trees, proposed within the northern half of this
west landscape buffer, is limited due to the presence of overhead power lines that
currently run parallel to Old Dixie Highway. There are no overhead power lines
present within the southern half of the west landscape buffer and therefore, Live
Oak (street) trees may be planted there.
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 7
The north landscape buffer would be four (4) feet in width at its narrowest point
and 12 feet wide at its widest point. It would contain a mix of trees, shrubs, and
groundcover (Silver Buttonwood, Yellow Elder, Redtip Cocoplum, and Wild Coffee).
A one (l)-way drive aisle would run parallel to this landscape buffer.
The interior of the site would contain a substantial amount of plant material. Staff
focused on the location and height of the proposed trees, especially in areas where
the parking structures are proposed. The landscape plan shows that the planting
strip along the north fa<;ade of Building 1 would be approximately 12 wide. The
landscape plan proposes a row of Cabbage palm (installed at 16 feet to 23 feet of
clear trunk), Fishtail palm (12 feet to 14 feet in height), and Ligustrum (10 feet).
These trees would help to provide an upper level and lower level canopy. In
addition, the northeast, northwest, and southwest corners of Building 1 would have
clusters of Washingtonia palm trees installed at 18 feet to 24 feet in height. The
front (south) fa<;ade of Building 1 would have a row of Solitaire palm trees installed
at 18 feet to 22 feet in height. Building 2 is also proposed as a four (4)-story
building but mainly along Federal Highway. The interior parking garage would only
be two (2)-stories tall. The landscape plan proposes a row of Pigeon Plum trees
along the north fa<;ade of Building 2. Staff recommends substituting the Pigeon
Plum trees, proposed at the main access drive with Royal palm trees (see Exhibit
"C" - Conditions of Approval).
Building and Site: The site plan proposes a mix of residential and commercial uses. The commercial
square footage would total 3.52% of the entire site. Building and site design as
proposed would generally meet code requirements when staff comments are
incorporated into the permit drawings. The maximum allowed density of the SHDR
land use category would be 20 dwelling units per acre. The proposed project
density would be 20 dwelling units per acre. As previously mentioned, the existing
commercial buildings would be replaced with the proposed four (4 )-story mixed-use
buildings and three (3)-story townhouse buildings. The depth of the parcel extends
westward from Federal Highway to Old Dixie Highway, excluding the lone out-
parcel where the adult entertainment establishment is located. As such, the
subject property fronts on three (3) rights-of-way. The taller, four (4)-story,
mixed-use buildings would front on Federal Highway whereas the three (3)-story
townhouse buildings would face Old Dixie Highway and Gulfstream Boulevard. The
mixed-use buildings would contain an internal parking garage. All buildings are
oriented so that they "face" the street, a characteristic fully endorsed by staff. The
PUD zoning district allows for a maximum height of 45 feet. The elevations of
Building 1 and Building 2 show that portions of their roofline would exceed the
maximum allowed height. However, these appurtenances are decorative
architectural elements and / or inhabitable spaces, and would be considered
eligible for height exception. The applicant requested a height exception of 15
feet. The review of the height exception is discussed in an accompanying staff
report (HTEX 05-004). The height, as defined by the Land Development
Regulations of Building 1 and 2 would be 41 feet. Their parapet walls are proposed
at 46 feet in height, which is permitted by the Regulations. Generally, the three
(3)-story townhouses are proposed at 35 feet - nine (9) inches in height,
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 8
However, the townhouse building proposed directly west of Building 2 would be 31
feet - six (6) inches in height. The building was designed with a different roofline
in order to achieve greater compatibility with Building 2 in terms of its style, mass,
and height. In summary, all proposed buildings meet code as it relates to
maximum building height.
All buildings are proposed within close proximity of the property lines (that front on
rights-Of-way) in order to create a more urban environment, consistent with
recommendations of the Federal Highway Corridor Redevelopment Plan. The east
setback along Federal Highway would vary slightly but maintain at least a 20-foot
front setback. This is to maintain a clear line-of-site and to accommodate a
deceleration lane along Federal Highway. The south side setback of Building 2,
where it abuts the outparcel, would be 10 feet in width. The townhouse buildings
proposed along Gulfstream Boulevard would have a setback 15 feet in width. The
closest a townhouse building would be from the property line where it abuts the
commercial outparcel would be 20 feet. As previously mentioned, the townhouses
proposed along Old Dixie Highway would be 20 feet from the interior of the
sidewalk. It should be noted that there are a few places along the west property
line that are notched inward. As such, the proposed building setbacks would be
reduced. The greatest building setbacks occur along the north property line.
Building 1 would be 32 feet- four (4) inches at minimum while the closest
townhouse would be 50 feet away from the north property line. This is due to the
location of the existing one (i)-way drive aisle.
The proposed building composition would be as follows: Residential - 282,271
square feet; Retail- 9,494 square feet; Office - 6,544 square feet; and Restaurant
- 3,500 square feet. The plans show that the commercial areas of the mixed-use
buildings would occur on the first and second floors only. The condominium units
would occur on all floors. According to the tabular data, the one (i)-bedroom and
two (2)-bedroom units are proposed in the mixed-use buildings would come in a
variety of sizes. The smallest one (i)-bedroom unit would be 790 square feet
(under NC) and the largest three (3)-bedroom unit would be 1,725 square feet in
area.
DeSign:
The proposed development is generally divided into two (2) distinct halves. The
eastern half would be comprised on the mixed-use buildings and the western half
would be comprised on the townhouse buildings. The proposed architecture could
be described as contemporary for the mixed-use buildings and traditional for the
three (3)-story townhouse buildings. Both styles, as proposed, transition well and
are compatible with each other. Also noteworthy is that the project parking would
be virtually hidden from all views and is considered to be a subordinate,
unobtrusive element of the plan. Vehicular traffic is contained within the internal
framework of the project. The parking garage would be enclosed but would have
decorative openings compliant with Florida Building Code. These openings would
resemble large windows.
The elevations show that the exterior finish of the walls would be textured stucco.
The applicant is proposing a variety of colors schemes as shown in tabular format
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 9
on sheet A-28. The project's proposed building colors are as follows:
White
Peach
Light Yellow
Yellow
Light Gray
Beige
Light Green
Light Blue
Charleston White
Drawing Room
Black House Yellow
Lowcountry Spoon bread
Aunt Bety's China
Aiken Ivory
Acanthus
st. Cecilia
OCR 100
OCR 035
OCR 008
OCR 014
OCR 101
OCR 002
OCR 084
OCR 069
The project also proposes hunter green canvas awnings on the mixed-use
buildings. The intent is to have all buildings (both mixed-use and townhouses)
with multiple colors. A general intent of Chapter 9 (Community Design Plan) is to
ensure that buildings achieve visual unity of character and design concepts, in part,
through the use of building colors. However, there are no established noteworthy
building colors or architectural themes within the immediate area with which this
project should be compatible. Therefore, the proposed colors for this site plan
would not be inappropriate, incompatible, or obtrusive.
The mixed-use buildings would have a unique roofline with Monier concrete tiles
(grey) and multiple-styled decorative towers. The decorative towers would come in
two (2) styles. As previously mentioned, this theme would be carried over to the
townhouse building proposed directly west of Building 2.
Signage:
Minimal project detail regarding proposed signage was shown with this submittal.
In the future, the applicant intends to submit a sign program but for now, the
signage would consist of 18-inch tall black reverse channel letters with Helvetica
font for the mixed-use buildings. A note on the elevations of Buildings 1 and 2
indicates that the entire project will follow similar signage with similar fonts and
colors. As presented however, the elevations are incomplete when referring to
project signage. Therefore, staff recommends utilizing a sign program for the
entire project to ensure sustained continuity throughout the life of the project (see
Exhibit "c" - Conditions of Approval). All project sign age shall conform to the
regulations as set forth in Chapter 9 (Community Design Plan) and Chapter 21 of
the Land Development Regulations.
The site plan shows the location of the two (2) monument signs. The sign, located
along Federal Highway, would be primarily for the mixed-use portion of the
development while the other sign, located along Gulfstream Boulevard, would be
used to identify the townhouse portion of the development. Both structures would
be located at least 10 feet from the property line. The commercial sign would be
generally five (5) feet in height with a decorative portion of it, proposed at eight (8)
feet in height. The residential sign would be five (5) feet in height its peak. Both
sign's colors would be compatible with the building colors but again, a more
thorough investigation would occur at the time when the sign program is reviewed.
Staff Report - Heritage Club (NWSP 05-014)
Memorandum No PZ 05-117
Page 10
RECOMMENDATION:
Staff has reviewed this request and recommends approval! contingent upon the approval of the concurrent
rezoning application! height exception request! and all items noted within Exhibit "c" - Conditions of
Approval. Prior to Community Redevelopment Agency Board review! the applicant shall satisfactorily
address building division issues including but not limited to the comments pertaining to the interior parking
structures! percentage of wall openings! and type of construction. Any additional conditions recommended
by the Board or City Commission shall be documented accordingly in the Conditions of Approval.
S:\Planning\SHARED\WP\PROJECTSIHeritage Club @ Boynton Beach\NWSP 05-014\Slaff Report.doc
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EXHIBIT "C"
Conditions of Approval
Project name: Heritage Club @ Boynton Beach
File number: NWSP 05-014
Reference: 3rd review plans identified as a New Site Plan with a June 14, 2005 Planning and Zoning
Department date stamp marking
, II
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS - General
Comments:
1. The applicant has indicated that compactors will be used for the mixed-use X
buildings and will be brought out to central areas adjacent to the buildings for
pickup. Please indicate the number and size of these containers so we can
evaluate the required pad sizes and our ability to perform the pickup
operation.
PUBLIC WORKS - Traffic
Comments:
2. Additional right-of-way shall be dedicated to the City, via plat, to provide a X
50-f1. right-of-way width. Reconstruct Old Dixie Highway and Gulfstream
Boulevard to provide two II-foot wide lanes, curb & gutter, sidewalk,
appropriate green space with landscaping, and necessary signing / striping.
Complete construction plans will be required in conjunction with the plat and
will be reviewed and approved prior to issuance of the Land Development
Permit (LDP). Construction ofthe required improvements shall be completed
prior to issuance of the final COs for the project as required by the
Amendments to the Building Code. A surety shall be provided for the
required off-site improvements in the amount of 110% of the engineer's
estimate for the off-site work prior to issuance ofthe LDP.
The applicant shall also provide design plans for reconstruction of the
FECRR / Gulfstream Boulevard crossing, including roadway re-alignment,
curb & gutter, concrete median dividers, striping, and signals. The applicant
shall provide an engineer's estimate for the railroad crossing. The City will
consider sharing the cost of construction of the FECRR crossing. The extent
of cost share is subject to allocation of funds in the City budget for fiscal year
2006 / 2007.
3. At the time of permitting, delineate and stripe l2-foot x 35 foot loading zones X
for the retail buildings; include a pavement message in yellow indicating "No
Parking - Loading Zone".
ENGINEERING DIVISION
Comments:
4. Full drainage plans, including drainage calculations, in accordance with the X
LDR, Chapter 6, Article IV, Section 5 will be required at the time of
COA
07/07/05
2
DEPARTMENTS INCLUDE REJECT
permitting.
5. It may be necessary to replace or relocate large canopy trees adjacent to light X
fixtures to eliminate future shadowing on the parking surface (Chapter 23,
Article II, Section A.l.B.). Further evaluation will occur at the time of
permitting.
6. Paving, Drainage and Site details will not be reviewed for construction X
acceptability at this time. All engineering construction details shall be in
accordance with the applicable City of Boynton Beach Standard Drawings
and the "Engineering Design Handbook and Construction Standards" and
will be reviewed at the time of construction permit application.
UTILITIES
Comments:
7. Palm Beach County Health Department permits will be required for the water X
and sewer systems serving this project (CODE, Section 26-12).
8. Fire flow calculations will be required demonstrating the City Code X
requirement of 1,500 g.p.m. (500 g.p.m. some residential developments) with
20 p.s.i. residual pressure as stated in the LDR, Chapter 6, Article IV, Section
16, or the requirement imposed by insurance underwriters, whichever is
greater (CODE, Section 26-l6(b)).
9. The CODE, Section 26-34(E) requires that a capacity reservation fee be paid X
for this project either upon the request for the Department's signature on the
Health Department application forms or within seven (7) days of site plan
approval, whichever occurs first. This fee will be determined based upon
final meter size, or expected demand.
10. Comprehensive Plan Policy 3.C.3.4. requires the conservation of potable X
water. As other sources are readily available City water shall not be allowed
for irrigation.
11. A building permit for this project shall not be issued until this Department has X
approved the plans for the water and/or sewer improvements required to
service this project, in accordance with the CODE, Section 26-15.
12. Show all off-site improvements to the existing water and sewer infrastructure X
as follows:
a. The on-site lift station must be upgraded or replaced so as to
accommodate the added demand and the constraints imposed by site
changes. Existing gravity and pressure flows to the station must be
accommodated in the design.
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b. The water system must be connected to the existing 8-in. water main
located on the east side of Federal Highway. In addition, an 8-in. water
main connection must be established from the 12-in. water main located
on the west side of Seacrest Boulevard, to the existing 8-in. line that
terminates on SE 34th Ave. in the vicinity of SE 3rd Court; or an alternate
route may be considered to establish an 8-in. water main connection to
the 12-in. main on Seacrest Boulevard. The intent of the design is to
establish an 8-in. loop from Federal Highway to Seacrest Blvd., thereby
assuring adequate fire protection and domestic supply.
13. Utility construction details will not be reviewed for construction acceptability X
at this time. All utility construction details shall be in accordance with the
Utilities Department's "Utilities Engineering Design Handbook and
Construction Standards" manual (including any updates); they will be
reviewed at the time of construction permit application.
FIRE
Comments:
14. All hydrants shall be in service before any vertical construction. Hydrant X
flow is a minimum 1500 gpm @ 2Opsi.
POLICE
Comments: None X
BUILDING DIVISION
Comments:
15. The height and area for buildings or structures of the different types of X
construction shall be governed by the intended use or occupancy of the
building, and shall not exceed the limits set forth in Table 500 of the 2001
FBe.
16. Every exterior wall within 15 feet of a property line shall be equipped with X
approved opening protectives per 2001 FBC, Section 705.1.1.2.
17. Buildings, structures and parts thereof shall be designed to withstand the X
minimum wind loads of 140 mph. Wind forces on every building or structure
shall be determined by the provisions of ASCE 7, Chapter 6, and the
provisions of 2001 FBC, Section 1606 (Wind Loads). Calculations that are
signed and sealed by a design professional registered in the state of Florida
shall be submitted for review at the time of permit application.
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18. Every building and structure shall be of sufficient strength to support the X
loads and forces encountered per the 2001 FBC, Section 1601.2.1 and Table
1604.1. Indicate the live load (psi) on the plans for the buildinl! design.
19. Buildings three-stories or higher shall be equipped with an automatic X
sprinkler system per F.S. 553.895. Fire protection plans and hydraulic
calculations shall be included with the building plans at the time of permit
application.
20. At time of permit review, submit signed and sealed working drawings of the X
proposed construction.
21. On the site plan and floor plan, indicate the number of stories that are in each X
building including, where applicable, mezzanines. Indicate the overall height
of each building.
22. Add to each building that is depicted on the site plan drawing a labeled X
symbol that identifies the location of the proposed handicap accessible units.
Add to the drawing the calculations that were used to identify the minimum
number of required units. Also, state the code section that is applicable to the
computations. Show and label the same units on the applicable floor plan
drawings. Compliance with regulations specified in the Fair Housing Act is
required (Federal Fair Housing Act Design and Construction Requirements,
Title 24 CFR, Part I 00.205).
23. At the time of permit review, submit details of reinforcement of walls for the X
future installation of grab bars as required by the Federal Fair Housing Act
Title 24 CFR, Part 100.205, Section 3, Requirement #6. All bathrooms within
the covered dwellinl! unit shall comoly.
24. Add to the drawing the calculations that were used to identify the minimum X
number of required handicap accessible parking spaces.
25. Add a labeled symbol to the site plan drawing that represents and delineates X
the path of travel for the accessible route that is required between the
accessible units and the recreational amenities that are provided for the
project and other common area elements located at the site. The symbol shall
represent the location of the path of travel, not the location of the detectable
warning or other pavement markings required to be installed along the path.
The location of the accessible path shall not compel the user to travel in a
drive/lane area that is located behind parking vehicles. Identify on the plan
the width of the accessible route. (Note: The minimum width required by the
Code is 44 inches). Add text that would indicate that the symbol represents
the accessible route and the route is designed in compliance with regulations
specified in the Fair Housing Act. Please note that at time of permit review,
the applicant shall provide detailed documentation on the plans that will
verify that the accessible route is in compliance with the regulations specified
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DEP ARTMENTS
in the 2001 FBC. This documentation shall include, but not be limited to,
providing finish grade elevations along the path of travel.
INCLUDE
26. As required by the CBBCO, Part III titled "Land Development Regulations", X
submit a site plan that clearly depicts the setback dimensions from each
property line to the leading edge of the buildings. The leading edge of the
buildings begins at the closest point of the overhang or canopy to the property
line. In addition, show the distance between all the buildings on all sides.
27. To properly determine the impact fees that will be assessed for the X
clubhouse/recreation building, provide the following:
a. Will the clubhouse/recreation building be restricted to the residents of
the entire project only?
b. Will the residents have to cross any major roads or thoroughfares to get to
the clubhouse/recreation building?
c. Will there be any additional deliveries to the site?
d. Will there be any additional employees to maintain and provide service to
the site?
Please have the applicant provide the City with a copy of the letter that will be
sent to the impact fee coordinator. To allow for an efficient permit review, the
applicant should request that the County send the City a copy of their
determination of what impact fees are required for the clubhouse/recreation
building.
28. Add to the floor plan drawing of the clubhouse/recreation building a X
breakdown of the floor area. The area breakdown shall specify the total area
of the building, covered area outside, covered area at the entrances, total floor
area dedicated for the clubhouse/recreation building and other uses located
within the building. Specify the total floor area that is air-conditioned. Label
the use of all rooms and floor spaces.
29. CBBCPP 3:C.3.4 requires the conservation of potable water. City water may X
not, therefore, be used for landscape irrigation where other sources are readily
available.
30. A water-use permit from SFWMD is required for an irrigation system that X
utilizes water from a well or body of water as its source. A copy of the permit
shall be submitted at the time of permit application, F.S. 373.216.
31. If capital facility fees (water and sewer) are paid in advance to the City of X
Boynton Beach Utilities Department, the following information shall be
provided at the time of building permit application.
a. The full name of the project as it appears on the Development
Order and the
Commission-approved site plan.
a. If the project is a multi-family project, the building number/s
must be provided. The building numbers must be the same as
noted on the Commission-approved site plans.
REJECT
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b. The number of dwelling units in each building.
c. The number of bedrooms in each dwelling unit.
d. The total amount paid and itemized into how much is for water
and how much is for sewer.
(CBBCO, Chapter 26, Article II, Sections 26-34)
At time of permit review, submit separate surveys of each lot, parcel or tract. For
purposes of setting up property and ownership in the City computer, provide a
copy of the recorded deed for each lot, parcel or tract. The recorded deed shall
be submitted at time of permit review.
32. At time of building permit application, submit verification that the City of X
Boynton Beach Parks and Recreation Impact Fee requirements have been
satisfied by a paid fee or conveyance of property. The following information
shall be provided:
a. A legal description of the land.
b. The full name of the project as it appears on the Development
Order and the Commission-approved site plan.
c. If the project is a multi-family project, the building number/s
must be provided. The building numbers must be the same as
noted on the Commission-approved site plans.
d. The number of dwelling units in each building.
e. The total amount being paid.
(CBBCO, Chapter 1, Article V, Section 3(t))
33. Pursuant to approval by the City Commission and all other outside agencies, X
the plans for this project must be submitted to the Building Division for
review at the time of permit application submittal. The plans must incorporate
all the conditions of approval as listed in the development order and approved
by the City Commission.
34. The full address of the project shall be submitted with the construction X
documents at the time of permit application submittal. If the project is multi-
family, then all addresses for the particular building type shall be submitted.
The name of the project as it appears on the Development Order must be
noted on the building permit application at the time of application submittal.
35. Sheet SP-l - Indicate the number of handicapped parking spaces for the retail X
area and the residences and the total number of handicapped spaces provided.
36. Submit a floor plan for the retail, amenity, office, live/work, office/retail X
areas.
37. The elevator shall comply with the 2001 FBC, Section 11-4.10.1. X
38. Submit square footage of parking garages. X
39. According to 2001 FBC, Section 11-4.1.2, "if parking spaces are provided for X
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self-parking by employees or visitors, or both, then accessible spaces
complying with 2001 FBC, Section 11-4.6 shall be provided in each such
parking area. Show accessible spaces in all areas. Comply with the 2001
FBC. (Include parallel parking.).
40. The distance of all exterior walls to adjacent buildings/property line ~ an area X
of concern. The allowances set forth in the 2001 FBC, Table 600 are for the
percentage of wall openings permitted. This is a life-safety issue. Submit
calculations showing the percentage of wall and wall openings for this
project, and clearly show the distances between the buildings.
41. All the single-story dwelling units located in the multi-family building are X
"covered dwelling units" under the Florida Fair Housing Act, and thus must
comply. Indicate on the plan which design option (A or B) is being used for
this project and show the required clear floor space for the fixtures.
42. Sheet SP-1 - Clarify the type of construction for building #1 under the X
Building Tabulation Table. There is no Type I protected construction in 2001
FBC, Chapter 6.
43. Sheet SP-l notes the parking garages occupancy as "open". This is not a X
correct occupancy type. To be considered "open", the structure shall comply
with all the requirements of the 2001 FBC, Section 411.3.2, 411.3.3, and
411.3.4. As designed, the garage cannot be considered "open". Indicate the
correct occupancy per 2001 FBC, Chapter 3.
44. Clearly show all the setback dimensions from each building to each property X
line. In addition, show the distance between each building on all four sides.
All setback dimensions and distances between buildings are not shown on
SP-1.
45. Clarify the number of surface parking spaces dedicated for building #1 and X
building #2. A handicap accessible parking space is required in each parking
area per the 2001 FBC, Section 11-4.1.2(5)(a). Also, indicate on the plans if
the parking garages are strictly for the use of the residents or for both the
retail/restaurant/office areas and the residents.
46. Provide the occupancy classification and construction type for the clubhouse. X
Comply with 2001 FBC, Chapters 3 and 6.
47. Sheet A 1.1 - The balcony at the clubhouse shall be provided with vertical X
accessibility. This is considered a "common area" and shall comply with the
2001 FBC, Section 11-4.1.3.
48. Submit a tabulation table that clearly reflects each building, number of units X
in each building, the type of units (model type), number of stories in each
building, and square footage per floor.
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49. Sheet A-25 indicates a floor plan for a "new townhouse". Submit additional X
information on this unit:
A Model type or model number (identify units).
B Which buildings will contain this structure?
50. Sheet A-6 - Indicate the number of parking spaces on each level of the X
garage.
51. Sheet A-12 - The square footage for units "C" and "D I" does not correlate X
with the square footage listed on Sheet SP-I. Also, identifY unit "D" as "D I "
on SP-1.
52. On sheets A26-A32, your calculations for the percentage of openings are X
incorrect. The percentage of openings is based upon Table 600 of the 2001
FBC and the distance separation of buildings from property lines or assumed
property lines (in the case of multiple buildings on the same lot). Refer to
2001 FBC, Chapter 2 for the term "Property line, assumed", and submit
correct calculations for the percentage of openings.
PARKS AND RECREA nON
Comments:
53. Impact Fee: X
70 single family attached units @ $771.00 each = $57,054
96 multi family units @ $656 each = $60,352
TOTAL $ 117,406
Impact fee is due prior to the issuance of the first applicable permit.
FORESTER/ENVIRONMENT ALIST
Comments:
54. The Landscape Architect should tabulate the total number of existing trees on X
the site. The plan should indicate where the relocated trees are to be installed
throughout the site. The total diameter inches of trees removed should be
shown as replacement trees on the site landscape plan. These replacement
trees should be shown by a separate symbol on the landscape plan sheet L-5
(Chapter 7.5, Article I Sec. 7.D.p. 2.).
PLANNING AND ZONING
Comments:
55. Approval of this site plan is contingent upon approval of the accompanying X
request for land use amendment / rezoning (LUAR 05-005).
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DEPARTMENTS
INCLUDE REJECT
56. Approval of this site plan is subject to the approval of the proposed code X
amendment (CDRV 05-011) to allow commercial uses in the PUD Planned
Unit Development zoning district but with the caveat that they front on
exterior or perimeter streets, when such locations are consistent with adopted
redevelopment policies and plans.
57. Based on the Traffic Division's review, it has been determined that the X
residential portion of the proposed mixed-use redevelopment project is
located within the Coastal Residential Exception Areas of Palm Beach
County, while the retail and office components generate less daily and peak
hour trips than the existing retail space which is to be demolished. The
project meets the Traffic Performance Standards of Palm Beach County but
contingent upon the provision of a southbound exclusive right-turn lane onto
the project access driveway on North Federal Highway. No building permits
are to be issued after the build-out date of 2008.
58. Approval of this site plan is subject to the accompanying request for height X
exception (HTEX 05-004).
59. Parking spaces required in this ordinance for one use or structure may be X
allocated in part or in whole for the required parking spaces of another use or
structure if quantitative evidence is provided showing that parking demand
for the different uses or structures would occur on different days of the week
or at different hours. Quantitative evidence shall include estimates for peak
hour / peak season demand based on statistical data furnished by the Urban
Land Institute or an equivalent traffic engineering or land planning and design
organization (Chapter 2, Section 11.H.13.).
60. At the time of permitting, all elevation pages shall indicate the exterior X
finishes, roof material, paint manufacturer's name, and color codes. Staff
recommends using a color schedule (Chapter 4, Section 7.D.). Also, provide
color swatches and awning samples.
61. Fifty percent (50%) of all site landscape materials must be native species X
(Chapter 7.5, Article n, Section 5.P). Please categorize as follows: Shade
trees, Palm trees, Shrubs & Groundcover.
62. All trees, if proposed as trees, must be at least 12 feet in height and three (3) X
caliper inches at the time of their installation (Chapter 7.5, Article II, Section
5.C.2.). This applies to Tree Ligustrum.
63. Staff recommends that a master sign program be provided that shows the X
number, location, dimensions, exterior finish, and color(s) of all signs
(Chapter 2, Section 5.H.9.). The sign program would address all types of
SignS, including commercial wall signs, identification signs, residential
subdivision signs, freestanding monument signs, canopy signs, way-finding
signs, directional signs, and all other signs as regulated by Chapter 21 of the
Land Development Regulations.
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DEPARTMENTS INCLUDE REJECT
64. At the time of permitting, the detail of the typical outdoor freestanding X
lighting fixture must include the proposed color. The applicant informed staff
that the color will be black.
68. All plant material proposed outside the property line must be excluded from X
the plant list m terms of meeting the rmmmum required landscape
requirement. Revise plant list at the time of permitting.
69. The common areas shall be maintained by an established association. Provide X
documents to confirm same.
70. Staff recommends substituting the Pigeon Plum trees with Florida Royal palm X
trees at the main entrance drive, where the angled street parking spaces. The
heights of these trees shall not conflict with the freestanding outdoor lighting
poles.
71. Staff originally recommended that the site plan provide a full-size clubhouse / X
recreation building within the townhouse portion of the development, in part,
to accommodate homeowner association meetings. However, the developer
informed staff that the meeting rooms (proposed within Building I) could
accommodate the townhouse owner association meetings and that the
townhouse owners would be authorized to use the meeting rooms once per
month for their association meetings. This is acceptable to staff and
therefore, the condominium documents should reflect this intention.
ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY
COMMENTS:
Comments:
72. None X
ADDITIONAL CITY COMMISSION COMMENTS:
Comments:
73. To be determined.
MWR/elj
S:\PlanningISHAREDlWP\PROJECTS\Heritage Club @ Boynton BeachlNWSP 05-014\COA.doc
DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA
PROJECT NAME:
Heritage Club
AGENT:
Mr. Michael Weiner, Esquire I Weiner & Aronson, P.A.
AGENTS ADDRESS:
102 North Swinton Avenue Delray Beach, FL 33444
DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION:
August 2, 2005
TYPE OF RELIEF SOUGHT: Request New Site Plan approval in order to construct 70 townhouse units, a
four (4 )-story mixed-use building consisting of 84 dwelling units, 3,500 square
feet of restaurant, 4,100 square feet of retail, and 5,164 square feet of office.
The site plan also includes another four (4) -story mixed-use building consisting
of 12 dwelling units, 5,394 square feet of retail, and 1,380 square feet of office,
all of which, are proposed on an 8.302-acre parcel zoned PUD Planned Unit
Development.
LOCATION OF PROPERTY: Northwest corner of the intersection of Federal Highway and Gulfstream
Boulevard
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida
appearing on the Consent Agenda on the date above. The City Commission hereby adopts the findings and
recommendation of the Community Redevelopment Agency Board, which Board found as follows:
OR
THIS MATTER came on to be heard before the City Commission of the City of Boynton Beach,
Florida on the date of hearing stated above. The City Commission having considered the relief sought by the
applicant and heard testimony from the applicant, members of city administrative staff and the public finds as
follows:
1. Application for the relief sought was made by the Applicant in a manner consistent with the
requirements of the City's Land Development Regulations.
2. The Applicant
HAS
HAS NOT
established by substantial competent evidence a basis for the relief requested.
3. The conditions for development requested by the Applicant, administrative staff, or suggested
by the public and supported by substantial competent evidence are as set forth on Exhibit "C"
with notation "Included".
4. The Applicant's application for relief is hereby
_ GRANTED subject to the conditions referenced in paragraph 3 hereof.
DENIED
5. This Order shall take effect immediately upon issuance by the City Clerk.
6. All further development on the property shall be made in accordance with the terms and
conditions of this order.
7. Other
DATED:
City Clerk
S;\PlaJUljng'SHAREO\WP\PROJECTS\Heritage Club@ Boynton Beach'NWSP 05-014\DO.doc
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
New Site Plan
2.
Project:
Heritage Club at Boynton Beach (NWSP 05-
014)
Michael Weiner, Esquire, Weiner & Aronson, P .A.
Thirty Six Hundred Holdings, llC
3629 South Federal Highway
Request New Site Plan approval in order to
construct 70 townhouse units, a four (4)-story
mixed-use building consisting of 84 dwelling units,
3,500 square feet of restaurant, 4,100 square feet
of retail, and 5,164 square feet of office. The site
plan also includes a three (3)-story mixed-use
building consisting of 12 dwelling units, 5,394
square feet of retail, and 1,380 square feet of
office, all of which are proposed on an 8.302-acre
parcel zoned Planned Unit Development (PUD)
Agent:
Owner:
Location:
Description:
Heiaht Exception
3.
Project:
Heritage Club at Boynton Beach (HTEX 05-
004)
Jason S. Mankoff, Weiner & Aronson, P.A.
Thirty-Six Hundred Holdings, lLC
Northwest corner of the intersection of Federal
Highway and Gulfstream Boulevard
Request for a height exception of 10 feet pursuant
to the City's land Development Regulations,
Chapter 2, Zoning, Section 4.F.2, to allow the
decorative towers to be 55 feet in height, a
distance of 10 feet above the 45-foot maximum
height allowed in the (PUD) Planned Unit
Development zoning district.
Agent:
Owner:
Location:
Description:
All three Heritage Club items were heard simultaneously, since they were integral to the rezoning
request.
Dick Hudson, Senior Planner, reported that the subject property was currently classified as Local
Retail Commercial and zoned Community CommerdaJ. The request is to change the Future land
Use Map to Special High Density Residential and rezone to Planned Unit Development for the
purpose of building a Mixed Use project containing slightly less than 20K sq. ft. of commercial space,
which includes office, retail, and restaurant space. There are 160 multi-family residential units. Staff
recommends approval for the following reasons:
o The proposed land use amendment and rezoning are consistent with the applicable
Comprehensive Plan policies and also meet the review criteria required for the land
Development Regulations.
o The project will replace an antiquated and declining strip commercial center with a
mixed-use project that will be an aesthetic and physical improvement at the aty's
southern gateway.
7
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
o The project supports the "Eastward Ho" Initiative, which emphasizes redevelopment
of the coastal area where infrastructure is already in place as opposed to
encouraging development patterns in the suburban areas to the west.
o The project proposes a sizeable number of residential units in a variety of sizes and
styles, with a commercial portion designed to provide a year-round customer and
employment base, which supports the revitalization of the downtown,
Eric Johnson, Planner, displayed a map that showed the townhouse buildings on the west side and
two mixed-use buildings along Federal Highway. The property in the southeast corner was not part
of the project. The office square footage is 6,544 sq. ft. The retail square footage is 9,494 sq. ft.
Restaurant area is 3,500 sq. ft. There would be 70 townhouse units and 96 multi-family units.
The project meets the Traffic Performance Standards of Palm Beach County, contingent upon the
dedication of a right-turn lane into the development from North Federal Highway. Staff reviewed the
project for concurrency with respect to potable water, sanitary sewer, Police/Fire, drainage, and
school and all conditions were met. There are three points of ingress and egress, two on Federal
Highway and a third on Gulfstream Boulevard.
Mr. DeMarco asked Mr. Johnson if the entrances to the property were one-way or two-way, and Mr.
Johnson explained the configuration of the different ingresses and egresses.
Ms. Horenburger asked how people coming from the west on Gulfstream Boulevard would access
the property. The response was that they would have to go north on Federal Highway and make a
U-turn. She asked if there were a plan for a U-turn lane and the response was affirmative. There is
no ingress from Gulfstream Boulevard.
Chair Heavilin inquired about which parking garage the residents would use. Mr. Johnson said that
any shared parking would occur in Building 2. Staff had reviewed the shared parking aspect of the
project and technically, it met the requirements with parking spaces to spare. However, the
applicant had to make the owners aware that they would only have one parking spot. Parking
spaces cannot be designated for just one use in a shared parking scenario. Ms. Horenburger
believed that no parking spot would be designated for the residents and requested clarification.
Mr. Johnson elaborated, saying shared parking occurred in Buildings 1 and 2, but the restaurant
users would only have access to the parking garage in Building 2. Persons living in Building 1 would
have access to a space in the parking garage in Building 1. People in Building 2 would also have
access to a space in Building 2, except that during peak times, there would probably not be any
guest type spaces.
Vice Chair llllman inquired whether there would be a bottleneck at the turnaround at the end of the
main drive aisle. Mr. Johnson responded that the City's Engineering Department had reviewed it for
turning movements and radii and found no problem.
Mr. Johnson stated that the applicant had been made aware of the shared parking restrictions and
he thought the applicant would be willing to put this in the Homeowners Association documents. Ms.
Horenburger wanted to make awareness of the parking restriction by the residents a condition of
approval.
8
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Jason Mankoff affirmed that they were going to designate twelve of the parking spaces in Building
2 for the twelve units in that Building. Also, they would have documentation in the contract advising
buyers that they would only be guaranteed one space.
Mr. Johnson reviewed the Height Exception. The buildings comply with Code, but there are some
decorative elements that exceed the forty-five foot height maximum height in a PUD. However, the
features of the building that exceed the height limits are interesting and make the whole project
"work. 11
Staff felt that the proposed project was good for the City and recommended approval of the Height
Exception and Site Plan.
Chair Heavilin invited the CRA Planner to add her comments at this time. She thought this should
become a regular feature in future hearings.
Vivian Brooks, CRA Planner, had participated in the Technical Review Committee. In spite of having
to work around the use on the southeast corner, the applicant had hidden the garages and actively
addressed Old Dixie Highway, Gulfstream Boulevard, and Federal Highway. All the townhouses
connect with walkways to the sidewalks. They were going to create a community that would,
hopefUlly, set the trend for the rest of Old Dixie Highway and the other projects that will occur in
that area. She thought the project was interesting architecturally, with no long, unbroken expanses.
They had done a good job and she recommended approval of the project.
Mr. Fenton asked Ms. Brooks to comment on the architectural value of the features that called for
the Height Exception. Ms. Brooks said the features added value to the project to a focal gateway
project in the south. To have something that stands out architecturally was what the City had been
looking for on its gateways. The applicants for the project on Woolbright Road and Federal Highway
were asked to bring that project up in height. She personally liked it.
Mr. DeMarco inquired whether the project would have security and protection from surrounding
uses, particularly the one to the southeast. Ms. Brooks responded that the community was
protected visually and physically since an actual physical structure, Building 2, separated them.
Jason Mankoff of Weiner & Aronson, P.A., 209 N. Seacrest BOUlevard, Boynton Beach,
spoke as agent for the project. Robert Mathias, David Biggs, and J. P. DiMisa, principals with the
developer, New Century Companies, were present along with Jim Knight, prindpal of Thirty-six
Holdings, the current owner of the property and Stuart Debowsky and Jose Samuel with MSA
Architects. Jeffrey Schnars, President of Schnars Engineering, and Hugh Johnson, landscape
architect with Architects Alliance, were in attendance as well. Mr. Mankoff distributed a booklet
summary of the project to the board members and showed visual renderings of the Site Plan to the
board and to the audience. Mr. Mankoff stated that this project was very similar to a successful
project they had completed in Delray Beach.
Stuart Debowsky, project manager of MSA Architects, said they were proud to present this
project to the City. This is a mixed-use project that has 96 condominium units, 84 of which are in
Building 1. The residents in Building 1 have exclusive use of the parking spaces and Building 2 only
has 12 residential units. There are three-story townhouses with 70 units to the west.
They had tried to put together a project resembling a village. The east-west road was meant to
simulate a "main street" concept, with angled parking and a large pedestrian arcade. The applicant
is planning a cafe concept for the corner of Building 1 in support of a theme of street activity, both
9
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
day and night. They were considering townhouse models with two "fronts," so they would not have
to present their "back" to Old Dixie Highway. They hoped that all the elements they were putting
together would be reminiscent of a village that had come together over a period of years.
Ms. Horenburger asked what they had done to screen the uses to the north of the project. She had
been told there would be a parking garage between the residential and that area and it appears the
residences would be facing it.
Stuart Debowsky said that it was a tough site on all sides: cars on Federal Highway, the train on Old
Dixie Highway, the use to the southeast, and the storage facility on the north. They had created an
access/service road as an adequate buffer. The first unit occurs thirty to forty feet from the edge of
that. Special care had been taken to screen the property on all sides with landscaping, but
especially on the northern boundary. They felt the actual living spaces were set well apart from the
northern border.
Mr. DeMarco asked why they had chosen the name Heritage Club. Mr. Mankoff responded that
there were other Heritage Clubs in Delray Beach and it was like a brand name. In regard to the
property to the south, if they were able to acquire it, they could possibly have a Phase II. Mr.
DeMarco then asked about the price ranges of the units.
Robert Mathias, New Century Companies, said the condo building would have one, two, and
three bedrooms and they would be between $200-400K and the townhouse units would be between
$400-S00K.
Mr. Fenton questioned what kind of noise buffering the developer had in mind for the units next to
the railroad tracks. Mr. Mathias responded they were going to use landscaping and building
materials that would provide an amazing amount of sound insulation. They had developed two
projects close to railroad tracks and they had not had any issues.
Jose Samuels, MSA Architects, commented that the taller features helped to create visual appeal
for the project. Most main streets did not have long buildings with flat tops, but ones of varying
heights.
Marie Horenburger asked staff whether additional density or height would be involved if the
developer were able to obtain the parcel on the southeast corner. She thought this might occur
since the property owner to the southeast was asking an exorbitant amount of money, additional
incentives might be involved.
Mike Rumpf, Planning & Zoning Director, stated that this project had come in under the current land
use and zoning scheme - it solved the problems. To go outside that, because the developer was at
those thresholds, would exceed what the system allows and would be inconsistent with the Corridor
Plan. Prior proposals were well above the current thresholds. Ms. Horenburger thought it would be
nice to have a more cohesive site as the entrance to the City.
Mr. Mankoff stated the applicant agreed to all 71 conditions of approval. He praised staff for their
assistance and cooperation in the planning of this important, gateway project. The applicant added
two conditions based on the discussions at this meeting: 1) designate twelve spaces for the
condominium owners, and 2) provide notice in the condo documents or in the contract at the time of
signing that each of the individual owners would only be guaranteed one space. They believed that
the height was important for the project and that they had met all the requirements for such a
request.
10
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Chair Heavilin opened the floor to the public, and closed it when no one wished to speak.
Mr. Fenton took issue with the passive voice in some of the Conditions of Approval, pointing out item
1 that asks: "Please indicate number and size of containers." He felt that a more declaratory or
dictatorial tone was in order. Mr. Johnson responded that staff was confident that all the conditions
would be met and if not, permits would not be issued. Staff felt that it had protected the City with
the Conditions of Approval. A large number of the conditions had already been satisfied.
Mr. DeMarco confirmed with the agent that the applicants were in agreement with all 71 Conditions
of Approval and were adding two more. He expressed appreciation for what the developers had
done for that corner of the City.
Mr. Johnson declared that staff agreed with the two new conditions of approval suggested by the
applicant.
Motion
Ms. Horenburger moved to amend the Comprehensive Plan Future land Use Map from local Retail
Commercial to Special High Density Residential (WAR 05-005). Vice Chair Tillman seconded the
motion that passed 5-0.
Motion
Ms. Horenburger moved to approve the request to rezone from C-3 Community Commercial to PUD
Planned Unit Development (WAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0.
Motion
Ms. Horenburger moved to approve the Site Plan approval for the Heritage Club at Boynton Beach
(NWSP 05-014) subject to all 73 Conditions of Approval. Mr. Fenton seconded the motion.
Chair Heavilin commented that the applicant had raised the bar for development in Boynton Beach.
She thought it was the best project the board had seen. Mr. Mankoff commended City staff for its
efforts.
The motion passed 5-0.
Motion
Mr. Fenton moved to approve the request for height exception of 10 feet for Heritage Club of
Boynton Beach (HTEX 05-004). Vice Chair Tillman seconded the motion that passed 5-0.
C. New Site Plan
1.
Project:
Neelam (fka Schnars) Business Center
(NWSP 05-022)
J. Ernest Brady, Stephen James Inc.
Anand D. Patel (Contract Purchaser)
924 N. Federal Highway
Request for Site Plan approval for a three (3) story,
8,754 square foot office/retail building in a Mixed
Use low (MU-L) zoning district.
Agent:
Owner:
location:
Description:
Ed Breese, Principal Planner, stated that this property had changed hands and the site plan approval
expired. The new owner would like to build the same building as previously approved.
11
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORLvl
VIII.-PUBLIC HEARING
ITEM B.2
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
I?SI August 2, 200S July 18, 200S (Noon.) D October S, 200S September 19, 200S (Noon)
D August 16, 200S August 1, 200S (Noon) D October 18, 200S October 3, 200S (Noon)
D September 6, 200S August IS, 200S (Noon) D November 1, 200S October 17, 200S (Noon)
D September 20, 200S September 6, 200S (Noon) D November IS, 200S October 31, 2005 (Noon)
D Administrative D Development Plans . .
NATURE OF I?SI Consent Agenda D New Business r~ -:. --i
~.- --<~
AGENDA ITEM D Public Hearing D Legal
D Bids D Unfinished Business CC)
G~' Ie:.::,
D Announcement D Presentation .~
D City Manager's Report '- '._.~
--- ...0..-
L..,_~ ~-~--.
'~~01
RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Consent:. r:~ S
Agenda. The Community Redevelopment Agency Board recommended that the subject request be approved on July 12, ::c
2005. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-119.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
Heritage Club @ Boynton Beach (HTEX 05-004)
Jason S. Mankoff, Weiner & Aronson, P.A.
Thirty Six Hundred Holdings, LLC
Northwest comer of the intersection of Federal Highway and Gulfstream Boulevard
Request for a height exception of 10 feet pursuant to the City's Land Development
Regulations, Chapter 2, Zoning, Section 4.F.2, to allow the decorative towers to be 55
feet in height, a distance of 10 feet above the 45-foot maximum height allowed in the
(PUD) Planned Unit Development zoning district.
PROGRAM IMPACT: N/A
FISCAL IMPACT: N/ A
ALTERNATIVES: N/A
D'VelOP~'
IJ~ ~
Planning and Z' irector City Attorney / Finance / Human Resources
S:\P1anning\SHAREDlWP\PROJECTS\Heritage Club @ Boynton Beach\HTEX OS-004\Agenda Item Request Heritage Club HTEX OS-004 8-2-0S.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
TO:
THROUGH:
FROM:
DATE:
PROJECT:
REQUEST:
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 05-119
Chair and Members
Community Redevelopment Agency Board
Michael Rumpf
Director of Planning and Zoning
Eric Lee Johnson, AICP
Planner
(f
July 6, 2005
Heritage Club / HTEX 05-004
Height Exception of 15 feet for decorative tower features on the mixed-use
buildings
Property Owner:
Applicant:
Agent:
Location:
Existing Land Use:
Existing Zoning:
Proposed Land Use:
Proposed Zoning:
Proposed Uses:
Acreage:
Adjacent Uses:
PROJECT DESCRIPTION
Thirty Six Hundred Holdings, LLC
New Century Companies, LLC and Thirty Six Hundred Holdings, LLC
Mr. Jason S. Mankoff / Weiner & Aronson, P,A.
Northwest corner of the intersection of Federal Highway and Gulfstream
Boulevard (Exhibit "AfT)
Local Retail Commercial (LRC)
Community Commercial (C-3)
Special High Density Residential
PUD Planned Unit Development
Office:
Retail:
Restaurant:
Residential:
6,544 square feet
9,494 square feet
3,500 square feet
70 townhouse units
96 multi-family units
:t8.302 acres
North: Developed property (self-service storage) designated Local Retail Commercial and
zoned C-3 Community Commercial;
Page 2
Memorandum No. PZ 05-119
South: Developed outparcel (adult entertainment) designated Local Retail Commercial
and zoned C-3 Community Commercial, then the right-of-way of Gulfstream
Boulevard, then developed commercial (fast-food and office building) designated
Local Retail Commercial and zoned C-3 Community Commercial;
East: Right-of-way of Federal Highway then undeveloped property in the Town of
Gulfstream designated Recreation and zoned OR Outdoor Recreation; and
West: Rights-of-way of Old Dixie Highway and the Florida East Coast Railroad, then
vacant property in Palm Beach County designated MR-5 (5 du/ac) and zoned RS-
Single-family Residential.
BACKGROUND
Mr. Jason S. Mankoff, agent for the property owner (Thirty Six Hundred Holdings, LLC) is requesting to
develop a mixed-use project. The survey shows that the subject property is currently developed with a
one (l)-story shopping center and related parking areas. The intent is to raze the existing shopping
center and redevelop the site with 13 townhouse buildings and two (2) mixed-use buildings, including
their interior parking garages. Approval of this project is contingent upon the approval of the
accompanying request to amend the Future Land Use Map and rezone (LUAR 05-005) the property from
Community Commercial (C-3) to Planned Unit Development (PUD). The PUD zoning district allows a
maximum height of 45 feet. The townhouse buildings would be three (3) stories tall and would both
require approval of a height exception. However, the mixed-use buildings (Buildings 1 and 2) would have
portions of their structures that exceed the district's maximum height threshold of 45 feet. The
elevations show that several decorative towers would reach as high as 60 feet in height. Therefore,
approval of the accompanying site plan (NWSP 05-014) is contingent upon approval of this request for
height exception.
ANALYSIS
The property is currently zoned C-3. The C-3 zoning district allows for a maximum building height of 45
feet. As previously mentioned, the applicant is concurrently requesting to rezone the property to PUD.
Part of the justification to rezone to PUD is to support and stimulate revitalization efforts in the city's
Community Redevelopment Agency area. Staff recognizes that a viable downtown and surrounding areas
would have a mixture of uses with higher residential densities. The proposed mixed use project will serve
to revitalize the southern "gateway" to the City. The project proposes 166 residential units in a variety of
sizes and styles, while the commercial portion is designed to provide a year-round customer and
employment base.
Land Development Regulations, Chapter 2, Zoning, Section 4.F.3, Height Limitations and Exceptions,
states that in considering an application for exception to the district height regulation, the City
Commission shall make findings indicating the proposed exception has been studied and considered in
relation to minimum standards, where applicable. The citywide maximum height of 45 feet would
generally limit a typical building to four (4) stories. The PUD zoning district allows for a maximum
building height of 45 feet. It should be noted that both mixed-use buildings meet code as it relates to
building height because their roof level would be 41 feet in height and the top of the parapet wall would
be 46 feet in height. The parapet wall may exceed the 45-foot threshold only if the wall itself is five (5)
feet or less in height. The elevations of the mixed-use buildings (Building 1 and Building 2) show that
Page 3
Memorandum No. PZ 05-119
portions of both buildings exceed the 45-foot threshold. However, these appurtenances are eligible to be
considered for the height exception request.
Decorative towers (cupolas) are the types of building appurtenances that may exceed the zoning district's
height limitation and be eligible for height exception review. In this case, the top of several decorative
towers are proposed at 60 feet in height. However, the aforementioned structures would account for
only a small percentage of the entire roofline. In fact, according to the applicant, the decorative towers
would account for approximately :f:10% of the entire roof area of the mixed-use buildings. This figure
becomes significantly lower when the roof areas of the townhouse buildings are factored into the
equation. According to the applicant, the height exception is necessary, as a means of breaking up the
horizontal massing of the buildings with minor (uninhabitable) vertical elements. The enhanced quality of
these buildings is achieved by the inclusion of these elements. Allowance of these heights would not
severely reduce light and / or air in the adjacent areas. The applicant claims that the height exception
would not adversely effect property values in adjacent areas or adversely influence the living conditions in
neighboring communities. Staff concurs, Granting of this height exception does not constitute a special
privilege to the current property owner.
RECOMMENDATION
In the accompanying reports, staff is recommending approval of the site plan and request to rezone to the
PUD zoning district. As to the issue of height, staff recommends approval of the height exception request
of 15 feet. This would allow the top of the decorative towers to be designed at 60 feet in height. Any
conditions recommended by the Board or City Commission would be placed in Exhibit "C" - Conditions of
Approval.
S:IPlanningISHAREDlWPIPROJECTSIHeritage Club @ Boynton BeachlHTEX OS-004IStaff Report,doc
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Conditions of Approval
Project name: Heritage Club
File number: HTEX 05-004
Reference: Elevations dated June 14,2005
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS
Comments: None X
UTILITIES
Comments: None
X
FIRE
Comments: None X
POLICE
Comments: None X
ENGINEERING DIVISION
Comments: None X
BUILDING DIVISION
Comments: None X
I Comments: None PARKS AND RECREATION I I I
X
FORESTER/ENVIRONMENT ALIST
Comments: None X
PLANNING AND ZONING
Comments: None X
ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY
COMMENTS:
Comments:
1. None X
Page 2
Heritage Club
File No.: HTEX 05-004
DEPARTMENTS INCLUDE REJECT
ADDITIONAL CITY COMMISSION COMMENTS:
Comments:
2. To be determined.
S:IPlanning\SHAREDlWPIPROJECTSlBoynlon LoftsIHTEX 05-00I\COA.doc
DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA
PROJECT NAME:
Heritage Club
AGENT:
Mr. Jason S. Mankoff / Weiner & Aronson, P.A.
AGENT'S ADDRESS:
102 North Swinton Avenue De/ray Beach, FL 33444
DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: August 2,2005
TYPE OF RELIEF SOUGHT: Request a 15-foot height exception for a mixed-use project on an 8.302-
acre parcel in the Planned Unit Development (PUD) zoning district.
LOCATION OF PROPERTY: Northwest corner of the intersection of Federal Highway and
Gulfstream Boulevard
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida
appearing on the Consent Agenda on the date above. The City Commission hereby adopts the
findings and recommendation of the Community Redevelopment Agency Board, which Board found
as follows:
OR
TH/S MATTER came on to be heard before the City Commission of the City of Boynton
Beach, Florida on the date of hearing stated above. The City Commission having considered the
relief sought by the applicant and heard testimony from the applicant, members of city administrative
staff and the public finds as follows:
1. Application for the relief sought was made by the Applicant in a manner consistent with
the requirements of the City's Land Development Regulations.
2. The Applicant
HAS
HAS NOT
established by substantial competent evidence a basis for the relief requested.
3. The conditions for development requested by the Applicant, administrative staff, or
suggested by the public and supported by substantial competent evidence are as set
forth on Exhibit "C" with notation "Included".
4. The Applicant's application for relief is hereby
_ GRANTED subject to the conditions referenced in paragraph 3 hereof.
DENIED
5. This Order shall take effect immediately upon issuance by the City Clerk.
6. All further development on the property shall be made in accordance with the terms
and conditions of this order.
7. Other
DATED:
City Clerk
SIPlanninglSHAREDI WPIPROJECTSIHeritage Club@ Boynton BeachIHTEX 05-004\OO.ooc
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
New Site Plan
2.
Project:
Heritage Club at Boynton Beach (NWSP 05-
014)
Michael Weiner, Esquire, Weiner & Aronson, P.A.
Thirty Six Hundred Holdings, LLC
3629 South Federal Highway
Request New Site Plan approval in order to
construct 70 townhouse units, a four (4)-story
mixed-use building consisting of 84 dwelling units,
3,500 square feet of restaurant, 4,100 square feet
of retail, and 5,164 square feet of office. The site
plan also includes a three (3)-story mixed-use
building consisting of 12 dwelling units, 5,394
square feet of retail, and 1,380 square feet of
office, all of which are proposed on an 8.302-acre
parcel zoned Planned Unit Development (PUD)
Agent:
Owner:
Location:
Description:
Heiaht Exception
3.
Project:
Heritage Club at Boynton Beach (HTEX 05-
004)
Jason S. Mankoff, Weiner & Aronson, P .A.
Thirty-Six Hundred Holdings, LLC
Northwest corner of the intersection of Federal
Highway and Gulfstream Boulevard
Request for a height exception of 10 feet pursuant
to the City's Land Development Regulations,
Chapter 2, Zoning, Section 4.F.2, to allow the
decorative towers to be 55 feet in height, a
distance of 10 feet above the 45-foot maximum
height allowed in the (PUD) Planned Unit
Development zoning district.
Agent:
Owner:
Location:
Description:
All three Heritage Club items were heard simultaneously, since they were integral to the rezoning
request.
Dick Hudson, Senior Planner, reported that the subject property was currently classified as Local
Retail Commercial and zoned Community Commercial. The request is to change the Future Land
Use Map to Special High Density Residential and rezone to Planned Unit Development for the
purpose of building a Mixed Use project containing slightly less than 20K sq. ft. of commercial space,
which includes office, retail, and restaurant space. There are 160 multi-family residential units. Staff
recommends approval for the following reasons:
o The proposed land use amendment and rezoning are consistent with the applicable
Comprehensive Plan policies and also meet the review criteria required for the Land
Development Regulations.
o The project will replace an antiquated and declining strip commercial center with a
mixed-use project that will be an aesthetic and physical improvement at the City's
southern gateway.
7
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
o The project supports the "Eastward Ho" Initiative, which emphasizes redevelopment
of the coastal area where infrastructure is already in place as opposed to
encouraging development patterns in the suburban areas to the west.
o The project proposes a sizeable number of residential units in a variety of sizes and
styles, with a commercial portion designed to provide a year-round customer and
employment base, which supports the revitalization of the downtown.
Eric Johnson, Planner, displayed a map that showed the townhouse buildings on the west side and
two mixed-use buildings along Federal Highway. The property in the southeast corner was not part
of the project. The office square footage is 6,544 sq. ft. The retail square footage is 9,494 sq. ft.
Restaurant area is 3,500 sq. ft. There would be 70 townhouse units and 96 multi-family units.
The project meets the Traffic Performance Standards of Palm Beach County, contingent upon the
dedication of a right-turn lane into the development from North Federal Highway. Staff reviewed the
project for concurrency with respect to potable water, sanitary sewer, Police/Fire, drainage, and
school and all conditions were met. There are three points of ingress and egress, two on Federal
Highway and a third on Gulfstream Boulevard.
Mr. DeMarco asked Mr. Johnson if the entrances to the property were one-way or two-way, and Mr.
Johnson explained the configuration of the different ingresses and egresses.
Ms. Horenburger asked how people coming from the west on Gulfstream Boulevard would access
the property. The response was that they would have to go north on Federal Highway and make a
U-turn. She asked if there were a plan for a U-turn lane and the response was affirmative. There is
no ingress from Gulfstream Boulevard.
Chair Heavilin inquired about which parking garage the residents would use. Mr. Johnson said that
any shared parking would occur in Building 2. Staff had reviewed the shared parking aspect of the
project and technically, it met the requirements with parking spaces to spare. However, the
applicant had to make the owners aware that they would only have one parking spot. Parking
spaces cannot be designated for just one use in a shared parking scenario. Ms. Horenburger
believed that no parking spot would be designated for the residents and requested clarification.
Mr. Johnson elaborated, saying shared parking occurred in Buildings 1 and 2, but the restaurant
users would only have access to the parking garage in Building 2. Persons living in Building 1 would
have access to a space in the parking garage in Building 1. People in Building 2 would also have
access to a space in Building 2, except that during peak times, there would probably not be any
guest type spaces.
Vice Chair Tillman inquired whether there would be a bottleneck at the turnaround at the end of the
main drive aisle. Mr. Johnson responded that the City's Engineering Department had reviewed it for
turning movements and radii and found no problem.
Mr. Johnson stated that the applicant had been made aware of the shared parking restrictions and
he thought the applicant would be willing to put this in the Homeowners Association documents. Ms.
Horenburger wanted to make awareness of the parking restriction by the residents a condition of
approval.
8
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Jason Mankoff affirmed that they were going to designate twelve of the parking spaces in Building
2 for the twelve units in that Building. Also, they would have documentation in the contract advising
buyers that they would only be guaranteed one space.
Mr. Johnson reviewed the Height Exception. The buildings comply with Code, but there are some
decorative elements that exceed the forty-five foot height maximum height in a PUD. However, the
features of the building that exceed the height limits are interesting and make the whole project
"work."
Staff felt that the proposed project was good for the City and recommended approval of the Height
Exception and Site Plan.
Chair Heavilin invited the CRA Planner to add her comments at this time. She thought this should
become a regular feature in future hearings.
Vivian Brooks, CRA Planner, had participated in the Technical Review Committee. In spite of having
to work around the use on the southeast corner, the applicant had hidden the garages and actively
addressed Old Dixie Highway, Gulfstream Boulevard, and Federal Highway. All the townhouses
connect with walkways to the sidewalks. They were going to create a community that would,
hopefully, set the trend for the rest of Old Dixie Highway and the other projects that will occur in
that area. She thought the project was interesting architecturally, with no long, unbroken expanses.
They had done a good job and she recommended approval of the project.
Mr. Fenton asked Ms. Brooks to comment on the architectural value of the features that called for
the Height Exception. Ms. Brooks said the features added value to the project to a focal gateway
project in the south. To have something that stands out architecturally was what the City had been
looking for on its gateways. The applicants for the project on Woolbright Road and Federal Highway
were asked to bring that project up in height. She personally liked it.
Mr. DeMarco inquired whether the project would have security and protection from surrounding
uses, particularly the one to the southeast. Ms. Brooks responded that the community was
protected visually and physically since an actual physical structure, Building 2, separated them.
Jason Mankoff of Weiner & Aronson, P.A., 209 N. Seacrest Boulevard, Boynton Beach,
spoke as agent for the project. Robert Mathias, David Biggs, and J. P. DiMisa, principals with the
developer, New Century Companies, were present along with Jim Knight, principal of Thirty-six
Holdings, the current owner of the property and Stuart Debowsky and Jose Samuel with MSA
Architects. Jeffrey Schnars, President of Schnars Engineering, and Hugh Johnson, landscape
architect with Architects Alliance, were in attendance as well. Mr. Mankoff distributed a booklet
summary of the project to the board members and showed visual renderings of the Site Plan to the
board and to the audience. Mr. Mankoff stated that this project was very similar to a successful
project they had completed in Delray Beach.
stuart Debowsky, project manager of MSA Architects, said they were proud to present this
project to the City. This is a mixed-use project that has 96 condominium units, 84 of which are in
Building 1. The residents in Building 1 have exclusive use of the parking spaces and Building 2 only
has 12 residential units. There are three-story townhouses with 70 units to the west.
They had tried to put together a project resembling a village. The east-west road was meant to
simulate a '~main street" concept, with angled parking and a, large pedestrian arcade. The applicant
is planning a cafe concept for the comer of Building 1 in supPort of a theme of street activity, both
9
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
day and night. They were considering townhouse models with two "fronts," so they would not have
to present their "back" to Old Dixie Highway. They hoped that all the elements they were putting
together would be reminiscent of a village that had come together over a period of years.
Ms. Horenburger asked what they had done to screen the uses to the north of the project. She had
been told there would be a parking garage between the residential and that area and it appears the
residences would be facing it.
Stuart Debowsky said that it was a tough site on all sides: cars on Federal Highway, the train on Old
Dixie Highway, the use to the southeast, and the storage facility on the north. They had created an
access/service road as an adequate buffer. The first unit occurs thirty to forty feet from the edge of
that. Special care had been taken to screen the property on all sides with landscaping, but
especially on the northern boundary. They felt the actual living spaces were set well apart from the
northern border.
Mr. DeMarco asked why they had chosen the name Heritage Club. Mr. Mankoff responded that
there were other Heritage Clubs in Delray Beach and it was like a brand name. In regard to the
property to the south, if they were able to acquire it, they could possibly have a Phase II. Mr.
DeMarco then asked about the price ranges of the units.
Robert Mathias, New Century Companies, said the condo building would have one, two, and
three bedrooms and they would be between $200-400K and the townhouse units would be between
$400-S00K.
Mr. Fenton questioned what kind of noise buffering the developer had in mind for the units next to
the railroad tracks. Mr. Mathias responded they were going to use landscaping and building
materials that would provide an amazing amount of sound insulation. They had developed two
projects close to railroad tracks and they had not had any issues.
Jose Samuels, MSA Architects, commented that the taller features helped to create visual appeal
for the project. Most main streets did not have long buildings with flat tops, but ones of varying
heights.
Marie Horenburger asked staff whether additional density or height would be involved if the
developer were able to obtain the parcel on the southeast corner. She thought this might occur
since the property owner to the southeast was asking an exorbitant amount of money, additional
incentives might be involved.
Mike Rumpf, Planning & Zoning Director, stated that this project had come in under the current land
use and zoning scheme - it solved the problems. To go outside that, because the developer was at
those thresholds, would exceed what the system allows and would be inconsistent with the Corridor
Plan. Prior proposals were well above the current thresholds. Ms. Horenburger thought it would be
nice to have a more cohesive site as the entrance to the City.
Mr. Mankoff stated the applicant agreed to all 71 conditions of approval. He praised staff for their
assistance and cooperation in the planning of this important, gateway project. The applicant added
two conditions based on the discussions at this meeting: 1) designate twelve spaces for the
condominium owners, and 2) provide notice in the condo documents or in the contract at the time of
signing that each of the individual owners would only be guaranteed one space. They believed that
the height was important for the project and that they had met all the requirements for such a
request.
10
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
July 12, 2005
Chair Heavilin opened the floor to the public, and closed it when no one wished to speak.
Mr. Fenton took issue with the passive voice in some of the Conditions of Approval, pointing out item
1 that asks: "Please indicate number and size of containers." He felt that a more declaratory or
dictatorial tone was in order. Mr. Johnson responded that staff was confident that all the conditions
would be met and if not, permits would not be issued. Staff felt that it had protected the City with
the Conditions of Approval. A large number of the conditions had already been satisfied.
Mr. DeMarco confirmed with the agent that the applicants were in agreement with all 71 Conditions
of Approval and were adding two more. He expressed appreciation for what the developers had
done for that corner of the City.
Mr. Johnson declared that staff agreed with the two new conditions of approval suggested by the
applicant.
Motion
Ms. Horenburger moved to amend the Comprehensive Plan Future Land Use Map from Local Retail
Commercial to Special High Density Residential (LUAR 05-005). Vice Chair Tillman seconded the
motion that passed 5-0.
Motion
Ms. Horenburger moved to approve the request to rezone from C-3 Community Commercial to PUD
Planned Unit Development (LUAR 05-005). Vice Chair Tillman seconded the motion that passed 5-0.
Motion
Ms. Horenburger moved to approve the Site Plan approval for the Heritage Club at Boynton Beach
(NWSP 05-014) subject to all 73 Conditions of Approval. Mr. Fenton seconded the motion.
Chair Heavilin commented that the applicant had raised the bar for development in Boynton Beach.
She thought it was the best project the board had seen. Mr. Mankoff commended City staff for its
efforts.
The motion passed 5-0.
Motion
Mr. Fenton moved to approve the request for height exception of 10 feet for Heritage Club of
Boynton Beach (HTEX 05-004). Vice Chair Tillman seconded the motion that passed 5-0.
C. New Site Plan
Neelam (fka Schnars) Business Center
(NWSP 05-022)
J. Ernest Brady, Stephen James Inc.
Anand D. Patel (Contract Purchaser)
924 N. Federal Highway
Request for Site Plan approval for a three (3) story,
8,754 square foot office/retail building in a Mixed
Use Low (MU-L) zoning district.
Ed Breese, Principal Planner, stated that this property had changed hands and the site plan approval
expired. The new owner would like to build the same building as previously approved.
1.
Project:
Agent:
Owner:
Location:
Description:
11
eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORM
XI. - NEW BUSINESS
ITEM A.
Requested City Commission Date Final Form Must be Turned Requested City Commission
Meeting Dates in to City Clerk's Office Meeting Dates
[8J August 2, 2005 July 18, 2005 (Noon.) 0 October 5, 2005
0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005
0 September 6, 2005 August] 5, 2005 (Noon) 0 November I, 2005
0 September 20, 2005 September 6,2005 (Noon) 0 November 15, 2005
Date Final Form Must be Turned
in to City Clerk's Office
September] 9,2005 (Noon)
October 3, 2005 (Noon)
October 17,2005 (Noon)
.-)
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October 3],2005 (Noon) C j
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0 Administrative 0 Development Plans \.D
NATURE OF 0 Consent Agenda [8J New Business :r.n
-1f....
AGENDA ITEM 0 Public Hearing 0 Legal \..0
0 Bids 0 Unfinished Business
cr",
0 Announcement 0 Presentation
0 City Manager's Report
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RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under New Business for
preliminary consideration of a request for code review. Staff reconnnends that the continued processing of this item be
approved. If supported by the Commission, this proposed change in development standards will be carried forward to the
CRA and Planning and Development Boards for their review before being brought forward for Commission consideration.
Staff proposes this item based on its furthering of development plans and initiatives. For further details pertaining to the
request, see attached Department of Development Memorandum No. PZ 05-129.
EXPLANATION:
PROJECT:
AGENT:
LOCATION:
DESCRIPTION:
Rights-of-way in PUD Planned Unit Developments
Staff-initiated
Planned Unit Development zoning districts
Preliminary review of request to amend the Land Development Regulations, Chapter 2.5,
Section 9. Internal PUD standards, F. RIGHTS OF WAY to allow secondary roadways
within a PUD to be approved with right-of-way widths ofless than 40 feet.
PROGRAM IMPACT:
FISCAL IMPACT:
ALTERNATIVES:
N/A
N/A
N/A
City Manager's Signature
!d.:~Li;&Ue"o,
City Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEw\CDRV 05-014 R-O-W in PUDs\Agenda Item Request - August 2, 2005.dot
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 05-129
FROM
Chair and Members
Planning and Development Board,
Community Redevelopment Agency Board,
Mayor and City Commission
Dick Hudson, AICP ~
Senior Planner. L-P
Michael W. Rump~
Director of Planning and Zoning
TO:
THROUGH:
DATE:
July 18, 2005
SUBJEcr:
Rights-of-way in PUDs
CDRV 05-014
NATURE OF REOUEST
Staff is proposing amendments to the Land Development Regulations, Chapter 2.5 Planned
Unit Developments, Section 9. Internal PUD standards. F. RIGHTS OF WAY, to add the
following:
"Privatelv owned streets providinQ secondarv vehicular circulation internal to the PUD
may be considered for approval with riQhts-of-wav and pavement widths less than the
reQuirements stated in the city's Land Development ReQulations: however, in no case
shall health, safety, welfare, or efficiencies of public services be leopardized."
BACKGROUND
Currently, the language in the Land Development Regulations, Chapter 2.5 Planned Unit
Developments, Section 9. Internal PUD standards. F. RIGHTS OF WAY, reads as follows:
"F. RIGHT-OF-WAYS. The minimum width ofa right-of-way in a PUD is forty (40)
feet. In the event of a conflict with this section and any other provisions of the City's Land
Development Regulations regulating the width ofthe right-of-ways, this section shall prevail."
This requirement leaves no opportunities for one-way streets, service roads or common
driveways of any lesser widths. Site plans for developments based on "New Urbanism"
principals are being submitted that are proposing elements of internal circulation with pavement
widths and rights-of-way less than the 40-foot requirement. These circulation elements include
one-way streets and shared rear-access driveways (alleys); however, because of the restrictive
language in the PUD regulations, these cannot be considered for approval. There is no similar
problem with the Infill PUD regulations, since language in those development standards permits
narrower rights-of-way at the discretion of the City Engineer.
Page 2
CDRV 05-014
Rights-of-way in PUDs
ANALYSIS
Staff has researched a number of development regulations across the country in an attempt to
find standards that would be applicable in all cases and in particular, would accommodate the
types of site plans that are being submitted. One example is the Heritage Club site plan for the
redevelopment of the Gulfstream Mall, where a one-way service drive with a 34-foot width is
proposed on the north side of the site. Another example will be seen in the High Ridge
development, where streets with proposed rights-of-way of 20 feet would provide access to
garages behind the single-family residences.
The publication, "Residential Streets, Third Edition, published by the Urban Land Institute in
conjunction with the American Society of Civil Engineers, the Institute of Transportation
Engineers, and the National Association of Home Builders recommends right-of-way widths
ranging from 34 feet, for low volume local streets, up to 62 feet for collector streets. The
Smartcode, copyrighted by Andres Duany and Elizabeth Plater-Zyberk, shows recommended
rights-of-way ranging from 20 feet, for alleys or lanes, up to 60 feet for urban streets with
parking on both sides. Other codes range from a standard of 30 feet minimum to 60 feet
minimum.
The typical 40-foot right-of-way is expected to provide for two-way traffic with pavement widths
ranging from 22 to 34 feet, in addition to sidewalks (where required) and drainage facilities.
Logically, the ultimate right-of-way for any street would take into account a number of factors:
the minimum pavement width necessary to support the average daily traffic volume, on-street
parking needs; access for emergency, maintenance, and service vehicles; pedestrian
accommodations; landscaping; and, utility lines. When these considerations can be
accommodated in a right-of-way of less than a 40-foot width, the City Engineer should be able
to require less, which current language prohibits. This proposed amendment language has been
drafted through a collective effort with the Engineering staff, and will provide appropriate
flexibility, which is a major characteristic of planned unit development zoning.
RECOMMENDATION
Proposed code amendments are attached as "Exhibit A". It is staff's opinion that the proposed
amendments are the minimum necessary to achieve the desired results by allowing the City
Engineer to decide the minimum rights-of-way necessary to for secondary circulation, while
protecting the health, safety, welfare and efficiencies of providing public services; therefore staff
recommends that the proposed amendments be carried forward to the Planning and
Development Board and the Community Redevelopment Agency Board for their review and
comments prior to ultimate and final review by the Commission.
Exhibits
S:\PLANNING\SHARED\WP\SPECPROJ\CODE REVIEW\CDRY 05-014 R-O-W IN PUDS\CDRYSTAFFREPT.DOC
Exhibit" A"
Proposed Amendments
Chapter 2.1 Planned Unit Developments, Section 9. Internal PUD standards. . .
F. RIGHTS,-OF-WA YK The minimum width ofa right-of-way for a principal
street in a PUD is forty (40) feet. In the event of a conflict with this section
and any other provisions ofthe City's Land Development Regulations
regulating the 'Nidth of the right of ways, this section shall prevail. Privately
owned streets providing secondary vehicular circulation internal to the PUD
may be considered for approval with rights-of-way and pavement widths less
than the requirements stated in the city's Land Development Regulations;
however, in no case shall health, safety, welfare, or efficiencies oflJublic
services be ieopardized.
S:\PlanningISHAREDlWP\SPECPROJlCODE REVIEWlCDRV 05-014 R-O- Win PUDs\Code Language.doc
XII. - LEGAL
ITEM A.l
eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORlVI
Requested City Commission Date Final Form Must be Turned Requested City Commission
Meeting Dates in to City Clerk's Office Meetin~ Dates
[8J August 2, 2005 July 18, 2005 (Noon.) 0 October 5, 2005
D August 16, 2005 August 1,2005 (Noon) D October 18, 2005
D September 6, 2005 August 15,2005 (Noon) D November I, 2005
D September 20, 2005 September 6, 2005 (Noon) D November 15, 2005
Date Final Form Must be Turned
in to City Clerk's Office
September 19,2005 (Noon)
October 3, 2005 (Noon)
October 17,2005 (Noon)
October 31,2005 (Noon),
"-_...
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D Administrative D Development Plans 1'0
NATURE OF D Consent Agenda D New Business Ct
AGENDA ITEM D Public Hearing [8J Legal '-"(1
._i;;'a
D Bids D Unfinished Business r:-?
D Announcement 0 Presentation w
0;;.
D City Manager's Report
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RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Legal, Ordinance-
Second Reading. The City Commission approved on July 19,2005, the subject request under Legal, Ordinance - First
Reading. For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-
046.
EXPLANATION:
PROJECT:
AGENT:
LOCATION:
DESCRIPTION:
Urban Commercial Districts (CDRV OS-OM)
City Staff Initiated
Community Redevelopment Agency Area
Request to amend the Land Development Regulations (LDR), Chapter 2, Zoning, Section
6 and Section 8.5, to create an overlay district to reduce the front, side interior, and side
comer yard building setbacks for parcels currently zoned Office and Professional District
(C-I), Neighborhood Commercial District (C-2), Community Commercial District (C-3),
and General Commercial District (C-4), located within targeted areas of the CRA.
PROGRAM IMPACT:
FISCAL IMPACT:
ALTERNATIVES:
N/A
N/A
N/A
ft-v.{J~
Planning and Zo g DIrector CIty Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEw\CDRV 05-004 Urban Commercial Overlay\Agenda Item Request Urban Comm. Dist. CDRV 05-
004 8-2-05 2nd reading.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
r I
i I
1 ORDINANCE NO. 05- oaq
2
3
4 AN ORDINANCE OF THE CITY COMMISSION OF
5 THE CITY OF BOYNTON BEACH, FLORIDA
6 AMENDING LAND DEVELOPMENT
7 REGULATIONS, CHAPTER 2, ZONING, SECTION 6
8 AND SECTION 8.5. BY CREA TING A NEW
9 SECTION 8.5 B ENTITLED "URBAN
10 COMMERCIAL DISTRICT OVERLAY ZONE";
11 PROVIDING FOR CONFLICTS, SEVERABILITY,
12 CODIFICATION AND AN EFFECTIVE DATE.
13
14
15
16 WHEREAS, upon recommendation of staff, the City Commission has determined
17 that the establishment of the Urban Commercial District Overlay Zone and corresponding
18 setback regulations would complement the City's endeavor in promoting progressive and
19 exemplary urban design; and
20 \VHEREAS, the proposed code amendment would help to harmonize the
21 placement of buildings and address some of the inconsistencies between urban and
22 suburban regulations.
23 NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION
24 OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
The foregoing whereas clauses are true and correct and are now
25
Section 1.
26 ratified and confinned by the City Commission.
27 Chapter 2, Zoning, is hereby amended by adding the words and figures III
28 underlined type, as follows:
29
Sec. 8.5
Overlay Zones
30
31
32
B.
URBAN COMMERCIAL DISTRlCT OVERLAY ZONE.
I. Intent and purpose. The purpose of this zone is to encourage the
S:\CA\Ordinances\LDR ChangeslUrban Commercial Overlay 071305.doc
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development and redevelopment of commercially-zoned parcels in
a manner consistent with the pattern of development of parcels with
Mixed-Use zoning classifications.
2.
The obiectives of this overlay zone are as follows:
a. Support and enhance revitalization efforts along the
City's commercial corridors within the
redevelopment areas.
b. Improve aesthetic and pedestrian streetscape
environments by preventing the placement of off-
street parking between the front of the building( s)
and the rights-of-way.
c. Allow flexibility in architectural design and building
bulk; while maximizing compatibility and harmony
with adioining development within the Defined area.
3.
Defined area. The Urban Commercial District Overlay Zone is
established in the city redevelopment plans as the geographical area
defined by the following boundaries:
a. Federal Highway Corridor Community
Redevelopment Plan. The boundary is the City
limits to the north, the Intracoastal Waterway to the
east, the City boundary to the south, and the Florida
East Coast Railroad (F.E.C.) and Palm Boulevard
(Northeast 4th Street) to the west. The legal
description is more particularly described in Exhibit
1.1, Appendix of the Federal Highway Corridor
Community Redevelopment Plan.
b. The Ocean District Community Redevelopment
Plan. The boundary is Northeast 3rd A venue to the
north, Seacrest Boulevard to the west, F.E.C,
Railroad to the east, and Southeast 2nd Avenue to
the south.
c. Boynton Beach Boulevard Corridor Plan. The
boundary is the commercially-zoned parcels located
along west Boynton Beach Boulevard, east of
Interstate 95, and west of Seacrest Boulevard.
S:\CA \Ordinances\LDR Changes\Urban Conunercial Overlay 071305.doc
1
2
3
4
5
6
4. Development Standards.
a. Parcels shall have the following setback
requirements:
Front yard
Side (interior) yard
Side (comer) yard
Rear yard
five (5) feet to fifteen (15) feet
zero (0) feet to fifteen (15) feet
ten (l0) feet to fifteen (15) feet
shall be defined by the applicable
zoning district regulations;
7
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b. Maximum building height shall be defined by the
applicable zoning district regulations;
c. Maximum lot coverage for building(s) shall be 40
percent;
5. Landscape Requirements
Foundation landscaping and trees shall be installed
within the reduced building setback areas, between
the building( s) and property line( s), particularly.
where adiacent or visible from public and/or private
rights-of-way.
Section 3.
Should any section or provision of this Ordinance or any portion
28
thereofbe declared by a court of competent jurisdiction to be invalid, such decision shall
29
not affect the remainder of this Ordinance.
30
Section 4.
Section 5.
Authority is hereby given to codify this Ordinance.
This Ordinance shall become effective immediately.
31
32
FIRST READING this J.i. day of July, 2005.
33
S:\CA \Ordinances\LDR Changes\Urban Commercial Overlay 071305 doc
SECOND, FINAL READING AND PASSAGE this
day of August, 2005.
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18 ATTEST:
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
19
20
21 City Clerk
22
S:\CA\Ordinances\LDR Changes\Urban Commercial Overlay 071305.doc
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DMSION
MEMORANDUM NO. PZ 05-046
TO:
Chair and Members
Community Redevelopment Agency Board
Eric lee Johnson, AICP fjf--
Planner V
Michael W. Rumpf
Director of Planning and Zoning
FROM:
THROUGH:
DATE:
March 30, 2005
Urban Commercial District Overlay (CDRV 05-004)
SUBJECT:
NATURE OF REOUEST
Staff has been requested to consider this proposed amendment to the Land Development
Regulations to reduce the building setbacks for propertfes wIthin conventional commerdal zoning
districts In targeted areas of the city. The Intent Is to allow flexibility In site design by requiring a
"build-to" line with regards to the required front, sIde, and side comer building setbacks. This
will help to serve as a catalyst for redevelopment efforts on smail-sized parcels that have not or
most likely would not be assembled as part of a large mixed-use project and maximize
consistency with adjacent or nearby projects that are developed under the mixed-use zoning
dIstrict.
BACKGROUND
As per the Federal Highway Corridor Community Redevelopment Plan, the City adopted the
Mixed Use-low (MU-l) and Mixed Use-High (MU-H) zonIng districts on June 18, 2002. However,
after 18 months of working with these regulations, staff determined that minor amendments
were warranted to bring the regulations Into closer conformance with the Intent of the Plan. The
updates were made, in part, to protect neighborhoods of sIngle-family homes that are or would
be adjacent to potentIal mIxed use districts. The mIxed use regulations are and could be applied
to those propertfes designated with Mixed Use (MX) and Mixed Use-Core (MXC) land use
dasslflcatlons (as shown on the Oty's Future land Use Map of the Comprehensive Plan).
Also In June 2002, the dty created the Inflll Planned UnIt Development (IPUD) zonIng district.
The IPUD zonIng district regulations were updated In 2004 to provfde more dlrectfon to
developers regardIng compatibility with exIsting development, while stili omitting exactfng
standards. These districts were desIgned, In part, to encourage hIgher densities and Intensities,
to help redevelop the older portfon of the city while simultaneously creating an urban sense of
place. It should be noted that reduced building setbacks Is a common element Inb1nslc' to all the
aforementioned districts. The problem with current conventional commercial zoning district
regUlations Is that portions of a sIte may be devefoped for resIdential uses; however, the
regulations do not encourage a true Integration of commercial and resIdential uses, and basIcally
perpetuate the suburban "strip centers" that offer little or no connectivity, allow parking lots to
Page 2
CDRV 05-004
Urban Commercial District Overlay
separate the project from the adjacent roadways, and do not yield large projects with unified
designs.
ANALYSIS
This report analyzes the required building setbacks of the CIty's conventional commerdal zoning
districts: OffIce Professional (C-l), Neighborhood Commercial (C-2), Community Commerdal (C-
3), and General Commercial (C-4). According to the statements contained within the proposed
Urban Design Guidelines, the current Land Development Regulations for the Cty's commercial
districts encourage suburban-oriented development to occur. The commercial regulations
require large front setbacks, low dens!ty, height limitations, and separation of uses. This type of
zoning prohibits higher density development or mixed-use developments, which are appropriate
In the portions of the Community Redevelopment Agency (CRA) area for redevelopment
purposes. The outcome has prevented the City from experlendng the needed economic growth
that other dtles have experienced. In response to this type of development, the dty created the
mixed-use zoning districts, namely Mixed Use-High (MU-H) and Mixed Use-Low (MU-L) and staff
Is currently reviewing the possibility of creating additional mixed-use zoning regulations. In any
case, the current regulations regarding the mixed use districts are very explicit In Its Intent; to
encourage quality development, redevelopment, and urban Infill In the Oty's older and blighted
downtown and outlying areas. These regulations are very effective In cases when Indlvfduallots
have been ,assembled or amassed as part of a large conglomeration for large-scale mixed-use
developments. The new regulations appropriately steer the desired type of growth pattern.
However, the problem occurs when commercially-zoned parcels, which are not a component of a
mixed-use development, are too small and I or too Isolated to be eligible for mixed-use zoning.
Under the current regulations, the subsequent bulld-out of these types of lots would be bound to
suburban zoning standards, resulting In a growth pattern Inconsistent with the newer, mlxed-use
developments advocated throughout the aty's downtown and outlying areas. This Inconsistency
could hinder the aty's effectiveness In managing the urban design for future development.
Suburban standards In urban areas undermine staff leverage when negotiating with developers
on Issues such as creating pedestrian-friendly corridors, concealing off-street parking areas, and
regulating automotlve-oriented uses. A solution would be to create an overlay district for
commercial areas, which would complement the aty's endeavor In promoting progressive and
exemplary urban design (see Exhibit "B"). If the proposed guidelines were approved, developers
would then be bound to the bUilding setbacks of the newly created Overlay DIstrict for properties
of those targeted commercial areas. While the proposed code amendment does nothing to
Increase the Intensity, height, or mixing of land uses In a given zoning district, It would help to
harmonize the placement of buildings and address some of the Inconslstendes betw~n urban
and suburban regulations. Furthermore, It Is stafrs opinion that the new Overlay DIstrict would
not discourage property owners from assembling lots and rezoning to mixed-use districts and
neither would the Overlay DIstrict perpetuate an undesirable growth pattern.
RECOMMENDATION
Staff recommends approval of the aeatlon of the proposed Urban Commercial Dlstrtct Overlay.
Any deletions or additions recommended by the Community Redevelopment Agency Board or
Oty Commission would be ultimately reflected In the flnal ordinance.
s:\Plannlng\$HARE()\WP~OJ\COOE REVIEW\CDRV 05-004 uroan Commerdal Overtay\Staff Report.doc
Exhibit 'A' - Urban Commercial District Overlay Map
.
o 1,250 2,500
~
10,000
I Feet
..'
5,000
,r
7,500
t
EXHIBIT "B" - PROPOSED CODE AMENDMENTS
.,00. 8.5.
Overlay zones.
A. MARTIN LUTHER KING BOULEVARD
OVERLAY ZONE.
1. General. With the completion of the Vision
20/20 Redevelopment Plan. the City identified a segment of
the Martin Luther King Boulevard as an area in need of
redevelopment and revitalization. This section is created to
implement the development and design recommendations
in the Redevelopment Plan intended to create a traditional
street corridor with pedestrian improvements, storefronts
along the sidewalk, and a mixture of uses. The corridor is
~o contain an ambience supported by pleasant signage and
building appearance, potted landscaping. store windows
and public open spaces. All development within the Martin
Luther King Boulevard corridor shall occur according to
the provisions of the adopted plan as stated below.
2. Defined. The Martin Luther King Boulevard
Overlay Zone is hereby established as the area defined by
the parcels fronting on that portion of the Boulevard
l"'Cated east of Seacrest Boulevard and west of Federal
,hway right-of-way. along with those parcels adjacent to
me north and south of these parcels that front on the
Boulevard if assembled and development as a unified
project.
3. Permitted uses. As currently defined in
Chapter 2(5)(G) and Chapter 2(6)(B).
4. Prohibited uses. Reserved
5. Development standards.
a Parcels that have frontage along
Martin Luther King Boulevard shall have a minimum front
setback of 3 feet and a maximum front setback of 12 feet.
b. Minimum side setback from
interior lot lines shall be 5 feet, and a minimum of 3 feet
and a maximum of 12 feet from comer lot lines.
c. Maximum building height shall be
30 feet and subject to other provisions of Chapter 2(4)(F).
d. Lot regulations stated within
..pters 2(5)(0) and 2(6)(8) except where superseded by
the regulations stated herein.
6. Signs. Reserved
7. Design Standards. Reserved
8. Landscaping. Reserved
9. Parking.
a. Parking space requirements shall
be calculated in accordance with Section II.H.16 of these
zoning requirements, and shall be reduced by fifty percent
(50%);
b. Required parking spaces shall be
owned or leased within one thousand (1.000) feet of the
building to be served.
(1) The distance requirements
shall be a straight line measurement from a point on the
boundary line of the property that is the subject of the
application to the closest boundary line of the property on
which the leased parking is located.
(2) The property that is the subject
of the application shall be posted with signage indicating to
patrons the location of the off-site parking.
c. Lease arrangements to provide
required parking spaces shall be subject to approval by the
Community Redevelopment Agency.
(Ord. No. 00-30, ~ 1.6-20-00; Ord. No. 02-014. ~ 1,4-16-
02)
B. URBAN COMMERCIAL DISTRICT OVERLAY
ZONE.
1. Intent and pmpose. The DutpOse of this zone
is to encourage the development and redevelQpment of
commercially-zoned parcels in a manner consistent with the
pattern of development of parcels with Mixed-Use zonin2
classifications. In addition. anv parcels subsequentlv
annexed into the City of Bovnton Beach within the
boundaries of the Community RedevelQpmel1t Agency area
with commercial zoning may also utilize these setback
reductions.
follows:
2. The objectives of this overlay zone are as
a. Supj)Ol1 and enhance revitalization
efforts in the city's traditional commercial area:
b. Allow flexibility in the site design
in order to create a more urban environment ~y
discouraging the olacement of off-street parking between
the front of the building(s) and the riJZhts-of-way. Create
0Dtima1 nedestrian environments through .,prOj)riate
8q)ar8.tion from. and desi2l1 of vehicular circulation areas:
c. Allow flexibility in architectural
design and building bulk: while maximizing compatibility
and harmonv with adioining development within the
Defined area.
3. Defined area. The Urban Commercial District
Overlay Zone is established as the geographical area as
defined bv the boundaries of the following city
RcdevelOllment Plans:
a. Federal HiJZhway Corridor
Connnunity. Redevelopment Plan. The boundary is
2enerallv described as the city limits to the north. the
Intracoastal Waterway to the east. the municipal boundaty
to the south. and the Florida Bast Coast Railroad (f .B.C.)
and Palm Boulevard (Northeast 4& Street) to the west. The
Jepl descriotion is more particularly descnDed in Exhibit
1.1. Appendix of the Federal Highwav Corridor
Community Redevelopment Plan.
b. The Ocean District Community
Redevelopment Plan. The boundary is lZenerally described
as Northeast 3rd Avenue to the north. Seacrest Boulevard
to the west. F.RC. Railroad to the east. and Southeast 2nd
Avenue to the south.
c. Boynton Beach Boulevard
Corridor Plan. The boundary is generally described as the
commercially-zoned parcels located along Boynton Beach
Boulevard. east of Interstate 95. and west of Seacrest
Boulevard. The area is more particularly defined on the
Location Map on Dage 2 of the Boynton Beach Boulevard
Corridor Plan.
4. Development Standards.
a.
setback reauirements:
Parcels shall have the following
Front yard
Side (interior) yard
Side (corner) yard
Rear yard
five (5) feet to fifteen (15) feet
zero (0) feet to fifteen (15) feet
ten (0) feetto fifteen (5) feet
shall be defined by the applicable
zoning district regulations:
b. Maximum buildin, heipt Rhall be
defined by the IqlJicable zoninlr district regulations:
c. Maximum lot coverage for
building(s) shall be 40 percent:
d. Foundation landscaping and trees
are recommended to be installed within the reduced
building setback areas. between the building(sl and
property line( s), particularly. where adjacent or visible from
public and / or private rilZhts-of-way.
C-t OFFICE AND PROFESSIONAL COMMERCIAL
~1STR1CT. C-3
3. Building and site regulations. No building
or portion thereof shall be erected, constructed, converted,
established, altered, enlarged or used unless the premises
and buildings shall comply with the following regulations:
Minimum lot frontage
Minimum lot depth
Minimum lot area
Maximum lot coverage
(building)
Minimum front yard
Minimum rear yard
Minimum side yards
Maximum structure height
75 feet
120 feet
9,000 square feet
40 percent
30 feeti
20 feet
10 feet.!
30 feet, not to exceed 2
stories..
Iparcels located within the Urban Commercial District
Overlay Zone are subiect to the required building setbacks
DUl'SU8nt to Chapter 2. Section 8.S.B.3.
~ abutting residential district, side and/or rear yards
sbal1 be thirty (30) feet.
_-1. NEIGHBORHOOD COMMERCIAL DISTRICT.
3. Building and site regulations. No building
or portion thereof shall be erected, constructed, converted,
established, altered, enlarged or used unless the premises
and buildings shall comply with the following regulations:
Minimum lot frontage
Minimum lot depth
. Minimum lot area
Maximum lot coverage
Minimum front yard
Minimum side yard
(interior lots)
Minimum side yard
(comer lots)
Minimum rear yard
Maximum structure height
50 feet
100 feet
5,000 square feet
40 percent
30 feet
15 feet.!
20 feet on side streeti
20 feet.
25 feet, not to exceed 2
stories
IParnels 1~ within the Urban Commercial District
Overlay Zone are subiect to the reauired buDdin, setbacks
pursuant to cm.Dter 2. Section 8.5.B.3.
en abutting residential districts, side and/or rear yards
IbalI be thirty (30) feet.
C-3 COMMUNITY COMMERCIAL DISTRICT
3. Building and site regulations. No building or
portion thereof shall be erected, constructed, converted,
established, altered, enlarged or used unless the premises
and buildings shall comply with the following regulations:
Minimum lot frontage
Minimum lot area
Maximum lot coverage
(building)
Minimum front yard
Minimum side yard
75 feet
15,000 feet
40 percent
20 feeti
Nonel (see Notes
(interior lots) a and b)
15 feet street sidel
(see Note b)
20 feet (see Notes b and c)
4S feet, not to exceed 4
stories
lparcels located within the Urban Commercial District
Overlay Zone are subject to the reauired buildin2 setbacks
pursuant to Chapter 2. Section 8.S.B.3.
Minimum side yard
(comer lots)
Minimum rear yard
Maximum structure height
a. Where rear access is not available from a
public street or alley, a side yard of not less than fifteen
(IS) feet shall be provided on one side.
C-4 GENERAL COMMERCIAL DISTRICT.
3. Building and site regulations. No building
or portions hereof shall be erected, con-structed, converted,
established, altered, enlarged or used unless the premises
and buildings shall comply with the following regulations:
Minimum lot frontage
Minimum lot depth
Minimum lot area
Maximum lot coverage
Minimum front yard
Minimum side yard
(interior lots)
Minimum side yard
(corner lots)
50 feet
100 feet
5,000 square feet
40 percent
25 feeti
15 feet one side4<l
15 feet on street
side4<l
20 feet.
45 feet not to exceed 4
Minimum rear yard
Maximum structure height
stories
lparce18 located within the Urban Commercial District
Overlay Zone are su~fect to the reauimd buildin.; s;tbacks
DUl'RUBnt to ~ 2. Section 8.5.8.3,
.When abutting residential districts, side and/or rear yards
shaI1 be thirty (30) feet.
eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORh'.l
XII. - LEGAL
ITEM A.2
Requested City Commission Date Final Form Must be Turned Requested City Commission
Meeting Dates in to City Clerk's Office Meeting Dates
[8J August 2, 2005 July 18,2005 (Noon.) D October 5, 2005
D August 16,2005 August 1,2005 (Noon) D October 18, 2005
D September 6, 2005 August 15,2005 (Noon) D November I, 2005
D September 20, 2005 September 6,2005 (Noon) D November 15,2005
Date Final Form Must be Turned
in to City Clerk's Office
September 19,2005 (Noon)
October 3, 2005 (Noon)
October 17, 2005 (Noon)
October 31, 2005 (Noon)
." )'~l
D Administrative D Development Plans
NATURE OF D Consent Agenda D New Business
AGENDA ITEM D Public Hearing [8J Legal
D Bids D Unfinished Business
D Announcement D Presentation
D City Manager's Report
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RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Legal, Ordinance-
Second Reading. The City Commission approved the subject request on July 19,2005 unl:ier Public Hearing and Legal,
Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development
Memorandum No. PZ 05-108.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
Knollwood II (ANEX 05-002))
Chip Bryan, Julian Bryan & Associates, Inc.
Zygmunt Jadczak
Between Lawrence Road and Military Trail approximately 700 feet south of the LWDD
Canal L-20
Request to annex :!:5.5 acres ofIand to be reclassified and rezoned for development as part
of the Knollwood PUD.
PROGRAM IMPACT:
FISCAL IMP ACT:
ALTERNATIVES:
J1~~~a
Zt).~
Planning and Z rung Drrector CIty Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knollwood IJ\ANEX 05-002\Agenda Item Request Knollwood II ANEX 05-002 8-2-05.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
i i
I'
Ii
1 ORDINANCE NO. 05- o~F1
2
3 AN ORDINANCE OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, ANNEXING 5.5+/- ACRES OF
5 LAND THAT IS CONTIGUOUS TO THE CITY
6 LIMITS \VITHIN PALM BEACH COUNTY AND
7 THAT WILL, UPON ANNEXATION, CONSTITUTE
8 A REASONABLY COMPACT ADDITION TO THE
9 CITY TERRITORY; PROVIDING THAT THE
10 PROPER LAND USE DESIGNATION AND PROPER
11 ZONING OF THE PROPERTY SHALL BE
12 REFLECTED IN SEPARATE ORDINANCES TO BE
13 PASSED SIMULTANEOUSLY HEREWITH;
14 PROVIDING FOR CONFLICTS, SEVERABILITY,
15 AND AN EFFECTIVE DATE; PROVIDING THAT
16 THIS ORDINANCE SHALL BE FILED WITH THE
17 CLERK OF THE CIRCUIT COURT OF PALM
18 BEACH COUNTY, FLORIDA, UPON ADOPTION.
19
20 WHEREAS, the Comprehensive Plan for the City of Boynton Beach requires the
21 development of an Annexation Program; and
22 WHEREAS, the owner, Zygmunt Jadczak by and through their agent, Julian
23 Bryan and Associates, of the property more particularly described hereinafter, has
24 heretofore filed a Petition, pursuant to Section 9 of Appendix A-Zoning, of the Code of
25 Ordinances, City of Boynton Beach, Florida, for the purpose of annexing a certain tract
26 ofland consisting of approximately 5.5 acres; and
27 WHEREAS, the City of Boynton Beach hereby exercises its option to annex the
28 following tract of land as hereinafter described, in accordance with Article I, Section 7
29 (32) of the Charter of the City and Section 171.044, and 171.062(2), Florida Statutes;
30 and
3 1 WHEREAS, said tract of land lying and being within Palm Beach County is
32 contiguous to the existing city limits of the City of Boynton Beach, and will, upon its
33 annexation, constitute a reasonably compact addition to the City territory.
S;\CA\Ordinances\Planning\Annexations\Annexation - Knollwood II.doc
1 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION
2 OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
3
Section ].
That each and every Whereas clause is true and correct.
4
Section 2.
Pursuant to Article I, Section 7 (32) of the Charter of the City of
5 Boynton Beach, Florida and Section 17] .044, Florida Statutes the following described
6 unincorporated and contiguous tract of land situated and lying and being in the County
7 of Palm Beach, Florida, to wit:
8 THE NORTH Yz OF THE SOUTHEAST Y4 OF THE
9 NORTHWEST ~ OF THE NORTHEAST 1/4 IN SECTION ] 3,
10 TOWNSHIP 45 SOUTH, RANGE 42 EAST OF THE PUBLIC
11 RECORDS, PALM BEACH COUNTY, FLORIDA.
12
13 CONTAINING APPROXIMATELY 5.5 ACRES OF LAND
14
15 is hereby annexed to the City of Boynton Beach, Florida, and such land so annexed shall
16 be and become part of the City with the same force and effect as though the same had
1 7 been originally incorporated in the territorial boundaries thereof.
18
Section3 :
That Section 6 and 6(a) of the Charter of the City of Boynton Beach,
19 lorida, is hereby amended to reflect the annexation of said tract of land more particularly
20 escribed in Section 2 of this Ordinance.
21
Section 4:
That by Ordinances adopted simultaneously herewith, the proper City
22 oning designation and Land Use category is being determined as contemplated in Section
23 71.162(2), Florida Statutes.
24
Section 5.
All ordinances or parts of ordinances in conflict herewith are hereby
25 epealed.
26 Section 6: Should any section or provision of this Ordinance or any portion thereof
27 e declared by a court of competent jurisdiction to be invalid, such decision shall not affect the
S:\CA\Ordinances\Planning\Annexations\Annexation - Knollwood II.doc
1 remainder of this Ordinance.
2
Section 7:
This Ordinance shall not be passed until the same has been advertised
3 r two (2) consecutive weeks in a newspaper of general circulation in the City of Boynton
4 each, Florida, as required by the City Charter and Section 171.044, Florida Statutes.
5
Section 8.
This ordinance shall become effective immediately upon passage.
6
Section 9.
This ordinance, after adoption, shall be filed with the Clerk of the
7 Circuit Court of Palm Beach County, Florida.
8
FIRST READING this ~ day of J u 1'1
SECOND, FINAL READING and PASSAGE this _ day of
,2005.
,2005.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 ATTEST:
25
26
2', City Clerk
28
29
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
S:\CA\Ordinances\Planning\Annexations\Annexation - Knollwood II.doc
TO:
FROM:
THROUGH:
DATE:
PROJECT NAME/NUMBER:
REQUEST:
DEVELOPMENT DEPARTMENT
PLANNING &. ZONING DIVISION
MEMORANDUM NO. PZ 05-108
Chair and Members
Planning and Development Board and
Mayor and City Commission
Dick Hudson, AIC~
Senior Planner tplU
Michael W. Rumpf
Director of Planning and Zoning
June 14, 2005
Knollwood II
ANEX 05-002 & LUAR 05-006
Annex the property, amend the future land use designation from
MR-5 (Palm Beach County) to Low Density Residential (LDR) and
rezone from Agricultural Residential (Palm Beach County) to
PUD-Planned Unit Development
Property Owner:
Applicant/Agent:
Location:
Parcel Size:
Existing Land Use:
Existing Zoning:
Proposed Land Use:
Proposed Zoning:
Proposed Use:
PROJECT DESCRIPTION
Zygmunt Jadczak
DRHI, Inc./Julian Bryan and Associates
Between Lawrence Road and Military Trail approximately 700 feet
south of the LWDD Canal L-20 (Exhibit "A")
::f:5.5 acres
MR-5 Medium Density Residential at 5 du/ac with PUD zoning
(Palm Beach County)
AR Agricultural Residential
Low Density Residential (LOR)
PUD Planned Unit Development
25 zero lot line Single Family Residences
Page 2
File Number: LUAR 05-006
Name: Knollwood Groves II
Adjacent Uses:
North:
South:
East:
West:
Property lying within the City of Boynton Beach designated Low Density
Residential and zoned PUD Planned Unit Development (Knollwood
Groves). The property was recently the subject of a land use
amendment and rezoning under Round 05-2 Large scale amendments.
Developed residential property lying in unincorporated Palm Beach
County designated LR-3 (3 du/ac with PUD zoning) and zoned AR
Agricultural Residential.
Developed residential property (Nautica) lying within the City of
Boynton Beach, designated Low Density Residential (LDR) and zoned
PUD Planned Unit Development
Developed residential property (Sunset Cay) lying in unincorporated
Palm Beach County designated MR-S (5 du/ac with PUD zoning) and
zoned PUD Planned Unit Development
EXECUTIVE SUMMARY
Staff recommends approval of the requested annexation, land use amendment and rezoning for
the following reasons:
1. The property is contiguous to the City of Boynton Beach on two sides and will constitute
a reasonably compact addition to the City.
2. The petition is consistent with the City's Comprehensive Plan Future Land Use Map
designation for properties to be annexed, with the City's annexation program and with
service availability.
3. The property was proposed as a part of the master plan for the Knollwood Groves PUD,
approved for development by the City on May 17, 2005 in anticipation of submittal of
the subject requests.
PROJECT ANALYSIS
The parcels, which are the subject of this land use amendment, total :tS.S acres. Because of
the size of the property under consideration, the Florida Department of Community Affairs
classifies this amendment as a "small scale" amendment. A "small-scale" amendment is
adopted prior to forwarding to the Florida Department of Community Affairs and is not reviewed
for compliance with the state, regional and local comprehensive plans prior to adoption.
Master Plan Requirements
The regulations for the Planned Unit Development zoning district require that a master plan,
including multi-year phases be submitted and reviewed for approval at the time of rezoning to
PUD. The required master plan submitted prior to transmittal of the large-scale amendment for
Page 3
File Number: LUAR 05-006
Name: Knollwood Groves II
the Knollwood Groves PUD, included the subject property. No significant changes have been
made to the master plan since that submittal. The subject parcel is located to the southwest of
the original Knollwood Groves site.
Currently, Minor Road stops at Lawrence Road; however, the County's Long-Range
Transportation Improvement Plan calls for a right-of-way of 110 feet along the north boundary
of the property in order to ultimately continue Miner Road to Military Trail. In deference to that
plan, the developers have set aside a 110-foot wide strip of property along the north boundary
of the parcel. A 20-foot wide landscape buffer is provided to the south side of the future right-
of-way and there are opportunities for three access points from the development provided for
connection, when the Miner Road extension is constructed.
Ten-foot landscape buffer easements are provided on the other sides of the development that
abut existing residential development. The main entrance to the development is shown from
Lawrence Road at the south boundary of the property. The entrance is flanked with open
space areas, with a 30-foot landscape buffer along Lawrence Road. The entranceway intersects
with the development's internal circulation at a recreation area of approximately 0.60 acres. A
lake/water management tract of 3.24 acres is located along the Miner Road set-aside, and
another 1.38-acre lake/water management tract is located to the north of the subject property.
Individual lots are not shown on the master plan, but are noted as having a typical size of 45
feet by 115 feet for perimeter lots and 45 feet by 105 feet for lots with lake frontage.
Perimeter lots are shown with minimum front yard setbacks of 22.5 feet for one story homes,
which can be no more than 20% of the homes, and typical setbacks are 25 feet. Side yard
setbacks are typically 10 feet on one side and zero on the other. Roofs are allowed to encroach
in the side yard setbacks up to 1 foot. Rear yard setbacks are shown with a 20-foot setback,
which includes the 10-foot landscape buffer. Screen enclosure setbacks are five feet. Lots with
lake frontage are similar in all proposed dimension with the exception of the rear yard setbacks,
which are reduced to a minimum of 10 feet from the abutting water management tracts. The
building envelopes are allowed to a maximum of 55% of lot coverage and covered patios are
restricted to remain within the building envelope.
Review Based on Criteria
The criteria used to review Comprehensive Plan amendments and rezonings are listed in the
Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C.
Comprehensive Plan Amendments: Rezonings. These criteria are required to be part of a staff
analysis when the proposed change includes an amendment to the Comprehensive Plan Future
Land Use Map. Pursuant to Section 9.C.2(2) of the Land Development Regulations, however,
staff is not required to review the petition against the eight (8) criteria indicated in Section
9.C.7., when the petition is consistent with the city's Comprehensive Plan Future Land Use Map
designation for properties to be annexed. Instead, staff analysis will relate to consistency with
other relevant portions of the Comprehensive Plan, the city's annexation program and selVice
capability consistent with Policy 8.10.5 of the Intergovernmental Coordination Element of the
Comprehensive Plan.
At present, the subject property is occupied by a partially completed single-family residence.
Sole access to the property is provided through an easement from Redding Road, approximately
Page 4
File Number: LUAR 05-006
Name: Knollwood Groves II
100 feet to the south of the southern property boundary. Upon annexation, the property will be
included in the Knollwood Groves PUD development. Vehicular access will be through that PUD,
as will the provision of water and sewer services. The present access easement will be
abandoned.
The applicant has projected the population of the proposed housing units at 2.5 persons per
household for a total population of 63 residents. Utilizing this projection and the City's adopted
levels of serVice, staff estimates the water usage at 500 gallons per day per household (200
gallons per day per capita x 2.5) or 12,500 gallons per day. Wastewater service demand would
be 225 gallons per day per household (90 gallons per day per capita x 2.5) or 5,625 gallons per
day.
Traffic impact analysis for the parcel, submitted in a study prepared by consultants for the
applicant, shows that the proposed land use designation is consistent with the Transportation
Element of the Palm Beach County Comprehensive Plan. The proposed use of the property will
generate an additional 235 trips per day.
With respect to solid waste, the Palm Beach County Solid Waste Authority has stated that
adequate capacity exists to accommodate the county's municipalities throughout the 10-year
planning period. The School District of Palm Beach County has reviewed the application and
has determined that adequate capacity exists to accommodate the resident population. Lastly,
drainage will also be reviewed in detail as part of the review of the site plan application, and
must satisfy all requirements of the city and local drainage permitting authorities.
CONCLUSIONS/RECOMMENDATIONS
As indicated herein, this request is consistent with the intent of the Comprehensive Plan; will
not create additional impacts on infrastructure that have not been anticipated in the
Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the
overall economic development of the City. Therefore, staff recommends that the subject
request be approved. If the Planning and Development Board or the City Commission
recommends conditions, they will be included within Exhibit "B".
ATTACHMENTS
S:\Plannlng\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knollwood ll\LUAR 05-006\STAFF REPORT KNOllWOOD I1.doc
LOCATION MAP
Knollwood II
ANEX 05-002 & LUAR 05-006
Exhibit A
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eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORM
XII. - LEGAL
ITEM A.3
Requested City Commission Date Final Form Must be Turned Requested City Commission
Meeting Dates in to City Clerk's Office Meeting Dates
~ August 2, 200S Ju]y ] 8, 200S (Noon) 0 October S, 200S
0 August 16, 200S August ], 200S (Noon) 0 October] 8, 200S
0 September 6, 200S August IS, 200S (Noon) 0 November] , 200S
0 September 20, 200S September 6, 200S (Noon) 0 November] S, 200S
Date Final Form Must be Turned
in to City C]erk' s Office
September 19, 200S (Noon)
October 3, 200S (Noon)
October ]7, 200S (Noon)
October 3] , 200S (NOQllh
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RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Legal, Ordinance-
Second Reading. The City Commission approved the subject request on July 19, 2005 under Public Hearing and Legal,
Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development
Memorandum No. PZ 05-108.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
Knollwood n (LUAR 05-006)
Chip Bryan, Julian Bryan & Associates, Inc.
Zygmunt Jadczak
Between Lawrence Road and Military Trail approximately 700 feet south of the LWDD
Canal L-20
Request to amend the Comprehensive Plan Future Land Use Map from MR-5 Single-
family Residential (Palm Beach County) to LDR Low Density Residential.
DESCRIPTION:
PROGRAM IMPACT:
FISCAL IMP ACT:
ALTERNATIVES:
~fk.ifA -;L-p
2--0 '2 I ~
Planning and Zoninil>irector City Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knollwood ]!\LUAR OS-006\Agenda Item Request Knollwood II LUAR OS-006 amend 8-2-
OS.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
1 ORDINANCE NO. 05-037
2
3 AN ORDINANCE OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, AMENDING ORDINANCE
5 89-38 BY AMENDING THE FUTURE LAND USE
6 ELEMENT OF THE COMPREHENSIVE PLAN
7 FOR A PARCEL OWNED BY ZYGMUNT
8 JADCZAK, AND LOCA TED BETWEEN
9 LA WRENCE ROAD AND MILITARY TRAIL
10 APPROXIMATELY 700 FEET SOUTH OF THE
11 LAKE WORTH DRAINAGE DISTRICT L-20
12 CANAL; CHANGING THE LAND USE
13 DESIGNATIONFROMMR-5 MEDIUM DENSITY
14 RESIDENTIAL AT 5/DU/AC WITH PUD ZONING
15 (PALM BEACH COUNTY) TO LOW DENSITY
16 RESIDENTIAL (LDR); PROVIDING FOR
17 CONFLICTS, SEVERABILITY, AND AN
18 EFFECTIVE DATE.
19
20 WHEREAS, the City Commission of the City of Boynton Beach, Florida has
21 adopted a Comprehensive Future Land Use Plan and as part of said Plan a Future Land
22 Use Element pursuant to Ordinance No. 89-38 and in accordance with the Local
23 Government Comprehensive Planning Act; and
24 WHEREAS, the procedure for amendment of a Future Land Use Element of a
25 Comprehensive Plan as set forth in Chapter 163, Florida Statutes, has been followed;
2 6 and
27 WHEREAS, after two (2) public hearings the City Commission acting in its
28 dual capacity as Local Planning Agency and City Commission finds that the
29 amendment hereinafter set forth is consistent with the City's adopted Comprehensive
30 Plan and deems it in the best interest of the inhabitants of said City to amend the
31 aforesaid Element ofthe Comprehensive Plan as provided.
32 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
S:\CA\Ordinances\Planning\Land Use\Knollwood II.doc
1 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
2
Section I: The foregoing WHEREAS clauses are true and correct and
3 incorporated herein by this reference.
4
Section 2:
Ordinance No. 89-38 ofthe City is hereby amended to reflect the
5 following:
6 That the Future Land Use of the following described land located between
7 Lawrence Road and Military Trial approximately 700 feet south of the Lake Worth
8 Drainage District L-20 Canal in Boynton Beach, Florida shall be changed from MR-5
9 Medium Density Residential at 5/dulac with PUD zoning (Palm Beach County) and
1. 0 shall now be designated as Low Density Residential (LDR):
11 THE NORTH Y2 OF THE SOUTHEAST ~ OF THE NORTHWEST
12 ~ OF THE NORTHEAST ~ IN SECTION 13, TOWNSHIP 45
13 SOUTH, RANGE 42 EAST OF THE PUBLIC RECORDS, PALM
14 BEACH COUNTY, FLORIDA.
15
16
17 Subject to easements, restrictions, reservation and rights of way of record.
18
19
20 Section 3: That any maps adopted in accordance with the Future Land Use Element
21 of the Future Land Use Plan shall be amended accordingly.
22 Section 4: All ordinances or parts of ordinances in conflict herewith are hereby
23 repealed.
24 Section 5: Should any section or provision ofthis Ordinance or any portion thereof
25 be declared by a court of competent jurisdiction to be invalid, such decision shall not affect
26 the remainder of this Ordinance.
~
27
Section 6: This Ordinance shall take effect on adoption, subject to the review,
S,\CA\Ordinances\Planning\Land Use\Knollwood II.doc
1 challenge, or appeal provisions provided by the Florida Local Government Comprehensive
2 Planning and Land Development Regulation Act. No party shall be vested of any right by
3 virtue of the adoption ofthis Ordinance until all statutory required review is complete and
4 all legal challenges, including appeals, are exhausted. In the event that the effective date is
5 established by state law or special act, the provisions of state act shall control.
6
FIRST READING this ~ day of Ju 11
7 SECOND, FINAL READING and PASSAGE this _ day of
,2005.
8 2005.
9 CITY OF BOYNTON BEACH, FLORIDA
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 ATTEST:
26
27
28 City Clerk
29
30 (Corporate Seal)
31
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
S:\CA\Ordinances\planning\Land use\Knollwood II.doc
TO:
FROM:
THROUGH:
DATE:
PROJECT NAME/NUMBER:
REQUEST:
DEVELOPMENT DEPARTMENT
PLANNING & ZONING DMSION
MEMORANDUM NO. PZ 05-108
Chair and Members
Planning and Development Board and
Mayor and City Commission
Dick Hudson, AIC~
Senior Planner ~
Michael W. Rumpf
Director of Planning and Zoning
June 14, 2005
Knollwood II
ANEX 05-002 & LUAR 05-006
Annex the property, amend the future land use designation from
MR-5 (Palm Beach County) to Low Density Residential (LOR) and
rezone from Agricultural Residential (Palm Beach County) to
PUD-Planned Unit Development
Property Owner:
Applicant! Agent:
Location:
Parcel Size:
Existing Land Use:
Existing Zoning:
Proposed Land Use:
Proposed Zoning:
Proposed Use:
PROJECT OESCRIPnON
Zygmunt Jadczak
DRHI, Inc./Julian Bryan and Associates
Between Lawrence Road and Military Trail approximately 700 feet
south of the LWDD Canal L -20 (Exhibit "A")
:t5.5 acres
MR-5 Medium Density Residential at 5 du/ac with PUD zoning
(Palm Beach County)
AR Agricultural Residential
Low Density Residential (LOR)
PUD Planned Unit Development
25 zero lot line Single Family Residences
Page 2
File Number: LUAR 05-006
Name: Knollwood Groves II
Adjacent Uses:
North:
South:
East:
West:
Property lying within the City of Boynton Beach designated low Density
Residential and zoned PUD Planned Unit Development (Knollwood
Groves). The property was recently the subject of a land use
amendment and rezoning under Round 05-2 large scale amendments.
Developed residential property lying in unincorporated Palm Beach
County designated lR-3 (3 du/ac with PUD zoning) and zoned AR
Agricultural ResIdential.
Developed residential property (Nautica) lying within the City of
Boynton Beach, designated low Density Residential (lDR) and zoned
PUD Planned Unit Development
Developed residential property (Sunset Cay) lying in unincorporated
Palm Beach County designated MR-5 (5 du/ac with PUD zoning) and
zoned PUD Planned Unit Development
EXECUTIVE SUMMARY
Staff recommends approval of the requested annexation, land use amendment and rezoning for
the following reasons:
1. The property is contiguous to the City of Boynton Beach on two sides and will constitute
a reasonably compact addition to the City.
2. The petition is consistent with the City's Comprehensive Plan Future Land Use Map
designation for properties to be annexed, with the City's annexation program and with
service availability.
3. The property was proposed as a part of the master plan for the Knollwood Groves PUD,
approved for development by the City on May 17, 2005 in anticipation of submittal of
the subject requests.
PROJECT ANALYSIS
The parcels, which are the subject of this land use amendment, total :1:5.5 acres. Because of
the size of the property under consideration, the Florida Department of Community Affairs
classifies this amendment as a "small scale" amendment. A "small-scale" amendment is
adopted prior to forwarding to the Aorlda Department of Community Affairs and Is not reviewed
for compliance with the state, regional and local comprehensive plans prior to adoption.
Master Plan Requirements
The regulations for the Planned Unit Development zoning district require that a master plan,
Including multi-year phases be submitted and reviewed for approval at the time of rezoning to
PUD. The required master plan submitted prior to transmittal of the large-scale amendment for
Page 3
File Number: LUAR 05.006
Name: Knollwood Groves II
the Knollwood Groves PUD, Included the subject property. No sIgnIficant changes have been
made to the master plan sInce that submittal. The subject parcells located to the southwest of
the orIginal Knollwood Groves sIte.
Currently, Minor Road stops at Lawrence Road; however, the County's Long-Range
Transportation Improvement Plan calls for a right-of-way of 110 feet along the north boundary
of the property in order to ultimately continue Miner Road to Military Trail. In deference to that
plan, the developers have set aside a !lO-foot wide strip of property along the north boundary
of the parcel. A 20-foot wide landscape buffer Is provIded to the south sIde of the future right-
of-way and there are opportunities for three access poInts from the development provided for
connection, when the Miner Road extension is constructed.
Ten-foot landscape buffer easements are provided on the other sides of the development that
abut existing residential development. The main entrance to the development is shown from
Lawrence Road at the south boundary of the property. The entrance is flanked with open
space areas, with a 30-foot landscape buffer along Lawrence Road. The entranceway intersects
with the development's internal circulation at a recreation area of approximately 0.60 acres. A
lake/water management tract of 3.24 acres is located along the Miner Road set-aside, and
another 1.38-acre lake/water management tract is located to the north of the subject property.
Individual lots are not shown on the master plan, but are noted as having a typical size of 45
feet by 115 feet for perimeter lots and 45 feet by 105 feet for lots with lake frontage.
Perimeter lots are shown with minimum front yard setbacks of 22.5 feet for one story homes,
which can be no more than 20% of the homes, and typical setbacks are 25 feet. Side yard
setbacks are typically 10 feet on one side and zero on the other. Roofs are allowed to encroach
in the side yard setbacks up to 1 foot. Rear yard setbacks are shown with a 20-foot setback,
which includes the 10-foot landscape buffer. Screen enclosure setbacks are five feet. Lots with
lake frontage are similar in all proposed dimension with the exception of the rear yard setbacks,
which are reduced to a minimum of 10 feet from the abutting water management tracts. The
building envelopes are allowed to a maxImum of 55% of lot coverage and covered patios are
restricted to remain within the building envelope.
Review Based on Criteria
The criteria used to review Comprehensive Plan amendments and rezonings are listed in the
Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C.
Comprehensive Plan Amendments: Rezonings. These criteria are required to be part of a staff
analysis when the proposed change Includes an amendment to the ComprehensIve Plan Future
Land Use Map. Pursuant to Section 9.C.2(2) of the Land Development Regulations, however,
staff Is not required to revIew the petItion against the eight (8) criteria IndIcated in Section
9.C.7., when the petItion Is consistent with the city's Comprehensive Plan Future Land Use Map
designation for properties to be annexed. Instead, staff analysIs will relate to consIstency wIth
other relevant portions of the Comprehensive Plan, the city's annexation program and service
capability consistent wIth Policy 8.10.5 of the Intergovernmental Coordination Element of the
ComprehensIve Plan.
At present, the subject property is occupied by a partially completed slngle-famlfy residence.
Sole access to the property Is provIded through an easement from ReddIng Road, approximately
Page 4
File Number: LUAR 05-006
Name: Knollwood Groves II
100 feet to the south of the southern property boundary. Upon annexation, the property will be
included in the Knollwood Groves PUD development. Vehicular access will be through that PUD,
as will the provision of water and sewer services. The present access easement will be
abandoned.
The applicant has projected the population of the proposed housing units at 2.5 persons per
household for a total population of 63 residents. Utilizing this projection and the City's adopted
levels of service, staff estimates the water usage at 500 gallons per day per household (200
gallons per day per capita x 2.5) or 12,500 gallons per day. Wastewater service demand would
be 225 gallons per day per household (90 gallons per day per capita x 2.5) or 5,625 gallons per
day.
Traffic impact analysis for the parcel, submitted in a study prepared by consultants for the
applicant, shows that the proposed land use designation Is consistent with the Transportation
Element of the Palm Beach County Comprehensive Plan. The proposed use of the property will
generate an additional 235 trips per day.
With respect to solid waste, the Palm Beach County Solid Waste Authority has stated that
adequate capacity exists to accommodate the county's municipalities throughout the 10-year
planning period. The School District of Palm Beach County has reviewed the application and
has determined that adequate capacity exists to accommodate the resident population. Lastly,
drainage will also be reviewed in detail as part of the review of the site plan application, and
must satisfy all requirements of the city and local drainage permitting authorities.
CONCLUSIONS/RECOMMENDAnONS
As indicated herein, this request is consistent with the intent of the Comprehensive Plan; will
not create additional impacts on infrastructure that have not been anticipated in the
Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the
overall economic development of the Oty. Therefore, staff recommends that the subject
request be approved. If the Planning and Development Board or the City Commission
recommends conditions, they will be included within Exhibit "B".
ATTACHMENTS
S:\Plamlng\SHARED\WP\PROJECTS\Knollwood Groves PUD\Knotlwood II\LUAR 05.006\STAFF REPORT KNOLLWOOD n.doc
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ANEX 05-002 & LUAR 05-006
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XII. - LEGAL
ITEM A.4
eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORM
Requested City Commission Date Fina] Form Must be Turned Requested City Commission
Meeting Dates in to City Clerk's Office Meeting Dates
r8J August 2, 200S Ju]y ]8, 200S (Noon.) 0 October S, 200S
0 August] 6, 200S August ], 200S (Noon) 0 October] 8, 200S
0 September 6, 200S August IS, 200S (Noon) 0 November], 200S
0 September 20, 200S September 6, 200S (Noon) 0 November ]S, 200S
Date Final Form Must be Turned
in to City Clerk's Office
September ]9, 200S (Noon)
October 3, 200S (Noon)
October] 7, 200S (Noon)
October 3], 200S (Noon).
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City Manager's Report -,-
RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Legal, Ordinance -
Second Reading. The City Commission approved the subject request on July 19,2005 under Public Hearing and Legal,
Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development
Memorandum No. PZ 05-108.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
Knollwood II (LUAR 05-006)
Chip Bryan, Julian Bryan & Associates, Inc.
Zygmunt Jadczak
Between Lawrence Road and Military Trail approximately 700 feet south of the L WDD
Canal L-20
Request to rezone from AR-Agricultural Residential (Palm Beach County) to PUD
Planned Unit Development.
DESCRIPTION:
PROGRAM IMP ACT:
FISCAL IMPACT:
ALTERNATIVES:
J1If4!i#~~
Develo
Ltj
Planning an~~irector City Attorney / Finance / Human Resources
S:\P]anning\SHARED\WP\PROJECTS\Knollwood Groves PUD\KnoIlwood II\LUAR OS-006\Agenda Item Request KnoIlwood II LUAR OS-006 rezone 8-2-
OS.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
1 ORDINANCE NO. 05- O~8
2
3 AN ORDINANCE OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, REGARDING THE
5 APPLICATION OF DRIll, INC., TO REZONE A
6 PARCEL OF LAND, AMENDING ORDINANCE 02-
7 013 TO REZONE A PARCEL OF LAND I-,OCATED
8 BETWEEN LA WRENCE ROAD AND MILITARY
9 TRAIL APPROXIMATELY 700 FEET SOUTH OF
10 THE LAKE WORTH DRAINAGE DISTRICT CANAL
11 L-20, BOYNTON BEACH, FI,ORIDA, AS MORE
12 FULLY DESCRIBED HEREIN, FROM
13 AGRICULTURAL RESIDENTIAL (AR) TO
14 PLANNED UNIT DEVELOPMENT (PUD);
15 PROVIDING FOR CONFLICTS, SEVERABILITY,
16 AND AN EFFECTIVE DATE.
17
18 WHEREAS, the City Commission of thc City of Boynton Beach, Florida has adoptcd
19 Ordinance No. 02-013, in which a Revised Zoning Map was adopted for said City; and
20 WHEREAS, Zygmunt Jadczak, owner of the property located between Lawrence Road
21 and Military Trail approximately 700 feet south of the Lake Worth Drainage District Canal L-
22 20 in Boynton Beach, Florida, as more particularly described herein, has filed a Petition,
23 through its agent Julian Bryan and Associates, pursuant to Section 9 of Appendix A-Zoning, of
24 the Code of Ordinances, City of Boynton Beach, Florida, for the purpose of rezoning a parcel
25 of land, said land being more particularly described hereinafter, from Agricultural Residential
26 (AR) to Planned Unit Development (PUD); and
27 WHEREAS, the City Commission conducted a public hearing and heard testimony
28 and received evidence which the Commission finds supports a rezoning for the property
29 hereinafter described; and
30 WHEREAS, the City Commission finds that the proposed rezoning is consistent with
31 an amendment to the Land Use which was contemporaneously considered and approved at the
S:\CA \Ordinances\Planning\Rezoning\Rezoning - Knollwood II.doc
1 public hearing heretofore referenced; and
2 WHEREAS, the City Commission deems it in the best interests of the inhabitants of
3 said City to amend the aforesaid Revised Zoning Map as hereinafter set forth.
4 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
5 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
6
Section I.
The foregoing Whereas clauses are true and correct and incorporated
7 herein by this reference.
Section 2.
The following described land, Lawrence Road and Military Trail
8
9 approximately 700 feet south of the Lake Worth Drainage District Canal L-20 in the City of
10 Boynton Beach, Florida, as set forth as follows:
11 THE NORTH 1i OF THE SOUTHEAST ~ OF THE NORTHWEST ~
12 OF THE NORTHEAST ~ IN SECTION 13, TOWNSHIP 45 SOUTH,
13 RANGE 42 EAST OF THE PUBLIC RECORDS, PALM BEACH
14 COUNTY, FLORIDA.
15
16
1 7 be and the same is hereby rezoned from Agricultural Residential (AR) to Planned Unit
18 Development (PUD). A location map is attached hereto as Exhibit "A" and made a part of this
19 Ordinance by reference.
20
Section 3. That the aforesaid Revised Zoning Map of the City shall be amended
21 accordingly.
22 Section 4. All ordinances or parts of ordinances III conflict herewith are hereby
23 repealed.
24 Section 5. Should any section or provision of this Ordinance or any portion thereof be
25 declared by a court of competent jurisdiction to be invalid, such decision shall not affect the
26 remainder of this Ordinance.
S:\CA \Ordinances\Planning\RezGning\Rezoning - Knollwood II.doc
1
Section 6. This ordinance shall become effective immediately upon passage.
2
FIRST READING this ~ day of
Jul1
,2005.
3
SECOND, FINAL READING and PASSAGE this _ day of
,2005.
4
5
CITY OF BOYNTON BEACH, FLORIDA
6
7
8
9
10
11
12
13
14
15
16
17
18
19 ATTEST:
20
21
22 City Clerk
23
24 (Corporate Seal)
Mayor
V ice Mayor
Commissioner
Commissioner
Commissioner
S :\CA \Orc'inances\Planning\Rezoning\Rezoning - Knollwood Il.doc
DEVELOPMENT DEPARTMENT
PLANNING & ZONING DMSION
MEMORANDUM NO. PZ OS-108
TO:
Chair and Members
Planning and Development Board and
Mayor and City Commission
Dick Hudson, AIC~
Senior Planner ~
FROM:
THROUGH:
Michael W. Rumpf
Director of Planning and Zoning
DATE:
PROJECT NAME/NUMBER:
June 14, 2005
Knollwood II
ANEX 05-002 & lUAR 05-006
REQUEST:
Annex the property, amend the future land use designation from
MR-5 (Palm Beach County) to low Density Residential (lDR) and
rezone from Agricultural Residential (Palm Beach County) to
PUD-Planned Unit Development
PROJECT DESCRIPnON
Property Owner:
Zygmunt Jadczak
Applicant,! Agent:
DRHI, Inc./Julian Bryan and Associates
location:
Between lawrence Road and Military Trail approximately 700 feet
south of the LWDD Canal L-20 (Exhibit "A")
Parcel Size:
:1:5.5 acres
Existing land Use:
MR-5 Medium Density Residential at 5 du/ac with PUD zoning
(Palm Beach County)
AR Agricultural Residential
Existing Zoning:
Proposed land Use:
Low Density Residential (lOR)
Proposed Zoning:
PUD Pianned Unit Development
Proposed Use:
25 zero lot line Single Family Residences
Page 2
File Number: LUAR 05-006
Name: Knollwood Groves II
Adjacent Uses:
North:
South:
East:
West:
Property lying within the City of Boynton Beach designated low Density
Residential and zoned PUD Planned Unit Development (Knollwood
Groves). The property was recently the subject of a land use
amendment and rezoning under Round 05-2 large scale amendments.
Developed residential property lying in unincorporated Palm Beach
County designated LR-3 (3 du/ac with PUD zoning) and zoned AR
Agricultural Residential.
Developed residential property (Nautica) lying within the City of
Boynton Beach, designated Low Density Residential (lDR) and zoned
PUD Planned Unit Development
Developed residential property (Sunset Cay) lying in unincorporated
Palm Beach County designated MR-5 (5 du/ac with PUD zoning) and
zoned PUD Planned Unit Development
EXECUTIVE SUMMARY
Staff recommends approval of the requested annexation, land use amendment and rezoning for
the following reasons:
1. The property is contiguous to the City of Boynton Beach on two sides and will constitute
a reasonably compact addition to the City.
2. The petition is consistent with the City's Comprehensive Plan Future Land Use Map
designation for properties to be annexed, with the City's annexation program and with
service availability.
3. The property was proposed as a part of the master plan for the Knollwood Groves PUD,
approved for development by the City on May 17, 2005 in anticipation of submittal of
the subject requests.
PROJECT ANALYSIS
The parcels, which are the subject of this land use amendment, total :tS.S acres. Because of
the size of the property under consideration, the Rorida Department of Community Affairs
classifies this amendment as a "small scale" amendment. A "small-scale" amendment is
adopted prior to forwarding to the Florida Department of Community Affairs and Is not reviewed
for compliance with the state, regional and local comprehensive plans prior to adoption.
Master Plan Requirements
The regulations for the Planned Unit Development zoning district require that a master plan,
Including multi-year phases be submitted and reviewed for approval at the time of rezoning to
PUD. The requlrecl master plan submitted prior to transmittal of the large-scale amendment for
Page 3
File Number: LUAR 05-006
Name: Knollwood Groves II
the Knollwood Groves PUD, Included the subject property. No significant changes have been
made to the master plan sInce that submIttal. The subject parcells located to the southwest of
the original Knollwood Groves site.
Currently, Minor Road stops at Lawrence Road; however, the County's Long-Range
Transportation Improvement Plan calls for a right-of-way of 110 feet along the north boundary
of the property in order to ultimately continue Miner Road to Military Trail. In deference to that
plan, the developers have set asIde a 110-foot wide strip of property along the north boundary
of the parcel. A 20-foot wide landscape buffer is provided to the south side of the future right-
Of-way and there are opportunities for three access points from the development provided for
connection, when the Miner Road extension is constructed.
Ten-foot landscape buffer easements are provided on the other sides of the development that
abut existing residential development. The main entrance to the development is shown from
Lawrence Road at the south boundary of the property. The entrance Is flanked with open
space areas, with a 30-foot landscape buffer along Lawrence Road. The entranceway intersects
with the development's internal circulation at a recreation area of approximately 0.60 acres. A
lake/water management tract of 3.24 acres is located along the Miner Road set-aside, and
another 1.38-acre lake/water management tract is located to the north of the subject property.
Individual lots are not shown on the master plan, but are noted as having a typical size of 45
feet by 115 feet for perimeter lots and 45 feet by 105 feet for lots with lake frontage.
Perimeter lots are shown with minimum front yard setbacks of 22.5 feet for one story homes,
which can be no more than 20% of the homes, and typical setbacks are 25 feet. Side yard
setbacks are typically 10 feet on one side and zero on the other. Roofs are allowed to encroach
in the side yard setbacks up to 1 foot. Rear yard setbacks are shown with a 20-foot setback,
which includes the 10-foot landscape buffer. Screen enclosure setbacks are five feet. Lots with
lake frontage are similar in all proposed dimension with the exception of the rear yard setbacks,
which are reduced to a minimum of 10 feet from the abutting water management tracts. The
building envelopes are allowed to a maximum of 55% of lot coverage and covered patios are
restricted to remain within the building envelope.
Review Based on Criteria
The criteria used to review Comprehensive Plan amendments and rezonlngs are listed in the
Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item C.
Comprehensive Plan Amendments: Rezonings. These criteria are required to be part of a staff
analysis when the proposed change Includes an amendment to the Comprehensive Plan Future
Land Use Map. Pursuant to Section 9.C.2(2) of the Land Development Regulations, however,
staff Is not required to review the petition against the eight (8) crlterfa Indicated in Section
9.C.7., when the petition Is consistent with the city's Comprehensive Plan Future Land Use Map
designation for properties to be annexed. Instead, staff analysis will relate to consistency with
other relevant portions of the Comprehensive Plan, the city's annexation program and service
capability consistent with Policy 8.10.5 of the Intergovernmental Coordination Element of the
Comprehensive Plan.
At present, the subject property Is occupied by a partially completed single-family residence.
Sole access to the property is provIded through an easement from Redding Road, approximately
Page 4
File Number: LUAR 05-006
Name: Knollwood Groves II
100 feet to the south of the southern property boundary. Upon annexation, the property will be
included in the Knollwood Groves PUD development. Vehicular access will be through that PUD,
as will the provision of water and sewer services. The present access easement will be
abandoned.
The applicant has projected the population of the proposed housing units at 2.5 persons per
household for a total population of 63 residents. Utilizing this projection and the City's adopted
levels of service, staff estimates the water usage at 500 gallons per day per household (200
gallons per day per capita x 2.5) or 12,500 gallons per day. Wastewater service demand would
be 225 gallons per day per household (90 gallons per day per capita x 2.5) or 5,625 gallons per
day.
Traffic impact analysis for the parcel, submitted in a study prepared by consultants for the
applicant, shows that the proposed land use designation Is consistent with the Transportation
Element of the Palm Beach County Comprehensive Plan. The proposed use of the property will
generate an additional 235 trips per day.
With respect to solid waste, the Palm Beach County Solid Waste Authority has stated that
adequate capacity exists to accommodate the county's municipalities throughout the 10-year
planning period. The School District of Palm Beach County has reviewed the application and
has determined that adequate capacity exists to accommodate the resident population. Lastly,
drainage will also be reviewed in detail as part of the review of the site plan application, and
must satisfy all requirements of the city and local drainage permitting authorities.
CONCLUSIONS/RECOMMENDATIONS
As indicated herein, this request is consistent with the intent of the Comprehensive Plan; will
not create additional impacts on infrastructure that have not been anticipated in the
Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the
overall economic development of the Oty. Therefore, staff recommends that the subject
request be approved. If the Planning and Development Board or the City Commission
recommends conditions, they will be included within Exhibit "B".
ATTACHMENTS
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XII. - LEGAL
ITEM A.S
eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORlVI
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Offic~
~ August 2, 2005 July 18,2005 (Noon) D October 5, 2005 September 19,2005 (Noon)
D August 16, 2005 August 1,2005 (Noon) D October 18, 2005 October 3, 2005 (Noon)
D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17,2005 (Noon)
D September 20, 2005 September 6, 2005 (Noon) D November 15, 2005 October 31,2005 (Noon)
NATURE OF
AGENDA ITEM
)
J--l
D Administrative D Development Plans ~:~ -..<
D Consent Agenda D New Business
D Public Hearing ~ Legal N
t.-:J
~ -- ...
D Bids D Unfinished Business -""-
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D Announcement D Presentation ,~~ -~ ~
N .;:;~-
D City Manager's Report .. ---ilW
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-
RECOMMENDATION: Please place this request on the August 2, 2005 City Commission Agenda under Legal, Ordinance -
Second Reading. The City Commission approved the subject request on July 19, 2005 under Public Hearing and Legal,
Ordinance - First Reading. For further details pertaining to the request, see attached Department of Development
Memorandum No. PZ 05-109.
EXPLANATION:
PROJECT:
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
Gerrity Rezoning (REZN 05-004)
Bradley Miller, Miller Land Planning Consultants, Inc.
Bill Gerrity, Inc.
NE 8th Avenue at NW 10th Street
Request to rezone 2.54 acres from R-l-AA Single Family Residential to R-I-A Single
Family Residential (Future Land Use classification to remain Low Density Residential
(LDR)) for the ultimate development of 10 single family residential lots.
PROGRAM IMPACT:
FISCAL IMPACT:
ALTERNATIVES.
1 cJ L-L
Planning and Z~g Director City Attorney / Finance / Hwnan Resources
S:\Planning\SHARED\WP\PROJECTS\Skylake\REZN 05-004\Agenda Item Request Gerrity Rezoning REZN 05004 8-2-05.dot
S:\BULLET1N\FORMS\AGENDA ITEM REQUEST FORMJ)OC
Friday, July 22,200510:57 AM MLPC 5612721042
MILLER
LAND
PLANNING
CONSULTANTS, INC.
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u
298 PINEAPPLE GROVE WAY
DElRAY BEACH, FLORIDA 33444
PHONE . 561/272~
FAX.561/272-1042
July 22, 2005
Dick Hudson
CITY OF BOYNTON BEACH
PLANNING & ZONING DEPARTMENT
100 E. Boynton Beach Boulevard
Boynton Beach. FL 33425.0310
RE: Sky Lake
Dear Dick;
ThiS letter requests a postponement from the August 'J!"4 aty CommiSsion meeting for the above
referenced project to the August 16th aty Commission meeting. Please contact our office for any
que$tions or comm~nb.
Sincerely,
MILLER LAND PLANNING CONSULTANTS, INe",",
~ 6. tuf/---
President
cc: Bill Gerrffy
M:\M L P C\PRO.IE~\SIcy la~e\O.. Hudsoft ~~
1 ORDINANCE NO. 05-040
2
3 AN ORDINANCE OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, REGARDING THE
5 APPLICATION OF BILL GERRITY, INC., TO
6 REZONE A PARCEL OF LAND, AMENDING
7 ORDINANCE 02-013 TO REZONE A PARCEL OF
8 LAND LOCATED ON NORTHWEST 8TH COURT
9 NORTH OF OLD BOYNTON ROAD AND EAST OF
10 CONGRESS AVENUE, BOYNTON BEACH,
11 FLORIDA, AS MORE FULLY DESCRIBED HEREIN,
12 FROM R-l-AA SINGLE FAMILY RESIDENTIAL TO
13 R-I-A SINGLE FAMILY RESIDENTIAL;
14 PROVIDING FOR CONFLICTS, SEVERABILITY,
15 AND AN EFFECTIVE DATE.
16
1 7 WHEREAS, the City Commission of the City of Boynton Beach, Florida has adopted
18 Ordinance No. 02-013, in which a Revised Zoning Map was adopted for said City; and
19 WHEREAS, Bill Gerrity, Inc., owner of the property located on Northwest 8th Court,
20 north of Old Boynton Road and east of Congress A venue in Boynton Beach, Florida, as more
21 particularly described herein, has filed a Petition, through its agent, pursuant to Section 9 of
22 Appendix A-Zoning, of the Code of Ordinances, City of Boynton Beach, Florida, for the
23 purpose of rezoning a parcel of land, said land being more particularly described hereinafter,
24 from R-l-AA Single Family Residential to R-I-A Single Family Residential; and
25 WHEREAS, the City Commission conducted a public hearing and heard testimony
26 and received evidence which the Commission finds supports a rezoning for the property
27 hereinafter described; and
28 WHEREAS, the City Commission deems it in the best interests of the inhabitants of
29 said City to amend the aforesaid Revised Zoning Map as hereinafter set forth.
30 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
S:\CA \Ordinances\Planning\Rezoning\Rezoning - Gerrity.doc
1 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
2
Section I.
Thc foregoing Whcrcas clauses are true and correct and incorporatcd
3 herein by this reference.
4
Section 2.
The following described land, located on Northwest 8th Court, north of
5 Old Boynton Road and east of Congress A venue in the City of Boynton Beach, Florida, as sct
6 forth as follows:
7 TRACT 19 OF SUBDIVISION OF SECTION 29 AND 20, TOWNSHIP
8 45 SOUTH OF RANGE 43 EAST, ACCORDING TO THE PLAT
9 THEREOF AS RECORDED IN PLAT BOOK 7, PAGE(S) 20, OF THE
10 PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA.
11
12
13 be and the same is hereby rezoned from R-l-AA Single Family Residential to R-I-A Single
14 Family Residential. A location map is attached hereto as Exhibit "A" and made a part of this
15 Ordinance by reference.
16 Section 3. That the aforesaid Revised Zoning Map of the City shall be amended
1 7 accordingly.
18
Section 4. All ordinances or parts of ordinances III conflict herewith are hereby
19 repealed.
20 Section 5. Should any section or provision of this Ordinance or any portion thereof be
21 declared by a court of competent jurisdiction to be invalid, such decision shall not affect the
22 remainder of this Ordinance.
23 Section 6. This ordinance shall become effective immediately upon passage.
24
FIRST READING this K day of J u. I 'f
,2005.
25
26
S:ICA 10rdinancesIPlanninglRezoninglRezoning' Gerrity.doc
1
SECOND, FINAL READING and PASSAGE this _ day of
,2005.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17 ATTEST:
18
19
20 City Clerk
21
22 (Corporate Seal)
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
S:\CA \Ordinances\Planning\Rezoning\Rezoning - Gerrity.doc
TO:
FROM:
THROUGH:
DATE:
PROJECT NAME/NUMBER:
REQUEST:
DEVELOPMENT DEPARTMENT
PLANNING &. ZONING DIVISION
MEMORANDUM NO. PZ OS-109
Chair and Members
Planning and Development Board and
Mayor and City Commission
Dick Hudson, AIC~
Senior Planner ~
Michael W. Rum--;<t\1
Director of Planning and Zoning
June 15, 2005
Gerrity Rezoning (Sky Lake)
REZN 05-004
Rezone the property from R-1-AA to R-1-A in order to subdivide
the parcel consistent with abutting residential development
Property Owner:
Applicant! Agent:
Location:
Parcel Size:
Existing Land Use:
Existing Zoning:
Proposed Land Use:
Proposed Zoning:
Proposed Use:
Adjacent Uses:
PROJECT DESCRIPTION
Bill Gerrity, Inc.
Bill Gerrity, Inc./Miller Land Planning Consultants, Inc.
On NW 8th Court north of Old Boynton Road and east of Congress
Avenue (Exhibit "A")
2.54 acres
Low Density Residential (LDR)
R-1-AA Single Family Residential
No change
R-1-A Single Family Residential
10 single family lots
The property is surrounded by single family residential
development designated Low Density Residential (LDR) and zoned
R -l-AA-Single Family Residential.
Page 2
Rle Number: REZN 05-004
Gerrity (Sky Lake) Rezoning
EXECUTIVE SUMMARY
Staff recommends approval of the requested land use amendment and rezoning for the
following reasons:
1. The requested rezoning meets the criteria required for review found in the Land
Development Regulations;
2. The rezoning is reasonably compatible with adjacent development and will provide
additional single family homes to the market; however,
3. Approval should be conditioned on dedication of additional rights-of-way to ensure that
abutting streets meet the minimum City standards.
PROJECT ANALYSIS
The parcel, which is the subject of this rezoning, totals 2.54 acres. Since the property is
designated Low Density Residential, no change to the land use designation is required;
therefore, a review by the Rorida Department of Community Affairs is not required.
The criteria used to review both Comprehensive Plan amendments and rezonings are listed in
the Land Development Regulations, Chapter 2, Section 9, Administration and Enforcement, Item
C. Comprehensive Plan Amendments: Rezonings and are required to be part of a staff analysis.
a. Whether the proposed rezoning would be consistent with applicable comprehensive
plan policies including but not limited to, a prohibition against any increase in
dwelling unit density exceeding 50 in the hurricane evacuation zone without written
approval of the Palm Beach County Emergency Planning Division and the Oty's risk
manager. The planning department shall also recommend limitations or
requirements, which would have to be imposed on subsequent development of the
property, in order to comply with policies contained in the comprehensive plan.
The property is not located in the hurricane evacuation zone; therefore the first part of the
criterion is not applicable.
Policy 1.17.5 of the Land Use Element reads:
"The City shall continue to maintain and improve the character of existing single-
family and lower-density neighborhoods, by preventing conversions to higher
densities, except when consistent with adjacent land uses. . ."
To the northeast and east of the subject property, lot widths in the Laurel Hills 5th addition were
originally platted in 1951, with 50-foot widths. Lots in the Glen Arbor subdivision, the abutting
property to the south, were platted in 1959, with widths averaging 65 feet. Both of these are
inconsistent with today's regulations for property in the R-l-AA zoning district, which require a
minimum lot frontage of 75 feet. For other surrounding property, platted more recently and
Page 3
File Number: REZN 05-004
Gerrity (Sky Lake) Rezoning
after subdivision regulations required an increase in lot sizes, properties have widths more
consistent with the present requirements of the R-1-AA regulations.
The proposed development of the subject parcel, with 10 lots each having 64 -foot frontage,
will be consistent with surrounding development, and specifically with the abutting residential
development to the south, where the property was platted with lot frontages ranging from 62
feet to 65 feet.
It should be noted that the Land Development Regulations (Chapter 6-Required Improvements)
require a minimum 50-foot right-of-way width for local streets in subdivisions and states, "The
new subdivision shall provide for the incorporation and compatible development of present and
future streets. . ." The survey for the subject property shows platted rights-of-way of only 30
feet; therefore, staff recommends a dedication of additional rights-of-way for the three street
segments abutting the subject property.
b. Whether the proposed rezoning would be contrary to the established land use
pattern or would create an isolated district unrelated to adjacent and nearby
distri~ or would constitute a grant of special privilege to an individual property
owner as contrasted with the protection of the public welfare.
The proposed rezoning would apparently create an isolated district, which could be viewed as
"spot zoning"; however, the present single family residential zoning district and the requested
single family residential zoning district differ in minimum lot size (8,000 square feet as opposed
to 7,500 square feet). Front and rear setback requirements are the same for each district, side
setback requirement are 2-1/2 feet less, and minimum living area requirements are 250 square
feet less for the R-1-A district; however, these should have minimum to no impacts on the
neighborhood. As discussed above, the resulting residential lots would relate to the abutting
lands to the south, which have an average lot frontage of 65 feet. Granting this request would
not constitute a grant of special privilege to an individual property owner.
c. Whether changed or changing conditions make the proposed rezoning desirable.
The changes to the land development regulations, requiring greater lot frontage for property
developed under the R-1-AA zoning, have made some of the adjacent properties, which were
developed prior to adoption of the present code, nonconforming. The applicant is proposing to
develop the subject property in a pattern similar to these adjacent properties.
d. Whether the proposed use would be compatible with utility systems, roadways, and
other public facilities.
At the current density, the property could be developed for 8 single family homes; the requested
density would allow for an additional 2 single family residences for a total of 10. The increase of
2 units will have place minimal demands on the water and sewer systems. The applicant has
stated that the traffic impacts from the proposed development will add 1,000 trips per day
(based on 10 trips per day for the use) but only 20 more than if developed under the present
zoning. With respect to solid waste, the Palm Beach County Solid Waste Authority has stated
that adequate capacity exists to accommodate the county's municipalities throughout the 10-
Page 4
File Number: REZN 05-004
Gerrity (Sky Lake) Rezoning
year planning period. The School District of Palm Beach County has reviewed the application
and has determined that adequate capacity exists to accommodate the resident population.
Lastly, drainage will also be reviewed in detail as part of the review of the conditional use
application, and must satisfy all requirements of the city and local drainage permitting
authorities.
e. Whether the proposed rezoning would be compatible with the current and future
use of adjacent and ,nearby propertiesl or would affect the property values of
adjacent or nearby properties.
As discussed earlier under Items "a" and "b", the proposed rezoning would be compatible with
adjacent properties.
f. Whether the property is physically and economically developable under the existing
zoning.
Under the present R-l-AA zoning the property could be subdivided into 8 lots; whereas, under
the requested R-l-A zoning, it could be subdivided into 10 lots. In either case, there would be
sufficient land remaining to increase the right-of-way widths for the abutting substandard
streets.
g. Whether the proposed rezoning is of a scale which is reasonably related to the
needs of the neighborhood and the city as a whole.
Criteria for evaluating the benefits of the proposed development to the needs of the
neighborhood and the City include service demands, density, use, value and consistency with
Comprehensive Plan policies. As indicated above, ample capacity exists to serve the maximum
potential service needs generated by the proposed project. The proposed density is consistent
with that allowed by the land use designation, and while it is slightly higher than that of the
single-family residential property to the north, it is similar to that of the adjacent developed
property to the south.
h. Whether there are adequate sites elsewhere in the city for the proposed use, in
districts where such use is already aI/owed.
While over 340 small scattered vacant residential lots exist throughout the city (a total of 72
acres), there are only three properties designated for low density residential development,
including the subject site, which are greater than 2 acres in size.
CONCLUSIONS/RECOMMENDATIONS
As indicated herein, this request is consistent with the intent of the Comprehensive Plan; will
not create additional impacts on infrastructure that have not been anticipated in the
Comprehensive Plan; will be compatible with adjacent land uses and will contribute to the
overall economic development of the City. Therefore, staff recommends that the subject
request be approved with the condition that additional rights-of-way be provided to widen
Page 5
File Number: REZN 05-004
Gerrity (Sky Lake) Rezoning
adjacent streets to meet minimum City standards. If the Planning and Development Board or
the City Commission recommends conditions, they will be included within Exhibit "B".
ATTACHMENTS
];\SHRDATA\Plannlng\HUDSON\COMP PLAN PROCESS\STAFF REPORT NEW,doc
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EXHIBIT "B"
Conditions of ADproval
Project name: Gerrity Rezoning
File number: REZN 05-004
Reference: Rezoning application prepared bv Miller Land Planninq Consultants, Inc.
I DEPARTMENTS I INCLUDE I REJECT I
I PLANNING AND ZONING j I
1. Provide additional rights-of-way, easements and related X
improvements as required by the Engineering Department for NW
10th Street, NW 8th Court, and the unnamed street (NW 9th Avenue)
on the north; and provide a utility easement (if required) along the
south property line.
ADDmONAL PLANNING AND DEVELOPMENT BOARD CONDmONS
1. To be determined.
ADDmONAL cm COMMISSION CONDmONS
1. To be determined.
eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORNI
XII. - LEGAL
ITEM A.6
Requested City Commission
Meeting Dates
Date Final Form Must be Turned
in to City Clerk's Office
Requested City Commission
Meeting Dates
Date Final Form Must be Turned
in to City Clerk's Office
September 6, 2005 (Noon)
o October 5, 2005
o October 18, 2005
o November I, 2005
o November IS, 2005
September 19,2005 (Noon)
[8J August 2, 2005
o August 16,2005
o September 6, 2005
o September 20, 2005
July 18, 2005 (Noon.)
August I, 2005 (Noon)
October 3, 2005 (Noon)
August 15,2005 (Noon)
October 17, 2005 (Noon)
October 31, 2005 (Noon)
'__' I
--.., ._~...
NATURE OF
AGENDA ITEM
o Administrative
o Consent Agenda
o Public Hearing
o Bids
o Announcement
o City Manager's Report
o Development Plans
o New Business
[8J Legal
o Unfinished Business
o Presentation
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RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under Legal, Ordinance-
Second Reading. The City Commission approved the subject request on July 19, 2005 under Public Hearing and Legal,
Ordinance - First Reading. Note that the ordinance reflects the recommendation of staff, as supported by the Board, for
maximum height to be 60 feet, and corresponding change to setbacks that increase with height above 45 feet. For further
details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-100.
EXPLANATION:
PROJECT:
Maximum building heights in Public Usage Zoning District -hospitals
(CDRV 05-012)
Shayne Conover, Kilday & Associates
N/A
City wide (Public Usage (PU) zoning district)
Request to amend the Land Development Regulations, Chapter 2 Zoning, Section 5(1)(2)
to increase maximum building height for hospitals from 45 feet to 75 feet, while retaining
existing maximum floor provision of four (4) stories.
AGENT:
OWNER:
LOCATION:
DESCRIPTION:
PROGRAM IMPACT:
FISCAL IMP ACT:
ALTERNATIVES:
N/A
N/A
N/A
p~~ !:'rZC;!:nITooto, City Attorney I Fm""e I Human Rew"""
S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEw\CDRV 05-012 building height - hospitals\Agenda Item Request Max Bldg Hghts in Public Usage
Hasp CDRV 05-012 8-2-05.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
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ORDINANCE NO. 05- 041
AN ORDINANCE OF THE CITY OF BOYNTON BEACH,
FLORIDA AMENDING LAND DEVELOPMENT
REGULATIONS, CHAPTER 2 "'ZONING", SECTION 5(J)(2)
"PUBLIC USAGE DISTRICT"; PROVIDING FOR INCREASE
IN MAXIMUM BUILDING HEIGHT FOR HOSPITALS FROM
45 FEET TO 60 FEET WHILE RETAINING EXISTING
MAXIMUM FLOOR PROVISIONS OF FOUR (4) STORIES;
PROVIDING FOR CONFLICTS, SEVERABILITY,
CODIFICATION AND AN EFFECTIVE DATE.
14
WHEREAS, the City has received a request on behalf of Bethesda Hospital for
amendment to the City's Land Development Regulations to allow an increase to the maximum
height of buildings for hospitals only; and
WHEREAS, the City Commission finds that it is in the best interest of the public to
allow hospital buildings to exceed forty-five (45) feet, subject to the criteria hereinafter set
forth.
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16
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19
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
20
21
Section 1.
The foregoing whereas clause is true and correct and is now ratified and
22 confirmed by the City Commission.
23
Section 2.
Chapter 2. "Zoning", Section 5.J.2. of the Land Development
24 Regulations of the City of Boynton Beach Code of Ordinances is hereby amended by adding
25 the words and figures in underlined type, and by deleting the words and figures in struck-
26 through type as follows:
27
Sec. 5.J.
PU PUBLIC USAGE DISTRICT.
28
2.
Building and site regulations. No building or portion thereof shall be
erected, constructed, converted, established, altered, enlarged or used
unless the premises and building comply with the following regulations:
Minimum lot frontage
Minimum lot area
Minimum front yard
Minimum side yard
Minimum rear yard
Maximum structural height
75 feet
8000 square feet
25 feet
15 feet, each side*
25 feet*
45 feet, not to exceed four (4)
stories
S:\CA \Ordinances\LDR Changcs\Amdending LDR - 2512 Building height hospitals. doc
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Maximum structural height (hospitals only) 60 feet, not to exceed four (4)
stories
*When abutting residential districts, side and/or rear yard shall be thirty (30) feet.
For hospital buildings, additional setback in excess of thirty (30) feet shall be
required for any height over forty-five (45) feet. The additional setback shall be
measured by calculating three (3) additional feet of setback for each foot in height
above forty-five (45) feet, not including minimal roof top equipment that are
eligible for a height exception, per Section 4.F.2.
Section 3.
Each and every other provision of the Land Development Regulations
12
not herein specifically amended, shall remain in full force and effect as originally adopted.
13
Section 4.
All laws and ordinances applying to the City of Boynton Beach in
14 conflict with any provisions of this ordinance are hereby repealed.
15
Section 5.
Should any section or provision of this Ordinance or any portion
16 thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not
17 affect the remainder of this Ordinance.
18
Section 6.
Authority is hereby given to codify this Ordinance.
19 Section 7. This Ordinance shall become effective immediately.
20 FIRST READING this ,Gt day of July, 2005.
21 SECOND, FINAL READING AND PASSAGE this day of
22 August, 2005.
23
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38 ATTEST:
39
40
41 City Clerk
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
S:\CA\Ordinances\LDR Changes\Amdending LDR - 25J2 Building height hospitals. doc
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 05-100
TO:
Chair and Members
Planning and Development Board
Michael W. RU~~
Director of Planning and Zoning
Ed Breese ~
Principal Planner
THROUGH:
FROM:
DATE:
June 17, 2005
SUBJECT:
CODE REVIEW (CDRV 05-012)
Maximum Building Height in Public Usage Districts - Hospitals only
NATURE OF REOUEST
Ms. Shayne Conover of Kilday & Associates, representing Bethesda Hospital, is requesting an amendment
to the City's Land Development Regulations to allow an increase to the maximum allowed height in excess
of the 45-foot limitation contained within the Public Usage (PU) zoning districts, for hospitals only (see
Exhibit "A" - Justification Statement).
BACKGROUND
Bethesda Memorial Hospital is requesting to construct a four (4) story, 86,167 square foot addition at the
northeast corner of the existing hospital building, in order to provide a Comprehensive Heart Center. The
City's Land Development Regulations Chapter 2, Section 5(1)(2) establishes the maximum building height
within the Public Usage (PU) districts. According to the current regulations, the maximum allowable
height is 45 feet, not to exceed four (4) stories. The applicant is requesting a modification of these
regulations to acconnnodate the Comprehensive Heart Center addition to the hospital. This addition would
extend vertically for four (4) stories, which meets one of the criteria under height determination. However,
the building would extend to a height of 55 feet - 10 inches to the roof deck, with the top of the parapet
wall at 59 feet - 9 inches. Additionally, the stair tower is depicted at a height of 68 feet - 11 inches, which
according to Chapter 2, Section 4.F.2, would be eligible for consideration of approval by the City
Commission for a Height Exception.
As proposed, the applicant is requesting to amend the Land Development Regulations, Chapter 2 Zoning,
Section 5(1)(2) to increase maximum building height for hospitals from 45 feet to 75 feet, while retaining
the existing maximum floor provision of four (4) stories.
Page 2
CDRV 05-012
ANALYSIS
The applicant has submitted a Code Review request to amend the allowable height in Public Usage (PU)
districts, for hospitals only, to increase maximum building height for hospitals from 45 feet to 75 feet,
while retaining the existing maximum floor provision of four (4) stories. The consulting firm Kilday &
Associates, Inc. has submitted this request on behalf of representatives for the Bethesda Memorial
Hospital. The request has been made to facilitate the planned addition of the Comprehensive Heart Center
to the existing hospital. The Comprehensive Heart Center, as proposed would be four (4) levels, extending
to a height of 55 feet - 10 inches to the roof deck, with the top of the parapet wall at 59 feet - 9 inches.
However, the stair tower is depicted at a height of 68 feet - 11 inches, which would exceed the existing
maximum allowable height of 45 feet in the PU zoning district by 23 feet - 11 inches.
Understanding that a stair tower, according to Chapter 2, Section 4.F.2, would be eligible for consideration
of approval by the City Commission for a Height Exception, staff reviewed the minimum required
amendment to the code to accommodate the proposed expansion. Staff also reviewed the information
submitted by the applicant explaining the need for each floor of the addition to be approximately 15 feet in
height, as opposed to typical building construction of 10 - 12 feet per floor. The justification of the subject
amendment is based on limitations of the existing site, functionality and equipment needs unique to a
hospital. A cross-section of the proposed addition (See Exhibit "B") indicates that the addition would be
constructed over the existing ambulance port, requiring a minimum of fourteen (14) feet of clearance for
emergency/rescue vehicles. The next floor, as depicted on the cross-section drawing, would be primarily
devoted to mechanical equipment and exceed thirteen (13) feet in height. The next floors, the 3rd and 4th
levels, would have a minimum of 9 feet from floor to ceiling, with nearly six (6) feet space above the
ceiling on each floor to accommodate the typical mechanical equipment for each floor, plus that equipment
unique to, or oversized for hospitals, housing conduits and conveyances such as, oxygen lines, fire
suppression, water lines, medical air, air handler equipment, vacuum and exhaust lines, etc.
Correspondence from the applicant reads as follows:
"The necessity of the proposed height of this expansion is due to
the fact that all the hospital infrastructure to serve the surgical
center and patient rooms, such as telecommunications, heating
and ventilating, oxygen, etc. will run between eachfloor", and
"The hospital must have the necessary clearance between each
floor to be able to add more clinical space otherwise the facility
would be limited to build only office space. ... There is no
opportunity for the hospital to secure adjacent property for
expansion so they are forced to build vertically to be able to
continue to provide medical services to a growing population. "
As noted in the preliminary review of this proposed code amendment, prepared for City Commission input
at their June 21, 2005 meeting, the zoning regulations have historically recognized the special height needs
of hospitals and their related buildings. A special height provision within the C-l zoning district allows the
maximum height for hospitals to be 45 feet compared to all other buildings in the district, which are
limited to 30 feet.
Taking into account the information provided by the applicant, the surrounding land uses most affected by
such a code amendment, expansion obstacles and the valuable services to be provided as a result of the
proposed expansion, staff recommends the following code amendment language to the Public Usage (PU)
District:
Page 3
CDRV 05-012
Amend Section 5.J.2. - Maximum Structural Height, as follows:
Maximum Structural Height
45 feet, not to exceed four (4) stories.
Maximum Structural Height (Hospitals only).
60 feet, not to exceed four (4) stories.
Maximum Side Yard
Maximum Rear Yard
15 feet, each side*
25 feet*
*When abutting residential districts, side and/or rear yard shall be thirty (30) feet. For hospital buildings.
additional setback in excess of thirty (30) feet shall be required for any height over forty-five (45) feet. The
additional setback shall be measured by calculating three (3) additional feet of setback for each foot in
height above forty-five (45) feet, not including minimal roof top equipment that are eligible for a height
exception, per Section 4.F.2.
Currently, the rear and side setback for the Public Usage (PU) district where it abuts a residential district is
thirty (30) feet. This additional setback as recommended would, in the case of a sixty (60) foot tall
building, increase the building setback from the current requirement of 30 feet to 75 feet.
The City Commission, at their June 21, 2005 meeting, preliminarily reviewed the proposed amendment
and directed staff to continue processing the Code Review request.
RECOMMENDATION
Staff recommends that the proposed amendments to Chapter 2. Zoning of the City's Land Development
Regulations, specific to height regulations within the Public Usage (PU) zoning district, be approved as
modified, to increase the maximum height for hospitals in the PU District to sixty (60) feet, while
increasing the associated setbacks by three (3) additional feet of setback for each foot in height above
forty-five (45) feet, not including minimal roof top equipment that are eligible for a height exception, per
Section 4.F.2. Any conditions recommended by the Board will be forwarded to the City Commission and
ultimately incorporated into an ordinance for final adoption.
J:\SHRDATAIPLANNlNG\SHAREDlWPISPECIAL PROJECTSICDRV\MAX HEIGHT IN PU DISTRICTS CDRV 05-012.DOC
Kilday Be Associates
landscape Architects I Planners
1661 Forum Place, Suite 100A
West Palm Beach, Florida 33401
(5611689-6522' Fax (6611689-2592
E-Mail: Info@klldaylnc.com
May 11,2005
t:)\HII:SII A
Mr. Ed Breese, Principal Planner
City of Boynton Beach
Planning Division 2nd Floor
100 E. Boynton Beach Blvd.
P.O. Box 310
Boynton Beach, Florida 33425
Re: Code Review Request for Bethesda Memorial Hospital
Comprehensive Heart Center
Our File No. 352.23
Dear Mr. Breese:
Thank you very much for the comments based on your review of the Code Review
request that was submitted to your office on May 6, 2005. Based on our phone
conversation yesterday, you mentioned that it is Planning staffs recommendation that
the following revision be made to the proposed code language. This revision would
identify the maximum structural height allowed in the City of Boynton Beach in the
Public Usage (PU) zoning district specifically for Hospitals. This Code Review request
is to deviate from Chapter 2..5~J.2. and to revise the code language to read as follows
(proposed chanQes showni" bold and underlined) :
2. Building and site regulations. No
building or portion thereof shall be erected, constructed
converted, established, altered enlarged or used unless
the premises and building comply with the following
regulations:
Minimum lot frontage
Minimum lot area
Minimum front yard
Minimum side yard
Minimum rear yard
Maximum structural height
Maximum structural helQht
lHosDltal Onlvl
75 feet
8000 square feet
25 feet
15 feet, each slde*
25 feet*
45 feet, not to
exceed four (4)
stories
75 feet. not to
exceed four W
II2d!!
Mr. Ed Breese
May 11.2005
Page 2 of 2
As outlined in my letter to you dated May 6th, this revision Is being requested due to the
fact that there are unique conditions that apply to Hospitals In comparison to other
structures or buildings that are in the Public Usage (PU) zoning district. Therefore, the
request Is necessary to allow the hospital to construct the proposed Comprehensive
Heart Center, in excess of the current height requirement.
Thank you for your continued assistance.
Sincerely.
~~Wz-~"'~L
Shayne CoboVer /1;.
co: Bob Broadway (Bethesda Memorial Hospital)
Tom Porter (Bethesda Memorial Hospital)
Mike Rumpf (City of Boynton Beach)
H:lCllent/352.231Correspondence/Breese Ietter.5-11-QS.doc
Kilday & Associates
Landscape Architects / Planners
1551 Forum Place, Suite 100A
West Palm Beach, Florida 33401
1561) 689-5522. Fax (561) 689-2592
E-Mail: info@kildayinc.com
May 6, 2005
Mr. Ed Breese, Principal Planner
Planning Division 2nd Floor
City of Boynton Beach
100 E. Boynton Beach Blvd.
P.O. Box 310
Boynton Beach, Florida 33425
Re: Code Review Request for Bethesda Memorial Hospital
Comprehensive Heart Center
Dear Mr. Ed Breese:
Kilday & Associates, Inc. as agent for the applicant/property owner Bethesda Memorial
Hospital is requesting a Code Review from the City of Boynton Beach Land
Development Regulations Chapter 2.5.J.2. which the maximum height for any building,
or portion of a building, to be constructed shall not exceed 45 feet and a maximum of
four stories in the Public Usage (PU) zoning district in the City of Boynton Beach. This
Code Review request is to deviate from Chapter 2.5.J.2. and to revise the code
language to read as the following:
Maximum structural height
45 feet, not to
exceed four (4)
stories::
**The City Commission may approve additional height when it is demonstrated
that structural and/or technical requirements result in a need for additional floor
heiqhts for public health and safety purposes. However, in no case shall the four
(4) stOry maximum be exceeded.
Due to the fact that the site is utilized as a Hospital there are unique conditions that
apply to this building in comparison to other structures or buildings that are in the Public
Usage (PU) zoning district. Therefore, the request is necessary to except the hospital
from the maximum 45 feet in height requirement.
A Major Site Plan Modification application was originally submitted on April 6, 2005 to
expand the existing Hospital Site Plan. The Hospital's existing total square footage is
586.819 square feet. This expansion is 86,167 square feet, which brings the proposed
Hospital total building square footage to 672.986 square feet.
'\
Mr. Ed Breese
Page 2 of2
A "Partial Building Section" detail that is provided by HDR Architecture, Inc. is attached
to this letter to show the abundance of mechanical equipment that is in between each
floor. For orientation purposes of this section detail, to the left of station 107 is the
existing portion of the hospital and to the right of this station is the proposed Heart
Center addition. The space between each floor is utilized by mechanical ductwork,
piping and electrical clearances. The necessity for the proposed height of this
expansion is due to the fact that all the hospital infrastructure to serve the surgical
center and patient rooms, such as telecommunications, heating and ventilating, oxygen,
etc. will run between each floor.
The air handler unit (AHU) as shown on this detail section and is located in between the
space of the proposed second and third level. This particular unit is the minimum size
required and will extend as tall as the entire floor. Also, this air handler unit is the
maximum size the architects can specify without using a custom built unit, which would
pose financial constraints on the project. Therefore, this specific space between the
second and third level is the most constrictive area within the overall building.
The hospital must have the necessary clearance between each floor to be able to add
more clinical space otherwise the facility would be limited to build only office space.
With this construction project, the hospital is trying to maximize clinical space to not
disrupt the hospital functions in the future. There is no opportunity for the hospital to
secure adjacent property for expansion so they are forced to build vertically to be able
to continue to provide medical services to a growing population. They must work within
the constraints of their existing site and within the parameters of the existing building.
For these reasons, we would like to be considered for a code review.
Thank you for your continued assistance.
Sincerely,
~~~
Shayne Conover
Attachments: Exhibit A
cc: Tom Porter (Bethesda Hospital)
H:lCllentl352.231Correspondence/Code Review RequesL5-3-OS.doc
ABBREV I AT IOtiS
AHlI . AIR H.IIIllING IItIT
CI . CHilLED om
CIR . CHIUJ1l OTER RElIIIIl
CWS . CHIUJ1l nIDI SlI'PL Y
U . EXHAUST AIR
EF . EXHAUST F 10/1
FIRE. FIJI[ SPRINKLER L1~
Hf "1lOT fA TER
Hie " HIlI lATER ClflQl.ATlOll PIPE
HlIR . HIlI lATER IiEl1IUI
HWS "HIlI lATER SUPl'LY
1M "IEDICAl AIR
o " OXYGEII
RA " RElIIIIl AIR
SA " Sll'Pl YAIR
TtIR " lERIIltW. UIIIT REHEAT
V II YACWN
VVR " VARiABlE VlLUM; REHEAT BOX
EXHIBIT B
107
v
v
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ROOF LEV~L
EL - 155 -10'
~
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u,
""'.. FOURTH L~VEL ~
EL - 140 10'
fU'lrA
IN" ....
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N
STAFF fiURS I fiG ?
TOILET WEDS ST ATIOIl
2 U,
THIRD LEVEL ~
EL = 125'-10'
fl. "ItA
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AMBULANCE
CARPORT
?
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FIRST LEYfI ~
EL = 100 -0'
LOWER LpEL ~
EL - 81 -1"
PARTIAL BUILDING SECTION THROUGH AMBULANCE CARPORT
SHOWING MECHANICAL DUCTWORK, PIPING. AND ELECTRICAL CLEARANCES
SCALE:I/a/l = 1'-0/1
HR
I Prolect TlIIe Bethesda Ioteroor I a I H05P I ta I
P20 COIl1>rehenslve Hecrt Center
~ 1ItIe
Part I 01 Building Section through
AIibu I mce Ccrport
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I Skotdt -.....
I Pro\ocI ~,8902
I Dale May 11. 2005
I Profoct__
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File Nome:
18902(1-6001. dgn
eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORM
'XII. - LEGAL
ITEM A.7 (~ A.7. a.
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
MeetiDl! Dates in to City Clerk's Office Meetinl! Dates in to City Clerk's Office
~)
0 April 5, 2005 March 14,2005 (Noon.) 0 June 7, 2005 May 16,2005 (Noon)
- -.'
0 April 19, 2005 April 4, 2005 (Noon) 0 June 21, 2005 June 6, 2005 (Noon)
.'
0 t ".~) -
0 May 3,2005 April 18, 2005 (Noon) July 5, 2005 June 20, 2005 (Noon)
0 t81 ,
May 17,2005 May 2,2005 (Noon) July 19,2005 July 5, 2005 (Noon) --
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0 Administrative 0 Development Plans '~--2
0 Consent Agenda 0 New Business
NATURE OF .t81 Legal - Ordinance 151 Reading
AGENDA ITEM (Reso. #05-_ will be enacted at
0 Public Hearing 2nd Reading ofOrd. #05---.J
0 Bids 0 Unfinished Business
0 Announcement 0 Presentation
0 City Manager's Report
RECOMMENDATION: For the City Commission to adopt Ordinance # 05-_ approving the Franchise Agreement with
Adelphia Communications Corp. and approve Resolution # 05-_ to consent to assignment and change of control. ~..
(Resolution # 05-_ will be enacted at the 2nd Reading of Ordinance # 05---.J.
EXPLANATION:
Adelphia desires to replace and supersede the current franchise to construct, install, maintain, and operate a cable system in
the city. A I3-year franchise agreement with Adelphia/Comcast would include PEG Channels & I-net services to various city
locations for fiber connectivity. The agreement will provide franchise agreement governing all of franchisee's cable television
system operating in the City. The agreement will leverage the digital network of Adelphia that will benefit the community, the
city and Adelphia. The PEG channel will be a venue for sharing vital infonnation to our citizens such as Commission
meetings, promote city sponsored events, announcements, public meetings, crime prevention tips and other government
programs. In order to upgrade and acquire the required audio/video equipment needed for this broadcast; Adelphia is
providing financial 'assistance to obtain video playback and recording machines, stationary and portable video equipment,
cameras, lighting and microphones. The I-Net Agreement, also known as the Dedicated Capacity Agreement, will create an
institutional network enabling the telecommunication services to a)]ow the City to use up to I Gig of fiber to City facilities,
providing both "eice and data connections. The locations of City facilities are listed in Exhibit A-I of the franchise
agreement.
PROGRAM IMP ACT:
o Approving Ordinance # 05-_ will approve the Franchise Agreement between the City of Boynton Beach and
Adelphia Communications Corp.
o Approving Resolution # 05-_ will bring together the outstanding franchise agreements under one, I3-year
Adelphia franchise agreement and also transfers franchise authority from Adelphia to Comcast. Exhibit A of the
franchise agreement is the Dedicated Capacity Agreement (PEG).
VISCAL IMP ACT:
.-\n initial access capital grant of $200,000 will be made by Adelphia/Comcast to acquire equipment and devices necessary for
the operation of the PEG channel and other capital investment for the fiber network. In addition, Adelphia shall pay the city
for PEG channel and other fiber network requirements, the amount of Seventy Thousand Dollars ($70,000) per year for the
S:\BULLETlN\FORMS\AGENDA ITEM REQUEST FORM.DOC
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eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORM
duration of the 13-year franchise agreement. The $70,000 will be used to offset yearly operating expenses associated with the
PEG channel and fiber networks.
ALTERNATIVES: FCC regulations inhibit the city's ability to deny the transfer request
Department Name
9d~~~~
~
City Attorney / Finance / Human Resources
S:\BULLEllN\FORMS\AGENDA ITEM REQUEST FORM.DOC
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eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORM
Requested City Commission
Meeting Dates
Date Final Fonn Must be Turned
in to City Clerk's Office
Requested City Commission
Meeting Dates
Date Final Fonn Must be Turned
in to City Clerk's Office
rgj August 2, 2005
D August 16,2005
D September 6, 2005
D September 20, 2005
July 18,2005 (Noon.)
D October 5, 2005
D October 18, 2005
D November 1,2005
D November 15, 2005
September 19, 2005 (Noon)
August 1,2005 (Noon)
October 3, 2005 (Noon)
August 15,2005 (Noon)
October 17,2005 (Noon);
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October 31, 2005 (N06nf
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September 6, 2005 (Noon)
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NATURE OF
AGENDA ITEM
D Administrative
D Consent Agenda
D Public Hearing
D Bids
D Announcement
D City Manager's Report
D Development Plans
D New Business
rgj Legal - 2nd Reading
D Unfinished Business
D Presentation
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RECOMMENDATION: For the City Commission to adopt Ordinance # 05-_ approving the Franchise Agreement with
Adelphia Communications Corp. and approve Resolution # 05-_ to consent to assignment and change of control.
(Resolution # 05-_ will be enacted at the 2nd Reading of Ordinance # 05-~.
EXPLANATION: Adelphia desires to replace and supersede the current franchise to construct, install, maintain, and operate
a cable system in the city. A 13-year franchise agreement with Adelphia/Comcast would include PEG Channels & I-net
services to various city locations for fiber connectivity. The agreement will provide franchise agreement governing all of
franchisee's cable television system operating in the City. The agreement willleverage.the digital network of Adelphia that
will benefit the community, the city and Adelphia. The PEG channel will be a venue for sharing vital information to our
citizens such as Commission meetings, promote city sponsored events, announcements, public meetings, crime prevention tips
and other government programs. In order to upgrade and acquire the required audio/video equipment needed for this
broadcast; Adelphia is providing financial assistance to obtain video playback and recording machines, stationary and
portable video equipment, cameras, lighting and microphones. The I-Net Agreement, also known as the Dedicated Capacity
Agreement, will create an institutional network enabling the telecommunication services to allow the City to use up to I Gig of
fiber to City facilities, providing both voice and data connections. The locations of City facilities are listed in Exhibit A-I of
the franchise agreement.
PROGRAM IMPACT:
o Approving Ordinance # 05-_ will approve the Franchise Agreement between the City of Boynton Beach and
Adelphia Communications Corp.
o Approving Resolution # 05-_ will bring together the outstanding franchise agreements under one, 13-year
Adelphia franchise agreement and also transfers franchise authority from Adelphia to Comcast. Exhibit A of the
franchise agreement is the Dedicated Capacity Agreement (PEG).
FISCAL IMPACT: An initial access capital grant of$200,000 will be made by Adelphia/Comcast to acquire equipment and
devices necessary for the operation of the PEG channel and other capital investment for the fiber network. In addition,
Adelphia shall pay the city for PEG channel and other fiber network requirements, the amount of Seventy Thousand Dollars
($70,000) per year for the duration ofthe 13-year franchise agreement. The $70,000 will be used to offset yearly operating
expenses associated with the PEG channel and fiber networks.
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
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eITY OF BOYNTON BEAeH
AGENDA ITEM REQUEST FORM
AL TERNA TIVES: FCC regulations inhibit the city's ability to deny the transfer request
. Department Name
Department Head's Signature
City Attorney / Finance / Human Resources
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
21
1 ORDINANCE NO. 05- 01./ A
2
3 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
4 BOYNTON BEACH, FLORIDA; APPROVING THE FRANCHISE
5 AGREEMENT WITH ADELPHIA COMMUNICATIONS CORP. TO
6 UTILIZE THE CITY'S PUBLIC WAYS TO PROVIDE CABLE
7 SERVICE OVER THE CABLE SYSTEM; PROVIDING FOR
8 CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING
9 AN EFFECTIVE DATE.
10
11 WHEREAS, the City Commission of the City of Boynton Beach, Florida ("City
12 Commission") has determined it is in the public interest of the City of Boynton Beach
13 ("City") to approve the Cable Television Franchise Agreement with Adelphia
14 Communications Corp.
15 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
16 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
17
Section 1.
The foregoing WHEREAS clause is hereby adopted and inco!porated
18 herein as if fully set forth in this Section.
19
Section 2.
The Franchise Agreement with A~elphia Communications Corp. IS
20 hereby approved, a copy of which is attached hereto as Exhibit "A" and made a part hereof.
Section 3.
The proper City Officials of the City of Boynton Beach are hereby
22 authorized and directed to execute said Agreement in written form and any other related
23 documents.
24
Section 4.
Conflicts.
That all ordinances or parts of ordinances and all
25 resolutions or parts of resolutions in conflict with this Ordinance are repealed to the extent
26 of such conflict.
1
S:\CA \Ordinances\Cable Ordinance approving the agreement.doc
1
Section 5.
Severability. The provlslOns of this Ordinance are declared to be
2 severable. If any section, sentence, clause or phrase of this Ordinance shall for any reason be
3 held to be invalid or unconstitutional, such decision shall not affect the validity of the
4 remaining sections, sentences, clauses, and phrases of this Ordinance but they shall remain in
5 effect, it being the legislative intent that this Ordinance shall stand notwithstanding the
6 invalidity of any part.
7
Section 6.
Effective Date. This Ordinance shall be effective upon adoption on the
8 second reading.
9 FIRST READING this day of , 2005.
10 SECOND, FINAL READING AND PASSAGE this _ day of ,2005.
11 CITY OF BOYNTON BEACH, FLORIDA
12
13
14 ~ayor
15
16
17 Vice ~ayor
18
19
20 Commissioner
21
22
23 Commissioner
24
25
26 Commissioner
27 ATTEST:
28
29
30 City Clerk
31
2
S:\CA\Ordinances\Cable Ordinance approving the agreement.doc
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT ("Agreement") is made this _ day of August,
2005, by and between the CITY OF BOYNTON BEACH (the "City") and Adelphia Cable
Partners, LP, Adelphia Cablevision of West Palm Beach IV, LLC, Leadership Acquisition, LP
and National Cable Acquisition Associates, LP, subsidiaries of Adelphia Communications
Corp. ("Adelphia" or "Franchisee");
WHEREAS, pursuant to the Cable Communications Policy Act of 1984, as amended, 47
U.S.C. 9521 ("Communications Act"), the City may grant or renew a Franchise to construct,
operate and maintain a Cable Television System; and
WHEREAS, the City is authorized to regulate the construction, installation, operation
and maintenance of Cable Television Systems pursuant to federal, state and local law; and
WHEREAS, on June 20,2000, the Commission adopted Ordinance No. 00-31 entitled
"Cable Systems and Open Video Systems" to update the terms and conditions for the operation"
of Cable Systems and the application, procedures and requirements relating to the grant of
Franchises for the construction, installation, operation and maintenance of Cab Ie Systems'
equipment and facilities in the City's public rights-of-way (the "Ordinance"); and
WHEREAS, the franchise agreements held by Adelphia Cable Partners, LP and National
Cable Acquisition Associates, LP are expired, the franchise agreement held by Adelphia Cablevision
of West Palm Beach IV, LLC expires on July 18, 2008, and the franchise agreement held by
Leadership Acquisition, LP expires on January 2,2009 (collectively "Current Franchises"); and
WHEREAS, the City and Franchisee desire to enter into a single franchise agreement
governing all of Franchisee's cable television system operating in the City; and
WHEREAS, Adelphia desires to replace and supersede the Current Franchises to
construct, install, maintain, and operate a Cable System in the City and has applied to the City to
replace such Current Franchises, so that upon its effective date this Franchise shall govern all of
Franchisee's cable system operations in the City and the Current Franchises shall have no further
force or effect; and
WHEREAS, the construction, installation, maintenance, and operation of such a Cable
System involves the use and occupation of the Streets ofthe City, over which the City exercises
governmental control; and
WHEREAS, the Commission has evaluated Adelphia's application in light of the
requirements of federal and state law and the Ordinance; and
WHEREAS, the Commission has considered all information presented to it by Adelphia,
the City staff, the City's consultants, and the public; and
WHEREAS, based on said information, the Commission has determined that a renewal
of Adelphia's nonexclusive Franchise to construct, install, maintain and operate a Cable System
in the City, subject to the terms and conditions set forth herein and in the Ordinance, is consistent
with the public interest; and
WHEREAS, the City and Adelphia have reached agreement on the terms and conditions
of such a Franchise Agreement.
NOW, THEREFORE, in consideration ofthe City's renewal of Adelphia's Franchise to
own, construct, install, maintain and operate a Cable System within the City, and to use and
occupy the Streets ofthe City for that purpose, and in consideration of Adelphia's promise to
2
provide Cable Service to residents of the City pursuant to the Ordinance and under the terms and
conditions set forth herein, and in consideration of the promises and undertakings herein, and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Franchise is hereby granted and
THE SIGNA TORIES DO HEREBY AGREE AS FOLLOWS:
Section 1.
Definitions.
{tc \12 "Section I.Definitions. }Except as otherwise provided specifically herein, the
definitions in Chapter 5 of the City Code shall govern this Agreement. In addition, the following
definitions shall apply:
A. "Commercially Feasible" shall mean that level of technical performance,
equipment, components and cable services (without reference to the content of the cable service)
which has been developed and demonstrated to be generally accepted and used in the cable
industry, excluding (1) "tests" involving new products offered for one year or less, or (2)
products that the Franchisee can demonstrate would not provide a rate of return comparable to
other markets where such products are offered. Nothing herein shan'be construed to require a
Franchisee to employ any specific transmission technology or to carry any particular
. .
programmmg servIces.
B. "Effective Date" shall mean the date upon which this Agreement commences, as
provided in Section 3 hereof.
C. "Franchisee" or "Adelphia" shall mean the legal entities that are signatories to this
Franchise Agreement ("Adelphia"), and their lawful and permitted successors, assigns and
transferees pursuant to Sections 32 and 33 ofthis Agreement and the Ordinance.
3
D. "Franchise Area" shall mean the entire territory within the corporate limits of the
City and as those limits may change from time to time through annexation or contraction during
the term of this Agreement.
E. "Ordinance" shall mean Chapter 5 of the Code of the City of Boynton Beach,
Florida, as such existed on the Effective Date of this Agreement.
Section 2.
Grant of Franchise.
Subject to the terms of this Agreement and the Ordinance, the City hereby grants
Franchisee a Franchise for the non-exclusive right and privilege to own, construct, install,
maintain and operate a Cable System within the Franchise Area.
Section 3.
Term of Agreement.
A. The Agreement shall commence upon the date that the Ordinance approving this
Agreement is adopted by the City Commission (the "Effective Date"), provided that the
Franchisee has provided to the City within ten (10) days of the Effective Date the written
acceptance required by Section 40 herein, the proof of insurance required by Section 8 herein,
and any and all payments due as of the Effective Date pursuant to this Agreement and the
Ordinance. Franchisee shall provide to the City the security fund as required in Section 10 herein
within fifteen (15) days following such adoption. Failure to provide the written acceptance, the
proof of insurance, the security fund and the payments as required herein may result in a denial or
delay ofthe grant.
B. This Agreement shall be for a period ofthirteen (13) years commencing from the
Effective Date and shall terminate on August 1,2013, unless otherwise sooner terminated or
otherwise extended in accordance with the terms of this Agreement and the Ordinance.
4
Section 4.
Non-Exclusive Franchise.
{tc \12 "Section 5. Non_Exclusive License. }The Franchisee's right to use and occupy the
Streets and rights-of-way shall be non-exclusive pursuant to Section 5-7 of the Ordinance. The
City reserves the right to grant a similar or other use of said Streets, or any portions thereof, to
any person, including the City, at any time during the term of this Agreement consistent with
Florida Statute 166.046 as in effect on the date hereof
Section 5.
Agreement Subject to Communications Act, State Law and City
Code.
A. This Agreement is subject to and shall be governed by all terms, conditions and
provisions of the Communications Act, any amendments thereto, and any other applicable
provision of federal, state or local law of general applicability, existing or hereafter adopted.
B. This Agreement is subject to and shall be governed by all terms, conditions and
provisions of the Ordinance, as it existed on the Effective Date ofthis Agreement.
C. Franchisee hereby accepts all terms and conditions ofthe Ordinance as they exist
on the Effective Date of this Agreement.
D. In the event of a conflict between this Agreement and the Ordinance, this
Agreement shall control as provided herein.
Section 6.
Franchisee Subject to Other Laws, Police Power.
A. Franchisee is subject to and agrees to comply with all generally applicable local,
City, state and federal laws, ordinances, rules, regulations and orders, existing or hereafter
lawfully adopted. The City and the Franchisee agree to comply with all applicable Florida
Statutes.
5
B. The Franchisee shall at all times be subject to all lawful exercise of the police
power ofthe City, and this Agreement is not intended to limit or expand the City's exercise of
such power in any way.
C. The parties expressly acknowledge that the Franchisee's obligations under this
Agreement may not be unilaterally altered, whether by resolution, proclamation, or amendment
of the Ordinance unless otherwise stated herein or expressly permitted by applicable federal or
state law.
Section 7.
Reservation of Rights.
A. The Franchisee is subject to and agrees to comply with all applicable federal, state
and local law of general applicability subject to Section 6( c) above.
B. The City reserves the right to acquire, purchase, own and/or operate a Cable
System to the extent permitted by applicable state and federal law .
Section 8.
Insurance.
A. Each Franchisee shall obtain and maintain insurance of the types and minimum
amounts required in Section 5-10(2) of the Ordinance in such a manner as to comply with each
and every requirement of that section, provided that on a combined basis the total insurance
obligations of all Franchisees does not exceed the minimum requirements for a single Franchisee.
B. The Franchisee shall provide proofto the City of compliance with this section as
of the effective date of this Franchise, or as otherwise agreed to in writing by the City Manager or
his designee. Should Franchisee fail to provide the City with proof of insurance as required
herein, Franchisee shall be subject to fines and other enforcement remedies, including but not
limited to revocation pursuant to the procedures set forth in Section 380fthis Agreement.
6
C. In the event of any request for modifications or transfers of the Franchise,
Franchisee shall provide proof to the City of compliance with this Section no later than thirty
days (30) after the effective date the relevant transaction is completed. Should Franchisee fail to
provide the City with proof of insurance as required in this Subsection (C), Franchisee shall be
subject to fines and other remedies, including a resolution denying the transaction or revoking
any prior conditional approval requested by the Franchisee, pursuant to Section 5-24 of the
Ordinance. D. All certificates of insurance shall be filed and maintained with the City Manager.
The certificates of insurance filed pursuant to this subsection must contain a statement that the
City shall receive at least thirty (30) days advance written notice of any cancellation of insurance.
Section 9.
Indemnification of the City.
A Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the
City, its officials, boards, commissions, commissioners, agents, and employees, against any and all
claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and
expenses arising out of the willful or negligent acts or omissions of the Franchisee or its officers,
agents, employees or contractors relating to construction, maintenance or operation of its Cable
System, and the conduct of Franchisee's business in the City; provided, however, that Franchisee's
obligation hereunder shall not extend to any claims caused by the willful misconduct or negligence
of the City, its officials, boards, commissioners, agents or employees, or to claims arising from
Franchisee's provision of Access Channels for public, educational and/or governmental use pursuant
to a Franchise granted hereunder, to the extent such claims relate to programming and content on
such channels, over which Franchisee has no editorial control nor exercises administrative control.
7
This provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in
defending against any such claim, suit or proceedings, and claims arising out of copyright
infringement or a failure by the Franchisee to secure consents from the owners, authorized
distributors, or providers of programs to be delivered by the Cable System, claims arising out of
Section 638 of the Communications Act, 47 US.c. 558, and claims against the Franchisee for
invasion of the right of privacy, defamation of any Person, firm or corporation, or the violation or
infringement of any copyright, trade mark, trade name, service mark or patent, or of any other right
of any Person, firm or corporation. If any such claim arises, the Franchisee shall have the obligation
and duty to defend the City and any other indemnified party hereunder; provided, however,
Franchisee may not agree to any settlement of claims affecting the City without the City Attorney's
approval. lfthe City Attorney finds that separate representation to fully protect the interests ofthe
City is necessary, Franclrisee shall consult with the City Attorney on counsel that is acceptable to the
City Attorney. IfFranclrisee is unwilling or unable to select counsel acceptable to the City Attorney,
whose acceptance shall only be withheld for good cause shown, Franchisee shall pay all actual and
reasonable expenses incurred by the City in defending itself with. regard to any action, suit or
proceeding subject to this indemnification. The City's expenses shall include all out of pocket
expenses, attorney's fees and costs of the City attorney or assistants, or any City employees, outside
attorneys or other agents. Notwithstanding the foregoing, Franchisee shall not be required to
indennriFy the City pursuant to this Ordinance or a Franchise Agreement for actions relating to
public, government and education access programming decisions outside ofFranclrisee's control or
for the City's use of the Cable System or the use of public, government and education Access
Channels, facilities or funding.
8
The City agrees to notify Franchisee, in writing, within twenty (20) days of the City
receiving notice of any issue that may require indemnification pursuant to this Section. To the
extent this Section requires the consent ofthe City Attorney, such consent shall not be
unreasonably withheld. {tc \12 "Section 11. Security Fund. }
Section 10. Security Fund.
A. In compliance with Section 5-10(3) and (4) of the Ordinance, each Franchisee
shall provide to the City a performance bond in the an amount that totals on a combined basis for
all Franchisees two hundred thousand dollars ($200,000) to ensure the faithful performance of all
provisions of this Agreement, the Ordinance, and all applicable" local, state and federal law. The
,
bond shall be in a form and with a surety reasonably acceptable to the City's Risk Manager.
B. If thirty (30) calendar days after written notice from the City Franchisee fails to
pay to the City any fees or taxes due and unpaid, or any liquidated damages owed pursuant to the
Ordinance, or this Agreement, damages, costs or expenses that the City has incurred by reason m
any act, omission or default of Franchisee in connection with this Agreement or the Ordinance,
the City may apply to the surety for withdrawal of that amount, plus interest and any costs. Upon
such withdrawal or claim, the City shall notify Franchisee in writing of the amount and date of
the withdrawal at least ten (1 0) busine~s days prior to a withdrawal. Any action by the City
Manager or designee to draw upon the performance bond hereunder may be appealed to the City
Commission for hearing and determination, subject to the terms set forth in the Ordinance.
C. The rights reserved to the City under this section are in addition to all other rights
ofthe City, whether reserved in this Agreement or the Ordinance or authorized by other law, and
9
no action, proceeding or exercise of a right with respect to the performance bond will affect any
other right the City may have.
Section 11. Construction Bond.
In compliance with Section 5-10(3) of the Ordinance, prior to any significant Cable
System construction, upgrade, rebuild or other significant work in the Streets of the City,
Franchisee shall post a construction bond in favor of the City hereof in the amount of fifty
percent (50%) of the cost of such construction or two hundred fifty thousand dollars ($250,000),
whichever is less. Such bond shall be subject to the approval of the City's Risk Manager, such
approval to be not unreasonably withheld. The City shall be provided with thirty (30) days prior
notice of intent to cancel or not renew the bond. The bond shall be maintained until such
construction is completed and activated and for a period of twelve (12) months thereafter.
Franchisee shall notify the City Manager in writing when it believes the construction has been
completed and the date on which it believes the bond may be eliminated pursuant to this Section
11. Unless the City reasonably determines that construction is not complete or there exists a
potential claim or demand against the Bond, the City agrees to return the bond to the Franchisee
or to sign such documents as are required to release the bond.
Section 12. Use of Streets; Use of City Private Property.
A. Franchisee agrees at all times to comply with and abide by all generally applicable
and lawful provisions of the City Code, the Ordinance, this Agreement, and applicable state,
local and federal law with respect to use of the Streets
B. As required by the City, and upon receipt of written notice, Franchisee shall
remove, relocate, replace or modify, at its own expense to the extent other Persons with facilities
10
11
Franchisee fails to install its conduit, pedestals and/or vaults, and laterals within five (5) working
days ofthe date the trenches are available, as designated in the notice given by the developer or
property owner, then should the trenches be closed after the five-day period, the cost of new
trenching is to be borne by Franchisee.
Section 13. Minimum Facilities & Services.
A. As of the Effective Date hereof, the relevant Cable System will, at minimum, pass
frequencies of at least 750 MHz and will be fully operational throughout the entire City.
B. As of the Effective Date, the Franchisee shall provide to the City a complete set of
strand System maps and such reasonable documentation as may be required by the City.
C. Maintain upstream Video Channel capacity through return lines from City Hall to
the Franchisee's headend and in the amount necessary to satisfY the PEG Access Channel
requirements set forth in Section 16 hereof
D. Franchisee's Cable System shall transmit to Subscribers any stereo signals and
any other form of advanced television signals, including but not limited to high-definition
television (to the extent that Franchisee has the obligation to do so pursuant to federal must-carry
rules or the requisite authority pursuant to a valid retransmission consent agreement with the
applicable broadcast station) received and carried by the Cable System pursuant to applicable
federal law.
E-. Franchise shall fully comply with all applicable laws concerning ha~dicapped or
disabled persons.
Section 14. Technological Improvements to System.
A. State-of-the-Art.
12
1. Within thirty (30) days after the Fifth Anniversary of the effective date of
this Agreement, the Franchisee shall submit a written report to the City upon their request, in a
form reasonably satisfactory to the City Manager, that discusses the Cable System capacity and
Cable Services offered on any ofthe most recently constructed or upgraded Cable Systems
owned and operated by the Franchisee, its parent or Affiliates in Palm Beach County, Florida.
The purpose of this report is to discuss the status of the Cable System in relation to State-of-the-
Art.
2. During the term ofthis Franchise, Franchisee may agree to make such
technically and Commercially Feasible improvements to its Cable System as may be requested by
the City. If Franchisee believes that a particular improvement requested by the City is not
Commercially Feasible for any reason, it will, upon written request, provide information to the
City supporting its position. Ifthe City and Franchisee disagree as to the Commercial Feasibility
of a particular improvement, the City may provide notice stating that it believes that such an
improvement is appropriate and may consider Franchisee's response during renewal.
(a) The City may, by written notice, require the Franchisee to provide
the functional equivalent of such Cable System capacity or Cable Services that are not then
available on the Cable System in the qty but are available within Palm Beach County. Nothing
herein shall be construed to require the Franchisee to employ any specific transmission
technology or to carry any particular programming service.
(b) Upon receipt of such notice, the Franchisee shall implement the
same or functional equivalent of such Cable System capacity or Cable Services within twelve
(12) months of receipt of notice, or as otherwise agreed to by the City and the Franchisee. The
13
City agrees to provide an extension of such twelve (12) month period upon written request of the
Franchisee for good cause shown, including, but not limited to Force Majeure.
3. Franchisee's failure to upgrade the Cable System pursuant to this section
shall result in imposition of fines to be paid by the Franchisee to the City in the amount of not
less than one thousand dollars ($1,000) per violation, per day, or part thereof that the violation
continues after following the procedures set forth in Section 37 herein and shall be considered in
any renewal proceedings.
B. For any subsequent upgrade or rebuild of the Cable System, Franchisee shall
submit to the City a schedule of its planned cable routing, work areas and pedestaVpower supply
locations during the upgrade or rebuild construction process in accordance with the City's
generally applicable requirements.
C. During any further construction, Franchisee shall provide monthly written updates
and, upon request of the City Manager or designee, meet with the City monthly, or as otherwise
agreed to between the City and Franchisee, to review the progress of the construction of the
Cable System and to coordinate, as may be necessary, to minimize disruption ofthe rights-of-
way in the City while attempting to avoid delay in the Cable System construction schedule.
D. Franchisee agrees to provide reasonable notice to all Subscribers of any Cable
System upgrade or rebuild and the timing of such through the use of door hangers, direct mail,
and over"the Cable System prior to the initiation of and during construction.
Section 15. Institutional Network.
The Franchisee shall provide Institutional Network services to the City in accordance
with the terms of the Dedicated Capacity Agreement between the parties, a copy of which is
14
attached hereto as Exhibit A. The parties shall execute the Dedicated Capacity Agreement
within ten (10) days of the Effective Date of this Franchise Agreement.
Section 16. Access Channels and Facilities.
A. Access Channel Capacity. Upon ninety (90) days written notice, Franchisee
shall provide to the City at least one (1) and a maximum of two (2) activated downstream Access
Channels in accordance with this section and at least one (1) return line and a maximum of two
(2) return lines on the Cable System for the exclusive use of the City which the City shall use, in
whole or in part, for video and audio services for non-commercial educational and/or
governmental access use:
1. Upon written request of the City, Franchisee shall provide to the City one
(1) full-time Access Channel ("First Access Channel") to the City within ninety (90) days of the
date ofthe request. Franchisee shall deliver to the City a second channel for the City's exclusive
use ("Second Access Channel") if, at any time, the First Access Channel is programmed at least.
ten (10) hours per day between 8:00 a.m. to 12:00 a.m. for a period ofsix.(6) consecutive weeks
with non-character generated, non-duplicative, non-commercial programming (the
acknowledgement of underwriters and sponsorships shall be considered non-commercial). The
Franchisee shall provide the exclusive.use of the Second Access Channel within six (6) months
of receipt of a written request from the City that will include detailed documentation evidencing
the fact that the usage of the First Access Channel has met the criteria set forth above. The
Second Access Channel may, at the City's option, be activated from City Hall, or from such other
location within the City as specified by the City.
15
2. The City may elect to carry County or other municipal or educational
programming in all or in part on City Access Channels and such programming shall be included
as usage under Subsection 1 above as long as such programming is not duplicative of County
programming carried on an entire County Channel that is delivered to Subscribers within the
City. At no time shall Franchisee be obligated to carry more than a total of two (2) Access
Channels. In accordance with federal law, Franchisee will be entitled to use any PEG Access
Channel capacity for the provision of other services at any time such channel capacity is not
being used for PEG access purposes or is not meeting the usage requirements as provided in this
Agreement.
3. Upon 90 day's prior written notice from the City, Franchisee shall cablecast
live all City Commission Meetings over the Cable System.
4. The Franchisee shall not be responsible for the operation, management and
administration of PEG Access, or for providing programming or technical support thereto, except as
otherwise provided in this section.
5. Franchisee's Cable System shall be configured so that any programming
delivered to the Cable System on any return line required hereunder may be delivered
downstream on the Cable System on any of the activated downstream Access Channels to all
Subscribers hereof, as determined and directed by the City from the access facilities and
equipment located at City Hall, or from such other location within the City designated by the
City, for a total of two return lines.
6. Franchisee shall provide all necessary headend and Cable System
electronic and distribution equipment so that any programming transmitted from City Hall and
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such other origination location designated by the City in accordance with this Agreement may be
transmitted to all Subscribers on any of the Access Channels provided pursuant to this Section
hereof. City Hall and the other origination location designated pursuant to Section 16( a) hereof
will be linked to the headend by the most technically feasible and cost-effective means, as
reasonably approved by the City.
7. Franchisee agrees that all Access Channels will be provided to Subscribers
on the Cable System as a part of the lowest tier of Cable Service and that, if programming
information is supplied to Franchisee by the City in writing, Franchisee will use its best efforts to
publicize such programming on the Access Channels as a part of any ordinary printed program
listings it creates and provides to Subscribers.
8. Franchisee agrees that any and all Access Channels provided pursuant to
this Section 16 shall be provided on the same channel location to all Subscribers in the City. If
Franchisee elects to change the channel location of any City Access Channel, Franchisee shall. ,
provide no less than ninety (90) days notice to the City and thirty (30) days notice to Subscribers
prior to the change and shall advertise any such change consistent with FCC notice requirements.
9. Failure on the part ofthe Franchisee to provide the PEG channels required by
Section 16(A) ofthis Agreement may result in the imposition ofliquidated damages in the amount of
one thousand dollars ($1,000) per day per violation after following the procedures set forth in
Section 37 hereof.
B. Access Capital Grant
1. Consistent with applicable federal law, the Franchisee shall pay the City a
capital grant for PEG equipment, facilities and other capital requirements in the amount of Two
17
Hundred Thousand Dollars ($200,000) within thirty (30) days of the Effective Date of this
Franchise. In addition, the Franchisee shall pay the City for PEG capital and other capital
requirements, the amount of Seventy Thousand Dollars ($70,000) per year during each year the
franchise is in effect, payable on the first anniversary of this Franchise and each subsequent
anniversary thereafter throughout the term ofthis Franchise.
2. The City acknowledges that under FCC rules, the Capital Grant may be
passed through to Subscribers. Franchisee agrees that if the Capital Grant is passed through to
Subscribers, such pass through shall apply to all Subscribers, including those Subscribers who
receive Cable Service pursuant to bulk agreements, on an equitable basis.
3. Franchisee hereby agrees that the Capital Grant provided by Franchisee
pursuant to this Section 16 constitutes capital costs which are required by the Agreement to be
incurred by Franchisee for public, educational, or governmental access facilities within the
meaning of Section 622(g)(2)(c) ofthe Communications Act, 47 D.S.C. ~542(g)(2)(C); Such
grant shall not constitute a Franchise Fee or tax within the meaning of the Communications Act,
state law, including but not limited to, the Florida Communications Services Tax, the Ordinance,
or this Agreement as of the Effective Date of this Agreement.
Section 17. Service to Public Buildings.
A. Notwithstanding any other provision of the Ordinance, Franchisee shall provide
one cable drop per location (including installation) without charge to each government building
regardless of whether such facility is owned or leased in the Franchise Area that is listed in
Exhibit A of this Agreement or any such building that is located within one hundred twenty-five
(125) feet of Franchisee's coaxial distribution plant, whether now in existence or constructed
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during the term of this Agreement. Such service shall, at minimum, include the basic and
expanded basic tiers, or the equivalent comprising the next level of programming service above
the lowest tier of Cable Service. Service extensions beyond 125 feet shall be at the City's
expense based upon Franchisee's actual costs.
B. Failure on the part of the Franchisee to provide the cable drop and Cable Service
required by Section 17(A) of this Agreement may result in the imposition ofliquidated damages
in the amount of five hundred dollars ($500) per day per violation after following the procedures
set forth in Sections 37 and 38 hereof.
Section 18. Service to Schools.
A. Notwithstanding any other provision of the Ordinance, Franchisee shall provide,
without charge, one cable drop per location (including installation) and the basic and expanded
basic tiers (or such equivalent comprising the next level of programming service above the
lowest tier) of Cable Service to all accredited K -12 schools within the City that are located within
one hundred twenty-five (125) feet of Franchisee's coaxial distribution plant, whether now in
existence or constructed during the term of this Agreement. Service extensions beyond 125 feet
shall be at the respective school's expense based upon Franchisee's actual costs.
B. Franchisee shall make arrangements for each school to receive school materials,
to the extent available, for teachers that explain the educational applications of the Franchisee's
Cable SerVices and programming offered on the Cable System. The materials will be provided to
all connected schools at no cost.
C. Franchisee has established a voluntary initiative to provide, upon request, cable
internet service to all State accredited K -12 schools within. the City which receive Cable Service.
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Franchisee intends to provide each of such schools with one outlet of unlimited Internet access,
including the necessary cable modem.
D. The costs related to this Section 18 shall not be offset against Franchise Fees or
taxes or passed through to Subscribers.
Section 19. Commercial Leased Access.
Franchisee shall provide commercial leased Access Channels as required by applicable
law.
Section 20. Emergency Use of Facilities.
A. Franchisee shall at minimum comply with all FCC rules on emergency use of
facilities.
B. Franchisee shall provide standby power generating capacity to the Cable System
headend capable of providing at least two (2) hours of emergency power.
Section 21. Lock-out Devices.
Franchisee shall make available at reasonable charge to any residential Subscriber, upon
the request of such Subscriber, a "parental guidance" or "lock-out" device which shall permit the
Subscriber, at his or her option, to eliminate the audio and visual transmissions from any channel
reception to the extent technically feasible.
Section 22. Line Extension Policy.
Upon request and payment of all applicable charges, and provided that the requesting
person gives Franchisee access to his/her premises in order to furnish, maintain and continue to
offer Cable Service to that person, Franchisee shall, throughout the term of this Agreement,
promptly furnish, maintain, and continue to provide all Cable Services distributed over the Cable
20
System to any person at his/her place of residence at which Franchisee has the right to install
equipment and located within the City where such residential location is not receiving Cable
Service by any other franchised cable operator, provided that the number of actual residential
dwelling units to be passed by any requested extension equals or exceeds twenty (20) homes per
mile as measured from the nearest activated point on the Cable System to the furthest location to
be served by the requested extension.
Section 23. Cable Home Wiring Commitments.
Franchisee shall comply with all FCC rules regarding cable home wiring, as amended
from time to time.
Section 24. Franchise Fee.
A. As of the Effective Date hereof, the Florida Communications Services Tax Act
preempts Section' 5-8 of the Ordinance. If, however, the Florida Communications Services Tax
Law is amended or repealed so that a local franchising authority is allowed to impose and collect
Franchise fees, then forty five ( 45) days after the effective date of any such statutory amendment
or repeal, this section of the Agreement will become effective or at such time as stated in said
amendment or repeal ofthe Florida Communications Services Tax Law. Unless otherwise
provided by law, Franchisee shall coll~ct and remit Franchise fees for the entire period following
the effective date of the aforementioned change in law, even if some collection and payment
must be dOne in arrears to allow for changes to the billing process. The intent of this section is to
ensure the City is not deprived of any Franchise fees to which it would otherwise be entitled
following any change in applicable state law.
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1. Franchisee shall pay the City a Franchise fee of five percent (5%) of
Franchisee's Gross Revenues derived from the operation of the Cable System to provide Cable
Services in the City. Franchise fee payments shall be paid on a quarterly basis (J anuary 1,
Aprill, July 1 and October l) no later than forty-five (45) days after the end of each quarter.
Each payment shall be accompanied by a detailed report to the City showing the basis ofthe
computation.
2. The City shall have the option of increasing the Franchise fee to the
maximum permitted by law following a public hearing where both the Franchisee and public are
allowed to comment on the impact of the higher fee, and a vote by the City Commission adopting
a resolution to impose the higher fee. Such change shall take effect on the next available billing
cycle in which the higher charge may be placed on Subscribers' bills.
3. Upon reasonable prior written notice, during Normal Business Hours, as
defined in the Ordinance, at Franchisee's principal business office in Palm Beach County, the <
City shall have the right to inspect the Franchisee's financial records used to calculate the
Franchisee fees; provided, however, such actual fees are subject to the applicable statute of
limitations.
4. Upon completion of any such inspection by the City, the City shall provide
to the Franchisee a final report setting forth the City's findings in detail, including any and all
substantiating documentation. The Franchisee shall have thirty (30) days from the receipt of the
report to provide the City with a written response, including any substantiating documentation.
Any "Finally Settled Amount(s)" due to the City as a result of such inspection shall be paid to the
City by the Franchisee within thirty (30) days from receipt of written notice of the acceptance of
22
such Finally Settled Amount from the City. For purposes ofthis section, the term "Finally
Settled Amount(s)" shall mean the agreed upon underpayment, if any, to the City by the
Franchisee as a result of such inspection. If the parties cannot agree on a "Finally Settled
Amount", the parties shall submit the dispute to a mutually agreed upon mediator within sixty
(60) days of reaching an impasse. In the event an agreement is not reached at mediation, either
party may bring an action to have the disputed amount determined by a court of law. Once the
parties agree upon a Finally Settled Amount and such amount is paid by the Franchisee, the City
shall have no further rights to audit or challenge the payment for that period unless otherwise
provided by applicable law.
B. Unless otherwise mandated by applicable law, Franchisee expressly agrees
that: (i) the Franchise fee payments to be made pursuant to this section shall not be deemed to be
in the nature of a tax; (ii) such Franchise fee payments shall be in addition to any and all taxes of
a general applicability and not applicable solely to cable television operations within the City OF
other fees or charges which Franchisee shall be required to pay to the City or to any state or
federal agency or authority, as required herein or by law, all of which shall be separate and
distinct obligations of Franchisee; (iii) Franchisee shall not have or make any claim for any
deduction or other credit of all or any part of the amount of said Franchise fee payments from or
against any of said City taxes or other fees or charges of general applicability which Franchisee is
required to pay to the City, except as agreed herein or required by law; (iv) Franchisee shall not
apply nor seek to apply all or any part of the amount of said Franchise fee payments as a
deduction or other credit from or against any of said City taxes or other fees or charges of general
applicability, each of which shall be deemed to be separate and distinct obligations of Franchisee;
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(v) Franchisee shall not apply or seek to apply all or any part of the amount of any of said taxes
or other fees or charges of general applicability as a deduction or other credit from or against any
of its Franchise fee obligations, each of which shall be deemed to be separate and distinct
obligations of Franchisee.
Section 25. Reports and Records.
Upon reasonable prior written request of the City Manager or his/her designee, Franchisee
shall furnish the City with all of the information as required under Section 5-26 of the Ordinance,
except those reports required by Section 5-26(2)(B)(3) (unless and until the Florida Simplified
Communications Tax Act is properly amended or repealed). Franchisee hereby expressly agrees
to implement and maintain such practices and procedures as may be necessary to comply with
said obligations.
Section 26. Right to Inspect Financial Records and Facilities.
A. Franchisee shall maintain a complete set of books and records, including plans"
contracts, engineering, statistical, customer and service records at a location in Palm Beach
County, as required by the Ordinance, and accounting and financial records if the Florida
Simplified Communications Tax Act is properly repealed, unless prohibited by applicable law.
B. Throughout the term ofthis Agreement, the Franchisee agrees that upon receipt
of advance written notice from the City, the Franchisee shall permit any duly authorized
representative ofthe City to review such ofthe Franchisee's books and records regarding the
operation of the Cable System and the provision of Cable Service in the City, as are reasonably
necessary to monitor Franchisee's compliance with the provisions of the Ordinance and this
Agreement at the Franchisee's business office in Palm Beach County, during Normal Business
24
Hours and without unreasonably interfering with Franchisee's business operations. Such notice
shall specifically reference the subsection of the Agreement that is under review so that the
Franchisee may organize the necessary books and records for easy access by the City. Such
books and records shall include, without limitation, any records required to be kept in a public
file by the Franchisee pursuant to the rules and regulations of the FCC. The Franchisee shall not
be required to maintain any books and records for Agreement compliance purposes longer than
five (5) years, except for written service complaints, which shall be kept for three (3) years.
C. The City shall accord all books and records that it inspects under this section the
degree of confidentiality such books and records are entitled to under federal and state law. To
the extent Franchisee considers any books or records that it is required to produce to be
confidential or otherwise protected from public disclosure, Franchisee shall designate which
documents it views as confidential and proprietary.
D. Franchisee hereby agrees that the City shall have the right to inspect Franchisee's
facilities and property during Franchisee's Normal Business Hours and upon reasonable notice.
Section 27. Customer Service Requirements.
Franchisee agrees to comply with, and to implement and maintain any practices and
procedures that may be required to mo~itor compliance with each of the customer service
requirements set forth in Section 5-27 of the Ordinance, and as such requirements may be
lawfully amended in accordance with the terms of the Ordinance or this Agreement.
Section 28. Late Fees.
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Franchisee hereby agrees that any late charge imposed on Subscribers for unpaid bills
shall not exceed Five Dollars ($5.00). Such fee may be deemed to represent Franchisee's
reasonable administrative costs.
Section 29. City Purchase of Cable System.
The City may, upon the recommendation of the City Manager and the approval of the
Commission, acquire ownership of and operate Franchisee's Cable System in accordance with the
Ordinance and applicable state and federal law .
Section 30. Modification of Agreement.
Franchisee shall file an Application with the City for any modification of this Agreement
in accordance with the federal Communications Act.
Section 31. Transfer of Agreement.
Franchisee shall file an Application to transfer or to change ownership or control of
Franchisee or its Cable System in full compliance with Section 32 below. No Transfer shall
occur without prior approval ofthe City Commission, which approval shall not be unreasonably
withheld. Franchisee shall be subject to liquidated damages in the amount of one thousand five
hundred dollars ($1,500) per day for failure to receive such consent of the City for a transfer or
change of control; provided, however, that no such liquidated damages shall be owed if the
City's denial of consent is unlawful or unreasonable.
Notwithstanding the forgoing and in full compliance with Section 32 below and Section
5-29(3) ofthe Ordinance, the City approves and consents to the transaction to transfer this
Franchise from the Franchisee to an affiliate of Comcast Corporation as described in Transfer
Resolution attached as Exhibit B and incorporated by reference herein. Upon the request of
26
Franchisee, the City will provide an originally executed copy of the Transfer Resolution to the
Franchisee.
Section 32. Procedures for Requesting Approval of Transfer.
In compliance with the requirements set forth in Sections 5-29(3) of the Ordinance, and
subject to Section 31 above, the following procedures shall be followed by Franchisee in
requesting the City's consent to a transfer, other than a pro forma transfer, of this Agreement or
to transfer control of the Agreement or Franchisee. However, the requirement to obtain consent
for a pro forma transfer shall not apply to transactions solely for the purpose of restructuring,
recapitalization or refinancing which do not change the effective control ofthe Franchisee, as
long as the Franchisee provides reasonable notice to the City of such transaction.
A. At least one hundred twenty (120) calendar days prior to the contemplated
effective date of a transfer, Franchisee shaH submit to the City a completed Application for
approval of the transfer. Such Application shall include the following:
1. A statement ofthe reason for the contemplated transfer.
2. The name, address and telephone number of the proposed transferee.
3. A detailed statement of the corporate or other business entity organization
of the proposed transferee, including but not limited to the following:
(a) A detailed and complete audited financial statement of the
proposed transferee for the three (3) fiscal years immediately preceding the date ofthe request for
transfer approval, prepared by a certified public accountant if audited statements were made, or a
letter or other acceptable evidence in writing from a duly authorized officer of the proposed
transferee setting forth a clear and accurate description of the amount and sources of funding for
27
the proposal transaction and its sufficiency to provide whatever capital and operating funds shall
be required by the proposed transferee to construct, install, rebuild, maintain and operate the
proposed Cable System in the City. If the corporate or business entity organization of the
proposed transferee has not been in existence for a full three (3) years, the proposed transferee
shall submit a certified financial statement for the period of its existence.
(b) A description of all previous experience of the proposed transferee
in operating Cable Systems and providing Cable Services or related or similar services, including
a statement identifying, by place and date, any other cable television licenses or franchises
awarded to the proposed transferee, its parent, subsidiaries, or Affiliates in the State of Florida.
(c) Upon written request from the City and if such pro forma financial
plan has been prepared, a detailed pro forma financial plan describing for each remaining year of
the Franchise, the projected number of Subscribers, rates, all revenues, operating expenses,
capital expenditures, depreciation schedules, income statements, and statement of sources and,
uses of funds. Where the transfer is part of a larger transaction and such information is not
prepared for the single Cable System in the City, the proposed transferee may provide such
information on a consolidated basis including the Cable System in the City, but shall provide
information on the size of the City System, in terms of number of Subscribers, relative to the
transaction, so that pro rata estimates may be made.
(d) If applicable, a detailed description of the proposed plan of
operation of the proposed transferee, which shall include, but not be limited to the following:
28
I. A detailed map indicating all new areas proposed to be
served, and a proposed time schedule for the installation of all equipment necessary to become
operational throughout the new areas to be served.
II. For informational purposes a statement or schedule setting
forth all anticipated changes, if any, to the proposed classifications of Subscriber rates and
charges for each of any said classifications, including installation charges, service charges,
special, extraordinary, or other charges.
4. Upon request, the terms and conditions ofthe agreement between the
transferor and proposed transferee relating to the operation of the Cable System in the City.
5. A statement of acceptance signed by a duly authorized officer ofthe
proposed transferee, if such transferee will be the holder of the Franchise, of all of the terms and
conditions of the Ordinance and this Agreement. If such transferee is not the holder of the
Franchise, such transferee will sign a guarantee of compliance by the Franchisee with this
Agreement.
6. A statement of acceptance of all liabilities arising under the existing
Franchise whether known or unknown.
7. A plan of compliance and guarantee to cure any outstanding violations of
the Ordinance and this Agreement.
B.~ The names, business addresses, state of residence and country of citizenship of all
general partners and/or corporate officers and directors of the proposed transferee.
C. The names, business addresses, state of residence and country of citizenship of all
persons and entities having, controlling, or being entitled to have or control ten percent (I 0%) or
29
more of the ownership of the proposed transferee and the respective ownership share of each
such person or entity.
Section 33. Dispute Resolution Procedures.
.Either party may seek mediation and the party seeking mediation shall provide written
notice to the other party. If both parties consent to mediation, the mediator, who shall have
expertise in cable-related matters, shall be selected by agreement between the parties.
1. The mediation will be conducted as specified by the mediator and agreed
upon by the parties. The parties agree to discuss their differences in good faith and to attempt,
with the assistance of the mediator, to reach an amicable resolution ofthe dispute.
2. The mediation will be treated as settlement discussions and confidential.
The mediator may not testify for either party in any later proceeding relating to the dispute. No
recording or transcript shall be made of the mediation proceedings.
3. Each party will bear its own costs in the mediation. The fees and expenses
of the mediator will be shared equally by the parties.
Section 34. Renewal of Agreement.
The provisions of Section 626 of the Communications Act and Section 93.23 ofthe
Ordinance shall govern any and all proceedings to renew this Agreement. In the event of a
conflict between the Communications Act and the Ordinance, the Communications Act shall
control.:" If either Franchisee or the City decides to initiate a formal renewal process in
accordance with Section 626(a)-(g) of the Communications Act, 47 U.S.c. ~ 546(a)-(g), both the
Franchisee and the City must comply with each of the requirements in the Communications Act
as well as the additional requirements set forth in the Ordinance.
30
Section 35. Rates.
A. Nothing in the Ordinance or this Agreement shall prohibit the City from
regulating rates for Cable Service, installation, disconnection, and equipment to the full extent
permitted by and consistent with state and federal law.
B. Pursuant to the Ordinance, Franchisee shall not unlawfully discriminate with
respect to Cable Service rates that it charges throughout the City, as defined by applicable law.
Section 36. Enforcement Remedies.
A. In addition to any other remedies available at law or equity, except as otherwise
specifically provided in the Ordinance and Section 33 of this Agreement, the City may impose
fines for any violation ofthe Ordinance, or this Agreement, and/or other remedies as follows:
1. For failure to provide data, documents, reports or information as required
by this Agreement in a timely manner or as requested by the City consistent with FCC rules and
regulations, Franchisee shall pay fifty dollars ($50.00) per violation for each day the violation.
continues.
2. Unless otherwise provided herein, for all other violations of this
Agreement or the Ordinance, except those violations of the FCC customer service standards that
are measured on a quarterly basis, the fines shall be one hundred dollars ($100.00) per violation
for each day the violation continues for thirty (30) days. If the violation continues beyond thirty
(30) days,:"a fine in the amount of two hundred dollars ($200.00) per violation per day shall be
imposed. If the violation continues beyond sixty (60) days, a fine shall be imposed in the greater
of the amount set forth in the Ordinance or two hundred dollars ($200.00) per violation per day.
B. A violation will be deemed to have occurred when the City provides written notice to
31
Franchisee of the violation in accordance with the procedures set forth in the Ordinance and this
Agreement. In addition to any other remedies available at law or equity, except as otherwise
specifically provided in this Agreement, the City may impose fines for any violation of the
Ordinance, or this Agreement, and/or other remedies, pursuant to Section 37 hereof.
C. This Franchise is subject to revocation pursuant to Section 38 hereof for any ofthe
reasons set forth therein. In the event the City exercises its right to revoke the Franchise, the
procedures set forth in Section 38 shall apply. After exhaustion of all such proceedings, Franchisee
shall have the right to appeal the decision of the City Commission to a court of competent
jurisdiction in Palm Beach County, Florida.
D. The Franchisee shall not be held in default under, or in noncompliance with the
provisions of the Agreement or the Ordinance, nor suffer any enforcement or penalty relating to
noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by
circumstances reasonably beyond the ability ofthe Franchisee to anticipate or control.
Section 37. Franchise Violations.
(a) In addition to any other remedies available at law or equity, the City may apply any
one or combination ofthe following remedies in the event a Franchisee violates a provision ofthe
Ordinance .or this Franchise Agreement after following the procedures set forth in Subsections (d-h)
below.
(I) Impose liquidated damages in an amount of not less than Two Hundred Fifty
Dollars ($250) per day or part thereof per individual violation. Payment of liquidated damages by
the Franchisee will not relieve the Franchisee of its obligation to comply with this Agreement and the
32
requirements ofthe Ordinance, provided, however, that cure ofthe alleged violation and payment of
liquidated damages pursuant to this section shall be considered full and final resolution ofthe alleged
violation and may not be considered as an event of noncompliance for such period.
(2) Revoke the Franchise pursuant to the procedures specified in Section 38
hereof.
(3) In addition to or instead of any other remedy provided herein, the City may
seek equitable relief from any court of competent jurisdiction.
(b) In determining which remedy or remedies are appropriate, the City shall take into
consideration the nature of the violation, the person or persons bearing the impact of the violation,
the nature ofthe remedy required in order to prevent further violations and such other matters as the
City determines are appropriate to the public interest.
(c) Failure of the City to enforce any requirements of this Agreement or the Ordinance
shall not constitute a waiver ofthe City's right to enforce that violation or subsequent violations of
the same type or to seek appropriate enforcement remedies.
(d) If the City believes that Franchisee has failed to perform any obligation under the
Ordinance or this Agreement Of has failed to perform in a timely manner, the City shall notify
Ffanchisee in writing, stating with reas<?nable specificity the nature of the alleged default. Franchisee
shall have thirty (30) days from the receipt of such notice to:
(1) Respond to the City, contesting the City's assertion that a default has occurred,
and requesting a meeting in accordance with Subsection (e), below; or
(2) Cure the default (except Franchisee shall have ninety (90) days with respect to
customer service standards measured on a quarterly basis); Of
33
(3) Notify the City that Franchisee cannot cure the default within the thirty (30) days
(or ninety (90) days where applicable), because of the nature of the default. In the event the default
cannot be cured within the applicable time frame, Franchisee shall promptly take all reasonable steps to
cure the default and notify the City in writing and in detail as to the exact steps that will be taken and
the projected completion date. In such case, the City shall set a meeting in accordance with Subsection
( e) below to determine whether additional time beyond the time specified above is indeed needed, and
whether Franchisee's proposed completion schedule and steps are reasonable.
( e) If Franchisee does not cure the alleged default within the cure period stated above, or by
the projected completion date under Subsection (d)(3), or denies the default and requests a meeting in
accordance with (d)(I), or the City orders a meeting in accordance with Subsection (d)(3), the City shall
set a meeting to investigate said issues or the existence of the alleged default. The City shall notifY
Franchisee of the meeting in writing and such meeting shall take place no less than thirty (30) days after
Franchisee's receipt of notice of the meeting. At the meeting, Franchisee shall be provided an
opportunity to be heard and to present evidence in its defense.
(f) If, after the meeting, the City determines that the Franchisee has corrected the violation
or promptly commenced correction of such violation after notice thereof from the City and is diligently
proceeding to fully remedy the violation, or that no violation has occurred, the proceedings shall
terminate and no penalty or other sanction shall be imposed.
aD If, after the meeting, the City determine that a violation exists and that Franchisee has
not corrected the same in a satisfactory manner or did not promptly commence and diligently process to
correct the violation, the City may:
(1) Impose penalties and/or liquidated damages in accordance with Subsection (a)
34
above and withdraw such amount from the security fund required in this Agreement as monetary
damages;
(2) Recomrfiend the revocation of this Franchise pursuant to the procedures in
Section 38 below; or
(3) Recommend any other legal or equitable remedy available under this Franchise
or any applicable law.
(h) If the City elects to assess liquidated damages in accordance with this Section, then
such election shall bar the City from instituting revocation proceedings for a period of one hundred
twenty (120) days. Thereafter, ifthe Franchisee remains in non-compliance with the requirements of
this Ordinance or a Franchise Agreement, the City may institute revocation proceedings against the
Franchisee in accordance with the provisions of Section 38 below.
(1) Notwithstanding anything to the contrary, any fines/liquidated damages imposed
herein shall be calculated as accruing from the date of written notice to the Franchisee ofthe violatien.
(2) The determination as to whether a violation of this Franchise has occurred shall be
within the discretion of the City Commission, provided that any final determination may be subject to
appeal to a court of competent jurisdiction under applicable law.
Section 38. Revocation.
( a) The City may revoke and rescind all rights and privileges associated with this Franchise
in the follOwing circumstances, each of which represents a material breach of this Franchise:
(1) If Franchisee fails to perform any material obligation under the Ordinance or this
Agreement;
(2) If Franchisee willfully fails for more than forty-eight (48) hours to provide
35
continuous and uninterrupted Cable Service;
(3) If Franchisee practices any fraud or deceit upon the City or Subscribers; or
(4) If Franchisee willfully makes a material misrepresentation of fact in the
Application for or negotiation of a Franchise, a renewal or a transfer.
(b) Prior to forfeiture or termination of the Franchise, the City shall give written notice by
certified mail to the Franchisee of its intent to revoke the Franchise. The notice shall set forth the
exact nature of the noncompliance. If within thirty (30) days following receipt of such written notice
from the City to the Franchisee, the Franchisee has not cured such violation or breach, or has not
entered into a written agreement with the City on a program to cure the violation, or has not
demonstrated that the violation is incurable, or has filed a written response to the City demonstrating
that no violation has occurred, the City may then seek a termination of the Franchise by the City
Commission in accordance with this subsection.
(c) Any proceeding under the subsection above shall be conducted by the City
Commission and open to the public. Franchisee shall be afforded at least thirty (30) days prior
written notice of such proceeding.
(1) At such proceeding, Franchisee shall be provided a fair opportunity for full
participation, including the right to be represented by legal counsel, to introduce evidence, and to
question witnesses. A complete verbatim record and transcript shall be made of such proceeding and
the cost shall be shared equally between the parties. The City Commission shall hear any Persons
interested in the revocation, and shall allow Franchisee an opportunity to state its position on the
matter.
36
(2) Within ninety (90) days after the hearing, the City Commission shall determine
whether to revoke the Franchise and declare that the Franchise is revoked and the security fund
forfeited; or ifthe breach at issue is capable of being cured by Franchisee, direct Franchisee to take
appropriate remedial action within the time and in the manner and on the terms and conditions that the
City Commission determines are reasonable under the circumstances. If the City determines that the
Franchise is to be revoked, the City shall set forth the reasons for such a decision and shall transmit a
copy ofthedecision to the Franchisee. Franchisee shall be bound by the City's decision to revoke
the Franchise unless it appeals the decision to a court of competent jurisdiction within one hundred
twenty (120) days of the date ofthe decision.
(3) Franchisee shall be entitled to such relief as the Court may deem appropriate.
(4) The City Commission may at its sole discretion take any lawful action which it
deems appropriate to enforce the City's rights under the Franchise in lieu of revocation of the Franchise.
(d) If the City revokes a Franchise, or if, for any other reason, a Franchisee abandons the
Cable System, terminates or fails to operate or maintain service to its Subscribers for a period of
thirty (30) days, the following procedures and rights are effective:
(1) The City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a
reasonable period of time, the City may have the removal done at the former Franchisee's and/or
surety's eXpense.
(2) The City, by resolution of the City Commission, may acquire ownership, or
effect a transfer of the Cable System, in accordance with Section 627 of the Communications Act.
37
(3) If a Cable System is abandoned by a Franchisee, the City may sell, assign or
transfer all or part of the assets of the System.
(e) Where the City has issued a Franchise specifically conditioned in the Franchise
Agreement upon the completion of construction, System upgrade or other specific obligation by a
specified date, failure ofthe Franchisee to complete such construction or upgrade, or to comply with
such other specific obligations as required may result in revocation ofthe Franchise, unless the City,
at its discretion and for good cause demonstrated by the Franchisee, grants an extension of time.
(f) No adverse action against a Franchisee may be taken by the City pursuant to this
section except as consistent with the procedures set forth in this. section or as otherwise provided by
applicable law, including a noticed public hearing at which the Franchisee is given an opportunity to
participate.
Section 39. Area Wide-Interconnection.
A. The Cable System shall be interconnected with other contiguous area cable
systems that are owned and operated by Franchisee or an Affiliate.
B. Franchisee shall use its best efforts to interconnect the PEG Access Channels of
the Cable System with any other contiguous cable system not owned or operated by Franchisee or
an Affiliate of Franchisee upon the directive of the City. Interconnection of channels may be
done by direct cable connection, microwave link, satellite or other appropriate methods. Each
individual operator of such systems shall pay for its own cost of constructing and maintaining the
interconnection up to the demarcation point. Such interconnection shall not increase the total
number of PEG Access Channels required under Section 16 ofthis Agreement.
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C. Subject to subsections A and B above, Franchisee shall make all reasonable
efforts to cooperate with any designated access organization, interconnection corporation,
regional interconnection authority or City, County, state or federal regulatory agency which may
be hereafter established for the purpose of regulating, financing, or otherwise providing for the
interconnection of cable systems beyond the boundaries of the Franchise Area.
Section 40. Validity.
A. By execution of this Agreement, the City and the Franchisee each represents and
warrants to the other its respective authority and power to enter into this Agreement. The City
and the Franchisee each represents, warrants and covenants to the other that the undersigned
elected official (as to the City) or officer (as to the Franchisee) has been duly authorized to
execute this Agreement such that this Agreement has been validly entered into by the respective
party, and that this Agreement constitutes a legal, valid and binding contract enforceable against
the respective party in accordance with the terms hereof
B. If any part, section, subsection, or other portion of this Agreement or any
application thereof to any Person or circumstance is declared void, unconditional or invalid for
any reason, such part, section, subsection, or other portion, or the prescribed application thereof,
shall be severable, and the remaining ~rovisions of this Agreement, and all applications thereof
not having been declared void, unconstitutional or invalid, shall remain in full force and effect.
Section 41. Written Notice of Acceptance.
Upon adoption and as of the date of the Commission resolution approving this
Agreement, Franchisee shall provide to the City written acceptance of all the terms and
conditions of this Agreement. Franchisee's failure to comply in full with this section shall render
39
this Agreement null and void with no further action by the City, unless the City Manager agrees
in writing or the Commission takes action to extend such period.
Section 42. Notice.
Any notice, request, demand, approval or consent given or required to be given under this
Agreement shall be in writing and shall be deemed as having been given when mailed by United
States registered or certified mail (return receipt requested), postage prepaid, to the other parties
at the addresses stated below or at the last changed address given by the party to be notified as
hereinafter specified:
(a)
If to Adelphia:
Adelphia Cable Communications
1100 Northpoint Parkway, Suite 100
West Palm Beach, FL 33407
Attention: Regional Vice President, Law and Public Policy
With a copy to:
Adelphia Communications
5619 DTC Parkway
Greenwood Village, CO 80111
Attention: Vice President, Law and Public Policy
(b)
If to City:
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33425-0310
Attention: City Manager
With a copy to:
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Blvd. #200
Ft. Lauderdale, FL 33308
Attention: James Cherof, Esq.
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Section 43. Force Majeure.
In the event a Franchisee's performance of or compliance with any ofthe provisions ofthe
Ordinance or this Franchise Agreement is prevented by a cause or event not within the Franchisee's
control, such inability to perform or comply shall be deemed excused and no penalties or sanctions
shall be imposed as a result thereof; provided, however, that Franchisee uses all practicable means to
expeditiously cure or correct any such inability to perform or comply. For purposes hereof, causes or
events not within a Franchisee's control shall include, without limitation, acts of God, floods,
earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or
civil disturbances, sabotage, strikes, loss of utility service not as a result of any action or inaction by
Franchisee and restraints imposed by order of a governmental agency or court (unless such order is
procured at Franchisee's behest). Causes or events within Franchisee's control, and thus not falling
within this section, shall include, without limitation, Franchisee's financial inability to perform or
comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Franchisee's
directors, officers, employees, contractors or agents.
Section 44. Severability.
If any part, section, subsection, or other portion of this Agreement is declared void,
unconstitutional or invalid for any reason, such part, section, subsection, or other portion, or the
prescribed application thereof, shall be severable, and the remaining provisions ofthis Agreement,
and all section hereof not having been declared void, unconstitutional or invalid, shall remain in full
force and effect.
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Section 45. Entire Agreement.
This Agreement and the Ordinance, to the extent set forth in this Agreement, set forth the
entire agreement between the parties respecting the subject matter hereof. All agreements,
covenants, representations and warranties, express and implied, oral and written, of the parties
with regard to the subject matter hereof are contained herein. No other agreements, covenants,
representations or warranties, express or implied, oral or written, have been made by any party to
another with respect to the matters of this Agreement. All prior and contemporaneous
conversations, negotiations, agreements, representations, performances, covenants and warranties
with respect to the subject matter hereof are waived and are superseded hereby and thereby.
Section 45. Execution in Counterpart.
This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed or caused this agreement to
be duly executed as of the day and year first above written.
CITY OF BOYNTON BEACH, FLORIDA
By:
Name:
Title:
Attest: -,
City Clerk
Date filed with City Clerk:
Agreed to and accepted by Franchisees:
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AdeJphia Cable Partners, L.P.
a Florida limited partnership
d/b/a Adelphia Cable Communications
By: ACC Operations, Inc.
a Delaware corporation
Its: General Partner's Managing Member's
Managing Member's General Partner
By:
Joe W. Bagan
Its: Senior Vice President of Operations
Date:
National Cable Acquisition Associates, L.P.,
a Delaware limited partnership
d/b/a Adelphia Cable Communications
By: ACC Operations, Inc.
a Delaware corporation
Its: General Partner's General Partner
By:
Joe W. Bagan
Its: Senior Vice President of Operations
Date:
AdeJphia Cablevision of West Palm Beach III, LLC,
a Delaware limited liability company
d/b/a Adelphia Cable Communications
By: CentUry New Mexico Cable Television Corp.
a Delaware corporation
Its: Managing Member
By:
Joe W. Bagan
Its: Senior Vice President of Operations
Date:
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Leadership Acquisition Limited Partnership,
a Delaware limited partnership
d/b/a Adelphia Cable Communications
By: ACC Operations, Inc.
a Delaware corporation
Its: General Partner's General Partner's Sole Owner
By:
Joe W. Bagan
Its: Senior Vice President of Operations
Date:
Witnesses:
44
EXHIBIT A
DEDICATED CAPACITY AGREEMENT
45
DEDICATED CAPACITY AGREEMENT
This Dedicated Capacity Agreement (the "Agreement") is made and entered into as of the _ day of , 2005 (the
"Effective Date" which shall be on or after the date of the execution and written acceptance of the renewal of the Cable Television
Franchise to Adelphia Communications Corp. or any subsidiary there00 by and between the City of Boynton Beach, Florida, a municipal
corporation with its principal offices located at 100 E. Boynton Beach Blvd., Boynton Beach, FL 33425-0310 ("City") and Adelphia Cable
Partners, LP, a Delaware limited partnership doing business as Adelphia Cable Communications ("Adelphia") for itself, its subsidiaries and
affiliates that provide digital fiber optic telecommunications transmission capacity. Adelphia and City are the parties to this Agreement and
may be referred to individually as "Party" and collectively as "Parties."
A Adelphia desires to provide, and City desires to obtain and use, a specific amount of unlit digital fiber optic telecommunications
transmission capacity (the "Adelphia Service") between the locations (the "Locations") more particularly described on the Service
Description included in Exhibit A, which is attached and incorporated in this Agreement by this reference.
B. City acknowledges that it will be responsible for providing all electronics, equipment and services required on its side of the
demarcation points at the Locations in order for it to "light" the Adelphia facilities; the Adelphia Service is not "lit" and Adelphia makes no
undertaking under this Agreement to do so as part of the Adelphia Service.
C. The Parties acknowledge that this Dedicated Capacity Agreement is not an Indefeasible Right of Use ("IRU") Agreement, but is
intended to provide City only with access to the Adelphia Service for a limited time under the terms and conditions set forth below.
IN CONSIDERATION OF THE FOREGOING RECITALS AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE PARTIES
TO THIS AGREEMENT AGREE AS FOLLOWS:
1. The Adelphia Service, Facilities and Access.
(a) Service and Facilities. Subject to and in accordance with the terms and conditions of this Agreement, Adelphia will provide
the facilities necessary to provide City with the Adelphia Service (the "Facilities"). Provision and use of, the Adelphia Service in the
amounts and at the Locations shall be in accordance with the terms and conditions set forth in this Agreement. City shall have the right to
use capacity on the Facilities only up to the amounts specified in Exhibit A; the Adelphia Service provided under this Agreement is not
"burstable." If any time City wishes to use capacity at any Location in excess of the amounts specified in Exhibit A, it must place an order
with Adelphia for additional capacity, which must be accepted by Adelphia before any such usage occurs. Adelphia agrees to respond to
any request to increase capacity within sixty (60) days of such request. Should Adelphia determine, through use of Audit Equipment (as
defined below) or otherwise, that City has exceeded the capacity specified in Exhibit A, Adelphia may, at its sole discretion, invoke any of
the terms under this Agreement.
(b) City Use of Adelphia Service. City may connect its network or facilities with the Facilities at City' sole cost, at the
connecting points designated in Exhibit A. Adelphia shall provide a fiber connection to an Adelphia owned and installed patch panel in the
computer/telecommunications room, designated by the City in each location listed on Exhibit A. City shall then be responsible for providing
all electronics and required equipment and services on its side of the demarcation identified at the locations to "light" the Facilities and
utilize the Adelphia Service for City's intended purposes. City shall be responsible for all costs to connect its network or facilities with the
Facilities and to "lighF or otherwise utilize the Adelphia Service. City may use the Adelphia Service for City's business, including, but not
limited to, the transport of City content, municipal wireless applications, and for any lawful purpose provided however, that the City shall not
resell any portion of the capacity of the Facilities provided under this Agreement nor shall the City permit non-govemmental use or provide
any services that directly compete with services provided by Adelphia. To the extent that the City installs antennae or other equipment to
enable the provision of wireless service, such additional antennae or equipment shall not be construed as "additional sites" pursuant to
Exhibit A Section 6. City shall take all reasonable precautions against, and shall assume liability, subject to the terms of this Agreement,
for any damage caused by the negligence of City to the Facilities or other fibers or portions of the facilities or equipment used or owned by
Adelphia. City shall at all times comply with all applicable laws and regulations. Adelphia reserves the right to terminate the Adelphia
Service and/or suspend affected Adelphia Service, if Adelphia determines that City use does not conform with the requirements set forth in
this Agreement or the City causes technical interference that impedes Adelphia's ability to provide Adelphia Service to City or others or
receives notice from anyone that such use may violate applicable laws. Adelphia's actions or inaction under this Section shall not
constitute review or approval of City's use. Adelphia will provide notice to City before taking action under this Section.
(c) Adelphia Inspection and Audit Rights; Use of Monitoring and Bandwidth Governors.
(i) City acknowledges that Adelphia may audit City's use of the Facilities, as further provided in this Section. During the
term of this Agreement and for a period of three (3) years thereafter, City shall allow Adelphia or its professional
advisors access to and the right to examine, audit, inspect and copy its records and any documents and other items
related to the Adelphia Service. City shall provide assistance to interpret such data if requested by Adelphia. Such
examination shall provide Adelphia with complete information regarding City's use of the Adelphia Service. City sites
shall be available for inspection and review at any reasonable time by representatives of Adelphia. Upon prior written
2
notice and accompanied by City employees, Adelphia or its designee may enter the Locations to perform physical
audits of City usage of the Adelphia Service and Facilities. Notwithstanding anything to the contrary, any and all
auditing and monitoring of the system by Adelphia shall be limited to the auditing and monitoring solely of the City's
use of transmission capacity and shall not include any auditing, monitoring or access by any other means of the
content of any transmissions.
(ii) In addition, no more than four (4) times each year during the Term of this Agreement, Adelphia may request that an
officer of City certify that City's usage of the Facilities and Adelphia Service comply with the terms and conditions
outlined in this Agreement, including the capacity restrictions set out in Exhibit A .
(iii) City shall prepare, maintain and preserve all records compiled by City in connection with City's use of the Adelphia
Service. The records shall be retained for a minimum of one (1) year from the termination or completion of this
Agreement.
(iv). City further acknowledges that at any time during this Agreement, without notice to City, Adelphia has the right, but not
the obligation, to install and maintain monitoring and usage governing equipment (the "Audit Equipment") on the
Facilities used to provide the Adelphia Service provided that such equipment monitors only usage of capacity and does
not monitor or record the content of any transmissions. In addition, if required by Adelphia, such Audit Equipment may
be placed on site(s) of City at the Locations and City grants Adelphia a license to install and operate such Audit
Equipment on the Locations. Any such installation of Audit Equipment on a City sites at a Location shall be undertaken
only after prior reasonable written notice to City and approval of the location by the City, which shall not be
unreasonably withheld. A City representative shall be present while the installation is taking place.
(d) Public Rights of Way; Access to City Property. Adelphia owns and operates the Facilities. Adelphia acknowledges
that City has no obligation to assure or guarantee Adelphia the necessary connections to public streets, utilities or adjacent buildings that
may be necessary for the provision of Adelphia Service to the Locations. Notwithstanding the foregoing, (i) in areas owned or controlled
by City, City shall provide Adelphia access necessary for the operation of Facilities and (ii) City shall cooperate with Adelphia, at Adelphia's
expense, in obtaining any third party permits, easements or agreements necessary for Adelphia to provide Adelphia Service to City under
this Agreement.
2. Payment and Revenue.
(a) Charges for Adelphia Service. In exchange for the provision of the Adelphia Service, City shall pay the amounts listed on
Exhibit A (the "Service Charges"). Except as otherwise agreed to on Exhibit A, Adelphia shall bill in advance the Service Charges for all
Adelphia Service to be provided during the ensuing calendar month. All bills for Adelphia Service provided to City by Adelphia are due
3
within thirty (30) days of receipt. If any portion of the undisputed amounts of the payment has not been received by Adelphia forty five
(45) days after the bill date, or if any portion of the payment is received by Adelphia in funds which are not immediately available to
Adelphia, then a late payment penalty shall be due Adelphia. The late factor shall be the maximum amount allowable by law, but not more
than 1.5 % per month or 18% annually.
(b) Taxes; Costs. All payments provided in this Agreement are exclusive of any sales, use, gross receipts, excise, import or
export value added or similar taxes or duties (the "Taxes"). As of the Effective Date of this Agreement, the City is tax exempt. If during the
Term of this Agreement, the City's tax exempt status changes, the parties shall negotiate in good faith an increase in the payments made
to Adelphia to account for Taxes.
3. Facilities Ownership. The Facilities shall be and remain the property of Adelphia during the Term. City shall use reasonable
care to avoid damaging the Facilities during the Term and agrees not to alter, modify, sell, license, lease, assign, encumber, relocate,
move or tamper with the Facilities except in the case of an emergency whereupon the City may take any actions permitted pursuant to its
police powers and the authority granted by the laws of the state of Florida. City shall not use the Adelphia Service or any Facilities in a
way that violates Adelphia's interests in its trademarks, trade names, copyrights, or other proprietary rights.
4. Confidentiality. Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course
of this Agreement. Each Party agrees that it will take reasonable steps during the Term and for a period of one year following expiration or
termination of this Agreement, to prevent the duplication or disclosure of Confidential Information of the other Party, other than by or to its
employees, agents or affiliates with a specific "need to know" such Confidential Information. "C9nfidentiallnformation" means all business
or technical information of the disclosing Party that is not generally known to the public and that derives value from not being generally
known, whether such information is disclosed orally or in writing. Confidential Information may include any software, content,
documentation, flow-chart, logic diagram, design proposal, screen shot, screen shot concept, algorithm, device, compilation of information,
method, technique, or process. Notwithstanding the foregoing, either Party may disclose Confidential Information without the consent of
the other Party, t~the extent such disclosure is required by law, including Florida Statutes Ch. 119, rule, regulation or govemment or court
order.
5. Compliance with laws and Regulations. Adelphia agrees to comply with all applicable laws, ordinances, rules and
regulations of any governmental entity or agency having jurisdiction with respect to the Facilities or the provision of the Adelphia Service.
City agrees to comply with all applicable laws, ordinances, rules and regulations of any govemmental entity or agency having jurisdiction
4
with respect to the Locations. City represents and warrants that its use of the Adelphia Service and the Facilities shall comply in all material
respects with applicable government codes, ordinances, laws, rules, regulations and restrictions.
6. Representations, Warranties and Indemnification.
(a) Adelphia Warranties. Adelphia warrants that (i) it possesses all authorizations, approvals, consents, licenses, permits,
certificates and other rights and permissions necessary to permit Adelphia to install, operate, and offer the Adelphia Service at the
Locations, and (ii) it currently has and will maintain property insurance and commercial general liability insurance in amounts specified in
the City's generally applicable cable television ordinance.
(b) City Warranties. City warrants that it is an incorporated municipality under the laws of the state of Florida and as such, has
the authority to enter into this agreement.
(c) General Warranties. Each Party represents and warrants to the other Party that: (i) such Party has the full right, power and
authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party,
and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is
a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and
binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) such Party acknowledges that the
other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in
this Agreement.
(d) No Additional Warranties. NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS
ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ADELPHIA SERVICE OR THE
FACILITIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(e) Lirftitation on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE USE OR INABILITY TO USE
THE ADELPHIA SERVICE, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED
THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED
BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO THIS SECTION. EXCEPT AS PROVIDED IN THIS
5
SECTION, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN
CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID UNDER THE AGREEMENT.
(f) Indemnity. Adelphia shall defend, indemnify, save and hold harmless the City and its officers and employees from any and
all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees ("Liabilities"), resulting from Adelphia's
material breach or alleged material breach of any duty, representation, or warranty of this Agreement. The foregoing obligation shall not
apply to any such claim to the extent that it is based on or arises out of (a) any other technology, software or materials provided by,
incorporated or distributed by City hereunder, in which case City shall indemnify Adelphia hereunder; (b) the combination, operation or use
of the Facilities with hardware, data, content or software not supplied by Adelphia; or (c) modifications to the Facilities if the modifications
were not made by Adelphia; (d) use of the Facilities in a manner not contemplated by the documentation. City shall defend, indemnify,
save and hold harmless Adelphia from any and all Liabilities resulting from City's willful, gross, negligent, or criminal acts related to a
material breach of this Agreement to the extent permitted by law.
(9) Claims. If a Party entitled to indemnification hereunder (the "Indemnified Party") becomes aware of any matter it believes is
indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any
third party (each an "Action"), the Indemnified Party will give the other Party (the "Indemnifying Party") prompt written notice of such Action.
<
Such notice will (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnifying Party will have a period
of thirty (30) days after delivery of such notice to respond. Notwithstanding the foregoing, the Indemnifying Party shall respond to such
notice promptly enough to provide the Indemnified Party a reasonable time to respond to any legal process or to comply with applicable
law or the rules of a legal proceeding in the event that the Indemnifying Party elects not to defend such Action. If the Indemnifying Party
elects to defend the Action or does not respond within the requisite period, the Indemnifying Party will be obligated to defend the Action, at
its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party will cooperate, at the expense of
the Indemnifying~Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to
participate fully, at its own expense, in the defense of such Action. If the Indemnifying Party responds within the required period and elects
not to defend such Action, the Indemnified Party will be free, without prejudice to any of the Indemnified Party's rights hereunder, to
compromise or defend (and control the defense of) such Action. In such case, the Indemnifying Party will cooperate, at its own expense,
with the Indemnified Party and its counsel in the defense against such Action and the Indemnifying Party will have the right to participate
fully, at its own expense, in the defense of such Action. Any compromise or settlement of an Action will require the prior consent of both
Parties hereunder, such consent not to be unreasonably withheld or delayed.
6
7. Compliance with Usage Restrictions; Liquidated Damages.
Excess Usage - Adelphia Remedies. Should Adelphia determine that City has used capacity on the Facilities in excess of the
amounts specified for use by City in Exhibit A ("Excess Usage"), Adelphia shall provide notice to City requiring that such Excess Usage
cease immediately. Upon receipt of such notice, City shall immediately cease use of such Excess Usage. After the City's receipt of such
notice, Adelphia may take the following action:
(a) Not less than thirty (30) days following the notice in (i) above, and if the City has not ceased the Excess
Usage, Adelphia may invoice City for liquidated damages for the Excess Usage. The Parties agree that any
Excess Usage by City may cause loss and damage to Adelphia, the amounts of which will be extremely
difficult or impossible to measure. Therefore, the Parties agree that if such excess usage is not the subject
of a dispute and the rate for such actual Excess Usage shall be no more than two (2) times the rate that
Adelphia charges to the City under the terms of this Agreement. The Parties understand and agree that the
terms of this Section 7(a)(ii) describe liquidated damages that City shall pay to Adelphia as a result of the
Excess Usage by City and do not constitute a penalty.
(b) In the altemative, Adelphia may terminate the Agreement for material breach.
8. Term and Termination.
(a) Term. The term of this Agreement shall be as set forth in Exhibit A
-
(b) Termination for Breach. This Agreement may be terminated by either Party prior to its expiration if any of the following
events of default occurs: (i) the other Party materially fails to perform or comply with this Agreement or any provision hereof; (ii) the other
Party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of
creditors; or (iii) a petition under any bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed
by the other Party; or if such a petition is filed by any third party, or an application for a receiver of the other Party is made by anyone and
such petition or application is not resolved favorablt to such Party within sixty (60) days. A non-defaulting Party may terminate the
Agreement under (i) above thirty (30) days after written notice of termination clearly titled "Notice of Default" and referencing this contract is
given by the non~defaulting Party to the defaulting Party and the defaulting Party's defaults have not been cured within such thirty (30) day
period. Termination under (ii) and (iii) above shall be effective upon notice. The rights and remedies provided in this Section shall not be
exclusive and are in addition to any other rights and remedies provided by law or this Agreement. In the event a non-defaulting Party in its
discretion elects not to terminate this Agreement, such election shall not be a waiver of any and all claims of that Party for such default(s).
Further, the non-defaulting Party may elect to leave this Agreement in full force and effect and to institute legal action against the defaulting
Party for specific performance and/or damages suffered by such Party as a result of the default(s).
c) Early Termination Liability. In the event this Agreement is terminated due to breach of this Agreement by City, City shall be
7
obligated to pay, in addition to any already accrued liabilities under this Agreement, an early termination fee as set forth below.
Termination during the first three (3) years - 100% of monthly recurring charge for balance of term
Termination during year 4 - 70% of monthly recurring charge for balance of term
Termination during year 5 - 60% of monthly recurring charge for balance of term
Termination during year 6 - 50% of monthly recurring charge for balance of term
Termination during year 7 - 40% of monthly recurring charge for balance of term
Termination during year 8 - 30% of monthly recurring charge for balance of term
Termination during year 9 - 20% of monthly recurring charge for balance of term
Termination during year 10 -10% of monthly recurring charge for balance of term
City shall pay any Early Termination Liability, to be paid monthly as if contract was still in effect. Notwithstanding the above, in the
event Adelphia's Cable Franchise with the City is terminated by Adelphia during the term of this Agreement, the City shall have the right to
terminate this Agreement upon thirty (30) days notice to Adelphia with no liability.
(d) Return of Information. Upon the expiration or termination of this Agreement, each Party will, upon the written request of the
other Party, return or destroy (at the option of the Party receiving the request) all Confidential Information, documents, manuals and other
materials specified by the other Party unless retention of such materials is required by applicable federal, state or local law or regulation.
9. Notices. Any notice, approval, request, consent, authorization, direction or other communication under this Agreement (except
routine operational communications or where otherwise specified) will be given in writing and will be deemed to have been delivered and
given for all purposes (i) on the delivery date if delivered by confirmed facsimile; (ii) on the delivery date if delivered personally to the Party
to whom the same is directed; (iii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or
(iv) five business days after the mailing date, if sent by U.S. mail, retum receipt requested, postage and charges prepaid, or any other
means of rapid mail delivery for which a receipt is available.
In the case of notice to Adelphia, such notice shall be provided to:
Legal Department
Adelphia Cable Communications
5619 DTC Parkway
Greenwood Village, CO 80111
Forward Copies to:
SVP of Operations
Adelphia Cable Communications
1100 Northpoint Parkway, Suite 100
West Palm Beach, FL 33407
And Copies to:
Director of Commercial Data
Adelphia Communications
1 North Main Street
8
Coudersport, PA 16915
In the case of City, such notice shall be provided to:
City Manager
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33425-0310
Forward Copies to:
James Cherof
City Attorney
Goren, Cherof, Doody & Ezrol, PA
3099 E. Commercial Blvd., #200
Ft. Lauderdale, FL 33308
10. Intellectual Property. Each Party retains all Intellectual Property Rights in all of its property, including, but not limited to trade
names, trademarks, service marks, symbols, identifiers, formats, designs, devices, identifiers, or proprietary products, services and
information owned by each Party.
11. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by the laws of the United States of America and the State of Florida
without regard to Florida's conflict of laws principles and each Party to this Agreement submits to the exclusive jurisdiction of, the state and
federal courts sitting in Palm Beach County, FL and each Party waives any jurisdictional, venue, or inconvenient forum objections to such
courts
(b) Entire Agreement. This Agreement is the entire agreement between the Parties and is not intended to confer and does not
confer any rights or remedies upon any person or entity other than the Parties to this Agreement. This Agreement sets forth the entire
understanding and agreement of the Parties concerning the subject matter hereof and supersedes all prior or contemporaneous
understandings or agreements related thereto.
(c) Assignment. Adelphia may assign this Agreement to any successor in interest to Adelphia's cable television franchise
agreement with the City as approved by the City, in whole, upon written notice to City. Adelphia may assign this Agreement to an
unaffiliated party that is not a successor in interest to the cable television franchise agreement only with the prior written consent of the
City, which shall not be unreasonably withheld. City may assign this Agreement only with the prior written approval of Adelphia, which
shall not be unreasonably withheld.
(d) Transfer of Adelphia Service. The Adelphia Service is solely provided for use by City. City may not transfer the Adelphia
Service to another person or location without Adelphia's prior written consent.
(e) Remedies. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement are
cumulative and in addition to, and not in lieu of, any other rights or remedies which the Party may possess at law or in equity.
9
(f) No Implied Waiver. The failure of a Party to insist at any time upon the strict performance of any covenant or agreement
herein or to exercise any option, right, power of remedy contained in this Agreement shall not be construed as a waiver or a relinquishment
thereof for the future. Any waiver must be in writing and signed by the Parties.
(9) Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be
construed or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, (i) such provision will be
deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the
remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect.
(h) No Offer. This Agreement does not constitute an offer by Adelphia and it shall not be effective until signed by both Parties.
(i) Relationship of Parties. The Parties to this Agreement are independent of each other. Neither Party is an agent,
representative or employee of the other Party. Neither Party will have any right, power or authority to enter into any agreement for or on
behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement will not be interpreted or construed to
create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship
upon either Party.
(j) Excuse. Neither Party will be liable for, or be considered in breach of or default under this Agreement on account of, any
delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such Party's reasonable
control and which such Party is unable to overcome by the exercise of reasonable diligence.
(k) Survival. Any payment obligations accrued prior to termination or expiration, and any other provision which, by its nature or
express terms should survive, will survive the completion, expiration, termination or cancellation -of this Agreement.
(I) Amendment. No change, amendment or modification of any provision of this Agreement will be valid unless set forth in a
written instrument signed by the Party subject to enforcement of such amendment, by a duly authorized officer or employee.
(m) Further Assurances. Each Party will take such action (including, but not limited to, the execution, acknowledgment and
delivery of documents) as may reasonably be requested by any other Party for the implementation or continuing performance of this
Agreement.
(n) Counterparts; Facsimile. This Agreement may be executed in counterparts, each of which will be deemed an original and
all of which together will constitute one and the same document. This Agreement, and written amendments hereto, may be executed by
facsimile.
10
(0) Consents; Approvals. Where an activity under this Agreement shall be subject to one Party's prior consent or approval, any
and all such approvals, consents shall not be unreasonably withheld or delayed.
(p) Injunctive Relief. The Parties acknowledge and agree that, notwithstanding any other provisions of this Agreement, breach
of the provisions of this Agreement by a Party shall cause the other Party irreparable damage for which recovery of money damages would
be inadequate and that the non-breaching Party may therefore seek timely injunctive relief to protect its rights under this Agreement in
addition to any and all remedies at law.
(q) Condemnation. If the whole or substantially the whole of the Facilities should be taken for any public or quasi-public use, by
right of eminent domain or otherwise or should be sold in lieu of condemnation, then this Agreement shall terminate as of the date when
physical possession of the Facilities are taken by the condemning authority. If less than the whole of the Facilities used to provide the
Adelphia Service is taken, and in Adelphia's reasonable judgment, it can no longer provide the Adelphia Service as a result of such
condemnation, Adelphia may elect to terminate this Agreement and all of its obligations not yet accrued upon thirty (30) days written notice
to City.
(r) Force Majeure. Neither Party shall be liable to the other for any loss or damage to any property or person occasioned by act
of God, public enemy, injunction, riot, strike, insurrection, war, court order, requisition, or order of governmental body or authority or by any
other cause beyond the reasonable control of either Party, except as otherwise specifically provided in this Agreement.
WHEREBY, the Parties execute this Agreement as of the Effective Date.
ADELPHIA CABLE PARTNERS, LP "ADELPHIA"
CITY OF BOYNTON BEACH, FLORIDA
By
By
Name (Print)
Name (Print)
Title
Title
Date
Date
11
EXHIBIT A - ,
1. NAME AND ADDRESS OF SPECIFIED LOCATIONS
City Hall 100 E. Boynton Beach Blvd., Boynton Beach, FL 33425
Fire Station #2 2615 W. Woolbright Road, Boynton Beach, FL 33425
Fire Station #3 3501 N. Congress Ave., Boynton Beach, FL 33425
Fire Station #5
Senior Center
City Hall at the Mall
Hester Center
Wilson Center
Tennis Center
Police Crime Prevention
Utilities Admin. Bldg.
Water Treatment Plant
East of High Ridge Road & south of Gateway
1021 S. Federal Hwy., Boynton Beach, FL 33425
801 N. Congress Ave., Boynton Beach, FL 33425
1901 N. Seacrest Blvd., Boynton Beach, FL 33425
211 NW 13th Ave., Boynton Beach, FL 33425
3111 S. Congress Ave., Boynton Beach, FL 33425
111 % N. Congress Ave. Boynton Beach, FL 33425
124 E. Woolbright Road, Boynton Beach, FL 33425
5469 W. Boynton Beach Blvd., Boynton Beach, FL 33425
2. SERVICE DESCRIPTION
Adelphia will provide 1 Gbps of unlit digital fiber optic telecommunications transmission capacity between the following locations
in a point-to-point configuration:
A Location Z Location Capacity
City Hall 100 E. Boynton Beach Blvd. I Gbps
Fire Station #2 2615 W. Woolbright Road 1 Gbps
Fire Station #3 3501 N. Congress Ave. I Gbps
Fire Station #5~ East of High Ridge Road & south of Gateway I Gbps
Senior Center 1021 S. Federal Hwy. 1 Gbps
City Hall at the Mall 801 N. Congress Ave. I Gbps
Hester Center 1901 N. Seacrest Blvd. 1 Gbps
Wilson Center 211 NW 13th Ave. 1 Gbps
12
Tennis Center 3111 S. Congress Ave. I Gbps
Police Crime Prevention IllY, N. Congress Ave. I Gbps
Utilities Admin. Bldg. 124 E. Woolbright Road I Gbps
Water Treatment Plant 5469 W. Bovnton Beach Blvd. I Gbps
3. PRICE SCHEDULE
For the unlit digital fiber optic telecommunications capacity connection(s), described above, the NRC amount of eighty-three thousand,
nine hundred forty dollars ($83,940.00) is payable upon contract execution. The MRC amount shown below is payable every month
beginning on the date that the City accepts the Acceptance form (Exhibit B) for such location(s), for a total of $5,460.00, per month for I
Gbps. The City may elect, on thirty (30) days prior written notice to Adelphia. to increase the capacity to 2 Gbps at any or all of the sites
listed below for a MRC of $671.00 per site, or increase to 3 Gbps for a MRC of $864.00 per site.
13 Year Term
A Location Z Location Capacity MRC I NRC
City Hall 100 E. Boynton Beach Blvd. I Gbps $455.00 $ 5,995.00
Fire Station #2 2615 W. Woolbright Road I Gbps $455.00 $ 5,995.00
Fire Station #3 3501 N. Congress Ave. I Gbps $455.00 $ 5,995.00
Fire Station #5 East of High Ridge Road & south of Gateway I Gbps $455.00 $17,995.00
Senior Center 1021 S. Federal Hwy. I Gbps $455.00 $ 5,995.00
City Hall at the Mall 801 N. Congress Ave. I Gbps $455.00 $ 5,995.00
Hester Center 1901 N. Seacrest Blvd. I Gbps $455.00 $ 5,995.00
Wilson Center 211 NW 13th Ave. I Gbps $455.00 $ 5,995.00
Tellllis Center 3111 S. Congress Ave. I Gbps $455.00 $ 5,995.00
Police Crime Prevention III 'h N. Congress Ave. 1 Gbps $455.00 $ 5,995.00
Utilities Admin. Bldg. 124 E. Woolbright Road I Gbps $455.00 $ 5,995.00
Water Treatment Plant 5469 W. Bovnton Beach Blvd. I Gbps $455.00 $ 5,995.00
TOTAL $5,460.00 $83,940.00
13
4. TERM. The term of the Agreement (the "Initial Term") shall be thirteen (13) years from the Effective Date. After the Initial Term,
the Agreement may be renewed for additional periods upon mutual agreement (each period a "Renewal Term"), unless terminated by
either Party pursuant to this Section. At the end of the Initial Term or any subsequent Renewal Term, the Agreement shall be automatically
renewed for successive one-month periods unless either Party gives the other ninety (90) days prior written notice of its intent to terminate
the Agreement. Such monthly renewal periods shall be upon the same terms and conditions as those contained herein,. The Initial Term,
any Renewal Terms and any extension periods are referred to collectively at times in this Agreement as the "Term."
5. INSTALLATION TIMELlNE. Adelphia will provide a project timeline at the beginning of the project giving timelines for
construction and installation of the service. Adelphia will make all best and reasonable efforts to complete project installation within ninety
(90) business days of contract execution and in no event longer than one hundred eighty (180) days after the Effective Date, unless such
delay is due to causes beyond the control of Adelphia. If construction is not completed within the required timeframe, the City may assess
Adelphia liquidated damages in the amount of $1 00 per day until construction is completed.
6. FUTURE SITES. Future sites may be added to this dedicated capacity network for a monthly recurring charge of four hundred
and fifty-five dollars ($455.00) per month beginning on the date that the City accepts the Acceptance form, plus any construction costs
associated with building and terminating fiber into the new location. Upon request for service, Adelphia will conduct a physical site'survey
and determine the cost of the project. Those costs will be given to City. If agreed upon, City will pay non-recurring charges before
construction begins.
7. Outage Credits. Adelphia shall correct all service interruptions within forty eight (48) hours after notice from the City. Unless
excused due to causes beyond the control of Adelphia, the City shall receive a credit equal to 1/30lh of the monthly recurring charge
("MRC") for all affected sites for each hour that service remains interrupted after the 48 hour cure period up to 1 00% of the MRC.
14
EXHIBIT B
CERTIFICATE OF FINAL ACCEPTANCE
In accordance with the terms and conditions of the- Adelphia Commercial Service Agreement, dated ,2005, between
("Company") and ("Adelphia"), the undersigned Company's Representative
hereby certifies:
The Adelphia Service as furnished, delivered, and installed at the Specified Location(s) described below appears to conform to the
specifications and other requirements set forth for the Adelphia Service in the Agreement, as of the date this form is signed below.
Therefore, the Certificate of Final Acceptance is granted by the Company for the Specified Location(s) described below under the terms
and conditions of the Agreement.
This Certificate is being issued for the following Specified Location(s):
A LOCATION
Z LOCATION
By
Name (Print)
Title
Date
15
EXHIBIT B
TRANSFER RESOLUTION
46
1 RESOLUTION NO. R05 -
2
3 A RESOLUTION OF THE CITY COMMISSION OF THE
4 CITY OF BOYNTON BEACH, FLORIDA, TO CONSENT
5 TO ASSIGNMENT AND CHANGE OF CONTROL AND
6 CONSENT TO ASSIGNMENT OF CABLE SYSTEM AND
7 FRANCHISE; AND PROVIDING AN EFFECTIVE DATE
8
9
10 WHEREAS, cable television franchises have been granted by the City of Boynton
II Beach, FL ("Franchise Authority") to Adelphia Cable Partners, L.P., National Cable
12 Acquisition Associates, L.P. and Leadership Acquisition, L.P. ("Franchisee-I") and to
13 Adelphia Cablevision of West Palm Beach, LLC ("Franchisee-2"). Franchisee-l are entities
14 that are indirect subsidiaries of Adelphia Communications Corporation ("Adelphia"), and the
15 Rigas Family had an ownership interest in Franchisee-2; and
16 WHEREAS, Adelphia is currently in Chapter 11 bankruptcy proceedings; and
17 WHEREAS, pursuant to an April 25, 2005 U.S. Government forfeiture agreement
18 with the Rigas family and an April 25, 2005 settlement agreement with Adelphia, any
19 remaining Rigas family ownership interest in Franchisee-2 will be terminated and transferred
20 by the U.S. Government to Adelphia (described as the "Government Settlements"); and
21 WHEREAS, on May 20, 2005 the United States Bankruptcy Court for the Southern
22 District of New York issued-a written decision approving the Government Settlements; and
23 WHEREAS, pursuant to an Asset Purchase Agreement dated April 20, 2005 between
24 Adelphia and Time Warner NY Cable LLC ("TWNY"), the right to purchase the Franchisee-
25 l's cable system will be assigned by TWNY to a wholly owned subsidiary ofTWNY, Cable
26 Holdco Exchange II LLC which will purchase the cable system and franchises (the "Adelphia
27 Transaction"); and
28 WHEREAS, pursuant to an Exchange Agreement dated April 20, 2005 between Time
29 Warner Cable Inc. and Comcast Corporation ("Comcast"), 1 00% of the equity securities in
the Comcast subsidiary CAP Exchange I, LLC will be exchanged for 100 percent of the
2 equity securities of Cable Holdco Exchange II LLC whereby that entity will become a 100
3 percent indirect subsidiary of Comcast (the "Exchange Transaction"); and
4 WHEREAS, pursuant to another Asset Purchase Agreement dated April 20, 2005
5 between Adelphia and Comcast, the assets of Franchisee-2 will be acquired by Pamassos,
6 L.P., a wholly-owned subsidiary of Com cast (described as the "Transaction"); and
7 WHEREAS, Franchise Authority has concluded its approval is necessary for the
8 above described Adelphia Transaction, the Exchange Transaction, and the Transaction and
9 has been provided FCC Form 394's and related information for such transactions; and
10 WHEREAS, the Franchise Authority is willing to consent to the Adelphia
11 Transaction, the Exchange Transaction, and the Transaction described above; and
12 WHEREAS, the Dedicated Capacity Agreement executed on _, 2005, by and
13 between the Franchise Authority and Adelphia Cable Partnership, L.P., a Delaware Limited
14 Partnership doing business as Adelphia Communications Corporation (the "Dedicated
15 Capacity Agreement") is a contract entered into in connection with the franchise agreements
16 being transferred.
17 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
18 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
19 SECTION 1. The foregoing recitals are approved and incorporated herein by
20 reference.
21 SECTION 2. The Franchise AuthOlity consents to the Adelphia Transaction
22 described herein.
23 SECTION 3. The Franchise Authority consents to the Exchange Transaction
24 described herein.
1 SECTION 4. The Franchise Authority consents to the Transaction described herein.
2 SECTION 5. This Resolution shall be deemed effective upon adoption.
3 SECTION 6. This Resolution shall have the force of a continuing agreement with the
4 Franchisee-1 and Franchisee-2 and the Franchise Authority shall not amend or otherwise alter
5 this Resolution without the consent of the Franchisee-1 and Franchisee-2.
6 SECTION 7. This Resolution shall also acknowledge that any franchise agreement
7 transferred pursuant hereto has associated with it the corresponding obligations and benefits
8 set forth in the Dedicated Capacity Agreement.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
9
PASSED AND ADOPTED this
day of
,2005.
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
ATTEST:
City Clerk
(city seal)
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
XII. - LEGAL
ITEM B.1
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
r81 August 2, 2005 July 18, 2005 (Noon.) D October 5, 2005 September 19,2005 (Noon)
D August 16, 2005 August I, 2005 (Noon) D October 18, 2005 October 3, 2005 (Noon)
D September 6, 2005 August 15,2005 (Noon) D November I, 2005 October 17, 2005 (Noon)
D September 20, 2005 September 6, 2005 (Noon) D November 15,2005 October 31,2005 (Noon)
NATURE OF
AGENDA ITEM
D Administrative
D
D
D
D
D
Consent Agenda
Public Hearing
Bids
D Development Plans
D
r81
D
D
New Business
.(~
Legal
Unfinished Business
. :=-;J
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.-, ,
-~
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c).,...,.
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RECOMMENDATION: Approve amendment to the Code of Ordinances, Section 16-82, increasing tleach
parking permits and related fees, and eliminating redundant language. The annual resident fee would
increase from $20 to $30 and the seasonal non-resident fee would increase from $60 to $90.
Announcement
Presentation
City Manager's Report
EXPLANATION: Oceanfront Park is one of our most popular facilities. On average, 668 people visit the
park each day. It offers a nationally certified lifeguard staff, a beautiful scenic boardwalk, picnic areas,
restrooms and playground. Beach parking fees have not increased since 2000. However, in the past five
years, the costs to maintain these amenities, and the general operation expenses have significantly increased.
Our annual resident parking permit is $20. In comparison, The City of Delray Beach charges $63.50 for
their resident parking permit, and the City of Boca Raton charges $31.00.
PROGRAM IMPACT: N/A
FISCAL IMPACT: Current revenues generated from the beach operation, which include parking permits,
daily parking fees and the concession lease agreement, total $291,882. The recommended fee increase will
generate approximately $70,000 in additional revenue to help offset the annual operating expenses ($503,798
for FY 2004-05). A detailed revenue and expense summary is attached as "Exhibit A."
ALTERNATIVES: Increase beach parking permits fees less than recommended, or do not increase at this
time. ~ ~
b~/~/1'I7itt~ #2
Department Heil's Signature
~11~~ ~~lS
City Manager's Sign~
Recreation & Parks
Department Name
City Attorney / Finance / Human Resources
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
EXHIBIT A
RECREATION & PARKS DEPARTMENT
MEMORANDUM NO. 05-86
TO:
Wilfred Hawkins, Assistant City Manager
FROM:
Wally Majors, Recreation & Parks Director
DATE:
July 14, 2005
SUBJECT:
Oceanfront Park Parking Permit Fees
In a continuing effort to offset a greater portion of operating expenses through user fees, we
recommend raising parking permits fees at Oceanfront Park accordingly:
Type Description Current Proposed
Fee Fee
Resident Annual Parking Permits Annual (issued to residents $20.00 $30.00
owning or renting in the city for
minimum of 6 months)
Temporary Parking Permits Seasonal (issued to non-residents, $60.00 $90.00
valid May 1 - Nov 15)
Replacement Fee Lost or mutilated decal that can $10.00 $15.00
be identified
Replacement Fee Lost or mutilated decal with no $20.00 $30.00
identifiable portion
Beach parking permit fees were previously increased in 2000. The table below summarizes
revenues and expenses associated with beach operations. Although the snack bar lease
agreement expires in November, we expect the new lease will not yield lower annual income.
YEAR REVENUE Operating Expenses
Beach Decals Parking Fees Concession Total LifeguardlParking Parks
(resident & non- Attendant Custodial Total Expenses
resident) (daily visitors) Operation Revenue Operations Maintenance
2002-03 $ 137,723 $ 118,212 $ 22,800 $ 278,735 $ 469,003 $ 13,728 $ 6,460 $ 489,191
2003-04 $ 142,230 $ 130,449 $ 22,800 $ 295,479 $ 490,338 $ 14,450 $ 6,460 $ 511,248
2004-05 $ 141,592* $ 127,490* $ 22,800 $ 291,882 $ 482,128 $ 15,210 $ 6,460 $ 503,798
* estimated
/wm
] ORDINANCE NO. 05-
2
3 AN ORDINANCE OF THE CITY COMMISSION OF THE
4 CITY OF BOYNTON BEACH, FLORIDA, AMENDING
5 CHAPTER 16, "PARKS AND RECREATION", ARTICLE
6 II, "CITY PARKS AND BEACHES" BY AMENDING
7 SECTION 16-82 TO PROVIDE FOR AN INCREASE OF
8 BEACH P~NG PERMITS AND RELATED FEES
9 AND ELIMINATING REDUNDANT LANGUAGE;
]0 PROVIDING FOR CONFLICT, SEVERABILITY,
]] CODIFICATION AND AN EFFECTIVE DATE.
12
13 WHEREAS, staff has become aware that the cost to maintain and general operation
14 expenses of the Oceanfront Park with its scenic boardwalk, picnic areas, restrooms and
15 playground have significantly increased; and
16 WHEREAS, Beach parking fees have not increased since 2000; and
17 WHEREAS, the City Commission of the City of Boynton Beach, Florida has
18 determined that it is in the best interests of the citizens and residents of the City to amend the
] 9 Code to increase the beach parking permits and related fees and eliminating redundant
20 language;
2] NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
22 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
23
Section 1.
The foregoing Whereas clauses are true and correct and incorporated
24 herein by this reference.
25
Section 2.
That Chapter 16, " Parks and Recreation", Article II "City Parks and
26 Beaches" Section 16-82 is hereby amended by adding the words and figures in underlined
27 type, and by deleting the words and figures in struck-through type, as follows:
28
29 Sec. 16-82. Rules, regulations controlling parking of vehicles at municipal
30 beach property located within the Town of Ocean Ridge.
3]
32 The city manager is hereby directed to implement subject procedures at the earliest possible date.
33 (Said regulations are set out below.)
34
Page I
1
2 POLlCY NO. ]. P ARK1NG PERMlTS
3
4 Parking permits will be issued on an annual basis (October 1 through September 30) Wttfl
5 issuance bebinl1ing September 1 each year to residents (see "definitions") of the City of
6 Boynton Beach, for a charge of twenty thirty-dollars ($~30.00) for the first decal issued to
7 a resident vehicle, upon satisfactory completion of appropriate application forms. Applicants
8 will be required to establish proof of residency in the City of Boynton Beach (see
9 "definitions") and to present his official state motor vehicle tag registration certificate.
10
11 "''ben application is made for more than one permit, each separate individual vehicle
12 registration must be presented. Residents who are not property owners must establish
13 residency by some suitable means, such as voter's registration, executed lease, utility bills or
14 other legal document.
15
16 Pernlanent beach parking pennit decals shall be issued at a charge of twenty dollars
17 ($20.00) only to residents mvning, leasing, renting, occupying or residing in real estate in the
18 Bity for at least six (6) months of each year. Proof of six (6) months' residency, if property is
19 not o\vned, shall be established by lease agreements, rent receipts or "fitten lessor
20 verification.
21
22 Lost or mutilated parking permits. In the event that the vehicle to which the permanent
23 decal was issued has been sold or otherwise changed ownership and/or in the event a properly
24 issued parking decal is mutilated and can be identified, such decal will be replaced for a
25 charge of teHfifteen dollars ($~15.00) provided the holder can return an identifiable
26 portion of the mutilated parking decal to the city. In the event the holder of a lost or mutilated
27 parking permit cannot provide an identifiable portion or part of such parking decal, the charge
28 for a replacement decal will be the sum ofhventythirty dollars ($~30.00). Lost decals will
29 not be replaced until after a thirty-day waiting period from the date the decal is reported lost.
30
31 Definitions.
32
33 Resident: Anyone owning real estate and/or leasing, renting or occupying real estate or
34 living accommodations within the City of Boynton Beach for a time period of at least six (6)
35 consecutive months each calendar year, as well as members of their immediate family residing
36 with them; provided, however, for purposes of this section, the term "City of Boynton Beach"
37 shall include all property within the corporate limits of the Town Ocean Ridge. Proof of six
38 (6) months' residency, if property is not owned, shall be established by lease agreements, rent
39 receipts or written lessor verification.
40
41 Qualified nonresident: Anyone who is not a resident but who resides in the
42 agricultural reserve area of unincorporated Palm Beach County bounded on the south by
43 lateral Canal No. 30, bounded on the north by Hypoluxo Road, and bounded on the west by
Page 2
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the Loxahatchee National Wildlife Refuge.
City employees: All city employees, classified and nonclassified and retired regardless
of residency shall be eligible to receive one parking permit. Proof of employment shall be
established through the personnel department of the city. Persons who terminate (not retired)
their employment with the city and who are not city residents shall be required to scrape off
their stickers and return remains to the issuing office.
POLICY NO.2. PROCEDURE FOR ISSUANCE OF P ARKlNG PERMITS
(I) Ensure that applicants are residents as defined in Policy No.1.
(2) Have applicant complete permanent application form.
(3) Request proof of residency. Proof established in accordance with Policy No.1.
(4) Request separate vehicle registration for each parking permit to be issued.
20
(5) Residents leasing automobiles should provide contract documents establishing
the lease agreement or arrangement or company car assignment.
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(6) Issuing authority shall complete parking permit application by listing separate
permit numbers opposite the make, model and year of each vehicle.
(7) All parking permits shall be permanently affixed upon the lower, left-hand side
( driver's side) of the front windshield of such vehicle. Decals placed on a vehicle other than
the one for which it was originally issued shall be construed to be void.
(8) Parking permits issued to motorcycles, motor bikes, and motor scooters shall
be displayed on the left front fork of such vehicle or other visible location in the area of the
left front.
POLICY NO.3. TEMPORARY P ARKlNG PERMITS
Qualified nonresidents: Qualified nomesidents may obtain beach decals which permit
parking on specified dates and times. The cost for such permit and the dates they are valid
shall be as set forth herein:
The permit fee for Qualified nomesidents shall be sHHyillnety dollars ($~90.00)
each, and shall be valid seven (7) days a week, from May I to November 15.
Page 3
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PARKING FEES FOR MOTOR VEHICLES
A daily parking fee is hereby established for all motor vehicles parking at the public
beach except those hereinafter excepted in accordance with the following rates and charges.
Class J. Automobiles, motor scooters, motor bikes, motorcycles:
May I ~-November 15
$ 4.76
Tax 0.21
$ 5.00
November 16-April 30
$ 9.52
Tax 0.18
$10.00
Class 2. Buses, trucks and other motor vehicles not included or described in Class I
hereof ~
Tax ~
$10.00
Vehicle definitions.
Class J. A passenger vehicle designed for family pleasure.
Class 2. A passenger vehicle designed for group (more than 10 passengers) transportation
other than family pleasure.
Exceptions:
(1) Vehicle having affixed thereto a parking permit issued in accordance with the rules
and regulations of Policies 1 and 2.
(2) Official state, county and city vehicles entering the park m the performance of
governmental functions.
(3) The vehicles of public utility companies, workmen, tradesmen, or salesmen when
engaged in official park business.
(4) School buses transporting Florida school, college or university students in a group or
body for a field trip for educational purposes. This exception shall not apply to
vehicles transporting such groups to the park for recreational purposes.
(5) Florida school groups, as mentioned in exception (4), must make prearrangements
with the director of recreation and parks or his designee by submitting a letter from
the school principal certifying that the trip is a part ofthe school curriculum.
Page 4
1
2 Parking permits will be available to all city residents as outlined in Policies 1 and 2. Vehicles
3 not exhibiting the permit will be required to pay the parking fee in accordance with this
4 policy.
5
6
7 PARKING AREAS FOR MOTOR VEHICLES
8
9 (I) All motorcycles, motor bikes, and motor scooters shall park in the designated areas on
10 the upper level of the parking area at the public beach.
11
12 (2) The parking spaces in the upper level of the parking area at the public beach shall be
13 used exclusively by automobiles. Additionally, only vehicles having affixed thereto a parking
14 permit issued in accordance with the rules and regulations of Policies 1 and 2 may park in said ·
15 upper level; provided, however, that handicapped persons may park in designated spaces on
16 the upper level without having a parking permit affixed to their vehicles.
17
18 (3) All other motor vehicles, including all vans, campers, trucks, buses and trailers shall
19 park in the lower level spaces ofthe parking area at the public beach.
20
21
22 PENALTY FOR NONCOMPLIANCE WITH RULES AND REGULATIONS
23
24 It shall be unlawful for any person to falsify information in the process of applying for a
25 parking permit, for any person to sell a parking permit, for any person to transfer a parking
26 permit to a nonresident, or for any person to fail to follow the rules and regulations pertaining
27 to the use of the parking facilities at the public beach.
28
29 Section 3. Should any section or provision of this ordinance or portion hereof, any paragraph,
30 sentence or word be declared by a court of competent jurisdiction to be invalid, such decision
31 shall not affect the remainder of this ordinance.
Authority is hereby granted to codify said ordinance.
This ordinance shall become effective immediately upon passage.
32 Section 4.
33 Section 5.
34
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FIRST READING this _ day of August, 2005.
SECOND, FINAL READING AND PASSAGE this _ day of
,2005.
CITY OF BOYNTON BEACH, FLORIDA
Mayor
Vice Mayor
Commissioner
Commissioner
Commissioner
ATTEST:
City Clerk
Page 6
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CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
XII. - LEGAL
ITEM C.!
Requested City Commission Date Final Form Must be Turned Requested City Commission
Meeting Dates in to City Clerk's Office Meeting Dates
[gJ August 2, 2005 July ]8,2005 (Noon,) D October 5, 2005
D August \6,2005 August \,2005 (Noon) D October \8, 2005
D September 6, 2005 August 15,2005 (Noon) D November \, 2005
D September 20, 2005 September 6, 2005 (Noon) D November \5,2005
Date Final Form Must be Turned
in to City Clerk's Office
September \9,2005 (Noon)
October 3, 2005 (Noon)
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October \7,2005 (Noon}.-;
l ,.
October 3\, 2005 (Noonr
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D Administrative D Development Plans >.Jj
D D ..
NATURE OF Consent Agenda New Business G.)
AGENDA ITEM D Public Hearing [gJ Legal .......
D Bids D Unfinished Business
D Announcement D Presentation
D City Manager's Report
~_.~ .,._t~
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:'1:
RECOMMENDATION: Authorization to enter into an agreement with the State Department of Environmental Protection in
furtherance of an approved outdoor recreation project.
EXPLANATION: The Recreation and Parks Department has been awarded a $200,000 grant to develop the Wilson Park
property. The FRDAP grant will provide matching funds (up to $200,000) for the Phase I redevelopment of this land. This
includes a Tot Lot playground, picnicking facilities, native landscaping, improvements to the pool deck and equipment for the
pool operation, parking lot lighting, bike rack and connection to a greenways project. The City will have up to three years
from the effective date of the project agreement to complete the project.
PROGRAM IMPACT: The Wilson Project is a vital part of the Heart Of Boynton Plan. The park will enhance the livability
of this area by providing a blend of active and passive recreation activities. This approach to park development allows for a
mixed recreational use of the limited public space in the city.
FISCAL IMPACT: We will receive a $200,000 grant through FRDAP. The Department of Environmental Protection
requires a 50% cash match from the City of Boynton Beach. There is $379,500 budgeted for park development in the adopted
Capital Improvements Plan for FY2004/05 (Account# 302-4298-580-63-05).
ALTERNATIVES: Not accept the grant; the City would pay for all costs associated with park development.
~<~
/ , ..,,' '.
Department Head's Signature
Recreation and Parks
Department Name
"
-\~
~ity Attorney I Finance I Human Resources
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
r!
1 RESOLUTION NO. R05-
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, AUTHORIZING THE MAYOR AND CITY
5 CLERK TO ENTER INTO AN AGREEMENT \VITH THE
6 STATE DEPARTMENT OF ENVIRONMENTAL
7 PROTECTION 2005/06 FLORIDA RECREATION
8 DEVELOPMENT ASSIST ANCE PROGRAM FOR
9 FUNDING TO DEVELOP THE WILSON PARK
10 PROPERTY; AND PROVIDING AN EFFECTIVE DATE.
11
12 WHEREAS, in 2002, the City of Boynton Beach applied for and received a Florida
13 Recreation Development Assistance Program ("FRDAP") grant for the purchase of two pieces
14 of properties adjacent to the Wilson Park, for future expansion of the park; and
15 WHEREAS, FRDAP is a competitive program that provides grants to local
16 government entities for acquisition and development of land for public outdoor recreation;
17 and
18 WHEREAS, the Recreation and Parks Department has been awarded a $200,000.00
19 grant to develop Wilson Park property; and
20 WHEREAS, the Florida Department of Environmental Protection administers
21 FRDAP; and
22 WHEREAS, the Wilson Project is a vital part ofthe Heart of Boynton plan and will
23 enhance the livability of this area by providing a blend of active and passive recreation
24 activities; and
25 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
26 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
27
28 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being
29 true and correct and are hereby made a specific part of this Resolution upon adoption hereof.
S:\CA\RESO\Agreements\Grants\Wilson Project - FRDAP Grant Agmt.doc
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1
Section 2.
The City Commission of the City of Boynton Beach hereby authorizes
2 the Mayor and City Clerk to execute the Florida Department of Environmental Protection
3 2005/06 Florida Recreation Development Assistance Program Project Agreement for a grant
4 in the amount of $200,000.00 for the Wilson Park Project.
5
Section 2.
This Resolution shall become effective immediately upon passage.
6 PASSED AND ADOPTED this _ day of August, 2005.
7
8
9 CITY OF BOYNTON BEACH, FLORIDA
10
11
12 Mayor
13
14
15 Vice Mayor
16
17
18 Commissioner
19
20
21 Commissioner
22
23
24 Commissioner
25 ATTEST:
26
27
28 City Clerk
29
30
31
S:\CA\RESO\Agreements\Grants\Wilson Project - FRDAP Grant Agmt.doc
DEP Agreement No. F6063
CSFA Number: 37.017
CSF A Title: FRDAP
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
FLORIDA RECREATION DEVELOPMENT ASSISTANCE PROGRAM (FRDAP)
PROJECT AGREEMENT (SFY 2005-06) - Development
This Agreement is made and entered into between the STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION, hereinafter called the
DEPARTMENT, and the CITY OF BOYNTON BEACH, hereinafter called the
GRANTEE, a local government, in furtherance of an approved public outdoor recreation
project. In consideration of the mutual covenants contained herein and pursuant to
section 375.075, Florida Statutes, and chapter 62D-5, Part V, Florida Administrative
Code, the parties hereto agree as follows:
1. This PROJECT AGREEMENT shall be performed in accordance with section
375.075, Florida Statutes, and chapter 62D-5, Part V, Florida Administrative
Code, hereinafter called the RULE. The GRANTEE shall comply with all
provisions of the RULE, effective August 15, 2004, which is incorporated into this
PROJECT AGREEMENT as if fully set forth herein. It is the intent of the
DEPARTMENT and the GRANTEE that none of the provisions of section 163.01,
Florida Statutes, shall have application to this PROJECT AGREEMENT.
2. The DEPARTMENT has found that public outdoor recreation is the primary
purpose of the project known as Wilson Park (Florida Recreation Development
Assistance Program, FRDAP Project Number F06063), hereinafter called the
PROJECT, and enters into this PROJECT AGREEMENT with the GRANTEE for
the development of that real property, the legal description of which shall be
submitted to the DEPARTMENT as described in the Florida Recreation
Development Assistance Program Development Project Pre-
reimbursement/Commencement Documentation Form, DEP Form FPS-A034.
3. All forms hereinafter referenced may be found at
www.dep.state.fl.us/parks/bdrs. Further, the GRANTEE will also
receive all applicable forms for administration of project with GRANTEE's copy of
fully executed PROJECT AGREEMENT.
DEP Agreement No. F6063, Page 1 of 10
DEP 55-231 (01/05)
4. The GRANTEE shall construct, or cause to be constructed, certain public
outdoor recreation facilities and improvements consisting of the following
PROJECT ELEMENTS which may be modified by the DEPARTMENT if
GRANTEE shows good cause: Playground, picnic pavilion, greenway
connection, renovate pool, landscaping, parking and other related support
facilities.
5. The DEPARTMENT shall pay, on a reimbursement basis, to the GRANTEE,
funds not to exceed $200,000.00 which will pay the DEPARTMENT's share of
the cost of the PROJECT. DEPARTMENT funding is based upon the following:
DEPARTMENT Amount: $200,000.00 50%
GRANTEE Match: $200,000.00 50%
Type of Match: Cash/In-Kind Services and/or Land Value
6. The PROJECT reimbursement request shall include all documentation required
by the DEPARTMENT for a proper pre-audit and post-audit review. Within sixty
(60) days after receipt of the final request, the DEPARTMENT's Grant Manager
shall review the completion documentation and payment request from the
GRANTEE for the PROJECT. If the documentation is sufficient and meets the
requirements of the Florida Recreation Development Assistance Program
Completion Documentation Form, DEP Form FPS-A036, referenced in s. 620-
5.058(6)(g), the DEPARTMENT will approve the request for payment.
7. In addition to the invoicing requirements contained in the paragraph above, the
Department will periodically request proof of a transaction (such as invoice,
payroll register) to evaluate the appropriateness of costs to the PROJECT
AGREEMENT pursuant to State guidelines (including cost allocation guidelines),
as appropriate. When requested, this information must be provided within 30
calendar days of the date of such request. The GRANTEE may also be required
to submit a cost allocation plan to the Department in support of its multipliers
(overhead, indirect, general administrative costs, and fringe benefits). All bills for
amounts due under this Agreement shall be submitted in detail sufficient for a
proper pre-audit and post-audit thereof. State guidelines for allowable costs can
be found in the Department of Financial Services' Reference Guide for State
Expenditures at http://www.dbf.state.fl.us/aadir/reference guide.
8. The GRANTEE agrees to comply with the Division of Recreation and Parks'
Grant and Contract Accountability Procedure, hereinafter called the
PROCEDURE and incorporated into this PROJECT AGREEMENT by reference
as if fully set forth herein. All purchases of goods and services for
accomplishment of the PROJECT shall be secured in accordance with the
GRANTEE's procurement procedures. Expenses representing the PROJECT
costs, including the required matching contribution, shall be reported to the
DEPARTMENT and summarized on certification forms provided in the
PROCEDURE. The DEPARTMENT and GRANTEE agree to use the
DEP Agreement No. F6063, Page 2 of 10
DEP 55-231 (01/05)
PROCEDURE guidelines for accounting for FRDAP funds disbursed for the
PROJECT. The parties further agree that the principles for determining the
eligible costs, supporting documentation and minimum reporting requirements of
the PROCEDURE shall be used.
9. Allowable indirect costs as defined in the PROCEDURE shall not exceed 15% of
the GRANTEE's eligible wages and salaries, unless approved in advance as
described herein. Indirect costs that exceed 15% must be approved in advance
in writing by the DEPARTMENT to be considered eligible PROJECT expenses.
10. It is understood by the parties that the amount of this PROJECT AGREEMENT
may be reduced should the Governor's Office declare a revenue shortfall and
assess a mandatory reserve. Should a shortfall be declared, the amount of this
PROJECT AGREEMENT may be reduced by the amount deemed appropriate
by the DEPARTMENT.
11. A.
The State of Florida's performance and obligation to pay under this
Agreement is contingent upon an annual appropriation by the Legislature.
The parties hereto understand that this Agreement is not a commitment of
future appropriations.
B. The GRANTEE understands that the funds supporting this Agreement are
subject to certification forward approval by the Governor's Office on June
30th each year. The GRANTEE understands and agrees that if the
Governor's Office does not approve the DEPARTMENT's request to
certify the funds forward, the GRANTEE will not be eligible for
reimbursement after the reversion of said funds.
12. All monies expended by the GRANTEE for the purpose contained herein shall be
subject to pre-audit review and approval by the State of Florida Chief Financial
Officer in accordance with section 17.03(2), Florida Statutes.
13. PROJECT funds may be reimbursed for eligible Preagreement Expenses (as
defined in s. 62D-5.054(34) of the RULE) incurred by GRANTEE prior to
execution of this PROJECT AGREEMENT in accordance with s. 62D-5.055(9) of
the RULE. The DEPARTMENT and the GRANTEE fully understand and agree
that there shall be no reimbursement of PROJECT funds by the DEPARTMENT
for any expenditure made prior to the execution of this PROJECT AGREEMENT
with the exception of those expenditures which meet the requirements of the
foregoing sections of the RULE.
14. Prior to commencement of PROJECT development, the GRANTEE shall submit
the documentation required by the Florida Recreation Development Assistance
Program Development Project Pre-reimbursement/Commencement
Documentation Form, DEP Form FPS-A034, referenced in s. 62D-5.058(7)(c) of
the RULE, to the DEPARTMENT. Upon determining that the documentation
DEP Agreement No. F6063, Page 3 of 10
DEP 55-231 (01/05)
complies with the RULE, the DEPARTMENT will give written notice to GRANTEE
to commence the development and approve the request for payment.
15. The GRANTEE shall obtain all required local, state and federal permits and
approvals prior to commencement of project construction and shall certify that it
has done so to the DEPARTMENT by completing the Project Permitting
Certification, FPS-A035, referenced in s. 62D-5.058(7)(c)1 of the RULE.
16. This PROJECT AGREEMENT shall become effective upon execution and the
GRANTFI= ~hall complete construction of all PROJECT ELEMENTS on or
before 90 r.j 6) DATes (hereinafter referred to as the PROJECT
completion date), at which time all payment requests and completion
documentation will be due to the DEPARTMENT. The GRANTEE understands
that if the Governor's Office does not approve the DEPARTMENT's request to
certify the funds forward on June 30th of each year, the GRANTEE will not be
eligible for reimbursement after the reversion of said funds or the denial of the
certification forward, whichever is earlier.
17. Project completion means the project is open and available for use by the public.
Project must be designated complete prior to release of final reimbursement.
See Rule 620-5.054(41).
18. The GRANTEE shall retain all records supporting PROJECT costs for five (5)
years after the fiscal year in which the final PROJECT payment was released by
the DEPARTMENT or until final resolution of matters resulting from any litigation,
claim or audit that started prior to the expiration of the five-year retention period.
The DEPARTMENT, State Auditor General, State Chief Financial Officer and
other agencies or entities with jurisdiction shall have the right to inspect and audit
the GRANTEE's records for said PROJECT during the PROJECT and within the
retention period.
19. In addition to the provisions contained in the paragraph above, the GRANTEE
shall comply with the applicable provisions contained in Attachment 1. A revised
copy of Attachment 1, Exhibit-1, must be provided to the GRANTEE with each
amendment which authorizes a funding increase or decrease. The revised
Exhibit-1 shall summarize the funding sources supporting the PROJECT
AGREEMENT for purposes of assisting the GRANTEE in complying with the
requirements of Attachment 1. If the GRANTEE fails to receive a revised copy of
Attachment 1, Exhibit-1, the GRANTEE shall notify the Department's FRDAP
Grants Administrator at (850) 245-2501 to request a copy of the updated
information.
20. Following receipt of an audit report identifying any reimbursement due the
DEPARTMENT for the GRANTEE's non- compliance with this PROJECT
AGREEMENT, the GRANTEE will be allowed a maximum of thirty (30) days to
submit additional pertinent documentation to offset the amount identified as
DEP Agreement No. F6063, Page 4 of 10
DEP 55-231 (01/05)
being due to the DEPARTMENT. The DEPARTMENT, following a review of the
documentation submitted by the GRANTEE, will inform the GRANTEE of the
final reimbursement due the DEPARTMENT.
21. The GRANTEE, as an independent contractor and not an agent, representative,
or employee of the DEPARTMENT, agrees to carry adequate liability and other
appropriate forms of insurance. The DEPARTMENT shall have no liability
except as specifically provided in this PROJECT AGREEMENT.
22. To the extent required by law, the GRANTEE will be self-insured against, or will
secure and maintain during the life of this PROJECT AGREEMENT, Workers'
Compensation Insurance for all of his employees connected with the work of this
project and, in case any work is subcontracted, the GRANTEE shall require the
subcontractor to provide Workers' Compensation Insurance for all of the
subcontractor's employees unless such employees are covered by the protection
afforded by the GRANTEE. Such self-insurance program or insurance coverage
shall comply fully with the Florida Workers' Compensation law. In case any class
of employees engaged in hazardous work under this Agreement is not protected
under Workers' Compensation statutes, the GRANTEE shall provide, and cause
each subcontractor to provide, adequate insurance satisfactory to the
DEPARTMENT, for the protection of its employees not otherwise protected.
23. The purchase of non-expendable equipment is not authorized under the terms of
this Agreement.
24. For the purpose of this PROJECT AGREEMENT, the DEPARTMENT's Grant
Manager shall be responsible for ensuring performance of its terms and
conditions and shall approve all reimbursement requests prior to payment. The
GRANTEE's Grant Manager, identified in paragraph 25, or successor, shall act
on behalf of the GRANTEE relative to the provisions of this PROJECT
AGREEMENT. The GRANTEE, shall submit to the DEPARTMENT signed
PROJECT status reports every January 5th, May 5th, and September 5th of each
year summarizing the work accomplished, problems encountered, percentage of
completion, and other information which may be requested by the
DEPARTMENT. Photographs to reflect the construction work accomplished
shall be submitted when the DEPARTMENT requests them.
25. Any and all notices required by this PROJECT AGREEMENT shall be deemed
sufficient if delivered or sent by United States Postal Service to the parties at the
following addresses:
DEP Agreement No. F6063, Page 5 of 10
DEP 55-231 (01/05)
GRANTEE's Grant Manager
DEPARTMENT's Grant Manager
Mr. Wally Majors
Recreation & Parks Director
100 E. Boynton Beach Blvd.
P.O. Box 310
Boynton Beach, FL 33435
A. Diane Langston
Florida Department of Environmental
Protection
3900 Commonwealth Blvd., MS585
Tallahassee, Florida 32399-3000
26. Prior to final reimbursement, the GRANTEE must erect a permanent information
sign on the PROJECT site which credits PROJECT funding or a portion thereof,
to the Florida Department of Environmental Protection and the Florida
Recreation Development Assistance Program.
27. The DEPARTMENT has the right to inspect the PROJECT and any and all
records related thereto at any reasonable time.
28. This PROJECT AGREEMENT may be unilaterally canceled by the
DEPARTMENT for refusal by the GRANTEE to allow public access to all
documents, papers, letters, or other material made or received by the GRANTEE
in conjunction with this PROJECT AGREEMENT unless the records are exempt
under Section 24(a) of Article I of the State Constitution and Section 119.07(1),
Florida Statutes.
29. Prior to the closing of the PROJECT, the DEPARTMENT shall have the right to
demand a refund, either in whole or in part, of the FRDAP funds provided to the
GRANTEE for non-compliance with the material terms of this PROJECT
AGREEMENT. The GRANTEE, upon such written notification from the
DEPARTMENT, shall refund, and shall forthwith pay to the DEPARTMENT, the
amount of money demanded by the DEPARTMENT. Interest on any refund shall
begin the date that the GRANTEE was informed that a refund was required until
refund and interest are paid to the DEPARTMENT.
30. The GRANTEE shall comply with all federal, state and local regulations, rules
and ordinances in developing this PROJECT. The GRANTEE acknowledges that
this requirement includes compliance with all federal, state and local health and
safety rules and regulations including all applicable building codes. The
GRANTEE further agrees to include the requirements of this paragraph in all
subcontracts made to perform this PROJECT AGREEMENT.
31. The GRANTEE may subcontract work under this Agreement without the prior
written consent of the DEPARTMENT'S Grant Manager. The GRANTEE agrees
to be responsible for the fulfillment of all work elements included in any
subcontract. It is understood and agreed by the GRANTEE that the
DEPARTMENT shall not be liable to any subcontractor for any expenses or
liabilities incurred under the subcontract and that the GRANTEE shall be solely
DEP Agreement No. F6063, Page 6 of 10
DEP 55-231 (01/05)
liable to the subcontractor for all expenses and liabilities incurred under the
subcontract.
32. Land owned by the GRANTEE, which is developed or acquired with FRDAP
funds, shall be dedicated in perpetuity as an outdoor recreation site by the
GRANTEE for the use and benefit of the public as stated in section 62D-5.059(1)
of the RULE. Land under control other than by ownership of the GRANTEE,
such as by lease, shall be dedicated as an outdoor recreation area for the use
and benefit of the public for a minimum period of twenty-five (25) years from the
completion date set forth in the PROJECT completion certificate. All dedications
must be recorded in the county property records by the owner, or by the
GRANTEE if the owner has given GRANTEE authority to do so. Such PROJECT
shall be open at reasonable times and shall be managed in a safe and attractive
manner appropriate for public use.
33. Failure to comply with the provisions of the RULE or the terms and conditions of
this PROJECT AGREEMENT will result in cancellation of the PROJECT
AGREEMENT by the DEPARTMENT. The DEPARTMENT shall give the
GRANTEE in violation of the RULE or this PROJECT AGREEMENT a notice in
writing of the particular violations stating a reasonable time to comply. Failure to
comply within the time period stated in the written notice shall result in
cancellation of the PROJECT AGREEMENT and shall result in the imposition of
the terms in Paragraph 29.
34. In the event of conflict in the proVIsions of the RULE, the PROJECT
AGREEMENT and the Project Application, the provisions of the Rule shall
control over this PROJECT AGREEMENT and this PROJECT AGREEMENT
shall control over the Project Application documents.
35. If the DEPARTMENT determines that site control is not sufficient under the
RULE, the DEPARTMENT shall give the GRANTEE a notice in writing and a
reasonable time to comply. If the deficiency is not corrected within the time
specified in the notice, the DEPARTMENT shall cancel this PROJECT
AGREEMENT.
36. Pursuant to section 216.347, Florida Statutes, the GRANTEE is prohibited from
spending FRDAP funds for the purpose of lobbying the legislature, the judicial
branch, or a state agency.
37. A.
No person on the grounds of race, creed, color, national origin, age, sex,
marital status or disability, shall be excluded from participation in; be
denied the proceeds or benefits of; or be otherwise subjected to
discrimination in performance of this PROJECT AGREEMENT.
B. An entity or affiliate who has been placed on the discriminatory vendor list
may not submit a bid on a contract to provide goods or seNices to a
DEP Agreement No. F6063, Page 7 of 10
DEP 55-231 (01/05)
public entity, may not submit a bid on a contract with a public entity for the
construction or repair of a public building or public work, may not submit
bids on leases of real property to a public entity, may not award or
perform work as a contractor, supplier, subcontractor, or consultant under
contract with any public entity, and may not transact business with any
public entity. The Florida Department of Management Services is
responsible for maintaining the discriminatory vendor list and intends to
post the list on its website. Questions regarding the discriminatory vendor
list may be directed to the Florida Department of Management Services,
Office of Supplier Diversity at (850) 487-0915.
38. Each party hereto agrees that it shall be solely responsible for the wrongful acts
of its employees and agents. However, nothing contained herein shall constitute
a waiver by either party of its sovereign immunity or the provisions of section
768.28, Florida Statutes.
39. The employment of unauthorized aliens by any GRANTEE is considered a
violation of Section 274A(e) of the Immigration and Nationality Act. If the
GRANTEE knowingly employs unauthorized aliens, such violation shall be cause
for unilateral cancellation of this Agreement. The GRANTEE shall be
responsible for including this provision in all subcontracts issued as a result of
this Agreement.
40. A person or affiliate who has been placed on the convicted vendor list following a
conviction for a public entity crime may not perform work as a grantee,
contractor, supplier, subcontractor, or consultant under a contract with any public
entity, and may not transact business with any public entity in excess of the
threshold amount provided in s. 287.017, Florida Statutes, for Category Two, for
a period of 36 months from the date of being placed on the convicted vendor list.
41. The PROJECT AGREEMENT has been delivered in the State of Florida and
shall be construed in accordance with the laws of Florida. Wherever possible,
each provision of this PROJECT AGREEMENT shall be interpreted in such
manner as to be effective and valid under applicable Florida law, but if any
provision of this PROJECT AGREEMENT shall be prohibited or invalid under
applicable Florida law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this PROJECT AGREEMENT. Any action hereon or
in connection herewith shall be brought in Leon County, Florida unless prohibited
by applicable law.
42. No delay or failure to exercise any right, power or remedy accruing to either party
upon breach or default by either party under this PROJECT AGREEMENT shall
impair any such right, power or remedy of either party; nor shall such delay or
failure be construed as a waiver of any such breach or default, or any similar
breach or default thereafter.
DEP Agreement No. F6063, Page 8 of 10
DEP 55-231 (01/05)
43. This PROJECT AGREEMENT is not intended nor shall it be construed as
granting any rights, privileges or interest to any third party without mutual written
agreement of the parties hereto.
44. This PROJECT AGREEMENT is an exclusive contract and may not be assigned
in whole or in part without the written approval of the DEPARTMENT.
45. This PROJECT AGREEMENT represents the entire agreement of the parties.
Any alterations, variations, changes, modifications or waivers of provisions of this
PROJECT AGREEMENT shall only be valid when they have been reduced to
writing, duly executed by each of the parties hereto, and attached to the original
of this PROJECT AGREEMENT.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
DEP Agreement No. F6063, Page 9 of 10
DEP 55-231 (01/05)
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed on the day and year last written below.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
CITY OF BOYNTON BEACH
By:
Division Director (or Designee)
Division of Recreation and Parks
Do 10J1 :':>lc,0
By:
Printed Name:
Title:
DO R:>C5T Dftre;
Date
Date
Address:
Office of Information and Recreation
Services
Division of Recreation and Parks
3900 Commonwealth Boulevard
Mail Station 585
Tallahassee, Florida 32399-3000
Address:
100 E. Boynton Beach Blvd.
P.O. Box 310
Boynton Beach, FL 33435
(1 cf)M~a;;~
DEP Grant Manager v
Grantee Attorney
Approved as to Form and Legality:
This form has been pre-approved as to
form and legality by Suzanne Brantley,
Assistant General Counsel, on
January 24,2005 for use for one year.
List of attachments/exhibits included as part of this Agreement:
Specify
Type
Letter/
Number Description (include number of pages)
Attachment
~ Special Audit Requirements (5 Paqes)
DEP Agreement No. F6063, Page 10 of 10
DEP 55-231 (01/05)
ATTACHMENT 1
SPECIAL AUDIT REQUIREMENTS
The administration of resources awarded by the Department of Environmental Protection (which may be referred to
as the "Department", "DEP", "FDEP" or "Grantor", or other name in the contract/agreement) to the recipient
(which may be referred to as the "Contractor", Grantee" or other name in the contract/agreement) may be subject
to audits and/or monitoring by the Department of Environmental Protection, as described in this attachment.
MONITORING
In addition to reviews of audits conducted in accordance with OMB Circular A-133 and Section 215.97, F.S., as
revised (see "AUDITS" below), monitoring procedures may include, but not be limited to, on-site visits by
Department staff, limited scope audits as defined by OMB Circular A-133, as revised, and/or other procedures. By
entering into this Agreement, the recipient agrees to comply and cooperate with any monitoring procedures/processes
deemed appropriate by the Department of Environmental Protection. In the event the Department of Environmental
Protection determines that a limited scope audit of the recipient is appropriate, the recipient agrees to comply with
any additional instructions provided by the Department to the recipient regarding such audit. The recipient further
agrees to comply and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the
Chief Financial Officer or Auditor General.
AUDITS
PART I: FEDERALLY FUNDED
This part is applicable if the recipient is a State or local government or a non-profit organization as defined in OMB
Circular A-133, as revised.
1. In the event that the recipient expends $500,000 or more in Federal awards in its fiscal year, the recipient
must have a single or program-specific audit conducted in accordance with the provisions of OMB Circular
A-133, as revised. EXHIBIT I to this Agreement indicates Federal funds awarded through the Department
of Environmental Protection by this Agreement. In determining the Federal awards expended in its fiscal
year, the recipient shall consider all sources of Federal awards, including Federal resources received from
the Department of Environmental Protection. The determination of amounts of Federal awards expended
should be in accordance with the guidelines established by OMB Circular A-133, as revised. An audit of the
recipient conducted by the Auditor General in accordance with the provisions of OMB Circular A-133, as
revised, will meet the requirements of this part.
2. In connection with the audit requirements addressed in Part I, paragraph 1., the recipient shall fulfill the
requirements relative to auditee responsibilities as provided in Subpart C of OMB Circular A-133, as
revised.
3. If the recipient expends less than $500,000 in Federal awards in its fiscal year, an audit conducted in
accordance with the provisions of OMB Circular A-133, as revised, is not required. In the event that the
recipient expends less than $500,000 in Federal awards in its fiscal year and elects to have an audit
conducted in accordance with the provisions of OMB Circular A-133, as revised, the cost of the audit must
be paid from non-Federal resources (i.e., the cost of such an audit must be paid from recipient resources
obtained from other than Federal entities).
4. The recipient may access information regarding the Catalog of Federal Domestic Assistance (CFDA) via
the internet at http://12.46.245.173/cfda/cfda.html.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
DEP Agreement No.F6063, Attachment 1, Page 1 of 5
DEP 55-215 (09/04)
PART II: STATE FUNDED
This part is applicable if the recipient is a nonstate entity as defined by Section 215.97(2)(1), Florida Statutes.
I . In the event that the recipient expends a total amount of State fmancial assistance equal to or in excess of
$300,000 in any fiscal year of such recipient ($500,000 for fiscal years ending on or after September 30,
2004), the recipient must have a State single or project-specific audit for such fiscal year in accordance with
Section 215.97, Florida Statutes; applicable rules of the Executive Office of the Governor and the Chief
Financial Officer; and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit
organizations), Rules of the Auditor General. EXHIBIT I to this Agreement indicates State fmancial
assistance awarded through the Department of Environmental Protection by this Agreement. In determining
the State fmancial assistance expended in its fiscal year, the recipient shall consider all sources of State
fmancial assistance, including State financial assistance received from the Department of Environmental
Protection, other state agencies, and other nonstate entities. State fmancial assistance does not include
Federal direct or pass-through awards and resources received by a nonstate entity for Federal program
matching requirements.
2. In connection with the audit requirements addressed in Part II, paragraph 1, the recipient shall ensure that
the audit complies with the requirements of Section 215.97(7), Florida Statutes. This includes submission of
a fmancial reporting package as defmed by Section 215.97(2)(d), Florida Statutes, and Chapters 10.550
(local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor
General.
3. If the recipient expends less than $300,000 in State fmancial assistance in its fiscal year ($500,000 for fiscal
years ending on or after September 30, 2004), an audit conducted in accordance with the provisions of
Section 215.97, Florida Statutes, is not required. In the event that the recipient expends less than $300,000
in State fmancial assistance in its fiscal year ($500,000 for fiscal years ending on or after September 30,
2004) and elects to have an audit conducted in accordance with the provisions of Section 215.97, Florida
Statutes, the cost of the audit must be paid from the non-State entity's resources (i.e., the cost of such an
audit must be paid from the recipient's resources obtained from other than State entities).
4. For information regarding the Florida Catalog of State Financial Assistance (CSFA), a recipient should
access the Florida Single Audit Act website located at http://state.fl.us/fsaa/catalog or the Governor's
Office of Policy and Budget website located at
http://www.myflorida.com/myflorida/governmentlcontacts/opbOffice.htmIfor assistance. In addition to the
above websites, the following websites may be accessed for information: Legislature's Website
http://www.leg.state.fl.us/, Governor's Website http://www.myflorida.com/, Department of Financial
Services' Website http://www.dbfstate.fl.us/and the Auditor General's Website
http://www.state.fl.us/audgen.
PART III: OTHER AUDIT REQillREMENTS
(NOTE: This part would be used to specifY any additional audit requirements imposed by the State awarding entity
that are solely a matter of that State awarding entity's policy (i.e., the audit is not required by Federal or State laws
and is not in conflict with other Federal or State audit requirements). Pursuant to Section 215.97(7)(m), Florida
Statutes, State agencies may conduct or arrange for audits of State financial assistance that are in addition to audits
conducted in accordance with Section 215.97, Florida Statutes. In such an event, the State awarding agency must
arrange for funding the full cost of such additional audits.)
PART IV: REPORT SUBMISSION
1. Copies of reporting packages for audits conducted in accordance with OMB Circular A-133, as revised, and
required by PART I of this Agreement shall be submitted, when required by Section .320 (d), OMB
Circular A-133, as revised, by or on behalf of the recipient directly to each of the following:
REMAINDER OF P AGE INTENTIONALLY LEFT BLANK
DEP Agreement No. F6063, Attachment 1, Page 2 of 5
DEP 55-215 (09/04)
A. The Department of Environmental Protection at the following address:
Audit Director
Florida Department of Environmental Protection
Office ofthe Inspector General, MS 40
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
B. The Federal Audit Clearinghouse designated in OMB Circular A-133, as revised (the number of
copies required by Sections .320 (d)(I) and (2), OMB Circular A-133, as revised, should be
submitted to the Federal Audit Clearinghouse), at the following address:
Federal Audit Clearinghouse
Bureau of the Census
1201 East 10th Street
Jeffersonville, IN 47132
C. Other Federal agencies and pass-through entities in accordance with Sections .320 (e) and (1),
OMB Circular A-133, as revised.
2. Pursuant to Section .320(1), OMB Circular A-133, as revised, the recipient shall submit a copy of the
reporting package described in Section .320(c), OMB Circular A-133, as revised, and any management
letters issued by the auditor, to the Department of Environmental Protection the follo\\cing address:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General, MS 40
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
3. Copies of fmancial reporting packages required by PART II of this Agreement shall be submitted by or on
behalf of the recipient directly to each of the following:
A. The Department of Environmental Protection at the following address:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General, MS 40
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
B. The Auditor General's Office at the following address:
State of Florida Auditor General
Room 40 I, Claude Pepper Building
111 West Madison Street
Tallahassee, Florida 32399-1450
4. Copies of reports or management letters required by PART III of this Agreement shall be submitted by or
on behalf of the recipient directly to the Department of Environmental Protection at the following address:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General, MS 40
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
DEP Agreement No. F6063, Attachment 1, Page 3 of 5
DEP 55-215 (09/04)
5. Any reports, management letters, or other information required to be submitted to the Department of
Environmental Protection pursuant to this Agreement shall be submitted timely in accordance with OMB
Circular A-133, Florida Statutes, or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and
for-profit organizations), Rules ofthe Auditor General, as applicable.
6. Recipients, when submitting fmancial reporting packages to the Department of Environmental Protection
for audits done in accordance with OMB Circular A-133, or Chapters 10.550 (local governmental entities)
or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General, should indicate the date
that the reporting package was delivered to the recipient in correspondence accompanying the reporting
package.
PART V: RECORD RETENTION
The recipient shall retain sufficient records demonstrating its compliance with the tenns of this Agreement for a
period of 5 years from the date the audit report is issued, and shall allow the Department of Environmental
Protection, or its designee, Chief Financial Officer, or Auditor General access to such records upon request. The
recipient shall ensure that audit working papers are made available to the Department of Environmental Protection,
or its designee, Chief Financial Officer, or Auditor General upon request for a period of 3 years from the date tbe
audit report is issued, unless extended in writing by tbe Department of Environmental Protection.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
DEP Agreement No. F6063, Attachment 1, Page 4 of 5
DEP 55-215 (09/04)
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CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORl\--.
XII. - LEGAL
ITEM C.2.
Requested City Commission Date Final Form Must be Turned Requested City Commission
Meeting Dates in to City Clerk's Office Meeting Dates
!2J August 2, 2005 July 18,2005 (Noon_) D October 5, 2005
D August 16, 2005 August I, 2005 (Noon) D October 18, 2005
D September 6, 2005 August 15,2005 (Noon) D November 1,2005
D September 20, 2005 September 6, 2005 (Noon) D November 15, 2005
Date Final Form Must be Turned
in to City Clerk's Office
September 19, 2005 (Noon)
'- ..;,
_.__J _..,~~
October 3, 2005 (Noon)
f_=.
October 17,2005 (Noon)-
UJ
October 31, 2005 (Noon)~~',=
-.
-
-;/ '
c
'_0
D Administrative D Development Plans CJ
"'"'~-
NATURE OF D Consent Agenda D New Business
AGENDA ITEM D Public Hearing !2J Legal
D Bids D Unfinished Business
D Announcement D Presentation
D City Manager's Report
~~ ~.
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RECOMMENDATION: Authorization to enter into an agreement with the State Department of Environmental Protection in
furtherance of an approved outdoor recreation project.
EXPLANA TION: The Recreation and Parks Department has been awarded a $200,000 grant to develop the Jaycee Park
property. The FRDAP grant will provide matching funds (up to $200,000) for the construction of the upland portion ofthe
site, including a playground, picnic facilities, walking trail, park benches, signage, educational kiosks, irrigation, bike rack,
sidewalk, fence, restrooms and bocce courts. The City will have up to three years from the effective date of the project
agreement to complete the project.
PROGRAM IMPACT: The City recently purchased the Jaycee Park property from the Florida Inland Navigation District. In
accordance with the purchase agreement, the City has forty-eight (48) months to develop the park property.
FISCAL IMPACT: The Department of Environmental Protection requires a 50% cash match from the City of Boynton
Beach. There is $1,010,000 budgeted for park development in the adopted Capital Improvements Plan for FY2004/05
(Account # 302-4299-580-63-05. This dollar amount also includes funding for wetlands development, to be included in Phase
II of park development).
AL TERNA TIVES: Not accept the grant; the City would pay for all costs associated with park dev
~#~
Department Head's Sign re
Recreation and Parks
Department Name
City Attorney I Finance I Human Resources
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM_DOC
1 RESOLUTION NO. R05-
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, AUTHORIZING THE MAYOR AND CITY
5 CLERK TO ENTER INTO AN AGREEMENT WITH THE
6 STATE DEPARTMENT OF ENVIRONMENTAL
7 PROTECTION FOR FUNDING TOWARDS
8 DEVELOPMENT OF JAYCEE PARK, FROM THE
9 DEPARTMENT OF ENVIRONMENTAL PROTECTION
10 2005/06 FLORIDA RECREA TION DEVELOPMENT
11 ASSISTANCE PROGRAM; AND PROVIDING AN
12 EFFECTIVE DATE.
13
14 WHEREAS, the City of Boynton Beach recently purchased the Jaycee Park property
15 from the Florida Inland Navigation District; and
16 WHEREAS, in accordance with the purchase agreement, the City has forty-eight (48)
17 months to develop the park property; and
18 WHEREAS, the Recreation and Parks Department has been awarded a $200,000.00
19 grant to develop Jaycee Park; and
20 WHEREAS, the Florida Recreation Development Assistance Program ("FRDAP") is
21 a competitive program that provides grants to local government entities for acquisition and
22 development of land for public outdoor recreation; and
23 WHEREAS, the Florida Department of Environmental Protection administers
24 FRDAP; and
25 WHEREAS, the FRDAP grant will provide matching funds up to $200,000.00 for the
26 construction ofthe upland portion ofthe site including a playground, picnic facilities, walking
27 trail, park benches, signage, educational kiosks, irrigation, bike rack, sidewalk, fence,
28 restrooms and bocce courts; and
29 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
S:\CA\RESO\Agreements\GrantslJaycee Project - FRDAP Grant Agmt.doc
1
2
3
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1.
The foregoing "Whereas" clauses are hereby ratified and confirmed as
4
being true and correct and are hereby made a specific part of this Resolution upon adoption
5
hereof.
6
Section 2.
The City Commission ofthe City of Boynton Beach hereby authorizes
7 the Mayor and City Clerk to execute the Florida Department of Environmental Protection
8 2005/06 Florida Recreation Development Assistance Program Project Agreement for a grant
9 in the amount of$200,000.00 for the Jaycee Park Project.
10
Section 3.
This Resolution shall become effective immediately upon passage.
11 PASSED AND ADOPTED this _ day of August, 2005.
12
13
14 CITY OF BOYNTON BEACH, FLORIDA
15
16
17 Mayor
18
19
20 Vice Mayor
21
22
23 Commissioner
24
25
26 Commissioner
27
28
29 Commissioner
30 ATTEST:
31
32
33 City Clerk
34
35
36
S:\CA\RESO\Agreements\Grants\Jaycee Project - FRDAP Grant Agmt.doc
DEP Agreement No. F6004
CSFA Number: 37.017
CSFA Title: FRDAP
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
FLORIDA RECREATION DEVELOPMENT ASSISTANCE PROGRAM (FRDAP)
PROJECT AGREEMENT (SFY 2005-06) - Development
This Agreement is made and entered into between the STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION, hereinafter called the
DEPARTMENT, and the CITY OF BOYNTON BEACH, hereinafter called the
GRANTEE, a local government, in furtherance of an approved public outdoor recreation
project. In consideration of the mutual covenants contained herein and pursuant to
section 375.075, Florida Statutes, and chapter 62D-5, Part V, Florida Administrative
Code, the parties hereto agree as follows:
1. This PROJECT AGREEMENT shall be performed in accordance with section
375.075, Florida Statutes, and chapter 62D-5, Part V, Florida Administrative
Code, hereinafter called the RULE. The GRANTEE shall comply with all
provisions of the RULE, effective August 15, 2004, which is incorporated into this
PROJECT AGREEMENT as if fully set forth herein. It is the intent of the
DEPARTMENT and the GRANTEE that none of the provisions of section 163.01,
Florida Statutes, shall have application to this PROJECT AGREEMENT.
2. The DEPARTMENT has found that public outdoor recreation is the primary
purpose of the project known as Jaycee Park (Florida Recreation Development
Assistance Program, FRDAP Project Number F06004), hereinafter called the
PROJECT, and enters into this PROJECT AGREEMENT with the GRANTEE for
the development of that real property, the legal description of which shall be
submitted to the DEPARTMENT as described in the Florida Recreation
Development Assistance Program Development Project Pre-
reimbursement/Commencement Documentation Form, DEP Form FPS-A034.
3. All forms hereinafter referenced may be found at
www. dep. state. fl. usjparksjbdrs. Further, the GRANTEE will also
receive all applicable forms for administration of project with GRANTEE's copy of
fully executed PROJECT AGREEMENT.
DEP Agreement No. F6004, Page 1 of 10
DEP 55-231 (01/05)
4. The GRANTEE shall construct, or cause to be constructed, certain public
outdoor recreation facilities and improvements consisting of the following
PROJECT ELEMENTS which may be modified by the DEPARTMENT if
GRANTEE shows good cause: Playground, picnic pavilion, bocce court, hiking
trail, restroom, parking lighting and other related support facilities.
5. The DEPARTMENT shall pay, on a reimbursement basis, to the GRANTEE,
funds not to exceed $200,000.00 which will pay the DEPARTMENT's share of
the cost of the PROJECT. DEPARTMENT funding is based upon the following:
DEPARTMENT Amount: $200,000.00 50%
GRANTEE Match: $200,000.00 50%
Type of Match: Cash/In-Kind Services and/or Land Value
6. The PROJECT reimbursement request shall include all documentation required
by the DEPARTMENT for a proper pre-audit and post-audit review. Within sixty
(60) days after receipt of the final request, the DEPARTMENT's Grant Manager
shall review the completion documentation and payment request from the
GRANTEE for the PROJECT. If the documentation is sufficient and meets the
requirements of the Florida Recreation Development Assistance Program
Completion Documentation Form, DEP Form FPS-A036, referenced in s. 620-
5.058(6)(g), the DEPARTMENT will approve the request for payment.
7. In addition to the invoicing requirements contained in the paragraph above, the
Department will periodically request proof of a transaction (such as invoice,
payroll register) to evaluate the appropriateness of costs to the PROJECT
AGREEMENT pursuant to State guidelines (including cost allocation guidelines),
as appropriate. When requested, this information must be provided within 30
calendar days of the date of such request. The GRANTEE may also be required
to submit a cost allocation plan to the Department in support of its multipliers
(overhead, indirect, general administrative costs, and fringe benefits). All bills for
amounts due under this Agreement shall be submitted in detail sufficient for a
proper pre-audit and post-audit thereof. State guidelines for allowable costs can
be found in the Department of Financial Services' Reference Guide for State
Expenditures at http://www.dbfstate.fl.us/aadir/reference guide.
8. The GRANTEE agrees to comply with the Division of Recreation and Parks'
Grant and Contract Accountability Procedure, hereinafter called the
PROCEDURE and incorporated into this PROJECT AGREEMENT by reference
as if fully set forth herein. All purchases of goods and services for
accomplishment of the PROJECT shall be secured in accordance with the
GRANTEE's procurement procedures. Expenses representing the PROJECT
costs, including the required matching contribution, shall be reported to the
DEPARTMENT and summarized on certification forms provided in the
PROCEDURE. The DEPARTMENT and GRANTEE agree to use the
PROCEDURE guidelines for accounting for FRDAP funds disbursed for the
DEP Agreement No. F6004, Page 2 of 10
DEP 55-231 (01/05)
PROJECT. The parties further agree that the principles for determining the
eligible costs, supporting documentation and minimum reporting requirements of
the PROCEDURE shall be used.
9. Allowable indirect costs as defined in the PROCEDURE shall not exceed 15% of
the GRANTEE's eligible wages and salaries, unless approved in advance as
described herein. Indirect costs that exceed 15% must be approved in advance
in writing by the DEPARTMENT to be considered eligible PROJECT expenses.
10. It is understood by the parties that the amount of this PROJECT AGREEMENT
may be reduced should the Governor's Office declare a revenue shortfall and
assess a mandatory reserve. Should a shortfall be declared, the amount of this
PROJECT AGREEMENT may be reduced by the amount deemed appropriate
by the DEPARTMENT.
11. A.
The State of Florida's performance and obligation to pay under this
Agreement is contingent upon an annual appropriation by the Legislature.
The parties hereto understand that this Agreement is not a commitment of
future appropriations.
B. The GRANTEE understands that the funds supporting this Agreement are
subject to certification forward approval by the Governor's Office on June
30th each year. The GRANTEE understands and agrees that if the
Governor's Office does not approve the DEPARTMENT's request to
certify the funds forward, the GRANTEE will not be eligible for
reimbursement after the reversion of said funds.
12. All monies expended by the GRANTEE for the purpose contained herein shall be
subject to pre-audit review and approval by the State of Florida Chief Financial
Officer in accordance with section 17.03(2), Florida Statutes.
13. PROJECT funds may be reimbursed for eligible Preagreement Expenses (as
defined in s. 62D-5.054(34) of the RULE) incurred by GRANTEE prior to
execution of this PROJECT AGREEMENT in accordance with s. 620-5.055(9) of
the RULE. The DEPARTMENT and the GRANTEE fully understand and agree
that there shall be no reimbursement of PROJECT funds by the DEPARTMENT
for any expenditure made prior to the execution of this PROJECT AGREEMENT
with the exception of those expenditures which meet the requirements of the
foregoing sections of the RULE.
14. Prior to commencement of PROJECT development, the GRANTEE shall submit
the documentation required by the Florida Recreation Development Assistance
Program Development Project Pre-reimbursement/Commencement
Documentation Form, DEP Form FPS-A034, referenced in s. 62D-5.058(7)(c) of
the RULE, to the DEPARTMENT. Upon determining that the documentation
DEP Agreement No. F6004, Page 3 of 10
DEP 55-231 (01/05)
complies with the RULE, the DEPARTMENT will give written notice to GRANTEE
to commence the development and approve the request for payment.
15. The GRANTEE shall obtain all required local, state and federal permits and
approvals prior to commencement of project construction and shall certify that it
has done so to the DEPARTMENT by completing the Project Permitting
Certification, FPS-A035, referenced in s. 62D-5.058(7)(c)1 of the RULE.
16. This PROJECT AGREEMENT shall become effective upon execution and the
GRANTFF shall comDlete construction of all PROJECT ELEMENTS on or
before -1-)0 '~oI DAT6 \. .~reinafter referred to as the PROJECT
completion date), at which time all payment requests and completion
documentation will be due to the DEPARTMENT. The GRANTEE understands
that if the Governor's Office does not approve the DEPARTMENT's request to
certify the funds forward on June 30th of each year, the GRANTEE will not be
eligible for reimbursement after the reversion of said funds or the denial of the
certification forward, whichever is earlier.
17. Project completion means the project is open and available for use by the public.
Project must be designated complete prior to release of final reimbursement.
See Rule 62D-5.054(41).
18. The GRANTEE shall retain all records supporting PROJECT costs for five (5)
years after the fiscal year in which the final PROJECT payment was released by
the DEPARTMENT or until final resolution of matters resulting from any litigation,
claim or audit that started prior to the expiration of the five-year retention period.
The DEPARTMENT, State Auditor General, State Chief Financial Officer and
other agencies or entities with jurisdiction shall have the right to inspect and audit
the GRANTEE's records for said PROJECT during the PROJECT and within the
retention period.
19. In addition to the provisions contained in the paragraph above, the GRANTEE
shall comply with the applicable provisions contained in Attachment 1. A revised
copy of Attachment 1, Exhibit-1, must be provided to the GRANTEE with each
amendment which authorizes a funding increase or decrease. The revised
Exhibit-1 shall summarize the funding sources supporting the PROJECT
AGREEMENT for purposes of assisting the GRANTEE in complying with the
requirements of Attachment 1. If the GRANTEE fails to receive a revised copy of
Attachment 1, Exhibit-1, the GRANTEE shall notify the Department's FRDAP
Grants Administrator at (850) 245-2501 to request a copy of the updated
information.
20. Following receipt of an audit report identifying any reimbursement due the
DEPARTMENT for the GRANTEE's non- compliance with this PROJECT
AGREEMENT, the GRANTEE will be allowed a maximum of thirty (30) days to
submit additional pertinent documentation to offset the amount identified as
DEP Agreement No. F6004, Page 4 of 10
DEP 55-231 (01/05)
being due to the DEPARTMENT. The DEPARTMENT, following a review of the
documentation submitted by the GRANTEE, will inform the GRANTEE of the
final reimbursement due the DEPARTMENT.
21. The GRANTEE, as an independent contractor and not an agent, representative,
or employee of the DEPARTMENT, agrees to carry adequate liability and other
appropriate forms of insurance. The DEPARTMENT shall have no liability
except as specifically provided in this PROJECT AGREEMENT.
22. To the extent required by law, the GRANTEE will be self-insured against, or will
secure and maintain during the life of this PROJECT AGREEMENT, Workers'
Compensation Insurance for all of his employees connected with the work of this
project and, in case any work is subcontracted, the GRANTEE shall require the
subcontractor to provide Workers' Compensation Insurance for all of the
subcontractor's employees unless such employees are covered by the protection
afforded by the GRANTEE. Such self-insurance program or insurance coverage
shall comply fully with the Florida Workers' Compensation law. In case any class
of employees engaged in hazardous work under this Agreement is not protected
under Workers' Compensation statutes, the GRANTEE shall provide, and cause
each subcontractor to provide, adequate insurance satisfactory to the
DEPARTMENT, for the protection of its employees not otherwise protected.
23. The purchase of non-expendable equipment is not authorized under the terms of
this Agreement.
24. For the purpose of this PROJECT AGREEMENT, the DEPARTMENT's Grant
Manager shall be responsible for ensuring performance of its terms and
conditions and shall approve all reimbursement requests prior to payment. The
GRANTEE's Grant Manager, identified in paragraph 25, or successor, shall act
on behalf of the GRANTEE relative to the provisions of this PROJECT
AGREEMENT. The GRANTEE, shall submit to the DEPARTMENT signed
PROJECT status reports every January 5th, May 5th, and September 5th of each
year summarizing the work accomplished, problems encountered, percentage of
completion, and other information which may be requested by the
DEPARTMENT. Photographs to reflect the construction work accomplished
shall be submitted when the DEPARTMENT requests them.
25. Any and all notices required by this PROJECT AGREEMENT shall be deemed
sufficient if delivered or sent by United States Postal Service to the parties at the
following addresses:
DEP Agreement No. F6004, Page 5 of 10
DEP 55-231 (01/05)
GRANTEE's Grant Manager
DEPARTMENT's Grant Manager
Mr. Wally Majors
Recreation & Parks Director
100 E. Boynton Beach Boulevard
Boynton Beach, FL 33435
A. Diane Langston
Florida Department of Environmental
Protection
3900 Commonwealth Blvd., MS585
Tallahassee, Florida 32399-3000
26. Prior to final reimbursement, the GRANTEE must erect a permanent information
sign on the PROJECT site which credits PROJECT funding or a portion thereof,
to the Florida Department of Environmental Protection and the Florida
Recreation Development Assistance Program.
27. The DEPARTMENT has the right to inspect the PROJECT and any and all
records related thereto at any reasonable time.
28. This PROJECT AGREEMENT may be unilaterally canceled by the
DEPARTMENT for refusal by the GRANTEE to allow public access to all
documents, papers, letters, or other material made or received by the GRANTEE
in conjunction with this PROJECT AGREEMENT unless the records are exempt
under Section 24(a) of Article I of the State Constitution and Section 119.07(1),
Florida Statutes.
29. Prior to the closing of the PROJECT, the DEPARTMENT shall have the right to
demand a refund, either in whole or in part, of the FRDAP funds provided to the
GRANTEE for non-compliance with the material terms of this PROJECT
AGREEMENT. The GRANTEE, upon such written notification from the
DEPARTMENT, shall refund, and shall forthwith pay to the DEPARTMENT, the
amount of money demanded by the DEPARTMENT. Interest on any refund shall
begin the date that the GRANTEE was informed that a refund was required until
refund and interest are paid to the DEPARTMENT.
30. The GRANTEE shall comply with all federal, state and local regulations, rules
and ordinances in developing this PROJECT. The GRANTEE acknowledges that
this requirement includes compliance with all federal, state and local health and
safety rules and regulations including all applicable building codes. The
GRANTEE further agrees to include the requirements of this paragraph in all
subcontracts made to perform this PROJECT AGREEMENT.
31. The GRANTEE may subcontract work under this Agreement without the prior
written consent of the DEPARTMENT'S Grant Manager. The GRANTEE agrees
to be responsible for the fulfillment of all work elements included in any
subcontract. It is understood and agreed by the GRANTEE that the
DEPARTMENT shall not be liable to any subcontractor for any expenses or
liabilities incurred under the subcontract and that the GRANTEE shall be solely
DEP Agreement No. F6004, Page 6 of 10
DEP 55-231 (01/05)
liable to the subcontractor for all expenses and liabilities incurred under the
subcontract.
32. Land owned by the GRANTEE, which is developed or acquired with FRDAP
funds, shall be dedicated in perpetuity as an outdoor recreation site by the
GRANTEE for the use and benefit of the public as stated in section 620-5.059(1)
of the RULE. Land under control other than by ownership of the GRANTEE,
such as by lease, shall be dedicated as an outdoor recreation area for the use
and benefit of the public for a minimum period of twenty-five (25) years from the
completion date set forth in the PROJECT completion certificate. All dedications
must be recorded in the county property records by the owner, or by the
GRANTEE if the owner has given GRANTEE authority to do so. Such PROJECT
shall be open at reasonable times and shall be managed in a safe and attractive
manner appropriate for public use.
33. Failure to comply with the provisions of the RULE or the terms and conditions of
this PROJECT AGREEMENT will result in cancellation of the PROJECT
AGREEMENT by the DEPARTMENT. The DEPARTMENT shall give the
GRANTEE in violation of the RULE or this PROJECT AGREEMENT a notice in
writing of the particular violations stating a reasonable time to comply. Failure to
comply within the time period stated in the written notice shall result in
cancellation of the PROJECT AGREEMENT and shall result in the imposition of
the terms in Paragraph 29.
34. In the event of conflict in the proVIsIons of the RULE, the PROJECT
AGREEMENT and the Project Application, the provisions of the Rule shall
control over this PROJECT AGREEMENT and this PROJECT AGREEMENT
shall control over the Project Application documents.
35. If the DEPARTMENT determines that site control is not sufficient under the
RULE, the DEPARTMENT shall give the GRANTEE a notice in writing and a
reasonable time to comply. If the deficiency is not corrected within the time
specified in the notice, the DEPARTMENT shall cancel this PROJECT
AGREEMENT.
36. Pursuant to section 216.347, Florida Statutes, the GRANTEE is prohibited from
spending FRDAP funds for the purpose of lobbying the legislature, the judicial
branch, or a state agency.
37. A.
No person on the grounds of race, creed, color, national origin, age, sex,
marital status or disability, shall be excluded from participation in; be
denied the proceeds or benefits of; or be otherwise subjected to
discrimination in performance of this PROJECT AGREEMENT.
B. An entity or affiliate who has been placed on the discriminatory vendor list
may not submit a bid on a contract to provide goods or services to a
DEP Agreement No. F6004, Page 7 of 10
DEP 55-231 (01/05)
public entity, may not submit a bid on a contract with a public entity for the
construction or repair of a public building or public work, may not submit
bids on leases of real property to a public entity, may not award or
perform work as a contractor, supplier, subcontractor, or consultant under
contract with any public entity, and may not transact business with any
public entity. The Florida Department of Management Services is
responsible for maintaining the discriminatory vendor list and intends to
post the list on its website. Questions regarding the discriminatory vendor
list may be directed to the Florida Department of Management Services,
Office of Supplier Diversity at (850) 487-0915.
38. Each party hereto agrees that it shall be solely responsible for the wrongful acts
of its employees and agents. However, nothing contained herein shall constitute
a waiver by either party of its sovereign immunity or the provisions of section
768.28, Florida Statutes.
39. The employment of unauthorized aliens by any GRANTEE is considered a
violation of Section 27 4A( e) of the Immigration and Nationality Act. If the
GRANTEE knowingly employs unauthorized aliens, such violation shall be cause
for unilateral cancellation of this Agreement. The GRANTEE shall be
responsible for including this provision in all subcontracts issued as a result of
this Agreement.
40. A person or affiliate who has been placed on the convicted vendor list following a
conviction for a public entity crime may not perform work as a grantee,
contractor, supplier, subcontractor, or consultant under a contract with any public
entity, and may not transact business with any public entity in excess of the
threshold amount provided in s. 287.017, Florida Statutes, for Category Two, for
a period of 36 months from the date of being placed on the convicted vendor list.
41 . The PROJECT AGREEMENT has been delivered in the State of Florida and
shall be construed in accordance with the laws of Florida. Wherever possible,
each provision of this PROJECT AGREEMENT shall be interpreted in such
manner as to be effective and valid under applicable Florida law, but if any
provision of this PROJECT AGREEMENT shall be prohibited or invalid under
applicable Florida law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this PROJECT AGREEMENT. Any action hereon or
in connection herewith shall be brought in Leon County, Florida unless prohibited
by applicable law.
42. No delay or failure to exercise any right, power or remedy accruing to either party
upon breach or default by either party under this PROJECT AGREEMENT shall
impair any such right, power or remedy of either party; nor shall such delay or
failure be construed as a waiver of any such breach or default, or any similar
breach or default thereafter.
DEP Agreement No. F6004, Page 8 of 10
DEP 55-231 (01/05)
43. This PROJECT AGREEMENT is not intended nor shall it be construed as
granting any rights, privileges or interest to any third party without mutual written
agreement of the parties hereto.
44. This PROJECT AGREEMENT is an exclusive contract and may not be assigned
in whole or in part without the written approval of the DEPARTMENT.
45. This PROJECT AGREEMENT represents the entire agreement of the parties.
Any alterations, variations, changes, modifications or waivers of provisions of this
PROJECT AGREEMENT shall only be valid when they have been reduced to
writing, duly executed by each of the parties hereto, and attached to the original
of this PROJECT AGREEMENT.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
DEP Agreement No. F6004, Page 9 of 10
DEP 55-231 (01/05)
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed on the day and year last written below.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
CITY OF BOYNTON BEACH
By: f)'J ..:::0) <; \C:ll'~
Division Director (or Designee)
Division of Recreation and Parks
By:
Printed Name:
Title:
-LJo
I\J:J(D D-
~, I eo
Date
Date
Address:
Office of Information and Recreation
Services
Division of Recreation and Parks
3900 Commonwealth Boulevard
Mail Station 585
Tallahassee, Florida 32399-3000
Address:
100 E. Boynton Beach Boulevard
Boynton Beach, FL 33435
tl ,tJ~,~~
DEP Grant Manager
Grantee Attorney
Approved as to Form and Legality:
This form has been pre-approved as to
form and legality by Suzanne Brantley,
Assistant General Counsel, on
January 24, 2005 for use for one year.
List of attachments/exhibits included as part of this Agreement:
Specify
Type
Letter/
Number Description (include number of pages)
Attachment
1 Special Audit Requirements (5 PaQes)
DEP Agreement No. F6004, Page 10 of 10
DEP 55-231 (01/05)
A TT ACHMENT 1
SPECIAL AUDIT REQUIREMENTS
The administration of resources awarded by the Department of Environmental Protection (which may he referred to
as the "Department", "DEP", "FDEP" or "Grantor", or other name in the contract/agreement) to the recipient
(which may be referred to as the "Contractor", Grantee" or other name in the contract/agreement) may be subject
to audits and/or monitoring by the Department of Environmental Protection, as described in this attachment.
MONITORING
In addition to reviews of audits conducted in accordance with OMB Circular A-133 and Section 2]5.97, F.S., as
revised (see "AUDITS" below), monitoring procedures may include, but not be limited to, on-site visits by
Department staff, limited scope audits as defined by OMB Circular A-]33, as revised, and/or other procedures. By
entering into this Agreement, the recipient agrees to comply and cooperate with any monitoring procedures/processes
deemed appropriate by the Department of Environmental Protection. In the event the Department of Environmental
Protection determines that a limited scope audit of the recipient is appropriate, the recipient agrees to comply with
any additional instructions provided by the Department to the recipient regarding such audit. The recipient further
agrees to comply and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the
Chief Financial Officer or Auditor General.
AUDITS
PART I: FEDERALLY FUNDED
This part is applicable if the recipient is a State or local government or a non-profit organization as dermed in OMB
Circular A-133, as revised.
l. In the event that the recipient expends $500,000 or more in Federal awards in its fiscal year, the recipient
must have a single or program-specific audit conducted in accordance with the provisions of OMB Circular
A-133, as revised. EXHIBIT I to this Agreement indicates Federal funds awarded through the Department
of Environmental Protection by this Agreement. In determining the Federal awards expended in its fiscal
year, the recipient shall consider all sources of Federal awards, including Federal resources received from
the Department of Environmental Protection. The determination of amounts of Federal awards expended
should be in accordance with the guidelines established by OMB Circular A-133, as revised. An audit of the
recipient conducted by the Auditor General in accordance with the provisions ofOMB Circular A-]33, as
revised, will meet the requirements of this part.
2. In connection with the audit requirements addressed in Part I, paragraph I., the recipient shall fulfill the
requirements relative to auditee responsibilities as provided in Subpart C of OMB Circular A-133, as
revised.
3. If the recipient expends less than $500,000 in Federal awards in its fiscal year, an audit conducted in
accordance with the provisions of OMB Circular A-133, as revised, is not required. In the event that the
recipient expends less than $500,000 in Federal awards in its fiscal year and elects to have an audit
conducted in accordance with the provisions of OMB Circular A-133, as revised, the cost of the audit must
be paid from non-Federal resources (i.e., the cost of such an audit must be paid from recipient resources
obtained from other than Federal entities).
4. The recipient may access information regarding the Catalog of Federal Domestic Assistance (CFDA) via
the internet at http://l2.46.245.173/cfdalcfda.html.
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DEP Agreement No.F6004, Attachment 1, Page 1 of 5
DEP 55-215 (09/04)
PART II: STATE FUNDED
This part is applicable ifthe recipient is a nonstate entity as defined by Section 215 .97(2)(l), Florida Statutes.
1. In the event that the recipient expends a total amount of State fmancial assistance equal to or in excess of
$300,000 in any fiscal year of such recipient ($500,000 for fiscal years ending on or after September 30,
2004), the recipient must have a State single or project-specific audit for such fiscal year in accordance with
Section 215.97, Florida Statutes; applicable rules of the Executive Office of the Governor and the Chief
Financial Officer; and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit
organizations), Rules of the Auditor General. EXHIBIT 1 to this Agreement indicates State financial
assistance awarded through the Department of Environmental Protection by this Agreement. In determining
the State financial assistance expended in its fiscal year, the recipient shall consider all sources of State
financial assistance, including State fmancial assistance received from the Department of Environmental
Protection, other state agencies, and other nonstate entities. State fmancial assistance does not include
Federal direct or pass-through awards and resources received by a nons tate entity for Federal program
matching requirements.
2. In connection with the audit requirements addressed in Part II, paragraph 1, the recipient shall ensure that
the audit complies with the requirements of Section 215.97(7), Florida Statutes. This includes submission of
a fmancial reporting package as defmed by Section 215.97(2)( d), Florida Statutes, and Chapters 10.550
(local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor
General.
3. If the recipient expends less than $300,000 in State fmancial assistance in its fiscal year ($500,000 for fiscal
years ending on or after September 30, 2004), an audit conducted in accordance with the provisions of
Section 215.97, Florida Statutes, is not required. In the event that the recipient expends less than $300,000
in State financial assistance in its fiscal year ($500,000 for fiscal years ending on or after September 30,
2004) and elects to have an audit conducted in accordance with the provisions of Section 215.97, Florida
Statutes, the cost of the audit must be paid from the non-State entity's resources (i.e., the cost of such an
audit must be paid from the recipient's resources obtained from other than State entities).
4. For infonnation regarding the Florida Catalog of State Financial Assistance (CSFA), a recipient should
access the Florida Single Audit Act website located at http://state.fl.us/fsaa/catalog or the Governor's
Office of Policy . and Budget website located at
http://www.myflorida.comlmvtlorida/governmentlcontacts/opbOffice.html for assistance. In addition to the
above websites, the following websites may be accessed for information: Legislature's Website
http://www.leg.state.flus/, Governor's Website http://www.mvtlorida.coml, Department of Financial
Services' Website http://www.dbf.state.fl.us/and the Auditor General's Website
http://www.state.fl.us/audgen.
PART III: OTHER AUDIT REQUIREMENTS
(NOTE: This part would be used to specifY any additional audit requirements imposed by the State awarding entity
that are solely a matter of that State awarding entity's policy (i.e., the audit is not required by Federal or State laws
and is not in conflict with other Federal or State audit requirements). Pursuant to Section 215.97(7)(m), Florida
Statutes, State agencies may conduct or arrange for audits of State financial assistance that are in addition to audits
conducted in accordance with Section 2J 5.97, Florida Statutes. In such an event, the State awarding agency must
arrange for funding the full cost of such additional audits.}
PART IV: REPORT SUBMISSION
I. Copies of reporting packages for audits conducted in accordance with OMB Circular A-133, as revised, and
required by PART I of this Agreement shall be submitted, when required by Section .320 (d), OMB
Circular A-l33, as revised, by or on behalf of the recipient directly to each oftbe following:
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DEP Agreement No. F6004, Attachment 1, Page 2 of 5
DEP 55-215 (09/04)
A. The Department of Environmental Protection at the following address:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General, MS 40
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
B. The Federal Audit Clearinghouse designated in OMB Circular A-133, as revised (the number of
copies required by Sections .320 (d)(l) and (2), OMB Circular A-133, as revised, should be
submitted to the Federal Audit Clearinghouse), at the following address:
Federal Audit Clearinghouse
Bureau of the Census
1201 East 10th Street
Jeffersonville, IN 47132
C. Other Federal agencies and pass-through entities in accordance with Sections .320 (e) and (f),
OMB Circular A-133, as revised.
2. Pursuant to Section .320(f), OMB Circular A-133, as revised, the recipient shall submit a copy of the
reporting package described in Section .320(c), OMB Circular A-133, as revised, and any management
letters issued by the auditor, to the Department of Environmental Protection the following address:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General, MS 40
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
3. Copies offmancial reporting packages required by PART II of this Agreement shall be submitted by or on
behalf of the recipient directly to each of the following:
A. The Department of Environmental Protection at the following address:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General, MS 40
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
B. The Auditor General's Office at the following address:
State of Florida Auditor General
Room 401, Claude Pepper Building
III West Madison Street
Tallahassee, Florida 32399-1450
4. Copies of reports or management letters required by PART III of this Agreement shall be submitted by or
on behalf of the recipient directly to the Department of Environmental Protection at the following address:
Audit Director
Florida Department of Environmental Protection
Office of the Inspector General, MS 40
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
DEP Agreement No. F6004, Attachment 1, Page 3 of 5
DEP 55-215 (09/04)
5. Any reports, management letters, or other information required to be submitted to the Department of
Environmental Protection pursuant to this Agreement shall be submitted timely in accordance with OMB
Circular A-133, Florida Statutes, or Chapters 10.550 (local govenunental entities) or 10.650 (nonprofit and
for-profit organizations), Rules of the Auditor General, as applicable.
6. Recipients, when submitting financial reporting packages to the Department of Environmental Protection
for audits done in accordance with OMB Circular A-133, or Chapters 10.550 (local govenunental entities)
or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General, should indicate the date
that the reporting package was delivered to the recipient in correspondence accompanying the reporting
package.
PART V: RECORD RETENTION
The recipient shall retain sufficient records demonstrating its compliance with the terms of this Agreement for a
period of 5 years from the date the audit report is issued, and shall allow the Department of Environmental
Protection, or its designee, Chief Financial Officer, or Auditor General access to such records upon request. The
recipient shall ensure that audit working papers are made available to the Department of Environmental Protection,
or its designee, Chief Financial Officer, or Auditor General upon request for a period of 3 years from the date the
audit report is issued, unless extended in writing by the Department of Environmental Protection.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
DEP Agreement No. F6004, Attachment 1, Page 4 of 5
DEP 55.215 (09/04)
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XII. - LEGAL
ITEM C.3.
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned
Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office
[g] August 2, 2005 July 18, 2005 (Noon.) 0 October 5, 2005 September 19,2005 (Noon)
0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005 October 3, 2005 (Noon)
0 September 6, 2005 August 15,2005 (Noon) 0 November 1, 2005 October 17,2005 (Noon)
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15,2005 October 31,2005 (Noon)
0 Administrative 0 Development Plans
NATURE OF 0 Consent Agenda 0 New Business
AGENDA ITEM 0 Public Hearing [g] Legal
0 Bids 0 Unfinished Business
0 Announcement 0 Presentation
0 City Manager's Report
RECOMMENDATION: Approve a series resolution providing for the issuance of not exceeding $16,000,000
aggregate principal amount of Utility System Revenue Refunding Bonds, Series 2005; providing a method for fixing
and determining the principal amount, interest rates, maturity dates, redemption provisions and other details of said
bonds.
EXPLANATION: RBC Dain Rauscher, the City's Financial Advisor, has recommended that the Series 1996 Utility
System Revenue Bonds be refinanced because interest rates are favorable and would result in debt service savings to
the City. This Resolution authorizes the City Manager to take all steps necessary to complete this refinancing
transaction.
FISCAL IMPACT: It is estimated that the refinancing of the Series 1996 Utility Revenue Bonds will result in debt
service savings to the City of approximately $600,000 due to lower interest rates on the new bonds.
ALTERNATIVES: Do not refinance the Series 1996 Utility Revenue Bonds.
.&~:L~mre
Financial Services
Department Name
S:\BULLETJN\FORMS\AGENDA ITEM REQUEST FORM.DOC
RESOLUTION NO. R05-_
A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE OF
NOT EXCEEDING $16,000,000 AGGREGATE PRINCIPAL
AMOUNT OF UTILITY SYSTEM REVENUE REFUNDING
BONDS, SERIES 2005; PROVIDING A METHOD FOR FIXING
AND DETERMINING THE PRINCIPAL AMOUNT, INTEREST
RATES, MATURITY DATES, REDEMPTION PROVISIONS AND
OTHER DETAILS OF SAID BONDS; AUTHORIZING THE
AWARD THE SALE OF THE BONDS TO BEAR, STEARNS &
CO. INe.; FINDING NECESSITY FORA NEGOTIATED SALE OF
SUCH BONDS; PROVIDING A METHOD FOR APPROVING
THE FORM OF AND AUTHORIZING THE USE OF A
PRELIMINARY OFFICIAL STATEMENT AND AUTHORIZING
THE PREPARATION, APPROVAL AND EXECUTION OF A
FINAL OFFICIAL STATEMENT IN CONNECTION WITH SUCH
BONDS; AUTHORIZING THE EXECUTION OF A BOND
PURCHASE CONTRACT AND A BOND REGISTRAR
AGREEMENT; AUTHORIZING THE REDEMPTION OF A
PORTION OF THE CITY'S UTILITY SYSTEM REVENUE
BONDS, SERIES 1996; PROVIDING A METHOD FOR
APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION OF AN ESCROW DEPOSIT AGREEMENT;
PROVIDING FOR CERTAIN CONTINUING DISCLOSURE
OBLIGATIONS OF THE CITY; PROVIDING FOR THE
APPLICATION OF THE PROCEEDS OF SAID BONDS AND
CERTAIN OTHER MONEYS; AUTHORIZING THE PURCHASE
OF A BOND INSURANCE POLICY AND RESERVE SURETY
BOND AND MAKING CERTAIN COVENANTS IN
CONNECTION THEREWITH; DESIGNATING THE BOND
REGISTRAR FOR SAID BONDS; CONTAINING CERTAIN
AUTHORIZATIONS AND OTHER PROVISIONS; AND
PROVIDING AN EFFECTNE DATE.
WHEREAS, the City of Boynton Beach, Florida (the "City") is authorized by the
Constitution and laws of the State of Florida, including the City's Charter and Chapter 166, Florida
Statutes, to issue revenue bonds ofthe City payable from Pledged Revenues (as defined in the Bond
Resolution hereinafter defined mentioned) for certain purposes; and
WHEREAS, pursuantto Resolution No. R 92-96 adopted by the City Commission ofthe City
(the "City Commission") on June 16, 1992, as amended (the "Bond Resolution") obligations of the
City may be issued and may be secured by a lien upon and pledge of certain "Pledged Revenues" as
defined in and to the extent set forth in the Bond Resolution; and
WHEREAS, the City desires to issue Bonds (the "Series 2005 Bonds") under the Bond
Resolution to provide funds, together with available funds of the City for the redemption prior to
maturity of the City's Utility System Revenue Bonds, Series 1996 (the" 1996 Bonds") maturing on
and after November 1, 2007 (the "Refunded Bonds") and to pay certain costs of issuing such Series
2005 Bonds; and
WHEREAS, prior to the issuance of the Series 2005 Bonds the conditions set forth in Section
210 of the Bond Resolution shall be satisfied; and
WHEREAS, the City Commission has determined that the sale of such Series 2005 Bonds
through negotiation with the Original Purchaser (hereinafter defined) is in the best interest of the
City; and
WHEREAS, the City Commission has received from Bear, Steams & Co. Inc. (the "Original
Purchaser") a form of a Bond Purchase Contract by and between the City and the Original Purchaser
whereby the Original Purchaser would agree to purchase the Series 2005 Bonds, and the City
Commission has determined that the authorization of the acceptance of such proposal pursuant to
the terms set forth in Section 6 hereof is in the best interests of the City and will effect the purposes
set forth in the Bond Resolution; and
WHEREAS, it is necessary and desirable to approve the form and use of a Preliminary
Official Statement and to approve the preparation and execution of a Final Official Statement in
connection with the issuance of such Series 2005 Bonds; and
WHEREAS, it is necessary and desirable to specify a method for determining the dates, the
interest rates, maturity dates and redemption provisions for such Series 2005 Bonds and to appoint
The Bank of New York Trust Company, N.A. as Bond Registrar for such Series 2005 Bonds; and
WHEREAS, the City has received a commitment from Ambac Assurance Corporation to
issue its financial guaranty insurance policy insuring the payment of the principal of and interest on
the Series 2005 Bonds and it is necessary and desirable to accept such commitment; and
WHEREAS, the City has received a commitment from Ambac Assurance Corporation to
issue its surety bond to satisfy the Reserve Account Requirement for the Series 2005 Bonds and it
is necessary and desirable to accept such commitment; and
WHEREAS, the City desires to approve the form and use of an escrow deposit agreement
to provide for payment of the Refunded Bonds and to appoint The Bank of New York Trust
Company, N.A. as escrow agent thereunder;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF BOYNTON BEACH, FLORIDA:
Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the
provisions of the Charter of the City of Boynton Beach, Florida, the Constitution of the State of
Florida, including, but not limited to, Article VITI, Section 2 thereof, and other applicable provisions
of law, including Chapter 166, Florida Statutes, and the Bond Resolution.
2
Section 2. Definitions. Terms used herein in capitalized form and not otherwise defined
herein shall have the meanings ascribed thereto in the Bond Resolution. The following terms, when
used in this Resolution or in the Bond Resolution, as amended hereby, shall have the following
meamngs:
"Authorized Representative" means the Mayor or Vice-Mayor, and in the absence or inability
to act of the Mayor or Vice-Mayor, the City Manager or any other City Commissioner (the absence
or inability to act of the Mayor of Vice-Mayor as to any particular action being conclusively
established by the taking of such action by the City Manager or other City Commissioner).
"Business Day" shall mean any day other than a Saturday, Sunday or other day on which the
Bond Registrar is lawfully and temporarily closed or a day on which the New York Stock Exchange
is lawfully and temporarily closed.
"Closing Date" shall mean the date on which the Series 2005 Bonds are issued and delivered
by the City and paid for by the Original Purchaser.
"Interest Payment Date" shall mean May 1 and November 1 of each year, commencing
November 1,2005.
Section 3. Authorization of Bonds. Bonds are hereby authorized to be issued pursuant to
this Resolution and Section 210 of the Bond Resolution in the aggregate principal amount of not to
exceed $16,000,000. The Bonds hereby authorized shall be known as "Utility System Revenue
Refunding Bonds, Series 2005" (the "Series 2005 Bonds"). Prior to the issuance of the Series 2005
Bonds the conditions of Section 210 of the Bond Resolution shall be satisfied. The Series 2005
Bonds are being issued for the principal purpose of providing funds, together with funds held in the
Reserve Account and Bond Service Subaccounts under the Bond Resolution in respect of the
Refunded Bonds, to defease and to redeem the Refunded Bonds prior to maturity. Proceeds of the
Series 2005 Bonds may be used to pay costs associated with issuing the Series 2005 Bonds and
defeasing the Refunded Bonds. The Series 2005 Bonds may not be issued unless the issuance of the
Series 2005 Bonds and the refunding of the Refunded Bonds produces net present value debt service
savings for the City, calculated as of the date of delivery of the Series 2005 Bonds using the arbitrage
yield on the Series 2005 Bonds as the discount rate, of at least the greater of (i) $300,000.00 and (ii)
3% of the principal amount of the Refunded Bonds.
Section 4. Terms of the Series 2005 Bonds.
(a) Form of Bonds. The Series 2005 Bonds shall be substantially in the form of the
Bonds set forth in the Bond Resolution, with such changes as may be necessary or appropriate to
conform to the provisions of this Resolution and the terms of the Series 2005 Bonds set forth herein
as may be approved by the officers of the City executing the Series 2005 Bonds, such execution to
be conclusive evidence of such approval.
(b) Amounts. Maturities. Redemption Provisions and Interest Rates. The Series 2005
Bonds will consist of such aggregate principal amount of Current Interest Serial Bonds and such
3
aggregate principal amount of Current Interest Term Bonds as shall be determined by the Authorized
Representative as hereinafter provided.
The Series 2005 Bonds shall be issued in the denomination of$5,000 and integral multiples
thereof, shall be issued in registered form, shall be numbered from R -1 upwards, shall be dated their
date of initial issuance and delivery, and shall bear interest from such date, payable on the Interest
Payments Dates. The Series 2005 Bonds shall be issued on such date, in the aggregate principal
amount, not in excess of $16,000,000, shall bear interest at the rates per annum, computed on the
basis of a 360-dayyear consisting oftwelve 3 O-day months, not in excess ofthe maximum legal rate,
and shall mature on November 1 of the years and shall have such redemption provisions, all as set
forth in a certificate executed by the Authorized Representative at or before the issuance of the Series
2005 Bonds, provided however that the final maturity of the Series 2005 Bonds shall not be after
November 1,2020.
Principal of the Series 2005 Bonds shall be payable only upon presentation and surrender of
such Bonds at the principal office of the Bond Registrar. Interest on the Series 2005 Bonds shall be
paid by check or draft, or at the option of any registered owner of not less than $1,000,000 in
principal amount of the Series 2005 Bonds, exercised in writing delivered to the Bond Registrar prior
to the Regular Record Date or Special Record Date, by wire transfer to an account in the United
States designated by such registered owner, mailed or wired by the Bond Registrar to the registered
owners of the Series 2005 Bonds as shown on the registration books kept by the Bond Registrar on
the Regular Record Date or the Special Record Date.
(c) Reserve Account Deposit Requirement. The Reserve Account Requirement for the
Series 2005 Bonds shall be an amount equal to the lesser of (i) 10% of the aggregate stated principal
amount of the Series 2005 Bonds Outstanding, (ii) the maximum amount of principal and interest
scheduled to become due on the Outstanding Series 2005 Bonds in the current or any succeeding
Bond Year, or (iii) 125% of the average annual debt service on the Series 2005 Bonds (calculated
on a Bond Year basis at the time of issuance only). If the Series 2005 Bonds have more than a de-
minimis amount of original issue discount or premium (as defmed in Treas. Reg. 91.148-1 (b)), then
the issue price (as defined in said regulation) of the Series 2005 Bonds (net of pre-issuance accrued
interest) shall be used to measure the aforesaid 10% limitation in lieu of the stated principal amount
of the Series 2005 Bonds. The Series 2005 Reserve Subaccount, which is hereby ordered created,
shall be funded in an amount equal to the Reserve Account Requirement for the Series 2005 Bonds
at the time of initial issuance and delivery of the Series 2005 Bonds, and in the event any deficiency
is created in the Series 2005 Reserve Subaccount, the Reserve Account Deposit Requirement for
such Series shall be, in each month, an amount equal to at least one twenty-fourth (1/24) of the
amount of such deficiency.
Section 5. Amendments to Bond Resolution. The amendments to the Bond Resolution set
forth in this Section 5 shall be effective upon, and only upon the issuance of the Series 2005 Bonds.
(a) Section 101 of the Bond Resolution is amended by the addition thereto of two new
definitions as follows:
4
"2005 Bond Insurance Policy" shall mean the financial guaranty insurance policy
issued by the 2005 Bond Insurer that guarantees payment of principal of and interest on the
Series 2005 Bonds.
"2005 Bond Insurer" shall mean Ambac Assurance Corporation, a Wisconsin-
domiciled insurance corporation, or any successor thereto.
(b) A new Section 719 is added to the Bond Resolution to provide as follows:
"Section 719. Provisions concerning 2005 Bond Insurer. For so long as the 2005
Bond Insurance Policy shall be outstanding, notwithstanding any provision to the
contrary contained herein, the following provisions shall apply with respect to the
Series 2005 Bonds:
(A) "Ambac Assurance" shall mean Ambac Assurance
Corporation, a Wisconsin-domiciled stock insurance company.
(B) "Municipal Bond Insurance Policy" shall mean the municipal
bond insurance policy issued by Ambac Assurance insuring the
payment when due of the principal of and interest on the Series 2005
Bonds as provided therein.
(C) Any provision of this Resolution expressly recognizing or
granting rights in or to Ambac Assurance may not be amended in any
manner which affects the rights of Ambac Assurance hereunder
without the prior written consent of Ambac Assurance. Ambac
Assurance reserves the right to charge the City a fee for any consent
or amendment to this Resolution while the Municipal Bond Insurance
Policy is outstanding.
(D) Unless otherwise provided in this Section, Ambac Assurance's
consent shall be required in addition to Bondholder consent, when
required, for the following purposes: (i) execution and delivery of
any amendment or change to this Resolution, (ii) removal of the Bond
Registrar and selection and appointment of any successors, and (iii)
initiation or approval of any action not described in (i) or (ii) above
which requires Bondholder consent.
(E) Any reorganization or liquidation plan with respect to the City
must be acceptable to Ambac Assurance. In the event of any
reorganization or liquidation, Ambac Assurance shall have the right
to vote on behalf of all Bondholders who hold Ambac Assurance-
insured Series 2005 Bonds absent a default by Ambac Assurance
under the Municipal Bond Insurance Policy insuring the Series 2005
Bonds.
5
(F) Anything in this Resolution to the contrary notwithstanding,
upon the occurrence and continuance of an Event of Default, Ambac
Assurance shall be entitled to control and direct the enforcement of
all rights and remedies granted to the Bondholders under this
Resolution, including, without limitation: (i) the right to accelerate
the principal of the Series 2005 Bonds as described in this Resolution
and (ii) the right to annul any declaration of acceleration, and Ambac
Assurance shall be entitled to approve all waivers of events of default.
(G) Subject to Section 802 hereof, upon the occurrence of an
Event of Default, Ambac Assurance may, by written notice to City,
declare the principal of the Series 2005 Bonds to be immediately due
and payable.
(H) While the Municipal Bond Insurance Policy is in effect, the
City shall furnish, at the City's expense, to Ambac Assurance, to the
attention of the Surveillance Department:
(a) as soon as practicable after the filing thereof, a copy
of any financial statement of the City and a copy of any audit and
annual report of the City;
(b) a copy of any notice to be given to the registered
owners of the Series 2005 Bonds, including, without limitation,
notice of any redemption of or defeasance of Series 2005 Bonds, and
any certificate rendered pursuant to this Resolution relating to the
security for the Series 2005 Bonds; and
(c) such additional information as it may reasonably request.
(1) The City shall notifY Ambac Assurance, to the attention of the
General Counsel's office, of any failure of the City to provide any
notices, certificates, or other documentation required to be provided
by the City hereby.
(J) The City will permit Ambac Assurance to discuss the affairs,
finances and accounts of the City or any information Ambac
Assurance may reasonably request regarding the security for the
Series 2005 Bonds with appropriate officers of the City. The City
will permit Ambac Assurance to have access to and to make copies
of all books and records relating to the Series 2005 Bonds at any
reasonable time.
(K) Ambac Assurance shall have the right to direct an accounting
at the City's expense, and the City's failure to comply with such
direction within thirty (30) days after receipt of written notice of the
6
direction from Ambac Assurance shall be deemed a default
hereunder; provided, however, that if compliance cannot occur within
such period, then such period will be extended so long as compliance
is begun within such period and diligently pursued, but only if such
extension would not materially adversely affect the interests of any
registered owner of the Series 2005 Bonds.
(L) Notwithstanding any other provision of this Resolution, the
Bond Registrar or the City shall immediately notify Ambac
Assurance, to the attention of the General Counsel's office, if at any
time there are insufficient moneys to make any payments of principal
and/or interest on the Series 2005 Bonds as required, and immediately
upon the occurrence of any Event of Default hereunder.
(M) To the extent that the City enters into a continuing disclosure
agreement with respect to the Series 2005 Bonds, Ambac Assurance
shall be included as a party to be notified.
(N) Notwithstanding anything herein to the contrary, in the event
that the principal and/or interest due on the Series 2005 Bonds shall
be paid by Ambac Assurance pursuant to the Municipal Bond
Insurance Policy, the Series 2005 Bonds shall remain Outstanding for
all purposes, shall not be defeased or otherwise satisfied and shall not
be considered paid by the City, and the assignment and pledge of the
amounts pledged to repayment of the Series 2005 Bonds and all
covenants, agreements and other obligations of the City to the
Bondholders shall continue to exist and shall run to the benefit of
Ambac Assurance, and Ambac Assurance shall be subrogated to the
rights of such Bondholders.
(0) Ambac Assurance will allow only the following obligations
to be used for defeasance purposes: (1) cash fully insured by the
Federal Deposit Insurance Corporation or otherwise collateralized
with obligations described in (2) below, or (2) direct obligations of
(including obligations issued or held in book entry form on the books
of) the Department of the Treasury of the United States of America.
(P) Nothing in this Resolution expressed or implied is intended
or shall be construed to confer upon, or to give to, any person or
entity, other than the City, Ambac Assurance, the Bond Registrar and
the registered owners of the Series 2005 Bonds, any right, remedy or
claim under or by reason of this Resolution or any covenant,
condition or stipulation hereof, and all covenants, stipulations,
promises and agreements in this Resolution contained by or on behalf
of the City shall be for the sole and exclusive benefit of the City,
7
Ambac Assurance, the Bond Registrar and the registered owners of
the Series 2005 Bonds.
(Q) To the extent that this Resolution confers upon or gives or
grants to Ambac Assurance any right, remedy or claim under or by
reason of this Resolution, Ambac Assurance is hereby explicitly
recognized as being a third-party beneficiary hereunder and may
enforce any such right, remedy or claim conferred, given or granted
hereunder.
(R)(i) Upon the written request of Ambac Assurance, the City shall
take steps to remove any Bond Registrar which shall have violated
any provision hereof; (ii) the City will provide Ambac Assurance
written notice if any Bond Registrar shall resign; (iii) every Bond
Registrar appointed under this Resolution shall be a financial
institution in good standing located in or incorporated under the laws
of the State, duly authorized to exercise trust powers and subject to
examination by federal or State authorities, having a reported capital
and surplus of not less than $75,000,000 and not objected to by
Ambac Assurance; (iv) any successor Bond Registrar shall not be
appointed unless Ambac Assurance approves such successor in
writing; (v) notwithstanding any other provisions of this Resolution
in determining whether the rights of the bondholders will be
adversely affected by any action taken pursuant to the terms and
provisions of this Resolution, the Bond Registrar shall consider the
affect on the Bondholders as if there were not municipal bond
insurance policy; and (vi) notwithstanding any other provision of this
Resolution, no removal, resignation or termination of the Bond
Registrar shall take effect until a successor, acceptable to Ambac
Assurance shall be appointed
(S) "Authorized Investments" shall mean the investments
described in the Resolution, but only to the extent also described
below and only to the extent the same shall be pennitted from time
to time by applicable laws of the State:
(a) direct obligations of (including obligations issued or
held in book entry form on the books of) the Department of the
Treasury of the United States of America, including Federal
Securities;
(b) obligations of any of the following federal agencies
which obligations represent the full faith and credit of the United
States of America: Export-Import Bank; Rural Economic
Community Development Administration; U.S. Maritime
Administration; Small Business Administration; U.S. Department of
8
Housing & Urban Development; Federal Housing Administration;
and Federal Financing Bank;
(c) direct obligations of any of the following federal
agencies which obligations are not fully guaranteed by the full faith
and credit of the United States of America: senior debt obligations
rated "AAA" by S&P and "Aaa" by Moody's issued by the Federal
National Mortgage Association or the Fannie Mae; obligations of the
Resolution Funding Corporation; senior debt obligations of the
Federal Home Loan Bank System; senior debt obligations of other
government sponsored agencies approved by Ambac Assurance;
(d) U.S. Dollar denominated deposit accounts, federal
funds and banker's acceptances with domestic commercial banks
which have a rating on their short term certificates of deposit on the
date of purchase of , A-I' or 'A-l+' by S&P and 'P-l' by Moody's and
maturing no more than 360 days after the date of purchase (ratings on
holding companies are not considered as the rating of the issuing
bank);
(e) commercial paper which is rated at the time of
purchase in the single highest classification, "A-1+" by S&P and
"P-I" by Moody's and which matures not more than 270 days after the
date of purchase;
(f) money market funds rated 'AAAm' or 'Aaam-G' or
better by S&P;
(g) units of participation in the Local Government Surplus
Funds Trust Fund established pursuant to Part IV, Chapter 218,
Florida Statutes, or any similar common trust fund which is
established pursuant to State law as a legal depository of public
moneys;
(h) shares of beneficial interest in the Florida Municipal
Investment Trust created pursuant to Section 163.01, Florida Statutes;
and
(i) other forms of investments approved in writing by
Ambac Assurance with notice to S&P.
(T) The value of all investments shall be determined when
required as follows: (i) as to investments not described in (ii) and
(iii) below, at the fair market value based on accepted industry
standrads and from accepted industry providers; (ii) as to certificates
of deposit and bankers acceptances, the face amount thereof, plus
9
accrued interest; and (iii) as to any investment not specified above,
the value thereof established by prior agreement between the City and
Ambac Assurance.
(0) As long as the Municipal Bond Insurance Policy shall be in
full force and effect, the City and any Bond Registrar agree to comply
with the following provisions:
(a) At least one (1) day prior to all Interest Payment Dates
the City or Bond Registrar will determine whether there will be
sufficient funds in the funds and accounts established pursuant to the
Resolution to pay the principal of or interest on the Series 2005
Bonds on such Interest Payment Date. If the City or Bond Registrar
determines that there will be insufficient funds in such funds or
accounts, the City or Bond Registrar shall so notifY Ambac
Assurance. Such notice shall specify the amount of the anticipated
deficiency, the Series 2005 Bonds to which such deficiency is
applicable and whether such Series 2005 Bonds will be deficient as
to principal or interest, or both. If the City or Bond Registrar has not
so notified Ambac Assurance at least one (1) day prior to an Interest
Payment Date, Ambac Assurance will make payments of principal or
interest due on the Series 2005 Bonds on or before the first (1st) day
next following the date on which Ambac Assurance shall have
received notice of nonpayment from the City or Bond Registrar.
(b) The City or Bond Registrar shall, after giving notice
to Ambac Assurance as provided in (a) above, make available to
Ambac Assurance and, at Ambac Assurance's direction, to The Bank
of New York, in New York, New York, as insurance trustee for
Ambac Assurance, or any successor insurance trustee (the "Insurance
Trustee"), the registration books of the City maintained by the
Registrar and all records relating to the funds and accounts
maintained under this Resolution.
(c) The City or Bond Registrar shall provide Ambac
Assurance and the Insurance Trustee with a list of registered owners
of Series 2005 Bonds entitled to receive principal or interest
payments from Ambac Assurance under the terms of the MWlicipal
Bond Insurance Policy, and shall make arrangements with the
Insurance Trustee (i) to mail checks or drafts to the registered owners
of Series 2005 Bonds entitled to receive full or partial interest
payments from Ambac Assurance and (ii) to pay principal upon
Series 2005 Bonds surrendered to the Insurance Trustee by the
owners of Series 2005 Bonds entitled to receive full or partial
principal payments from Ambac Assurance.
10
(d) The City or Bond Registrar shall at the time it provides
notice to Ambac Assurance pursuant to (a) above, notify owners of
Series 2005 Bonds entitled to receive the payment of principal or
interest thereon from Ambac Assurance (i) as to the fact of such
entitlement, (ii) that Ambac Assurance will remit to them all or a part
of the interest payments next coming due upon proof of owner
entitlement to interest payments and delivery to the Insurance Trustee,
in form satisfactory to the Insurance Trustee, of an appropriate
assignment of the Owner's right to payment, (iii) that should they be
entitled to receive full payment of principal from Ambac's Assurance,
they must surrender their Series 2005 Bonds (along with an
appropriate instrument of assignment in form satisfactory to the
Insurance Trustee to permit ownership of such Series 2005 Bonds to
be registered in the name of Ambac Assurance) for payment to the
Insurance Trustee, and not the City or Bond Registrar, and (iv) that
should they be entitled to receive partial payment of principal from
Ambac Assurance, they must surrender their Series 2005 Bonds for
payment thereon first to the Bond Registrar who shall note on such
Series 2005 Bonds the portion of the principal paid by the Bond
Registrar and then, along with an appropriate instrument of
assignment in form satisfactory to the Insurance Trustee, to the
Insurance Trustee, which will then pay the unpaid portion of
principal.
(e) In the event that the City or Bond Registrar has notice
that any payment of principal of or interest on a Bond which has
become Due for Payment (as defined in the Municipal Bond
Insurance Policy) and which is made to an Owner by or on behalf of
the City has been deemed a preferential transfer and theretofore
recovered from its Owner pursuant to the United States Bankruptcy
Code by a trustee in bankruptcy in accordance with the final,
nonappealable order of a court having competent jurisdiction, the City
or Bond Registrar shall, at the time Ambac Assurance is notified
pursuant to (a) above, notify all Owners that in the event that any
Owner's payment is so recovered, such Owner will be entitled to
payment from Ambac Assurance to the extent of such recovery if
sufficient funds are not otherwise available, and the City or Bond
Registrar shall furnish to Ambac Assurance its records evidencing the
payments of principal of and interest on the Series 2005 Bonds which
have been made by the City or Bond Registrar and subsequently
recovered from Owners and the dates on which such payments were
made.
(f) In addition to those rights granted Ambac Assurance
under this Resolution, Ambac Assurance shall, to the extent it makes
payment of principal of or interest on Series 2005 Bonds, become
11
subrogated to the rights of the recipients of such payments in
accordance with the terms of the Municipal Bond Insurance Policy,
and to evidence such subrogation (i) in the case of subrogation as to
claims for past due interest, the Bond Registrar shall note Ambac
Assurance's rights as subrogee on the registration books of the City
maintained by the Bond Registrar upon receipt from Ambac
Assurance of proof of the payment of interest thereon to the Owners
of the Series 2005 Bonds, and (ii) in the case of subrogation as to
claims for past due principal, the Bond Registrar shall note Ambac
Assurance's rights as subrogee on the registration books of the City
maintained by the Bond Registrar, ifany, upon surrender of the Series
2005 Bonds by the Owners thereof together with proof of the
payment of principal thereof
(V) Unless the 2005 Bond Insurer shall be in default of its
obligations pursuant to the 2005 Bond Insurance Policy, the 2005
Bond Insurer shall be deemed to be the Holder of the 2005 Bonds for
purposes of consenting to amendments to the Bond Resolution, and
the provisions of Section 1002 in respect of such amendments, other
than the amendments described in clauses (a) through (e) of the first
sentence of Section 1002 of the Bond Resolution.
(c) A new Section 720 is added to the Bond Resolution to provide as follows:
"Section 720. Reserve Surety Provisions. Notwithstanding any provision to the contrary
contained herein, the following provisions shall apply while Ambac Assurance has issued a surety
bond in order to fund all or a portion of the Reserve Account Requirement for any Series 2005
Bonds:
(A) "Ambac Assurance" shall mean Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance company.
(B) "Surety Bond" shall mean the surety bond issued by Ambac
Assurance guaranteeing certain payments into the Series 2005
Reserve Subaccount with respect to the Series 2005 Bonds as
provided therein and subject to the limitations set forth therein.
(C) Any provision of this Resolution expressly recognizing or granting
rights in or to Ambac Assurance may not be amended in any manner
which affects the rights of Ambac Assurance hereunder without the
prior written consent of Ambac Assurance.
(D) Unless otherwise provided in this Section, Ambac Assurance's
consent shall be required in addition to Bondholder consent, when
required, for the following purposes: (i) execution and delivery of
12
any amendment or change to this Resolution, (ii) removal ofthe Bond
Registrar and (iii) initiation or approval of any action not described
in (i) or (ii) above which requires Bondholder consent.
(E) While the Surety Bond is in effect, the City shall furnish to Ambac
Assurance, to the attention of the Surveillance Department:
(a) as soon as practicable after the filing thereof, a copy
of any financial statement of the City and a copy of any audit and
annual report of the City;
(b) a copy of any notice to be given to the registered
owners of the Series 2005 Bonds, including, without limitation,
notice of any redemption of or defeasance of Series 2005 Bonds, and
any certificate rendered pursuant to this Resolution relating to the
security for the Series 2005 Bonds; and
(c) such additional information as it may reasonably request.
(F) The City will permit Ambac Assurance to discuss the affairs, finances
and accounts of the City or any information Ambac Assurance may
reasonably request regarding the security for the Series 2005 Bonds
with appropriate officers of the City. The City will permit Ambac
Assurance to have access to and to make copies of all books and
records relating to the Series 2005 Bonds at any reasonable time.
(G) Notwithstanding any other provision of this Resolution, the Bond
Registrar or the City shall immediately notifY Ambac Assurance, to
the attention of the General Counsel's office, if at any time there are
insufficient moneys to make any payments of principal and/or interest
on the Series 2005 Bonds as required, and immediately upon the
occurrence of any Event of Default hereunder.
(H) To the extent that the City enters into a continuing disclosure
agreement with respect to the Series 2005 Bonds, Ambac Assurance
shall be included as a party to be notified.
(I) As long as the Surety Bond shall be in full force and effect, the City
and any Bond Registrar agree to comply with the following
proVISIOns:
(i) In the event and to the extent that moneys on deposit in the Bond
Service Subaccount and/or Redemption Subaccount, plus all amounts
on deposit in and credited to the Series 2005 Reserve Subaccount in
excess of the amount of the Surety Bond, are insufficient to pay the
amount of the principal and interest coming due, then upon the later
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of (x) one (1) day after receipt by the General Counsel of Ambac
Assurance of a demand for payment in the form attached to the Surety
Bond as Attachment 1 (the "Demand for Payment"), duly executed by
the Bond Registrar certifying that payment due under this Resolution
has not been made to the Bond Registrar; or (y) the payment date of
Obligations as specified in the Demand for Payment presented by the
Bond Registrar to the General Counsel of Ambac Assurance, Ambac
Assurance will make a deposit of funds in an account with the Bond
Registrar or its successor, in New York, New York, sufficient for the
payment to the Bond Registrar of amounts which are then due to the
Bond Registrar under the Resolution (as specified in the Demand for
Payment) up to but not in excess of the Surety Bond Coverage, as
defined in the Surety Bond; provided, however, that in the event that
the amount on deposit in or credited to the Series 2005 Reserve
Subaccount of the Reserve Account, in addition to the amount
available under the Surety Bond, includes amounts available under a
letter of credit, insurance policy, surety bond, or other such funding
instrument (the "Additional Funding Instrument"), draws on the
Surety Bond and the Additional Funding Instrument shall be made on
a pro rata basis to fund the insufficiency;
(ii) the Bond Registrar shall, after submitting to Ambac Assurance the
Demand for Payment as provided in (i) above, make available to
Ambac Assurance all records relating to the funds and accounts
maintained under this Resolution;
(iii) the Bond Registrar shall, upon receipt of moneys received from
the draw on the Surety Bond, as specified in the Demand for
Payment, credit the subaccount of the Reserve Account to the extent
of moneys received pursuant to such Demand; and
(iv) the Series 2005 Reserve Subaccount shall be replenished in the
following priority: (x) principal and interest on the Surety Bond and
on any Additional Funding Instrument shall be paid first from
available funds on a pro rata basis; (y) after all such amounts are paid
in full, amounts necessary to fund the subaccount of the Reserve
Account to the required level, after taking into account the amounts
available under the Surety Bond and any Additional Funding
Instrument, shall be deposited from the next available funds.
(d) The defmition of "Renewal, Replacement and Improvement Account Requirement" contained
in Section 1 0 1 of the Bond Resolution is amended to provide as follows, and such amendment shall
be deemed incorporated into all Supplemental Resolutions adopted after the date hereof, so that it
shall not be necessary to obtain the consent of the Holders of such Bonds to such amendment.
However, such amendment shall not become effective until (i) the Outstanding principal amount of
the City's Utility System Revenue Bonds, Series 1996 and Utility System Revenue Refunding Bonds,
14
Series 2002 constitutes less than a majority of the principal amount of all Outstanding Bonds, (ii)
notice to the Holders of the Outstanding Series 1996 Bonds and Series 2002 Bonds shall have been
given in accordance with Section 1002 of the Bond Resolution, and (iii) the requirements of Section
7l8(e) of the Bond Resolution (added by Section 5(b) of Resolution No. R01-l93) shall have been
satisfied. As permitted by Section 1002 of the Bond Resolution, the Original Purchaser, by its
purchase of the Series 2005 Bonds, consents to the following amendment of the definition of
"Renewal, Replacement and Improvement Account Requirement."
"Renewal, Replacement and Improvement Account Requirement" shall mean an
amount equal to six percent of the Revenues for the preceding Fiscal Year or such
greater or lesser amount as determined by the City Commission by resolution from
time to time.
Section 6. Approval of Sale of the Series 2005 Bonds. The City hereby determines that a
negotiated sale of the Series 2005 Bonds is in the best interest of the City and the citizens and
inhabitants of the City by reason of the volatility of the market for tax exempt bonds. Attached
hereto as Exhibit "A" is a form of Bond Purchase Contract (the "Bond Purchase Contract"). The City
approves the Bond Purchase Contract together with such changes thereto as are necessary to reflect
the terms of the Series 2005 Bonds and to reflect the purchase price thereof, provided, that the
underwriter's discount shall not exceed $7.00 per thousand dollars of principal amount of the Series
2005 Bonds, and with such other completions, additions and/or changes as shall be approved by the
Authorized Representative, such approval to be conclusively established by such execution, and the
Authorized Representative is hereby authorized and directed for and in the name of the City to
execute and deliver the Bond Purchase Contract to the Original Purchaser. Prior to the execution
of the Bond Purchase Contract, the Original Purchaser shall file with the City the disclosure
statement required by Section 218.385, Florida Statutes, and the competitive bidding for the Series
2005 Bonds is hereby waived pursuant to the authority of Section 218.385(1), Florida Statutes.
Section 7. Execution and Delivery ofthe Series 2005 Bonds. The Authorized Signatory and
the City Clerk are hereby authorized and directed on behalf of the City to execute the Series 2005
Bonds as provided in the Bond Resolution and such officials are hereby authorized and directed upon
the execution of the Series 2005 Bonds in the form and manner set forth herein and in the Bond
Resolution to deliver the Series 2005 Bonds in the amount authorized to be issued hereunder to the
Bond Registrar for authentication (upon the satisfaction of the conditions of Section 210 ofthe Bond
Resolution) and delivery to or upon the order of the Original Purchaser upon payment of the
purchase price set forth herein.
Section 8. Application of Proceeds. Proceeds from the sale of the Series 2005 Bonds and
any amounts available under the Bond Resolution as a result of the refunding and defeasance of the
Refunded Bonds shall be applied for the purposes described herein as provided in a certificate
executed by the Authorized Signatory at or prior to the issuance of the Series 2005 Bonds.
Section 9. Bond Registrar. The City hereby appoints The Bank of New York Trust
Company, N.A. as Bond Registrar with respect to the Series 2005 Bonds. The form of Bond
Registrar Agreement attached hereto as Exhibit "B" is hereby approved and the Authorized Signatory
is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is
15
authorized to attest and apply the seal of the City to the Bond Registrar Agreement, with such
changes, alterations and corrections thereto as shall be approved by the officials executing the same,
such execution to constitute conclusive evidence of such approval.
Section 10. Official Statement. The City hereby approves the form and content of, and
authorizes the use by the Original Purchaser in marketing the Series 2005 Bonds, of a Preliminary
Official Statement relating to the Series 2005 Bonds in the form of the document attached hereto as
Exhibit "C," together with such other changes, alterations and corrections therein as may be approved
by the Authorized Signatory, who is hereby authorized to approve the final form of the Preliminary
Official Statement, such approval to be conclusively established by the execution by the Authorized
Signatory of a certificate "deeming final" the Preliminary Official Statement for purposes of
Securities and Exchange Commission Rule 15c2-l2, which execution is hereby authorized. The
preparation of a final Official Statement for the Series 2005 Bonds, which shall be in substantially
the form of the Preliminary Official Statement, changed to reflect the terms of the Series 2005 Bonds
and with such other changes, alterations and corrections therein as may be approved by the
Authorized Signatory, such approval to be conclusively established by such execution, is hereby
authorized, and upon preparation thereofthe Authorized Signatory is authorized and directed for and
in the name of the City to execute and deliver the Official Statement.
Section 11. Authorization for Bond Insurance. The Authorized Signatory is authorized, but
not obligated, to accept commitments from the 2005 Bond Insurer for the issuance of the 2005 Bond
Insurance Policy and a Reserve Account Insurance Policy and to execute, on behalf of the Issuer,
a Guaranty Agreement with respect to the Reserve Fund Insurance Policy.
Section 12. Compliance with Tax Requirements. The City hereby covenants and agrees, for
the benefit of the Bondholders from time to time of the Series 2005 Bonds, to comply with the
requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of
the Internal Revenue Code of 1986, as amended (the "Code") to the extent necessary to preserve the
exclusion of interest on the Series 2005 Bonds from gross income for federal income tax purposes.
Specifically, without intending to limit in any way the generality of the foregoing, the City covenants
and agrees:
(1) to pay to the United States of America from, to the extent legally available,
the funds and sources of revenues pledged to the payment of the Series 2005 Bonds, and
from any other legally available funds, at the times and to the extent required pursuant to
Section 148( f) of the Code, the excess of the amount earned on all non- purpose investments
(as defmed in Section 1 48(f)(6) of the Code) (other than investments attributed to an excess
described in this sentence) over the amount which would have been earned if such
non-purpose investments were invested at a rate equal to the yield on the Series 2005 Bonds,
plus any income attributable to such excess (the "Rebate Amount");
(2) to maintain and retain all records pertaining to and to be responsible for
making or causing to be made all determinations and calculations of the Rebate Amount and
required payments of the Rebate Amount as shall be necessary to comply with the Code;
16
(3) to refrain from using proceeds from the Series 2005 Bonds in a manner that
would cause the Bonds or any of them, to be classified as private activity bonds under
Section 141(a) of the Code; and
(4) to take or refrain from taking any action that would cause the Series 2005
Bonds, or any of them, to become arbitrage bonds under Section 1 03(b) and Section 148 of
the Code.
The City understands that the foregoing covenants impose continuing obligations on the City
to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the
Code so long as such requirements are applicable.
Unless otherwise specified in the Certificate as to Arbitrage and Other Tax Matters delivered
in connection with the issuance of the Series 2005 Bonds, the City shall designate a certified public
accountant, Bond Counsel, or other professional consultant having the skill and expertise necessary
(the "Rebate Analyst") to make any and all calculations required pursuant to this Section regarding
the Rebate Amount. Such calculation shall be made in the manner and at such times as specified in
the Code. The City shall engage and shall be responsible for paying the fees and expenses of the
Rebate Analyst.
Section 13. The Refunded Bonds and the Escrow Deposit Agreement. The redemption of
the Refunded Bonds as shall be described in the executed Escrow Deposit Agreement is authorized
and directed. The Escrow Deposit Agreement in the form attached hereto as Exhibit "D" is hereby
approved, subject to such changes, insertions, omissions, and filling in of blanks therein as may be
approved by the Authorized Signatory, such approval to be conclusively evidenced by the execution
of the Escrow Deposit Agreement by the Authorized Signatory. The Authorized Signatory and the
City Clerk are hereby authorized to execute and deliver the Escrow Deposit Agreement on behalf
of the City. The Escrow Agent under the Escrow Deposit Agreement shall be The Bank of New
York Trust Company, N.A.. The Authorized Signatory, Finance Director, Financial Advisor and
Escrow Agent, or any of them, are hereby authorized to subscribe for the purchase of any United
State Treasury Obligations -- State and Local Government Series to be purchased pursuant to the
Escrow Deposit Agreement.
Section 14. Continuing Disclosure.
(a) Disclosure of Annual Information. The City agrees, in accordance with the provisions
of Rule 15c2-12 in effect from time to time and applicable to the Series 2005 Bonds (the "Rule"),
promulgated by the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, to provide, either directly or indirectly through a designated agent,
to each nationally recognized municipal securities information repository ("NRMSIR") as designated
and approved by the Commission and to the appropriate State of Florida information depository
("SID"), if any, operated or designated by the State, respectively, in accordance with the Rule, (i)
within 180 days following the end of each Fiscal Year of the City, commencing with the Fiscal Year
ending September 30, 2005 annual financial information and operating data concerning the Utility
System, of the type included in the Official Statement, including operating revenues, debt service
coverage by Net Revenues, rates and charges of the Utility System, summary of any capital
17
improvements plan, and information regarding permitted capacities and actual usage of capacities
of the Utility System and financial statements (audited, or, if not available during such time period,
unaudited) of the City and, (ii) if not submitted as part of such financial information and operating
data, then, when available, audited financial statements for the City prepared in accordance with
generally accepted accounting principles applicable to governmental entities from time to time. A
copy of such annual financial information and operating data will be provided by the City to the
Original Purchaser, the 2005 Bond Insurer and to the Bond Registrar for the Series 2005 Bonds as
designated by the City from time to time. (The information required to be disclosed in this paragraph
shall be hereinafter referred to as the "Annual Report.")
(b) Disclosure of Material Events. The City agrees to provide either directly or indirectly
through a designated agent, in a timely manner, to (i) each NRMSIR or to the Municipal Securities
Rulemaking Board ("MSRB") and (ii) the SID, if any, notice of the occurrence of any of the
following events with respect to the Series 2005 Bonds, if such event is material:
(i)
(ii)
(iii)
difficulties;
(iv)
difficulties;
(v)
(vi)
2005 Bonds;
(vii)
principal and interest payment delinquencies;
non-payment related defaults;
unscheduled draws on debt service reserves, if any, reflecting financial
unscheduled draws on credit enhancements, if any, reflecting financial
substitution of credit or liquidity providers, if any, or their failure to perform;
adverse tax opinions or events affecting the tax-exempt status of the Series
modifications to rights of the holders of the Series 2005 Bonds;
(viii) bond calls of the Series 2005 Bonds (other than scheduled mandatory
redemption) or any acceleration of the maturity thereof;
(ix) defeasances (in whole or in part) of Series 2005 Bonds;
Bonds;
(x) release, substitution, or sale of property securing repayment of the Series 2005
(xi) rating changes; and
(xii) any changes in the City's Fiscal Year.
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(c) Notice of Failure. The City agrees to provide or cause to be provided, in a timely
manner, to (i) each NRMSIR or the MSRB and (ii) the SID, if any, notice of a failure by the City to
provide the Annual Report described in subsection (a) above on or prior to the date set forth therein.
(d) Termination. The City reserves the right to terminate its obligation to provide the
Annual Report and notices of material events, as set forth above, if and when the City no longer
remains an obligated person with respect to the Series 2005 Bonds (within the meaning of the Rule).
If the City believes such condition exists, the City will provide notice of such termination to the
NRMSIR's, the MSRB and the SID.
(e) Undertaking for Benefit of Holders and Beneficial Owners. The City agrees that its
undertaking pursuant to the Rule described herein is intended to be for the benefit of the holders and
beneficial owners of the Series 2005 Bonds and shall be enforceable by any holder or beneficial
owner; provided that the right to enforce the provisions of this undertaking shall be limited to a right
to obtain specific enforcement of the City's obligations hereunder and any failure by the City to
comply with the provisions of this undertaking shall not be an event of default with respect to the
Series 2005 Bonds under the Resolution.
(f) Voluntary Disclosure Shall Not Bind City. Any voluntary inclusion by the City of
information in its Annual Report of supplemental information that is not required by the Rule shall
not expand the obligations of the City under the Rule and the City shall have no obligation to update
such supplemental information or include it in any subsequent report.
(g) Third Parties. The covenants described herein are solely for the benefit of the holders
and beneficial owners of the Series 2005 Bonds and shall not create any rights in any other parties.
(h) Amendment; Waiver. Notwithstanding any other provision of this Resolution, the
City may amend the provisions of this Section and any such provision may be waived, provided that
the following conditions are satisfied:
(1) Ifthe amendment or waiver relates to the provisions of paragraphs ( a),
(b), or (c) above, it may only be made in connection with a change in circumstances
that arises from a change in legal requirements, change in law, or change in the
identity, nature or status of the City or the type of business conducted by the City;
(2) The undertaking, as amended or taking into account such waiver,
would, in the opinion of nationally recognized bond counsel, have complied with the
requirements of the Rule at the time of the original issuance of the Series 2005
Bonds, after taking into account any amendments or interpretations of the Rule, as
well as any change in circumstances; and
(3) The amendment or waiver does not materially impair the interests of
holders and beneficial owners as determined either by parties unaffiliated with the
City or an obligated person, or by an approving vote of the holders of at least a
majority in aggregate principal amount of the then outstanding Series 2005 Bonds
pursuant to the terms of the Bond Resolution.r
19
In the event of any such amendment or waiver of a provision described above, the City shall describe
such amendment or waiver in the next Annual Report, and shall include, as applicable, a narrative
explanation of the reason for the amendment or waiver and its impact on the type (or, in the case of
a change of accounting principles, on the presentation) of annual financial information or operating
data being presented by the City. In addition, if the amendment or waiver relates to the accounting
principles to be followed in preparing financial statements, (i) notice of such change shall be given
in the same manner as set forth in subsection (b) and (ii) the Annual Report for the year in which the
change is made must present a comparison (in narrative form and also, if feasible, in quantitative
form) between the financial statements as prepared on the basis ofthe new accounting principles and
those prepared on the basis of the former accounting principles.
Section 15. Authorizations. The Authorized Signatory, the City Clerk and the Finance
Director are hereby jointly and severally authorized to do all acts and things required of them by this
Resolution, the Bond Resolution, the Escrow Deposit Agreement, the Bond Registrar Agreement or
the Bond Purchase Contract, or desirable or consistent with the requirements hereof or thereof, for
the full, punctual and complete performance of all terms, covenants and agreements contained in the
Series 2005 Bonds, the Bond Resolution, this Resolution, the Escrow Deposit Agreement, the Bond
Registrar Agreement and the Bond Purchase Contract, and to make any elections necessary or
desirable in connection with the arbitrage provisions of Section 148 of the Code.
Section 16. Business Days. In any case where the date of maturity of interest on or principal
of the Series 2005 Bonds or the date fixed for redemption of any Series 2005 Bonds is not a Business
Day, then payment of principal, premium, if any, or interest need not be made on such date but may
be made on the next succeeding Business Day, with the same force and effect as if made on the date
of maturity or the date fixed for redemption.
Section 17. Resolution to Constitute a Contract. In consideration of the purchase and
acceptance of the Series 2005 Bonds authorized to be issued hereunder by those who shall be the
holders thereof from time to time, this Resolution shall constitute a contract between the City and
such holders, and all covenants and agreements herein and in the Bond Resolution set forth to be
performed by the City shall be for the equal benefit and security of all of the holders.
Section 18. No Implied Beneficiary. With the exception of any rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Series
2005 Bonds is intended or shall be construed to give any person other than the City, the Original
Purchaser, the 2005 Bond Insurer, the Escrow Agent, the Bond Registrar and the Owners, any legal
or equitable right, remedy or claim under or with respect to this Resolution or the Bond Resolution
or any covenants, conditions, and provisions herein contained; this Resolution and the Bond
Resolution and all of the covenants, conditions and provisions hereof and thereof being intended to
be and being for the sole and exclusive benefit of the City, the Original Purchaser, the 2005 Bond
Insurer, the Escrow Agent, the Bond Registrar and the Owners.
Section 19. Severability. If any provision of this Resolution shall be held or deemed to be
or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not effect any
other provision herein or render any other provision (or such provision in any other context) invalid,
inoperative or unenforceable to any extent whatsoever.
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Section 20. Repealer. All Resolutions or parts thereof of the City in conflict with the
provisions herein contained or, to the extent of any such conflict, hereby superseded and repealed.
21
Section 21. Effective Date. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 2ND DAY OF AUGUST, 2005.
(SEAL)
ATTEST:
CITY OF BOYNTON BEACH, FLORIDA
By:
City Clerk
By:
Mayor
Vice-Mayor
Commissioner
Commissioner
Commissioner
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
By:
City Attorney
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EXHIBIT" A"
Bond Purchase Contract
CITY OF BOYNTON BEACH, FLORIDA
$_,_,000
UTILITY SYSTEM REVENUE REFUNDING BONDS
SERIES 2005
BOND PURCHASE CONTRACT
_ _,2005
City of Boynton Beach, Florida
100 East Boynton Beach Blvd.
Boynton Beach, Florida 33425
The undersigned, Bear, Steams & Co. Inc. (the "Underwriter"), offers to enter into this Bond
Purchase Contract (the "Purchase Contract") with the City of Boynton Beach, Florida (the "City"),
which, upon acceptance of this offer by the City, will be binding upon the City and upon the
Underwriter. This offer is made subject to written acceptance hereof by the City at or before 11 :59
p.m., Eastern Daylight Savings Time on the date hereof and, if not so accepted, will be subject to
withdrawal by the Underwriter upon notice delivered to the City at any time prior to the acceptance
hereofby the City.
I. Purchase and Sale. Upon the terms and conditions and in reliance on the
representations, warranties, covenants and agreements set forth herein, the Underwriter hereby agrees
to purchase from the City, and the City hereby agrees to sell and deliver to the Underwriter, all (but
not less than all) of the $_ _,000 aggregate principal amount City of Boynton Beach, Florida
Utility System Revenue Refunding Bonds, Series 2005 (the "Bonds"). The Bonds shall be dated the
Closing Date (as hereinafter defined). The purchase price for the Bonds shall be $ (the par
amount of the Bonds less an Underwriter's discount of $ and [plus][ minus] net original
issue [premium][discount] of$ ).
The Bonds shall be as described in, and shall be issued and secured under the provisions of
Resolution No. R92-96 of the City Commission, as amended and supplemented, particularly as
amended and supplemented by Resolution No. R05-_ adopted by the City Commission on_
_,2005 (collectively, the "Resolution"). The Bonds shall mature at the times and in the amounts
and shall bear interest at the rates set forth in Appendix I hereto. The redemption provisions for the
Bonds are set forth in Appendix I hereto. The information required by Sections 218.385(2),(3) and
(6), Florida Statutes, to be provided to the City by the Underwriter is set forth in Appendix II hereto.
2. Delivery of Official Statements and Other Documents. (a) Prior to the date hereof,
the City shall have provided to the Underwriter for its review the Preliminary Official Statement
dated July _,2005 (the "Preliminary Official Statement") that the City deemed final as of its date,
except for certain omissions in connection with the pricing of the Bonds as permitted by Rule 15c2-
12 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended (the "Rule"). The Underwriter has reviewed such Preliminary Official Statement prior to
the execution of this Purchase Contract.
(b) With its acceptance hereof, the City will deliver, at its expense, to the Underwriter
within seven (7) business days of the date hereof (or within such shorter period as may be requested
by the Underwriter in order to accompany any confirmation that requests payment from any customer
to comply with Rule G-32 of the Municipal Securities Rulemaking Board) copies of a final Official
Statement (the" Final Official Statement") (in such amount as may be mutually agreed upon), dated
the date hereof, together with all supplements and amendments thereto, substantially in the form of
the Preliminary Official Statement, with only such changes therein as shall have been accepted by
the Underwriter, signed on behalf of the City by an Authorized Representative. It is understood that
in undertaking to deliver the Final Official Statement pursuant to this paragraph, the City is not
taking any responsibility for the accuracy or completeness of the information in the Final Official
Statement concerning (the "Insurer") or The Depository Trust Company and its
book-entry only system of registration of the Bonds.
(c) The Underwriter shall give notice to the City on the date after which no participating
underwriter, as such term is defined in the Rule, remains obligated to deliver Final Official
Statements pursuant to paragraph (b)(4) of the Rule.
(d) At Closing, the City shall deliver or cause to be delivered to the Underwriter copies
of the Resolution, certified to by the City Clerk, all substantially in the form heretofore delivered to
the Underwriter, with only such changes therein as agreed upon by the Underwriter.
3. Representation ofthe Underwriter as to Authority. ( a) The Underwriter is authorized
to execute this Purchase Contract.
(b) The Underwriter hereby represents that neither it nor any "person" or "affiliate" has
been on the "convicted vendor list" during the past 36 months as all such terms are defined in Section
287.133, Florida Statutes.
4. Public Offering. The Underwriter agrees to make an offering of all the Bonds at not
in excess ofthe initial public offering prices or lower than the yields set forth in Appendix I attached
hereto. The Underwriter reserves the right to make concessions to dealers and to change such initial
public offering prices or yields as the Underwriter reasonably deems necessary in connection with
the marketing of the Bonds. The City hereby authorizes the Underwriter to use the Final Official
Statement and the information contained therein in connection with the offering and sale of the
Bonds and ratifies and confirms its authorization of the use by the Underwriter prior to the date
hereof of the Preliminary Official Statement in connection with such offering and sale.
5. City's Representations, Warranties and Agreements. By its acceptance hereof, the
City represents and warrants to and agrees with the Underwriter that, as of the date hereof:
(a) The City is duly and validly existing as a municipal corporation.
(b) The City has full legal right, power and authority to issue and sell the Bonds as
contemplated by the Resolution and the Final Official Statement.
( c) The City has full legal right, power and authority to enter into this Purchase Contract
and the Escrow Deposit Agreement (the "Escrow Agreement") between the City and The Bank of
New York, as escrow agent (the "Escrow Agent") and to sell and deliver the Bonds to the
2
Underwriter as provided herein; by official action of the City taken prior to or concurrently with the
acceptance hereof, the Resolution has been duly adopted in accordance with the Constitution and the
laws of the State of Florida, including the charter of the City (collectively the "Act"); the Resolution
is in full force and has not been rescinded; this Purchase Contract and the Escrow Agreement when
executed by the City will be duly iluthorized and delivered and will constitute the legal, valid and
binding obligations of the City enforceable in accordance with their terms, except as the enforcement
thereof may be affected by bankruptcy, insolvency, or other laws or the application by a court of
equitable principles generally affecting creditors' rights and except further as the enforcement of
indemnification provisions of the Purchase Contract and the Escrow Agreement may each be limited
by federal or state securities laws or public policy considerations; and the City has duly authorized
and approved the consummation by it of all other transactions contemplated by the Resolution, the
Final Official Statement, the Escrow Agreement and this Purchase Contract to have been performed
or consummated at or prior to the Closing Date.
(d) The execution and delivery of the Bonds, this Purchase Contract and the Escrow
Agreement and the adoption and implementation of the Resolution, and compliance with the
obligations on the City's part contained herein and therein, will not conflict with or constitute a
material breach of or material default under the Act or any federal or Florida constitutional provision,
law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution,
agreement or other instrument to which the City is a party or to which the City or any of its
properties or other assets is otherwise subject, nor will any such execution, delivery, adoption,
implementation or compliance result in the creation or imposition of any material lien, charge or
other security interest or encumbrance of any nature whatsoever upon any of the properties or other
assets of the City under the terms of any such provision, law, regulation, document or instrument,
except as provided or permitted by the Bonds and the Resolution.
( e) All approvals, consents and orders of any govemmental authority, legislative body,
board, agency or commission having jurisdiction which would constitute a condition precedent to
or the absence of which would materially adversely affect the due performance by the City of its
obligations under this Purchase Contract, the Escrow Agreement, the Resolution and the Bonds have
been, or prior to the Closing Date will have been, duly obtained; provided, however, that this
representation and warranty does not apply to such approvals, consents and orders as may be
required under the Blue Sky or securities laws of any state in connection with the offering and sale
of the Bonds, or to such official action by the City which the Resolution contemplates is to be taken
from time to time after the Closing.
(f) The Bonds when issued, registered and delivered in accordance with the Resolution
and sold to the Underwriter as provided herein and in accordance with the provisions of the
Resolution, will be valid and legally enforceable obligations of the City in accordance with their
terms and the terms of the Resolution, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other laws or the application by a court of equitable
principles; and the Resolution will provide, for the benefit of the holders from time to time of the
Bonds, a legally valid and irrevocable lien upon and pledge ofthe Pledged Revenues, as defined and
set forth in the Resolution, on a parity with the City's Utility System Revenue Refunding Bonds,
Series 2002.
3
(g) The information contained in the Preliminary Official Statement (as of its dated date)
and, as of its date, the Final Official Statement pertaining to the City was and is true and correct in
all material respects and does not contain any untrue statement of a material fact or omit to state a
material fact which is necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(h) The City has not been in default at any time on or after December 31, 1975, as to
principal or interest with respect to any obligation issued or guaranteed by the City.
(i) Except as described in the Preliminary Official Statement or the Final Official
Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity before or
by any court, governmental agency or public board or body, pending or, to the best knowledge of the
City, threatened:
(1) Which may affect the existence of the City or the titles of its officers to their
respective offices;
(2) Which may affect or which seeks to prohibit, restrain or enjoin the sale, issuance or
delivery of the Bonds, or the collection or disbursement of the Pledged Revenues to pay the principal
of, premium, if any, and interest on the Bonds, and to make other payments under the Resolution;
(3) Which in any way contests or affects the validity or enforceability of the Bonds, the
Resolution, this Purchase Contract or any of them;
(4) Which would cause the interest on the Bonds to be included in the federal gross
income of the holders of the Bonds; or
(5) Which contests in any way the completeness or accuracy of the Preliminary Official
Statement or the Final Official Statement or which contests the powers of the City or any authority
or proceedings for the issuance, sale or delivery of the Bonds, or the due adoption of the Resolution
or the execution and delivery of this Purchase Contract or any of them; nor, to the best knowledge
of the City, is there any basis therefor, wherein an unfavorable decision, ruling or finding would
materially adversely affect the validity or enforceability of the Bonds, the Resolution, the Escrow
Agreement or any of them.
(j) The City will furnish such information, execute such instruments and take such other
action not inconsistent with law in cooperation with the Underwriter as the Underwriter may
reasonably request in order (i) to qualify the Bonds for offer and sale under the Blue Sky or other
securities laws and regulations of such states and other jurisdictions of the United States as the
Underwriter may designate, and (ii) to determine the eligibility of the Bonds for investment under
the laws of such states and other jurisdictions, and will use its best efforts to continue such
qualifications in effect so long as required for the distribution of the Bonds; provided that the City
shall not be obligated to qualify to do business or to take any action that would subject it to general
service of process in any state where it is not now so subject.
(k) If between the date of this Purchase Contract and the date which is the earlier of (i)
4
90 days from the end of the "underwriting period", as determined in the Rule, (an event the
Underwriter is required to notify the City about pursuant to paragraph 2( c) above), or (ii) the time
when the Final Official Statement is available to any person from a nationally recognized municipal
securities information repository, but in no case less than 25 days following the end of the
underwriting period, any event shall occur which would or might cause the information contained
in the Final Official Statement, as then supplemented or amended, to contain any untrue statement
of a material fact or to omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light ofthe circumstances under which they were made, not misleading,
the City shall notify the Underwriter thereof, and if in the reasonable opinion of the Underwriter such
event requires the preparation and publication of a supplement or amendment to the Final Official
Statement, the City shall cooperate with the Underwriter in supplementing or amending the Final
Official Statement, the printing of which will be at the City's expense, in such form and manner and
at such time or times as may be reasonably called for by the Underwriter.
(I) The City covenants to comply with the requirements of the Internal Revenue Code
of 1986, as amended (the "Code") in order to maintain the exclusion from gross income of the
interest on the Bonds for purposes of federal income taxation. These requirements include, but are
not limited to, provisions which prescribe yield and other limits within which the proceeds of the
Bonds and other amounts are to be invested and require that certain investment earnings on the
foregoing must be rebated on a periodic basis to the Treasury Department of the United States.
(m) Except as disclosed in the Official Statement, the City has not been in default at any
time as to principal or interest with respect to any obligations issued or guaranteed by the City.
(n) The City has not failed to comply with any prior undertakings to provide continuing
disclosure pursuant to Rule 15c2-12(b)( 5) under the Securities Exchange Act of 1934, as amended.
6. Closing. At 10:00 am., prevailing time in the City, on ,2005 (such date
herein called the "Closing Date"), or at such later time or on such later date as may be mutually
agreed upon by the City and the Underwriter, the City shall, subject to the terms and conditions
hereof, deliver the Bonds, bearing proper CUSIP numbers, in the definitive form of one fully
registered typewritten Bond for each stated maturity of the Bonds, duly executed and authenticated.
In addition, at such time, on the Closing Date, the City shall also deliver, to the Underwriter, subject
to the terms and conditions hereof, the other documents hereinafter mentioned. Subject to the terms
and conditions hereof, the Underwriter shall accept delivery ofthe Bonds and pay the purchase price
of the Bonds as set forth in paragraph 1 hereof in Federal Funds to the order of the City (such
delivery of and payment for the Bonds herein called the "Closing"). The Closing shall occur at City
Hall or such other place as shall have been mutually agreed upon by the City and the Underwriter.
The Bonds shall be registered in the name of Cede & Co., or such other name as the Underwriter
shall request, and will be made available for inspection and checking by representatives of the
Underwriter at such place as shall be mutually agreed upon, not later than the business day prior to
the Closing Date.
7. Closing Conditions. The Underwriter is entering into this Purchase Contract in
reliance upon the representations, warranties and agreements of the City contained herein, and in
reliance upon the representations, warranties and agreements to be contained in the documents and
5
instruments to be delivered at the Closing, and upon the performance of the covenants and
agreements herein, as of the date hereof and as of the Closing Date. Accordingly, the Underwriter's
obligations under this Purchase Contract to purchase, to accept delivery of and to pay for the Bonds
shall be conditioned upon the performance of the covenants and agreements to be performed
hereunder and under such other documents and instruments to be delivered at or prior to the Closing
Date, and shall also be subject to the following additional conditions:
(a) The representations and warranties of the City contained herein shall be true,
complete and correct on the date hereof and on and as ofthe Closing Date, as if made on the Closing
Date.
(b) At the date of execution hereof and at the Closing Date, the Resolution shall have
been duly approved and adopted by the City, shall be in full force and effect, and shall not have been
amended, modified or supplemented, except in connection with the issuance of Additional Bonds
in compliance therewith and except to the extent to which the Underwriter shall have given its prior
written consent, and there shall have been taken in connection therewith and in connection with the
issuance of the Bonds all such action as, in the opinion of Moyle, Flanigan, Katz, Raymond &
Sheehan, P.A., Bond Counsel and Disclosure Counsel for the City, shall be necessary and
appropriate in connection with the transactions contemplated hereby.
(c) At the Closing there will be no pending or threatened litigation or proceeding of any
nature seeking to restrain or enjoin the issuance, sale or delivery of the Bonds, or the pledge or
application of the Pledged Revenues (other than as disclosed in the Final Official Statement) to pay
the principal of and interest on the Bonds or in any way contesting or affecting the validity or
enforceability of the Bonds, the Resolution, the Escrow Agreement and this Purchase Contract or
contesting in any way the proceedings of the City taken with respect thereto, or contesting in anyway
the due existence or powers of the City or the title of any of the members of the City Commission
or officials of the City to their respective offices, or if such litigation does exist, the Underwriter will
receive an opinion of Josias, Goren, Cherof, Doody & Ezrol, P.A. City Attorneys, that any such
litigation is without merit.
(d) Except as described in the Final Official Statement, there shall have been no material
adverse change in the financial condition of the City since September 30,2004.
( e) At the Closing, the Underwriter shall receive the following documents, each dated
as of the Closing Date:
(i) The opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Bond Counsel,
dated the Closing Date, in substantially the form attached to the Final Official Statement as
Appendix D as well as (x) an opinion to the effect that the Bonds are "Additional Bonds" on a parity
with the City's other outstanding Bonds and (y) that the Refunded Bonds (as defined in the Final
Official Statement) have been legally defeased.;
(ii) An opinion of Bond Counsel, addressed to the Underwriter, to the effect that (i) the
Underwriter may rely upon the opinion referred to in paragraph (i) above as though addressed to it,
(ii) the information contained in the Final Official Statement under the headings "Introduction,"
6
"Purpose of the 2005 Bonds," "Description ofthe 2005 Bonds," "Security for the 2005 Bonds" and
"Covenants Concerning Ongoing Disclosure," (other than any information thereunder relating to The
Depository Trust Company and its book-entry system 0 f registration and apart from any engineering,
financial and statistical data contained therein as to which no opinion or belief needs to be
expressed), insofar as such information purports to be the descriptions or summaries of the
Resolution and the Bonds, constitutes fair and accurate statements of the matters set forth in such
documents, and (iii) the information contained in the Final Official Statement under the heading
"Tax Exemption" is correct in all material respects.
(iii) An opinion, dated the Closing Date and addressed to the Underwriter, of Goren,
Cherof, Doody & Ezrol, P.A. City Attorneys to the effect that (i) this Purchase Contract and the
Escrow Agreement have each been duly authorized, executed and delivered by the City and each
constitutes a legal, valid, and binding agreement of the City in accordance with their terms except
to the extent that the enforceability of the rights and remedies set forth therein may be limited by
bankruptcy, insolvency or other laws or the application by a court of equitable principles and except
further as the enforcement of indemnification provisions of this Purchase Contract may be limited
by federal or state securities laws or public policy considerations; (ii) the City has authorized,
executed and delivered the Final Official Statement; (iii) the information in the Final Official
Statement as to legal matters relating to the City, the Bonds, the Escrow Agreement and the
Resolution is correct in all material respects and does not omit any statement which, in their opinion,
should be included or referred to therein and, in addition, such counsel shall state that, based upon
their participation in the preparation of the Final Official Statement as City Attorneys and without
having undertaken to determine independently the accuracy, completeness or fairness of the
statements contained in the Final Official Statement (except to the extent expressly set forth in this
Subparagraph (iii)), as of the Closing nothing has come to their attention causing them to believe that
(A) the Final Official Statement as of its date contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (except for
the financial and statistical information contained in the Final Official Statement as to all of which
no view shall be expressed), or (B) the Final Official Statement as of the Closing Date contains any
untrue statement of a material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading (except as aforesaid), (it is understood that in undertaking to deliver the Final
Official Statement pursuant to this paragraph, the City is not taking any responsibility for the
accuracy or completeness of the information in the Final Official Statement concerning the Insurer
or The Depository Trust Company and its book-entry only system ofregistration ofthe Bonds); (iv)
to the best of their knowledge the City is not in material breach of or material default under any
applicable constitutional provision, law or administrative regulation of the State or the United States
or any applicable judgment or decree or any loan agreement, indenture, bond, note, material
resolution, material agreement or other material instrument to which the City is a party or to which
the City or any of its property or assets is otherwise subject, and no event has occurred and is
continuing that with the passage of time or the giving of notice, or both, would constitute a default
or event of default under any such instrument; and the execution and delivery of the Bonds, the
Escrow Agreement, this Purchase Contract, and the adoption ofthe Resolution and compliance with
the provisions on the City's part contained therein, will not conflict with or constitute a material
breach of or default under, any constitutional provision, law, administrative regulation, judgment,
7
decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which
the City is a party or to which the City or any of its property or assets is otherwise subject, and any
such execution, delivery, adoption or compliance will not result in the creation or imposition of any
lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the
property or assets of the City under the terms of any such law, regulation or instrument, except as
expressly provided by the Bonds or the Resolution; (v) the City has the right and power under the
Act to adopt the Resolution and the Resolution has been duly and lawfully adopted by the City, is
in full force and effect and constitutes the legal, valid and binding obligation of the City, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law), and no other authorization is
required for the City to adopt the Resolution; (vi) to the best of their knowledge, there is no action,
suit, proceeding, inquiry or investigation at law or in equity before or by any court, government
agency, public board or body, pending or threatened against or affecting the City, nor is there any
basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision,
ruling or finding would have a materially adverse effect upon the transactions contemplated by the
Final Official Statement or the validity of the Bonds, the Resolution, the Escrow Agreement or this
Purchase Contract, except as described in the Final Official Statement; and (vii) all authorizations,
consents, approvals and reviews of govemmental bodies or regulatory authorities then required for
the City's adoption, execution or performance of the Bonds, the Resolution, the Escrow Agreement
and this Purchase Contract have been obtained or effected and, to the best of their knowledge, they
have no reason to believe that the City will be unable to obtain or effect any such additional
authorization, consent, approval or review that may be required in the future for performance of any
of them by the City.
(iv) A certificate, dated the Closing Date, signed by an Authorized Representative to the
effect that to the best knowledge of the signer: (i) the representations of the City herein are true and
correct in all material respects as of the Closing Date; (ii) the City has performed all obligations to
be performed hereunder as of the Closing Date; (iii) except as disclosed in the Final Official
Statement, there is no litigation pending or threatened (A) to restrain or enjoin the issuance or
delivery of any of the Bonds, (B) in any way contesting or affecting any authority for the issuance
of the Bonds or the validity of the Bonds, the Resolution, the Escrow Agreement or this Purchase
Contract, (C) in any way contesting the corporate existence or powers of the City, (D) to restrain or
enjoin the collection of revenues pledged or to be pledged to pay the principal of, premium, if any,
and interest on the Bonds, (E) which may result in any material adverse change in the business,
properties, assets and the financial condition of the City taken as a whole, or (F) asserting that the
Final Official Statement contains any untrue statement of a material fact or omits any material fact
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading; (iv) since September 30, 2004, no material adverse change has occurred in the
financial position or results of operations of the City except as set forth in or contemplated by the
Final Official Statement; (v) the City has not, since September 30, 2004, incurred any material
liabilities other than in the ordinary course of business or as set forth in or contemplated by the Final
Official Statement; (vi) the information contained in the Final Official Statement pertaining to the
City (except for the Insurer or The Depository Trust Company book-entry only system for which no
opinion need be expressed) did not as of its date, and does not as of the Closing Date contain any
untrue statement of a material fact or omit to state a material fact required to be included therein or
8
necessary in order to make the statements contained therein, in light of the circumstances in which
they were made, not misleading; and (vii) that the City has not been in default at any time on or after
December 31,1975, as to principal or interest with respect to any obligation issued or guaranteed
by the City.
(v) An opinion, dated the Closing Date and addressed to the Moyle, Flanigan, Katz,
Raymond & Sheehan, P.A., West Palm Beach, Florida, Disclosure Counsel for the City, to the effect
that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as
amended, and the Resolution is exempt from qualification pursuant to the Trust Indenture Act of
1939, as amended; and (ii) based upon their participation and their review of the Final Official
Statement as Disclosure Counsel and without having undertaken to determine independently the
accuracy, completeness or fairness of the statements contained in the Final Official Statement, as
of the Closing Date nothing has come to the attention of such counsel causing them to believe that
(A) the Final Official Statement as of its date contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (except for
the financial and statistical information contained in the Final Official Statement as to which no view
need be expressed), or (B) the Final Official Statement as of the Closing Date contains any untrue
statement of a material fact or omits to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading (except as aforesaid).
(vi) An opinion, dated the Closing Date and addressed to the Underwriter, of Moyle,
Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Disclosure Counsel for the
City, to the effect that the continuing disclosure undertaking of the City contained in the Resolution,
pursuant to which the City has agreed to provide the information required by Rule 15c2-12(b)(5)
issued by the Securities and Exchange Commission under the Securities Exchange Act of 1934,
provides a suitable basis for the Underwriter in connection with the Offering (as defined in Rule
15c2-12), to make a reasonable determination as required by paragraph (b)(5) of said Rule;
(vii) An opinion, dated the Closing Date, and addressed to the Underwriter, from counsel
for the Insurer to the effect that: (i) the Insurer is a validly existing and in good
standing under the laws of the State of and qualified to do business therein and is
licensed and authorized to issue its financial guaranty insurance policies under the laws of the State
of Florida; (ii) the Bond Insurance Policy is valid and binding upon the Insurer and enforceable in
accordance with its terms, subject to applicable laws affecting creditors' rights; (iii) the Insurer, as
an insurance company, is not eligible for relief under the Federal Bankruptcy Laws (any proceedings
for the liquidation, conservation or rehabilitation of the Insurer would be governed by the provisions
of the ); and (iv) the statements described in the Final Official
Statement relating to the Insurer and the Bond Insurance Policy accurately and fairly present the
summary information set forth therein and do not omit any material fact with respect to the
description of the Insurer relative to the material terms of the Bond Insurance Policy or the ability
to the Insurer to meet its obligations under the Bond Insurance Policy.
(viii) A Rule 15c2-12 Certificate with respect to the Preliminary Official Statement signed
by the City Manager.
9
(ix) The verification report of Causey, Demgen & Moore as described under the section
entitled "Verification of Mathematical Computations" in the Final Official Statement.
(x) A copy of the executed Escrow Deposit Agreement.
(xi) Such additional legal opinions, certificates, instruments and other documents as the
Underwriter may reasonably request to evidence the truth and accuracy, as of the date hereof and as
of the Closing Date, of the City's representations and warranties contained herein and of the
statements and information contained in the Final Official Statement and the due performance or
satisfaction by the City on or prior to the Closing Date of all the agreements then to be performed
and conditions then to be satisfied by it.
(f)
Bonds.
The Insurer shall have issued its Bond Insurance Policy (the "Policy") insuring the
(g) The Bonds shall have received ratings of "AAA" and "Aaa" by Standard & Poor's
and Moody's Investors Service, respectively.
All of the evidence, opinions, letters, certificates, instruments and other documents,
mentioned above or elsewhere in this Purchase Contract shall be deemed to be in compliance with
the provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriter
and the City.
If the conditions to the obligations of the Underwriter to purchase, to accept delivery of and
to pay for the Bonds contained in this Purchase Contract are not satisfied, or if the obligations of the
Underwriter to purchase, to accept delivery of and to pay for the Bonds shall be terminated for any
reason permitted by this Purchase Contract, this Purchase Contract shall terminate and neither the
Underwriter nor the City shall be under any further obligation hereunder, except that the respective
obligations of the City and the Underwriter set forth in paragraph 11 hereof shall continue in full
force and effect.
8. Termination.
(a) The Underwriter may terminate its obligation to purchase at any time before the
Closing Date if any of the following should occur:
(i) (1 )Legislation (including any amendment thereto) shall have been introduced in or
adopted by either House of the Congress of the United States, or recommended to the Congress for
passage by the President of the United States or favorably reported for passage to either House of
the Congress by any Committee of such House; (2) a decision shall have been rendered by a court
established under Article III of the Constitution of the United States or by the United States Tax
Court; or (3) a release or official statement shall have been issued by the President of the United
States, by the Treasury Department of the United States or by the Internal Revenue Service; the
effect of which, in any such case described in clauses (1), (2) or (3) herein, would be to impose,
directly or indirectly, federal income taxation upon interest received on obligations of the general
10
character of the Bonds other than as imposed on the Bonds and income therefrom under the federal
tax laws in effect on the date hereof, in such a manner as in the judgment of the Underwriter would
materially impair the marketability or materially reduce the market price of obligations ofthe general
character of the Bonds; or
(ii) Any action shall have been taken by the Securities and Exchange Commission or by
a court which would require registration of any security under the Securities Act of 1933, as
amended, or qualification of any indenture under the Trust Indenture Act of 1939, as amended, in
connection with the public offering of the Bonds, or any action shall have been taken by any court
or by any governmental authority suspending the use of the Final Official Statement or any
amendment or supplement thereto, or any proceeding for that purpose shall have been initiated or
threatened in any such court or by any such authority; or
(iii) (1) The Constitution of the State of Florida shall be amended or an amendment shall
be proposed, (2) legislation shall be enacted, (3) a decision shall have been rendered as to matters
of Florida law, or (4) any order, ruling or regulation shall have been issued or proposed by or on
behalf of the State of Florida by an official, agency or department thereof, affecting the status of City,
its property or income, its bonds (including the Bonds) or the interest thereon which in the judgment
of the Underwriter would materially adversely affect the market price of the Bonds; or
(iv) (1) A general suspension of trading in securities shall have occurred on the New York
Stock Exchange, or (2) the United States becomes engaged in any outbreak of armed hostilities
(whether or not foreseeable at the time of execution hereof) or hostilities previously commenced
shall escalate, the effect of which in either case described in clauses (1) and (2), is, in the judgment
of the Underwriter, so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Bonds on the terms and in the manner contemplated
in this Purchase Contract and the Final Official Statement, including without limitation any material
adverse effect on the market price of the Bonds; or
(v) An event occurs which, in the reasonable opinion of the Underwriter, requires a
supplement or amendment to the Final Official Statement and the information set forth in such
supplement or amendment adversely effects, in the reasonable opinion of the Underwriter, the
marketability of the Bonds; or
(vi) A general banking moratorium shall have been declared by authorities of the United
States, the State of New York or the State of Florida.
9. Expenses.
(a) Whether or not the Bonds are sold by the City to the Underwriter (unless such sale be
prevented at Closing by the Underwriter's default), the City shall be obligated to pay the following
expenses: (i) the cost of preparing and printing or other reproduction of the Resolution; (ii) the cost
of preparing and printing the Bonds, the Preliminary Official Statement and the Final Official
Statements; (iii) the fees and disbursements of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A.,
incurred in its capacity as Bond Counsel; (iv) the fees and disbursements of Moyle, Flanigan, Katz,
Raymond & Sheehan, P.A., incurred in their capacity as Disclosure Counsel for the City; (v) the fees
11
and disbursements of the Escrow Agent, Paying Agent and the Bond Registrar; (vi) the fees and
expenses of Causey, Demgen & Moore for the verification report; and (vii) the fees and
disbursements of any other experts, accountants, consultants or advisors retained by the City.
(b) Whether or not the Bonds are sold by the City to the Underwriter (unless such sale be
prevented at Closing by the City's default), the Underwriter shall be obligated to pay all expenses
incurred by it in connection with the public offering of the Bonds.
10. Notices. Any notice or other communication to be given to the City under this
Purchase Contract may be given by delivering the same in writing to the address set forth above and
any notice or other communications to be given to the Underwriter under this Purchase Contract may
be given by delivering the same in writing to Bear, Steams & Co. Inc., 225 N.E. Mizner Blvd., Suite
500, Boca Raton, Florida 33432.
II. Parties in Interest.
(a) This Purchase Contract is made solely for the benefit ofthe City and the Underwriter
(including the successors or assigns of the Underwriter) and no other person shall acquire or have
any right hereunder or by virtue hereof. All of the representations, warranties and agreements of the
City contained in this Purchase Contract shall remain operative and in full force and effect (but shall
not be deemed to be continuing representations and warranties of the City), regardless of: (i) any
investigations made by or on behalf of the Underwriter; (ii) delivery of and payment for the Bonds
pursuant to this Purchase Contract; or (iii) any termination of this Purchase Contract, but only to the
extent provided by the last paragraph of Section 7 hereof.
(b) No covenant, stipulation, obligation or agreement contained in this Purchase Contract
shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or
employee of the City Commission in his individual capacity and neither the members of the City
Commission nor any official executing this Purchase Contract shall be liable personally under this
Purchase Contract or be subject to any personal liability or accountability by reason of the execution
hereof.
12. Effectiveness. This Purchase Contract shall become effective upon the execution of
the acceptance hereof on behalf of the City by the Authorized Representative, all in accordance with
the requirements set forth in the Resolution, and shall be valid and enforceable at the time of such
acceptance.
13. Counterparts. This Purchase Contract may be executed in several counterparts, which
together shall constitute one and the same instrument.
14. Florida Law Governs. The validity, interpretation and performance of this Purchase
Contract shall be governed by the laws of the State of Florida.
15. Entire Agreement. This Purchase Contract when accepted by the City in writing as
heretofore specified shall constitute the entire agreement between us.
12
16. Headings. The headings of the paragraphs of this Purchase Contract are inserted for
convenience only and shall not be deemed to be part hereof.
BEAR, STEARNS & CO. INC.
By:
Name: J.W. Howard
Title: Managing Director
Accepted as of the date hereof:
CITY OF BOYNTON BEACH, FLORIDA
By:
Gerald Taylor, Mayor
G:\02345\J7 Utility 2005\purchase contract(2).wpd
13
EXHIBIT "B"
Registrar Agreement
BOND REGISTRAR AGREEMENT
THIS BOND REGISTRAR AGREEMENT is made and entered into as of August _,2005,
by and between the City of Boynton Beach, Florida (the "Issuer") and The Bank of New York Trust
Company, N.A. (the "Bank").
WHEREAS, the Issuer by the Resolution (as hereinafter defined), designated the Bank as
Bond Registrar (as defined in the Resolution) for its Utility System Revenue Refunding Bonds,
Series 2005 (the "Bonds"); and
WHEREAS, the Issuer and the Bank desire to set forth the Bank's duties as Bond Registrar
and the compensation to be paid the Bank for its services.
NOW, THEREFORE, it is agreed by the parties hereto as follows:
1. The Bank agrees to serve as Bond Registrar for the Bonds and to perform the duties
of Bond Registrar under Resolution No. 92-96 adopted by the City Commission ofthe Issuer on June
16,1992, as amended and supplemented, with respect to the Bonds (the "Resolution").
2. The Issuer shall timely deposit with the Bank sufficient funds from the accounts
established for the payment of the Bonds under the Resolution to pay when due and payable the
principal of, premium, if any, and interest on the Bonds.
3. The Bank shall use the funds received from the Issuer pursuant to paragraph 2 hereof
(and only such funds) to pay the principal of, premium, if any, and interest on the Bonds in
accordance with the Resolution. The Bank shall cremate cancelled Bonds and transmit to the Issuer
a certificate of destruction therefor.
4. The Bank shall be obligated to act only in accordance with the Resolution and any
written instructions received in accordance therewith, and is authorized hereby to comply with any
orders, judgments, or decrees of any court and shall not be liable as a result of its compliance with
the same.
5. The Bank may rely absolutely upon the genuineness and authorization of the signature
and purported signature of any party upon any instruction, notice, release, request, affidavit,
certificate, opinion or other document delivered to it pursuant to the Resolution.
6. To the extent allowed by Florida law, the Issuer hereby agrees to indemnify the Bank
and its agents and hold it harmless from any and all claims, liabilities, losses, actions, suits, or
proceedings at law or in equity, or any other expenses, fees (including attorneys' fees and expenses),
or charges of any character or nature, which it may incur or with which it may be threatened by
reason of its acting as Bond Registrar under the Resolution, unless caused by the Bank's willful
misconduct or gross negligence; and in connection therewith, to indemnify the Bank against any and
all expenses, including attorneys' fees and the costs of defending any action, suit, or proceeding, or
resisting any claim. This Section shall survive termination of this Agreement.
7. The Bank may consult with counsel of its own choice and shall have sole and
complete authorization and protection for any action taken or suffered by it under the Resolution in
good faith and in accordance with the opinion of such counsel. The Bank shall otherwise not be
liable for any mistakes offact or errors of judgment, or for any acts or omissions of any kind unless
caused by the Bank's willful misconduct or gross negligence.
8. In consideration of the services rendered by the Bank as Bond Registrar, the Issuer
agrees to and shall pay to the Bank a fee in accordance with Exhibit A hereto during the term of this
Agreement, payable annually in advance, and all expenses, charges, attorneys' fees and expenses, and
other disbursements incurred by it or its attorneys, agents, and employees in and about the acceptance
and performance of its powers and duties as Bond Registrar. In the event the system for
immobilization of bond certificates (the book-entry only system) is terminated, the fee of the Bank
would be revised based upon the then current fee schedule of the Bank. This Section shall survive
termination of this Agreement.
9. The Bank shall, at all times, when requested to do so by the Issuer, furnish full and
complete information pertaining to its functions as the Bond Registrar with regard to the Bonds, and
shall without further authorization, execute all necessary and proper deposit slips, checks, certificates
and other documents with reference thereto.
10. Either of the parties hereto, at its option, may cancel this Agreement after giving thirty
(30) days written notice to the other party of its intention to cancel, and this Agreement may be
cancelled at any time by mutual consent of the parties hereto. This Agreement shall terminate
without further action upon final payment of the Bonds and the interest appertaining thereto.
11. In the event of a cancellation of this Agreement, the Issuer shall deliver any proper
and necessary releases to the Bank upon demand and the Bank shall, after payment of all amounts
owing to it hereunder, upon demand pay over the funds on deposit in connection with the Bonds and
surrender all registration books and related records, and the Issuer may appoint and name a successor
to act as Bond Registrar for the Bonds. The Issuer shall, in such event, notify all holders of the
Bonds of the appointment and name of the successor, by providing notice in the manner required by
the Resolution for the redemption of the Bonds.
12. This Agreement shall not be assigned by either party without written consent of the
other party.
13. No modification of this Agreement shall be valid unless made by a written agreement,
executed and approved by the parties hereto.
14. Should any section or part of any section of this Agreement be declared void, invalid,
or unenforceable by any court of law for any reason, such determination shall not render void,
invalid, or unenforceable any other section or other part of any section of this Agreement.
15. This Agreement shall be governed by and interpreted in accordance with the laws of
the State of Florida.
16. ( a) The Issuer hereby instructs the Bank to pay the principal of and interest on the
Bonds at the dates specified in the Resolution.
(b) The Bank shall be under no liability for interest on any money received by it hereunder.
2
(c) Any money deposited with the Bank for the payment of the principal, redemption
premium, if any, or interest on any Bond and remaining unclaimed for three years after final maturity
of the Bond has become due and payable will be paid by the Bank to the Issuer, and the owner of
such Bond shall thereafter look only to the Issuer for payment thereof, and all liability of the Bank
with respect to such monies shall thereupon cease.
17. The Issuer and the Bank agree that the Bank may seek adjudication of any adverse
claim, demand, or controversy over its persons as well as funds on deposit, waive personal service
of any process, and agree that service of process by certified or registered mail, return receipt
requested, to the address set forth below, or such other address as designated in writing sent by one
party hereto to the other, shall constitute adequate service. The Issuer and the Bank further agree that
the Bank has the right to file a Bill ofInterpleader in any court of competent jurisdiction to determine
the rights of any person claiming any interest herein.
As to the Issuer:
City Manager
City of Boynton Beach
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33425
As to the Bank:
The Bank of New York Trust Company, N.A.
10161 Centurion Parkway
2nd Floor
Jacksonville, Florida 32256
18. Reference is hereby made to Sections 205, 206, 214 and 306 of the Resolution, which
relate, respectively, to the exchange of Bonds, the negotiability, registration and transfer of Bonds,
mutilated, destroyed or lost Bonds and cancellation of Bonds.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first above written.
CITY OF BOYNTON BEACH, FLORIDA
By:
City Manager
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Bond Registrar
By:
Its Authorized Signatory
G:\02345\37 UtiJity 2005\bond registrar agreement.wpd
3
EXHIBIT "C"
Preliminary Official Statement
PRELIMINARY OFFICIAL STATEMENT DATED AUGUST 3, 2005
This Preliminary Official Statement and the information contained herein are subject to completion
or amendment. These securities may not be sold nor may offers to buy be accepted prior to the time the
Official Statement is delivered in final form. Under no circumstances shall this Preliminary Official
Statement constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these
securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such jurisdiction.
NEW ISSUE - BOOK-ENTRY ONLY
RATINGS: Fitch: "AAA"
S&P: "AAA"
See "RATINGS" herein
In the opinion of Bond Counsel, under existing law and assuming continuing compliance by the City with certain covenants, interest on the 2005 Bonds will
be excludedfrom gross income for federal income tax purposes and interest on the 2005 Bonds will not be an item of tax prFference for purposes of the federal alternative
minimum tax imposed on individuals and corporations. See, however, the information under the heading 'TAX EXEMPTION" herein for a description of certain taxes
on corporations andfor a discussion of certain other tax consequences to holders of the 2005 Bonds. Bond Counsel is also of the opinion that the 2005 Bonds will be
exempt from all prFsent intangible personal property taxes imposed by the State of Florida. See "'E4X EXEMPTION" herein.
$15,000,000*
City of Boynton Beach, Florida
Utility System Revenue Refunding Bonds
Series 2005
Dated: Date of Delivery
Due: November 1, as shown below
The City of Boynton Beach, Florida Utility System Revenue Refunding Bonds, Series 2005 (the "2005 Bonds") are being issued by the City of Boynton Beach,
Florida (the "City") as fully registered bonds and will be initially issued and registered to Cede & Co., as nominee of The Depository Trust Company, New York, New York
("DTC"), which will act as securities depository for the 2005 Bonds. Purchases of beneficial intcrests in the 2005 Bonds will be made in book-entry form only and the
purchasers will not receive physical delivery of the 2005 Bonds or any certificate representing their beneficial ownership interest in the 2005 Bonds. The 2005 Bonds will
be available to purchasers in principal denominations of$5,000 and integral multiples thereofunder the book-entry system maintained by DTC through brokers and dealers
who are, or who act through, DTC Participants. For so long as DTC or its nominee, Cede & Co., is the registered owncr of 1he 2005 Bonds, payments of principal and interest
will be made directly to Cede & Co. Disbursement of payments of principal and intcrest to individual purchasers is described under the heading "DESCRIPTION OF THE
2005 BONDS - Book-Entry-Only System" herein. Interest on the 2005 Bonds will be payable on November 1,2005 and semi-annually thereafter on each May I and
November I. The 2005 Bonds will not be subject to optional redemption prior to maturity but may be subject to mandatory redemption prior to maturity as described herein.
This cover page contains certain information for quick reference only. It is not a summary ofthe issue. Investors must read theentire Official Statement
to obtain information essential to the making of an informed investment decision.
The 2005 Bonds are bcing issued for 1he principal pmpose of refunding the City's outstanding Utility System Revenue Bonds, Series 1996 maturing on and after
November 1,2007.
The 2005 Bonds will be limited obligations of the City payable solely from the Net Revenues derived by the City from the operation ofits water, sewer
and stormwater utility system (the "System"), certain Impact Fees and moneys and investments held in certain funds and accounts created by the Resolution
(collectively, the "Pledged Revenues"). The lienofthe 2005Bonds onthe Pledged Revenues will beon a parity with the lien ofthe City's outstanding Utility System
Revenue Bonds, Series 1996 not refunded by the 2005 Bonds, the Gty's outstanding Utility System Revenue Refunding Bonds, Series 2002 and any Additional
Bonds (herein dermed). The 2005 Bonds will not constitute a general obligation, debt or liability of the City or of the State of Florida or any political subdivision,
agency or instrumentality of the City or the State of Florida within the meaning of any constitutional, statutory, or charter provisions or limitations and neither
the full faith and credit nor the taxing power of the State of Florida or the City are pledged as security for the payment of the principal of, premium, if any, or
interest on the 2005 Bonds.
Payment of the principal of and interest on the 2005 Bonds when due will be insured by a financial guaranty insurance policy to be issued by Ambac Assurance
Corporation simultaneously with del ivery of the 2005 Bonds.
[Insert Logo]
AMOUNTS, MATURITIES, INTEREST RATES AND PRICES OR YIELDS
$
Serial Bonds
AmOlmt
AmOlmt
Maturity
Interest
Rate
Price or
Yield
CUSIP
Maturity
Interest
Rate
Price or
Yield
CUSIP
$
_ _% Term Bonds due November 1,20__ - Price 100% - Yield_%
The 2005 Bonds are offered when, as and ifissued, subject to the satisfaction of certain conditions and subject to the unqualified approval oflegality and tax-
exempt status of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Bond Counsel and Disclosure Counsel to the City. Certain legal matters
will be passed upon for the City by its City Attorney, Goren, Cherof, Doody & Ezrol. P.A., Fort Lauderdale, Florida and for the Underwriter by its counsel Edwards & Angell,
LiP, West Palm Beach, Florida. It is expected that the 2005 Bonds will be delivered through the facilities of The Depository Trust Company in New York, New York, on
or about August _,2005.
BEAR, STEARNS & CO. INC.
The date of this Official Statement is _ ---y 2005.
.Preliminary, subject to change.
"""""'..,"'_~"''''''''''';"'''...,...;__;..~__.~,.;,;""'"'"'~''''''''.,,'''_.~'',._ -c..,
CITY OF BOYNTON BEACH, FLORIDA
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33425
Telephone: 561-375-6000
CITY COMMISSION
Gerald Taylor, Mayor
Bob Ensler, Vice Mayor
Muir C. Ferguson, Connnissioner
Mack McCray, Commissioner
Carl McKoy, Commissioner
CITY OFFICIALS
Kurt Bressner, City Manager
William Mummert, Finance Director
Janet Prainito, City Clerk
CITY ATTORNEY
James Cherof
Goren, Cherof, Doody & Ezrol, P.A.
Fort Lauderdale, Florida
BOND AND DISCLOSURE COUNSEL
Moyle, Flanigan, Katz, Raymond & Sheehan, P.A.
West Palm Beach, Florida
FINANCIAL ADVISOR
RBC Dain Rauscher Inc.
St. Petersburg, Florida
No dealer, broker, salesman or other person has been authorized to make any representations, other than as
contained in this Official Statement, and if given or made, such other information or representations must
not be relied upon. This Official Statement does not constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of the 2005 Bonds by any person in any jurisdiction in which it is unlawful
for such person to make such offer, solicitation or sale. The information contained in this Official Statement
has been obtained from public documents, records and other sources considered to be reliable and, while not
guaranteed as to completeness or accuracy, is believed to be correct. The Underwriter has reviewed the
information in this Official Statement in accordance with and as part of its responsibilities to investors under
federal securities laws as applied to the facts and circumstances of this transaction, but the Underwriter does
not guaranty the accuracy or completeness of such information. Any statements in this Official Statement
involving estimates, assumptions and matters of opinion whether or not so expressly stated, are intended as
such and not as representations of fact, and the City expressly makes no representations that such estimates,
assumptions and opinions will be realized or fulfilled. No information, estimates, assumptions and matters
of opinion contained in this Official Statement, or any sale made hereunder shall under any circumstances
create any implication that there has been no change in the affairs of the City since the date hereof.
The information relating to the Ambac Assurance Corporation contained herein under the captions
"MUNICIPAL BOND INSURANCE" and "SECURITY FOR THE 2005 BONDS- RESERVE ACCOUNT-
AMBAC ASSURANCE SURETY BOND" has been furnished by Ambac Assurance Corporation. No
representation is made by the City or the Underwriter as to the accuracy or completeness of such information
or that there has not been any material adverse change in such information subsequent to the date of such
information. Neither the City nor the Underwriter has made any investigation into the financial condition of
Ambac Assurance Corporation, and no representation is made as to the ability of Ambac Assurance
Corporation to meet its obligations under the Financial Guaranty Insurance Policy or the 2005 Reserve
Account Surety Bond described herein.
THE 2005 BONDS HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR HAS THE BOND
RESOLUTION BEEN QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS
AMENDED, IN RELIANCE UPON EXEMPTIONS CONTAINED IN SUCH ACTS. THE
REGISTRATION OR QUALIFICATION OF THE 2005 BONDS IN ACCORDANCE WITH
APPLICABLE PROVISIONS OF THE SECURITIES LAWS OF THE STATES, IF ANY, IN WHICH
THE 2005 BONDS HAVE BEEN REGISTERED OR QUALIFIED AND TIlE EXEMPTION FROM
REGISTRATION OR QUALIFICATION IN CERTAIN OTHER STATES CANNOT BE
REGARDED AS A RECOMMENDATION THEREOF. NEITHER THESE STATES NOR ANY OF
THEIR AGENCIES HAVE PASSED UPON THE MERITS OF THE 2005 BONDS OR THE
ACCURACY OR COMPLETENESS OF THIS OFFICIAL STATEMENT. ANY
REPRESENTATION TO THE CONTRARY MAY BE A CRIMINAL OFFENSE.
THIS PRELIMINARY OFFICIAL STATEMENT HAS BEEN "DEEMED FINAL" BY THE CITY FOR
PURPOSES OF SECURITIES AND EXCHANGE COMMISSION RULE 15c2-12, EXCEPT FOR
PERMITTED OMISSIONS.
TABLE OF CONTENTS
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1
PURPOSE OF THE 2005 BONDS ...................................................... 1
DESCRIPTION OF THE 2005 BONDS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
General ..................................................................... 2
Redemption Provisions for the 2005 Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
Selection of2005 Bonds for Redemption. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. 3
Notice of Redemption . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. 3
Effect of Redemption .......................................................... 3
Book-Entry Only System ....................................................... 3
SECURITY FOR THE 2005 BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
General ..................................................................... 5
Definitions .................................................................. 6
Rate Covenant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
Reserve Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 8
Flow of Funds . . . . . . .. . . . " . . . . . . . . . . " . . . . . . . . . . " . . . . . . . . . . .. . . . . . . . . . . .. . .. 9
General Reserve Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. II
Issuance of Additional Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. II
FINANCIAL GUARANTY INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
General .................................................................... 13
Payment Pursuant to Financial Guaranty Insurance Policy ............................ 13
Ambac Assurance Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
Incorporation of Certain Documents by Reference .................................. 15
ESTIMATED SOURCES AND USES OF FUNDS ........................................ 16
DEBT SERVICE REQUIREMENTS ................................................... 17
THE SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17
General .................................................................... 17
Service Area ..................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17
Condition of the Overall System and System Performance . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
Administration .............................................................. 18
Water System ............................................................... 18
Wastewater System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
Stormwater System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
Rates and Customer Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
Historical Revenues .......................................................... 21
Impact Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
System Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 22
THE CITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
VERIFICATION OF MATHEMATICAL COMPUTATIONS ................................ 22
TAX EXEMPTION ....................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23
LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
COVENANTS CONCERNING ONGOING DISCLOSURE '" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
UNDERWRITING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 27
RATINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 27
LEGALITY ....................................................................... 27
EXCERPTS FROM COMPREHENSIVE ANNUAL REPORT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
MISCELLANEOUS ................................................................ 27
AUTHORIZATION OF OFFICIAL STATEMENT ........................................ 28
-}-
.1XC
~l'IDIX D
.rPENDIX E
Statistical and Other General Information Concerning the
City of Boynton Beach, Florida
Excerpts from Comprehensive Annual Financial Report of
the City for the Fiscal Year Ended September 30, 2004
Summary of Certain Provisions of the Resolution
Proposed Form of Opinion of Bond Counsel
Specimen Financial Guaranty Insurance Policy
-11-
OFFICIAL STATEMENT
$15,000,000*
City of Boynton Beach, Florida
Utility System Revenue Refunding Bonds,
Series 2005
INTRODUCTION
The purpose of this Official Statement, including the cover page and appendices, is to set forth
certain information concerning the sale by the City of Boynton Beach, Florida (the "City") of its Utility
System Revenue Refunding Bonds, Series 2005, in the aggregate principal amOlmt of $15,000,000* (the
"2005 Bonds").
The 2005 Bonds will be issued under and secured pursuant to Resolution No. 92-96 adopted by the
City Commission ofthe City (the "City Commission") on June 16, 1992, as amended and supplemented, in
particular by Resolution No. R05-_, adopted by the City Commission on August 2, 2005 (collectively, the
"Resolution ") and the Constitution and laws of the State of Florida, particularly Chapter 166, Florida Statutes
and the Charter ofthe City. Copies of the Resolution are on file with the City at the office of the City Clerk,
and reference thereto is hereby made for a complete understanding ofthe terms of and security for the 2005
Bonds, the custody and application of the proceeds ofthe 2005 Bonds, the rights and remedies ofthe holders
of the 2005 Bonds and the rights, duties and obligations of the City. The 2005 Bonds will be issued on a
parity with the City's outstanding Utility System Revenue Bonds, Series 1996 not refunded by the 2005
Bonds (the "Unrefunded 1996 Bonds"), the City's outstanding Utility System Revenue Refunding Bonds,
Series 2002 (the "2002 Bonds") and any additional parity bonds issued pursuant to the Resolution (the
"Additional Bonds"). The Unrefunded 1996 Bonds, the 2002 Bonds, the 2005 Bonds and any Additional
Bonds are herein collectively referred to as the "Bonds."
The 2005 Bonds will be limited obligations of the City and will be secured and payable solely
from the Net Revenues (as hereinafter defined) derived by the City from the operation of its water,
sewer and stormwater utility system (the "System "), certain Impact Fees (as hereinafter defined), and
moneys and investments held in certain funds and accounts created by the Resolution (collectively, the
"Pledged Revenues"). Neither the faith and credit nor the taxing power of the City, the State of
Florida or any political subdivision thereof will be pledged to the payment of the principal of or
interest on the 2005 Bonds. See "SECURITY FOR THE 2005 BONDS" herein.
Ambac Assurance Corporation has issued its commitment to issue a financial guaranty insurance
policy insuring the payment of the principal of and interest on the 2005 Bonds simultaneously with the
delivery of the 2005 Bonds. See "FINANCIAL GUARANTY INSURANCE" herein.
All capitalized terms in this Official Statement not otherwise defined herein shall have the meanings
set forth in Appendix C hereto, unless the context clearly indicates otherwise.
PURPOSE OF THE 2005 BONDS
The 2005 Bonds are being issued by the City for the principal purpose of providing funds, together
with other available funds of the City, to defease prior to maturity the City's outstanding Utility System
Revenue Bonds, Series 1996 maturing on and after November 1,2007 (the "Refunded Bonds").
*Preliminary, subject to change.
A portion of the proceeds derived from the issuance of the 2005 Bonds, and certain other funds of
the City, will be used for purpose of defeasing the Refunded Bonds. The City plans, upon funding of the
hereinafter described Escrow Deposit Trust Fund, to irrevocably call the Refunded Bonds for redemption
on November I, 2006 at a redemption price equal to 102% of the principal amount to be redeemed plus
accrued interest to the redemption date.
A portion of the proceeds derived from the sale of the 2005 Bonds, and other funds of the City, will
be deposited into an irrevocable Escrow Deposit Trust Fund (the "Escrow Deposit Trust Fund") held by The
Bank of New York Trust Company, N.A. (the "Escrow Agent") pursuant to an Escrow Deposit Agreement
(the "Escrow Agreement") between the City and the Escrow Agent, in an amount sufficient, together with
investment income thereon, to pay principal of, redemption premium and interest on the Refunded Bonds.
Pending disbursement to pay the Refunded Bonds, amounts in the Escrow Deposit Trust Fund will either be
held uninvested or will be invested in direct, noncallable United States Treasury Obligations. Upon the
funding and, if applicable, investment, of the Escrow Deposit Trust Fund, in the opinion of Bond Counsel,
rendered in reliance upon the verification report of Causey, Demgen & Moore Inc., independent certified
public accountants, the lien of the Refunded Bonds on the Pledged Revenues will have been defeased and
the Refunded Bonds will no longer be considered to be outstanding for purposes of the Resolution.
DESCRIPTION OF THE 2005 BONDS
General
The 2005 Bonds will be issued in the aggregate principal amounts shown on the cover page hereof.
The 2005 Bonds will be issued in fully registered form without coupons in principal denominations of$5,000
each or any integral multiple thereof, as described below under "Book-Entry-Only System." The 2005 Bonds
will be dated the date of delivery, will bear interest at the rates per annum, computed on the basis of a
360-day year consisting oftwelve thirty-day months, and will mature on the dates and in the amounts set
forth on the cover page hereof. Interest on the 2005 Bonds will be payable on November 1, 2005, and
semi-annually thereafter on May 1 and November 1 of each year. The Bank of New York Trust Company,
N.A., will act as paying agent and Bond Registrar for the 2005 Bonds.
Redemption Provisions for the 2005 Bonds
Optional Redemption. The 2005 Bonds will not be subject to optional redemption prior to their
stated maturities.
Mandatory Redemlltion. The 2005 Bonds maturing on November 1, 20_ will be subject to
mandatory redemption in part prior to their maturity date at a redemption price equal to the principal amount
thereof, without premium, plus accrued interest to the redemption date, on November 1,20_ and on each
November 1 thereafter in the years and principal amounts set forth below (except for the final installment
due at maturity, which shall not be a redemption):
Year
Amount
* Maturity.
2
Selection of 2005 Bonds for Redemption
The City shall select the 2005 Bonds or portions thereof to be purchased or redeemed by lot. The
City shall promptly notify the Bond Registrar in writing of the numbers of the 2005 Bonds so selected for
redemption and in making such selection, each 2005 Bond shall be treated as representing that number of
2005 Bonds of the lowest authorized denomination of 2005 Bonds as is obtained by dividing the principal
amount of such 2005 Bond by such denomination.
Notice of Redemption
At least thirty (30) and not more than sixty (60) days prior to the redemption date, a notice of such
redemption: (i) shall be filed with the Bond Registrar and (ii) shall be mailed postage prepaid, to all
registered owners of the 2005 Bonds to be redeemed at their addresses as they appear on the registration
books maintained by the Bond Registrar, but failure of any bondholder to receive any such notice shall not
affect the validity of the proceedings for such redemption, and any defect in the giving of such notice of
redemption of any 2005 Bond shall not affect the validity of the redemption of any other 2005 Bond.
Effect of Redemption
On the date so designated for redemption. notice having been given in the manner and under the
conditions provided in the Resolution, the 2005 Bonds so called for redemption shall become and be due and
payable at the redemption price provided for redemption of such 2005 Bonds on such date, and, moneys for
payment of the redemption price being held in separate accounts by the Finance Director or by the Bond
Registrar in trust for the Holders of the 2005 Bonds to be redeemed, interest on the 2005 Bonds so called for
redemption shall cease to accrue, such 2005 Bonds shall cease to be entitled to any lien, benefit or security
under the Resolution, and the Holders or registered owners of such 2005 Bonds shall have no rights in
respect thereof except to receive payment of the redemption price thereof and accrued interest thereon.
Book-Entry Only System
Unless the book-entry system described herein is terminated, as hereinafter described, The
Depository Trust Company ("DTC"), New York, New York, will act as securities depository for the 2005
Bonds. The 2005 Bonds will be issued as fully registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an authorized representative of
DTC. One fully registered 2005 Bond certificate will be issued for each maturity of the 2005 Bonds, in the
aggregate principal amount of such maturity, and will be deposited with DTC or with the Trustee on behalf
ofDTC.
DTC, the world's largest depository, is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and "clearing agency" registered pursuant to the provisions of Section 17 A of the
Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 2 million issues of U.S.
and non-US. equity issues, corporate and municipal debt issues and money market instnnnents from over
85 countries that DTC's participants ("Direct Participants") deposit with DTC. DTC also facilitates the
settlement among Direct Participants of sales and other securities transactions in deposited securities, through
electronic computerized book-entry transfers and pledges between Direct Participant's accounts, thereby
eliminating the need for physical movement of securities certificates. Direct Participants include both US.
and non-US. securities brokers and dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation
3
("DTCC"). DTCC, in turn, is owned by a number of Direct Participants ofDTC and Members ofthe National
Securities Clearing Corporation, Fixed Income Clearing Corporation and Emerging Markets Clearing
Corporation, (NSCC, FICC and EMCC, also subsidiaries of DTCC), as well as by the New York Stock
Exchange, Inc., the American Stock Exchange, LLC, and the National Association of Securities Dealers, Inc.
Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and
dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("IndirectParticipants"). DTC has Standard and Poor's highest rating:
AAA. The DTC rules applicable to its Participants are on file with the Securities and Exchange Commission.
More information about DTC can be found at www.dtcc.com and www.dtc.org.
Purchases ofthe 2005 Bonds under the DTC system must be made by or through Direct Participants,
which will receive a credit for the 2005 Bonds on DTC's records. The ownership interest of each actual
purchaser of each 2005 Bond (a "Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase,
but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as
well as periodic statements of their holdings, from the Direct or Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers of ownership interests in the 2005 Bonds are to be
accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial
Owners. Beneficial Owners will not receive certificates representing their ownership interests in the 2005
Bonds, except in the event that use of the book-entry system for the 2005 Bonds is discontinued.
To facilitate subsequent transfers, all 2005 Bonds deposited by Participants with DTC are registered
in the name ofDTC's partnership nominee, Cede & Co. The deposit of 2005 Bonds with DTC and their
registration in the name of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the 2005 Bonds; DTC's records reflect only the identity of the Direct
Participants to whose accounts such 2005 Bonds are credited, which mayor may not be the Beneficial
Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings
on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and IndirectParticipants to Beneficial Owners
will be governed by arrangements among them, subject to any statutory or regulatory requirements as may
be in effect from time to time.
Beneficial Owners of the 2005 Bonds may wish to take certain steps to augment the transmission
to them of notices of significant events with respect to the 2005 Bonds, such as redemptions, defaults and
proposed amendments to Bond documents. Beneficial Owners of the 2005 Bonds may wish to ascertain that
the nominee holding the 2005 Bonds for their benefit has agreed to obtain and transmit notices to Beneficial
Owners.
Redemption notices shall be sent only to Cede & Co. for so long as it is the registered owner of the
2005 Bonds. If less than all of the 2005 Bonds of a maturity are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in such maturity issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to the
2005 Bonds. Under its usual procedures, DTC mails an Omnibus Proxy to the City as soon as possible after
the record date. The Omnibus Proxy assigns Cede & Coo's consenting or voting rights to those Direct
Participants to whose accounts the 2005 Bonds are credited on the record date (identified in a listing attached
to the Omnibus Proxy).
4
Payments of principal, premium, if any, and interest on the 2005 Bonds will be made to Cede & Co.
or such other nominee as may be requested by an authorized representative of DTC. DTC's practice is to
credit Direct Participants' accounts on the payable date in accordance with their respective holdings shown
on DTC's records, unless DTC has reason to believe that it will not receive payment on the payable date.
Payments by Direct or Indirect Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the accounts of customers in bearer form or
registered in "street name" and will be the responsibility of such Participant and not of DTC, the Paying
Agent, or the City, subject to any statutory or regulatory requirements as may be in effect from time to time.
Payment of principal, premimn, if any, and interest to DTC is the responsibility of the City or the Paying
Agent, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities depository with respect to the 2005 Bonds
at any time by giving reasonable notice to the City. Under such circumstances, in the event that a successor
securities depository is not obtained, 2005 Bond certificates are required to be printed and delivered.
The City may decide to discontinue use of the system of book entry transfers through DTC (or a
successor securities depository). In that event, ifthe City does not appoint a successor depository, 2005 Bond
certificates will be printed and delivered.
THE CITY, THE BOND REGISTRAR AND THE UNDERWRITER CANNOT AND DO NOT
GIVE ANY ASSURANCES THAT DTC WILL DISTRIBUTE TO ITS PARTICIPANTS OR THAT
DIRECT PARTICIPANTS OR INDIRECT PARTICIPANTS WILL DISTRIBUTE TO BENEFICIAL
OWNERS OF THE 2005 BONDS (1) PAYMENTS OF THE PRINCIPAL OF OR INTEREST ON THE
2005 BONDS OR (2) REDEMPTION OR OTHER NOTICES, OR THAT THEY WILL DO SO ON A
TIMELY BASIS, OR THAT DTC, DIRECT PARTICIPANTS OR INDIRECf PARTICIPANTS WILL
SERVE AND ACT IN THE MANNER DESCRIBED IN THIS OFFICIAL STATEMENT. THE CURRENT
"RULES" APPLICABLE TO DTC ARE ON FILE WITH THE SECURITIES AND EXCHANGE
COMMISSION, AND THE CURRENT "PROCEDURES" OF DTC TO BE FOLLOWED IN DEALING
WITH ITS PARTICIPANTS ARE ON FILE WITH DTC.
Portions ofthe foregoing concerning DTC and DTC's book-entry system are based on information
furnished by DTC to the City. No representation is made herein by the City or the Underwriter as to the
accuracy or completeness of such information.
In the event the system of book -entry ownership of the 2005 Bonds is discontinued, transfers and
exchanges of the 2005 Bonds will be accomplished as described in Appendix C "Summary of Certain
Provisions of the Resolution" hereto.
SECURITY FOR THE 2005 BONDS
General
The principal of, premium, if any, and interest on the 2005 Bonds will be payable solely from and
secured by a pledge of the Pledged Revenues, which include (i) Net Revenues of the System, (ii) to the extent
hereinafter described, certain Impact Fees, and (iii) subject to the application thereof as provided in the
Resolution, amOlmts in certain funds and accounts established under the Resolution. The lien of the 2005
5
Bonds on the Pledged Revenues will be on a parity with the Umefunded 1996 Bonds, the 2002 Bonds and
any Additional Bonds issued under the Resolution.
THE BONDS DO NOT AND WILL NOT CONSTITUTE A GENERAL OBLIGATION, DEBT OR
LIABILITY OF THE CITY OR THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION,
AGENCY OR INSTRUMENTALITY OF THE CITY OR THE STATE OF FLORIDA WITHIN THE
MEANING OF THE FLORIDA CONSTITUTION, AND NEITHER THE FULL FAITH AND CREDIT
NOR THE TAXING POWER OF THE CITY, THE STATE OF FLORIDA, OR ANY POLITICAL
SUBDIVISION THEREOF, IS OR WILL BE PLEDGED OR OBLIGATED AS SECURITY FOR THE
PAYMENT OF THE PRINCIPAL OF OR INTEREST ON ANY BONDS. THE BONDS ARE AND WILL
BE LIMITED OBLIGATIONS OF THE CITY AND THE HOLDERS OF THE BONDS SHALL HAVE NO
RIGHT TO REQUIRE THE IMPOSITION OF ANY TAX OR THE ESTABLISHMENT OF ANY RATE
OF TAXATION FOR THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON ANY BONDS.
Definitions
"Pledged Revenues" means (i) Net Revenues, (ii) to the extent provided in the Resolution, hnpact
Fees (see"The System-Impact Fees" for further information) and (iii) to the extent provided in the Resolution,
other amounts in certain funds and accounts created by the Resolution.
"Net Revenues" means for any particular period the amount of excess of the Revenues for such
period over the Current Expenses payable from the Revenue Account for such period, provided that for
purposes of determining whether or not the City can meet debt service coverage requirements with respect
to the issuance of Additional Bonds or determining whether or not the City has met its rate covenant, the term
"Net Revenues" shall not include Revenues deposited in the Rate Stabilization Account.
"Revenues" means all moneys received by the City in connection with or as a result of its ownership
or operation of the System, including any income derived from the sale of water produced, treated or
distributed by the System, or the collection, transmission, treatment or disposal of sewage or stormwater
runoff by the System, any proceeds of use and occupancy insurance on the System or any part thereof,
payments made to the City under Interest Rate Swaps, income from investment of money held under the
Resolution and amounts transferred from the Rate Stabilization Account to the Revenue Account pursuant
to the Resolution and any Assessments; but excluding (i) Impact Fees, (ii) special assessments other than any
Assessments, (iii) grants, contributions or donations, (iv) income from the investment of moneys in the
Construction Fund and the Impact Fee Account, (v) proceeds of insurance (except use and occupancy
insurance) and condemnation awards, (vi) money held in any Arbitrage Rebate Fund, (vii) proceeds of sales
of property constituting a part ofthe System or (viii) the proceeds of Bonds or other Utility Debt.
"Current Expenses" means the City's reasonable and necessary current expenses of maintenance,
repair and operation of the System, ( a) including all ordinary and usual expenses of maintenance and repair,
which may include expenses not annually recurring, all reasonable City administrative expenses allocated
to the System pursuant to the Annual Budget, any reasonable payments to pension or retirement funds
properly chargeable to the System, insurance premiums, engineering expenses relating to maintenance, repair
and operation, expenses, including engineering expenses incurred in connection with the research and
development of improvements or planned or possible improvements to the System, fees and expenses of the
Bond Registrar, legal and accounting expenses, any fees, fmes, or penalties lawfully imposed on the System,
any taxes which may be lawfully imposed on the System or its income or operations and reserves for such
taxes or payments in lieu of such taxes as the Commission shall determine to pay, premiums for bond
insurance, interest rate insurance or insurance assuring availability of the amounts required to be on deposit
in the Reserve Account, fees for Credit Facilities or Liquidity Facilities, initial fees paid by the City to a
6
party in consideration of the execution of an Interest Rate Swap (as opposed to payments made by the City
based upon the notional amount pursuant to the Interest Rate Swap) and any other expenses required to be
paid by the City under the provisions of the Resolution or by law, including any amounts required from time
to time to fund the Arbitrage Rebate Fund, (b) but Current Expenses shall not include any reserves for
extraordinary maintenance or repair, or any allowance for depreciation or amortization, or any deposits or
transfers to the credit of the Sinking Fund Account, the Reserve Account, the Rate Stabilization Account,
the Subordinated Indebtedness Account, the Renewal, Replacement and Improvement Account, the General
Reserve Account or the Impact Fee Account, and shall not include, for purposes of determining whether or
not the City has met its rate covenant, or determining whether or not the City can meet the debt service
coverage requirement with respect to the issuance of Additional Bonds, any City administrative expenses
allocated to the System.
"Impact Fees" means all non-refundable (except at the option of the City) capital recovery charges,
pollution control fees, capacity charges and other similar fees and charges separately imposed by the City
as a nonuser capacity charge for the proportionate share of the cost of expanding, oversizing, separating or
constructing Improvements to the System and any investment earnings from the investment of funds on
deposit in the Impact Fee Account, but excluding those charges imposed by the City on persons connecting
to the System for the cost of physically connecting thereto, including but not limited to the costs of
excavation, plumbing, installation of meters and landscaping.
Rate Covenant
The City has covenanted under the Resolution to fix, charge and collect reasonable rates and charges
for the use of the services and facilities furnished by the System and that from time to time, and as often as
it shall appear necessary, to adjust such rates and charges by increasing or decreasing the same or any
selected categories of rates and charges so that the Net Revenues will be sufficient to provide an amount in
each Fiscal Year at least equal to one hundred ten per centum (IIO%) of the Principal and Interest
Requirements for such Fiscal Year on account of the Bonds then Outstanding and one hundred per centum
(100%) of all amounts required to be deposited to the Reserve Account and the Renewal, Replacement and
Improvement Account.
The City has further covenanted under the Resolution that if in any Fiscal Year the Net Revenues
shall be less than the amount required under the preceding paragraph, within 30 days of the receipt of the
audit report for such Fiscal Year, the City shall employ a Rate Consultant to review and analyze the financial
status of the System, to inspect the System and to submit, within 60 days thereafter, a written report to the
City recommending revisions of the rates, fees and charges of the System and the methods of operation of
the System that will result in producing the amount so required in the following Fiscal Year. Promptly upon
its receipt of such recommendations, the City shall transmit copies thereof to the City Manager and shall
revise its rates, fees and charges, or alter its methods of operation and take such other action as shall conform
with such recommendations.
If the City shall fail to comply with the recommendations of the Rate Consultant, the registered
owners of not less than ten per centum (10%) in principal amount of all Bonds then Outstanding may institute
and prosecute an action or proceeding in any court or before any board or commission having jurisdiction
to compel the City to comply with the recommendations and the requirements ofthe Rate Consultant.
If the City shall comply with all recommendations of the Rate Consultant in respect to its rates, fees,
charges and methods of opemtion, the failure of Net Revenues to meet the above described requirements
shall not constitute an Event of Default so long as the Revenues, together with available moneys in the funds
and accounts under the Resolution, are sufficient to pay in cash the Current Expenses and to pay the Principal
7
and Interest Requirements on all Outstanding Bonds and other Utility Debt, except any Subordinated
Indebtedness, for such Fiscal Year.
Reserve Account
General. The Resolution provides for the establishment and maintenance of a Reserve Account, and
separate subaccounts within the Reserve Account for each Series of Bonds issued pursuant to the Resolution,
in an amount (i) with respect to the 2005 Bonds, equal to the lesser of (a) 10% of the aggregate stated
principal amount of the 2005 Bonds Outstanding, (b) the maximum amount of principal and interest
scheduled to become due on the 2005 Bonds in the current or any succeeding Bond Year, or (c) 125% of the
average annual debt service on the Outstanding 2005 Bonds (calculated on a Bond Year basis at the time of
issuance only) and (ii) with respect to any Series of Additional Bonds, such funding requirement for the
Reserve Account, if any, as shall be established in the Series Resolution for such Series of Additional Bonds
(the "Reserve Account Requirement"). Moneys held for the credit of each subaccount in the Reserve Account
shall be used for the payment of the interest on, the principal of and the Amortization Requirements for the
Bonds for which such subaccount was established whenever and to the extent that moneys held for the credit
of the Bond Service Subaccount or the Redemption Subaccount in respect of such Bonds shall be insufficient
for such purpose. If at any time the moneys held for the credit of any such subaccount in the Reserve Account
shall exceed the Reserve Account Requirement for the Series for which such subaccount in the Reserve
Account was established, such excess shall be withdrawn and deposited to the credit ofthe Revenue Account.
In lieu of the required deposit into the Series 2005 Reserve Subaccount, the City may, with the
consent of any applicable issuer of a Credit Facility or Liquidity Facility then in effect, cause to be deposited
into the Series 2005 Reserve Subaccount a Reserve Account Insurance Policy or Reserve Account Letter of
Credit for the benefit of the Holders of the 2005 Bonds either in substitution for the full amount then on
deposit therein, or in an amount equal to the difference between the amount required to be deposited in the
Series 2005 Reserve Subaccount and the smn, if any, then on deposit in the Series 2005 Reserve Subaccount,
which Reserve Account Insurance Policy or Reserve Account Letter of Credit shall be payable (upon the
giving of notice as required thereunder) on any interest payment date on which a deficiency exists for the
2005 Bonds, which cannot be cured by moneys in any other fund or account held pursuant to the Resolution
and available for such purpose. To the extent required by the issuer of a Reserve Account Insurance Policy
or Reserve Account Letter of Credit, the City may enter into an agreement or agreements with a Depositary
for the purpose of depositing such Reserve Account Insurance Policy or Reserve Account Letter of Credit
with such Depositary and providing for utilization of proceeds of the Reserve Account Insurance Policy or
Reserve Account Letter of Credit as provided in the Resolution. If any such Reserve Account Insurance
Policy or Reserve Account Letter of Credit is substituted for moneys on deposit in the Series 2005 Reserve
Subaccount, the excess moneys in the Series 2005 Reserve Subaccount shall be applied to satisfy any such
deficiency in any of the funds or accounts under the Resolution, and any remaining balance shall be
deposited in the General Reserve Account.
The City has received a commitment from Ambac Assurance Corporation for the issuance of a
Reserve Account Insurance Policy in connection with the 2005 Bonds, and expects that upon issuance of the
2005 Bonds the Reserve Account Requirement for the 2005 Bonds will be satisfied by the issuance of such
Reserve Account Insurance Policy. See "Ambac Assurance Surety Bond" below for further information.
Ambac Assurance Surety Bond. In connection with the issuance of the 2005 Bonds, the City will
purchase a Reserve Account Insurance Policy in the form of a surety bond issued by Ambac Assurance for
the purpose of providing coverage equal to the Reserve Account Requirement for the 2005 Bonds (herein,
the" 2005Reserve Account Surety Bond"), which will be obtained by the City in lieu of any moneys required
to be deposited in the subaccount within the Series 2005 Reserve Subaccount relating to the 2005 Bonds, in
8
an amount equal to the Reserve Account Requirement for the 2005 Bonds. The 2005 Bonds will only be
delivered upon the issuance of the 2005 Reserve Account Surety Bond. The premium on the 2005 Reserve
Account Surety Bond is to be fully paid at or prior to the issuance and delivery of the 2005 Bonds. The 2005
Reserve AccOlmt Surety Bond provides that upon the later of (i) one (1) day after receipt by Ambac
Assurance of a demand for payment executed by the Bond Registrar certifying that provision for the payment
of principal of or interest on the 2005 Bonds, when due has not been made or (ii) the interest payment date
specified in the Demand for Payment submitted to Ambac Assurance, Ambac Assurance will promptly
deposit funds with the Bond Registrar sufficient to enable the Bond Registrar to make such payments due
on the 2005 Bonds, but in no event exceeding the Surety Bond Coverage, as defined in the 2005 Reserve
Account Surety Bond.
Pursuant to the terms of the 2005 Reserve Account Surety Bond, the Surety Bond Coverage is
automatically reduced to the extent of each payment made by Ambac Assurance under the terms of the 2005
Reserve Account Surety Bond and the City is required to reimburse Ambac Assurance for any draws under
the 2005 Reserve Account Surety Bond with interest at a market rate. Upon such reimbursement, the 2005
Reserve Account Surety Bond is reinstated to the extent of each principal reimbursement up to but not
exceeding the Surety Bond Coverage. The reimbursement obligation of the City is subordinate to the City's
obligations with respect to the Bonds.
In the event that a portion of the Series 2005 Reserve Subaccount is funded with cash, any draw on
the 2005 Reserve Account Surety Bond shall be made only after all cash in such subaccount is utilized. In
the event that the amount on deposit in, or credited to, the Series 2005 Reserve Subaccount, in addition to
the amount available under the 2005 Reserve Account Surety Bond, includes another Reserve Account
Insurance Policy or Reserve Account Letter of Credit (the "Additional Funding Instrument"), draws on the
2005 Reserve Account Surety Bond and the Additional Funding Instrument shall be made on a pro rata basis
to fund the insufficiency. The Resolution provides that the 2005 Reserve Subaccount shall be replenished
in the following priority: (i) principal and interest on the 2005 Reserve Account Surety Bond and on any
other Additional Funding Instrument shall be paid from first available Net Revenues on a pro rata basis; (ii)
after all such amounts are paid in full, amounts necessary to fund the 2005 Reserve Subaccount to the
required level, after taking into account the amounts available under the 2005 Reserve Account Surety Bond
and any Additional Funding Instrument shall be deposited from the next available Net Revenues.
The 2005 Reserve Account Surety Bond does not insure against nonpayment caused by the
insolvency or negligence of the Bond Registrar.
The insurance provided by the 2005 Reserve Account Surety Bond is not covered by the Florida
Insurance Guaranty Association.
See "FINANCIAL GUARANTY INSURANCE" below for information regarding Ambac Assurance.
Flow of Funds
Revenues will be collected by the City and deposited as received with a Depositary or Depositaries
to the credit of the Revenue Account. All moneys in the Revenue Account shall be held by the City in trust
and applied as follows:
On or before the 20th day of each month, except as provided hereafter, the City shall withdraw an
amount equal to the balance remaining in the Revenue Account, less an amount (to be held for the payment
of Current Expenses) equal to the amount shown by the Annual Budget to be necessary for Current Expenses
during the next two (2) ensuing months, and deposit the sum so withdrawn in the following order:
9
(a) to the credit of the Bond Service Subaccount of the Sinking Fund Account, an amount, together
with any amount concurrently deposited therein from the Impact Fee Account, equal to one-sixth (l/6th) of
the amount of interest payable on the Bonds of each Series on the next succeeding Interest Payment Date and
equal to one-twelfth (l/12th) or, ifprincipal is payable semi-annually, one-sixth (l/6th), of the next maturing
installment of principal on all Serial Bonds then outstanding; provided, however, that in each month
intervening between the date of delivery of the 2005 Bonds, any Additional Bonds or any Refunding Bonds
(beginning with the month following the month in which such delivery takes place) and the next succeeding
Interest Payment Date and the next succeeding principal payment date, respectively, the amount specified
in this subparagraph shall be that amount which when multiplied by the number of deposits to the credit of
the Bond Service Subaccount required to be made during such respective periods as provided above will
equal the amounts required (in addition to any amounts received as accrued interest or capitalized interest
from the proceeds of such Bonds) for such next succeeding interest payment and next maturing installment
of principal, respectively; and provided further that on or before the 15th day of the month preceding any
Interest Payment Date or maturity date of Bonds, the required deposit to the Bond Service SubaccOllllt shall
be the amount necessary, together with other amounts on deposit in such Subaccount, to provide for the
interest and principal coming due on such Interest Payment Date or maturity date;
(b) to the credit of the Redemption Subaccount of the Sinking Fund Account, an amount, together
with any amount concurrently deposited therein from the Impact Fee Account, equal to one-twelfth (l/12th)
or, if any Bonds are required to be retired semi-annually in satisfaction of the Amortization Requirements
therefor, one-sixth (l/6th), of the principal amount of Term Bonds of each Series then outstanding required
to be retired, in satisfaction of the Amortization Requirements, if any, for such Fiscal Year; provided that
on or before the 20th day of the month preceding the due date of any Amortization Requirement, the required
deposit to the Redemption Subaccount shall be the amount necessary, together with other amounts on deposit
therein, to provide for such Amortization Requirement;
(c) to the credit of the Reserve Account and the subaccounts therein, such amount, if any, of any
balance remaining after making the deposit described in clauses (a) and (b) above (or the entire balance if
less than the required amount) which will be required to make the amount deposited to the credit of the
Reserve Account and the subaccounts therein in such month equal to the Reserve Account Deposit
Requirement for all Bonds for such month. In the event the amount available to be deposited in the Reserve
Account at any time is less than the Reserve Account Deposit Requirement for all Bonds at such time, the
amount available shall be allocated among the various subaccounts having a Reserve Account Deposit
Requirement pro rata, based upon the proportion that the Reserve Account Deposit Requirement for each
subaccount bears to the total Reserve Account Deposit Requirements for all subaccounts;
(d) to the credit of the Renewal, Replacement and Improvement Account, such amount, if any, of
any balance remaining after making the deposits described in clauses (a), (b) and (c) above (or the entire
balance if less than the required amount) as may be required to make the amount deposited in such month
to the credit of the Renewal, Replacement and Improvement Account equal to one-twelfth (1/12th) of the
difference between any lesser amount on deposit therein and the Renewal, Replacement and Improvement
Account Requirement for such Fiscal Year;
(e) to the credit of the Rate Stabilization Account, such amounts as shall be determined from time
to time by the Commission for crediting thereto;
(t) to the credit of any Arbitrage Rebate Fund, such amount as shall be determined from time to time
by the Commission for crediting thereto;
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(g) to the credit of the Subordinated Indebtedness Account, an amount, if any, of any balance
remaining after making the deposits under clauses (a) through (f) above (or the entire balance ifless than the
required amount) equal to the sum of one-twelfth (l/12th) ofthe principal of, redemption premium, if any,
and interest coming due on any Subordinated Indebtedness during the next succeeding twelve month period
and the amount, if any, required to be deposited in any special reserve subaccount established within the
Subordinated Indebtedness Account as provided in the Resolution; and
(h) to the credit of the General Reserve Account, the balance, if any, remaining after making the
deposits described in clauses (a) through (g) above.
If the amount deposited in any month to the credit of any of the Accounts mentioned in (a) through
(h), inclusive, above shall be less than the amount required to be deposited therein under the Resolution, the
requirement therefor shall nevertheless be cumulative and the amount of any deficiency in any month shall
be added to the amount otherwise required to be deposited in each month thereafter until such time as all
such deficiencies have been made up.
General Reserve Account
The General Reserve shall be disbursed as follows:
(a) to pay the Cost of Improvements;
(b) to purchase or redeem Bonds;
(c) to make up deficiencies in any of the accounts and funds created by the Resolution;
(d) to pay the Cost of any item qualifying as an authorized expenditure from the Renewal,
Replacement and Improvement Account;
(e) to make payments required under Interest Rate Swap agreements; and
(f) for any lawful use of the City as directed by the City Commission.
Issuance of Additional Bonds
The City may issue Additional Bonds under and secured by the Resolution, on a parity as to the
pledge of the Pledged Revenues with any other Bonds then Outstanding, provided that there shall be filed
with the City a written statement or report, with respect to such Additional Bonds being issued to provide
funds to pay the Cost of a Project, described in either (i) or (ii) below, or, with respect to Additional Bonds
issued to pay debt service on Utility Debt, described in (ii) below: (i) prepared by the Consulting Engineers
and demonstrating that the percentage derived by dividing the Net Revenues projected for the System, based
upon assumptions approved in writing by each issuer of a Credit Facility after an opportunity to review and
comment on such statement or report, for the Fiscal Year following the Fiscal Year in which the Completion
Date of the Improvements to be financed by the Additional Bonds then to be delivered is expected to occur,
as such Completion Date is established by the Consulting Engineers, adjusted as provided below, by the
Maximum Principal and Interest Requirements, including the Principal and Interest Requirements with
respect to the Additional Bonds then to be delivered, for any future Fiscal Year is not less than one hundred
ten per centum (110%) or (ii) prepared by the Consulting Engineers, the Finance Director, the Accountant
or the Rate Consultant and demonstrating that the percentage derived by dividing the Net Revenues for any
period of twelve consecutive months selected by the City out of the twenty four months preceding the
11
delivery of such written statement or report, by the Maximum Principal and Interest Requirements, including
the Principal and Interest Requirements with respect to the Additional Bonds then to be delivered, for any
future Fiscal Year is not less than one hlUldred ten per centum (110%), provided, that for purposes of this
clause (ii), Net Revenues consisting of Impact Fees and amounts transferred from the Rate Stabilization
Account shall not account for more than 10% of the total Net Revenues. The period during which Net
Revenues are determined is referred to as the "Measurement Period".
In calculating Net Revenues for purposes of the preceding paragraph, the following adjustments to
Net Revenues may be made:
(I) If the City, prior to the issuance of the proposed Additional Bonds, shall have increased the rates,
fees, rentals or other charges for the services of the System, the Net Revenues for the Measurement Period
may be adjusted to show the Net Revenues which would have been derived from the System in such
Measurement Period as if such increased rates, fees, rentals or other charges for the services of the System
had been in effect during all of such Measurement Period.
(2) If the City shall have acquired or has contracted to acquire any privately or publicly owned
existing water system, sewer system or stormwater system, then the Net Revenues derived from the System
during the Measurement Period may be increased by addition to the Net Revenues for the Measurement
Period of the Net Revenues which would have been derived from said existing water system, sewer system
or stormwater system if such existing water system, sewer system or stormwater system had been a part of
the System during the Measurement Period. For the purposes of this paragraph, the Net Revenues derived
from said existing water system, sewer system or stormwater system during the Measurement Period shall
be adjusted by deducting the cost of operation and maintenance of said existing water system, sewer system
or stormwater system from the gross revenues of said existing water system, sewer system or stormwater
system in the same manner provided in the Resolution for the determination of Net Revenues, and adjusted
in each case to reflect mlUlicipal ownership of such system.
(3) If the City, in connection with the issuance of Additional Bonds, shall enter into a contract (with
a duration not less than the final maturity of such Additional Bonds) with any public or private entity
whereby the City agrees to furnish services in connection with any water system, sewer system or stormwater
system, then the Net Revenues of the System during the Measurement Period may be increased by the least
amount which said public or private entity shall guarantee to pay in anyone year for the furnishing of said
services by the City, after deducting therefrom the proportion of operating expenses and repair, renewal and
replacement cost attributable in such year to such services. Such payments shall be deemed to be Net
Revenues of the System and pledged for the Bonds in the same manner as other Net Revenues of the System.
(4) If the City covenants to levy Assessments or Impact Fees against property to be benefitted by
the Improvements (which levy will be done in accordance with State law), the cost of which shall be paid
from the proceeds of the proposed Additional Bonds and if in the case of Impact Fees, such Impact Fees are
legally available for application with respect to such Additional Bonds as permitted under the Resolution,
then the Net Revenues during the Measurement Period may be increased by an amount equal to one hundred
per centum (100%) of the amount which the Consulting Engineer estimates will be received in each year
from the levy of said Assessments or Impact Fees, as the case may be, within three years of the date of the
sale of such Additional Bonds, said amount to be the total received from the installment payments on the
Assessments or Impact Fees, as the case may be, plus, in the case of Assessments, any interest paid on the
unpaid portion of the Assessments. In the case of Assessments, the estimate of the Consulting Engineer shall
be based upon the preliminary assessment roll filed with the City prior to the construction of such
Improvements.
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(5) Should the City be constructing or acquiring additions, extensions or Improvements to the
System from the proceeds of such Additional Bonds and if the City shall have established rates, fees, rentals
or other charges to be charged and collected from users of such facilities when service is rendered, the Net
Revenues for the Measurement Period may be adjusted to show the Net Revenues estimated by the
Consulting Engineers or the Rate Consultant to be received from the users of the facilities to be financed,
during the first full Fiscal Year of operation after completion of the construction or acquisition of said
additions, extensions and improvements as if such rates, fees, rentals or other charges for such services had
been in effect during all of such Fiscal Year.
FINANCIAL GUARANTY INSURANCE
General
Ambac Assurance Corporation has issued its commitment to issue a financial guaranty insurance
policy (the "Financial Guaranty Insurance Policy") insuring the payment of the principal of and interest on
the 2005 Bonds simultaneously with the delivery of the 2005 Bonds.
The following information has been furnished by Ambac Assurance Corporation ("Ambac
Assurance" or the "Insurer") for use in this Official Statement. Reference is made to Appendix E for a
specimen of the Insurer's policy.
Payment Pursuant to Financial Guaranty Insurance Policy
Ambac Assurance has made a commitment to issue the Financial Guaranty Insurance Policy relating
to the 2005 Bonds effective as of the date of issuance of the 2005 Bonds. Under the terms of the Financial
Guaranty Insurance Policy, Ambac Assurance will pay to The Bank of New York, New York, New York or
any successor thereto (the "Insurance Trustee") that portion ofthe principal of and interest on the 2005 Bonds
which shall become Due for Payment but shall be unpaid by reason of Nonpayment by the District (as such
terms are defined in the Financial Guaranty Insurance Policy). Ambac Assurance will make such payments
to the Insurance Trustee on the later of the date on which such principal and interest becomes Due for
Payment or within one business day following the date on which Ambac Assurance shall have received
notice of Nonpayment from the Bond Registrar and Paying Agent. The insurance will extend for the term
of the 2005 Bonds and, once issued, cannot be canceled by Ambac Assurance.
The Financial Guaranty Insurance Policy will insure payment only on stated maturity dates and on
mandatory sinking fund installment dates, in the case of principal, and on stated dates for payment, in the
case of interest. If the 2005 Bonds become subject to mandatory redemption and insufficient funds are
available for redemption of all outstanding 2005 Bonds, Ambac Assurance will remain obligated to pay
principal of and interest on outstanding 2005 Bonds on the originally scheduled interest and principal
payment dates including mandatory sinking fund redemption dates. In the event of any acceleration of the
principal of the 2005 Bonds, the insured payments will be made at such times and in such amounts as would
have been made had there not been an acceleration.
In the event the Bond Registrar has notice that any payment of principal of or interest on a 2005
Bond which has become Due for Payment and which is made to a 2005 Bondholder by or on behalf of the
City has been deemed a preferential transfer and theretofore recovered from its registered owner pursuant
to the United States Bankruptcy Code in accordance with a final, nonappealable order of a court of competent
jurisdiction, such registered owner will be entitled to payment from Ambac Assurance to the extent of such
recovery if sufficient funds are not otherwise available.
13
The Financial Guaranty Insurance Policy does not insure any risk other than Nonpayment, as defined
in the Financial Guaranty Insurance Policy. Specifically, the Financial Guaranty Insurance Policy does not
cover:
1. payment on acceleration, as a result of a call for redemption (other than mandatory sinking fimd
redemption) or as a result of any other advancement of maturity.
2. payment of any redemption, prepayment or acceleration premium.
3. nonpayment of principal or interest caused by the insolvency or negligence of any trustee, if any, the
Bond Registrar or Paying Agent.
If it becomes necessary to call upon the Financial Guaranty Insurance Policy, payment of principal
requires surrender of 2005 Bonds to the Insurance Trustee together with an appropriate instrument of
assignment so as to permit ownership of such 2005 Bonds to be registered in the name of Ambac Assurance
to the extent of the payment under the Financial Guaranty Insurance Policy. Payment of interest pursuant to
the Financial Guaranty Insurance Policy requires proof of2005 Bondholder entitlement to interest payments
and an appropriate assignment of the 2005 Bondholder's right to payment to Ambac Assurance.
Upon payment of the insurance benefits, Ambac Assurance will become the owner of the 2005
Bonds, appurtenant coupon, if any, or right to payment of principal or interest on such 2005 Bonds and will
be fully subrogated to the surrendering Bondholder's rights to payment.
The insurance provided by the Financial Guaranty Insurance Policy is not covered by the Florida
Insurance Guaranty Association.
Ambac Assurance Corporation
Ambac Assurance is a Wisconsin-domiciled stock insurance corporation regulated by the Office of
the Commissioner ofInsurance of the State of Wisconsin and licensed to do business in 50 states, the District
of Columbia, the Territory of Guam, the Commonwealth of Puerto Rico, and the u.s. Virgin Islands, with
admitted assets of approximately $8,585,000,000 (unaudited) and statutory capital of approximately
$5,251,000,000 (unaudited) as of March 31, 2005. Statutory capital consists of Ambac Assurance's
policyholders' surplus and statutory contingency reserve. Standard & Poor's Credit Markets Services, a
division of The McGraw-Hill Companies, Inc., Moody's Investors Service and Fitch Ratings have each
assigned a triple-A financial strength rating to Ambac Assurance.
Ambac Assurance has obtained a ruling from the Internal Revenue Service to the effect that the insuring of
an obligation by Ambac Assurance will not affect the treatment for federal income tax purposes of interest
on such obligation and that insurance proceeds representing maturing interest paid by Ambac Assurance
under policy provisions substantially identical to those contained in its Financial Guaranty Insurance Policy
shall be treated for federal income tax purposes in the same manner as if such payments were made by the
Issuer of the 2005 Bonds.
Ambac Assurance makes no representation regarding the 2005 Bonds or the advisability of investing in the
2005 Bonds and makes no representation regarding, nor has it participated in the preparation of, this Official
Statement other than the information supplied by Ambac Assurance and presented under the headings and
"FINANCIAL GUARANTY INSURANCE" and "SECURITY FOR THE 2005 BONDS- RESERVE
ACCOUNT- AMBAC ASSURANCE SURETY BOND" herein.
14
Available Information
The parent company of Ambac Assurance, Ambac Financial Group, Inc. (the "Company"), is subject
to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports, proxy statements and other information with the Securities and
Exchange Commission (the "SEC"). These reports, proxy statements and other information can be read and
copied at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference room. The SEC maintains an
internet site at http://www.sec.gov that contains reports, proxy and information statements and other
information regarding companies that file electronically with the SEC, including the Company. These
reports, proxy statements and other information can also be read at the offices of the New York Stock
Exchange, Inc. (the "NYSE") at 20 Broad Street, New York, New York 10005.
Copies of Ambac Assurance's financial statements prepared in accordance with statutory accounting
standards are available from Ambac Assurance. The address of Ambac Assurance's administrative offices
and its telephone number are One State Street Plaza, 19th Floor, New York, New York, 10004 and (212) 668-
0340.
Incorporation of Certain Documents by Reference
The following documents filed by the Company with the Commission (File No. 1-10777) are
incorporated by reference in this Official Statement:
I. The Company's Annual Report on Form 1 O-K for the fiscal year ended December 31, 2004 and filed
on March 15,2005;
2. The Company's Current Report on Form 8-K dated April 5,2005 and filed on April 11 , 2005;
3. The Company's Current Report on Form 8-K dated and filed on April 20, 2005;
4. The Company's Current Report on Form 8-K dated May 3, 2005 and filed on May 5,2005;
5. The Company's Quarterly Report on Form 1O-Q for the fiscal quarterly period ended March 31,2005
and filed on May 10,2005.
All documents subsequently filed by the Company pursuant to the requirements of the Exchange Act after
the date of this Official Statement will be available for inspection in the same manner as described above
under the heading "Available Information."
15
ESTIMATED SOURCES AND USES OF FUNDS
SOURCES OF FUNDS:
Principal Amount of 2005 Bonds
Net Original Issue PremiumlDiscount
Available City Funds (I)
TOTAL SOURCES:
USES OF FUNDS:
Deposit to Escrow Deposit Trust Fund
Costs of Issuance(2)
TOTAL USES:
(I)
Consists of amounts transferred from 1996 Reserve Subaccount and Bond Service Subaccount under
the Resolution.
Includes, among other things, underwriter's discount, counsel fees, registrar fees and bond insurance
and reserve surety premiums.
(2)
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DEBT SERVICE REQUIREMENTS
The following table sets forth the debt service requirements for the outstanding 2002 Bonds and the
2005 Bonds:
Total
Debt Service Total
Bond Year on Outstanding Annual
ending 1996 and 2002 2005 Bonds 2005 Bonds Debt Service
November I Bonds Principal Interest on Bonds
2006 $2,573,482.50
2007 3,813,835.00
2008 1,417,400.00
2009 1,416,650.00
2010 1,415,650.00
2011 1,414,400.00
2012 1,417,900.00
2013 3,670,900.00
2014 3,676,900.00
2015 3,670,643.76
2016 3,672,400.00
2017 3,672,850.00
2018 3,669,775.00
2019 3,672,900.00
2020 3,671,400.00
TOTAL $ $ $ $
(I) Based on Net Revenues for Fiscal Year ended September 30,2004.
THE SYSTEM
General
The City provides water and wastewater services to a geographic area within Palm Beach County
about twice the size of the City itself. The City's water system includes facilities for raw water supply, water
treatment and water distribution. The City's wastewater system includes sewage collection and transmission.
The City also provides stormwater services within the City limits for all City-owned roadways, facilities and
canals.
Service Area
The System serves the City, the Town of Briny Breezes, a portion of the Town of Hypoluxo and
several unincorporated areas of Palm Beach County. The Town of Ocean Ridge, which is geographically
within the City's service area is also served by the City's water system, but has no sanitary sewers and relies
on a combination of septi c tanks and small neighborhood package plants for wastewater treatment. The City
also provides wastewater collection service to the Village of Golf, but provides no water service. The City
17
may extend its boundaries in the future through annexation of unincorporated areas of Palm Beach County,
which primarily lie to the west of existing City limits. Because most of the areas that may be annexed are
already encompassed by the water and wastewater service areas and connected to the water and wastewater
systems, annexation is not expected to have a significant effect on water and wastewater service demands,
even though the 25% rate surcharge currently imposed by the City with respect to service provided outside
the City limits would no longer apply to areas annexed by the City. Stormwater services is limited strictly
to the area within the City limits.
Condition of the Overall System and System Performance
The City believes that the production, transmission, distribution, treatment and collection facilities
of the System are in good condition, well operated and maintained in accordance with usual utility practice
and can reasonably be expected to provide adequate and reliable service to meet the existing requirements
of the System In addition, the City believes that plant staffing is at a reasonable level and that staff is
receiving adequate training for operation of the System.
Administration
The City's Water and Sewer Utilities Department is divided administratively into ten divisions,
consisting of an administrative division and nine operating divisions. The Department is responsible for the
operation and maintenance of the water supply, treatment, distribution and storage facilities, wastewater
collection, pumping and transmission and stormwater system operations. Wastewater treatment facilities are
operated and maintained under the South Central Regional Wastewater Treatment and Disposal Board. The
Department operates its own billing system, with revenue collections handled by the City's Finance
Department.
Water System
The water system operated by the City consists of groundwater withdrawal, treatment, transmission,
storage, distribution, administration, and operations.
Treatment Plants and Well Fields. The City has two water treatment plants.
One plant, known as the East Water Treatment Plant (the "East WTP"), is capable of operating at
a maximum daily rate of 12.00 MGD. The East WTP treats the surficial groundwater withdrawn from the
East Well Field. The plant's facilities are capable oftreating 20.5 MGD, but the plant's rating is limited to
12.00 MGD because of limited raw water supply.
The City's water system uses groundwater withdrawn from the surficial aquifer to supply water to
its treatment system. Currently, only the East Well Field, which comprises 19 active production wells, is used
to supply water to the East WTP. The City also operates one aquifer storage and recovery (ASR) well at the
East WTP, and is constructing a second ASR well, to store surplus water in the upper Florida aquifer.
The other treatment plant, known as the "West Water Treatment Plant" (the "West WTP") provides
8.5 MGD of finished water through the use of a nannofiItration membrane process, with up to 1.6 MGD
additional available by blending filtered water with the finished nannofiltration product. The City has also
begun design for an expansion of the West WTP to increase capacity. As part ofthis expansion, equipment
for three new raw water wells has been added.
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Water supply for the West WTP comes from the West Well Field immediately west of the West
WTP. The West Well Field includes ten wells. Only seven of the wells are needed for the 8 MGD capacity
of the West WTP. As the West WTP expands beyond its current capacity, the remainder of the wells in the
West Well Field will be utilized
Water Distribution and Storage. The water distribution system covers the entire water service area.
Approximately 280 miles of piping comprise the system, ranging in size from 2 inches to 42 inches in
diameter. The storage capacity within the system includes one 1.5-MG elevated storage tank, a 1A-MG clear
well at the East WTP, a 1.0-MG and two 3.0-MG ground storage tanks. The 1.5 MG elevated storage tank
is located immediately south of the East WTP.
Regulatory Framework and Compliance. The City operates the water system in such a manner that
all local, state and federal regulations are met. The City believes that the System will be able to meet all
existing and currently proposed regulatory standards.
The groundwater supply is regulated by the South Florida Water Management District ("SFWMD")
which regulates the withdrawal of water from the City's well fields. The City does not anticipate any inability
to legally obtain sufficient water with which to satisfy demand for the foreseeable future, although drought
conditions occur in the geographical area within which the City is located periodically, and one way in which
SFWMD protects the water supply in such conditions is by limiting the amount of water municipalities may
withdraw. When such limitations are imposed, the City in turn takes steps to reduce water usage, such as
through public awareness campaigns and by imposing limitations on irrigation; these steps do reduce the
amount of water usage, and they also reduce the Revenues ofthe System. The City will use both ASR wells
during drought or dry weather conditions to supplement supply from the surficial aquifer.
Capital Improvements. The City finished a capital improvement project to the East WTP in 1993
that renovated or replaced facilities which were not working properly or had become outdated. The City
continues a maintenance program that keeps existing facilities in proper operating condition.
The City currently has several capital expansion or improvement projects planned for the next
ensuing five year period. These projects include approximately $78,000,000 of capacity related
improvements to the water system, approximately $17,000,000 of non-capacity related water system
improvements, approximately $37,000,000 of wastewater improvement projects and approximately
$13,000,000 of stormwater improvement projects. The sources of funding for these improvements have not
been identified, and could include existing cash reserve/operating funds and/or additional debt.
Wastewater System
In 1974, the City entered into an interlocal agreement with the adjacent City of Del ray Beach, Florida
(the "Interlocal Agreement") for the provision of wastewater treatment, sludge disposal and effluent disposal
on a regional level. The Interlocal Agreement creates a legal entity known as the South Central Regional
Wastewater Treatment and Disposal Board, composed of the five members of the respective City
Commissions of the two cities, who operate the South Central Regional Wastewater Treatment Plant (the
"Plant") through an executive director. Pursuant to the Interlocal Agreement, the two cities own the Plant
located within the corporate limits of the City of Delray Beach.
Wastewater Collection and Transmission. The existing wastewater collection and transmission
system consists of approximately 221 miles of gravity sewer, 67 miles of force main, and 150 lift stations.
The predominant pipe materials are vitrified clay for gravity sewers and ductile iron for force mains. A
hydraulic analysis ofthe system performed for the master plan in 1989 showed that the wastewater collection
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and transmission system appears to be sufficiently sized to meet projected future flows in most areas.
Recently some localized improvements have been included in the capital improvement program to allows
for increased densities in the City's downtown area. However, several improvements are needed to maintain
the system in good condition. These include replacement of 28 pumps per year throughout the System and
rehabilitation of pumps, electrical equipment and wet well coatings, concrete, and surfaces at six master lift
stations. The City is also installing additional stationary generators at 5 lift stations to maintain operation
during power outages or emergencies, thereby improving system reliability.
Regulatory Framework and Compliance. The City operates the wastewater system in such a manner
that all local, state and federal regulations are met. The City believes that the System will be able to meet all
existing and currently proposed regulatory standards.
Stormwater System
In 1993 the City formed a Stormwater Utility for the purpose of operating and maintaining the
existing stormwater system, and also to make the necessary improvements required by projected water
quality discharge standards. It has recently developed a regional stormwater detention facility in the
downtown area, and has been and will be expanding or improving stormwater facilities throughout the
service area. The system currently comprises stormwater detention ponds, roadside swales, and underground
pIpmg.
Pursuant to the Resolution, in 1996 the stormwater utility, including all of its assets, liabilities and
revenues, became a part of the combined water, wastewater and stormwater System.
Rates and Customer Base
The City believes that the rates it charges for the services provided by the System are
reasonable and comparable to rates charges by similarly situated municipal utilities located in South Florida.
In addition, the City believes that it has a diverse customer base, with no material reliance upon any
customer, or small group of customers, for a material amount of the System revenues.
The methods used in developing the City's water, sewer and stormwater utility rates adhere to
generally accepted methodologies, policies and procedures and result in a corresponding rate structure that
generates sufficient revenues to maintain a self-supporting utility. The rates do not unduly discriminate
toward any class of customer.
Revenue requirements are often unique to a given utility. In all cases, conformance to bond covenants
and regulatory constraints provides one measure of revenue sufficiency. Also, it is the City's goal with
respect to the System to avoid operating losses, as measured by cash flow. Excluded from the cash flow test
are major capital projects to be funded through debt. Minor capital outlays and renewal and replacement are
generally included, reflecting the ongoing nature of some capital outlays.
The water, wastewater and stormwater activities, currently commingled within the same fund for
budgeting purposes, were treated as three distinct and separate funds for analysis. In so doing, a proper
matching of revenues and expenditures was developed for all three activities.
The water rate structure incorporates an inverted rate mechanism in the volumetric charge. As water
use increases, the cost per thousand gallons increases, the intent of which is to encourage conservation. Due
to water supply problems in the State of Florida, many municipal utilities are required by permit condition
of the water management districts to adopt conservation techniques such as the one enacted by the City.
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The City Commission has exclusive authority to establish and revise the rates. The City cannot
predict what future action, if any, will be taken by the Commission with respect to the current rates or the
current rate structure.
Historical Revenues
Shown below is a summary of the historical "Revenues," "Current Expenses" and "Net Revenues"
of the System, calculated in compliance with the requirements of the Resolution described under "Security
for the 2005 Bonds-Rate Covenant" above, for the following fiscal years ended September 30:
REVENUES())
Water Sales
Sewer Service
Stormwater Utility Fees
Interest Income
Miscellaneous Income(2)
TOTAL REVENUES
2002 2003 2004
$ 10,201,169 $ 10,888,665 $ 11,712,636
11,204,950 11,261,264 11,665,629
3,406,276 3,144,092 3,194,392
2,364,611 1,725,957 858,044
483,291 481,215 129,652
$ 27,660,297 $ 27,501,193 $ 27,560,353
$ 14,395,176 $ 15,185,354 $ 19,574,242
$13,265,121 $ 12,315,839 $ 7,986,111
$ 4,085,000 $ 4,085,000 $ 4,085,000
CURRENT EXPENSES
NET REVENUES
MAXIMUM ANNUAL DEBT
SERVICE OF THE
UNREFUNDED 1996 BONDS,
2002 BONDS AND 2005 BONDS(3)
3.24x
3.01x
1.95x
PROFORMA COVERAGE
IMPACT FEES(4)
$2,841,673
$3,253,621
$2,645,716
(3)
Source: City of Boynton Beach Department of Finance
(I) Does not include hnpact Fees or interest earnings on Construction Fund. See "Impact Fees" below.
(2) Miscellaneous Income includes: Interest deposits, Bell South lease, utility tax administrative fee and
discounts.
Based upon actual debt service for Unrefunded 1996 Bonds and 2002 Bonds and estimated debt
service for 2005 Bonds as provided by the financial advisor. Preliminary and subject to change.
Consists of total Impact Fees. Approximately 56% of debt service on 2002 Bonds and 30.78% of
debt service on 2005 Bonds may lawfully be paid from hnpact Fees.
(4)
The increase in current expenses from 2002 to 2004 is attributable to general increases in costs of goods and
services and in 2004 there were also two non-recurring expenses: (i) a charge to the System in the amount
of approximately $ 1.2 million to fund a contribution to the City's self-insurance fund in an amount deemed
by the City to reflect the Utility System's fair-share of the cost of the City's self-insurance, and (ii) a non-cash
charge of approximately $900,000 to reflect a change in the value of the City's ownership interest of the
wastewater Plant.
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Impact Fees
Impact Fees are one time payments made by new customers at the time a unit is connected to the
System. The Impact Fee rates are designed to ensure that each new customer connecting to the System will
pay a fair share of the costs incurred by the City in constructing the facilities needed to serve such new
customers. The amount of the Impact Fee per equivalent connection or dwelling unit paid by the new
customer will be the one that is in effect at the time of connection to the System.
Judicial rulings in the State of Florida have determined that hnpact Fees may be imposed and
expended only to cover the expansion of a utility system that is necessary to service new customers. As a
result, the City is of the opinion that hnpact Fees can be used to pay debt service only to the extent that such
payments reflect costs incurred to expand the System to service new customers. The City has determined that
approximately 30.78% of the proceeds of the 1996 Bonds were attributable to the expansion of the System
and that, therefore, 30.78% of the debt service on the portion of the 2005 Bonds may be paid from hnpact
Fees. Approximately 56% of the debt service on the Series 2002 Bonds may ;awfully be paid from impact
fees. For the Fiscal Year ended September 30, 2004, the City collected $$2,645,716 in hnpact Fees.
System Customers
As of December, 2004, the System provided water service to approximately 31,000 residential
accounts, comprised of over 50,000 residential units, and over 1600 commercial accounts, sewer service to
approximately 30,000 residential accounts, comprised of approximately 49,000 residential units, and
approximately 1500 commercial accounts, and stormwater service to 2 I ,000 accounts.
THE CITY
The City is a municipal corporation with an estimated population of approximately 62,000 organized
and existing under the laws of the State of Florida. The City is located in Palm Beach County approximately
13 miles south of West Palm Beach and 30 miles north of Fort Lauderdale and covers approximately 15
square miles. The City is governed by a Commission-Manager form of government and employs both a fuIl-
time city manager and a full-time director of finance, who has responsibility for all internal auditing and
financial record keeping operations of the City.
The major segments of the economy of the area are retail and wholesale trade, real estate, finance,
tourism, agriculture, professional services and light manufacturing. Several light industries are located in the
City of Boynton Beach, with manufactured products ranging from paper processing machinery to electrical
switches.
For additional information regarding the City, see "Appendix A -- Statistical and Other General
Information Concerning the City of Boynton Beach."
VERIFICATION OF MATHEMATICAL COMPUTATIONS
The accuracy of (i) the mathematical computation of the adequacy of the maturing principal amount
of and interest on the investments and cash, if any, to be held by the Escrow Agent to pay, when due, the
principal of, premium and interest on the Refunded Bonds to the dates of their maturities or earlier
redemption and (ii) the mathematical computation of yields on the 2005 Bonds and the proceeds thereof will
be verified by Causey, Demgen & Moore Inc., independent certified public accountants, whose report with
respect thereto will be available upon delivery of the 2005 Bonds.
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TAX EXEMPTION
The Internal Revenue Code of 1986, as amended (the "Code"), provides that the interest on state and
local governmental bonds will not be included in the gross income for federal income tax purposes of the
owner thereof only if certain requirements are met, some of which must be met on a continuing basis,
subsequent to the issuance and delivery of the 2005 Bonds. Although the City has covenanted to comply with
such requirements, noncompliance with such requirements could cause the interest on the 2005 Bonds to be
included in gross income for federal income tax purposes retroactive to the date of issue of the 2005 Bonds
regardless of the date on which such noncompliance occurs or is ascertained. Those requirements include,
but are not limited to, provisions which prescribe yield and other limits within which the proceeds of the
2005 Bonds and other amounts are to be invested and which require that certain investment earnings on the
foregoing be rebated on a periodical basis to the Treasury Department of the United States.
The ability of Bond Counsel to deliver its final approving opinion in substantially the form attached
hereto as Appendix D on the date of issuance of the 2005 Bonds is subject to its review and analysis as of
the date of issuance of certain matters, including, among others, pertinent provisions of statutes, regulations,
rulings and court decisions, including, but not necessarily limited to, Florida law and federal income tax then
in effect or proposed to be in effect. Bond Counsel has advised the City and the Underwriter that, subject to
its review and analysis of certain assumptions, its expects to be able to issue on the closing date an opinion
substantially in the form attached hereto as Appendix D.
In the opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida,
Bond Counsel, under existing law, and assuming continuing compliance with the aforementioned covenants,
interest on the 2005 Bonds is excluded from gross income of the owners thereof for federal income tax
purposes and is not an item of tax preference for purposes of the Federal alternative minimum tax imposed
on individuals and corporations.
[The 2005 Bonds maturing in the years _ through _ are being offered and sold in the initial
public offering at an original issue discount ("DID"). DID is the difference between the stated redemption
price at maturity (generally the face amount of the 2005 Bonds) and the "issue price" of the 2005 Bonds. The
"issue price" of each maturity of the 2005 Bonds is the respective initial offering prices to the public at which
prices a substantial amount of such maturity of the 2005 Bonds was sold. DID represents interest which is
excluded from gross income for federal income tax purposes and which may result in the collateral federal
tax consequences described below. DID will accrue over the term of such 2005 Bonds at a constant interest
rate compounded semi-annually. The portion of DID that accrues during the time an Owner owns a 2005
Bond constitutes interest excludable from gross income for federal income tax purposes and will increase
such purchaser's adjusted basis in such 2005 Bonds for purposes of determining taxable gain or loss on the
sale or other disposition of such 2005 Bonds. The federal income tax consequences of the purchase,
ownership and sale or other disposition of 2005 Bonds which are not purchased in the initial offering at the
initial offering prices may be determined according to rules which differ from those described above. Holders
of 2005 Bonds should consult their own tax advisors as to the precise federal income tax and state and local
tax consequences of owning and disposing of 2005 Bonds.]
[The 2005 Bonds maturing in the years are being offered and sold in the initial public
offering at a premium (the "Premium Bonds"). Section 171 of the Code provides rules under which a bond
premium may be amortized and a deduction allowed for the amount of the amortizable bond premium for
a taxable year. Under Section 1 71(a)(2) of the Code, however, no deduction is allowable for the amortizable
bond premium in the case ofthe bonds, like the Premium Bonds, the interest on which is excludable from
gross income. Under Section 1016(a)(5) of the Code, the purchaser's basis in a Premium Bond will be
23
reduced by the amount of the amortizable bond premium disallowable as a deduction under Section 171 (a )(2)
of the Code. Proceeds received from the sale, exchange, or other disposition including redemption of a
Premium Bond in excess of the owner's adjusted basis (as reduced pursuant to Section 1016(a)(5) of the
Code) will be treated as a gain from the sale or exchange of such Premium Bond and not as tax-exempt
interest. The basis of an original purchaser of a Premium Bond who holds such Premium Bond to maturity
will have a basis equal to the principal amount of the Premium Bond and therefore will have no loss upon
receipt of such principal amount.]
Except as stated above, Bond Counsel expresses no opinion as to any other tax consequences of
acquiring, carrying, owning or disposing of the 2005 Bonds.
The law upon which Bond Counsel will base their opinion is subject to change by the Congress and
the Department of the Treasury and to subsequent judicial and administrative interpretation. There can be
no assurance that such law or the interpretation thereof will not be changed in a manner which would
adversely affect the tax treatment of ownership of the 2005 Bonds.
Prospective purchasers of the 2005 Bonds should be aware that the ownership of tax-exempt
obligations may result in collateral federal income tax consequences to financial institutions, property and
casualty insurance companies, individual recipients of Social Security or Railroad Retirement benefits,
taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt
obligations, foreign corporations doing business in the United States and S corporations with passive
investment income which includes tax exempt income. Prospective purchasers falling within any of these
categories should consult their own tax advisors as to the applicability of these consequences.
In addition, in the opinion of Bond Counsel, the 2005 Bonds are exempt from all present intangible
personal property taxes of the State of Florida.
LITIGATION
In the opinion of the City Attorney, no legal proceedings are pending or threatened which materially
affect the City's ability to perform its obligations to the holders of the 2005 Bonds or materially affect the
financial condition of the City.
There is no litigation or controversy of any nature now pending or threatened: (i) to restrain or enjoin
the issuance, sale, execution or delivery of the 2005 Bonds, or (ii) in any way questioning or attesting the
validity of the 2005 Bonds, the Resolution, any proceedings of the City taken with respect to the
authorization, sale or issuance of said Bonds or the pledge or application of any moneys provided for the
payment of the 2005 Bonds.
COVENANTS CONCERNING ONGOING DISCLOSURE
The City has agreed in the Resolution, in accordance with the provisions of Rule 15c2-12 in effect
from time to time and applicable to the 2005 Bonds (the "Rule"), promulgated by the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, to provide or
cause to be provided, to each nationally recognized municipal securities information repository ("NRMSIR")
and to the State of Florida information depository ("SID"), if any, in each case as designated and approved
by the Cormnission and the State, respectively, in accordance with the Rule, (i) within 180 days following
the end of each fiscal year of the City, commencing with the fiscal year ending September 30, 2005, annual
24
financial information and operating data concerning the System of the type included in this Official
Statement, including operating revenues, debt service coverage by Net Revenues, a summary of any capital
improvement plans and information regarding permitted capacities and actual usage of capacities of the
System and financial statements (audited or, ifnot available, unaudited) of the City and (ii) ifnot submitted
as part of such fmancial information and operating data, then, when available, audited financial statements
for the City prepared in accordance with generally accepted accounting principles applicable to governmental
entities from time to time. A copy of such annual financial information and operating data will be provided
to the Underwriter, the Insurer and the Bond Registrar. (The annual information required to be disclosed
hereunder shall be referred to herein as the "Annual Report").
The City has agreed to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or
to the Municipal Securities Rulemaking Board ("MSRB") and (ii) the SID, if any, notice of the occurrence
of any of the following events with respect to the 2005 Bonds, if such event is material:
(i) principal and interest payment delinquencies on the 2005 Bonds;
(ii) non-payment related defaults;
(iii) unscheduled draws on debt service reserves reflecting financial difficulties;
(iv) unscheduled draws on credit enhancements reflecting financial difficulties;
(v) substitution of credit or liquidity providers, or their failure to perform;
(vi) adverse tax opinions with respect to or events affecting the tax-exempt status of the 2005
Bonds;
(vii) modifications to rights of the holders of the 2005 Bonds;
(viii) any call of the 2005 Bonds for redemption (other than scheduled mandatory redemption) or
any acceleration of the maturity thereof;
(ix) defeasance in whole or in part of the 2005 Bonds;
(x) release, substitution, or sale of property securing repayment of the 2005 Bonds;
(xi) rating changes; and
(xii) any changes in the City's fiscal year.
The City has agreed to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or
the MSRB and (ii) the SID, if any, notice of a failure by the City to provide the Annual Report described in
subsection (a) above on or prior to the date set forth therein.
The City has reserved the right to terminate its obligation to provide Annual Report and notices of
material events, as set forth above, if and when the City no longer remains an obligated person with respect
to the 2005 Bonds within the meaning of the Rule. If the City believes such condition exists, the City will
provide notice of such termination to the NRMSIR's, the MSRB and the SID.
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The City has agreed that its undertaking pursuant to the Rule set forth is intended to be for the benefit
ofthe holders and beneficial owners ofthe 2005 Bonds and shall be enforceable by any holder or beneficial
owner; provided that the right to enforce the provisions of such undertaking shall be limited to a right to
obtain specific enforcement of the City's obligations hereunder and any failure by the City to comply with
the provisions of such undertaking shall not be an event of default with respect to the 2005 Bonds under the
Resolution.
Any voluntary inclusion by the City of information in its Annual Report of supplemental information
that is not required under the Rule shall not expand the obligations of the City thereunder and the City shall
have no obligation to update such supplemental information or include it in any subsequent report.
The covenants contained in the Resolution are solely for the benefit of the holders and beneficial
owners of the 2005 Bonds and shall not create any rights in any other parties.
Notwithstanding any other provision of the Resolution, the City may amend the provisions of the
Resolution described above and any provision thereof may be waived, provided that the following conditions
are satisfied:
(1) If the amendment or waiver pertains to the Annual Report or other
information to be provided by the City, the amendment or waiver is made in connection with
a change in circumstances that arises from a change in legal requirements, change in law,
or change in the identifY, nature or status of the City or the type of business conducted by
the City; and
(2) The undertaking, as amended or taking into account such waiver would, in
the opinion of nationally recognized bond counsel, have complied with the requirements of
the Rule at the time of the original issuance of the 2005 Bonds, after taking into account any
amendments or interpretations of the Rule, as well as any change in circumstances.
(3) The amendment or waiver does not materially impair the interests of holders
of and beneficial owners as determined either by parties unaffiliated with the City or an
obligated person, or by an approving vote of the holders of at least a majority in aggregate
principal amount of the then outstanding 2005 Bonds pursuant to the terms of the
Resolution.
In the event of any amendment or waiver of a provision of the Resolution described in this section, the City
shall describe such amendment or waiver in the next Annual Report, and shall include, as applicable, a
narrative explanation of the reason for the amendment or waiver and its impact on the type (or, in the case
of a change of accounting principles, on the presentation) of annual financial information or operating data
being presented by the City. In addition, if the amendment or waiver relates to the accounting principles to
be followed in preparing financial statements (i) notice of such change shall be given in the manner provided
in the Resolution and (ii) the Annual Report for the year in which the change is made shall present a
comparison (in narrative form and also, if feasible, in quantitative form) between the fmancial statements
as prepared on the basis of the new accounting principles and those prepared on the basis of the former
accounting principles.
The City has complied with all of its continuing disclosure undertakings in connection with its
previous bond issues.
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UNDERWRITING
The Underwriter, Bear, Steams & Co. me., has agreed to purchase the 2005 Bonds from the City at
an aggregate purchase price of$ (representing the $_,_,000.00 aggregate principal amount
of the 2005 Bonds less an underwriter's discount of $ plus a net original issue premiumldiscount
of $ ). The Underwriter will be obligated to purchase all the 2005 Bonds if any are purchased. The
offering prices shown on the cover of this Official Statement may be changed from time to time by the
Underwriter.
RATINGS
Moody's Investors Service ("Moody's") and Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies ("S&P") are expected to assign to the 2005 Bonds their municipal bond ratings of
Aaa and AAA, respectively, with the understanding that upon delivery of the 2005 Bonds, a policy insuring
the payment when due of the principal of and interest on the 2005 Bonds will be issued by Arnbac Assurance
Corporation. The ratings assigned to the 2005 Bonds by any rating agency reflect only the views of the rating
agency, and an explanation of the significance of the ratings may be obtained only from the rating agency.
The ratings are not a recommendation to buy, sell or hold the 2005 Bonds and there is no assurance that such
ratings will remain in effect for any given period of time or that they will not be revised downward or
withdrawn entirely if, in the judgment of the rating agency, circumstances so warrant. Any downward
revision or withdrawal of such ratings may have an adverse effect on the market price of the 2005 Bonds.
Neither the Underwriter nor the City have undertaken responsibility to bring to the attention of the holders
of the 2005 Bonds any proposed revision or withdrawal of the ratings of the 2005 Bonds, or to oppose any
proposed revision or withdrawal.
LEGALITY
Certain legal matters in connection with the issuance of the 2005 Bonds are subject to the approval
of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Bond Counsel, whose
unqualified approving opinion will be available at the time of delivery of the 2005 Bonds. The proposed form
of such opinion of Bond Counsel is attached hereto as Appendix D. Certain legal matters will be passed upon
for the City by Goren, Cherof, Doody & Ezrol, P.A., City Attorneys, Fort Lauderdale, Florida and for the
Underwriter by its counsel, Edwards & Angell, LLP, West Palm Beach, Florida.
EXCERPTS FROM COMPREHENSIVE ANNUAL REPORT
The audited general purpose financial statements of the City and the combining statements for the
City's enterprise fund for the fiscal year ended September 30, 2004 are included in Appendix B attached
hereto. Such excerpts from the City's Comprehensive Annual Financial Report, including the auditor's report,
have been included in this Official Statement as public documents and consent from the auditors was not
requested.
MISCELLANEOUS
The information in the foregoing pages is presented for the guidance of prospective purchasers of
the 2005 Bonds described herein. The infonnation has been compiled from official and other sources and,
while not guaranteed as to accuracy by the City, is believed to be correct. So far as any statements made in
this Official Statement and the appendices attached hereto involve matters of opinion or of estimates, whether
27
or not expressly stated, they are set forth as such and not as representations offact, and no representation is
made that any of the estimates will be realized.
AUTHORIZATION OF OFFICIAL STATEMENT
This Official Statement has been authorized and prepared by the City of Boynton Beach, Florida.
CITY OF BOYNTON BEACH, FLORIDA
Mayor
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EXHIBIT "D"
Escrow Deposit Agreement
G:\02345\37 Utility 2005\reso(4).wpd
ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT (this" Agreement"), is dated August ,2005,
2005, and is by and between CITY OF BOYNTON BEACH, FLORIDA, a political subdivision of
the State of Florida (the "Issuer") and THE BANK OF NEW YORK TRUST COMPANY, N.A., a
national banking association (the "Bank"), as escrow agent (the "Escrow Agent").
WIT N E SSE T H:
WHEREAS, the Issuer has heretofore issued $23,070,000 in aggregate principal amount of
its Utility System Revenue Bonds, Series 1996, dated July 1, 1996 (the "1996 Bonds"); and
WHEREAS, the Issuer has determined to provide for the payment of all of the 1996 Bonds
maturing on and after November 1, 2007 (the "Defeased Bonds") by providing for the deposit of
certain moneys with the Escrow Agent hereunder; and
WHEREAS, a portion of the moneys deposited with the Escrow Agent for such purpose may
be applied to the purchase of certain direct obligations of the United States of America
("Government Obligations"); and
WHEREAS, in order to provide for the proper and timely application of the moneys
deposited in the trust created herein to the payment of the Defeased Bonds, it is necessary for the
Issuer to enter into this Escrow Deposit Agreement with the Escrow Agent on behalf of the holders
from time to time of the Defeased Bonds;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein
set forth and in order to secure the payment of the principal of, premium, and interest on the
Defeased Bonds, according to their tenor and effect, the Issuer does by these presents hereby deliver
to and give, grant, assign and pledge to the Escrow Agent and to its successors in the trust hereby
created, and to it and its assigns forever, all and singular the property hereinafter described, to wit:
I.
All right, title, and interest of the Issuer in and to $
on behalf of the Issuer with the Escrow Agent hereunder.
to be deposited by or
II.
All right, title, and interest of the Issuer in and to any Government Obligations purchased
from the moneys described in Clause I above.
III.
All right, title, and interest of the Issuer in and to all cash balances held from time to time
hereunder and all income and eamings derived from or accruing to any Government Obligations
described in Clause II above.
IV.
All (i) property which is by the express provisions of this Agreement required to be subject
to the pledge hereof and (ii) additional property of every kind and nature that may, from time to time
hereafter, by delivery or by writing of any kind, be conveyed, pledged, assigned, or transferred as and
for additional security hereunder or to be subject to the pledge hereof, by the Issuer or by anyone in
its behalf, and the Escrow Agent is hereby authorized to receive the same at anytime as additional
security hereunder, provided that no property described in (ii) shall be accepted by the Escrow Agent
unless the Escrow Agent shall receive an opinion of nationally recognized bond counsel selected by
the Issuer to the effect that such acceptance will not cause the interest on the Defeased Bonds to be
included in the gross income of the holders thereof for federal income tax purposes.
TO HAVE AND TO HOLD, all and the same; in trust nevertheless, upon the terms herein
set forth, for the equal and proportionate benefit, security and protection, as herein described, of the
holders or owners from time to time of the Defeased Bonds in the manner herein provided; but if the
Defeased Bonds shall be fully and promptly paid when due or redeemed on their dates of scheduled
maturity or mandatory redemption in accordance with the terms thereof and hereof, then this
Agreement shall be and become void and of no further force and effect, otherwise the same shall
remain in full force and effect, and subject to the covenants and conditions hereinafter set forth.
ARTICLE I
DEFINITIONS
Section 1.01. Dermitions. All terms used in capitalized form herein and not otherwise
defined herein shall have the meanings ascribed to them in the Bond Resolution. In addition to
words and terms elsewhere defined in this Agreement, as used herein, unless some other meaning
is plainly intended, the following terms and phrases shall have the following meanings:
"Bond Resolution" means Resolution No. 92-96 of the Issuer adopted June 16, 1992, as
amended and supplemented, particularly by Resolution No. R96-88, adopted June 18, 1996,
authorizing the issuance of the Defeased Bonds.
"Escrow Deposit Trust Fund" means the fund so designated and established under Section
2.01 of this Agreement.
"Government Obligations" means direct obligations of the United States of America that are
not callable prior to maturity by the obligor thereon.
2
"1996 Bond Registrar" means The Bank of New York, as bond registrar for the Defeased
Bonds.
Section 1.02. Uses of Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the context shall
otherwise indicate, words importing the singular number shall include the plural number and
VIce-versa.
ARTICLE II
ESTABLISHMENT OF FUNDS: FLOW OF FUNDS
Section 2.01. Creation of Escrow Deposit Trust Fund. There is hereby created and
established with the Escrow Agent a special and irrevocable trust fund designated the "City of
Boynton Beach, Florida Utility System Revenue Bonds, Series 1996/2005 Escrow Deposit Trust
Fund" to be held in the custody of the Escrow Agent separate and apart from other funds ofthe Issuer
or the Escrow Agent.
Section 2.02. Deposit to Escrow Deposit Trust Fund. On the date hereof the Issuer shall
deposit or cause to be deposited with the Escrow Agent and the Escrow Agent shall receive
immediately available moneys in the amount of $ , for deposit in the Escrow
Deposit Trust Fund. The funds deposited in the Escrow Deposit Trust Fund pursuant to the
preceding sentence shall, except for any remaining cash balance be immediately invested by the
Escrow Agent in the Government Obligations described on Exhibit B.
Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent shall apply
the Government Obligations and other moneys deposited in the Escrow Deposit Trust Fund, together
with all income and earnings thereon, in accordance with the provisions hereof. The Escrow Agent
shall not invest any moneys held hereunder or make substitutions of the Government Obligations
hereunder or sell, transfer, or otherwise dispose of the Government Obligations or moneys held
hereunder except as provided in this Agreement.
Section 2.04. Irrevocable Trust Created. Except as expressly provided herein, the deposit
of (or purchase of for deposit of) the Government Obligations and moneys in the Escrow Deposit
Trust Fund shall constitute an irrevocable deposit for the benefit of the holders of the Defeased
Bonds and the holders of the Defeased Bonds shall have an express lien on the principal of and
earnings on the Government Obligations and other moneys held in the Escrow Deposit Trust Fund
hereunder until applied in accordance with this Agreement. The Government Obligations and
earnings thereon and other moneys shall be held by the Escrow Agent and used only for the purposes
and in the manner provided in this Agreement.
Section 2.05. Use of Moneys in Escrow Deposit Trust Fund; Redemption of Defeased
Bonds. On November I, 2006 the Escrow Agent shall transfer from funds in the Escrow Deposit
Trust Fund to the 1996 Bond Registrar the amount of interest, principal and! or redemption price of
the Defeased Bonds coming due on such date, as shown on Exhibit C. Such amount shall be applied
3
by the 1996 Bond Registrar to the payment of all principal of, interest on, and redemption premium,
if any, when due with respect to the Defeased Bonds.
The Issuer hereby irrevocably elects that the Defeased Bonds then maturing after November
1,2006, shall be called for redemption on November I, 2006. The Issuer hereby directs that at least
30 days and not more than 60 days before November I, 2006, a notice of such redemption in the
form attached hereto as Exhibit D shall be mailed by the 1996 Bond Registrar, first class mail,
postage prepaid, to all registered owners of Defeased Bonds to be redeemed at their addressed they
appear on the registration books therefore. In addition, further notice of such redemption shall be
given by the 1996 Bond Registrar as provided in Section 303 of the Bond Resolution. The Issuer
agrees to pay the reasonable expenses incurred by the 1996 Bond Registrar in connection with such
redemption from lawfully available funds of the Issuer.
Section 2.06. Investment and Reinvestment of Trust Funds. After the initial investment
of funds pursuant to Section 2.02 hereof, the Issuer may direct the Escrow Agent in writing to invest
and reinvest any moneys remaining from time to time in the Escrow Deposit Trust Fund until such
time as they are needed, and the Escrow Agent shall comply with such request, otherwise the Escrow
Agent shall hold such moneys uninvested. Such moneys may be invested and reinvested only in
Government Obligations bearing interest at such rate or rates and maturing on such date or dates and
in such amounts as directed in writing by the Issuer. The Issuer shall give no such instruction to the
Escrow Agent unless the Issuer shall receive and concurrently deliver to the Escrow Agent an
opinion of nationally recognized bond counsel selected by the Issuer in its sole discretion to the
effect that such investment of such moneys will not adversely affect the exclusion from gross income
ofthe interest on the Defeased Bonds for federal income tax purposes. Provided further, that no such
investment instruction shall be given unless the Issuer shall have received and delivered to the
Escrow Agent verification from a firm of independent certified public accountants to the effect that,
taking into account such investment, the amounts held hereunder will be sufficient to pay the
principal, premium, and interest on the Defeased Bonds in full as the same shall become due whether
by redemption or otherwise.
Section 2.07. Transfer of Funds After All Payments Required by This Agreement Are
Made. On November 1, 2006 after the transfer of funds described in Section 2.05 hereof has
occurred, and after all fees and expenses of the Escrow Agent (including any attorneys' fees and
expenses) due hereunder have been paid in full, all remaining moneys and Government Obligations,
together with any income and interest thereon, in the Escrow Deposit Trust Fund shall be transferred
to the Issuer by the Escrow Agent and shall be deposited by the Issuer in the Bond Service
Subaccount of the Sinking Fund Account under the Bond Resolution. The Escrow Agent shall have
no responsibility for the application of amounts transferred by it to the Issuer as provided in the
preceding sentence.
Section 2.08. Deficiencies. If at any time it shall appear to the Escrow Agent that the
available proceeds in the Escrow Deposit Trust Fund will not be sufficient to make any payment
when due to the holders of any of the Defeased Bonds, the Escrow Agent shall notify the Issuer not
less than fifteen (15) days prior to such payment date and the Issuer agrees that it will make available
to the Escrow Agent, from legally available funds, if any, amounts sufficient to eliminate the
anticipated deficit so that the Escrow Agent will have sufficient funds to make such payment on the
4
Defeased Bonds.
Section 2.09. Escrow Agent and Bond Registrar Fees. The Issuer hereby agrees to
provide for the payment, from lawfully available funds of the Issuer, of the compensation due and
owing the Escrow Agent and 1996 Bond Registrar, which compensation shall be paid at such times
and in such amounts as agreed between the Issuer and the 1996 Bond Registrar and Escrow Agent,
respectively. In no event shall the 1996 Bond Registrar or Escrow Agent have any lien, security
interest or right of set-off whatsoever upon any of the moneys or investments in the Escrow Deposit
Trust Fund for the payment of such compensation, or for the reimbursement of any expenses
incurred by the 1996 Bond Registrar or Escrow Agent in connection with this Agreement.
Section 2.10. Bond Registrar. The Escrow Agent shall cooperate with the 1996 Bond
Registrar, to cause necessary arrangements to be made and thereafter continued whereby funds
available from the Escrow Deposit Trust Fund shall be made available by the Escrow Agent to the
1996 Bond Registrar, for the payment of the Defeased Bonds as the same shall be come due and
payable.
ARTICLE In
CONCERNING THE BANK
Section 3.01. Appointment of Escrow Agent. The Issuer hereby appoints The Bank of
New York Trust Company, N.A. as Escrow Agent under this Agreement.
Section 3.02. Acceptance by Bank. By execution of this Agreement, the Bank accepts its
duties and obligations hereunder. The Bank undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement and no implied covenants or obligations shall be read
into this Agreement against the Bank.
Section 3.03. Liability of Bank. The Bank shall not be liable in connection with the
performance of its duties hereunder except for its own negligence or willful misconduct. The Bank
shall not be liable for any loss or any resulting taxability of interest on the Defeased Bonds resulting
from any investment made pursuant to the terms and provisions of this Agreement.
The Bank shall not be liable for the accuracy of the calculations as to the sufficiency of
moneys and of the principal amount of the Government Obligations and the earnings thereon to pay
the Defeased Bonds.
The Bank shall keep such books and records as shall be consistent with prudent industry
practice and shall make such books and records available for inspection by the Issuer at all
reasonable times. In the event of the Bank's failure to account for any of the Government
Obligations or moneys received by it, said Government Obligations or moneys shall be and remain
the property of the Issuer for the benefit of the holders of the Defeased Bonds, as herein provided.
Section 3.04. Permitted Acts. The Bank and its affiliates may become the owner of or may
deal in any obligations of the Issuer described herein as fully and with the same rights as if it were
5
not the Escrow Agent and 1996 Bond Registrar.
Section 3.05. Resignation of Escrow Agent. The Escrow Agent at the time acting
hereunder may at any time resign and be discharged from the trusts hereby created by giving not less
than sixty (60) days' written notice to the Issuer specifying the date when such resignation will take
effect, but no such resignation shall take effect (except as provided by Section 3.07 (b) hereof) unless
a successor Escrow Agent shall have been appointed by the Issuer as hereinafter provided and such
successor Escrow Agent shall have accepted such appointment, in which event such resignation shall
take effect immediately upon the appointment and acceptance of a successor Escrow Agent and the
transfer to such successor Escrow Agent of the funds and accounts held by the Escrow Agent
hereunder.
Section 3.06. Removal of Escrow Agent.
( a) The Escrow Agent may be removed at any time by the Issuer, but the Escrow Agent
shall remain in office (except as provided by Section 3.07(b) hereof) until the appointment and
taking office of a successor Escrow Agent in accordance with the provisions of this Agreement.
(b) The Escrow Agent shall be deemed to have been removed if it is dissolved, becomes
incapable of exercising the powers of Escrow Agent hereunder or is taken over by any governmental
action.
(c) Notwithstanding the foregoing provisions of this Section 3.06, no removal of the
Escrow Agent shall take effect until all fees and expenses of the Escrow Agent to be removed
(including attorneys' fees and expenses) due hereunder shall have been paid.
Section 3.07. Successor Escrow Agent.
(a) When the position of the Escrow Agent becomes or is about to become vacant, the
Issuer shall appoint a successor Escrow Agent to fill such vacancy.
(b) If no appointment of a successor Escrow Agent shall be made pursuant to the
foregoing provisions of this Section, the holder of any Defeased Bond then outstanding may, or any
Escrow Agent retiring or being removed from office shall, apply to any court of competent
jurisdiction to appoint a successor Escrow Agent. Upon the deposit by the retiring Escrow Agent
of all funds and securities held by it under the provisions hereof into the registry of such court, such
Escrow Agent shall be relieved of all future duties hereunder.
( c) Any corporation into which the Escrow Agent, or any successor to it in the trusts
created by this Agreement, may be merged or converted or with which it or any successor to it may
be consolidated, or any corporation resulting from any merger, conversion, consolidation or
reorganization to which the Escrow Agent or any successor to it shall be a party or any corporation
to which all or substantially all of the corporate trust business of the Escrow Agent or any such
successor shall be transferred shall be the successor Escrow Agent under this Agreement without the
execution or filing of any paper or any other act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
6
Section 3.08. Receipt of Proceedings. Receipt of true and correct copies of the Bond
Resolution is hereby acknowledged by the Escrow Agent.
Section 3.09. Indemnification. The Issuer agrees to indemnify and save the Bank, its agents
and employees, harmless, to the extent allowed by law, against any liabilities, costs, expenses and
disbursements of whatsoever kind or nature, which it or they may incur in the exercise and
performance of its powers and duties hereunder, and which are not due to its negligence or
misconduct. Indemnification provided under this Section shall survive the termination of this
Agreement.
Section 3.10. Miscellaneous Provisions Regarding Escrow Agent. Whenever the Escrow
Agent shall deem it necessary or desirable that a matter be proved or established prior to taking,
suffering or omitting any action under this Agreement, such matter may be deemed to be
conclusively established by a certificate signed by an authorized officer of the Issuer. The Escrow
Agent may conclusively rely, as to the correctness of statements, conclusions and opinions therein,
upon any certificate, report, opinion or other document furnished to the Escrow Agent pursuant to
any provision of this Agreement; the Escrow Agent shall be protected and shall not be liable for
acting or proceeding, in good faith, upon such reliance; and the Escrow Agent shall be under no duty
to make any investigation or inquiry as to any statements contained or matters referred to in any such
instrument. The Escrow Agent may consult with counsel, who may be counsel to the Issuer or
independent counsel, with regard to legal questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder in
good faith in accordance herewith. Prior to retaining such independent counsel, the Escrow Agent
shall notify the Issuer of its intention.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Amendments to this Agreement. This Agreement is made for the benefit
of the Issuer, the Bank and the holders from time to time of the Defeased Bonds and it shall not be
repealed, revoked, altered or amended without the written consent of all such holders, the Bank and
the Issuer; provided, however, that the Issuer and the Bank may, without the consent of, or notice
to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely
affect the exclusion from gross income for federal income tax purposes of the interest on the
Defeased Bonds and the rights of such holders and as shall not be inconsistent with the terms and
provisions of this Agreement, for anyone or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement;
(b) to grant to, or confer upon, the Escrow Agent for the benefit of the holders of
the Defeased Bonds, any additional rights, remedies, powers or authority that may lawfully
be granted to, or conferred upon, such holders or the Escrow Agent; and
(c) to subject to this Agreement additional funds, securities or properties.
7
The Bank shall be entitled to rely exclusively upon an unqualified opinion of Moyle,
Flanigan, Katz, Raymond & Sheehan, P.A. or other nationally recognized bond counsel with respect
to compliance with this Section, including the extent, if any, to which any change, modification,
addition or elimination affects the rights of the holders of the Defeased Bonds, or that any instrument
executed hereunder complies with the conditions and provisions of this Section.
Section 4.02. Severability. If anyone or more of the covenants or agreements provided in
this Agreement should be determined by a court of competent jurisdiction to be contrary to law, such
covenant or agreement shall be deemed to be separate and shall in no way affect the validity of the
remaining provisions of this Agreement.
Section 4.03. Agreement Binding. All the covenants, promises and agreements in this
Agreement contained by or on behalf of the Issuer or by or on behalf of the Escrow Agent shall bind
and inure to the benefit of their respective successors and assigns, and to the benefit of the holders
of the Defeased Bonds, whether so expressed or not.
Section 4.04. Termination. This Agreement (other than Section 3.09 hereof) shall
terminate when all transfers and payments required to be made by the Escrow Agent under the
provisions hereof shall have been made.
Section 4.05. Governing Law. This Agreement shall be governed by the applicable laws
of the State of Florida.
Section 4.06. Execution by Counterparts. This Agreement may be executed in several
counterparts, . each of which shall be regarded for all purposes as an original, and all of which,
together, shall constitute and be but one and the same instrument.
Section 4.07. Notices. Any notice, demand, direction, request or other instrument
authorized or required by this Agreement to be given shall be deemed sufficiently given on the day
sent by registered mail, return receipt requested, addressed as follows or to such other address
furnished in writing by any of the following to all of the following:
If to the Issuer:
City of Boynton Beach, Florida
Attn: City Manager
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33425
If to the Bank:
The Bank of New York Trust Company, N.A.
10161 Centurion Parkway
2nd Floor
Jacksonville, Florida 32256
8
IN WITNESS WHEREOF, the Issuer and the Escrow Agent have duly executed this
Agreement as of the date first above written.
CITY OF BOYNTON BEACH, FLORIDA
By:
Mayor
THE BANK OF NEW YORK TRUST COMPANY, N.A., as
Escrow Agent
By:
Its Authorized Signatory
9
EXHIBIT A
DEFEASED BONDS
Maturity Date
(November)
2007
2008
2009
2010
2011
2012
2020
Principal
Amount
1,900,000
2,000,000
2,110,000
2,215,000
2,340,000
2,475,000
1,040,000
CUSIP #
(Prefix is 103580)
BBl
BC9
BD7
BE5
BF2
BGO
BH8
EXHIBIT B
GOVERNMENT OBLIGATIONS TO BE DEPOSITED
INTO ESCROW DEPOSIT TRUST FUND
Part I
Maturity
Date
Principal
~
11/01/2006
1. U.S. Treasury Obligation - State and Local Gov't. Series
Interest
Rate
EXHIBIT C
DEFEASED BONDS
DEBT SERVICE SCHEDULE
Date Called Principal Call Premium Interest Total
11/01/2005 $382,431.25 $ 382,431.25
05/01/2005 $382,431.25 $ 382,431.25
11/01/2006 $14,080,000.00 $281,600.00 $382,431.25 $14,744,031.25
EXHIBIT D
REDEMPTION NOTICE
CITY OF BOYNTON BEACH, FLORIDA
UTILITY SYSTEM REVENUE BONDS, SERIES 1996
Maturity Interest Rate CUSIP Nos.*
2007 5.20% 103580 BBI
2008 5.375 103580 BC9
2009 5.375 103580 BD7
2010 5.50 103580 BE5
2011 5.50 103580 BF2
2012 5.50 103580 BGO
2020 5.625 103580 BH8
Notice is hereby given that pursuant to the terms of the Resolution, adopted June 16, 1992,
as amended and supplemented, by the City Commission of the City of Boynton Beach, Florida, the
bonds described above, which were issued July 23, 1996, are called for payment and redemption on
November I, 2006 (the "Redemption Date") at a redemption price of 102% of the principal amount
thereof plus accrued interest thereon to the Redemption Date.
The Bonds so called for redemption should be presented for payment and redemption at the
office of the paying agent set forth below, on or after November I, 2006, and will cease to bear or
accrue interest after that date, whether or not so presented.
The Bank of New York
[insert address and name and
telephone number of contact]
Withholding of 31 % of gross redemption proceeds of any payment made within the United
States of America may be required by the Interest and Dividend Tax Compliance Act of 1983 unless
the paying agent has the correct taxpayer identification number (social security or employer
identification number) or exemption certificate of the payee. Please furnish a properly completed
IRS Form W-9 or exemption certificate or equivalent when presenting your securities for
redemption.
DATED this _ day of _,2005.
CITY OF BOYNTON BEACH, FLORIDA
By: Isl William Mummert
Finance Director
*
CUSIP numbers are included solely for the convenience of the owners, and no representation
is made as to the correctness of the CUSIP numbers indicated in this Redemption Notice.
G:\02345\37 Utility 2005\cscrow deposit(2).wpd
XIII-UNFINISHED BUSINESS
ITEM A.
CITY OF BOYNTON BEACH
AGENDA ITEM REQUEST FORM
Requested City Commission Date Final Form Must be Turned Requested City Commission
Meeting Dates in to City Clerk's Office Meeting Dates
r8J August 2, 2005 July 18,2005 (Noon.) 0 October 5, 2005
0 August 16, 2005 August 1,2005 (Noon) 0 October 18, 2005
0 September 6, 2005 August 15,2005 (Noon) 0 November I, 2005
0 September 20, 2005 September 6, 2005 (Noon) 0 November 15, 2005
0 Administrative 0
NATURE OF 0 Consent Agenda 0
AGENDA ITEM 0 Public Hearing 0
0 Bids [8J
0 Announcement 0
0 City Manager's Report
Date Final Form Must be Turned
in to City Clerk's Office
September 19,2005 (Noon)
October 3, 2005 (Noon)
" )
October 17, 2005 (Noonr.:;
_~ --'1
-~. 4 -"
October 31, 2005 (Noon~:::
r-.)
(:::)
-
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Development Plans
New Business
-r:J
c
Legal
Un[mished Business
Presentation
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RECOMMENDATION: Please place this request on the August 2,2005 City Commission Agenda under
UnfInished Business. This project was presented to the Planning and Development Board on May 24, 2005, and to the
Community Redevelopment Agency Board on June 9,2005. Both Boards forward this project to the City Commission with a
recommendation of approval, with the recommended changes as described below. This has been tabled since July 5,2005.
For further details pertaining to the request, see attached Department of Development Memorandum No. PZ 05-088.
P & D Board recommendations:
CRA Board recommendations:
EXPLANATION:
PROJECT:
AGENT:
LOCATION:
DESCRIPTION:
Building Colors along Major Roadways (CDRV 05-009)
City Initiated
N/A
Proposal to amend the Land Development Regulations, Chapters, 4 and 9 to limit building
colors, and require the review/approval for changes to building colors for buildings
located along Boynton Beach Boulevard, Federal Highway, and Congress Avenue.
PROGRAM IMPACT:
FISCAL IMPACT:
ALTERNATIVES:
l/tlifd t/&,~. ;/c t:~
City Manager Si~re I
D'y:g;;t~t Dlle tm
Planning and oning Director City Attorney / Finance / Human Resources
S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEW\Colors\Agenda Request BJdg Colors Major Roadways CDRV 05-009 unfinished bus 8-2-05 from
7-19.dot
S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC
DEPARTMENT OF DEVELOPMENT
Memorandum PZ 05-088
FROM:
DATE:
RE:
Chair and Members,
Planning & Development Board
Community Redevelopment Agency Board
Michael Rumpf, Planning & Zoning Division
May 13, 2005
Regulation of building colors on major thoroughfares
TO:
INTRODUCTION
Concerned for the aesthetic appearance of developments located along the arterial roadway corridors
in Boynton Beach, the City Commission directed staff to consider regulations on building colors, and
to initially obtain input from the two respective advisory boards. Although there was not strong
consensus on all aspects of this issue, both boards generally support increased review of color
changes, oppose the adoption of a specific color pallet, favor an increased review above staffs
administrative review, spoke of importance of having "teeth" in the system such as a required permit
for repainting projects, and that single-family houses should be exempt. Staff reviewed existing
regulations, researched comparable codes, and reviewed color theory including the Munsell Color
Classification System. Based on the understanding that the city desires strict color standards for the
three (3) major corridors including Boynton Beach Boulevard, Congress Avenue, and Federal
Highway, staff has drafted code amendments for consideration.
Staff understands the goal of this effort to prevent the presence of undesirable building colors from
degrading the appearance of major roadway corridors. The challenge to accomplishing this goal is
establishing a regulatory system given the subjective nature of the industry's classification of colors,
the difficulty in attaining consensus on colors, and the need for regulations to be clear, concise and
defensible. Staff also emphasized in this project, the need to maintain an efficient and friendly
development review process that maintains the positive reputation achieved to date, and minimizes
the enforcement burden on staff time and resources.
o f
f
I f b 'Id'
. d f II
'ptlons or regu a mg UI mg co ors are summanze as 0 ows:
Regulatory System Regulatory scrutiny Process impact User-friendliness
Mandatory color palate High/Low No affect Depends on choices
Subjective codes w/board Highest More review time Least friendly
review
Color standards (objective) Medium No affect Depends on choices
Relative stnds. (to existing) Moderate No affect Fairly friendly
No color requirements Lowest No affect Most friendly
EXISTING REGULATIONS
The city's regulations are currently void of specific rules governing building colors. Although sign
colors are to be "complimentary to the colors of the structure on which it is to be located", in the
Page 2 of 6
absence of specific color regulations, staff has applied requirements of Chapter 9. Community Design
Plan, that are specifically applicable to building and architectural design, to colors proposed for new
projects. Chapter 9, under Section 11. Exterior Building Design, reads as follows:
"B. When a distinct development or architectural pattern exists within
a surrounding two block area, consistency with that pattern shall be required,
unless the pattern of development is in a dilapidated condition. This provision
shall not require buildings to be exact copies of each other. " and
"D. When the area involved forms an integral part of, or is
immediately adjacent to, or otherwise clearly affects the future of any
established section of the city, the desiqn. scale and location on the site shall
enhance rather than detract from the character, value, and attractiveness of
that section of the cay. "
It should be noted that since Chapter 9 applies to new construction and substantial improvements to
existing projects (major modifications), it does not apply to minor modifications.
With respect to minor/major plan modifications, Chapter 4. Site Plan Review, lists criteria used to
determine if proposed project changes are major or minor. The following paraphrased excerpt is from
Section 9.C of that Chapter:
C. In making a minor/major modification determination, the planning
director shall consider the following:
1. increase ...buildable square footage ....by more than five (5)
percent.
2. reduce the provided number of parking space below required
number. ...
LOR.
3. cause development to be below the development standards in
4. Does the modification have an adverse effect on adiacent or
nearby property or reduce required physical buffers, such as fences, trees, or
hedges.
5. Does the modification adversely affect the elevation desian of
the structure or reduce the overall design of the structure below the standards
stated in the community design plan.
6. meet the concurrency requirements.....
7. modified site plan does not resemble the approved site plan.
The underlined text represents those criteria occasionally used by staff in reviewing proposed
. changes to proposed colors, despite their intent to address building design, location, and other
elements regulated by the Community Design Plan. If confronted with potentially undesirable
proposed project colors, and by an applicant unwilling to compromise, staff would deem the change
"major" thereby requiring formal site plan review culminating in Commission review. Alternatively, the
applicant could appeal the administrative decision, which similarly, would be reviewed by the City
Commission.
However, this current process not only lacks enforceable codes, but is flawed by virtue of the
subjective nature of reviewing paint colors. While new site plans facilitate the thorough review of
project colors by both the advisory board and Commission, the minor modification process relies upon
staff to make subject decisions in reviewing acceptable building colors.
Page 3 of 6
PROPOSED AMENDMENTS
Staff has drafted proposed amendments following a city-wide windshield survey (reference
corresponding PowerPoint slide show) to view predominant building colors, consideration of
regulations from other municipalities, and following identification of a subjective color classification
system. The proposed amendments, as described and provided below, begin by adding purpose or
preamble text to establish colors as an important design aspect, adds color changes to applicability
criteria of Chapter 9, defines special road corridor and the corresponding acceptable color groups,
establishes maximum color limits (intensities) based on the Munsell Color Classification system,
places burden of proof of compliance on the applicant, adds color changes as a criteria for
major/minor modification reviews and describes submittal information. The changes also delegates to
the advisory boards the responsibility to review appeals to administrative decisions involving change
in project colors. Prior to codification of final amendments, staff will also incorporate penalty and
enforcement provisions with input from the City Attorney's Office. Entire excerpts of the proposed
amendments are also included as Exhibit "A".
Preamble
The following text is proposed for Chapter 9. Section 11 (new subsection "K"), and would provide the
basis and importance of new color regulations. This new section is proposed as follows:
K. Bui/ding colors. Bovnton Beach recognizes that protect
architecture and colors can positivelv or negativelv imoact its
aesthetic environment, image, and oropertv values. Building colors
should be carefullv selected to be compatible with and compliment
protect architecture, colors of fixed elements such as roof materials,
and colors of adtacent orotects. Protect colors will be selected to
provide aopropriate orooortions of, and coordinated base, secondary,
trim, and accent colors. Protect colors are intended to complement
and contribute to the surrounding area and city, rather than orimarilv
attract attention to a single orotect from a distance. The intent of this
section is not to require identical colors, but to require the careful
selection of colors that will contribute to the overall apoearance of
the city.
This text documents the importance to the city of building colors; states the importance of careful color
selection, color compatibility, and color hierarchy; and the purpose of colors to contribute to an area
rather than just to a single project. Note that this preamble recognizes the hierarchy in design and
painting of a building by requiring a level of fayade detail that facilitates use of a variety of (yet
complimentary) colors for the three different areas of a wall-base or primary wall, secondary portions
of a wall, and the trim and "accent" areas.
Applicability
The following text is proposed to Chapter 9. Section 4 (new criterion #5) so that this chapter and the
new requirements are applicable to changes proposed to approved or existing project colors, for
projects that are located along any of the three target roadways. This new criterion reads as follows:
5. When exterior oaint colors are to be changed on an
existing building located as described in Section 11.K,1 (onlv
Subsection 11.K aoplies to oroposed improvement unless protect also
includes other modifications as described in this chapter). Changes as
described in section 11.K.l shall be orocessed as a mator or minor
site plan modification, and in accordance with Section 11.K of this
chapter.
Page 4 of6
This text also clarifies that other requirements of Chapter 9 such as roof top screening, would not
apply to changes that only involve exterior colors.
Color Standards
This text represents the core of the proposed standards, defining the preferred colors or color groups
to which the target roadway corridors are limited, and establishing the upper limit on color intensity (or
saturation) as a quantifiable label defined by the Munsell Color Classification system. The proposed
color groups and Munsell value and chroma limits can be adjusted based on preferences and
consensus from the advisory boards and City Commission.
The Munsell Color Classification system was established by the artist Albert H. Munsell in 1905. to
provide a standard objective classification methodology that uses a rational numerical system rather
than color names to describe different colors. This continues to be a system used by the U.S.
National Bureau of Standards. This system is proposed for the city's color regulations to define the
measurable threshold for acceptable color chroma or saturation (commonly referred to as "intensity".
This system is based around, and further defined by three attributes of color: Hue, Value and Chroma,
and each represented by numerical quality. This system will be further defined by staff as part of the
presentations before the board and Commission; however. it is important to note that the maximum
value and chroma qualities, established in the code. will be applied only when a compromise cannot
be reached with the applicant using basic visual analysis of the proposed colors, against the general
limits described in the code. It should also noted that the burden will be placed on the applicant, when
staff initially determines that the proposed colors exceed the maximums. to obtain and provide to staff
the actual nearest quality scores for the proposed colors from the Munsell classification system. The
proposed standards read as follows:
1. Due to the hiah visibilitv of buildinas located alona Conaress
A venue. Bovnton Beach Boulevard and Federal Hiahwav. and particular Iv aiven
the intent of redevelopment plans to beautify and unify Federal Hiahwav and a
seament of Bovnton Beach Boulevard, buildina colors for new proiects. or
existina proiects proposed for minor or maior modification. will be further
reaulated bv the fOllowina reauirements:
a. Commercial/office/industrial proiects.Base/main wall color will be
liaht (hiah "value'? colors limited to whites. aravs and beiaes. Atypical building
colors such as purole. pink. blue, areen and teal. should be substituted with
more common pastels or hue cateaories such as vellow or peach. Secondary
colors will not cover areater than 25% of each individual wall area. Secondary
colors will be consistent with the wall color standards, or can be a moderatelv
saturated wall color or a moderatelv saturated complimentary color. Trim and
accent colors mav be the most saturated colors allowed. and are encouraaed to
be complimentary earth tones and/or pastels. The maanitude of saturation will
be proportional to the saturation of the wall and secondary colors. If proposed
colors are determined bv the Plannina & Zonina Director to be inconsistent with
the intent of this section. applicant shall verify compliance usina the Munsell
Color Classification Svstem. with eiaht (8) beina the minimum value. and six (6)
beina the maximum chroma. The maximum allowed difference in saturation
between the base color and secondary color is three (3) whole increments. The
applicant mav be reauired to provide exact color notations from the Munsell
Color Classification Svstem. to confirm compliance with these standards.
b. Residential proiects (excludina one and two familv structures).
Colors for residential proiects are allowed to include a areater
aamut of colors. to include whites. beiaes and other earth tones. consistent with
paraaraph "K" of this section. with secondary. trim and accent colors consistent
with paraaraph "a" of this section.
Page 50f6
Note paragraph "1", defines the target roadways similar to how the target roadway corridors are
identified in the preceding, existing subsection regarding overhead doors. Paragraph "a"
accomplishes the following:
1. Recognizes the importance of hierarchy in design and painting of a building by providing
separate standards for the three or four different painting areas of a wall-base, secondary,
and trim or accent; sets 25% as the maximum amount of space for secondary elements;
and recognizes the benefit of compatible diversity through flexibility in using bolder (higher
chroma) colors for trim and accent elements;
2. Establishes acceptable color groups (or "hues") for each area of the fayade. This therefore
excludes from use as a base color certain color groups commonly known, for example, as
the "historical palette", which tends to be darker, very saturated colors. "Light" colors are
also known by the industry as "whites" or "white bases"; and
3. References the Munsell system as the standard, and sets thresholds for value and chroma
as 8 and 6, respectively. Note that the two attributes are inversely proportional, as the
higher the "value" the lighter the color, and the higher the "chroma" the bolder (brighter or
more "saturated") the color.
Paragraph "b" accomplishes the following:
1. Excludes single and two family structures from the color regulations; and
2. Provides greater flexibility in color choices by allowing the selected "hues" (color families)
that are excluded from paragraph "a" such as "earth tones".
Minor/Maior Review Criteria
Chapter 4. Site Plan Review, Section 9. Modification of approved site plan is proposed to be amended
to provide the beneficial reference to the new color regulations within Chapter 9, in addition to
requiring ill! repainting projects to be reviewed for conformance with the preamble of the color
regulations. This is the most significant change other than those changes intended for properties
along selected roadway corridors. While this would increase the review role over repainting projects,
and prevent extremely undesirable colors, it would likely generate significantly more violations and
enforcement activity due to lack of knowledge of the new regulations, or painting activities that would
intentionally disregard new codes. This text would read as follows, beginning with the section title:
Section 9. Modification of existinG improvements approvod sito pkm
A. Minor: A non-impacting modification which will have no adverse
effect on the 3pprovod site and development p/aR and no impact upon adjacent
and nearby properties, and no adverse aesthetic impact when viewed from a
public right-of-way as determined by the planning and zoning director.
5. Does the modification adversely affect the elevation design of the
structure or reduce the overall design of the structure below the standards
stated in the Community Design Plan. Does the modification propose to repaint
a proiect usinG existinG colors. of which are inconsistent with color standards of
section K. 1 of the Community DesiGn Plan. or propose to chanGe proiect
colorr s) inconsistent with color standards of section K. 1.
The proposed changes to the section title are unrelated to this color project, and intended to allow
application of the major/minor modification review for current regulations against changes to any
existing site, rather than implying that it applies only to modern day projects improved with a site plan
currently on file. This would prevent interpretations that exempt older sites from being reviewed for
site changes, or from automatically requiring them to undergo formal site plan review when in fact the
proposed changes are "minor". This also prevents codes from discouraging desirable redevelopment
and property improvements, by limiting the extent of regulations that are applicable to older, non-
conforming properties, particularly when it is cost-prohibitive to be brought totally "up to code".
Page 6 of 6
Appeals
This proposed addition to Chapter 1. General Provisions, Article VIII. Appeals, provides the advisory
boards with the responsibility to hear the appeals of administrative decisions leading from the review
of paint colors for conformance with the new color regulations. This new paragraph "5" is consistent
with feedback received from advisory boards during initial discussions, as summarized in the first
paragraph of this report.
5. The Planninq & Development Board and Community Re-
development Aqency Board will hear and decide appeals of admin-
istrative decisions or determination in the enforcement of maior/ minor
site plan modifications involvina chanqe in proiect colors. or compliance
with other color reaulations.
Definitions
The following definitions are to supplement existing definitions within Chapter 1, Article II, for the
purpose of providing proper documentation for this topic that is new to city regulations. The proposed
definitions are as follows:
The Munsell Color System. A commonly used color measurement methodoloQY
usinq a rational numerical classification system rather than color names to
describe different colors. This system is based around. and further defined by
three attributes of color: Hue, Value and Chroma. and each represented by
numerical quality.
Hue. The basis of a color. also referred to as the color family usinQ the primary
and secondary colors.
Value. The liqhtness or darkness of a color. also known as the qray scale (0 =
absolute black, 10 = theoretical white),
Chroma. The intensity of a color. also referred to as its strenoth or saturation.
Saturation. The intensity. strenoth or briohtness of a color.
Base/wall color. The color used for those portions of the wall that represent the
oreater surface area compared to the remainder of the facade.
Secondary color. The color used on smaller portions of a wall. or on larqe trim
areas of the facade. and should not exceed 25% of each individual wall.
Trim and accent colors. These are buildino colors used on doors, around doors
and windows. alonq roof lines or other planes of the facade. or on features used
for architectural enhancement or definition.
CONCLUSIONS/RECOMMENDATIONS
Staff presents these recommend code amendments for consideration by the advisory boards and City
Commission. As indicated above, the only aspect of these proposed regulations known by staff to be
absent, which will still be formulated through collaboration with the City Attorney's Office, regard
enforcement and penalties. Staff also acknowledges that the awareness and understanding of the
business community is vital to the successful implementation of the ultimate regulations adopted by
the Commission. Directly mailed notices to those owners of property located along the target
roadways, may be necessary to maximize the awareness of any new regulations.
MR
Attachments S:\Planning\SHARED\WP\SPECPROJ\CODE REVIEW\Colors\staff report.doc
Part III. LDRs, Chapter 4. Site Plan Review
Section 9. Modification of approved site -pIaft.
A. Minor: A non-impacting modification which will have no adverse
effect on the ~pprovcd site and development t*a-A and no impact upon
adjacent and nearby properties, and no adverse aesthetic impact when
viewed from a public right-of-way as determined by the planning and zoning
director.
B. Major: A modification which presents a significant change in
intensity of use which, in turn, may have a significant impact upon facilities,
concurrency; upon nearby and adjacent properties, or upon findings made at
the time of approval of the site and development plan as determined by the
planning and zoning director.
C. In making a minor/major modification determination, the planning
and zoning director shall consider the following:
1. Does the modification increase the buildable square footage of
the development by more than five (5) percent.
2. Does the modification reduce the provided number of parking
space below the required number of parking spaces.
3. Does the modification cause the development to be below the
development standards for the zoning district in which it is located or other
applicable standards in the Land Development Regulations.
4. Does the modification have an adverse effect on adjacent or
nearby property or reduce required physical buffers, such as fences, trees,
or hedges.
5. Does the modification adversely affect the elevation design of
the structure or reduce the overall design of the structure below the
standards stated in the Community Design Plan. Does the modification
propose to repaint a project using existing colors, of which are inconsistent
with color standards of section K.1 of the Community Design Plan, or
propose to change proiect color(s) inconsistent with color standards of
section K.1.
6. Does the modified development meet the concurrency
requirements of the Boynton Beach Comprehensive Plan.
7. Does the modification alter the site layout so that the modified
site plan does not resemble the approved site plan.
F. Required information: The following information must be
presented with a request for a site plan modification:
1. Minor: A letter which sets forth the requested changes along
with an exhibit showing that portion of the site plan which is to be changed
in its present condition and an exhibit depicting the requested change.
Where the proposed changes include project colors, required information will
also include color swatches of the existing and proposed colors, and
corresponding elevation drawings. Photographs or alternative graphics in lieu
of elevation drawings may be submitted if deemed acceptable by the
Planning & Zoning Director. The applicant may be responsible for providing
exact color notations from the Munsell Color Classification system, to confirm
compliance with Chapter 9 of these regulations.
2. Major: A major modification shall contain the same information
as required for a new site plan submittal.
Part III. LDRs, Chapter 9. Community Design Plan
Sec. 4. Applicability.
A. New Construction. This chapter shall apply concurrently and in
direct relation with the requirements of Chapter 4, Site Plan Review of these
regulations.
B. Existing Construction. This chapter shall be applicable under any of
the following conditions:
1. When an existing building is proposed to be enlarged.
2. When exterior alteration or reconstruction of an existing building
is changed and/or alters the effect of the architectural design of the building.
3. When an existing building and/or site is substantially improved.
4. When the occupancy classification of the building changes as
defined by the Standard Building Code.
5. When exterior paint colors are to be changed on an existing
building located as described in Section 11.K.1 (only Section iLK applies to
proposed improvement unless project also includes other modifications as
described in this section). Changes as described in section !1.K.! shall be
processed as a maior or minor site plan modification, and in accordance with
Section !1.K of this chapter.
Part III. LDRs1 Chapter 9. Community Design Plan
Sec. 11. Exterior Building Design.
1. All building facades of a building that face or are visible from public
or private streets shall be designed to be as attractive in appearance as the
front of the building.
J. Due to the high degree of visibility of buildings located on Hypoluxo
Road, Miner Road, Congress Avenue, Lawrence Road, Gateway Boulevard,
Quantum Lakes Drive, Old Boynton Road, Knuth Road, Woolbright Road,
Boynton Beach Boulevard, Winchester Boulevard, High Ridge Road, Seacrest
Boulevard, Golf Road, Ocean Avenue, Federal Highway, Old Dixie Highway,
N.E. 10th Avenue and S.E. 36th Avenue; most of which are considered
entrances to the CitYI the following additional exterior design requirements
apply:
1. Overhead doors shall not be located on a building facade(s) that
faces any of the above public or private street.
2. Industrial buildings located on any of the above streets shall be
designed in such a manner so as to disguise their typical warehouse
appearance.
K. Building colors. Boynton Beach recognizes that project architecture
and colors can positively or negatively impact its aesthetic environment,
image, and property values. Building colors should be carefully selected to
be compatible with and compliment project architecture, colors of fixed
elements such as roof materials, and colors of adjacent projects. Project
colors will be selected to provide appropriate proportions of, and coordinated
base, secondary, trim, and accent colors. Project colors are intended to
complement and contribute to the surrounding area and city, rather than
primarily attract attention to a single project from a distance. The intent of
this section is not to require identical colors, but to require the careful
selection of colors that will contribute to the overall appearance of the city.
1. Due to the high visibility of buildings located along Congress
Avenue, Boynton Beach Boulevard and Federal Highway, and particularly
given the intent of redevelopment plans to beautify and unify Federal
Highway and a segment of Boynton Beach Boulevard, building colors for new
projects, or existing projects proposed for minor or major modification, will
be further regulated by the following requirements:
a. Commercial/office/Industrial projects. Base/main wall color
will be light (high "value") colors limited to whites, grays and beiges.
Atypical building colors such as purple, pink, blue, green and teal, should be
substituted with more common pastels or hue categories such as yellow or
peach. Secondary colors will not cover greater than 250/0 of each individual
wall area. Secondary colors will be consistent with the wall color standards,
or can be a moderately saturated wall color or a moderately saturated
complimentary color. Trim and accent colors may be the most saturated
colors allowed, and are encouraged to be complimentary earth tones and/or
pastels. The magnitude of saturation will be proportional to the saturation of
the wall and secondary colors. If proposed colors are determined by the
Planning & Zoning Director to be inconsistent with the intent of this section,
applicant shall verify compliance usinQ the Munsell Color Classification
System, with eight (8) being the minimum value, and six (6) being the
maximum chroma. The maximum allowed difference in saturation between
the base color and secondary color is three (3) whole increments. The
applicant may be required to provide exact color notations from the Munsell
Color Classification System, to confirm compliance with these standards.
b. Residential projects. Colors for residential projects are allowed
to include a greater gamut of colors, to include whites, beiges and other
earth tones, consistent with paragraph "Ku of this section, with secondary,
trim and accent colors consistent with paragraph "au of this section.
Part III. LOR, Chapter 1. General Provisions
Art. VII. Appeals
D. ASSIGNMENT OF APPEALS. The City of Boynton Beach has several
boards/commissions which deal with a variety of appeals, variances,
exemptions, exceptions, etc., as follows:
1. The building board of adjustment and appeals will hear and
decide appeals of administrative decisions or determinations made in the
enforcement or administration of LDR Chapter 20, Building, Housing and
Construction Regulations and the various building codes and ordinances
adopted by the City. See LOR Chapter 20, Article VII, Section 2D for
detailed information.
2. The City Commission will hear and decide appeals of
administrative decisions or determinations in the enforcement or
administration of excavation, dredging and/or fill permits; platting;
major/minor site plan or master plan modifications and height exceptions.
3. The concurrency review board will hear and decide appeals of
administrative decisions denying a certification of concurrency and/or a
conditional certification of concurrency.
4. Repealed by Ord. No. 02-033, 9 4, 8-20-02.
5. The Planning & Development Board and Community
Redevelopment Agency Board will hear and decide appeals of administrative
decisions or determination in the enforcement of major/minor site plan
modifications involving change in project colors, or compliance with other color
reQulations.
Part III. LOR, Chapter 1. General Provisions
Art. II. Definitions
The Munsell Color System. A commonly used color measurement
methodology using a rational numerical classification system rather than
color names to describe different colors. This system is based around, and
further defined by three attributes of color: Hue, Value and Chroma, and
each represented by numerical quality.
Hue. The basis of a color, also referred to as the color family using the
primary and secondary colors.
Value. The lightness or darkness of a color, also known as the gray scale (0
= absolute black, 10 = theoretical white).
Chroma. The intensity of a color, also referred to as its strength or
saturation.
Saturation. The intensity, strength or brightness of a color.
Base/wall color. The color used for those portions of the wall that represent
the qreater surface area compared to the remainder of the fa<;ade.
Secondarv color. The color used on smaller portions of a wall, or on large
trim areas of the fa<;ade, and should not exceed 250/0 of each individual wall.
Trim and accent colors. These are building colors used on doors, around
doors and windows, along roof lines or other planes of the fa<;ade, or on
features used for architectural enhancement or definition.
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Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
Mixed Use POD in the Planned Industrial
Development (PID) zoning district.
Chair Wische inquired about tabling the Quantum Park & Village South
Commercial Master Site Plan Modification.
Mr. Johnson noted that staff received a fax from the applicant on the date of this
meeting, stating they would like to postpone until the next Planning and
Development Meeting.
Ed Breese pointed out there were some issues, which they wanted to resolve
with staff before coming before the Board.
Motion
Mr. Casaine moved that the Master Site Plan Modification for Quantum Park &
Village South Commercial (MSPM 05-003), be tabled until the next Planning and
Development Meeting, to be held on June 28, 2005. Motion seconded by Vice
Chair Hay and carried 6-0.
G. Code Review
2.
Project:
Building Colors along Major Roadways
(CDRV 05-009)
City initiated
N/A
Proposal to amend the land Development
Regulations, Chapters 4 and 9 to limit building
colors, and require the review/approval for
changes to building colors for buildings located
along Boynton Beach Boulevard, Federal
Highway, and Congress Avenue.
Agent:
location:
Description:
Chair Wische asked why Woolbright was left out of the proposal. Mr. Rumpf
stated that in some conversations with Commissioner Ensler, who was
instrumental in bringing the item forward, he suggested trying it on the three
roads, which had the greatest exposure to the public. Vice Chair Hay stated
Gateway should also be included. Mr. Rumpf explained the project was to
address color changes for existing buildings, and not for new construction,
because the Board would get to review those colors.
Mr. Rumpf noted he prepared a PowerPoint presentation, and hoped the Board
could give comprehensive recommendations to the Commission. He pointed out
10
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
the goal was to bring the major roadway corridors of Boynton Beach Boulevard,
Federal Highway and Congress Avenue, up to a greater quality or appearance
standard, by addressing paint colors.
Mr. Rumpf started his PowerPoint presentation, which is available on file with the
minutes of the meeting.
Mr. Rumpf expressed that staff hoped to clean up the corridors through attrition,
and the building colors project is not something that would be mandated. He
said there would be no color police citing projects that do not conform. Mr.
Rumpf pointed out their challenge would be to establish a regulatory system that
accomplishes the objectives on:
· The varying opinions on acceptable colors;
· The subjective nature and inconsistent use of terminology in describing
colors by the industry;
· The need for regulations to be clear, concise and defensible.
Mr. Rumpf noted the objectives of the presentation were:
· To show samples of built environment, and the consistency of colors
which are out there now.
· Identify preferences.
· To discuss the alternatives to writing regulations, or regulatory schemes.
· Learn the basics of the Munsell Classification System
· Obtain consensus on color limits for color groups and color thresholds.
· Consideration of staff recommendations.
As part of his presentation, Mr. Rumpf showed photographs of some buildings
and their existing colors. He described the base and secondary colors used on
the buildings.
Mr. Rumpf stated that on the first page of the report submitted, there was a
simplistic summary of the general regulatory option, which other cities use in
their system. He noted they did not have specific regulations pertinent to colors,
and the language in the code spoke about the design, form and architecture. In
the absence of color standards, staff used the paragraph in Chapter 9 of the
Design Plan, to include colors.
Mr. Rumpf stated the existing regulations were located in Chapter 9 of the
Community Design Plan, which talked about the architectural pattern, which was
construed to include colors. The language in Part 111 of the LDRs, Chapter 4,
11
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
for minor or major site plan review, did not relate to the fa~ade and colors, but
did address the affect on elevation designs.
For discussion, Mr. Rumpf passed around some samples of colors to the Board.
He noted the Munsell System was a three-digit number that described a color.
The system uses hue, value and chroma, which are the three attributes of color.
He noted hue is the basis of a color, referred to as the color family using the
primary and secondary colors. Value is the lightness or darkness of a color, also
known as the gray scale. Chroma is the intensity of a color, also referred to as
its strength or saturation.
Ms. Jaskiewicz asked if staff discouraged high chroma colors. Mr. Rumpf stated
he had some proposed numbers to work from. He said from staff's proposed
regulations, they want to regulate trim and accents, which represent the smallest
portion of the building, and have the greatest potential for adding
complementary colors and character. The base color would represent the
greatest portion of the building, and give the building its signature.
Ms. Jaskiewicz asked if staff would aim toward the white, grays and beiges for
the walls. Mr. Rumpf expressed that was the direction they were going. The
Board would see how staff proposed to regulate the secondary color. A
secondary paint color could be a small portion or a large portion.
Staff purchased the least expensive learning tool for the Munsell system that cost
$65.00. Mr. Rumpf explained you could spend over $600.00 on complete sets
with 1500 different identified colors, but what they had was a small range to give
the Board an example, and to teach the system.
Mr. Rumpf expressed that as an incentive for an applicant to meet the ultimate
regulations, staff proposed the regulations should read that where there is a
discrepancy or uncertainty, or where staff deems the color is not in compliance,
the applicant would be responsible for proving its compliance, by providing staff
with the Munsell code.
Mr. Rumpf stated the objectives of their proposed regulations were:
· Make it mandatory for change to be reviewed for color changes on the
selected corridors.
· Efficient and user-friendly for both staff and the applicant.
. Fits into current code structure.
· Set its purpose; establish process, limits and penalty. He noted he was
awaiting the standard language from the CIty Attorney's office.
· They want it to be defensible.
12
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
Mr. Rumpf also noted staff would like to accomplish the following at the current
meeting:
· Identify color preferences and dislikes (if any).
· Confirm or adjust color categories.
· Other code provisions/changes
· Discuss color limits (chroma and value)
· Other - anything that may be necessary for the code.
Mr. Rumpf said he attended some sessions on writing codes at the National
Planning Conference in San Francisco. One of the things stressed at the
conference, was to support your comprehensive plan and be clear. State the
objective and the base of the plan. He noted he called this procedure the
preamble, and the following text is proposed for Chapter 9, Section 11
(subsection "K"), and would provide the basis and importance of new color
regulations:
"K. Building colors. Boynton Beach recognizes that project architecture and
colors can positively and negatively impact its aesthetic environment, image, and
property values. Building colors should be carefully selected to be compatible
with and compliment project architecture, colors of fixed elements such as roof
materials, and colors of adjacent projects. Project colors will be selected to
provide appropriate proportions of, and coordinated base, secondary, trim and
accent colors. Project colors are intended to complement and contribute to the
surrounding area and city, rather than primarily attract attention to a single
project from a distance. The intent of this section is not to require identical
colors, but to require the careful selection of colors that will contribute to the
overall appearance of the city".
Mr. Rumpf stated under the applicability section of Chapter 9, Section 4 (new
criterion #5), the new requirements are applicable to changes proposed to
approved or existing project colors, for projects that are located along any of the
three target roadways. The new criterion would read:
"5. When exterior paint colors are to be changed on an existing building
located as described in Section lI.K.I (only Subsection I1.K applies to proposed
improvement unless project also includes other modifications as described in this
chapter). Changes as described in section I1.K.I shall be processed as a major
or minor site plan modification, and in accordance with Section II.K of this
chapter".
Mr. Rumpf explained under the color standards, the proposed standards would
read that due to the high visibility of buildings located along Congress Avenue,
13
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
Boynton Beach Boulevard and Federal Highway, the following regulations would
apply:
a. Commercial/office/industrial projects. Base/main wall color will be light
(high "value") colors limited to whites, grays and beiges. Atypical building
colors such as purple, pink, blue, green and teal, should be substituted
with more common pastels or hue categories such as yellow or peach.
Secondary colors will not cover greater than 25% of each individual wall
area. Secondary colors will be consistent with the wall color standards, or
can be a moderately saturated wall color or a moderately saturated
complimentary color. Trim and accent colors may be the most saturated
colors allowed, and are encouraged to be complimentary earth tones
and/or pastels. The magnitude of saturation will be proportional to the
saturation of the wall and secondary colors. If proposed colors are
determined by the Planning & Zoning Director to be inconsistent with the
intent of this section, applicant shall verify compliance using the Munsell
Color Classification System, with eight (8) being the minimum value, and
six (6) being the maximum chroma. The maximum allowed difference in
saturation between the base color and secondary color is three (3) whole
increments. The applicant may be required to provide exact color
notations from the Munsell Color Classification System, to confirm
compliance with these standards.
Ms. Jaskiewicz pointed out that in warmer climates, lighter hues reflect the heat,
and the darker colors absorb it. She felt it would be wise for the Board to
suggest the lighter chromas.
Mr. Rumpf noted there was a trend now, where you are finding darker colors in
residential areas.
b. Residential projects (excluding one and two family structures). Colors for
residential projects are allowed to include a greater gamut of colors, to
include whites, beiges and other earth tones, consistent with paragraph
"K" of this section, with secondary, trim and accent colors consistent with
paragraph "a" of this section.
Mr. Rumpf said there were fewer residential projects in some segments of the
proposed corridors, but it was necessary to acknowledge it.
Ms. Jaskiewicz asked if there was a design specialist with regard to color on staff.
Mr. Rumpf stated not at the time, but they have two vacancies, so there was
potential to do that.
14
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
Mr. Rumpf referred to Exhibit B in the proposed document, which related to
Munsell - Chroma and Value. He asked the Board if six (6) and eight (8) were
sufficient value limits or if they should go to nine (9).
Mr. Casaine felt they should go up to nine (9) in value, and up to eight (8) in
chroma.
Ms. Jaskiewicz asked if the value and chroma did not depend on the proportion
of accent parts of the buildings.
Mr. Rumpf agreed with Ms. Jaskiewicz that buildings are more attractive when
they have complimentary colors.
There was a discussion about some of the photographs of the buildings and their
colors on the PowerPoint presentation. Mr. Rumpf said there was a new office/
industrial building on the southeast corner of Hypoluxo and Seacrest, which had
beautiful colors, but they added a deep blue awning. He noted they were not
taking all creativity away, but rather putting it where it would accentuate the
building.
Ms, Jaskiewicz said years ago there was a Community Appearance Board that
could take on those issues.
Mr. Rumpf noted that when a project is deemed minor, it is processed as a minor
change through staff and the permit system. It does not go through the formal
review process before the Planning and Development Board and the Commission.
He expressed that the way the code is written for Chapter 4 of the Site Plan
Review, Section 9 states the "Modification of approved site plan", implies that
only the modern projects, which have an approved site plan, would get reviewed
for this. He proposed the language be changed to read, "Modification of the site
plan", so everything is reviewed.
With the exception of a couple members from the CRA Board who felt a Design
Review Board should handle the building colors project, Mr. Rumpf pointed out
that both the Planning and Development Board and the CRA Board indicated a
desire to playa role in it. He stated when staff and the Planning Director make a
final decision that a color does not comply, but the applicant says they want the
color, and appeal the administrative decision, the case would go to the
Commission as an appeal and the staff would present their argument. The case
should go before the Planning & Development Board and the CRA Board,
because the code defines those Boards as the Technical Boards, defying the
standards. The minor site plans are reviewed under consent on the Commission
agenda.
15
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
Mr. Rumpf concluded the slide presentation, and stated the Board had not
shared a lot about preferences. He pOinted out the Board suggested staff
increase the value limits to nine (9), and asked if there were any other
discussions.
Ms. Johnson asked why the proposal was restricted to the three corridors.
Mr. Rumpf pointed out that was the mission of the Commission. Boynton Beach
Boulevard, Federal Highway and Congress Avenue are the principle entrances
into the City.
Ms. Johnson noted Part 111 of the LDRs, Chapter 9, Community Design Plan for
Exterior Building Design, section J. stated: "due to the high degree of visibility of
buildings located on Hypoluxo Road, Miner Road, Congress Avenue, Lawrence
Road, Gateway Boulevard, Quantum Lakes Drive, Old Boynton Road, Knuth
Road, Woolbright Road, Boynton Beach Boulevard, Winchester Boulevard, High
Ridge Road, Seacrest Boulevard, Golf Road, Ocean Avenue, Federal Highway,
Old Dixie Highway, N.E. 10th Avenue and S.E. 36th Avenue; most of which are
considered entrances to the City", and questioned why they limited the proposal
to only three corridors when development and growth is rampant all over.
Mr. Rumpf stated if that was the Board's conviction, it could be recommended to
the Commission.
Ms. Johnson was concerned it would be detrimental to just have the plan for
three streets, when there is tremendous growth on all the streets, and felt it
should be consistent.
Chair Wische asked if that point could be recommended to the Commission, and
Mr. Rumpf noted the Board could recommend anything they felt was important
to the project.
Ms. Johnson asked the location of S.E. 36th Avenue. Mr. Rumpf stated it was
Gulfstream Boulevard.
Mr. Casaine felt the industrial areas should be subject to the decision on the
colors.
Mr. Rumpf noted he did not have the design guidelines proposed for the Heart of
Boynton Plan, but stated if they were looking to allow design or character based
upon Floribbean, which might be getting a little Caribbean, they may want
brighter colors.
16
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
Ms. Johnson asked if adding the proposed language to cover Martin Luther King
Boulevard and Heart of Boynton would be the responsibility of the Community
Redevelopment Agency.
Mr. Rumpf stated it is within the CRA, but the Planning and Development Board
did not have to limit their comments.
Ms. Johnson pointed out when the paragraph was written, Martin Luther King
Boulevard probably was not Martin Luther King Boulevard, or considered an
entrance to the City. She definitely thought Martin Luther King Boulevard should
be added.
Mr. Baldwin pointed out N.E. 10th Avenue was Martin Luther King Boulevard. Ms.
Johnson suggested the text be changed to state Martin Luther King Boulevard.
Ms. Jaskiewicz noted it was both, because one side said Martin Luther King
Boulevard and the other said N.E. 10th Avenue. She also noted one side of S.E.
36th Avenue was Boynton, and the other side was Defray.
Mr. Rumpf noted the Commission and the Boards specifically stated they would
not want to regulate single-family, duplex dwellings - which are typically exempt
from site plan review process. He pOinted out S.E. 36th Avenue, N.E. 10th
Avenue, and Martin Luther King Boulevard have a higher percentage of
residential structures.
Ms. Johnson asked if Floribbean colors meant the Board should increase the
Munsell value to nine (9).
Mr. Rumpf clarified the Board recommended the Munsell value to be nine (9),
and a chroma of (6).
Ms. Jaskiewicz questioned if that was a finite statement or a strong suggestion.
Mr. Rumpf stated it was currently drafted not to be a suggestion but a standard.
If they want to accommodate on a certain corridor a greater variety of the hues,
and not limit those groups, then they would need to revise that text for those
corridors, because right now they were looking at whites, grays and beiges.
That would restrict the Floribbean colors. Ms. Johnson clarified that would not
apply to single family dwellings and duplexes and Mr. Rumpf agreed.
Ms. Jaskiewicz noted a good example of the Caribbean colors would be in the
Delray Commerce Center.
17
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
Mr. Rumpf said Mr. Breese suggested the group category that would help would
be pastels, which was allowed under residential projects. He felt they could
make a provision to make them pastels but still limit the chroma and the value
extents.
Ms. Johnson clarified Mr. Rumpf stated legal was going to review the proposal,
and Mr. Rumpf agreed. Ms. Johnson felt there was a lot of room for someone to
come back at them and ask why is this okay in one part of the city and not in
another part of the city. She stated she would defer to the CRA and staff to
identify what works for the Heart of Boynton Beach.
Ms. Johnson felt the words "should be"; "may be"; and "encouraged to", used in
section lA and lB of the Color Standards, left a lot of room for flexibility. Mr.
Rumpf stated that was his intent. He said if there was an area where they would
not want the flexibility, it should be addressed. If they want to exclude purples,
pinks, greens and reds; then the language should state "shall be substituted with
more common pastels or hue categories", which would replace the word "should"
with "shall". That does not mean you could not have a tint in the white because
the base would be white. Anything that meets the.nine (9) value would probably
be a white base or very light primary base paint.
Ms. Jaskiewicz asked when Mr. Rumpf anticipated it would be in effect.
Mr. Rumpf stated it was scheduled to go to the CRA meeting in June, and then
to the Commission. It could be converted into Ordinance form very quickly. If it
goes to the Commission meeting in June, it could be adopted in July or August.
Mr. Rumpf said that was assuming there are not major changes. There would
also be a review with the City Attorneys office in that schedule. If there were
major changes, staff would recommend coming back to the Planning and
Development Board for their thoughts on it.
Ms. Jaskiewicz referred to the plans Mr. Rumpf submitted to the Board, and
noted they would be inconsistent with what they were discussing.
Mr. Rumpf stated it was difficult, and he would be agreeable to allow more time.
The wording was intended to allow more flexibility. There is a trend to use
darker colors on residential projects. He noted the Starbucks building at
Congress and Boynton Beach Boulevard was unique.
Mr. Rumpf noted if it was something they wanted to limit, then they could do it
with the same structure that they were using in Paragraph A for Commercial and
non-residential buildings.
18
Meeting Minutes
Planning and Development Board
Boynton Beach, Florida
May 24, 2005
Ms. Johnson referred to the same plans, which Ms. Jaskiewicz referenced, and
asked if that site plan was not already approved for Quantum Lakes.
Ms. Jaskiewicz did not think so.
Mr. Rumpf clarified there was a master site plan that had been approved, but
they were just asking for a modification.
Mr. Rumpf noted it was his intent to use the language, "trim and accent colors
may be the most saturated colors allowed", to allow that flexibility.
8. Other
Mr. Rumpf noted he wanted to answer an earlier question regarding the time
extensions for the carwash project. He said they were extended until July
because of new advertising requirements.
9. Comments by members
None
10. Adjournment
There being no further business the meeting was properly adjourned at 8:37
p.m.
Respectfully submitted,
DXlfJ~
Catherine Wharton
Recording Secretary
(May 27, 2005)
19
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
June 6, 2005
V. Public Audience
None
Chairperson Heavilin recognized Commissioner Ensler in the audience.
VI. Public Hearing
Old Business
A. Code Review
1.
Project:
Building Colors along Major Roadways
(CDRV 05-009) (Postponed from May 10,
2005 meeting)
City initiated
N/A
Proposal to amend the Land Development
Regulations, Chapters 4 and 9 to limit building
colors, and require the review/approval for changes
to building colors for buildings located along
Boynton Beach Boulevard, Federal Highway and
Congress Avenue
Agent:
Location:
Description:
Mr. Rumpf gave a PowerPoint presentation and reported the City Commission directed staff to
research existing regulations and colors, and to consider regulations to meet the intent of regulating
changes in building colors. Staff looked at this for specific corridors in the City, (1) U.S. 1, (2)
Congress Avenue and (3) Boynton Beach Boulevard. It was not the intent, however, of staff to limit
their research only to those areas and the Planning and Development Board recommended that
staff's research go beyond the selected corridors.
Mr. Rumpf noted that color regulations could be restrictive and contrary to the Heart of Boynton
Plan theme as being "Floribbean." "floribbean" colors could be bright hues of green, yellow and
orange. Staff will be asking this Board how they want to approach the colors for the Heart of
Boynton.
Staff is recommending the following:
. The aesthetic appearance of major roadway corridors in the City be maximized.
. Establish a regulatory system, which could be subjective.
. Regulations must be clear, concise and defensible.
Staff will attempt to identify (1) what is on the horizon, (2) to discuss and identify preferences and
colors found to be objectionable, (3) to discuss regulatory alternatives, (4) to get the feel for the
subjective nature of color regulations in general, and (5) find a way to place an objective limit on
colors using the Munsell Color Classification system. Staff also would like to obtain a of consensus
or agreement on color groups that would be included in the regulations. They are proposing to add
a less subjective element to the regulations, but to set some thresholds. Staff would like to
determine what groups of colors are preferred and a group of colors that could be used. Lastly, they
need to determine limits of the most intense colors.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
June 6, 2005
Mr. Rumpf said he would introduce some terminology that he would be using throughout his
presentation and the different words used to describe the different components of a fac;ade. These
definitions are contained in the agenda packet under "Definitions." Also, staff would attempt to show
how attractive buildings could be created despite limitation of building colors. Therefore, the
components of a building are (1) base, (2) secondary, (3) accent and (4) trim.
Slides of various properties were shown and reviewed. Consideration would have to be given to
whether their colors would be permitted today. Staff is looking at how the regulations need to be
worded or changed to accommodate certain situations being displayed and discussed. Darker colors
could be questionable and would be determined on how the standards are proposed.
Staff's intent for showing these buildings was to present examples of how color and eye-catching
and attractive elements can be introduced into a project without it appearing inappropriate for the
project.
Next discussed were general regulatory options. Mr. Rumpf reviewed the regulations of eight states
throughout the country. Members were directed to the table on the first page of staff's report. The
table presents a general example of various regulatory methodologies from the most restrictive to
the least restrictive. The most limiting would be a color palette. A color palette would only allow a
certain number of colors that developers could select from. The Planning and Development Board
and this Board were against this type of regulatory system.
Another possibility would be to have subjective codes that would be reviewed by a board. This
would mean the colors would be appealing and consistent with adjacent properties. Color standards
could be relative standards that would be consistent with established colors in the City. Lastly, the
City could have no color requirements whatsoever.
Mr. Rumpf pointed out that cities have not adopted very strict regulations, but have merely adopted
general descriptions and categories. Slides of colors used throughout different cities were presented
and reviewed. Ms. Horenburger referred to the handbook utilized by the City of Naples that they
provide developers showing what is acceptable.
Currently, the City reviews colors for new projects using the terminology and regulations that speak
about compatibility. Mr. Rumpf reviewed major and minor changes to projects.
Mr. Rumpf reviewed the language in Part III of the LDR, Chapter 9 (Community Design Plan) that is
used to review new projects and is set out in paragraphs Band D of page 2 of the staff report. The
language states the building should be designed compatible with an existing character in that area,
if it so exists. Staff would apply this thinking to the entire building that would include details,
appurtenances and colors. Currently, this is the limit to the City's regulations.
Ms. Horenburger was in favor of having a process in place for painting commercial buildings for both
new and old buildings. Mr. Rumpf pointed out that staff's proposed changes would address all
changes, both old and new, on the selected corridors, except for single-family residences.
Staff is proposing to include upper limits, or maximum colors in order to make the regulations
defensible and less subjective. In order to achieve this, Mr. Rumpf explained thE;! Munsell Color
Classification system that staff is proposing be adopted. Samples of colors were presented to the
Board in order to acquaint the Board with the Munsell system.
3
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
June 6, 2005
The Munsell system breaks down colors into three different attributes - (1) hue (color family that is
the primary and secondary color), (2) Value, and (3) Chroma, which Mr. Rumpf explained. Mr.
Rumpf explained how the process worked. It is not staff's intention to deal with this on a daily basis
because it can be very time consuming. The intent of the system is to provide a framework or limit
on colors.
Staff is proposing that the limits be at 8 for Value (the Planning and Development Board
recommended 9) and a 6 for Chroma. This will not severely limit the secondary colors and does not
put any limits on the accent or trim colors. What staff wants to achieve is to set maximum limits for
the base color.
Mr. Rumpf referred to Paragraph K under Part III, Section 11, Exterior Building Design in his report,
that in essence states the regulations are important. If the City has to defend the regulations, they
have to explain why they are important. He recited from Paragraph K that read, "The intent of this
section is not to require identical colors, but to require the careful selection of colors that will
contribute to the overall appearance of the City."
Mr. Rumpf advised that when exterior paint colors are to be changed on an existing building located
in the defined corridors, this section would apply. Actually only Section l1.K would apply to prevent
someone who is only painting their building in order to meet rooftop screening requirements of
accessory equipment or rooftop equipment, Le., only the paint section would apply.
Mr. Rumpf next reviewed the corridors he previously referred to, but noted the language is not
entirely new to the Code. Mr. Fenton inquired if the bright-colored village on the south side of
Gateway applies to the proposed regulations. Mr. Rumpf referred to Section B of the staff report that
deals with residential projects that would allow more flexibility for residential projects. Mr. Rumpf
responded that they would be allowed under the new regulations.
Mr. Rumpf explained that staff is bringing these proposals forward to have something to start with
as a base.
Mr. Fenton did not equate the colors presented as being "Floribbean" that he feels are vibrant colors
as opposed to the muted colors presented. Mr. Rumpf explained that the colors presented were
what were on the street currently, and a majority of them would meet the regulations, but would
not allow the intense colors of a Caribbean palette. Residential projects would be allowed a greater
gamut of colors that would include white, beige and earth tones. As it is written now, the Caribbean
gamut of colors would not be allowed.
Mr. Barretta asked what would be considered a "mixed-use" project and Mr. Rumpf stated it would
apply to commercial, not residential.
Base colors would be light or high value colors, limited to whites, grays, and beiges. Atypical colors
such as purple, pink, blue, green and teal will be substituted with more pastels or hue categories,
such as yellow or peach. Secondary colors will not cover more than 25% of the wall area and would
be consistent with the wall color standards or could be a moderately saturated wall color, or
moderately saturated complimentary color. Trim and accent colors would be the most saturated
colors allowed and it is encouraged to be complimentary earth tones and/or pastels.
If applicants would like to use a color that is out of the recommended ranges, they may be required
to provide proof using Munsell chips and research of their own and present them to staff to show
what the values of those colors would be and their Chroma number.
4
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
June 6, 2005
Mr. Barretta requested that instead of secondary colors not being greater than 25%, it be stated it
could be approximately 25%, because sometimes it might be necessary that a secondary colors
could take up 26% or 27%. Mr. Rumpf agreed with this recommendation.
Mr. Barretta was also concerned that all buildings have base, secondary and trim colors because
some beautiful buildings could be single or two color buildings. He was opposed to a building being
mandated to have base, secondary and trim colors. This could eliminate many examples of
architecture throughout the world. Mr. Rumpf felt this was a good point, but many remarkable
projects referred to by Mr. Barretta are done elegantly with a great deal of architectural
appurtenances, elements and details. In that event, Mr. Rumpf felt it would be necessary to state
the project would have those elements. Mr. Rumpf noted Mr. Barretta's suggestions.
Mr. Myott was not in favor of raising the value up to 9. He thought 8 would be more than sufficient
and Mr. Barretta agreed with this.
Chairperson Heavilin noted that Mr. Rumpf displayed some very attractive buildings in light blues
and teals and questioned if the new regulations would exclude those colors and Mr. Rumpf stated
this was possible.
Mr. Barretta inquired if pastels, such as yellow and peach, would be allowed. Mr. Rumpf responded
that yellow and peach would be encouraged over teal, blue, and purples. Ms. Horenburger
questioned why pink would not be allowed. Mr. Rumpf explained that the industry's description of
white bases could include yellow. Ms. Horenburger also pointed out that earth tones could
encompass a great many colors. Mr. Rumpf stated if the Board wanted to include pink, they could
recommend that it be included. Mr. Myott felt it would be helpful if they were provided with the color
charts.
Ms. Horenburger inquired if the City ever had a Community Appearance Board that reviewed this
type of issue. Mr. Rumpf responded that several years ago, the Community Design Plan was divided
into three different districts. Depending upon where a project was located within the City, the
project would fall within one of three design districts and it would have to be designed according to
that district. This included architectural style and palette of colors and elements. Many years ago
the City had a Community Appearance Board that reviewed projects and made recommendations.
There also was a CRAB Board in the downtown area.
Mr. Rumpf pointed out that if the board was comfortable with the color groups, but did not want to
be restrictive on the value and chroma, those items could be modified.
Mr. Myott questioned whether or not a disclaimer could be included that would say, "or upon
consideration and approval of the City Commission and CRA board...". If a developer really did not
want to follow the guidelines and was able to make a good enough ease, then the developer would
have to convince the board and Commission to vary from the guidelines.
Chairperson Heavilin confirmed that an appeals process is included in staff's recommendation. Mr.
Myott felt that an appeal could be considered from the beginning, but the developer would know
that a higher level of scrutiny would be involved. Ms. Horenburger felt that the developer should
have the right to appeal any decision to the City Commission. Mr. Rumpf advised that staff is
recommending that the Planning & Development Board or the Community Redevelopment Agency
would be the board to hear the appeals and make the decisions. Appeals to the boards are the final
step. The developers could not bring the appeals to the City Commission.
5
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
June 6, 2005
Mr. DeMarco pointed out that developers should have an opportunity to try out a color on a wall
since small paint chips can be deceiving. Many times the color is much darker on the wall than it
appears on the paint chip. Mr. Rumpf felt there would be no problem with the developer splashing
paint on the wall to ensure it is the correct color.
Mr. Rumpf explained that there will always be a case where someone will not comply with the
standards. It might be necessary to include language stating that the board or Commission could
approve a project regardless of whether or not it meets the standards. Chairperson Heavilin felt it
was necessary to have flexibility since there may be projects in the Heart of Boynton that would not
be held to these standards. Mr. Rumpf explained that the majority of the projects in the Heart of
Boynton will be residential buildings with bright colors. The "Floribbean" palette is different from the
standards indicated.
Mr. Fenton would like the word "and" changed to "or" in Number 5. The way it currently reads,
review before both boards would be necessary. He is hopeful that the Planning & Development
Board will be reviewing the ones outside the CRA and the CRA will be reviewing the projects within
the CRA area. Mr. Rumpf confirmed that this was the intent and agreed to change the word "and"
to "or".
Ms. Horenburger referred to Page 8454C, Item B, Residential, and questioned whether that referred
to only new projects or an existing structure. Mr. Rumpf responded that this referred to both
changes and new projects. The entire chapter on new construction applies to the project. That text
would fall under that chapter. On an existing project, Number 5 applies.
Ms. Horenburger questioned how the people owning existing projects would know that they must
meet certain regulations. Mr. Rumpf said that the City will have to get the word out. Mail-outs
could be used. Mr. Rumpf feels direct notification works best. Ms. Horenburger suggested providing
notices to establishments that sell paint.
Ms. Horenburger asked what process is in place for existing commercial establishments within the
corridor for a change in paint color. Chairperson Heavilin referred to 8454G. Mr. Rumpf referred to
the major or minor criteria section in Chapter 4, Site Plan Review. These paragraphs explain what
needs to be submitted.
Mr. Barretta pointed out that multi-family projects are part of the residential criteria and a Mixed-Use
project must follow the commercial criteria. He felt this needed more consideration. Mr. Rumpf
explained that a majority of the mixed use projects will be on major corridors and based on the
restrictions of Mixed-Use High and Mixed-Use Low. They do not have the same characteristics as
residential projects. Mr. Rumpf said compatibility text is included in the guidelines and staff has the
ability to review a project against the compatibility text.
Mr. Fenton questioned how this would proceed after the CRA review. Mr. Rumpf said the board
would not receive a final document. If the CRA feels comfortable with Mr. Rumpf's level of comfort
of the compatibility text, then this will move forward. If the board is not comfortable, then the
standards would require more language. Mr. Rumpf pointed out that changes that were requested
by the Planning and Development Board that dealt with the change in value and rate, the topic of
the Heart of Boynton and the Floribbean impact to the CRA, and the "should", and "will" would move
forward to the Commission, unless the board is not comfortable with something in the text and
would like a change made to the document.
6
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
June 6, 2005
Chairperson Heavilin said the Planning & Development Board recommended that the corridors be
expanded to Hypoluxo Road, Miner Road, Lawrence Road, Knuth Road, Quantum, etc.
Mr. Fenton wanted to know how many specific changes the CRA asked for and on the color palette,
the minimum value they wanted to go to was 8 and they got 9. He felt this was a conflict. Mr.
Barretta disagreed because he felt it could be one value in the CRA and another in the remainder of
the City. Mr. Myott reminded the members that Mr. Rumpf's recommendation was for 8. Mr. Rumpf
said staff will communicate all of the recommendations to the Commission.
For the board's edification, Mr. Rumpf enumerated the board's specific changes as follows:
1. The limit to the secondary color is proposed at 25%. It was recommended to add
the word "approximately".
2. Allow some wording to provide some flexibility so that it is not required to have all
the four different components to the colors - prime or base, secondary, accent,
trim. If the building has the physical attributes, architectural character and style,
then it would not be required to have all those different colors.
3. Keep the minimum value at 8 versus 9.
4. Change in wording where it describes the appeals boards from "and" to "or".
5. The board expressed great emphasis on getting the word out and educating the
public on this.
6. A little bit of concern was sensed on Mixed-Use projects and whether they are
Residential or the Commercial (non-residential) category, and compatibility.
Chairperson Heavilin announced the public hearing.
Commissioner Bob Ensler felt it was appropriate to make some comments on this issue since
there has been a great deal of press on this issue. This issue arose out of Commissioner Ensler's
concern over the color of several buildings on major arteries throughout the City. In addressing
these concerns with Messrs. Bressner and Rumpf, Commissioner Ensler learned that the way the
Code is currently written, color is a minor site plan modification that does not require City approval.
When the City Attorney got involved, he recommended that the City establish criteria in order to
protect the City legally.
Commissioner Ensler reviewed documents from 1992 wherein concern was expressed by
Commissioners relative to lack of harmony of color of certain buildings. In 1994, there was
Commission discussion about making projects more aesthetically pleasing. Even back in the 1970s
when Emily Jackson was Mayor, there were discussions about compatibility of structures within the
City.
Commissioner Ensler reiterated that his major concern was with the major arteries and the
commercial areas located along those major arteries. His concern was not with residential.
Michael Weiner, Weiner &: Aronson located on Sea crest Boulevard, felt it was good to hear
the board state their concern about limiting creativity in Boynton Beach. While there should be
community standards, it is important to remember that laws are being legislated. Laws should be a
7
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
June 6, 2005
last resort in curbing human behavior. The few times that people have erred in bad taste may not
be a reason to put the City into a position of regulating color. It is important not to eliminate quaint.
These things give character to a City. It would be a shame to eliminate that possibility.
Ms. Horenburger stated the Spinosa theory as quoted by William F. Buckley. "My right to punch you
in the nose stops right at the tip of your nose where your right not to be punched begins." We all
need to have a voice and be involved.
With no one else wishing to speak, Chairperson Heavilin closed the public hearing.
Mr. Barretta commented that staff had done a good job.
Chairperson Heavilin referred to the base color and the comment that it be expanded beyond white,
beige and gray, to light pastels. It is her opinion that this is too limiting. Mr. Myott felt that these
hues would be included in the whites, beiges and grays. There are tints to these base colors.
Ms. Horenburger asked that Gulfstream Boulevard be added to the list of major arteries.
Mr. Rumpf advised that staff wrestled with what 36th Avenue was and then determined that it is
Gulfstream Boulevard.
Mr. Hutchinson felt it was necessary to have something to hand out that would show the details of
the hues and the ranges. We need to give a more accurate portrayal of the color areas that have
been discussed.
Mr. DeMarco congratulated the Planning and Zoning Division for a job well done.
Mr. Barretta felt that Mr. Rumpf had summarized the board's request very well and he did not feel
the need to see the document again. Ms. Horenburger agreed. Messrs. Myott and DeMarco
requested a copy of the colors once they are available.
Motion
Mr. Myott moved to proceed to the City Commission with the board's comments noted. Ms.
Horenburger seconded the motion that carried unanimously.
New Business
A. Abandonment
1.
Project:
Agent:
Owner:
Location:
Description:
415 SE 5th Avenue (ABAN 05-002) - 8455
Jeanne Heavilin, Salefish Realty, Inc.
James E. Ploen
415 SE 5th Avenue
Request abandonment of a portion of Railroad Avenue,
approximately 30 feet by 77 feet, immediately north of 5th
Avenue South, west of Lot 11, Block B of Pence Subdivision
and East of the Florida East Coast Railroad right-of-way
Chairperson Heavilin recused herself from the discussion of this case and passed the gavel to Mr.
DeMarco.
8