Agenda 12-12-06
\VIa:
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~<!Y~T8~ eRA I
East Side-West Side-Seaside Renaissance
If any person decides to appeal any decision made by the Board with respect to any matter considered at this meeting, he or she
will need a record of the proceedings, and that, for such purpose, he or she may need to ensure that a verbatim record of the
proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based.
CRA Board Meeting
Tuesday, December 12th, 2006
City Commission Chambers
6:30 P.M.
I. Call to Order - Chairman Henderson Tillman
II. Pledge to the Flag.
III. Roll Call
IV. Agenda Approval
A. Additions, Deletions, Corrections to the Agenda.
B. Adoption of Agenda.
V. Public Comments: (Note: comments are limited to 3 minutes in duration.)
VI. Consent Agenda:
A. Approval of the Minutes - CRA Board Meeting - November 14, 2006.
B. Approval of the Financials - November 30, 2006.
C. 2007 Annual Dinner Dance - Sponsorship Opportunities.
D. Consideration of a Commercial Fa<;ade Grant to Law Realty.
E. Lease of CRA Property to Panther Real Estate Partners.
F. Dive Shop Lease - Lynn Simmons.
VII. Public Hearing:
Old Business:
None
/'
New Business:
A. North General Building - New Site Plan
1. PROJECT: North General Building (NWSP 07-001)
AGENT: Roy Dunworth, Dunworth Construction, Inc.
OWNER: Dr. Jean Renelien, United Medical Enterprises, Inc.
LOCATION: West side of Federal Highway; south of the C-16 canal
DESCRIPTION: Request for a new site plan approval to construct a two-
story, 3,990 square foot office building and related site
improvements on a 14.177 square foot parcel, in the C-4
(General Commercial) zoning district.
North General Building - Zonina Code Variance
2. PROJECT: North General Building (ZNCV 07-002)
AGENT: Roy Dunworth, Dunworth Construction, Inc.
OWNER: Dr. Jean Renelien, United Medical Enterprises, Inc.
LOCATION: West side of Federal Highway; south of the C-16 canal
DESCRIPTION: Request for relief from the City of Boynton Beach Land
Development Regulations, Chapter 2, Zoning, Section 6.0.3,
requiring a minimum lot depth of 100 feet, to allow a
variance of 18 feet and an approximate lot depth of 82 ~ feet
for a proposed commercial/office development within the C-4
general commercial zoning district.
B. Chow Hut - Site Plan Time Extension
1. PROJECT: Chow Hut (SPTE 06-014)
AGENT: Anthony Mauro
OWNER: 558 Gateway Boulevard, LLC
LOCATION: 558 Gateway Boulevard
DESCRIPTION: Request for a 12 month Site Plan Time Extension for site
plan approval granted on November 1, 2005, to extend site
plan approval from November 1, 2006 to November 1,
2007.
VIII. Old Business:
A. Approval of a Development Agreement with BB Faith-Based CDC for Parker
properties on Seacrest Boulevard.
B. Approval of an Administration Agreement with BB Faith-Based CDC for the
Homebuyers Assistance Program.
C. Approval of a DIFA with the Cornerstone Group for The Preserve project.
D. Consideration of Agreement with Cornerstone for Community Workforce Housing
Innovation Program Application. '
E. Approval of the Purchase Agreement for the Related Group of a 7,000 square
foot parcel, 70 parking spaces and gas pump assets.
F. MLK Corridor Development Agreement Policy direction.
X. New Business:
A. Consideration of an RFP for the Downtown Visioning Workshop and the creation of
a Downtown Master Plan Implementation Program.
XI. Comments by Staff
XII. Comments by Executive Director
XIII. Comments by CRA Board Attorney
XIV. Comments by CRA Board
XVI. Adjournment:
MINUTES OF THE COMMUNITY REDEVELOPMENT AGENCY MEETING
HELD IN CITY COMMISSION CHAMBERS, BOYNTON BEACH, FLORIDA
ON TUESDAY, NOVEMBER 14, 2006 AT 6:00 P.M.
Present:
Henderson lillman, Chair (arrv'd. 6:15 p.m.)
Stormet Norem, Vice Chair
Rev. Lance Chaney
Jeanne Heavilin
Marie Horenburger
Steve Myott
Guam Sims
Lisa Bright, CRA Executive Director
Ken Spillias, Board Attorney
In the absence of Chair Tillman, Vice Chair Norem called the meeting to order at 6:00 p.m.
Attorney Spillias announced the regular meeting would be preceded by a special, closed-door
attorney/client meeting called to discuss settlement negotiations or strategy related to the
litigation expenditures in the case of the Boynton Beach Community Redevelopment Agency vs.
Jesus House of Worshipl Inc., Case No. 502005CA004252XXXXMB, Circuit Court of the 15th
JudiCial Circuit in and for Palm Beach County, Florida. The meeting room was cleared of all but
the board, the Executive Director, the attorney, and a court reporter.
Motion
Vice Chair Norem moved to adjourn the special meeting at 6:38 p.m. Mr. Myott seconded the
motion that passed unanimously.
I. Ca II to Order
Chair Tillman called the regular meeting to order at 6:39 p.m.
II. Pledge of Allegiance
The members recited the Pledge of Allegiance to the Flag.
The members of the board asked why there was no invocation, as they had previously asked
for this. Ms. Bright explained she had been unable to find anyone willing to come to the
meeting to do this. Board member Reverend Chaney offered to give the invpcation in the
future. Ms. Bright would see that it was added back on the agenda.
III. Roll Call
The Recording Secretary called the roll and declared a quorum was present.
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
Novemnber14,2006
IV. Agenda Approval
Chair lillman asked that item VII-E, EAR Report Revision, be moved to the beginning of the
Public Hearing items. It would be heard first, followed by VII-A, Public Notice of Intent to
Dispose of Real Property Identified as Lots 452 and 453, Cherry Hills. This would be followed by
VII-C, Denmar Building. The Public Hearing Items were reordered as VII-E, A, C, and B.
Attorney Spillias asked to add an item on the approval of documents for the Ocean Breeze
Project under IX-D, Old Business. The supporting documentation was provided to the board.
Attorney Spillias would present this item to the board without recommendation but with an
explanation.
Motion
Ms. Heavilin moved to approve the agenda as amended. Reverend Chaney seconded the
motion that passed 7-0.
V. Public Comments
Chair liUman invited the public to speak on any items that were not on the agenda.
David Zimet, Faith-Based Community Development Corporation, Boynton Beach,
declared in reference to the MLK Corridor Agreement, that he hoped the board would pay
particular attention to negotiating the contract and make certain the developer had sufficient
wherewithal to bring the project to fruition. Otherwise, the area would end up in worse shape
that it had ever been.
Ms. Horenburger hoped the board would make a procedural change to allow one vote on the
reordering of all agenda items.
Herb Suss, citizen of Boynton Beach, asked for status on the Intown project. He stated he
was quoting the Sun-Sentinel and Chair TIllman who declared it was a disgrace for Intown to
come in at the 25th hour and ask the City for $2.5M of the taxpayer's money. He asked the
board to strongly consider dumping Intown and look elsewhere for developers. He agreed with
a board member who believed the Heart of Boynton project should proceed in smaller
segments. He felt the people of the Heart of Boynton were not getting a fair shake and
supported them in their desire for quality, affordable housing.
VI. Consent Agenda
A. Approval of the Minutes - CRA Board Meeting of October 25, 2006
(pulled by Attorney Spillias)
B. Approval of the Financials - October 31,2006
C. Approval of Budget Amendments
(pulled by Guam Sims)
D. Approval of 2007 Board Meeting Dates
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
E. Update on CRA Boundaries
(pulled by Marie Horenburger)
F. Resolution No. 06-02 Regarding Sponsorship Funding
(pulled by Guarn Sims)
G. Update on Five Town's College
(pulled by Guarn Sims)
H. Contract Approval - Geoweb for CRA Property Database
1. Fa~de Grant Reimbursement - C.K.'s Locksmith - $15,000
(pulled by Guarn Sims)
], Contract for Issuing RFP for Continuing Contract Services - Corey O'Gorman
(pulled by Jeanne Heavilin)
K. MLK Corridor Development Agreement Update
(pulled by Guam Sims)
L Contract Approval - Kimley-Hom and Associates - for Regulatory Monitoring of
the Mangrove Mitigation Area
M. Contract Approval - Native Technologies for Maintenance of the Mangrove
Mitigation Area
N. Contract Approval - Burkhardt Construction for Maintenance of the Promenade.
Motion
Ms. Heavilin moved to approve the consent agenda items that were not pulled for discussion.
Vice Chair Norem seconded the motion that passed 7-0.
Ms. Brooks began addressing Consent Agenda Item E, but then realized the Pulled Consent
Agenda items were scheduled for later on the agenda.
VII. Public Hearing (as reordered)
Old Business - None
New Business:
E. EAR Reoort Revision
1.
Project:
Agent:
Description:
EAR Report Revision
City of Boynton Beach
Request to approve the revised EAR, which addresses the
deficiencies identified by the Department of Community
Affairs in the original EAR report.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Hanna Matras, Planner, reported the City had submitted an Evaluation and Appraisal, Report
(EAR) to the Department of Community Affairs (DCA), as required by statute, in Dece'rnber of
2005, but it was returned for revisions and required additions. The City revised the report and
upon adoption by the City, the revised report will be transmitted to DCA for review. Some of the
identified deficiencies were:
· Lack of financial feasibility analysis for the Comprehensive Plan.determined
improvements necessary to maintain adopted Level of Service standards;
· Lack of review of changes to statutes, rules and Strategic Policy Plan and their
relevance upon the City's Plan; and
· Lack of analysis of successes and shortcomings of each Plan's elements.
DCA had also been critical of the process that led to the identification of sanitary sewer capacity
as the only "Major Issue" that would receive special attention through the evaluation process.
Ms. Matras reported the shortage of workforce housing had been recognized as the other
"Major Issue" facing the City. DCA had performed a courtesy review of the revisions and based
on verbal communications, no deficiencies had been noted by DCA. Staff recommended
approval of the revised report for transmission to the DCA.
Ms. Horenburger confirmed the required revisions had been made.
Motion
Ms. Horenburger moved to approve. Vice Chair Norem seconded the motion that passed 7-0.
Attorney SpiJlias mentioned he did not believe the floor had been opened for public comment on
the EAR item.
Chair lillman opened the floor for the public to speak on item VII-E, Ear Report Revision. With
no one coming forward, Chair lillman closed the floor for public comment.
A. Public Notice of Intent to Dispose of Real Prooerty Identified as lots 452 and
453. Cherry Hills.
Ms. Heavilin interjected she had been on the advisory board for Habitat for Humanity. She had
not had any business relationships with them recently and none regarding this project.
Vivian Brooks reported the CRA had recently purchased a lot in the Cherry Hills area of the
Heart of Boynton. At the board's direction, it was proposed the CRA donate this property to the
South Palm Beach Habitat for Humanity to help the CRA achieve its goals in developing
workforce housing. Pursuant to Florida Statutes, when property was disposed of by a CRA for
less than fair value, such disposition required the approval of the board at a duly noticed public
hearing. If the board approved this transfer of property, staff would commence to publish
notice of the intended transfer and if, after 30 days of publication of notice, no other developers
had submitted proposals, the transfer would become effective and an agreement would be
executed with the South Palm Beach Habitat for Humanity.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Chair Tillman inquired whether there were specific guidelines on what was desired for the
footprint on this property. Ms. Brooks responded staff would be bringing a development
agreement to the board for its approval and in it would be specifics of size, design, affor'dability,
and so fo~. They would also be bringing the board a development agreement on the Parker
properties in December and that would also be very specific and include performance measures,
timelines, and sim.i1ar criteria.
Mr. Sims noted the area map referred to Lot 452 and asked if that had been merged with Lot
453. Ms. Brooks responded the building lots in the Heart of Boynton, and especially the old
areas, had two parcels of land under one property control number.
Reverend Chaney had driven through the area and was concerned about, 1) the quality of the
structure that Habitat for Humanity would build in that location, and 2) how the house would fit
in with the overall Heart of Boynton Plan. Originally, phase 1 would be the MLK Corridor and
phase 2 would be in the subject area.
Ms. Brooks responded the pUb"c housing units in the Cherry Hills area would be coming down
and they would be building single-family homes, so other single-family homes would fit in well.
She assured Reverend Chaney that discussions had taken place with Habitat for Humanity who
would be building an upgraded house compared to the traditional Habitat for Humanity house.
The eRA was able to dictate this quality since it owned the land and that was a large part of the
developer's cost. Habitat for Humanity is able to reach lower income residents since they
worked with donated materials and labor. The CRA requirements were for standing-seam metal
roofs, hurricane windows, Floribbean style, three bedrooms, and two baths, with one-car
garages. These criteria would be in the agreement and the agreement would be brought before
the board.
Motion
Ms. Horenburger moved to approve. Mr. Myott seconded the motion.
Chair Tillman opened the floor to public comment.
Mike Campbell, Executive Director for Habitat for Humanity of South Palm Beach,
was in agreement with the CRA's plans and criteria for the house. They had just finished a five-
bedroom home on Rrst Avenue that matched the design mentioned by Ms. Brooks. They were
willing to change their designs to accommodate the needs in Boynton Beach, as long as they
could continue to give homes to those in the 40-80% AMI category. Chair lillman appredated
hearing that.
With no one else coming forward, Chair lillman closed the floor to the public.
Vice Chair Norem recommended going along with staff's recommendation.
The motion passed 7-0.
Attorney Spillias asked if any members wished to disclose any ex parte communications with
any of the development entities on the agenda. No ex parte communications were reported.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Attorney Spillias explained the quasi-judicial public hearing procedures and swore in those who
might speak at the meeting.
C. Denmar Buildino - New Site Plan
1.
Project:
Agent:
Owner:
Location:
Description:
Denmar Building (NWSP 06-024)
George Brewer, Brewer Architecture, Inc.
Mary Ann Monnin
615 N.E. 3rd Street
Request for a new site plan approval to construct a
3,433 square foot commercial retail and contractor
office/warehouse building and related site
Improvements on 0.34 acre in the C-4, General
Commercial, zoning district.
Kathleen Zeitler, Planner, displayed the site plan. The project was a single story building divided
into four bays to include a retail showroom and contractor offices with indoor storage. The bay
doors would not be facing the street. A thorough staff review found the project complied with
all Land Development regulations. Staff recommended approval with 24 conditions of approval.
George Brewer, Brewer Architecture, Inc., declared they were in agreement with all
conditions of approval.
Chair TIllman opened the floor to the public to speak on this item, closing it when no one came
forward.
Motion
Ms. Horenburger moved approval of Item C with all conditions attached. Vice Chair Norem
seconded the motion that passed 7-0.
B. Rezoning
1.
Project:
Agent:
OWner:
location:
Description:
New Site Plan
2.
Project:
Agent:
Owner:
Ellipse (Sunshine Square)(REZN 06-008)
Bonnie Miskel, Esq. And Kim Glas-<:astro, AICP, of
Ruden McClosky, Smith, Schuster & Russell, P.A.
Sunshine Square CRP LLC
Southwest corner of Federal Highway and
Woolbright Road
Request to rezone from Community Commercial (C-
3) to Mixed Use Low Intensity 3 (MU-L3) for a
proposed mixed-use project on 14.43 acres.
Ellipse (Sunshine Square) (NWSP 06-021)
Bonnie Miskel, Esq. and Kim Glas-Castro, AICP, of
Ruden McClosky, Smith, Schuster & Russell, P.A.
Sunshine Square CRP LLC
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
Location:
November 14, 2006
Southwest corner of Federal Highway and
Woolbright Road I
Request fora new site plan approval to construct a
mixed-use (residential/office/retail) complex on a
14.43-acre parcel in the Mixed Use-Low Intensity 3
(MU-L3) zoning district.
Description:
Height Exception
3.
Project:
Agent:
Owner:
Location:
Ellipse (Sunshine Square) (HTEX 07-001)
Bonnie Miskel, Esq. And Kim Glas-Castro, AICP, of
Ruden McClosky, Smith, Schuster &,Russell, P.A.
Sunshine Square CRP LlC
Southwest corner of Federal Highway and
Woolbright Road
Request for a height exception of 19 feet to allow
for a total height of 94 feet to accommodate the
parapet, rooftop mechanical equipment, elevator
shafts, stairwells, and roof profiles, to exceed the
maximum building height of 75 feet on the MU-L3
zoning district
Description:
Ed Breese, Principal Planner, requested and received the board's approval to present all three
Ellipse items concurrently.
Rezoning
Earlier in 2006 this item came before the CRA as a large-scale Comprehensive Plan amendment,
which was for land use, rezoning and a master plan. Along with that the applicant was
requesting to rezone to Mixed Use Low. As a result of various meetings with the CRA, the
Planning & Development Board and the Oty Commission, the mixed use districts were
undergoing a change ancf there would now be three mixed use districts: MU-ll, MU-12, and
MU-L3. The applicant requested to modify their previous request from Mixed Use low to MU-L3
because there would no longer be a Mixed Use Low by the time their application went before
the Oty Commission.
MU-L3 is the most comparable to the previous Mixed Use Low zoning district, which allowed 75
feet in height and 40 du/acre. One of the other things changed in MU-l3 from Mixed Use Low
was that supermarkets in MU-L3 were allowed at 80K square feet, as compared to the Mixed
Use Low restriction of 30K square feet. This would accommodate Publix at Sunshine Square.
The members received a copy of the original staff report dated June 1, 2006. Staff concluded
that the rezoning before the board was consistent with the previously approved staff analysis,
report and Commission action, and therefore, recommended approval of the rezoning.
Site Plan
Mr. Breese displayed the site plan and reviewed its highlights. The project is located at the
southwest corner of the intersection of Federal Highway and Woolbright Road.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
The project would be done in phases. The site was divided into four quadrants.
The first phase would be on the northeast quadrant, known as I-A, wrapped around the
existing gas station, and would be a seven-story building with retail on the first floor and 126
dwelling units of residential above it.
The next phase (2) would be directly to the south of 1-A, and is known as I-B. It is in the
southeast quadrant. Another seven-story building was proposed with retail on the first tloor and
102 dwelling units above it.
The stores to the south of this quadrant that fronted on S. W. 18th Avenue were not included in
the proposed project.
The next phase (3) would be in the northwest quadrant of the site, known as 2-A, abutting
Woolbright Road and the Rorida East Coast Railroad right-of-way, and was to be the home of
the new Publix. There would be retail buildings around Publix so it would not be visible from
Woolbright Road or the internal portion of the project. There would be one deck of parking
above Publix and above the retail spaces would be an additional 90 dwelling units.
Once the existing Publix was demolished, the last phase (4) would be on the southwest
quadrant of the site, known as 2-8. The proposal called for a mixed-use building of seven
stories with retaillivejwork units topped with an additional 90 dwelling units of residential. This
would wrap the southeast and south side of the project. There would be 18 town homes,
live/work units in this section and above them, residential, for a total of 258 residential units
above them, wrapping a parking garage.
The project proposed two main access points: 1) off Woolbright Road at a signalized
intersection corresponding with the Las Ventanas (old Gulfstream Lumber property) to the
north; and 2) an east west route coming off Federal Highway. The north/south route would
connect to S.W. 18th Avenue and proceed out to Federal Highway.
An elliptical median was proposed for the center of the project and this would have lush
landscaping and a pair of fountains on either side of the east and west access roads. The
proposal called for wide sidewalks and arcades for retail shops and restaurants that would allow
some outdoor cafe operations.
The applicant submitted a shared parking analysis. Parking to Code would require 1,854
parking spaces, but a shared parking analysis prepared by a professional engineer showed that
1,656 parking spaces would be available. The shared parking analysis was reviewed by staff
and found to be acceptable.
Mr. Breese commented at time of permitting, the applicant must show they had met another
requirement that was new in the mixed-use district rewrite - "Sky Exposure Plane." This
required buildings to "step back" as they got higher on a 6-1 ratio to be compatible with
buildings adjacent to it. This came along late In the review process and the applicant had
already developed plans without knowing this would be a regulation.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Height Exceotion
Mr. Breese reported all buildings would be seven stories, 75 feet in height. There were portions
of the building that were above that and they were the typical mechanical equipment
enclosures, elevator shafts, and stair towers, the highest of which was 94 feet. This would be
19 feet over the 75 ft. height maximum. The areas that reached 94 feet made up 9% of the
roof area and those areas at lower levels at 85 feet made up 17% of the roof area. Th!=! Oty
had approved a number of height exceptions for mechanical equipment in the past.
Staff recommended approval for all three issues: rezoning, site plan, and height exception.
Hugo Pacanins, Project Development Manager with RAM Development, gave an
overview of the presentation they had already made earlier in the year at the time of their first
application. The site was said to be an L-shaped one with Publix to the south. The site was
presently 86% occupied. They had met with the existing retail tenants several times over the
past months to guide them through the redevelopment process and get their input on the
relocation process. They had gotten a lot of input from them and had given them copies of the
site plan showing where they would be relocated. to during the process and where they would
be ultimately. They had received a great response from the current retail tenants.
When they demolish the east side of the existing shopping center, they would relocate the
retailers to the open spaces available on the west side of the property. By doing so, they would
free up the east side of the property to allow for the redevelopment. Once the first two phases
were built, all the retailers from the west side would occupy the new spaces created on the east
side, allowing them to demolish the west side of the property and make space for Publix . They
would then tear down Publix and they would be relocated to the northwest part of the site,
leaving room to develop the southwestern part of the site.
They were trying to create a pedestrian friendly environment by adding ground floor retail with
residential above. They were allowing 17 foot of height for the retail on the bOttom and 9.8-foot
ceilings on the upper floors for the residential. '
Publix had agreed to the site plan. They now had a 40K sq. foot store and wanted to increase
its size to 56K sq. ft. In the new store.
Mr. Pacanins showed elevations of the project. He displayed what the development would look
like from Federal Highway fadng west towards the railroad and also from Woolbright Road
facing south.
They hoped to start working on the drawings and then the permits. Construction would begin in
the fourth quarter of 2007. They were thinking of doing the first two phases simultaneously and
expected to be finished by December of 2008. The other phases would follow immediately.
Board Questions
Ms. Horenburger confirmed her understanding of the numerical designations on the different
phases. She inquired about the Sky Exposure Plane and the building step backs and asked Mr.
Breese what page contained this condition. Mr. Breese responded, the last page of the
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
conditions of approval, condition #100. Ms. Horenburger also asked if the Boynton Diner was
moving and when.
Mr. Pacanins responded they had already spoken to the owners of the Boynton Diner and they
had selected the site they would occupy.
Mr. Myott asked if the developer had given any thought to the FEC railroad being used in the
future for different modes of transportation. He believed the developer should have lOOked
ahead and taken rapid transit and other mass transit forms of the future into account in the
plans.
Mr. Myott expressed disappointment In the presentation, saying that for a multi million-dollar
project in such a prominent location, there were no "f1y-throughs," and no 3-D or cut-away
views. It was impossible to tell from the elevations what it would be like on the interior of the
project. It appeared the developer took a big box and cut roads through it and put in a curve
to add something. The elevations were attractive, but he had no clue from them as to the real
massing and volume of the ellipse area, which was being represented as the quality space of
the project. He asked what would happen over the next several years while development was
taking place. Would there be huge vacant lots? What would it look like when they had not built
the residential towers on the backside? Mr. Myott believed the presentation was too vague.
This was a huge project and the board was being given very little information. It reminded him
of the Marina project when it first came through in its earliest stages. He also thought not
acquiring the gas station or incorporating it into the project was unacceptable. He felt there
should have at least been a back up plan for when and if they did acquire the building.
Bonnie Miskel, Ruden McClosky, agent for the developer, responded there was a piece
of property on the southwest comer that was not included in the plan and was left available in
the event a mass transit opportunity became a reality. They intentionally left out this area for
green space or parking and actually envisioned the CRA might approach them and ask this land
be donated for the benefit of a transit program; however, the City was not there yet and they
did not want to wait one to ten years to incorporate it, so left it vacant.
Ms. Miskel apologized for any perceived lacks in the presentation. They had rushed to get the
application in, acknowledging it was not the way Mr. Weiner would normally present
architectural details. However, when filing a Comprehensive Plan amendment, the CIty's Code
required the developer to actually have a site plan running concurrent with it. They fully
realized this was a big project, but were told they had to get the site plan in right away or miss
the cycle. The submittal was complete and not deficient in any way, according to the Code.
They were sorry they could not do a 3-D model. Finally, they had made a concerted effort to
try to acquire the adjacent properties and when they failed to do that, made a plan that would
easily incorporate them into the project in the future if they should change their minds.
Mr. Myott had some experience of how long it took to obtain a 3-D model, so he could not
accept that part of the explanation. He knew it would have been possible to acquire one in the
time that had elapsed from the original presentation to the current one. They had recently
approved a SK square foot office building that had one. It was like the presentation was a
"brushover" to get a huge density and massive site plan approval. The eRA would be doing a
transportation study and were going to start requiring each project to address future mass
transit requirements. He respected the design of the project and felt their architect was
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
talented, but he did not have enough information to approve this project. He felt the height
exceptions should not be for stair towers, but for some architectural features tha~ would
enhance the skyline. He hoped they would do better in the future.
Ms. Miskel responded the City might want to consider its requirement that Comprehensive Plan
amendment requests had to be accompanied by site plans. Mr. Myott thought the developer
might want to reconsider its schedule. The CRA had not seen any projects like this one that had
gotten on the ground in a year's time.
Chair "Tillman opened the floor for public comment.
Herb Suss, resident of Boynton Beach, supported the project and thought it was a good idea.
He had a problem, though, with the 95 feet. Although it was not the eRA's issue, when this
project was combined with the huge project on Congress called Renaissance Commons, he
began to feel hemmed in. He thought there would be noise pollution, smoke, traffic problems,
population, and water problems. The infrastructure had to be there first. As a citizen, he felt
overwhelmed. More recreation area was needed also. Mr. Suss asked, "What about affordable
housing?"
Jim Patterson, representing Patterson Plaza on the southeast corner of the proposed
project, stated he had been on that comer since 1949. He had seen a lot of development and
growth. He reminded everyone that some years previously, the aty of Boynton Beach had a
referendum and the voters of Boynton Beach voted to have a maximum height on buildings of
45 feet. He did not know how the City had gotten away with having as many tall buildings as it
now had. They always heard the development was needed for the tax base. He asked
everyone to consider whether their personal taxes had ever gone down as a result of all the
development additions to the tax rolls. He did not believe they had. Mr. Patterson thought S.W.
18th Avenue was a narrow road and would not be getting any larger. It was possible for the
traffic to back up all the way to Publix if there were a red light. Now they were talking about
adding 500+ more units in addition to the businesses. He suggested the board table the
project and come down to the site and take a look at the situation. Every one of the stores in
the project would be getting Fed-X and UPS trucks In all day long. Publbe would be getting
deliveries day and night and he did not think the residents would be too interested in buying
around a grocery store for that reason.
Chair Tillman closed the floor for public comment when no one else came forward.
Board Comments
Mr. Sims asked Ms. Miskel what could be done to alleviate crowding on S.W. 18th Avenue.
Ms. Miskel responded there would probably not be much of a problem since they were
relocating Publix to the other end of the site and Publix customers would not be using S.W. 18th
Avenue as they now were doing. The major ingress and egress points were from Woolbright
Road and Federal Highway, and that should also help to alleviate any potential crowding on
S.W. 18th Avenue. Also, residential uses were much less intense as traffic generators.
Mr. Sims inquired whether there was still no movement in the case of the acquisition of the gas
station, now that the project could be seen to be moving forward. Ms. Mlskel responded there
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
had been no signs of movement from the gas station owner. The owner had not participated in
any of the meetings to which he had been invited to date. There appeared to be a tota' lack of
interest.
Ms. Miskel responded to the comment heard earlier about deferring or delaying the project. She
noted according to Chapter 163, there were very strict procedures that had to be adhered to in
order to process and adopt a land use amendment. The DCA had reviewed this amendment
and elected not to comment on it, which meant they did not object to it. They directed City
staff to go forward and adopt it. They had a time period during which it had to be adopted. The
City's Code required the zoning to go along with the adoption of the land use plan amendment.
Should the board defer the project this evening, this project would fall out of the cycle and it
would be delayed. In fact, according to a conversation she had with Ed Breese, the developer
would have to start over again because they could not simply adopt in the next cycle. Mr.
Breese agreed. They were here as a result of that Comp Plan amendment and to start over
again would be unnecessarily delaying a project that would add a tremendous amount of value
to that area and a great deal to the community.
Ms. Horenburger frequented this shopping center and over the years, had never seen traffic
back up in the Publix area, even during the holidays. She respected Mr. Myott's opinion in
relation to the design issues and shared a concern about not having a case where Phase 1
would take place and then no other phases. She especially appreciated his. mention of the
transit dedication and suggested the board might want to consider asking the developer to do
this. She asked if it was the little wedge-shaped piece of land. Ms. Miskel confinned she was
correct and her client would have no problem with dedicating or conveying that piece of
property to the Oty. Ms. Horenburger thought they might see something matel1al in the way of
mass transit in the next ten to twelve years. The State was starting to move on the FEe
Railroad Corridor as they spoke.
Motion
Ms. Horenburger moved to support Item VII-B1 for rezoning to clean up the zoning on this in
light of the City's creation of a MU-L3 zoning district, and that it be rezoned from Community
Commercial (-3 to Mixed Use Low Intensity MU-l3, because that was what the City's mixed use
projects fit into now. Ms. Heavilin seconded the motion that passed 6-1, Mr. Myott dissenting.
Ms. Heavilin did not believe the applicant had been asked whether they agreed to the 100
conditions of approval.
Bonnie Miskel responded the applicant was in agreement with all the conditions of approval.
Ms. Heavilin commented they had asked staff to try to limit the number of conditions of
approval and this one had quite a large number of conditions. They hoped by the time it got to
the board, many of the items would have been cleared up already. Mr. Breese understood that,
saying the project originally had over 200 conditions and the applicant had done a good job of
paring that down. Mr. Breese indicated close to 40 of the conditions were standard conditions
that would apply to many cases.
Ms. Heavilin thanked the applicant for phasing the project. It was the first major project she
had seen where the existing businesses were being relocated and she hoped to see more of
that in the future.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Vice Chair Norem mentioned the wedge-shaped parcel suitable for public transP9rtation;
however, there would be no access on the western side of the property near Publix..Jt went
right to the lot line.
Ms. Miskel stated it was directly connected to S.E. 18th Avenue and would be connected through
their internal road systems. It would not run along the tracks, but it would have access.
Vice Chair Norem expressed concern about the commuters streaming through the project when
the residents were trying to get in and out to go to work.
Ms. Miskel responded the access point for non-residents could be S.E. 18th Avenue, a public
right-of-way. They would expect that would be the route that would be promoted.
Vice Chair Norem responded if people were coming from the east, they could take Federal
Highway down to S.E. 18th. He was concerned about people coming from the west across the
tracks. It would only make sense, even if it were only a one-way road, to have a road along
the western property line, to get down there.
Mr. Pacanins declared if that side had been chosen as a location for a train station in the future,
it would be ideal to control the west side of the tracks and try to add access to the train station
from that side as well. So, people coming in from the west that want to gain access to that
train station would not have to go through the tracks and into the development and access
through S.E. 18th Avenue. They would probably have access from the west side of the tracks
like they do on most of the Tri-Rail stations, which usually have access on both sides of the
tracks. People could actually park on the west side and get into the train from the west side.
Mr. Norem asked what they would do with the water plant. Mr. Pacanins agreed that ideally,
this was not the best location for a train station and that was something the City would have to
consider in the future. If it were to be put there, access to the west would be limited, but a lot
of access would be gained from the people coming in from the east.
Ms. Horenburger said the new stations had been built with access on both sides. They did not
have access on each side to parking all the time, but the access had to be there on both sides.
for the handicapped, they had an elevated walkway. Mr. Pacanins mentioned Tn-Rail did
double tracking so people could get on both southbound and northbound trains. Ms.
Horenburger added ,this was true if they had the elevated walkway.
Reverend Chaney confirmed the timeline for the various phases. There was a question about
vacant land. Ms. Miskel stated the idea with the phasing was to disturb the tenants as little as
possible so they could operate until they could move into their phase. for example, while they
were demolishing one section, they would be relocating some of the tenants in that section to
open space. Their section would then be demolished. The reason they believed that Phase lA
and 18 were likely to go at the same time was that they would need parking for lA, so the
likelihood was that 16 would have been demolished and used as a surface lot.
Ms. Horenburger stated that based on studies and analysis done in the FEe Corridor, the
likelihood of this piece of property being chosen as a train station was slim. A more likely
location would be closer to Boynton Beach Boulevard and the downtown. They might still want
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
to consider this wedge-shaped piece of property on the Ellipse site for other types of transit,
including a trolley depot. Ms. Miskel stated they did incorporate two trolley stops ,in their
project. Ms. Horenburger felt having a trolley depot would enhance the trolley system and give
it a sense of presence. Ms. Horenburger asked Attorney SpiJlias what the board could do about
this piece of property. Attorney Spillias felt dedication would be premature. It could be set out
for potential civic use and when the time came for it to be used, a decision could be made.
Ms. Horenburger wanted to add a condition to the 100 conditions that this piece of property
would be held for civic use of some type. Ms. Heavilin stated they first had to determine if they
even needed a trolley or a trolley hub.
Mr. Myott remarked other developers had said the market was not good and they could not
build their projects. He asked if they had a commitment that they were not going to hear that
from the developer on Phase 1A and that despite the market, they were going ahead with the
project. Ms. Miskel commented no one could say they could not respond to future market
conditions. The developer had spent a huge amount of money and invested a great deal to
come forward with this plan. The one thing different about this product that was different from
the other products they had seen was that this was intended as a rental; it was not intended as
a condo, although they could be converted and if the market changed, it may be converted.
Right now, the plan was based on the developer's best judgment of what they could do today.
She could not promise that would not change later on. If they change their position, they would
have to come back before the board for a new approval. Mr. Myott confirmed that Phase 1 was
an immediate action to be under construction in a year. Ms. Miskel stated it was the developer's
intention right now to start working on the drawings and work on what they presented this
evening.
Ms. Bright commented CRA staff had been working with the developer for the past year. They
originally had eminent domain as a tool and were working towards that for the gas station.
They were amenable to the trolley stops in the project. She recently asked them about
affordable housing and they stated this project did not need any type of funding since it was a
large project. She would expect that relationship to continue to try to get the best product for
the City.
Motion
Ms. Horenburger moved to approve the new site plan with 100 conditions of approval with the
addition of a 101 st: condition to provide for the possibility of dvlc use of some sort on the
wedge-shaped piece on the site.
There was no second on this motion.
Motion
Ms. Heavilin moved to approve the. request for new site plan approval to construct a mixed use
(residential/office/retail) complex on a 14.43-acre parcel in the Mixed Use-Low Intensity 3 (MU-
L3) zoning district, subject to all conditions of approval and comments as provided. Mr. Sims
seconded the motion that passed 5-2, Vice Chair Norem and Mr. Myott dissenting.
Vice Chair Norem commented he agreed with Mr. Myott in his observation as far as the
developer taking it to the highest pOSSible height and then extending it as much as they were
doing. He did not believe that much of a height was allowed, so he would be voting against it.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Motion
Ms. Horenburger moved approval of the height exception for a height of 19 feet to allqw for a
total height of 94 feet to accommodate the parapet, rooftop mechanical equipment, elevator
shafts, stairwells, and roof profiles, to exceed the maximum building height of 75 feet on the
MU-L3 zoning district. Ms. Heavilin seconded the motion that passed 5-2, Vice Chair Norem and
Mr. Myott dissenting.
C. Site Plan lime Extension
Description:
Arches (SPTE 06.(11)
Ruden McClosky, Smith, Schuster & Russell, P .A.
Boynton Ventures I, lLC
Southwest comer of Ocean Avenue and Federal
Highway
Request for a 12-month site plan time extension for
site plan approval granted on September 6, 2005,
to extend site plan approval from September 6,
2006 to September 6, 2007.
1.
Project:
Agent:
Owner:
location:
Gabriel Webb, Planner, reported Boynton Ventures LLC was requesting a one year site plan time
extension for The Arches site plan and height exception development orders, which were
approved by the City Commission on September 6, 2005. The project had been delayed by a
series of apparently inevitable and unpredictable obstacles, resulting in previous site plan time
extension applications and a major site plan modification. However, the developer had
completed a full set of plans and specifications for the project at a cost of over $800K, which
had been delivered to the City for a courtesy review. They performed demolition and site
clearing, completed a replat of the project, which was also submitted to the City for review and
paid multiple fees associated with the development. Although it had been awarded two previous
site plan time extensions, the major site plan modification in effect begins an entirely new
development clock and marks a new departure point for which is, essentially, a new approval
procedure. In this respect, this is essentially the first site plan time extension for this project.
Traffic concurrency was not a problem. They should have adequate time to complete the
project in the given time. No new land development regulations were now in place against
which the project should be reviewed or modified. Regarding the Art in Public Places Ordinance,
site plan approval occurred prior to the adoption of Ordinance 05-060. Staff recommended
approval of the major site plan modification and height exception.
Bonnie Mlskel appeared on behalf of the applicant. Shortly after the project received
approval, they began preparing construction drawings for the Building Department. During that
submittal, they had to obtain certain approvals through FPL and Bell South. At the time they
approached Bell South, Bell South advised them of utilities that had not been previously
identified either by their surveyor or the City. They learned of a major, massive trunk line that
would either need to be relocated or they would have to work out a way to get around it. The
costs of the relocation were incredible, beyond feasibly economically, so they commenced to
retrofit their site in order to work around it. Hence, the permit drawings were held up. All that
had been done and they had submitted for courtesy review, from which they should get
comments shortly. Also during the permitting process a new comment arose through the
Engineering Department requiring them to replat, notwithstanding that the Code did not require
it nor was that a condition to the site plan approval. They were forced to go back and prepare
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
a plat mylar, which they had done and submitted to the City. They had gotten comments back
and it was now in their court to make revisions. This had all cost them time they could I]ot have
anticipated nor could they have afforded.
Chair lillman opened the floor to the public for comments, closing it when no one wished to
speak.
Ms. Heavilin asked what the timeframe was for building now. Ms. Miskel stated the plal1s had
been submitted and when they were permitted, it was the developer's intention to commence.
There was no intention to delay, even though the market was weak. Ms. Heavilin asked when
they would be opening the sales office. Ms. Mlskel responded the trailer had been located on
the site, but she did not know the answer to that question. Ms. Bright commented 500 Ocean
Avenue Plaza was open and she would try to arrange a tour for the board.
Motion
Vice Chair Norem moved to approve the request for a 12-month site plan time extension for site
plan approval granted on September 6, 2005, to extend site plan approval from September 6,
2006 to September 6, 2007. Mr. Myott seconded the motion that passed 7-0.
VIII. Pulled Consent Agenda Items
A. . Aoproval of the Minutes - CRA Board Meetino - October 25,2006
Attorney Spillias suggested a correction to page 26 in the second paragraph, third line, where
the attorney's name should be "Worsham." On page 30, third paragraph, first line, the same
correction should be made. On page 34, the name of the church should be Jesus House of
Worship.
Motion
Vice Chair Norem moved to accept the minutes with the listed changes. Ms. Horenburger
seconded the motion that passed 7-0.
C. Aooroval of Budoet Amendments
Mr. Sims inquired whether the salary adjustments were retroactive. Ms. Susan Harris, Financial
Assistant and H.R. Administrator, stated it would be retroactive back to October 1, which was
the beginning of the budget year.
Motion
Ms. Horenburger moved to approve Consent Agenda Item C. Vice Chair Norem seconded the
motion that passed 7-0.
E. Uodate on eRA Boundaries
Ms. Brooks stated the CRA boundaries had not been amended as projects in the south end of
the CRA area had been annexed into the City. This was informational. No action was required.
Staff would send its findings to the City with a list of identified projects. The Oty would have to
do a CRA boundary amendment, which only they could do. It would then go to the Property
Appraiser so those properties would then put revenue back into the CRA.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Ms. Heavilin asked if in the future the CRA boundaries could automatically be upd~ted on
annexation requests. Ms. Brooks replied they discussed this with City staff and the CRA
boundary adjustment would become part of the application package for annexation requests.
Ms. Horenburger thought the City could change the boundary ahead of time. Ms. Brooks was
not sure why the City did not do that. It was possibly because if it was not in the City, it could
not be in the CRA. Ms. Horenburger asked whether the Oty could do an overlay. Ms. ~rooks
spoke to the Property Appraiser, who stated if the property was not in the aty, it could not be
in the CRA. Ms. Horenburger thought an overlay would make it automatic on anything annexed
into the City.
Attorney Spillias commented the requested action was for the board to recommend the City
change the boundaries.
Motion
Vice Chair Norem moved to recommend the CRA boundaries be changed per the discussion. Mr.
Myott seconded the motion that passed 7-0.
F. Resolution 06-02 - Regarding 5Donsorship Funding
Mr. Sims mentioned on page two of this document, his name had been misspelled. It was
spelled Garn Simms and it should be Guarn Sims. Reverend Chaney commented there was one
"N" in his name and not two.
Ms. Horenburger took Issue with the term "identifiable population" in Section 2. Was it meant to
cover more than just festivals and street fairs? Mr. Reardon stated it would cover any special
program they did. Ms. Bright added if they wanted to sponsor an event in the Heart of Boynton
area that would affect the Children's Youth board, for example, it would give the board more
latitude. Ms. Horenburger did not want to see it in a way that every event always had to have a
specific impact on a specifically identified population. Mr. Reardon would work on it to modify it.
Mr. Myott noted the next statement said the board could alter the parameters at its discretion.
Ms. Horenburger stated that would mean it would have to come back to the board before doing
an event.
Motion
Vice Chair Norem moved to approve Resolution 06-02 with the grammatical corrections that
were made. Mr. Myott seconded the motion that passed 7-0.
G. Update on Five Towns College
Reverend Chaney asked if there was a timeline for progress on this. Ms. Bright stated they were
having another negotiation on the day following this meeting. It had been held up due to a lack
of local legal counsel to work with the CRA's counsel. That person would, however, now be
coming in for the meeting. Mr. Myott asked how their finances were holding up. Ms. Bright
indicated they wanted to get the agreement in place and were trying to get the $800K bond.
The current architect is saying it is about an $8M renovation and that was what they stated the
night they won the award. She spoke to the City Manager who was to start working with Ms.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Bright on strategies to relocate Code and the parking agreement. She hoped to bring it before
the board in December. This was an information only item.
I. Fa<;ade Grant Reimbursement - C.K.'s locksmith ~ $15.000
Mr. Sims asked if there were any other projects where applications had been filed before the
program was amended. Ms. Brooks mentioned for clarification, the fac;ade program they
amended was the residential one. This was the commercial one.
Ms. Horenburger mentioned she was disappointed there was not any landscaping of any kind.
She could not see any fac;ade improvement. Ms. Brooks stated this came about because
somebody ran .into the front of their building and smashed the concrete front of their building.
Their actual front was into the parking facing north. They asked for the CRA's assistance to help
them bring it out a little and add windows along the front.
Ms. Horenburger thought all fac;ade grants were about fixing up properties that faced main
streets. Ms. Brooks stated it could be seen while going north on 41t1 Street. Ms. Brooks indicated
they still had to paint. It was not what they would want if it were on Federal Highway, but it
was a commercial building used for a commercial business. Ms. Horenburger would be happy to
give them a little more money to spruce it up with landscaping. Ms. Brooks indicated they did
not have any room for landscaping. Ms. Horenburger said they could have potted plants
between those windows - anything would help.
Reverend Chaney asked if they paid upon completion and was told that was the case. He asked
why it was on the agenda. Ms. Brooks stated the applicant had not asked for this part of it.
The amount of money they requested was for construction, which was completed, and they
were paid. The painting was yet to be done and that was this request.
Mr. Myott stated Ms. Horenburger had a point. It was a construction project on 41t1 Street and
they were hoping It would be a nice street. He thought they could talk to the applicant and
encourage them to make some curb appeal changes along the way.
Motion
Mr. Myott moved to approve Consent Agenda Item I. Reverend Chaney seconded the motion
that passed 6-1, Ms. Horenburger dissenting.
J. Contract for Issuing RFP for Continuin9 Contract Services - Corey O'Gorman
Ms. Heavilin asked why they would be paying a consultant to implement an RFP. Ms. Bright
indicated if they went out for this particular type of service, there were certain legal
requirements that had to be met. The consultant was a planner working with Amy Dukes, a
CRA lawyer. They also had some money left in Mr. O'Gorman's contract related to the old high
school and were trying to use his services up since he had expertise in this area.
Motion
Mr. Myott moved to approve Consent Agenda Item J. Vice Chair Norem seconded the motion
that passed 7-0.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
K. MLK Corridor Agreement
Mr. Sims was not comfortable progressing on this agreement until he could get an update from
the developer on what had transpired since the CRA's meeting in October. The residents were
asking him a lot of questions and he felt they were owed answers. There were numerous
concerns.
Chair lillman responded the board had been advised how the agenda items were set by the
Chair and the Executive Director. In a previous meeting they asked staff for updates and staff
worked diligently to bring the board those updates. The Information, then, has to come through
staff. If the board felt the information was lacking in tenns of what had been asked for, the
board could ask for additional infonnatlon. Otherwise, they would be undercutting the authority
they had given staff when the motions were made.
Mr. Sims did not want his words misinterpreted. It was not an indictment of any work the staff
had done on giving the board information. Also, no one was trying to infringe on the rules that
govern this board. He was asking whether he had to wait until the December meeting to
answer the numerous concerns of residents. He would prefer having the developer in front of
the board in order to answer these questions. He felt he had been kept adequately abreast of
the developments in the matter.
In light of the importance of the project, Mr. Myott suggested it be put' on the agenda every
month. The expectation could be that the applicant would appear each month to give an update
and address the board on the issues.
Attorney Spillias stated the board could set the agenda any way it wished. They had a report
and they could choose to ask for. more information or ask questions of staff or Intown at this
meeting, since there was an agenda item for discussion, not action. Staff was responding to
action taken at the last meeting where staff would provide the board with a monthly update. If
the board wished to expand that they could.
Mr. Myott had read the email in the same way as Mr. Sims and felt if they had it on the agenda
each month, there would not be any issue.
Chair lillman stated that was understandable, but they had to keep in mind what was going on
at this time. Staff and the attorney were trying to come up with a workable agreement, based
on what came out of the meeting held in August at the Clayton Conference Center at Bethesda
Hospital. The clock was ticking. They had to pay the attorney for all the time and effort that
was going in to try to work out some kind of agreement. Whether that panned out or not, they
did not know. The board needed to start the dock ticking on when they would ask staff to
determine, or come to a determination by the board on when they move to the next group in
line. In other words, had staff done a sufficient job or did they feel they were at impasse and
that this developer did not meet the qualifications and they needed to move forward. In regard
to monthly schedules. as long as their attorney was working on this, that was billable hours. As
long as staff was working on it, that was billable hours. The board needed to start looking at
how much time they were going to spend on this and how much they would recoup on it and
whether it was feasible to continue to go down this road in tenns of what they would get out of
it. Would it be more feasible for the CRA to go to the next developer in line as opposed to
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
staying with Intown since they were not financially fit? These were some hard questions they
needed to deal with because that was in the RFP. There was a legitimate concern therr. Was
the CRA going to provide financial aid or not? At the last meeting, they said,they were not. So,
where were they? Could they move forward with an agreement? Obviously, they could not since
they had not met the requirements for part of what had to be done. Until those items were
done, the attorney cannot work on an agreement. They were putting the cart before the horse.
What the CRA needed to do, right now, was be sure, and etch it in stone and go back to what
they said they would do in terms of following their policies and procedures. Otherwise,. they
would open themselves up to litigation.
Ms. Horenburger agreed with all viewpoints expressed so far. She definitely would want to see
monthly updates on the agenda, once they had selected a master developer. Their summary
stated that as of November 9, neither CRA staff nor CRA counsel received a response from
Intown Partners counsel on the draft: development agreement submitted to their counsel on
September 27. That said it all. Everyone in the process needed to be cognizant of the CRA
deadlines. They could not expect staff to be cramming something on the agenda at the last
minute, especially something as important as that, without massive review and there were
dozens of other things on their agenda. The attorney did not work for the CRA exclusively.
There had to be time to analyze this. She asked if the draft agreement had come back to the
attorney yet.
Attorney Spillias responded they had received a responsive draft agreement on Friday,
November 10, 2006 at about 4:00 p.m. His associate had the opportunity to peruse it and
compare it to the draft sent by the eRA, but not go through it line by line, since it was not a
red-lined version. The documents had to be merged to be able to see the details. He had some
general ideas of where some of the differences were. He had spoken with Ms. Bright and even
though she was going to be away for the holidays, a meeting had been set for Monday,
November 20. In the meantime, they would be going through their document more closely and
come up with questions that Ms. Bright can address and other questions the CRA can address
to the developer and questions that the CRA might ultimately need to address. After they met
with Ms. Bright, it was their hope to do a draft revision to send back to Intown. The process
was one of trying to narrow the areas of difference and get down to the real obstacles, if any,
where the CRA would have to make dedsions and/or the developer would have to make
dedsions that maybe had not been anticipated in the beginning.
Ms. Horenburger spoke to the funding issues, saying she did not know that it was ever
envisioned from the beginning that there would not be a major partnership type of assistance
of some sort in making sure this project was just the right project for this neighborhood and for
the whole City as a "set piece" project, which it was. When they turned down funding at last
month's meeting, it was because there .still was no development agreement. That did not mean
there would not be some incentives for affordable housing or other kinds of amenities they may
decide they wanted. That was why her original motion said "subject to polley decisions by this
board and by the City Commission," because they were going to have to be land use and
zoning and all sorts of decisions made in relation to whatever came through. They could not
even begin to have reports about anything until they had a development agreement in place.
Then they could have updates, community partldpatlon, and a coming together on every aspect
of the project. They could not negotiate the agreement in public.
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Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Attorney Spillias noted there would be some policy decisions to be made with regard to financial
assistance, infrastructure improvements, and these were at the staff/attorney level and could
be negotiated up to a point but then they would have to be brought back to the board for some
decisions, once they can get to specific numbers. They were not anywhere near having speCific
numbers at this time.
Ms. Horenburger asked if they expected to see specific numbers in a development agreement?
Attorney Spillias stated if there were going to be financial commitments from the boa~d, he
would expect ~o see a range, if not specifics. Ms. Horenburger thought it was going to be a
boilerplate development agreement and a lot of decisions had to be made afterward, in which
case the board could still say it did not work for them.
Ms. Heavilin agreed having updates from Intown each month would be inappropriate until the
development agreement was In place. She suggested the only updates they received be from
staff, as they were now receiving, unless there was an action item or a policy decision that had
to be made.
Ms. Bright reported staff met with the City Manager today and the developer and the City
Manager was looking for policy issues, obstacles the developer saw, where the City could get
involved and so that piece was on board. Now that they had the returned draft: agreement, they
now had a good framework. to create a structure and say what could or could not work.
Mr. Myott asked what a realistic expectation would be for December's meeting. Attorney
Spillias confirmed they would have sent their response back to the developer (to their
suggested changes) and anything new they had inserted. Ms. Bright remarked this was why she
was coming in from vacation on Monday, so Attorney Spillias could proceed on that response.
They were trying to be as efficient as possible. Their drop-dead date for the agenda packet
was November 29. She did not know if they would make that date.
There was consensus to have this item on the agenda, since it could either be approved on the
Consent Agenda if there were no questions, or pulled and discussed.
Reverend Chaney was in agreement in moving forward on the development agreement. He
was excited they had gotten the draft response back. They were trusting staff to work with all
the developers and bring recommendations to them and that should not be circumvented. In
order for them to make any kind of decisions, he was depending on the staff to bring the issues
to them. If he had questions then, he would ask them. He also believed, though, that this
particular project was so important, they did need to get some information. He agreed with Mr.
Sims. He knew people were asking a lot of questions, especially after the last meeting when it
appeared the CRA made some decisions that they were not going to go with certain funding.
IX. Old Business
A. Consideration of Neighborhood ImDrovement Grant to the Boynton Beach Faith
Based CDC
Ms. Brooks declared this was a line item in the Heart of Boynton Work Program. They were
looking at doing a Neighborhood Improvement program. The CDC had submitted this program
to keep the neighborhood "clean and green." It worked with an existing program the CDC
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Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
already had called "Peacemakers" that was in two area schools. They would work with the
neighborhood youth to do doing quarterly clean ups in a targeted area. The children ~ould be
supervised and reimbursed for their laborl by gift cards, savings accounts, or a savings. bond. If
the direction of the board were to go forward, they would bring back an agreement to
administer the program with the CDC for a year, as a trial.
Reverend Chaney asked if there would be levels of accountability. Ms. Brooks said there would
be quarterly reports. The children would have to submit photographs and provide the !?ign.in
sheets of the children who partidpated.
Chair Tillman left the dais at 9:00 p.m.
Mr. Sims asked why the fiscal impact was higher than the number shown in the Work Program
detail, and Ms. Brooks explained the budget, when prepared, was a conceptual budget only.
Also, they put in all the money they would need, although they planned to get donations for the
trash bags, gloves, food, ice, sodas, from the local businesses. If they got thatl the budget
would be reduced. Mr. Sims asked if part of the money would be used to pay staff for the
program and Ms. Brooks agreed that was the case. Mr. Sims asked if the staff would be outside
of or within the current organization that would be managing the program. Ms. Brooks'
understanding was that the staff person who oversaw the Peacemakers was already on the
staff and would be assisted by an Americorp volunteer.
Motion
A motion was duly made and seconded by Ms. Horenburger to direct staff to pursue this
program as presented. The motion that passed 6-0 (Chair Tillman was out of the room.)
Chair Tillman returned to the dais at 9:03 p.m.
B. The Promenade Direct Incentive Funding Aoreement (DIFA)
Attorney Spillias reported that at the previous month's meeting, staff was directed to negotiate
with the developer of The Promenade on the DIFA. The particular issue was the requirement
under the agreement for the developer to hold available for a particular period of time 16 units
that could be considered affordable. Attorney Spillias provided a revised version of the DIFA
prepared according to the current negotiation status with the developer. The new language
was underlined. They had come to an agreement where the developer would set aside a
minimum of five units designated as affordable access. The price would be calculated based
upon 120% of the Palm Beach median household income for the year of purchase. They had
set out specific advertising requirements for those units, which had not been clearly spelled out
in the original agreement.
Attorney Spillias examined the minutes from the meeting at which the original agreement was
approved and also the agenda memo that the former Executive Director provided to the board
in terms of the scoring of this project and the bOard's ultimate decision of how much to give as
a direct Incentive.
In line with the developer's request, Attorney Spillias declared if the board were amenable to
approving this first amendmentl it would have to make a motion to reconsider the action it had
taken the previous month and then if that were approved, make a motion to approve the first
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Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
amendment to the DIFA. The developer and his representative could speak more to that, but
Attorney Spillias thought it was probably because they would not want the agreeme~t to be
viewed as ever having been interrupted, for finanong reasons.
History of The Promenade DIFA
Attorney Spillias gave a history of this issue. It first came to the board in October of 2004, at
which time it was approved. The scoring at that time provided that if the developer got ,up to
100 points, they would get 100% of the available TIF (Tax Increment Funding), which was 50%
of the TIF generated by the project. Anything less than 100 points would reduce the available
TIF correspondingly. There were specific provisions that had specific numbers of maximum
points that could be earned. For example, the economic impact on the community. Affordable
access was one of those provisions and was broken up into two parts, 1) affordable commercial
access, and 2) affordable residential access. In this instance, they were dealing with the
affordable residential access. The original scoring was 68 points on the specific designated
criteria and 30 points on the average of the board's individual determinations as to the overall
value of the project. The system was set up that they could give a bonus of up to 40 points
and the board's determination as a group was 30 points. This left: a number of 98 points, which
calculated out to 49% of the TIF being available for a DIFA grant. The portion of the 98 points
that was attributed to the affordable residential component of the project was 3 points. This
was the first DIFA that had an affordable housing component to it. According to the minutes,
the board and the previous Executive Director were particularly Interested in and laudatory of
some of the public amenities: large plaza, public art, and other public amenities. The affordable
commercial access was given 10 points. That was still within the agreement and still a
requirement, if the board moved forward with the DIFA. The 3 points for affordable residential
access had to do with only 5% of the units at a cost at that time in the $260 to under $280K
range.
Attorney Spillias declared what was before the board was staff's recommendation to move
forward on the revised DIFA. The developer had agreed to this first amendment in total and he
was present with his attorney.
Board Discussion
Ms. Horenburger appreciated staff's negotiation effort and the bringing back of some of the
units originally discussed; however, she still did not see anything about the actual provision of
the units, just the advertising of them. She asked Attorney Splllias to elaborate about a
provision concerning the affordable units and what would happen if they did not have any
affordable housing. Attorney Spillias mentioned there was a formula in the agreement that once
the affordable housing criterion had been established, that if in any year they did not meet that
level of units as affordable, that their was a corresponding reduction in the amount of TIF.
Ms. Horenburger thought this could be contradicted by the 18o-day language. Attorney Spillias
noted that if the board accepted this agreement, it would be 90 days with requirements to
advertise. But, if the time period passed and they had done all they could do to market and try
to sell the 5 or 16 units, whatever number, and had not been able to do that, then there was no
obligation on them.
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Community Redevelopment Agency
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November 14, 2006
Ms. Horenburger mentioned an individual who had tried to purchase an affordable unit from
The Promenade, but was told they had to advertise it, but did not have to sell it. She. did not
see anything that would require the developer to actually sell the affordable units. Attorney
Spillias noted this was not how the agreement was intended to work. The idea was if the
developer marketed the affordable units and there was a bona fide offer to purchase, they must
accept that offer to purchase. Ms. Horenburger asked how they would know if the developer
were made a bona fide offer and refused to take it.
Attorney Spillias thought this issue could be clearly defined in the revised DIFA, that the
developer was required to accept and close on all bona fide offers to purchase on the affordable
units, up to five units, assuming the offer was made by a person who met the qualifications.
Mr. Myatt's understanding was that the incentive was being given to sell affordable units to low-
income individuals, not just advertise them for 90 days and be released from the obligation. He
could support language to the effect the developer could sell the 5 units to people of the
specified income level and if they did not, then their llF would go down.
Ms. Heavilin commented this had been discussed at the previous month's meeting and they
could not dictate to the developer whether the market would buy the product at that price or
not. For the up to $280K price range, there would be $500 a month maintenance fees, roughly,
for a two~bedroom, taxes of about $500 a month. It was almost a moot point. The individuals
in this income bracket could not afford to carry those units. She did not believe the developer
could sell sixteen, and would be surprised if they were able to sell one.
Chair Tillman mentioned the whole idea of the incentive was to add an extra emphasis or
emphasis on the affordable units. Chair Tillman agreed with Mr. Myott and Ms. Horenburger.
They would advertise, negotiate, and sell and if they could not sell, there would be a reduction
in llF.
Attorney Spillias clarified if the board took the three points for affordable residential and
assumed they sold none, then the totalllF score would go from 98 to 95, reducing the DIFA
from 49% of llF to 47.5% of llF. There would be a 1.5% swing between 0 and 5 units. The
developer would have to address that.
Ms. Bright noted they had gone out to the archives and pulled out all this data. They had a
developer who had refused the CRA's incentive during the same time period as this DIFA
because they could buy a unit that was not deed restricted of the same value and not have the
ten-year restriction for $20-25K more. Three percent was a very small component of this
project, compared to the board's comments on the project's amenities such as public plazas and
subsidized commercial.
Reverend Chaney asked how they could make the five units realistically affordable, considering
the points mentioned by Ms. Heavilln about monthly maintenance and tax requirements. If they
were going to have an agreement, the units needed to be truly affordable. He also questioned
the reduction from 16 units to 5 units.
Attorney Spillias asked the board to keep in mind the reason they were discussing this was that there was a difference of legal opinion as to whether or not the DIFA had lapsed. If it did not
lapse and if their interpretation of their obligations under 16 affordable units was correct, and
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Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
they went to litigation and lost, the eRA stood to lose some significant damages. If they won,
they were required to do what they said, but by the time they got there in a year or ~o from
now, they were not going to be doing this project. If a mutually agreement (ould' not be
achieved, the eRA might find itself in litigation.
Mr. Myott was still all for the project; however, it would be easy to take out the affordable units
altogether and drop the incentive proportionately. What did the 1.5% change equate to in
dollars? Attorney Spillias noted $6M over ten years at 1.5% would be about $90K total (not per
year). Mr. Myott noted this was not a lot of money. They would certainly have other affordable
housing stock, but wanted to be fair in terms of what they were giving and reduce the llF
accordingly.
Ms. Horenburger asked the applicant how it would affect his funding if the affordable
component were removed. She found the CRA had been putting themselves in the past in a
position of being almost a partner in the funding of some of the projects. Ms. Horenburger
supported dropping the incentive to 47.5% and removing the affordable component. She
agreed with Ms. Heavilin that a qualified buyer could not afford the maintenance and the taxes
and other things, even on an affordable level for a unit in that location.
Paul D' Arelli, Greenberg Traurig, stated he had an opportunity to confer with the client and
appreciated the opportunity to speak. If that were the direction in which the board wished to
go, the client would be amenable to revising the language to eliminate the affordable access in
exchange for a 1.5% reduction in the award. Perhaps the board could use that savings in funds
to do something more meaningful for affordable access.
Motion
Ms. Heavilin moved to reconsider the board's action at its October 12 meeting regarding the
DIFA. Ms. Horenburger seconded the motion that passed 7-0.
Attorney Spillias recommended a two-part motion as follows: 1) Amend the DIFA to extend the
commencement date by 180 days, which would take it to 180 days from July 20, 2006; and 2)
Remove affordable access residential requirement and reduce DIFA Award to 47.5% of the llF
over a ten-year period.
Motion
Ms. Horenburger so moved. Mr. Myott seconded the motion. The motion passed 7-0.
Attorney Spillias remarked his office would prepare an amendment to reflect this and return to
the board or alternatively, asked whether the board would consider allowing staff and the
attorney to revise the language and have the Chair sign it.
Motion
Ms. Horenburger moved to allow staff and the attorney to work out the language on the DIFA
for the Promenade and have the Chair sign it. Mr. Myott seconded the motion that passed 7-0.
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Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
C. Aooroval of the Marina Pad Purchase Aareement
Ms. Bright reported the purchase agreement was being negotiated and they had not received
some exhibits and some final agreements with the City were still pending, so they did not have
a final agreement on which the board could authorize execution. If the board still wished to
proceed, staff asked for an extension of 30 days to allow staff and legal counsel to finalize the
agreement. She hoped it could be brought back to the board at its December meeting.
Motion
Vice Chair Norem moved to approve staff's recommendation for a 30--day extension. Ms.
Horenburger seconded the motion.
Attorney Spillias clarified the effect of the motion. If the developer agreed to the 30-day
extension, then they would have time to work something out and bring it to the December 12
meeting. If they did not agree to the extension, they would not sign the agreement and it
would terminate and the CRA would get its deposit back. They could then build a restaurant, or
new negotiations could be undertaken. The agreement had to be signed by the day after this
meeting or let them know by tomorrow they were not going to, in order to get the deposit
back.
Ms. Bright had just found out they had spoken to the City about this and were trying to clarify
their problems with the aty. There was a meeting on Monday and CRA Attorney Amy Dukes
worked with staff to get a representative from The Related Group to determine if the language
in this agreement matched language in the Second Amended Mediation TrI-party Agreement.
CRA staff was also trying to get an exhibit for the required parking spaces.
Ms. Dukes mentioned they had received everything at the last minute. They were receiving
exhibits on a daily basis, after the board packet had been prepared. They had been asking for
them for weeks. That was why it was not ready.
Attorney Spillias noted this had been a constant problem they had been having with most of the
developers the CRA was in the process of working out development agreements with, the DIFA
agreements and others. The previous month, Intown brought a request for the CRA to
purchase property to the board meeting that night. The CRA entered into this letter of Intent
with The Related Group 95 days previously. There was a 9o-day due diligence period, and while
they were doing their environmental studies, it was known they had to sign a contract within
five days after the end of that 90-day due diligence perlocl, but they did not get a contract from
them until more than two months had passed from that period. Up to today, there were still
some required exhibits that had not been submitted. There had been unanticipated issues that
were not brought up in the letter of Intent. They could not put together a multi-million dollar
real estate deal in six days. There would be another item tonight of a similar nature. Most of
them had to do with the developer's financing problems. He was not trying to be critical of
developers, but thought the message should go out that they could not do business this way.
Under such pressure, there was the possibility of mistakes on the part of the lawyers, staff, or
the board when everything came in at the last minute.
Vice Chair Norem asked why legal counselor staff, when within 30 days of execution, start
negotiating an extension and bring that back to them. Attorney Spillias responded they had
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Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
done so. Ms. Bright commented they tried to get that a week previously, but the developer was
not amenable to that position. The developer had been in Mexico on vacation. Staff was trying
to be as proactive to move the documents through efficiently, but there did not seem to be
much more they could do.
Attorney Spillias clarified the motion as asking for a 30~day extension from The Related Group
to try to work out a contract that could be brought to the board on December 12 and failing
that, either hearing back from them yes or no by tomorrow, notifying them the CRA w~s not
signing the contract and wanted its deposit back.
Motion
Vice Chair Norem so moved, seconded by Mr. Myott and approved 7-0.
D. Approval of Documents for Ocean Breeze
Attorney Spillias reported at the last meeting, the board directed staff to get another appraisal
of the Ocean Breeze property in order to further the negotiations and/or decision-making
process as to whether to purchase the property from the present owner, Boynton Associates,
the principal managing partner of which was Larry Finkelstein. They had not been able to get
the appraisal completed, so they did not have a number to work from pursuant to the board's
direction. The CRA had a $6.4M appraisal and Mr. Rnkelstein presented them with an $8.2M
appraisal. The board asked for a review appraisal to give as clear a picture as poSSible of the
range of values so it could make a determination on what it was willing to pay, subject to the
availability of funds.
In the meantime, Attorney Spillias reported they had been contacted by the developer's
attorneys, informing them they had a loan commitment from Mellon Bank that was supposed to
close no later than today for the financing for taking care of the mortgage foreclosure, the bond
foreclosure, that ~as outstanding. Pursuant to their dosing requirements, they asked for the
board to approve or consent to the assignment of the DIFA. The board had previously approved
that action, subject to the attorney's approval of the form, which they had now approved. The
bank had also asked for two more items and he provided them to the board at the start of the
meeting. One item was an estoppel certificate that was a document laying out the existence of
and continued validity of the DIFA. This was a document he made clear to counsel for the
developer they could not agree to execute without having it brought before the board. The third
item the bank requested was that the demolition lien be released. Attorney Spillias informed
the developer's attorney that staff could not agree to a release at the staff level. He suggested
they try to get an extension of the dosing date as the first step so the board could consider this
item tonight. He was Informed they had gotten an extension of the dosing date.
Before the board was: 1) Assignment of Direct Incentive Funding Agreement signed by Mr.
Finkelstein on behalf of Boynton Associates and Tradewinds Development's Agreement to
Perform, also signed by Mr. Finkelstein as the managing member of that entity; and 2) the
Consent to Assignment they were asking the CRA to approve and authorize the Chairman to
execute. From Attorney Spillias' perspective, the language was appropriate and permitted in
the agreement, the Assignment. There had been an. issue with the estoppel certificate, but
they had removed the language he had questioned. There were provisions that would have
required the CRA to give the lender notice and get their consent any time they wanted to
amend the DIFA. It basically put them in a contractual relationship with the developer's lender,
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Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
who was not the construction, but the lender taking out the bondholder. While the board
discussed this, Attorney Spillias wo~ld review the documents to make sure there were r]o other
matters of concern to him.
In regard to the demolition lien, Attorney Spillias suggested to the developer and his attorney
that he could not recommend a release of the lien without the CRA receiving some additional
security by way of a surety, letter of credit, or some type of security, because waiver of the
demolition lien was part of the DIFA grant. If they were to waive the lien now with no s~curity
and the project was never completed to where the developer would be entitled to the incentive,
the CRA would have given up $375K. If they could provide security in lieu of the lien, they
could waive the lien and it would remove the issue for their financing and should they not
complete the project to where they would be entitled to incentives, they would be able to draw
down on the letter of credit or surety, or some other security instrument.
The developer's attorney was present and could elaborate on the entire issue.
Ms. Heavilin asked Attorney Spillias about the security agreement and whether that would be
the collateral assignment of the DIFA, the estoppel certificate. Attorney Spillias said that had
nothing to do with the lien. The DIFA agreement did allow them to, with CRA approval, assign
the DIFA agreement to a lender as collateral. Attorney Spillias would not recommend this type
of language in agreements in the future.
Chair lillman asked Mr. Reardon what the CRA's obligation was, if any, to these requests. What
did the CRA have to do and what did it not have to do? And, do you have any recommendation?
Attorney Spillias responded there were no financial ramifications to this to the CRA. It was
basically leaving the DlFA in place, assigning it to another entity, which the DIFA did permit.
They would be preserving their lien right on the demolition lien. The estoppel certificate had as
an exhibit the DIFA itself, so the lender had total knowledge of what the obligations of the
developer were, what the CRA's obligations were, and the termination dates and events were
under the DIFA. The lender was not being misled or kept in the dark with regard to any of that.
Was the CRA required to do any of this? No. The CRA was not obligated to sign the estoppel
certificate or waive the demolition lien. The purpose of this was for the developer to preserve
his position in the property, remove the foreclosure action (and he had been told the land use
restriction agreement had been resolved with the County). That would be another requirement.
Either the developer could move forward with the agreement, since the DIFA was good until
February of 2007, or remove obstacles to the sale of the property to the CRA if they chose to
buy it.
Mr. Myott inquired whether if approved, this would come back and add additional value to the
land and cause the next appraisal to go up even more. Some impact fee waivers were
determined to have increased the value of the land already. So, if the incentive were assigned
to the property too, would that drive the price of it up if they went to buy it? If the appraisal
could include the value of an impact fee waiver, could it also look at incentives that went along
with the land? Attorney Spillias stated the incentives were already there. Mr. Myott wanted to
know if they did this, would it affect the value of the next appraisal. Why would they do
something that cost them more in the end? Attorney Spillias could not answer that question.
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Community Redevelopment Agency
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November 14, 2006
Ms. Bright noted the impact fee waivers the developer asked them to consider were not
regarded as having a large impact on the appraisal. This action could possibly add the value
that they were talking about, but why would they do that. She agreed with Mr. Myott. I
Mr. Myott stated also, the incentives were being transferred so that indicated to him that they
were transferring the incentives to Mr. Finkelstein in another development entity that would
indicate that yes, he would be the developer and that was not where they had been heading in
the last month or so when they were trying to purchase the property. Ms. Bright expected the
review appraisal to come back November 22. Mr. Myott declared this process would clear up
the foreclosure and allow Mr. Finkelstein to obtain financing from Mellon so he could hold the
property and the CRA could buy it from him. Ms. Bright stated that was correct. When Ms.
Bright last spoke to Mr. Rnkelstein a week ago, he tried to intimate that a lot of the challenges
to developing the property were incumbent upon the CRA's staff. She told him, with all due
respect, they had been working with him diligently since July 1 to increase their DIFA to the
tune of $4M and at the end of September, the board began to consider purchase. Mr.
Finkelstein declared in the recent meeting that a purchase agreement was required. Ms. Bright
advised that if she had to go to the board with a purchase agreement, it would be for $6AM,
because they did not have the review appraisal.
Chair oilman stated if there was no true appraisal, this was all premature. Ms. Bright advised it
was all about Larry Finkelstein and his financing. Chair Tillman asked why it was in front of the
board. Ms. Bright said because there was a request and out of respect, they presented it to the
board.
William Shannon, Attorney for Larry Finkelstein, who was the manager of Tradewinds
Development, stated this was not about the purchase agreement. What they were attempting
to do was get a mortgage in place so that they could clear the property. The CRA had
previously seen and approved the assignment form. The purpose of the assignment was to
collateralize the DIFA. If something happened to them and the lender had to step in, the lender
wanted to be able to step into their shoes and do whatever they could do, in which case they
would want to take over the DIFA. The estoppel certificate had been revised per Attorney
Spillias'direction. They were trying to get these "lender documents" finished. When the lender
documents were finished and they closed on this loan, which would be within the week, they
would then be able to satisfy the Bank of New York and dear them off the land. They would be
able to resolve the land use restriction with Palm Beach County. They had an estoppel letter
from Palm Beach County that would permit them to do that. Basically, these actfons would dear
the property so the title was now "squeaky clean."
Next was the demolition lien and by removing it from the land and moving it to some other type
of surety, the CRA and its funds were being protected and the land was cleared of the lien.
They had a letter from the CRA saying they would waive it if they complied with the terms of
the DIFA, and they were grateful for that. They understood why the board would want to
protect that lien in the interim and, therefore, were fully in agreement with transferring it from
a land lien to some other form of surety; in which case, if they did not perform, the CRA would
get the surety instead of a lien on the land.
They understood the CRA had not had an opportunity to complete its review appraisal. Mr.
Finkelstein had an idea in his mind of what he would like to sell the land for and the CRA had a
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Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
lower appraisal at present, but they were not talking about the land purchase. They wanted to
clear the land so either they could move forward with it or the CRA, or some other enti~.
Vice Chair Norem asked Attorney Shannon to give a scenario on what would take place if they
did not go along with Mr. Finkelstein's requests from the bank. Attorney Shannon responded
they would not be able to close on the mortgage loan, the foreclosure would stay in place.
What happened after that would depend on how quickly they moved ahead on the foreclosure.
He did not know how quickly the review appraisal would be available. He did not know .if the
developer and the CRA would actually enter into an agreement to buy and sell. If they did, they
would have to clean up the property at that time from the title standpoint. If they ran out of
time with the foreclosure and hadn't agreed to sell, it made matters more difficult. Vice Chair
Norem stated it made matters more difficult for the developer. If the CRA went ahead and did
this, it just puts the developer in a tougher position against the CRA on the property. Attorney
Shannon did not believe that was the case. All they were doing was eliminating these issues so
that if the CRA did not purchase the property, they could move forward. If the CRA did not
purchase the property, the property would end up in foreclosure. Vice Chair Norem said if it fell
into foreclosure, the CRA could meet them on the courthouse steps and bid against the
developer for the property.
Mr. Reardon asked Attorney Shannon if they were not using the CRA's money to secure a loan
to clear the title to sell the CRA the property at a higher appraisal? That was ultimately what
they were suggesting. Attorney Shannon stated they were not using the CRA's money. Mr.
Reardon stated they would be using the pledge of the CRA's money to secure the loan. Attorney
Shannon stated that was not the case and they were clearing the CRA's lien on the property.
The CRA was entitled to a $375K for the demolition lien. Mr. Reardon was referring to the DIFA
component. Attorney Shannon declared all they were looking for on the DIFA was the
agreement of the CRA to adhere to some type of financial surety as opposed to the land. They
would be taking it out of one bank and putting it into another bank and they were agreeing to
that. They were taking it off the land so they could clean the title.
Ms. Horenburger stated they were asking the CRA to save the deal for the current owner by
transferring the DIFA to the bank and thereby saving this property from foreclosure, which
made the eRA a partner in saving the land and put them nowhere in relation to acquiring the
land. She understood the $8.2M appraisal contained items in the appraisal report that led to
that figure that in her opinion should not be there. She referred to the impact fees and asked if
they had been included. Mr. Reardon stated that was correct. Ms. Horenburger said the CRA
would have to pay twice. The seller was including impact fees in the sale price to the eRA and
the CRA had to pay impact fees or someone else did again. That was insane to her. Mr.
Reardon agreed. Ms. Horenburger would not be in favor of approving either of these at this
time. Attorney Shannon stated they were not talking about the purchase at this time. The
assignment that was before the CRA had been previously approved as part of the DIFA. It was
something the CRA previously agreed to do.
Ms. Horenburger declared as the Chair had pointed out, there was nothing here that inured to
the benefit at all. It was all to the benefit of the applicant in this case. There was nothing at all
that inured to the benefit of the community or the board. Attorney Shannon disagreed, saying it
complied with their agreement. As parties in good faith, they agreed with the DIFA and the CRA
agreed with the DIFA and this was in accordance with that. Ms. Horenburger asked if denying
the requests put the board in legal jeopardy of any kind.
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Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Attorney Spillias noted the only item to which the CRA had already committed itself was the
assignment of the DlFA. Some did not recall this. Ms. Bright recalled it specifically. It happened
and Amy Dukes and Ms. Bright had tried for an extended period of time to get it from Mr.
Finkelstein, and then he had a serious accident and it fell through the cracks and it was not his
first priority at a staff level once negotiations resumed. The DIFA was not of value to Mr.
Finkelstein then because he could no longer develop the project. He came in June and the CRA
spent $lSK with the TIF consultant and staff to negotiate for three months, up until September,
when they changed their position. It was interesting that now the DIFA had so much value.
Attorney Spillias responded the assignment of the DIFA from Boynton Associates to Tradewinds
Development and affiliated companies had been previously approved, or so he thought. Ms.
Heavilin recalled it. Ms. Bright also believed this was the case. Ms. Heavilin did not believe the
assignment had ever been approved, but there was a lot of discussion about it. Attorney Spillias
believed it had been approved but never executed. Ms. Bright said that was the case since Mr.
Finkelstein got in the accident before signing it. Attorney Spillias would have to double-check
this, but he believed that was the only item before the board that it may have an obligation to
consummate. The other two would not.
Ms. Horenburger asked why they would be asked to approve it again if they had already
approved it. Attorney Spillias stated it was simply there for signature. The question was whether
it had to be brought back to the board if they had already taken the action of approving it.
Before he would ask the Chair to sign it, he would certainly go back and check the minutes.
Under the DIFA, there were certain circumstances under which they were entitled to assign the
DIFA to an affiliated entity. The estoppel letter and demolition lien waiver were not obligations
as part of the DIFA. Ms. Horenburger noted in any event, the bank would not be an affiliated
entity and Attorney Spillias agreed.
Vice Chair Norem asked again what would happen if they did not sign the estoppel certificate or
waiver of demolition lien. Attorney Shannon stated they would simply sign the Assignment and
not sign the other two documents. How the bank would react to not having an estoppel
certificate, he did not know. They might not want to give them the loan. If they did go forward
with the loan, they would have to payoff the demolition lien and close on the loan.
Chair lillman asked staff if they had to take any action at this meeting. Ms. Bright stated they
did not. Chair Tillman confirmed the board would take no action, but wait for a further update
at the board's next meeting.
X. New Business
A. Consideration of Issuance of an RFP to Conduct a Transit Study and Local
Circulation Plan
Ms. Brooks reported the Department of Community Affairs (DCA) required them to do a traffic
study and transit study to say how they were going to handle all the new development in the
area. The Oty did not feel a traffic study was warranted since from the time of the
implementation of the Transportation Concurrency Exemption Area (TCEA) to the date of the
first report, there had not been any significant development. The County did not agree with that
and found Boynton Beach to be deficient in workforce housing and with not having the study
done. They had since complied with the affordable housing part of it and still needed to do a
31
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
transit study. This was an RFP to go out and find a traffic engineer to conduct that and help
them to find the best places for a transit or trolley hub for the downtown.
Reverend Chaney inquired how much this would cost? Ms. Brooks thought it would be between
$20K to $30K.
Motion
Vice Chair Norem moved to approve staffs recommendation to issue the RFP. Ms. HorenQurger
seconded the motion.
For discussion, Mr. Myott said this should be done, but not just to satisfy the requirement of
DCA, but to really understand how they could plan transit and intermodal connections for the
City's future. He thought this should be part of staff review of projects. Was the project under
review fitting into the overall plan and were there not only places for the trolley to stop, but
indications of how people could use it to lessen their reliance on cars. Ms. Brooks did believe it
would be helpful in their planning for the future of the trolley. Mr. Myott said it should include
all the other methods of transportation also.
There were no objections to the motion or to Mr. Myott's comments.
B. WiFi
This item was not on the agenda, but Mr. Reardon explained he had been asked by Ms.
Horenburger to provide an analysis of the origin and current use of the WIFi initiative currently
supported by the CRA. He distributed a letter to board members detailing his response to this
request.
Mr. Reardon explained that WiFi was a broadband mobile Internet access system that served
the boundaries of the CRA. When fully operational, the entire CRA area of operations would be
able to connect to the Internet from either enabled laptop computers or Internet-capable call
phones. A device could be procured to bring the signal from outside to inside, but it was
$1,500, and the normal household could not afford it.
Mr. Myott inquired whether there would be any way to track the people using the WiR system
the CRA was providing. Mr. Reardon responded this was shown in exhibits six and seven. There
was a six-day picture of activity in the backup.
Ms. Horenburger explained she had a client she was working for on some issues related to
utilities. He had a client that did Wifi. The Tri-Rail Railroad Transportation Authority was also
looking at WiFi initiatives. Commissioner McCarty was heading up a County study on Witi. Ms.
Horenburger's client told her he purchased the ability to do WIFi in a two square mile area for
$25K. She recalled when this started, she had asked some questions but had been "shut down."
Later the City was doing it and they were paying $44K a year for the service and they did not
know what they were getting and how many were accessing it, what kind of advertising was
being sold from it. She was upset they only kept data for six days on users, since this was a
public agency and it was a matter of public record. Attorney Spilllas asked if this had been
covered in the agreement that they only had to keep data for six days? Ms. Horenburger stated
the CRA did not even have an interlocal agreement that said they had to pay the City for this.
She asked that it be put on the agenda for discussion at the eRA's next meeting.
32
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
Chair Tillman asked if any action were required, and was advised there was not. I
XI. Comments by Staff
None
XII. Comments by Executive Director
None
XIII. Comments by CRA Board Attorney
Attorney Spillias indicated his thanks for the board's patience when he brought them last-
minute items. They did try to make the board aware of anything that impinged on any
properties in which the CRA was interested. They could stick totally to the agenda deadlines if
so directed, but now and then, last-minute things came up. He thought their handling of these
items tonight was appropriate and good.
XIV. Comments by CRA Board
Ms. Horenburger inquired what happened with the Dive Shop. Ms. Bright responded she and
Amy Dukes had met with the subject owners and discussed an interim lease agreement. The
owners were amenable to no longer serving food and staff would work with them until a full
plan was in place. The facility had to be upgraded.
Mr. Myott regretted he had to vote against the Ellipse project, but on a project of that value, he
thought the presentation was very, very weak and should never happen again. He did not know
if they needed to request a change to the City's requirements for submissions, but on a $200M
project, reviewers had to be able to ''fly through" and look at places where apartments were 26
feet away from and looking into a parking garage. There were buildings that were seven stories
high and 26 feet wide. Would anything grow down there? He felt like it was a real estate deal
rather than a real project. Ms. Bright responded they had let the original development manager
go five or six months previously and Mr. Myott was right on target. Mr. Myott said when a
project crossed $10M, they should get a whole different presentation. This was a landmark type
project of huge scale and you could not rely on those flat ~rawings that did not provide any
sense of what the project was really like. Whoever looked at the project first should encourage
that.
Ms. Horenburger was hearing from realtors on big properties that had been stuck by potential
developers who came before them and sought extensions and had not closed on the properties
past the dosing dates. They said the only recourse they had was to take them to court and it
was too expensive. Ms. Bright mentioned four major projects in Delray Beach's core had pulled
out. She confirmed with the Ellipse developer that they were not interested in affordable
housing incentives, but it would be interesting to see what happened with 576 units.
Ms. Heavilfn heard Heritage Club was done. Ms. Bright stated they had been in to see CRA staff.
New Century had already released three of their properties so they may release that property.
She had heard unoffidally the project (the land) was being "shopped" for sale.
33
Meeting Minutes
Community Redevelopment Agency
Boynton Beach, Florida
November 14, 2006
XV. Other
There was no discussion of some informational items in the agenda packet.
XVI. Adjournment
There being no further business to discuss, the meeting was properly adjourned at 10: 15 p.m.
Respectfully submitted,
~~:,
Susan Collins
Recording Secretary
(111506)
34
~'
""
~~~<!Y~T2~CRA
iIi East Side- West Side-Seaside Renaissance
BOYNTON BEACH CRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF: DEe 12, 2006
AGENDA ITEM:
x I Consent Agenda
Old Business
New Business
Public Hearing
Other
SUBJECT: MONTHLY FINANCIAL REPORT
SUMMARY: Monthly budget report to the CRA Board representing the revenues and expenses for the
month ending November 30, 2006.
FISCAL IMP ACT: As of November 30, 2006 the CRA had received 0.63 % of expected revenue and
expended 14.25 % of its appropriations for fiscal 2006-2007.
RECOMMENDATIONS: NA
'Robert ~ ~,eardOn
ROBERT T. REARDON, ASSIST. DIRECTOR
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2006-2007 Board
Meetings\06 11 14 CRA Board meeting - November\Monthly Financial report.doc
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East Side-West S'lde-Seas'lde Rena'lssance
I'
;
BOYNTON BEACH CRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF:
December 12, 2006
AGENDA ITEM:
x I Consent Agenda
Old Business
New Business
Public Hearing
Other
SUBJECT:
2007 Annual Dinner Dance - Sponsorship Opportunities.
SUMMARY:
With consensus, the CRA will provide sponsorship to the Greater Boynton Beach Chamber of
Commerce Masked Ball 2007 event.
$2,500.00
OMMENDATIONS:
"
G:\FordL\CRA BOARD\Sponsorship Doc.doc
Page 1 of 1
Ford, Leah
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From:
Sent:
To:
Ford, Leah
Wednesday, November 29,200612:45 PM
Guam Sims; Henderson Tillman (htillman@bellsouth.net); Henderson Tillman
(tillmah@palmbeach.k12.fl.us); Jeanne Heavilin; Marie Horenburger; Rev. Lance Chaney;
Steve Myott; Stormet Norem
Bright, Lisa
Your Response is Greatly Appreciated: Invitation to the Chamber of Commerce Annual Dinner
Dance.. .
i'
Cc:
Subject:
Attachments: Chamber Dinner Dance Invitation.pdf
Dear CRA Board Members -
Attached for your review is an invitation from the Boynton Beach Chamber of Commerce regarding their annual
dinner dance scheduled for Friday, January 26,2007.
Should you wish to attend the event, please let us know no later than December 15th so we may confirm your
attendance with the Chamber.
Please contact us if you have any questions.
Thank you,
Leah
Administrative Services Manager/Executive Assistant
Boynton Beach Community Redevelopment Agency
915 S. Federal Highway
Boynton Beach, FL 33435
fOIdl@GLooynton:oei3c:h. ft, U$
www.boyntonbeachcra.org
561-737-3256 - P
561-737-3258 - f
12/4/2006
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~~~<!Y~T8~CRA
Ii East Side-West SIde-Seaside Renaissance
BOYNTON BEACH CRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF:
December 14, 2006
AGENDA ITEM:
x I Consent Agenda
Old Business
New Business
Public Hearing
Other
SUBJECT:
Consideration of a Commercial Fa<;ade Grant to Law Realty
SUMMARY: Mary Law submitted an application for a Commercial Fa<;ade Grant for her
business, Law Realty located at 625 S. Federal Highway. The business has been located in Boynton
Beach for 22 years. Ms. Law's building was built in 1914 and suffered damages from the recent
hurricanes. Ms. Law is requesting CRA funds to paint the exterior, repair windows, install hurricane
shutters and xeriscape landscaping at the Federal Highway frontage. Ms. Law plans to reroof the
building with her own funds.
Ms. Law has demonstrated the ability to pay for the proposed improvements.
FISCAL IMPACT:
$15,000 from general revenue funds upon completion of work.
RECOMMENDATIONS:
Approve the application for Commercial Facade Grant in the amount of $15,000.
viI~
Vivian L. Brooks ~
CRA Planning Director
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2006-2007 Board
Meetings\06 12 14 CRA Board Meeting - December\Law Commercial Facade.doc
November 7th, 2006
Vivian Brooks
Boynton Beach CRA
Phone No. (561) 737-3256
Fax No. (561) 737-3258
i'
Vivian,
I hereby apply for the matching grant with the CRA to pay up to $15,000 and I will
pay up to $15,000. I may also add improvements to benefit Flowers by Biana, my tenant, which
I will pay up to $15,000 to be matched by the CRA up to $15,000..
The improvements to be done would be the following:
1. First = a new roof.
2. Maybe = shutters, or
3. Maybe = paint the outside of the building.
I attached all the paperwork to meet your requirements.
Thank you.
Sincerely,
~)cP--
Mary'Ll .
625 S. Federal Highway
Boynton Beach, FL 33435
Office No. (561) 737-6900
Fax No. (561) 735-0424
Cell No. (561) 699-1252
Law Realty
Proposed Improvements
Painting
Shutters
Reroof
Landscaping
$ 4,500
$ 20,220
$ 12,000
$ 1,000
$ 37,720
200212003
FACADE IMPROVEMENTS GRANT PROGRAM
PROGRAM AGREEMENT
Boynton Beach Community Redevelopment Agency
PROGRAM REGULATIONS
1. The Applicant agrees not to alter, renovate, or demolish the new fagade for
three years, commencing at the time final inspection by the CRA is
completed. If violated by the applicant, the CRA may choose to require
grant fund repayment, enforced by property lien.
2. The CRA will consider approval of grants for exterior improvements to a
building which does not face a recognized street. The exterior rear of a
building facing an alley way will also be considered.
3. A minimum of three (3) inspections by the CRA are required. Those
minimum CRA inspections are (1) before starting work, (2) during work and
(3) final inspection. More inspections may be required by the CRA. It is the
sole responsibility of the Ap plicant to schedule inspections with the C RA and
City. These inspections in no way are substitutes for required City
inspections and compliances.
4. The property owner, or tenant if applicable, must complete the fagade
improvement project within six (6) months of the grant award unless the
project is approved as a phased project in which case the project must be
completed within six (6) months of the commencement of the final phase.
Failure to complete the fagade improvements in a timely manner will result in
the property owner, or tenant if applicable, losing the grant reimbursement
opportunity. The Board may consider time extensions.
REIMBURSEMENT REGULATIONS
1. This program is designed as a reimbursement grant. That is, all work must
be done and paid for by the Applicant, prior to the CRA's funds being
released. The CRA will provide reimbursement to the grantee upon
submittal of a complete Reimbursement Request and approval of
completion by the CRA Board.
2. Reimbursement Request shall be summarized in a report and acx::ompanied
by proper documentation. Proper documentation will consist of (1) Project
aCcounting including invoices, receipts or other acx::eptable evidence of
payment from suppliers and licensed contractor(s) that have been marked
"paid" with a "release of lien" signed by each. Proposals for "work to be
Boynton Beach Community Redevelopment Agency 9
Fayade Grant Program Agreement fYI, 'Ii (/0 - 0/-() t,
Page1of2 IV[ (I
Revised 12/10/02
completed" or "bids" are not considered proper documentation. Each item will
be supported by a canceled check showing the face of the check, as well as
the back of the canceled check, (2) the Applicant shall warrant that all bill~
related to the Project are paid in full including, but not limited to, all contractors;
subcontracts, labor, materials, related fees and permits, and (3) the
Application for re-imbursement shall provide a minimum of four 3"xS" color
"during" photos and a minimum of four 3"xS" color "after" photos of the
Project. Photos should be from approximately the same position as the
"before" photos submitted in the Application and the "during" photos.
3. The Reimbursement Request from the Applicant shall be submitted no later
than the 15th of the month for consideration by the eRA Board at its next
month's meeting. Reimbursement shall be issued ten (10) days after
approval.
4. Grant funds will be reimbursed exclusively for eligible work and approved
change-orders that have been approved by the CRA.
5. Grantees shall grant the CRA and/or the City of Boynton Beach the rights
and use of photos and project application materials.
Witness
(Date)
erty Owner (11-3{- () t) (Date)
Witness
(Date)
Tenant/Business Owner
(Date)
CRA Director
(Date)
Boynton Beach Community Redevelopment Agency
Facade Grant Program Agreement
Page 2 of 2
Revised 12/10/02
200212003
FACADE IMPROVEMENTS GRANT PROGRAM
APPLICATION FORM I
Boynton Beach Community Redevelopment Agency
Maximum Grant Amounris $15,000.00
(Please Print Or Type Only - Use Additional Sheets If Necessary)
APPLICANT INFORMATION
Name of Property tl /-J /C 1/ LAW
Owner:
{
Address of Property (~5 5, . r::-E /) be4 t- 110/
Owner:
City/State:
/:J Zip
8o(N1L)rJ C)/A-Cf/, FL Code: "3'3~?5
Phone # Day: (f65)~?1-b'OD Evening: fJ.--;;::~(!) {"-/:1..5:2..
Legal owners and legal description of the property to be improved (please attach copy
of warranty deed and lease, if applicable):
W A~..eA N~V pljJ) A--r"Pl rHa.
f
If Different from
Property Owner
Name of Business: L f) tv 1:LA t- t rtA"U (~~IC'IV
Address of Business: {';1.5 S. f'06fAt- J1l-vt~
,
City/State:
Zip
Code:
'3 '3 ~'3f
toYA/70Jl} .#t4C# ~ Fi-
r
Phone # Day: (561) -111-t?oo Evening: (jt) ("-/;l5~
Type of Business: /?LAt- 6~'t/ glZPKU4t:L
Years of
Operation:__--2-~_Jk5.
Number of Employees: /l!()Nt
Annual Payroll:
NM
Number of Employees residing in Boynton Beach: N "Nt'
Boynton Beach Community Redevelopment Agency
Far,:ade Grant Program Application
Page 1 of 6
Revised 12/10/02
200212003
FACADE IMPROVEMENTS GRANT PROGRAM
APPLICATION FORM
Boynton Beach Community Redevelopment Agency
Maximum Grant Amount is $15,000.00
(Please Print Or Type Only - Use Additional Sheets If Necessary)
APPLICANT INFORMATION
Name of Property tJ fJ It!/' LAw
Owner:
(
Address of Property 6;L5 5. F6PUA-t- Jlw~
Owner:
.
City/State:
L? ~ ~ip
(/.() YMINII f/MCII '/ f'L Code: '31 fc.'3 5
Phone # Day: (i6J) 1~1-t?oo Evening: f7~ (,p(I)t''l'J-/:L.5;2
/ /
Legal owners and legal description of the property to be improved (please attach copy
of warranty deed and lease, if applicable):
IV" {Nit f'1''UN LEAsL.
If Different from
Property Owner
Name of Business:
f" Ldw6~J ~y &/O)/VA / ~/A1\IA ~IVCS
( /J I
6' ~ ?' 5 r 6b beAt.- 17 wy.
Address of Business:
City/State:
Zip
Code:
'3~~~5'
80 YN10N 5t4CH / f L
Phone # Day: (? (y Evening:
Type of Business: fL IJ~ /05/
Years of
Operation: '2 IJ
Number of Employees: /lIoNc Annual Payroll:
Number of Employees residing in Boynton Beach: !/It>IV&
Boynton Beach Community Redevelopment Agency
Fac;:ade Grant Program Application
Page 1 of 6
Revised 12/10(02
IV/A
,
PROGRAM GUIDELINES
The following guidelines are intended to inform a potential grant applicant of the extE1nt and
scope of the program. The purpose of the program is to encourage commercial property
owners to upgrade their properties by improving the external appearance of their business
and to encourage businesses to invest in their operations. The result will halt deterioration,
stabilize property values, improve and upgrade appearance of the area, and facilitate and
encourage redevelopment activity in the target area.
The following guidelines are applicable to this program:
1. The program is available only for property located within the Community
Revitalization Areas of the Boynton Beach Community Redevelopment
Agency (CRA). Note: See attached Fa<;ade Grant Area Map.
2. The program is for commercial properties and businesses. The property
owner must be the applicant. However, if the property is currently leased to a
tenant, then the Application and Agreement must be jointly executed by
both the owner and the tenant.
3. Eligible exterior improvements for this program indude:
· Painting.
· Shutters.
· Signage (located on the building or the property).
· Awnings/canopies.
· Doors/windows.
· Landscaping around the building.
· Irrigation.
· Parking lot re-paving, re-sealing, re-striping.
· Exterior Lighting.
· Patio or decks connected to the building.
· Exterior wall repairs (e.g. stucco, brick or wood repairs and replacement).
· ADA improvements. .
4. All work must be in compliance with applicable Boynton Beach Building
Codes and all contractors must be licensed in Boynton Beach/Palm Beach
County. If the Applicant(s), installs enhanced landscaping and or signage it
must be in accordance with City Ordinance No. 98-43.
5. Maximum Grant amounts: The CRA will provide, on a reimbursement
basis, a dollar for dollar matching grant for eligible fa<;ade improvements up
to a total of fifteen thousand dollars ($15,000.00) of CRA funds.
6. The Fa98de Grant program will honor expenditures completed up to 90 days
prior to application, improvements underway and proposed improvements.
7. The Fa<;ade Grant program may only be used one time in any three year
period for anyone property. Properties may re-apply for additional grants
Boynton Beach Community Redevelopment Agency
Fayade Grant Program
Page 2 of 6
Revised 12/10/02
Jr{!I./L {I~-1J- ~ ~
any time after three (3) years from previous grant approval. Project phasing
of up to two years can be requested. Property owners may receive grants
for multiple property locations. Ap plicants shall be limited to one grant per;
eRA budget year (October 15t to September 30th). :
Boynton Beach Corrvnunity Redevelopment Agency 1
Fayade Grant Program /}yJ () I j (/~ ~ ~/_ C1 ,
Page 3 of 6 If ( r.J-- rX.
Revised 12/10/02
APPLICATION PROCESS
I
1. ' An applicant seeking a project grant may secure an application from the Boynton
Beach Community Redevelopment Agency (CRA) located at 639 E. Ocean Ave.,
Suite 107, Boynton Beach. 561-737-3256
2. An original application and eight (8) copies of all materials are to be returned to the
Boynton Beach Community Redevelopment Agency for review and appro\(al by
the CRA Board. Applications will be considered on a first-come, first served basis.
Applicants must take the necessary steps to insure that their submitted application is
properly time stamped to document receipt by the CRA.
3. Upon approval, appropriate grant program documents will be prepared in the CRA
Attorney's offICe and the applicant will be notified of approval by return mail.
4. The CRA will administer the commercial exterior facade program. In addition to the
appropriate City inspections, the CRA will inspect the work to determine satisfactory
com pletion of the work.
5. Applicants may not have any outstanding City of Boynton Beach liens against their
property. In the event that an Ap plicant has an outstanding City of Boynton Beadl
lien against the property, the grant will not be awarded until the complete satisfaction
of the lien.
6. Applicant shall obtain, read and understand all aspects of the Fa<;ade Grant Program
Agreement, including Program and Reimbursement Regulations.
7. Application to this Program is no guarantee of funding. Funding is at the sole
discretion of the eRA Board.
Boynton Beach Community Redevelopment Agency
Fa~ade Grant Program {J {J /' / I
Page 4 of 6 m J!-. t7- (/ ~ - '3/- v 6/
Revised 12/10/02
PROJECT INFORMATION
Describe improvements to be done to the property.
Attach the following items:
· Project work write-up(s) describing in detail the scope of the project,
· Plans or sketches if applicable,
· Site plan and plant list for landscape projects,
· Third-party cost estimates from three (3) licensed contractors,
· Estimated time line,
· Evidence of financial ability to pay for the project (approved loan, cash
account, line of credit, etc.),
· A minimum of four (4) 3" x 5" color "before" photos of the project which must
include "pu blic views",
· Signage design with colors & materials proposed if applicable,
· Project color chips / material samples if applicable,
· And material specifications.
Applicable documents must be attached for the Application to be processed.
By signing this Application, I acknowledge that I have received and read a copy of the
Program Agreement, and I understand and agree to comply with its content.
"!Yl&) Jt~a-
(Date) pro~~r (/d-J/-o t (Date)
(Property 0 wner's signature must be notarized)
Witness
Witness
(Date)
T enantlBusiness Owner
(Date)
eRA Director
(Date)
Boynton Beach Community Redevelopment Agency
Fayade Grant Program
Page 5 of 6
Revised 12/10/02
STATE OF FLORIDA, COUNTY OF PALM BEACH
(
produced
personally appeared \tf\OA.J
I
BEFORE ME, an officer duly authorized by law to administer oaths and take acknowledgements,
lQw
, who is personally known to l1)e or
as identification, and acknowledged he/she
executed the foregoing Agreement for the use and purposes mentioned in it and that the
instrument is his/her act and deed.
County aforesaid on this
IN WITNESS OF THE FOREGOING, I have set my hand and official seal in the State and
'"] \ day of a chlbr , 2oofL.
NOTARY PUBLIC ~ ~ ~{7
My Commission Expires:
MICHAEL GERARD MCKESSY
"<i<:. Notary Public. Stale of Florida
.: . ~My Commission Expires Sep 20, 2009
,~. :,~l Commission # DD 473996
',,~ o~,,'
"',,9r.f,~\\\' Bonded By National Notary Assn.
Boynton Beach Community Redevelopment Agency
Fayade Grant Program
Page 6 of 6
Revised 12/10/02
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this tl1U-4ttaim iud, Ezeculed 11.1$ ~ o!Z: clay of A CI ",Io! $. , A. D. 1974 ,by
GLENNA W. LOVEJOY, joined by her husband, CARL H. LOVEJOY
flrsl parly, 10
5i: MARY L. LAW, a sing~e woman
whosopostofficeadJrossLs P.O. Box ~88, De~ray Beach, Florida, 33444
a:
second par/Y~
';t~ ftI' uacd htft'in the t<<rma "fint party'. and Ifaeeoa.d siAn," Ih&It hdude aift<<Ubr and plural. Mira. lepl
~ t:ldva. and -pa 0( iDdividuall. .nd &he IUCCCIIOn ud ....i,EU or corpon.tioru. ....hirnlr the context
\( to ar rcquJra.)
'Mfil~/~, Ihal Ihe said flrsl parly. for and In consideralion of Ihe sum of s~. 00--------.
in hand pal ~ Y .~~id second par/y, Ihe recolpl whereof Is hereby acknowledged. does hereby remise. reo
loose and qui ~~IO Ihe saiJ. sacond parly fora"er. a/llhe rlghl. lillo, interest. claim ancl Jamand which
11.0 sold firsl pcii;~ )l~~~n and 10 Ihe following described lat, pie" or parcel of land, situate, lying and being
in tho County o'f:;:,' ., PNM BEACH Slate of FLORIDA . lo.wit:
,,;:::':~j ;,
'(7 (2.1,
Lot 9 ,\. '~ss the East: ~8 feet: thereof, Block C,
PENCE' S ~VISION Number One, to Boynton
Beach, a' 0 ing to the Plat thereof recorded
in Plat B page 33, of the Public Records
of p~lm Be~::.:'~~ty, F~orida; together with
all 1mprov=?-=hereon.
(00)
V
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FLORIDM.,t;;~ 'J <I>
STAMP TAX, r"{)\ ;;::
. .. \/<'" R..; f.O
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1'0 ~lIt and to Hold 1M sama togClther ~~f\ and slngaler the appurl"nances t"erealdo
bCllanging or in anywisa apporlalnlng. ancl all ,'''' eslate. I Interest, lien, "quily and claim wI.oI.
SOCl"er of Iha saiel firsl parly, either in law or Clquily, 10 I"" ..1)' ruse. banefil and behoof of lhe salcl
sacond party forever. \f
In 'IIUness _hertof, The saidfirsl parly 1- sIgned CPJ'ct:~clthese presents IIu. d.., Clnd )fear
flrsl abo.." wriltan. \.~ :;_,~
Signml, s"alecl and deli..ered in pres"RCC of: ((~~t,
.._13-od;_~~__!L.k'~~ ~~~';~?7"''''-'''----
_~_~.~?:Z-..._..____.__. ~~~fJJ~_L_._...._.....__m
STATE OF FLORIDA, }
COUNTY OF Palm Beach
I HEllEBY CERTIFY that on this cby. before me, all
offic.r duly authorized il> the Sbte aforesaid llIId il> the CoUI>ty aforeuid to bite "clmowlcdgrneats, penonally appeared
----------GLENNA W. LOVEJOY, joined by her husband, CARL "Jf.;.,\Uell}ii!;?-''t
to me known to be the penon Slcscribed in and who execut.d the foregoil>! instrument and ~~1f~~:'i :~,
beCon: m. Ih.t they exec~ted the laIIIe. l~~?':=.~i"rto""v:i..:'" ';:.
WITNESS my hand nnd official ..al in the County and SllIte last afomaid this ~~/J~tP::;,,)zo,~i::' =~~.
. =~: ~h~C:,f~.i~".:.~ =Z.
August A. 0.1974. ' ~~:.-ti'. d~j~""~'O'~<d:;:lIali1::S'=-f
IMNiM b II.... II ~."A.".' tmr.i:"~~ '~' ~',
a..er...... L"V.. , \~h...."-' ..~...,"oIW~I:."'
, AT LARGE ~ ~~~"",,'''f~(',li.l.;'
~343 PACE 636 hIlsI Deaoll .., FIIor ~/;,rq'ST'K<~:"."~,~'
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./' IiIrt ~ Colrt My CommJ.ssJ.on ~llaLlc'sr~~Ol:':ijj:lRlD:' WGf
,,/'_ _ _ MY COMMISSION EXPIRES'JAN., 1977
17til Instrument prepami bj: Phil~ip '1'. Crenshaw, Esquire IONllIll THRU GENER"ll~!$Ut"Ne' UNO- Wtlrflj
A"~ Suite 2, 640 East Ocean Avenue, Boynton Beach, F~orida, 33435 .
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Folding Shui:"er Corp.
No.1912 P. 1
"THE INDUSTRY LEADER SINCE 1969"
HOME OFFICE 7089 HEMSTREET PLACE WEST PALM BEACH, FL.
33413
TEL ( 561) 683.4811
FAX ( 561 ) 640-8204
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FACSIMILE TRANSMITTAL SHEET
TO: IJ1 ~~ FROM: &~H7 ~J/ rY'
COMPANY, !4Y.:! DATE: 9;P/u~
FAX NUMBER '7 SS"-
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PHONE NUMBER:
TOTAL NO. OF PAGES INCLUDING COVER: ,-3)
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Name:
Address:
Mary Law
625 S. Federal Highway
Boynton Beach,fL 33435
561-737-6900
(561)
243.2523
WWW.Wrp~lIlIg..om
Charles Kuper- District Manager
7356 Rockbridge Circle
Lake Worth, FL 33467
Office 561-243-2523
Cellular 561-445-9788
Fax 561-258-0896
ckuper@sharperimpressionspainting.com
PB Co Lie. # U-20287
Home Phone:
Work Phone;
Cell Phone:
E-Mail:
Time: 10:19 AM
QUO!
10197
" Gutters / Downspouts " Banding Around Windows Shutters
" Eaves & Fascia (trim) Garden Wall " Hurricane Shutters
Fascia Only Walkways Fence
" . Wood Siding Front Door/Frame Porch Ceilings
Driveway Back Doors/Frames Porch Columns
Stucco Side Doors/Frames Porch Floor
Brick Garage Doors Chimney
2 walls by back steps Trim/Banding Roof
Sidewalk (near street) Previously Painted Steps Dock
CLEAN: Pressure wash all walls of home to remove dirt, mold, mildew, loose coatings & some chalking
PROTECT: Tarp to protect concrete/pavers, landscaping, & roof areas. Tape & shield to protect windows
CAULK: Examine & replace any failed caulking areas, especially around windows & doors, with a 35 year latex caulk
Preperation: Scrape & prime loose/Failing paintlCratering which is different levels of old and new paint will occur
PAINT (Topcoat}:Apply 2 coats of Sherwin Williams Super Paint (25 year) exterior latex as a top finish coat
*Unfess otherwise noted: All stucco will be painted flat & all trim and doors will be painted satin
. . ~ .;. .
Discount:
Two Coat Sale Price:
$4,454.32
(1 year guarantee)
11/16/2006
I agree to have Sharper Impressions Painting provide all labor and material detailed in this contract for a total of
The work is scheduled to be started between and
1 agree to pay a deposit of ZERO ($0) today, and the balance due upon immediately upon completion of the job.
I can cancel this contract wjout any penalties providing I notify Sharper Impressions Painting 2 weeks prior to the scheduled start date.
Homeowner Signature
Date
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-
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Oct 31 2006 9:03PM
John T Holz CPA
561-296-1280
p. 1
Quick Roofs, LLC
John Holz
LICENSE U-20535
3657 WESTGATE A VENUE
WEST PALM BEACH, FL 33409
PROPOSAL
Date Invoice
10/27/06
I To
Mary L Law, Realtor
625 S Federal Hwy
Boynton Beach, Florida
Quantity Description Rate Amount
50 yr 5 V Crimp Metal Roof (includes all 17025.00
underlayments, 10 year workmanship warrantee)
I .
Total $17025.00
( From:
1Irnpnual
..... No.
01
Pates
SOUTHERN ROOFING SOUTH
,
551 S. CONGRESS AVE.
OELRAY BEACH, FL 33444
[561] 274-0092
INC.
Proposal No.
Lie. # U-19581
CC-05-R-11963-R
RC 290271 94
Sheet No.
Date 7-21-06!
Proposal Submitted To
Name Law Real Estate
Street 625 Federal Hwy
City BOY.:1toa Beach
State ~'L 33435
Telephone Number 137 - 6 9 0 0
We hereby propose to furnish all the materials and perform all the labor necessary for the completion of
Work To Be Performed At
Street
City
Oate of Plans
Architect
State
..,................ .......
ROOFING
Remove ex! s ti;}g roo f in.g a :Id"clean""i:iI l"debris"'''' """."'""_.".",.,,,,,,,,,,,,,,,,,,.,,.,,,,,.,,,,-,,..,,-"",,,,
Naii6ne' Iay'er' 30# felt
......,...,....~"............_....H....._.__......,...t......"""......................._....._._.......___...........__..___..._.........
Install aew metal flashings
..,......,...,.................-.....-...,.....-....--...............-................-..................-..............-...........---..
Install 40 yr Dimentio~al Shingles
Price includes 100 sq ft plywood replacement if ~eces5ary if
add! t i ona 1 plywood :L$. ,.;)eces sar.y .$3,.5 0 per.. sq,.f,t,,,w.J..1J,,tH~,,,,,9J::H~.,;r,g,~g_'''''''_,,___,,_.
'l'russ repair. .if :lece.ssary $5. 00 ..per, " Lt""".""" ,,,,,., ' "",,,,,..,,,,, ,,,,..,,.......,,.,,,.,,.,. ""......",., ".",,,"'....,.,,....
Fascia repair if. necessary. $20...00 per ",fL"
Provide 5yr warranty
., 'ropOH hereby to furnish material and labor - complete in a~orda"ce with above specifications. for the sum of:
Eleven thousand six hundred
dcllars ($11 ,600.00
).
F';IylrMlnt to be made liS follows:
$2,900.00 Deposit $2,900.00 job start u
$2,900.00
AuthOl'iled
$ilnature
AN ....t.,~, " ,u."'nt_ to b. as ol>tti"06, All _/~ to be c""'l>Iet~ i~ . wo,k...."Uu
m.nn.r accordinl to s.tandard ~<KUc:M.. Any .It...ation or dniMiOA tnMn aboofto ..pee,fie..
taons in.oe.'f'll ex',,, COns. .,.,m be eJl:C'cuted only upon wr'itt...- orders. and win become tn
eat,a It".'a- over *nd ebo'le the eo.liM.", An .,reemcn" cont~ "poll .rllles, KciClants
0' d"'~ lle1tond our control. Own., to .....'Y Ii..,. tOfn~o and _ ~s...ry j"...,ana.
Our ot/O,kars a<* fully co"'~ b, WO'km~'s Comj)t"..tlOn Insu'_.
Note: This IIt'OfJOUl may be
withdr~wn by VI if not accepted within
20
dey$.
Arttptanrt of Jlrllpn.lla!- The abow: p'ices. $pecificatians
and coflditions aft $&tisfaetct')' and ;lire hereby accepted. You are authOr,zad
to do the loIIOrk as sl)e(ified. Payment will be rn*<le as Olltlil1ed above,
Sicnatu...
Oale Or Acceptilnce:
Slenatu...
T...J 1.1L.J?r"' . ("'fA CIl"AIA? ?? . Tn,..
. "n", VU I
,/
ROOFIN<;
~M
JltnpxmaI / QJmrlmf
~
AMETCO, INC.
3330 2nd Avenue North. SUItl! 11
loke Worth. FlorIda 38461
(561) 968.2442 . FoX 968-8683
Uc.ICCC058OO1
p. "0 .. Pao..
UCENSED
BONDED
INSURED
71ll/06
\,
/'
~-.rtml~
VANNBS3 &. CJ>J..1J:>WAY ~S1, lNC
9191 WHIPPOORWILL PASS
WRST PALM BRACH. F.L 33411
PJlOt.m #,: S61-273-<.\m
FAXf/.: 561.m.957D
.IllII1WIEII.OCl_
MARY LAW QFFJ.0!
QSS. FBOmw. HWY
BOYNTONBEACH, F!-
w. '--by .l,IklR ~peet~.tj""' ~nd .~u Iot~
l4ET~ HOOII'INC
SCOPl'.OIl'W'"
UMOW txlSTINGSWNO~ ~lNG MATHIUAl., FUt.SJillIIOS JI.ND PELT TO ^
CLEANWORKABLBSURPACg. mAlMU!PUCEBADW'OODASN~. SUPPLY.
FABIUCATB./sND Im1JU,L ~VC!UMP METAL ROQIl'lNO AND ACC!SSORlBS TO CODIl
INCUJOING!U.L l!i.l..A.ttD ~OS
MATERL\Vl:
,"V ClUMP M8TAl. ~OOf1NG IN 26 G\ GAl.v~ SlUt AS MANUFACTTJRUl BY
SB1\.ICO MIl.T~ ROOPMo, 01\. EQUAL. ALL TR.W.1'O tm PA,BlUCA'l'ED In' AldlnCO. .ALL
RXl'06ED FAB'I'ENEU TO BH EX'fENl)ED t!FE WOOD SCUWS WITH NEOPRENE WASHERS.
~r.r.A~
. ROOF AND T.IUM Im1' AU.l\TION 'fOCONl"ORM ro A.LLCOD~ /.No S'1'.ANDMOS
.AS ~ISlUID BY SMACNA. .ALL WORKMANSHIP W 51l TOPQUAJ,JIT AND 101m
W ALmt'l1GHT. tNCLUD'IlS THE 1NS1'AU.AtION OF 30# FELT UNOERLA YMm\'T. T!N.UOOtt>
'l'Ocot$,MiDA 15# ffil,TSLlPSHmIT.
~
lNCLIJDING All t.lATSJUAL. D.ll1M:RY. TAXliS. LABOR. AND CLHAN UP OF ALL
mB RELA'tZI> OOlOOS:
MlLLF1NIsH:(ACRYLUME)."... ..,.".,. ... ....,..Sl1.80000
STANDARDPAIN1BDF1N1SR.,... .._...... ,., ....S19750(X)
W.AR.R.ANIY ON MAT1iRIAL FlNISH 'By MANuF Ac:t\JREl(.
3- YEAR WARlW(tY ON WClRWA.NSHIP BY AMErco
6cY& 0
,.-
,,....
:? / J(d
~ 1I3DOWN; J130N DalVE,lUj BALANc,ll ~ COMJ'LSTION.
mm
L) f'&:MlT ~ Jf Mh"l'ro1' INCUJI)P Dl CONTtiCT l">>.lCJ.
1.) Ji' TBatt IB AN ~a IN 1111 PRICE 01' nm MKTAL I'ROOOC'r.l1 CfU.IOII) TO
A.lOl'CO, INC. SlJJSQlJ"DIT 'f())WfJN(; IBIS ~ TSI PRICI m J'QJlTR
4BQVR WlU..D INCU.\:IdI> TO RltPLeCT T:Itt ADDITION4Lcon.
*wt.AC! Ilalm!l'G S1lllA'1lIINGCJreAlO ,IUAJ SJIUI'05'PL1.1VOODLAtt. 0'Il!IlB. BAD WOOf) (tl'AllW.
UPImlIl. ErqSRAU. BUDIlllED Oso~ m. UN nOlI, 1JI!lID. m.m O~.llIl"llPVJ-l'I..t,lt CQ(frOF
MA1UrAUl. SV'Cll.
.f Jrnp&1l1i' IItflb, '" fUtRi.h mawn,. and I.....' - ....."Iote in .._60_ .,;l~ ,~. .b.... ."..-iona. for thtI ...., al:
f"It~a'11 _ bI: II\tdf: M~:
lIoIl... (f
~~II~lllllellUlllld.lII.'I..A'_IOI)t~lnaW<lllmlallll<elllilnAilrlllCClldnglll_pr-.A1ria\iel8tl(lnsor~rromlhe~
~illwMnG __wlbIoOllllllUtod ..,.,.""""Vorib""'""'II/1d....___...tll1/I:.=.._aM...1h8~.,.==<:oningont__
r.:::n..~..:==:.~"'1:;=:'~ai.~""':in~~plr...:'~~=c::::Jr._~~
.~-,...'-.....'l1I~~-:;~R1i'YII'l_n~"'lfnlll~_ ..
--_11IO /
~~of~-....._~,.~...._.....,."~.,,,....__"""""'"',-,...._""..QOma \
WllIXlI;IJl)Ilftll P1l/IIIlnI."'bilIIIIIIlIIllClullinod~ ~-U>>""''''__iIlllI~'' mIlWllI",PlIllCt. "*"~. ".~~"",
---_IItV.._ 1I1lIlIw-."","",lIIl11llJmeY_.rM9.
lll<Io.~ _.
-.... /'
a..: Roof
J. B. YoUIIg Balklen
Uc# COC1S10694
Off~c~ - Sh\V\s\e
/'
LAW-MARY
DlSCRFI'ION QNTY RJ!M)VE RIlPLACE 10TAL
Rem:lve 3 tab .2S yr. - cotq)()silion shingle 28.56 SQ 50.00 0.00 1,428.00
roomS. meL felt, soil stacks, drip edge, and
vents.
laminated - 3Oyr. - ~. shingle Jfg - met 3 Ui6 SQ 0.00 260.00 8,231.60
new felt, soil stacks, vents, ~ edge, and
rid.g~ vent.
.....!...::-
Room Totals: Roof 9,659.60
Une Item Totals: lAW-MARY 9.659.60
Gruel Total Aftas:
0.00 SFWall<; 0.00 SF Ceiling 0.00 SFWaUs & Ceiling
0,00 SF Floor 0.00 SYFloomg 0.00 LF Floor Pe:rjm,tet
0,00 SF Long Wall 0.00 SF Short Wall 0.00 IF Ceil. PeriDeter
0.00 Floor Ar$a 0.00 Total Area 0.00 Intemr Wan Area
0.00 Exterior Wan Area 0.00 ecterior Pe~erof
waUs
0.00 Surface Area 0.00 NuntJer ()fSqu~s 0.00 Total Perimrter Length
0.00 Total Ridge length 0.00 Total Hip Length 0.00 AreaofFaoe 1
LAW-MARY
0110112006 Page: 2
J. B. YOIIIII B~n
Uc# ca::ISI()6IJ(
Off\ C~
MeW
LAW~MARY
Room: Roof
DlSCRPI'ION QN1Y RlM>VE RWLACE TOTAL
Retmve 3 tab ~ 2S yr. - COD'pOsition $bjnglc 28..56SQ 50.00 0.00 1,428.00
rootlng - neL felt, soil stacks, ~ edgCl. and
vents.
Metal roofing- Sv Criop- incudmg 31.42 SF 0.00 SSllOO I7,28UIO
underlaymcnt sY$teIn ofTitaniwn-llDL &:
Polystick, new vents, ~ edge, &: so:U
stacks.
Room Totals: Roof 18.709.00
Line Item Totals: lAW-MARY 18,709.00
aDd Total Areas:
0.00 SF WalJ$ 0.00 SF Ceiling 0.00 SF Walls &: CeilDg
0.00 SF Floor 0.00 SYF100mg 0.00 IF Fk;Ior~
0.00 SF Long WaD 0.00 SF Sbon Wall 0.00 Lf Ceo. ~er
0.00 Thor Area 0.00 Total Area 0.00 Interior wan Area
0.00 EICcrior Wan An"a 0.00 Exterior PerWneter of
Walls
0.00 Swfilce Area 0.00 NuotJerofSquares 0.00 Total PeriniIlter Length
0.00 Total Ridge Length 0.00 Total Hip !mgth 0.00 AJeaofFace 1
lA W-MARY
01101/2006 Pago: 2
DEC-04-2006 17:2S From:
To:4098~241S~000~737325 P.2/2
I.$]f~;"
~. .
r
1~~~Y~T2~ eRA
ill East Side-Wo", Side- Se"ide RenaISsance
,BOYNTO.N BEACH eRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF:
AGENOAITII;M:
".--.. -
I x I Consent Agen~a J I Old Busjne~~
New Uusinc55
,..
Public Ucarinc
Othet.,~
SUBJECT: Lease of eRA Proper1y to Pmlthcr Really
SUMMARY: Jeff Krinski of Panther has requested 111:ie of the RELAX iNN site to
accom.modate the sales office lrai ler for the PROMENADE project. Mr. Kl'inski propo."cs
a rent of $600.00 per month starting D~cember 13, 2006 and going through April 2008.
FISCAL IMPACT: Po~itjve cash flow estahlished wbik the Agency assists u developer
wi' h Iht:ir project.
RECOMMENDATIONS: Sign the lease.
~~=~
ROBERT T. REAROON, AssIstant Vh.,
T;\AGENDAS. CONHFNT AGENDAS, MONTHLY REPORTSIComplflllllj AgendClltem Roquo~l Forms by MQAling\FY 200f;l.2007 Boarrl
MeetlngslOO 1:2 14 eRA BOillLJ Mm~linH - DecamnArlREI,AX INN LEASE.doc
LEASE
THIS LEASE ("Lease") is made as of the December 13,2006 the ("Effective Date"), by and
between BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY, an agencyorganized
and existing in accordance with Chapter 163 of the Florida Statutes herein called "Landlord," and
BOYNTON WATER WAYS INVESTMENT ASSOCIATES, LLC, a Florida limited liability
company, herein called "Tenant."
Article 1:
Property and Term
1.1 Lease of Property. Landlord is the owner of that certain parcel or those certain
parcels of real Property (the "Property") more particularly described on EXHIBIT A, located along
North Federal Highway in Boynton Beach, Florida. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, subject to and with the benefit ofthe terms, covenants, conditions and
provisions of this Lease, the Property, together with all appurtenant rights and easements.
1.2 Term and Lease Term Commencement. Landlord shall deliver possession of the
Property on the Effective Date. The term of this Lease (the "Lease Term") shall begin on the
Effective Date and end on April 30, 2008, unless sooner terminated in accordance with the
provisions hereof. Notwithstanding the foregoing, Tenant may terminate this Lease at any time by
providing Landlord with written notice of termination at least thirty (30) days in advance of the
termination date.
Article 2:
Rent; Security Deposit and Advance Rental.
2.1 Fixed Minimum Rent. Commencing on the Effective Date, Tenant agrees to pay rent
to Landlord, at the address of Landlord, or such place as Landlord may designate by written notice to
Tenant from time to time, on the first day of each calendar month included in the Lease Term in the
amount of Six Hundred and Noll 00 Dollars ($600.00) (the "Rent") with a five (5) day grace period.
A One-Hundred Dollar and Noll 00 ($100.00) late fee shall be applied and owed to Landlord after
the five-day grace period. Checks should be made out to the Boynton Beach Community
Redevelopment Agency.
2.2 Security Deposit. Landlord acknowledges receipt from Tenant as of the date hereof of
the sum of Six Hundred and Noll 00 Dollars ($600.00) (the "Security Deposit") to be held as
security for the payment of Rent and all other sums payable by Tenant under this Lease and for the
faithful performance of all covenants of Tenant hereunder. Provided that Tenant is not in default
beyond any applicable grace or cure periods set forth herein, the Security Deposit, without interest,
shall be refunded to Tenant at the expiration or earlier termination of the Term, further provided that
Tenant shall have made all such payments and performed all such covenants. Upon any default by
Tenant hereunder, all or part of such Security Deposit may, at Landlord's sole option, be applied on
account of such default, and thereafter Tenant shall promptly restore the resulting deficiency in such
Security Deposit.
2.3 Advance Rental. Simultaneous with the execution of this Lease, Tenant shall pay to
Landlord the sum of Six Hundred and No/IOO Dollars ($600.00) ("Advance Rental"), which
Advance Rental shall be applied to the Rent for the first month of the Term.
"
Article 3:
Insurance. and Utilities
3.1 Insurance. During the Term of this Lease, Tenant at its sole cost and expense, and for
the mutual benefit of the Landlord, shall carry and maintain the following types of insurance in the
amounts specified in the name of the Tenant:
(a) Comprehensive public liability insurance, including personal property damage,
insuring Tenant and naming Landlord as an additional insured, against liability for injury to persons
or property damage occurring in and or about the Property or arising out of the ownership,
maintenance, use or occupancy thereof. The liability covered under such insurance shall not be less
than a combined single limit of $1 ,000,000.00 for bodily injury and/or property dama~.
3.2 Utilities. The term "Utilities" shall include, without limitation, water, gas, electricity,
telephone and sewer services. Tenant shall pay for all Utilities and related services rendered or
furnished to the Prope_rty during the Lease Term. Tenant shall have the right, throughout the Lease
Term, and with sufficient written notice to Landlord, to install, replace, maintain and use such
additional utility lines, conduits and facilities, so long as such activities are conducted in accordance
with all applicable City and public utility rule and regulations, and Landlord agrees to grant to utility
companies (public or private) providing said utility lines, facilities and/or service to the Property,
non-exclusive rights and easements to install, replace, relocate, repair, operate and maintain lines,
pipes, wires, conduits and other facilities (together with the right of ingress and egress and other
rights appurtenant thereto), on, under, across and within the Property, as may from time to time be
necessary or desirable to supply the Property with the Utilities, so long as such grant of non-
exclusive rights and easements does not prejudice Landlord in any way.
Article 4: Use. Alterations. Maintenance and Si2:na2:e
4.1 Use; Alterations. Landlord acknowledges that so long as Tenant complies with all
City of Boynton Beach land use regulations, Tenant may install a temporary sales trailer on the
Property, which Tenant may locate anywhere on the Property and which may, at Tenant's sole
discretion and expense, be improved with landscaping, parking areas, curb stops and other items
reasonably related to Tenant's use ofthe Property for sales purposes, so long as such improvements
comply with City of Boynton Beach land use regulations.
4.2 Tenant's Maintenance Obligations. Tenant shall be solely responsible for
maintaining, at its sole cost and expense, all Utilities and improvements to the Property installed by
Tenant, and all landscaping on the Property. The provisions of this paragraph shall not apply in the
case of damage or destruction by fire or other casualty or by eminent domain, in which event the
obligations of Tenant shall be controlled by Article 7 of this Lease.
4.3 Signage. Tenant shall have the right to install signage on the exterior of its sales
trailer and anywhere on the Property to the full extent permitted by applicable code. No consent of
2
Landlord shall be required for any such signage and to the best of its ability, Landlord agrees to
provide all assistance reasonably requested by Tenant in connection with Tenant's applications for
any sign permits.
Article 5:
Landlord's Representations and Covenants.
5.1 Landlord's Representations. Landlord, in order to induce Tenant to enter into this
Lease, hereby represents:
5.1.1 To the best of Landlord's knowledge, there are no Hazardous Substances
(defined below) on, under, above or about the Property, and the Landlord has not received any
notice with respect to, and has no knowledge of, any facts which would constitute violations of any
environmental laws relating to the use, ownership or occupancy of the Property.
5.1.2 Landlord is duly organized and validly existing under the laws of Florida and
has full power and authority to conduct its business as presently conducted and to enter into this
Lease.
5.1.3 Landlord is the sole fee simple owner of the Property and has good and
marketable title thereto.
5.1.4 Landlord is not a party to any agreement or litigation which could adversely
affect the ability of Landlord to perform its obligations under this Lease or which would constitute a
default on the part of Landlord under this Lease, or otherwise adversely affect Tenant's rights or
entitlements under this Lease.
5.1.5 To the best of Landlord's knowledge, the Property is zoned to permit the use
and operation of the Property as a sales center and that there are no easements, covenants,
conditions or restrictions of record which will impede or prohibit Tenant's exercise of its rights
hereunder. If at any time during the Lease Term, the zoning use applicable to the Property should
be changed in such a manner as to require Tenant to cease operating its intended use ofthe Property,
then Tenant may terminate this Lease immediately by giving Landlord written notice thereof.
5.2 Landlord's Covenants. Landlord covenants at all times during the Lease Term and
such further time Tenant occupies the Property or any part thereof pursuant to the terms of this
Lease:
5.2.1 to permit Tenant to lawfully, peaceably and quietly have, hold, occupy and
enjoy the Property and any appurtenant rights granted to Tenant under this Lease during the Lease
Term without hindrance or ejection by Landlord or the successors or assigns of Landlord or anyone
acting by, through or under Landlord (including without limitation any mortgagee of Landlord).
5.2.2 to hold harmless, indemnify, protect and defend Tenant, its officers, directors,
partners, employees and agents from all liability, penalty, losses, damages, costs, expenses, causes
of action, claims, and/or judgments arising by reason of any breach of any of Landlord ' s obligations
hereunder. However, Landlord does not waive its sovereign immunity rights and Landlord's
3
indemnification obligations shall not exceed the statutory limits provided within Section 768.28,
Florida Statutes.
Article 6: Tenant's Affirmative and Nee:ative Covenants
6.1 Affirmative Covenants. Tenant covenants at all times during the Lease Term:
6.1.1 To perform all of the obligations of Tenant set forth in this Lease.
6.1.2 To comply with all statutes, ordinances, rules orders, regulations and
requirements of the federal, state and city government and all their departments and bureaus
applicable to the Property.
6.1.3 To procure all necessary permits before undertaking any work on the
Property; to perform such work in a good and workmanlike manner, employing materials of good
quality; to comply with all governmental requirements; and to save Landlord harmless and
indemnified from all injury, loss, claims or damage to any person or Property occasioned by or
growing out of such work.
6.1.4 To hold harmless, indemnify and defend Landlord, its officers, employees
. and agents from all liability , penalties, losses, damages, costs, expenses, causes of action, claims,
and/or judgments arising (i) by reason of any death, bodily injury, personal injury or Property
damage occurring on the Property during the Lease Term, except to the extent caused by Landlord,
its agents or employees; or (ii) breach of any of Tenant's obligations hereunder.
6.1.5 At the termination of this Lease, peaceably to give up and surrender the
Property, and to remove any improvements, alterations and additions made by Tenant during the
Lease Term if Landlord so desires such removal.
6.1.6 To keep the Property free from any mechanic's liens arising out of work
undertaken at the Property by Tenant. If any such claim of lien is recorded against the Property,
Tenant shall bond against or discharge same within thirty (30) days after written notice to Tenant of
the recording of the lien.
6.2 Negative Covenants. Tenant covenants at all times during the Lease Term not to
bring any Hazardous Substance upon the Property, unless the following conditions are met: approval
in writing by the CRA; compliance with City of Boynton Beach Land Development Code Section
6.E; any such Hazardous Substance is properly contained and stored; and to be used or sold for
lawful purposes in compliance with all applicable governmental laws, ordinances, rules and
regulations. Landlord reserves the right to not approve Tenant bringing Hazardous Substances upon
the Property. Tenant shall indemnify and hold Landlord harmless from and against any claims,
damages, costs, expenses or actions which arise out of any breach of this provision, including any
attorneys' fees and costs incurred with respect to same, and such indemnity shall survive the
termination of this Lease. The term "Hazardous Substance" as used herein shall mean any
substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material,
a hazardous or toxic substance, or other similar term, by any federal, state or local environmental
4
statute, regulation or ordinance presently in effect of which may be promulgated in the near future, as
such statutes, regulations and/or ordinances may be supplemented or amended from time to time.
Article 7: Damae:e and Destruction: Condemnation
7.1 Fire or Other Casualty. If during the term hereof, Tenant's improvements to the
Property shall be damaged or destroyed by fire or other casualty not caused by Tenant, Tenant shall
have the right in its sole discretion to terminate this Lease by giving notice thereof to the other party
not later than sixty (60) days after such damage or destruction. In the event of the termination of this
Lease pursuant to this Section, this Lease, and the term hereof, shall cease and come to an end as of
the date of such damage or destruction. Any Rent or other charges paid in advance by Tenant relating
to a period following the date of such damage or destruction shall be promptly refunded by Landlord.
Tenant shall be responsible for removal and clean-up of any damaged property that remains after
such destruction or casualty. In the event that Tenant does not elect to terminate the Lease following
casualty, Tenant shall, at its cost, proceed to repair such damage and restore the Property to
substantially its condition at the time of such damage.
7.2 Eminent Domain. If, after the execution and before the termination of this Lease any
portion ofthe Property is taken by eminent domain or conveyed in lieu thereof, the Lease Term shall,
at the option of Tenant, cease and terminate as of the day possession shall be taken by the acting
governmental or quasi-governmental authority. Such option to terminate shall be exercisable by
Tenant giving written notice to Landlord within thirty (30) days after the date of taking, which notice
shall provide for a termination date not later than ninety (90) days after the date of taking and Tenant
shall pay Rent up to the termination date identified in the notice, and Landlord shall refund such Rent
and any other charges payable under this Lease as shall have been paid in advance and which cover a
period subsequent to the termination date.
Article 8: Tenant and Landlord Defaults
8.1 Tenant Defaults. If Tenant shall neglect or fail to perform or observe any of Tenant's
covenants and if such neglect or failure shall continue after notice, in the case of Rent or other
charges payable under this Lease for more than ten (10) days after Tenant's receipt of written notice
of such failure, or in any other case for more than thirty (30) days after Tenant's receipt of written
notice of such failure or such longer time as may be reasonably required to cure because of the nature
of the default (provided Tenant must have undertaken procedures to cure the default within such
thirty (30) day period and thereafter diligently pursues such effort to completion); then, and in any of
said events ("Event of Default") Landlord may, immediately or at any time thereafter, pursuant to
summary disposition or other legal proceedings, enter into and upon the Property or any part thereof,
and repossess the same, and expel Tenant and those claiming through or under Tenant, and remove
any personalty left by Tenant (or anyone claiming an interest by through or under Tenant) without
being deemed guilty of any manner of trespass, and without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach of covenant, and Landlord shall also have
the option, at any time, of terminating this Lease upon written notice to Tenant. In the event that
Landlord terminates this Lease or repossesses the Property due to an Event of Default, Tenant shall
(i) remain liable for all rental and other obligations accruing up to the date of such repossession or
termination, and (ii) be liable to landlord for all reasonable costs actually incurred in connection with
5
the repossession and re-Ietting of the Property (including, without limitation, reasonable attorneys'
and brokerage fees, and (iii) remain liable for the payment of all its Rent payable hereunder for the
balance of the unexpired term of this Lease. In addition, Landlord shall have all available remedies at
law or in equity in the event of Tenant's default.
8.2 Landlord's Default. If Landlord shall fail to perform or observe any of the
representations, covenants, provisions, or conditions contained in this Lease on its part to be
performed or observed, which default continues for a period of more than thirty (30) days after
receipt of written notice from Tenant specifying such default, Tenant may at its option (in aqdition to
all other rights and remedies provided Tenant at law, in equity or hereunder), terminate this Lease
upon written notice to Landlord.
Article 9: Miscellaneous Provisions
9.1 Notices from One Party to the Other. Any notice, request, demand, consent, approval
or other communication required or permitted under this Lease shall be in writing and shall be
deemed to have been given: (a) when delivered by reputable express mail courier service providing
confirmation of delivery (e.g. U.P.S. or Federal Express) to the address set forth below; or (b) on the
third (3rd) business day after being properly deposited in United States registered or certified mail,
return receipt requested, postage prepaid, and addressed as set forth below; or (c) the date any
delivery in the manner described in (a) or (b) above is refused. Either party hereto shall have the
right to change, at anytime, its address for notice as aforesaid upon at least ten (10) days prior written
notice thereof given to the other party. Addresses for notice are as follows:
IF TO LANDLORD:
Boynton Beach Community Redevelopment Agency
915 S. Federal Highway
Boynton Beach, Florida 33435
WITH A COPY TO:
Lewis, Longman & Walker, P.A.
Kenneth G. Spillias, Esq.
1700 Palm Beach Lakes Boulevard, Suite 1000
West Palm Beach, Florida 33401
IF TO TENANT:
Boynton Waterways Investment Associates, LLC
c/o Panther Real Estate Partners
333 S. Miami Avenue, Suite 150
Miami, Florida 33130
9.2 Brokerage Indemnities. Landlord and Tenant hereby represent and warrant, each to
the other, that they have not disclosed this Lease or the subject matter hereof to, and have not
otherwise dealt with, any broker, finder or any other person, firm, corporation or other legal entity so
6
as to create any legal right or claim of whatsoever kind or nature for a commission or similar fee or
compensation with respect to the Property or this Lease. Landlord and Tenant hereby indemnify
each other against, and agree to hold each other harmless from, any liability or claim (and all
expenses, including attorneys' fees, incurred defending any such claim or in enfqfcing this
indemnity) for a real estate brokerage commission or similar fee or compensation arisingout of or in
any way connected with any claimed dealings with the indemnitor and relating to the Property or this
Lease. The provisions of this Section shall survive the expiration or sooner termination of this
Lease.
9.3 Legal Expenses. If either party hereto defaults in the performance of any ofthe terms,
provisions, covenants and conditions of this Lease and by reason thereof, the other party employs an
attorney to enforce performance of the covenants or to perform any service based upon defaults, then
in any of said events, the prevailing party shall be entitled to reasonable attorney's fees and all
expenses and costs incurred by the prevailing party pertaining thereto and in enforcement of any
remedy, including appeal.
9.4 Miscellaneous. Should any provision of this Agreement prove to be invalid or illegal,
such invalidity or illegality shall in no way affect, impair or invalidate any other provision hereof,
and such remaining provisions shall remain in full force and effect. This Agreement is binding upon
the successors and assigns ofthe parties hereto and inures to the benefit of the permitted successors
and assigns. Time is of the essence with respect to the performance of every provision of this
Agreement in which time of performance is a factor. This Agreement incorporates the entire
agreement of the parties and may be amended only by a writing signed by the party to be charged.
9.5 Applicable Law and Construction This Lease shall be governed by and construed in
accordance with the laws of Florida. Venue for any action between the parties shall be in Palm
Beach County, Florida. There are no oral or written agreements between Landlord and Tenant
affecting this Lease. This Lease may be amended only by instruments in writing executed by
Landlord and Tenant. The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Lease.
9.6 No Construction Against Preparer. This Lease has been prepared by Tenant and its
professional advisors and reviewed and reviewed by Landlord and its professional advisors.
Landlord, Tenant and their separate advisors believe that this Lease is the product of their joint
efforts, that it expresses their agreement, and that it should not be interpreted in favor of either
Landlord or Tenant or against either Landlord or Tenant merely because of their efforts in its
preparation.
9.7 Binding Effect of Lease. The covenants, agreement and obligations herein contained,
except as herein otherwise specifically provided, shall extend to, bind and inure to the benefit ofthe
parties hereto and their respective heirs, personal representatives, administrators, successors and
aSSIgns.
9.8 Assignment/Subletting. Tenant shall have the right at any time, without the consent
of but with written notice to Landlord, to sublease or license the Property or portions thereof, or to
assign this Lease, to any entity under common control with Tenant. Any other sublease or
7
assignment shall require the prior written consent of Landlord, which shall not be unreasonably
withheld, conditioned or delayed.
9.9 Effect of Unavoidable Delays. If either party to this Lease, as the resulrof any (i)
strikes, lockouts or labor disputes, (ii) inability to obtain labor or materials or reasonable 'substitutes
therefor, (iii) acts of God, governmental action, condemnation, civil commotion, fire or other
casualty, or (iv) other conditions similar to those enumerated in this Section beyond the reasonable
control, other than financial, of the party obligated to perform, fails punctually to perform any
obligation on its part to be performed under this Lease, then such failure shall be excused ~d not be
a breach of this Lease by the party in question, but only to the extent occasioned by such event. If
any right or option of either party to take any action under or with respect to this Lease is conditioned
upon the same being exercised within any prescribed period of time or at or before a named date,
then such prescribed period oftime and such named date shall be deemed to be extended or delayed,
as the case may be, for a period equal to the period of the delay occasioned by any event described
above.
8
IN WITNESS WHEREOF, the parties have executed this instrument the day and year first above
written.
Witnesses:
LANDLORD:
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
/'
Name Printed:
By:
Its:
Date:
Name Printed:
TENANT:
Witnesses:
BOYNTON WATERWAYS
INVESTMENT ASSOCIATES, LLC,
a Florida limited liability company
Name Printed:
By: Panther Waterways, LLC, a Florida
limited liability company and its
Member
Name Printed:
By:
Its:
Date:
I :\Client DocumentSBoynton Beach CRA. \24 I 9-006\Misc\Lease to Boynton Waterways Investment Assoc.. DOC
9
WPB-FS I\596 I 14v02l052I74.0I0500
EXHIBIT A
PROPERTY DESCRIPTION
10
''"D' ~".'. ~qYNT2~ eRA
~-it',' ?:N...,
(~~'-'
~;J' A
iiIii East Side-West S.,de-Seaside RenaISsance
BOYNTON BEACH CRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF:
December 12, 2006
IX I Consent Agenda I
Old Business
New Business
Public Hearing
Other
SUBJECT:
Dive Shop Lease - Lynn Simmons
SUMMARY: At the CRA Board Meeting on October 25, 2006, Lynn Simmons addressed the CRA
Board under Public Comments about the expiring lease with the CRA. The CRA Board requested the
Executive Director make a concerted effort to work with the business owner during the renovation
process.
On November 2nd the Executive Director and CRA Counsel, Amy Dukes, met with Lynn Simmons and
her counsel to address concerns on both sides. We generally agreed to separate Ms. Simmons Dive Boat
Slip lease and her Dive Shop lease and are working toward that end. Ms. Simmons' counsel prepared an
initial draft lease for the Dive Shop and CRA staff is currently working through those issues at this time.
Staff hopes a lease will be forthcoming at the January meeting.
This interim lease will provide protections for the renovation period and provide an "out" clause for Ms.
Simmons to temporarily relocate her business during the construction period. Ms. Simmons agreed to
allow CRA staff and their professional services representatives to enter her premises in order to develop
a renovation plan to accommodate exterior public restrooms.
FISCAL IMPACT:
None.
RECO/MMENDA TIONS: None. Informational Only.
i
" . )
-1'~:~).~;'~"'uC.~;,,~:~
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T:\AGENDAS. CONSENT AGENDAS. MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2005 - 2006 Board
Meetings\05 12 13 CRA Board Meeting\Dive Shop Lease.doc
1~~qY~T2~ eRA
iiIi East Side-West Side-Seaside Renaissance
BOYNTON BEACH CRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF: December 12,2006
AGENDA ITEM:
I Consent Agenda
Old Business
New Business I X I
Public Hearing
Other
SUBJECT:
North General Building -Request for Relief from Land Development Regulations
and New Site Plan
SUMMARY: The proposed project is located at 1200 N. Federal Highway in Planning Area II of
the Federal Highway Community Redevelopment Plan. The proposed project will be used for general
and medical offices.
The requested relief from the Land Development Regulations is needed due to the shallow depth of the
lot. Many of the lots in the area at the west side ofN. Federal south of the C-69 canal are non-
conforming.
The applicant's site plan incorporates many elements of the Floribbean architectural style.
CRA Comments:
1. Reduce height of both masonry walls at Federal Highway frontage to 4'.
Applicant complied.
2. Substitute asphalt for decorative pavers at ingress and egress from line of
public sidewalk to line of masonry wall. Applicant complied.
3. Enhance main entry at east elevation. Applicant complied.
FISCAL IMPACT:
None.
RECOMMENDA TIONS:
Approve the applicant's request for relief from the City of Boynton Beach Land Development
Regulations, Chapter 2, Zoning, Section 6.D.3 for a variance of 18 feet for lot depth.
nt's request for a new site plan NWSP 07-001 with no additional conditions.
VIvian L. Broo s
CRA Planning Director
T:\AGENDAS, CONSENT AGENDAS. MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2006-2007 Board
Meetings\06 12 14 CRA Board Meeting - December\North General Bldg..doc
TO:
THRU:
FROM:
DATE:
PROJECT NAME/NO:
REQUEST:
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 06 - 212
STAFF REPORT
Chair and Members
Planning and!e~~me~t Board
Michael Rump~
Planning and Zoning Director
Gabriel Wuebben t ~
Planner ~
November 28, 2006
North General Building / NWSP 07 - 001
New Site Plan
PROJECT DESCRIPTION
Property Owner:
Applicant/ Agent:
Location:
Dr. Jean Renelien of United Medical Enterprises, Inc.
Roy Dunworth of Dunworth Construction, Inc.
West side of N. Federal Highway; South of the C-16 Canal (see
Exhibit "A" - Location Map)
Existing Land Use/Zoning:
General Commercial (GC) / General Commercial (C-4)
Proposed Land Use/Zoning:
Proposed Use:
Acreage:
Adjacent Uses:
North:
South:
East:
West:
No change proposed
Request site plan approval for a two-story, 3,990 square foot office
building and related site improvements on a 14,177 square foot
parcel.
0.326 acres (14,177)
Developed commercial property (U-Haul), zoned C-4, and farther north the C-16
canal;
Developed commercial property (Platinum Showgirls), zoned C-4, and farther south
general commercial zoned C-4;
N. Federal Highway right-of-way, and father east developed commercial
property, zoned C-4; and
The F.E.C. Railroad, and father west residential properties zoned, R-2.
Staff Report - North General Building (NWSP 07-001)
Memorandum No PZ 06-212
Page 2
Site Characteristic: The subject parcel is a relatively rectangular piece of land approximately 166 feet
long with the width tapering from approximately 88 feet to 82 feet. The parcel
fronts on the west side of N. Federal Highway, one parcel south of the (-16 canal,
and backs up to the F.E.C. Railroad.
BACKGROUND
Proposal:
Dr. Jean Renelien proposes to construct a two-story, 3,990 square foot office
building with 18 parking spaces.
ANALYSIS
Concurrency:
Traffic: A traffic concurrency approval letter has not yet been received from Palm Beach
County Traffic Engineering. No permits will be issued until this letter is received by
the City of Boynton Beach (see Exhibit "c" - Conditions of Approval).
Drainage: Conceptual drainage information was provided for the City's review. The
Engineering Division has found the conceptual information for the subject property
to be adequate and is recommending that the review of specific drainage solutions
be deferred until time of permit review (see Exhibit "c" - Conditions of Approval).
School: This project is exempt from the school concurrency requirements of Palm Beach
County.
Driveways: The subject property fronts on N. Federal Highway. Proposed on-site circulation is
one-way, and consists of a single entrance at the northern end of the parcel
(accommodating southbound Federal Highway traffic), and a single exit at the
southern end. The driveway maintains a width of twenty-two (22) feet throughout
the development. Eighteen (18) parking spaces would be available (including two
handicapped spaces), which are diagonally positioned around the exterior
boundaries of the site. The single exit returns traffic to southbound N. Federal
highway. The circulation pattern has been reviewed and endorsed by engineering
for ease of waste removal and emergency access purposes.
Parking Facility: Parking required for this type of facility is based on two formulas. The first floor
consists of medical offices, and therefore requires one (1) parking space per 200
square feet of office space, for a total of ten (10) parking spaces. The second floor
consists of general offices, and therefore requires one (1) parking space per 300
square feet of office space, for a total of eight (8) parking spaces. Typical parking
spaces are 9 feet in width, and an unspecified length (the length to be specified,
see Exhibit "c" - Conditions of Approval). The handicapped spaces are twelve (12)
feet in width, and twenty (20) feet in length, with the required five (5) foot band of
striping. Pedestrian walks will be constructed of paver stones, to act as a means of
identifying appropriate pedestrian walkways, calm traffic, and enhance the
aesthetics of the parking area. The plan as designed accommodates 18 parking
Staff Report - North General Building (NWSP 07-001)
Memorandum No PZ 06-212
Page 3
spaces, including 2 handicap spaces, and has been reviewed by staff of the
Engineering Division for accessibility to waste removal and emergency vehicles.
Landscaping: The proposed pervious or "green" area of the lot would be 3,273 square feet or
23% of the total site. The landscape plan tabular data (Exhibit B) indicates that 20
trees, 8 palms and 947 shrubs and groundcover are being provided. Typical trees
being utilized in the planting scheme includes Live Oak and Bougainvillea, along
with Christmas, Foxtail, and Silver Bismark palms. Shrub materials selected for the
site include Cocoplum, Podocarpus, Indian Hawthorne, and Scheffiera Arboricola.
Two signature trees (Bougainvillea) are proposed to be planted at the entrance.
Approximately 53% of the proposed trees are native. 40% of the shrubs and
groundcover are currently depicted as native, inadequate in comparison with the
required 50% which will be necessary at time of permitting (see Exhibit "C" -
Conditions of Approval). The proposed buffers meet code regulations and are
consistent with surrounding sites. Decorative walls will front Federal highway,
along with decorative gates that will be opened throughout daytime hours and
closed in the evening. A typical six (6) foot fence will surround the development on
the northern, western, and southern boundaries.
Building and Site: Building and site regulations will be fully met when staff comments are
incorporated into the permit drawings. The proposed two-story office building
would have a typical roof height of 36 feet -3 inches, measured to the top of the
highest gabled roof. The roof reaches a height of 34 feet -5 inches, measured at
the mean height between the fascia and peak. The maximum allowed height in the
C-4 zoning district is 45 feet. The building has been brought forward to a five (5)
foot setback in conformance with the requirements of the Urban Commercial
District Overlay Zone.
Design: The color rendering indicates that the building would be designed as a
contemporary office building with details of the Key West/Floribbean style
consistent with adjacent Heart of Boynton Redevelopment area. Sheet A4 provides
an illustration of the building facades, with a stucco finish, score lines, banding
around the recessed windows, decorative trims and moldings, "bahama"-type
shutters, and a standing seam metal roof. The first and second floors of the
building and accent trim would be painted a brighter yellow (Porter Paints - "Sun
Amber" L6l72-4). The accent trim color is proposed to be painted a creamy beige
(Porter Paints - "White Gold" T690l-l). The roof of the building is proposed to be
painted a deep green (Porter Paints - "Dublin Delight" 06311-5). The building
style, materials and colors are compatible with surrounding development.
Signage: The site signage, according to Sheet Al, will consist of a monument sign four (4)
feet tall at the top of the support column, designed to compliment various
components of the building. The sign as proposed complies with code regulations,
which allow a maximum height of five (5) feet. The sign will follow the overall
design characteristics of the building, including scoring, banding, materials and
colors. The tenant lettering on the sign is designed to be consistent for any and all
tenants the applicant is working with.
Staff Report - North General Building (NWSP 07-001)
Memorandum No PZ 06-212
Page 4
Public Art:
The applicant is required to demonstrate compliance with the newly adopted
requirement for developments to provide public art work (see Exhibit "C" -
Conditions of Approval). A water feature is proposed at the northern end of the
building, just south of the entrance driveway. The artwork will enhance the
ambiance of the proposed development. Ultimate review and approval of the artist
and type of artwork is still pending by the Arts Commission.
RECOMMENDATION:
Staff has reviewed this request for new site plan approval. Staff recommends approval, contingent upon
all comments indicated in Exhibit "C" - Conditions of Approval. Staff 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.
S:\Planning\SHARED\WP\PROJEcrS\North General Center of Medicine\North General Building Staff Report.doc
Exhibit "A" - North General Building
Location Map
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EXHIBIT "e"
Conditions of Approval
Project name: North General Center of Medicine
File number: NWSP 07-001
Reference:
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS - Solid Waste
Comments: NONE
PUBLIC WORKS - Forestry & Grounds
Comments:
I. Show sight triangles on the Landscape plans (LDR, Chapter 7.5, Article II,
Section 5.H.) Reference FOOT Standard Index 546 for the sight triangles
along Federal Highway. Please note that the ten (10) foot sight triangles
shown on the plans are not applied correctlv.
2. Plantings and structures (proposed rolling gate and art feature) are shown on
the Landscape plan that will likely fall within the clear zones of the sight
triangles. The LDR, Chapter 7.5, Article II, Section 5.H states that there
shall be unobstructed cross-visibility at a level between 2..5 feet and 8 feet
above the pavement. Revise plan to provide adequate sight distance so that
drivers leaving the site can identify pedestrians and traffic in a timely
manner.
PUBLIC WORKS-Traffic
Comments:
3. Provide a traffic analysis and notice of concurrency (Traffic Perfonnance
Standards Review) from Palm Beach County Traffic Engineering.
4. Relocate stop bar at the south driveway to back of the sidewalk.
ENGINEERING
Comments:
5. All comments requiring changes and/or corrections to the plans shall be
reflected on all appropriate sheets.
6. Please note that changes or revisions to these plans may generate additional
comments. Acceptance of these plans during the Technical Advisory
Review Team (TART) process does not ensure that additional comments
mav not be generated bv the Commission and at pennit review.
7. Sidewalks adjacent to oarking lots shall be continuous through all drivewavs
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12/05/06
2
DEPARTMENTS INCLUDE REJECT
and shall be 6 m. thick within driveways (LOR, Chapter 23, Article II,
Section P).
8. Specify storm sewer diameters, inlets types, etc. on drainage plan. Indicate
grate, rim and invert elevations for all structures. Indicate grade of storm
sewer segments. Indicate material specifications for storm sewer.
9. Full drainage plans, including drainage calculations, in accordance with the
LOR, Chapter 6, Article IV, Section 5 will be required at the time of
permitting.
10. The stormwater system in Federal Hwy does not belong to the City of
Boynton Beach as stated in the engineer's Drainage Statement. Provide
written documentation that the FOOT will permit the on-site storm water
system to outfall into the Federal Hwy storm sewer system.
]1. Paving, drainage and site details will not be reviewed for construction
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:
]2. All utility easements and utility lines shall be shown on the site plan and
landscape plans (as well as the Water and Sewer Plans) so that we may
determine which appurtenances, trees or shrubbery may interfere with
utilities. In general, palm trees will be the only tree species allowed within
utility easements. Canopy trees may be planted outside of the easement so
that roots and branches will not impact those utilities within the easement in
the foreseeable future. The LOR, Chapter 7.5, Article I, Section] 8.] gives
public utilities the authority to remove any trees that may interfere with
utility services, either in utility easements or public rights-of-way. NOTE:
The proposed sanitary sewer is shown directly under Live Oaks. The Live
Oaks and other canopy trees will not be permitted within any utility
easements. Adjust the landscape plan accordingly.
]3. Palm Beach County Health Department permits will be required for the
water and sewer systems serving this project (CODE, Section 26-] 2).
Please note that our utility atlas maps show that the closest sanitary gravity
sewer is located on the west of the FECRR right-of-way.
14. Fire flow calculations will be req u ired demonstrating the City Code
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 LOR, Chapter 6, Article IV,
Section ]6, or the requirement imposed by insurance underwriters,
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] 2/05/06
3
DEPARTMENTS INCLUDE REJECT
whichever is greater (CODE, Section 26-16(b )).
IS. The LDR, Chapter 6, Article IV, Section 16 requires that all points on each
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.
16. The CODE, Section 26-34(E) requires that a capacity reservation fee be
paid for this project either upon the request for the Department's signature
on the Health Department application fonns or within seven (7) days of site
plan approval, whichever occurs first. This fee will be detennined based
upon final meter size, or expected demand.
17. Water and sewer lines to be owned and operated by the City shall be
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).
18. This office will not require surety for installation of the water and sewer
utilities, on condition that the systems be fully completed, and given to the
City Utilities Department before the first pennanent meter is set. Note that
setting of a pennanent water meter is a prerequisite to obtaining the
Certificate of Occupancy.
19. A building pennit for this project shall not be issued until this Department
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. Appropriate backflow preventer(s) will be required on the domestic water
service to the building, and the fire sprinkler line if there is one, in
accordance with the CODE, Section 26-207.
21. Insufficient infonnation has been provided to detennine if the proposed
sanitary sewer extension is feasible. Provide complete plans including all
off-site work required, with details and any applicable Health Dept.
applications for review and approval at the time of pennitting. It is the sole
responsibility of the developer to provide infrastructure improvements
required to support this proposed project.
22. Sanitary sewer shall not be placed within the FEC RR right-of-way without
the consent of the City of Boynton Beach.
23. Utility construction details will not be reviewed for construction
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)
and will be reviewed at the time of construction pennit application.
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12/05/06
4
DEPARTMENTS INCLUDE REJECT
FIRE
Comments: NONE
POLICE
Comments: NONE
BUILDING DIVISION
Comments:
24. Please note that changes or revisions to these plans may generate additional
comments. Acceptance of these plans during the TART (Technical
Advisory Review Team) process does not ensure that additional comments
may not be generated by the commission and at pennit review.
25. Buildings, structures and parts thereof shall be designed to withstand the
minimum wind loads of 140 mph. Wind forces on every building or
structure shall be detennined by the provisions of ASCE 7, Chapter 6, and
the provisions of 2004 FBC, Section 1609 (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 penn it application.
26. At time of penn it review, submit signed and sealed working drawings of the
proposed construction.
27. IdentifY within the site data the finish floor elevation (lowest floor elevation)
that is proposed for the building. VerifY that the proposed elevation is in
compliance with regulations of the code by adding specifications to the site
data that address the following issues:
a. The design professional-of-record for the project shall add the following
text to the site data. "The proposed finish floor elevation _' _ NGVD is
above the highest 100-year base flood elevation applicable to the building
site, as detennined by the SFWMD's surface water management
construction development regulations."
b. From the FIRM map, identifY in the site data the title of the flood zone that
the building is located within. Where applicable, specifY the base flood
elevation. If there is no base flood elevation, indicate that on the plans.
c. IdentifY the floor elevation that the design professional has established for
the building within the footprint of the building that is shown on the
drawings titled site plan, floor plan and paving/drainage (civil plans).
28. CBBCPP 3.C.3.4 requires the conservation of potable water. City water may
not, therefore, be used for landscape irrigation where other sources are
readily available.
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12/05/06
5
DEPARTMENTS INCLUDE REJECT
29. A water-use permit from SFWMD is required for an irrigation system that 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.
30. If capital facility fees (water and sewer) are paid in advance to the City of
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.
b. The total amount paid and itemized into how much is for water and how
much is for sewer.
(CBBCO, Chapter 26, Article ll, Sections 26-34)
31. 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. Pursuant to approval by the City Commission and all other outside agencies, 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.
33. The full address of the project shall be submitted with the construction
documents at the time of permit application submittal. The addressing plan
shall be approved by the United States Post Office, the City of Boynton
Beach Fire Department, the City's GIS Division, and the Palm Beach
County Emergency 911.
a. Palm Beach County Planning, Zoning & Building Division, 100
Australian Avenue, West Palm Beach, Florida (Sean McDonald -
561-233-5013)
b. United States Post Office, Boynton Beach (Michelle Bullard - 56 I -734-0872)
PARKS AND RECREA nON
Comments:
34. Percentage of native species in landscape plan must exceed the City's 50%
requirement.
35. Need to provide an elevation section indicating the height of the planted
material to the height of the building.
FORESTER/ENVIRONMENT ALIST
Comments:
COA
12/05/06
6
DEPARTMENTS INCLUDE REJECT
Existine: Tree Manae:ement PlanSheet LP
36. The Landscape Architect should tabulate the total diameter inches of existing trees
(if applicable) on the site. The tabular data should show the individual species of
trees proposed to be preserved in place, relocated or removed and replaced on site.
The replacement trees should be shown by a separate symbol on the landscape plan
sheet LP. [Environmental Regulations, Chapter 7.5, Article I Sec. 7.D.p. 2.]
Plant List Sheet LP
37. All shade trees must be listed in the description as a minimum of 12' -14'
height, 3" DBH (4.5' off the ground) not caliper. The height of the trees
may be larger than 12'-14' to meet the 3" diameter requirement; or any clear
trunk (c.t.) specifications. [Environmental Regulations, Chapter 7.5, Article
II Sec. 5.C. 2.]
38. The landscape design does not include the City signature trees (Tibochina
granulosa) at the ingress / egress areas to the site. These trees must meet the
minimum sIze specifications for trees. [Environmental Regulations,
Chapter 7.5, Article II Sec. 5.C.3.N.]
39. All trees proposed under any existing overhead electric power lines must
meet the FP & L Right tree in the Right Place manual selection for small
trees only.
40. The shade tree planting detail should include a line indicating where the
diameter, height and clear trunk of all of the shade trees will be measured at
time of planting and inspection.
41. The palm tree planting detail should include a line indicating where the grey
wood and height of all of the palm trees will be measured at time of planting
and inspection.
42. The landscape sheet should include a shrub and groundcover planting
detail. This detail should include a line indicating where the height and
spread of the shrubs and groundcover plants will be measured at time of
planting and inspection.
43. The applicant should show an elevation cross-section detail of the actual
heights of the proposed landscape trees and vegetation at the time of
planting to (proper scale) visually buffer the proposed buildings and parking
lot from the Federal Highway road right-of-way.
44. The sod areas shown in the interior parking lot islands should be changed to
dwarf shrubs and ground cover plants.
Irrie:ation Plan
45. Turf and landscape (bedding plants) areas should be designed on separate
zones and time duration for water conservation.
COA
12/05/06
7
DEPARTMENTS INCLUDE REJECT
46. Trees should have separate irrigation bubblers to provide water directly to
the root ball. [Environmental Regulations, Chapter 7.5, Article II Sec. 5.
C.2.1
PLANNING AND ZONING
Comments:
47. A traffic statement and/or if applicable, a traffic study must be submitted
with this application.
48. Provide typical dimensions and striping detail of standard and handicapped
parking spaces. Provide typical dimensions of tenninal islands, landscaped
islands, and wheel stops.
49. The art/water feature at the north end of the building should be properly
landscaped and lighted.
50. Plant taller palm trees (up to approximately one-half the height of the
building), as well as a greater number to adequately buffer the building.
5\. In keeping with the Urban Design Guidelines, any windows facing the R-O-
W should be recessed a minimum offour (4) inches.
MWR/sc
S\Planning\SHARED\WP\PROJECTS\North General Center of Medicine\COAdoc
DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA
PROJECT NAME:
North General Building
APPLICANT:
Roy Dunworth - Dunworth Construction Inc.
AGENT'S ADDRESS:
625 SW Salerno Road, Stuart, FL 34997
DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION:
January 2, 2007
TYPE OF RELIEF SOUGHT: Request site plan approval for a two-story, 3,990 square foot office
building and related site improvements on a 14,177 square foot
parcel.
LOCATION OF PROPERTY: West side of Federal Highway; South of the C-16 canal
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
X 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
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DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 06-210
STAFF REPORT
TO:
Chair and Members
Planning & Devel~p,~ ~oard and City Commission
Michael W. Rumpf~
Planning and Zoning Director
THRU:
FROM:
Gabriel Wuebben I tr0
Planner q:
DATE:
November 22, 2006
PROJECT NAME/NO:
North General Building/ ZNCV 07-002
REQUEST:
Request for relief from the City of Boynton Beach Land Development Regulations, Chapter 2,
Zoning, Section 6.D.3., requiring a minimum lot depth of 100 feet to allow a variance of 18
feet, and a minimum lot depth of approximately 82 +/- feet for a proposed office development
within the General Commercial (C-4) zoning district.
PROJECT DESCRIPTION
Property Owner:
Dr. Jean Renelien
Applicant/ Agent:
Roy Dunworth - Dunworth Construction Inc.
Location:
West side of Federal Highway; South of the C-16 canal
Acreage:
Approximately 14,177 square feet (0.326 acres)
Proposed Use:
Office
Zoning District:
General Commercial (C-4)
Adjacent Uses:
North:
Developed commercial property (U-Haul), zoned C-4, and farther north the C-16
canal;
South:
Developed commercial property (Platinum Showgirls), zoned C-4, and farther south
general comercial zoned C-4;
East:
N. Federal Highway right-of-way, and father east developed commercial property,
zoned C-4; and
West:
The F.E.C. railroad, and father west residential properties zoned, R-2.
Memorandum No PZ-06-210
Page 2
BACKGROUND
The subject property is currently an undeveloped lot located on the west side of N. Federal Highway, one (1)
lot south of the C-16 canal (see Location Map - Exhibit "A"). The parcel, zoned C-4, was platted in 1950 as
part of the Wilms Way subdivision. The contours of this and immdiately surrounding parcels have remained
unchanged since the original platting. However, parcels further east have been altered.
The applicant is requesting a variance to the minimum lot depth requirement of 100 feet in order to construct
a two-story office building of approximately 3,990 square feet. The subject property complies with all other
C-4 requirements (see Survey - Exhibit "6"). The applicant will comply with all other minimum requirements
of the C-4 regulations as well as setback requirements of the Urban Commercial District Overlay Zone, as
indicated below:
C-4 Minimum Requirements Applicant's Prooosal
. Lot area: 5,000 square feet . Lot area: 14,177 square feet
. Lot frontage: 50' . Lot frontage: 165.9' (measured)
. Front setback: 5' to 15' . Front setback: 5'
. Rear setback: 20' . Rear setback: 47' 1"
. Side setbacks: 0' to 15' . Side setbacks: 46' 7", 45' 9"
. Maximum lot coverage: 40% . Maximum lot coverage: 15.9%
. Maximum structure height: 45' . Maximum structure height: 36' 3"
ANALYSIS
Staff reviewed the requested variance focusing on the applicant's response to criteria a - g below (see
Exhibit "C"). 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.
The subject property measures 82 feet deep and therefore is considered a non-conforming lot
because it does not meet the minimum C-4 zoning district regulations for construction of a commercial
structure. The applicant is required to obtain a variance to the minimum lot depth of 100 feet in the
C-4 zoning district in order to build on the lot. The lot was platted prior to adoption of contemporary
zoning regulations, which expanded the minimum lot depth thus forcing the parcel into
nonconformance. The lot was platted as a long narrow parcel, edged in between the F.E.C railroad
and the Federal highway right-of-way.
b. That the special conditions and circumstances do not result from the actions of the applicant.
In 1975, the City adopted new zoning regulations, which caused many parcels to become legally non-
conforming, including several in the Wilms Way subdivision. The Land Development Regulations set
forth the minimum requirements for the development of a lot. The typical lots (to the east of Federal
Highway), both as originally platted and as altered, conform to contemporary lot depth requirements.
The two parcels to the west ,of the highway (including the subject parcel) both fail to satisfy the
Memorandum No PZ-06-210
Page 3
minimum lot depth as a result of the change in the ordinance. Additionally, the applicant is unable to
purchase additional property to conform with minimum lot depths, as the property abuts Federal
Highway to the east and the F.E.C. Railway to the west.
c. ,",at granting of 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.
The granting of this variance confers upon the owner the ability to develop the parcel according to all
regulations applying to parcels within the (-4 zoning designation. The parcel conforms with all other
lot requirements as set forth in the zoning ordinance.
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
The Wilms Way plat contains at least two substandard parcels when compared to current regulations.
The subject property has 165.9 feet of lot frontage and more than 14,177 square feet of lot area, but
no longer fulfills the minimum lot depth requirement and therefore may not be developed under the
provisions for nonconforming lots. Literal interpretation of this criteria would deprive the applicant the
right to develop the property.
e. ,",at the variance granted is the minimum variance that will make possible the reasonable use of the
lancf, building, or structure.
The proposed office building will meet or exceed all other (-4 requirements such as setbacks,
maximum lot coverage, and building height. The subject property is in fact a larger lot (14,177
square feet) than required by (-4 regulations (5,000 square feet). Without the requested variance,
the applicant will not have reasonable use of the land.
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.
The Wilms Way plat includes at least two substandard lots by current regulations. The other lot has
previously been constructed upon. Approval of the subject variance would not represent a further
reduction in the minimum development standards, and will provide a positive contribution to the
economic value of the area and tax base for the city.
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 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.
The properties on either side of the applicant's parcel are already developed as a railroad right-of-way
and a state road right-of-way, leaving the applicant with no ability to add to the depth of his lot.
Memorandum No PZ-06-21 0
Page 4
RECOMMENDATION
Staff recommends approval of the requested variance based on findings of hardship. Staff concurs with the
applicant that special conditions and circumstances exist that are not the result of actions by the applicant.
This request will not be injurious or detrimental to the area, and the variance requested is the minimum
necessary to make possible the reasonable use of the land. The construction of a modern office building on
the subject lot, representing reasonable use of the land, can be accommodated and still meet all of the
minimum development regulations for the C-4 zoning district and be compatable with the surrounding
properties.
No conditions of approval are recommended; however, any conditions of approval added by the eRA Board or
the City Commission will be placed in Exhibit "D" - Conditions of Approval.
S:\Planning\SHARED\WP\PROJECTS\North General Center of Medicine\ZNCV\North General Building ZNCV Staff Report.doc
Exhibit "A" - North General Building
Location Map
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EXHIBIT "e"
Conditions of Approval
Project name: North General Building
File number: ZNCY 07-002
Reference:
DEPARTMENTS INCLUDE REJECT
PUBLIC WORKS - General
Comments: None
PUBLIC WORKS - Traffic
Comments: None
UTILITIES
Comments: None
FIRE
Comments: None
POLICE
Comments: None
ENGINEERING DIVISION
Comments: None
BUILDING DIVISION
Comments: None
PARKS AND RECREATION
Comments: None
FORESTER/ENVIRONMENT ALIST
Comments: None
PLANNING AND ZONING
Comments: None
North General Building ZNCV 07-002
Conditions of Approval
2
Page
DEPARTMENTS INCLUDE REJECT
ADDITIONAL COMMUNITY REDEVELOPMENT AGENCY BOARD
CONDITIONS
Comments:
None
ADDITIONAL CITY COMMISSION CONDITIONS
Comments:
To be detennined.
S\Planning\SHAREDlWP\PROJECTS\North General Center of Medicine\ZNCV\COAdoc
DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA
PROJECT NAME:
North General Building
APPLICANT:
Roy Dunworth - Dunworth Construction Inc.
AGENT'S ADDRESS:
625 SW Salerno Road, Stuart, FL 34997
DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION:
January 2, 2007
TYPE OF RELIEF SOUGHT: Request for relief from the City of Boynton Beach Land Development
Regulations, Chapter 2, Zoning, Section 6.0.3., requiring a minimum
lot depth of 100 feet to allow a variance of 18 feet, and a minimum lot
depth of approximately 82 +/- feet for a proposed office development
within the General Commercial (C-4) zoning district.
LOCATION OF PROPERTY: West side of Federal Highway; South of the C-16 canal
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
X 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\North General Center of Medicine\ZNCV\DO,doc
11~~Y~T2~ eRA
III East Side-West Side-Seaside RenaISsance
BOYNTON BEACH eRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF:
December 12, 2006
AGENDA ITEM:
I I Consent Agenda
Old Business
New Business I X I
Public Hearing
Other
SUBJECT:
Chow Hut Request for a One Year Site Plan Time Extension
SUMMARY: The applicant is seeking a Site Plan Time Extension for one year until November
1,2007. The applicant states that the project is moving forward but has lost time due to the factors
beyond their control.
FISCAL IMP ACT:
None
RECOMMENDA TIONS:
nts request for a one year extension of site plan MSPM 05-007
ViVian L. Brooks
CRA Planning Director
TIAGENDAS, CONSENT AGENDAS. MONTHLY REPORTS\CRA Agenda Request Form with New Logo - July 2006,doc
TO:
THRU:
FROM:
DATE:
PROJECT:
REQUEST:
DEVELOPMENT DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. PZ 06-213
Chair and Members
Community Redevelopment Agency Board
Michael RumPf~
Director of Planning and Zoning
Kathleen Zeitler ~
Planner
December 5, 2006
Chow Hut (SPTE 06-014)
Site Plan lime Extension
Property Owner:
Applicant I Agent:
Location:
Existing Land Use:
Existing Zoning:
Proposed Land Use:
Proposed Zoning:
Proposed Uses:
Acreage:
Adjacent Uses:
North:
South:
East:
West:
PROJECT DESCRIPTION
558 Gateway Boulevard, LLC
Mr. Anthony J. Mauro
558 East Gateway Boulevard (see Location Map - Exhibit "Air)
Local Retail Commercial (LRC)
Neighborhood Commercial (C-2)
No change proposed
No change proposed
Take Out Restaurant with Outdoor Seating
0.18 acre (8,057 square feet)
Right-of-way for Gateway Boulevard, and further north The Crossings at Boynton
Beach zoned Planned Unit Development (PUD) with single-family attached residential
units;
Northeast 21s1 Avenue, and further (SE) Boynton-Hypoluxo Animal Clinic zoned C-2,
and (SW) VFW Post 5335 zoned R-3;
BMT Discount Beverage store zoned C-2; and
Coin Laundry self-serve laundromat zoned C-2.
Page 2
Memorandum No. PZ 06-213
Chow Hut SPTE 06-014
BACKGROUND
Mr. Anthony Mauro with 558 Gateway Boulevard, LLC (owner/developer) is requesting a one (i)-year site
plan time extension for The Chow Hut Major Site Plan Modification Development Order (05-007), which was
approved by the City Commission on November 1, 2005. The site plan approval is valid for one (1) year from
the date of approval. If this request for a one (i)-year time extension were approved, the expiration date of
this site plan would be extended to November 1, 2007.
The subject property is located within the Federal Highway Corridor Community Redevelopment Plan Study
Area 1. According to the staff report for the approved major site plan modification (MSPM 05-007), the
proposed Chow Hut is a redevelopment project approved for a 2,548 square foot take-out restaurant with
outdoor seating (1300 sf enclosed building, 1248 sf under roof for outdoor dining, no drive-through window
or indoor seating proposed). The project includes construction of an additional 598 square feet of enclosed
building area to the existing structure of 702 square feet, for a total enclosed building area of 1300 square
feet. The building addition of 598 square feet includes a freezer/cooler room, public handicap accessible
restrooms, kitchen storage area, and ice cream counter. Also, new covered outdoor dining areas under
thatched chickee huts are proposed on each side of the building, with a maximum of 32 seats (including
service bar area).
The Chow Hut, advertising with on site signage as specializing in gourmet comfort food, is proposed to be
open for breakfast, lunch, dinner, and "late late" night meals. A service bar is included within the outdoor
dining area, however, the applicant has indicated that the majority of sales (90%) will be from food, not
alcoholic beverages. The applicant has indicated that there will not be any amplified music played indoors or
outdoors. The site is currently nonconforming to landscaping and ADA requirements. The proposed site
improvements will bring the site up to Code as much as possible by adding architectural interest to the
building, parking designated for handicap use, public restrooms which are handicap accessible, a screened
dumpster with enclosure to match the building color, and landscaping where feasible.
ANALYSIS
According to Chapter 4, Section 5 of the Land Development Regulations, "the applicant shall have one (1)
year to secure a building permit from the Development Department". Examples of building permits include
but are not limited to the following: Plumbing, electrical, mechanical, foundation, and structural. The
Regulations authorize the City Commission to approve site plan time extensions up to one (1) year, provided
that the applicant files the request prior to the expiration date of the development order. In this case, the
applicant has met that requirement. The Planning & Zoning Division received the application for time
extension on September 28, 2006, prior to the expiration date of the site plan.
According to the justification submitted for the requested time extension (see Exhibit "B"), the applicant
explains that (1) they spent a great deal of time with restaurant consultants and kitchen designers over the
last year reviewing and modifying the kitchen layout and service area to efficiently handle the extensive
menu, and (2) the original kitchen designer that they hired for the project was unable to fulfill his obligation,
which resulted in investing nearly six months in a design that ultimately was not able to handle their needs.
The following accomplishment demonstrates their "good faith" effort in moving forward with the project:
their purchase of a coal fire pizza oven which will be the centerpiece of the kitchen. In addition, the
justification explains that other properties they own suffered extensive damage from Hurricane Wilma which
required their attention for repair and restoration.
Page 3
Memorandum No. PZ 06-213
Chow Hut SPTE 06-014
A more formal criterion for evaluating requests for time extensions is compliance with (traffic) concurrency
requirements. The Palm Beach County Traffic Division approved the traffic study for this project based on the
previously proposed total of 2,420 square feet of restaurant area under roof. The traffic concurrency
approval included a restriction that no building permits are to be issued for the project after the build-out
date of 2006. Prior to public hearing approval, the plans were revised from 2,420 square feet to 2,548
square feet (1300 sf enclosed building, 1248 sf under roof for outdoor dining). A condition of site plan
approval requires the applicant to obtain a revised traffic concurrency approval for the additional 128 square
feet proposed. The revised traffic concurrency approval will also include an updated project build out date, to
coincide with the site plan time extension schedule.
The site plan time extension is still subject to the original 26 conditions of the major site plan modification
approval. Lastly, no new land development regulations are now in place against which the project should be
reviewed and modified. As for application of the Art in Public Places ordinance, site plan approval occurred
prior to adoption of Ordinance 05-060.
SUMMARY I RECOMMENDATION
Staff recommends approval of this request for a one (l)-year time extension of the site plan (MSPM 05-007) for
The Chow Hut project. If this request for extension were approved, the expiration of this site plan would be
extended to November 1, 2007. Staff is generally in favor of the redevelopment efforts represented by the
approved site plan, which serves to promote the goals of the Community Redevelopment Agency and the
Federal Highway Corridor Community Redevelopment Plan for this area and provide economic revitalization.
The proposed Chow Hut project will provide an opportunity for redevelopment in a highly visible entrance
corridor to the City, increase the value of adjacent and nearby properties, and contribute to the overall
economic development of the City. If this request for site plan time extension is approved, all outstanding
conditions of approval from the major site plan modification approval must still be satisfactorily addressed
during the building permit process. Any additional conditions recommended by the Board or City Commission
shall be documented accordingly in the Conditions of Approval (see Exhibit "C").
S:\Planning\SHARED\WP\PROJECTS\Chow Hut\SPTE 06-014\Staff Report.doc
LOCATION MAP
Chow Hut
Exhibit A
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EXHIBIT "B"
Chow Hut
558 Gateway Blvd.
Boynton Beach, FL 33435
i i L!.
lJlJ I DEe - 12006
PLANNING AND -.-..
ZONING DfPr
)
November 30, 2006
The City of Boynton Beach
Development Department
Planning and Zoning Division
100 E. Boynton Beach Boulevard
P.O. Box 310
Boynton Beach, Florida 33483
RE: Chow Hut
File No: MSPM 05-007
Location: 558 NE 220d Ave (Gateway Boulevard)
Dear CRA and Commission Members,
We respectfully request a one year extension to our site plan modification approval. My
Partner Doug Peters and I have spent a great deal of time with restaurant consultants and
kitchen designers over the last year reviewing and modifying our kitchen layout and
service area to efficiently handle our extensive menu. Our original kitchen design
professional that was hired for the project was unable to fulfill his obligation. We
invested nearly six months in a design that ultimately was not able to handle our needs.
Recently, with the help of a great design firm we completed our kitchen layout. Since the
finalization we have had the opportunity to purchase a coal fire pizza oven which will be
the centerpiece of the kitchen. Like the pizza oven each aspect of this project requires a
great deal of research and planning. However we are confident that this effort will help
ensure our long term success.
Unfortunately, my partner and I suffered a substantial amount of damage to our other
properties and businesses following the untimely arrival of hurricane Wilma. We were
forced to shift our focus to the repair and restoration of the losses that we incurred.
However, we were able to walk away from the experience with a great deal of knowledge
that we will use to improve our construction and hurricane preparedness to allow the
Chow Hut to reopen quickly after a disaster. The key to having a successful restaurant is
proper planning and we feel very confident that our plans and specifications are very
close to where they need to be.
As requested, we will also be revising the pages of our approved site plan to incorporate
all conditions of approval as applicable. A copy of the Development Order, including
these conditions, will accompany the submission of the fully amended site plan set. We
will also include all documents and third party letters listed in the conditions approval
that nee be submitted with our permit package.
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BOYNTON BEACH. Fl .
EXHIBIT "C"
Conditions of Approval
Project name: The Chow Hut
File number: SPTE 06-014
Reference:
DEPARTMENTS INCLUDE REJE.s:]
PUBLIC WORKS- General
Comments: None
PUBLIC WORKS- Traffic
Comments: None
UTILITIES
Comments: None
FIRE
Comments: None
POLICE
Comments: None
ENGINEERING DIVISION
Comments: None
BUILDING DIVISION
Comments: None
PARKS AND RECREATION
Comments: None
FORESTERJENVIRONMENT ALIST
Comments: None
PLANNING AND ZONING
Comments:
1. The site plan time extension shall be subject to all previous Conditions of
Approval.
Conditions of Approval
2
I DEPARTMENTS I INCLUDE I REJECT I
ADDITIONAL COMMUNITY REDEVELOPMENT
AGENCY BOARD CONDITIONS
Comments:
To be dertennined.
ADDITIONAL CITY COMMISSION CONDITIONS
Comments:
To be determined.
S: \PlanningISHARED\ WP\PROJECTS\Chow H ut\SPTE\COA ,doc
DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA
PROJECT NAME:
The Chow Hut
APPLICANT'S AGENT:
Mr. Anthony Mauro, 558 Gateway Boulevard, LLC
APPLICANT'S ADDRESS:
558 Gateway Blvd, Boynton Beach, FL 33435
DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: January 2, 2007
lYPE OF RELIEF SOUGHT:
Request a site plan time extension until November 1, 2007, for a
building addition to a proposed restaurant on a 0.18 acre parcel in
the C-2 zoning district.
LOCATION OF PROPERlY:
558 Gateway Boulevard (south side of Gateway Boulevard, 2 lots west
of North Federal Highway).
DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO.
THIS MATTER came 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\Chow Hut\SPTE 06-014\DO.doc
rr urn .
',/30/2006 16
IIR~8~ eRA
.l:utSidtl':'WutSld'~Seoside Renaissance
BOYNTON BEACH eRA
AGENDA ITEM STAFF REPORT
r
.t.t'.
CRABOARD MEETING OF:
.'
December 12, 2006
AGENDA ITEM:
CcJDMat ~eada X I Old Balba..,
New B..ilult.
Public Uee
OUter
SUBJECT:
Consideration of Entering into a Development and Purchase Ageement with the
Boynton Beach Faith Based CDC for the Parker Properties
SUMMARY:
The Parker properties (603 and 607 S~ Avenue) were purchased with the intent ofrecleveloping the
site into three affordable smgle-fam.i1y homes. The CRA Board issued a Notice ofInten.t to Dispose of
Real Property. The only proposal received was from the CDC. The attached agreement outJines a
development tlme1ine and dellverables.
FISCAL IMPACT:
Closing Costs Estimated at $1,500.
RECOMMENDATIONS:
Approve the Development and Purchase Agreement with the Boynton Beach Faith Based CDe tor the
Parker properties. .
~hk
VivIan L:BfOOki
CRA PJaaDb1g Director
T:\AGENDAS. CONSENT A13ENoAS, MONTH!. Y REPORTS\Completed AaeJ1dlltem ReClUht Forma by MMtlng\FY 2D08-2007 _rd
Meetlnlll'De 12 14 eRA Board MeetIng. Dtaember\P8'k8r Coe Dw.,....cIoc
PURCHASE AND DEVELOPMENT AGREEMENT
This Purchase and Development Agreement (hereinafter "Agreement") is made and
entered into as of the Effective Date (hereinafter defined), by and between BOYNTON BEACH
COMMUNITY REDEVELOPMENT AGENCY, a public agency created pursuant to Chapter
163, Part III, of the Florida Statutes (hereinafter "SELLER") and BOYNTON BEACH F AITH-
BASED COMMUNITY DEVELOPMENT CORPORATION (hereinafter "PURCHASER"),
having an address of2191 N. Seacrest Blvd., Boynton Beach, Florida, 33435.
In consideration of the mutual covenants and agreements herein set forth, the Parties
hereto agree as follows:
1. PURCHASE AND SALE/PROPERTY. SELLER agrees to sell and convey to
PURCHASER and PURCHASER agrees to purchase and acquire from SELLER, on the terms
and conditions hereinafter set forth, the Property which consists of three parcels located in Palm
Beach County, Florida (the "Property") and more particularly described as follows:
See Attached Exhibit "A".
2. PURCHASE PRICE AND PAYMENT. The Purchase Price to be paid for the
Property shall be Ten Dollars ($10.00), receipt of which is hereby acknowledged. The parties
agree that SELLER is conveying the Property to PURCHASER for the construction of three
single-family homes to be sold to families who earn below 120% of Median Household Income
for Palm Beach County. SELLER has complied with Section 163.380, Florida Statutes, in
proceeding with the sale of the Property to PURCHASER.
3. DEPOSIT. Not applicable.
4. EFFECTIVE DATE. The date of this Agreement (the "Effective Date") shall be
the date when the last one of the SELLER and PURCHASER has signed the Agreement.
5. CLOSING. The purchase and sale transaction contemplated herein shall close on
or before January 12, 2007 (the "Closing"), unless extended by other provisions of this
Agreement or by written agreement, signed by both parties, extending the Closing.
6. TITLE TO BE CONVEYED. At Closing, SELLER shall convey to
PURCHASER, by Warranty Deed complying with the requirements of the Title Commitment
(hereinafter defined), valid, good, marketable and insurable title in fee simple to the Property,
free and clear of any and all liens, encumbrances, conditions, easements, assessments,
restrictions and other conditions except only the following (collectively, the "Permitted
Exceptions"): (a) general real estate taxes and special assessments for the year of Closing and
subsequent years not yet due and payable; (b) covenants, conditions, easements, dedications,
rights-of-way and matters of record included on the Title Commitment or shown on the Survey
(defined in Section 7), to which PURCHASER fails to object, or which PURCHASER agrees to
accept, pursuant to Section 7.1 and Section 7.2 hereof.
PURCHASE AGREEMENT
Page 2 of 13
7. INVESTIGATION OF THE PROPERTY. During the term of this Agreement
("Feasibility Period"), PURCHASER, and PURCHASER'S agents, employees, designees,
Contractors, surveyors, engineers, architects, attorneys and other consultants (c()l1ectively,
"Agents"), shall have the right, at PURCHASER'S expense, to make inquiries of, ancfmeet with
members of Governmental Authorities regarding the Property and to enter upon the Property, at
any time and from time to time with reasonable notice to SELLER and so long as said
investigations do not result in a business interruption, to perform any and all physical tests,
inspections, and investigations of the Property, including but not limited to Phase I and Phase II
investigations, which PURCHASER may deem necessary. During this Feasibility Period,
PURCHASER may elect, in PURCHASER'S sole and absolute discretion, to terminate this
contract. If PURCHASER elects to terminate this Agreement in accordance with this Section,
PURCHASER shall: (i) leave the Property in substantially the condition existing on the Effective
Date, subject to such disturbance as was reasonably necessary or convenient in the testing and
investigation of the Property; (ii) to the extent practicable, shall repair and restore any damage
caused to the Property by PURCHASER'S testing and investigation; and (iii) release to
SELLER, at no cost, all reports and other work generated as a result of the PURCHASER'S
testing and investigation. PURCHASER hereby agrees to indemnify and hold SELLER
harmless from and against all claims, losses, expenses, demands and liabilities, including, but not
limited to, attorney's fees, for nonpayment for services rendered to PURCHASER (including,
without limitation, any construction liens resulting therefrom) or for damage to persons or
property (subject to the limitation on practicability provided above) arising out of
PURCHASER'S investigation of the Property. PURCHASER'S obligations under this Section
shall survive the termination, expiration or Closing of this Agreement. SELLER hereby agrees to
indemnify and hold PURCHASER harmless from and against all claims, losses, expenses,
demands and liabilities, including, but not limited to, attorney's fees, for nonpayment for
services rendered to SELLER or for damage to persons or property caused by Seller's negligence
(subject to the limitation on practicability provided above). SELLER'S obligations under this
Section shall survive the termination, expiration or Closing of this Agreement. However,
SELLER'S indemnification obligations shall not exceed the statutory limits provided within
Section 768.28, Florida Statutes, and CRA does not otherwise waive its sovereign immunity
rights.
7.1 Seller's Documents. SELLER shall deliver to PURCHASER the
following documents and instruments within five (5) days of the Effective Date of this
Agreement: copies of any reports or studies (including environmental, engineering, surveys, soil
borings and other physical reports) in SELLER'S possession or control with respect to the
physical condition of the Property, if any.
7.2 Title Review. Within ten (10) days of the Effective Date, PURCHASER
shall obtain, at the PURCHASER'S expense, from a Title Company chosen by PURCHASER
(hereinafter "Title Company"), a Title Commitment covering the Property and proposing to
insure PURCHASER in the amount of the appraised value of the Property subject only to the
Permitted Exceptions, together with complete and legible copies of all instruments identified as
conditions or exceptions in Schedule B of the Title Commitment. SELLER shall examine the
Title Commitment and deliver written notice to PURCHASER no later than twenty (20) days
after the Effective Date notifying SELLER of any objections PURCHASER has to the condition
PURCHASE AGREEMENT
Page 3 of 13
of title (hereinafter "PURCHASER'S Title Objections"). If PURCHASER fails to deliver
PURCHASER'S Title Objections to SELLER within the aforesaid review period, title shall be
deemed accepted subject to the conditions set forth in the Title Commitment. If PURCHASER
timely delivers the PURCHASER'S Title Objections, then SELLER shall have thirty (30) days
to diligently and in good faith undertake all necessary activities to cure and remove the
PURCHASER'S Title Objections (hereinafter "Cure Period"). In the event that SELLER is
unable to cure and remove, or cause to be cured and removed, the PURCHASER'S Title
Objections within the Cure Period to the satisfaction of PURCHASER, then PURCHASER, in
PURCHASER'S sole and absolute discretion, shall have the option of (i) extending the Cure
Period and the Closing for one additional thirty (30) day period, or (ii) accepting the Title to the
Property as of the time of Closing or (iii) canceling and terminating this Agreement, in which
case, the Deposit shall be returned to PURCHASER and the Parties shall have no further
obligations or liability hereunder, except for those expressly provided herein to survive
termination of this Agreement.
Prior to the Closing, PURCHASER shall have the right to cause the Title
Company to issue an updated Title Commitment ("Title Update") covering the Property. If any
Title Update contains any conditions which did not appear in the Title Commitment, and such
items render title unmarketable, PURHCASER shall have the right to object to such new or
different conditions in writing prior to Closing. All rights and objections of the Parties with
respect to objections arising from the Title Update shall be the same as objections to items
appearing in the Title Commitment, subject to the provisions of this Section.
7.3 Survey Review. PURCHASER, at PURCHASER'S expense, may obtain
a current boundary survey (the "Survey") of the Property, indicating the number of acres
comprising the Property to the nearest 1/1 OOth of an acre. If the Survey discloses encroachments
on the Property or that improvements located thereon encroach on setback lines, easements,
lands of others or violate any restrictions, covenants of this Agreement, or applicable
governmental regulations, the same shall constitute a title defect and shall be governed by the
provisions of Section 7.2 concerning title objections.
8. CONDITIONS TO CLOSING. PURCHASER shall not be obligated to close on
the purchase of the Property unless each of the following conditions (collectively, the
"Conditions to Closing") are either fulfilled or waived by PURCHASER in writing:
8.1 Representations and Warranties. All of the representations and warranties
of SELLER contained in this Agreement shall be true and correct as of Closing.
8.2 Condition of Property. The physical condition of the Property shall be the
same on the date of Closing as on the Effective Date, reasonable wear and tear excepted.
8.3 Pending Proceedings. At Closing, there shall be no litigation or
administrative agency or other governmental proceeding of any kind whatsoever, pending or
threatened, which has not been disclosed, prior to closing, and accepted by PURCHASER.
8.4 Compliance with Laws and Regulations. The Property shall be III
PURCHASE AGREEMENT
Page 4 of 13
compliance with all applicable federal, state and local laws, ordinances, rules, regulations, codes,
requirements, licenses, permits and authorizations as of the date of Closing.
i'
9. CLOSING DOCUMENTS. The SELLER shall prepare, or cause to be prepared,
the Closing Documents set forth in this Section, except for documents prepared by the Title
Company. At Closing, SELLER shall execute and deliver, or cause to be executed and delivered
to PURCHASER the following documents and instruments:
9.1 Deed. A Warranty Deed (the "Deed") conveying to PURCHASER valid,
good, marketable and insurable fee simple title to the Property free and clear of all liens,
encumbrances and other conditions oftitle other than the Permitted Exceptions.
9.2 Seller's Affidavits. SELLER shall furnish to PURCHASER an owner's
affidavit attesting that, to the best of its knowledge, no individual or entity has any claim against
the Property under the applicable construction lien law; and that there are no parties in
possession of the Property other than SELLER. SELLER shall also furnish to PURCHASER a
non-foreign affidavit with respect to the Property. In the event SELLER is unable to deliver its
affidavits referenced above, the same shall be deemed an uncured title objection.
9.3 Closing Statement. A closing statement setting forth the Purchase Price,
all credits, adjustments and prorations between PURCHASER and SELLER, all costs and
expenses to be paid at Closing, and the net proceeds due SELLER, which SELLER shall also
execute and deliver at Closing.
9.4 Corrective Documents. Documentation required to clear title to the
Property of all liens, encumbrances and exceptions, if any, other than Permitted Exceptions.
9.5 Additional Documents. Such other documents as PURCHASER or the
Title Company may reasonably request that SELLER execute and deliver, and any other
documents required by this Agreement or reasonably necessary in order to close this transaction
and effectuate the terms of this Agreement.
1 O. PRORATIONS. CLOSING COSTS AND CLOSING PROCEDURES.
10.1 Prorations. Taxes for the Property shall be prorated through the day
before Closing. Cash at Closing shall be increased or decreased as may be required by
prorations to be made through the day prior to Closing. Taxes shall be prorated based upon the
current year's tax with due allowance made for maximum allowable discount. If Closing occurs
at a date when the current year's millage is not fixed and current year's assessment is available,
taxes will be prorated based upon such assessment and prior year's millage. If current year's
assessment is not available, then taxes will be prorated on prior year's tax. A tax proration based
on an estimate shall, at request of either party, be readjusted upon receipt of tax bill.
10.2 Closing Costs. SELLER shall pay for documentary stamps on the deed,
recording the deed and all general closing expenses (settlement fee, courier fees, overnight
packages, etc.).
PURCHASE AGREEMENT
Page 5 of 13
10.3 Closing Procedure. PURCHASER shall fund the Purchase Price subject
to the credits, offsets and prorations set forth herein. SELLER and PURCHASER (as ~pplicable)
shall execute and deliver to Closing Agent the Closing Documents. The Closing Agent shall, at
Closing: (i) disburse the sale proceeds to SELLER; (ii) deliver the Closing Documents and a
"marked-up" Title Commitment to PURCHASER, and promptly thereafter, record the Deed and
other recordable Closing Documents in the appropriate public records.
10.4 Existing Mortgages and Other Liens. At Closing, SELLER shall obtain,
or cause to be obtained, satisfaction or release of record of all mortgages, liens and judgments
applicable to and encumbering the Property.
11. REPRESENTATIONS. COVENANTS AND WARRANTIES.
11.1 Seller's Representations and Warranties. SELLER hereby represents,
covenants and warrants to PURCHASER, as of the Effective Date and as of the Closing Date, as
follows:
11.2 Authority. The execution and delivery of this Agreement by SELLER and
the consummation by SELLER of the transaction contemplated by this Agreement are within
SELLER'.S capacity and all requisite action has been taken to make this Agreement valid and
binding on SELLER in accordance with its terms. The person executing this Agreement on
behalf of SELLER has been duly authorized to act on behalf of and to bind SELLER, and this
Agreement represents a valid and binding obligation of SELLER.
11.3 Title. SELLER is and will be on the Closing Date, the owner of valid,
good, marketable and insurable fee simple title to the Property, free and clear of all liens,
encumbrances and restrictions of any kind, except the Permitted Exceptions (and encumbrances
of record which will be discharged at Closing).
12. DEFAULT.
12.1 Purchaser's Default. In the event that this transaction fails to close due to
a wrongful refusal to close or default on the part of PURCHASER, subject to the provisions of
Paragraph 12.3 below, neither PURCHASER nor SELLER shall have any further obligation or
liabilities under this Agreement, except for those expressly provided to survive the termination of
this Agreement; provided, however, that PURCHASER shall also be responsible for the removal
of any liens asserted against the Property by persons claiming by, through or under
PURCHASER, but not otherwise.
12.2 Seller's Default. In the event that SELLER shall fail to fully and timely
perform any of its obligations or covenants hereunder or if any of SELLER'S representations are
untrue or inaccurate, then, notwithstanding anything to the contrary contained in this Agreement,
PURCHASER may, at its option: (1) declare SELLER in default under this Agreement by notice
delivered to SELLER, in which event PURCHASER may terminate this Agreement and neither
Party shall have any further rights hereunder.
PURCHASE AGREEMENT
Page 6 of 13
12.3 Notice of Default. Prior to declaring a default and exercising the remedies
described herein, the non-defaulting Party shall issue a notice of default to the defaulting Party
describing the event or condition of default in sufficient detail to enable a reasonable person to
determine the action necessary to cure the default. The defaulting Party shall have fifteen (15)
days from delivery of the notice during which to cure the default, provided, however, that as to a
failure to close, the cure period shall only be three (3) Business Days from the delivery of notice.
Both parties agree that if an extension is requested, such extension shall not be unreasonably
withheld. If the default has not been cured within the aforesaid period, the non-defaulting Party
may exercise the remedies described above.
12.4 Survival. The provisions of this Section 12 shall survive the termination
of this Agreement.
13. NOTICES. All notices required in this Agreement must be in writing and shall be
considered delivered when received by certified mail, return receipt requested, or personal
delivery to the following addresses:
If to Seller:
Boynton Beach Community Redevelopment Agency
Attention: Executive Director, Lisa A. Bright
915 S. Federal Highway
Boynton Beach, Florida 33435
With a copy to:
Kenneth G. Spillias, Esq.
Lewis, Longman & Walker, P.A.
1700 Palm Beach Lakes Boulevard, Suite 1000
West Palm Beach, Florida 33401
If to Buyer:
Boynton Beach Faith Based Community Development
Corporation
Attention: David Zimet
2191 N. Seacrest Blvd.
Boynton Beach, Florida 33435
14. BINDING OBLIGATION/ASSIGNMENT. The terms and conditions of this
Agreement are hereby made binding on, and shall inure to the benefit of, the successors and
permitted assigns of the Parties hereto. SELLER may not assign its interest in this Agreement
without the prior written consent of PURCHASER, which shall not be unreasonably withheld.
PURCHASER may not assign this Agreement to any other party without the prior written
approval of SELLER.
15. RISK OF LOSS. In the event the condition of the Property, or any part thereof, is
materially altered by an act of God or other natural force beyond the control of SELLER,
PURCHASER may elect, as its sole option, to terminate this Agreement and the parties shall
have no further obligations under this agreement, or PURHCASER may accept the Property
PURCHASE AGREEMENT
Page 7 of 13
without any reduction in the value of the Property.
16. BROKER FEES. The Parties hereby confirm that neither of them has"dealt with
any broker in connection with the transaction contemplated by this Agreement. Each Party shall
indemnify, defend and hold harmless the other Party from and against any and all claims, losses,
damages, costs or expenses (including, without limitation, attorney's fees) of any kind or
character arising out of or resulting from any agreement, arrangement or understanding alleged
to have been made by either Party or on its behalf with any broker or finder in connection with
this Agreement. However, SELLER'S indemnification obligations shall not exceed the'statutory
limits provided within Section 768.28, Florida Statutes, and CRA does not otherwise waive its
sovereign immunity rights. The provisions of this Section shall survive Closing or termination of
this Agreement.
17. ENVIRONMENTAL CONDITIONS. To the best of SELLER'S
knowledge, the Property and the use and operation thereof are in compliance with all applicable
county and governmental laws, ordinances, regulations, licenses, permits and authorizations,
including, without limitation, applicable zoning and environmental laws and regulations.
18. DEVELOMENT AND SALE OF THE PROPERTY. SELLER and
PURCHASER acknowledge that the Property is being sold to PURCHASER for the sole purpose
of developing, marketing and selling three single-family homes to families whose income does
not exceed 120% of median household income for Palm Beach County as set by HUD. SELLER
and PURCHASER agree that this Section 18 and all of its subparts shall survive the Closing of
this Agreement.
18.1 Construction and Sale. PURCHASER agrees to construct three (3) single
family homes pursuant to the construction schedule and requirements provided herein.
PURCHASER must construct all three homes concurrently (phasing is not permitted). Each
home may not exceed a sale price of Two-Hundred and Thirty-Thousand Dollars ($230,000.00).
Each home must be sold to a first-time home buyer and must be occupied by the owner.
18.2 Construction Requirements. The following amenities are required in each
home and must conform to or exceed City of Boynton Beach codes and regulations unless
otherwise specified:
a. Three (3) bedrooms with one master bedroom.
b. Two full bathrooms including one in the master bedroom.
c. The master bedroom must be a minimum of 13'x 14' and
must contain a walk-in closet.
d. Double kitchen sink.
e. Interior and exterior light fixture package.
PURCHASE AGREEMENT
Page 8 of 13
f. Ceramic tile In the entryway, kitchen and bathrooms; carpet
elsewhere.
g. Appliances must be new and include: washer, dryer, seif-cleaning
range, range hood, garbage disposal, refrigerator with ice maker
and water line, and ceiling fans in all bedrooms and living room.
h. Wiring for: alarm system, cable, internet and phone.
1. Window treatments must be mini-blinds or upgrade.
J. Automated in-ground sprinkler system, including swale.
k. One-car garage.
1. Impact-resistant windows (Dade-County standards).
m. Standing seam metal roof.
n. Landscaping must exceed City of Boynton Beach code
requirements.
o. Overall design of each home must confirm to the design
recommendations in the Heart of Boynton ("HOB") Community
Redevelopment Plan and the HOB Master Plans and Schematic
Designs.
18.3 Seller Design Approval. SELLER shall have the right to approve of the
design of each home and such approval shall be provided in writing to PURCHASER within
three (3) business days of receipt of final plans.
18.4 Development Timeline. The following events must be documented in
writing and provided to the SELLER upon completion of each. Time is calculated from the
Effective Date.
a. Secure Construction Loan within three (3) months (copy of
funding commitment letter shall be provided to SELLER).
b. Completion of construction documents within three (3) months
(stamped plans shall be provided to SELLER).
c. Permitting and installation of project marketing sign which is to
include SELLER'S logo and board member names and shall be
pre-approved by SELLER within four (4) months.
d. Executed agreement with General Contractor within four (4)
months (copy of executed agreement shall be provided to
SELLER).
PURCHASE AGREEMENT
Page 9 of 13
J.
e.
Homes must be marketed within six (6) months (copies of
advertisements or other marketing materials to be provided to
SELLER).
"
f.
Construction permit to be issued within seven (7) months (copy of
permit to be provided to SELLER).
g.
Groundbreaking ceremony to be coordinated with SELLER'S
Marketing and Events Manager within seven (7) months. .
h.
Commencement of construction within eight (8) months
(photographs of site andlor written description of progress to be
provided to SELLER).
1.
Qualification of Buyers within twelve (12) months (copy of private
mortgage funding commitment and documentation proving buyers
qualify to income limits as set above to be provided to SELLER).
Certificate of Occupancy to be provided within eighteen (18)
months.
k.
Homes must be conveyed to buyers within nineteen (19) months
(copies of closing statement, proof of income qualification and
executed deeds to be provided to SELLER).
18.5 Reverter. If the time line outlined in Section 18.4 above is not strictly met,
and PURCHASER has not provided SELLER with a written notification as to the reason
explaining that circumstances not under the control of PURCHASER have prevented
PURCHASER from meeting the timeline, then the Property shall automatically revert back to the
SELLER. SELLER agrees to work reasonably with PURCHASER in working within the
time frames set forth above, but PURCHASER and SELLER agree that time is of the essence.
Furthermore, if each home is not sold to income-qualified buyers as defined herein, the Property
shall revert back to SELLER. If Property reverts to SELLER, SELLER shall complete the
construction of the homes and satisfy any outstanding construction loans held by PURCHASER
and shall reimburse PURCHASER from the sale of the homes if there are sufficient funds.
19. MISCELLANEOUS.
19.1 General. This Agreement, and any amendment hereto, may be executed in
any number of counterparts, each of which shall be deemed to be an original and all of which
shall, together, constitute one and the same instrument. The section and paragraph headings
herein contained are for the purposes of identification only and shall not be considered in
construing this Agreement. Reference to a Section shall be deemed to be a reference to the entire
Section, unless otherwise specified. No modification or amendment of this Agreement shall be
of any force or effect unless in writing executed by Parties. This Agreement sets forth the entire
agreement between the Parties relating to the Property and all subject matter herein and
supersedes all prior and contemporaneous negotiations, understandings and agreements, written
PURCHASE AGREEMENT
Page 10 of 13
or oral, between the Parties. This Agreement shall be interpreted in accordance with the laws of
the State of Florida. The Parties hereby agree that jurisdiction of any litigation brought arising
out of this Agreement shall be in the Fifteenth Judicial Circuit in and for Palm Bea~h County,
Florida, or, should any cause of action be limited to federal jurisdiction only, in the United States
District Court for the Southern District Court of Florida.
19.2 Computation of Time. Any reference herein to time periods which are
not measured in Business Days and which are less than six (6) days, shall exclude Saturdays,
Sundays and legal holidays in the computation thereof. Any time period provided for in this
Agreement which ends on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. on the
next full Business Day. Time is of the essence in the performance of all obligations under this
Agreement. Time periods commencing with the Effective Date shall not include the Effective
Date in the calculation thereof.
19.3 Waiver. Neither the failure of a party to insist upon a strict performance
of any of the terms, provisions, covenants, agreements and conditions hereof, nor the acceptance
of any item by a party with knowledge of a breach of this Agreement by the other party in the
performance of their respective obligations hereunder, shall be deemed a waiver of any rights or
remedies that a party may have or a waiver of any subsequent breach or default in any of such
terms, provisions, covenants, agreements or conditions. This paragraph shall survive termination
of this Agreement and the Closing.
19.4 Construction of Agreement. The Parties to this Agreement, through
counsel, have participated freely in the negotiation and preparation hereof. Neither this
Agreement nor any amendment hereto shall be more strictly construed against any of the Parties.
As used in this Agreement, or any amendment hereto, the masculine shall include the feminine,
the singular shall include the plural, and the plural shall include the .singular, as the context may
require. Provisions of this Agreement that expressly provide that they survive the Closing shall
not merge into the Deed.
19.5 Severability. If any prOVlSlon of this Agreement or the application
thereof shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder
of this Agreement nor the application of the provision to other persons, entities or circumstances
shall be affected thereby, but instead shall be enforced to the maximum extent permitted by law.
The provisions of this Section shall apply to any amendment of this Agreement.
19.6 Handwritten Provisions. Handwritten provisions inserted in this Agreement
and initialed by CRA and SELLER shall control all printed provisions in conflict therewith.
19.7 Waiver of Jury Trial. As an inducement to PURCHASER agreeing to enter
into this Agreement, PURCHASER and SELLER hereby waive trial by jury in any action or
proceeding brought by either party against the other party pertaining to any matter whatsoever
arising out of or in any way connected with this Agreement.
19.8 Attorneys Fees and Costs. Should it be necessary to bring an action to
PURCHASE AGREEMENT
Page 11 of 13
enforce any of the provisions of this Agreement, reasonable attorneys' fees and costs, including
those at the appellate level, shall be awarded to the prevailing party.
19.9 Binding Authority. Each party hereby represents and warrants to the other
that each person executing this Agreement on behalf of the CRA and SELLER has full right and
lawful authority to execute this Agreement and to bind and obligate the party for whom or on
whose behalf he or she is signing with respect to all provisions contained in this Agreement.
19.10 Recording. This Agreement may be recorded in the Public Records of
Palm Beach County, Florida.
19.11 Survival. The covenants, warranties, representations, indemnities and
undertakings of SELLER set forth in this Agreement, shall survive the Closing, the delivery and
recording of the SELLER Property Deed and PURCHASER'S possession of the Property.
19.12 SELLER Attorneys' Fees and Costs. SELLER acknowledges and agrees
that SELLER shall be responsible for its oWfl attorneys' fees and all costs, if any, incurred by
SELLER in connection with the transaction contemplated by this Agreement.
date.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
BUYER
SELLER
BOYNTON BEACH
FAITH-BASED COMMUNITY
DEVELOPMENT CORPORATION
BOYNTON BEACH COMMUNITY
REDEVELOMENTAGENCY
By:
Print Name:
Title:
Date:
By:
Print Name: Henderson Tillman
Title: Chairperson
Date:
Witnesses:
Witnesses:
Approved as to form and legal sufficiency:
PURCHASE AGREEMENT
Page 12 of 13
CRA Attorney
I:\Client Documents\Boynton Beach CRA\24 I 9-01 I \Misc\Purchase and Development Agreement for Parker Lots I I.30.06,doc
Exhibit "A"
Legal Description
DEC-06-2~06 15:17 From:
To:4098~2419~000~737325 P.2/2
~~~
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~1~qY~Te~lc RA
. East Side-West Side~S...ld. Renaissance
BOYNTON" BEACH eRA
AGENDA ITEM STAFF REP(JRT
eRA BOARD MEETING OF:
December 12,2006
AGENDA ITEM:
L I Consent Ajlcnda I X
Old Busil1e1l.~
New Uuslncss
...
'Public Hearing
OtlH~r I
SUBJECT:
COl1sidel'ation of 1:':lltering InLu an Agreement with the BB FaiLh-Based cue to
Administer the Homebuyer Assistance Program (.liAP)
SUMMARY:
The attached agreement pl'oyidcs tor a scope of setvtce to be provided hy the CDC
with regards to the HAP. The CDC will prequaHfy h()m~buyers tor the HAP.
FISCAL IMPACT:
The CDC will be paid $3)000 pet' c1o!\ing of a HAP fllm.l~d purchase. Funds will be p<:tid at closing.
RECOMMENDATIONS:
Approve the Agreement for H01l1ebuyet. AssistaClIJe Program Administration with the Boynton BCfll:h
Q;t;?2:10pmcnl Co~or.tion,
('RA PlanninM Director
~~1f>L
Kennel S . IS, Esq.
eRA LECAL COUNSEL
T:\AI1iENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request t=orrll!l by Meeting\FY 2006-2007 BOllrd
Meelings\0612 14 eRA Board Mooting - Deccmb<lr\HAP Adm. Agtve,ctoc
AGREEMENT
FOR
HOMEBUYER ASSISTANCE PROGRAM ADMINISTRATION
This Agreement for Homebuyer Assistance Program Administration
("Agreement") is entered into this 12th day of December 2006, by and between:
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY
("CRA"), a public agency created pursuant to Chapter 163, Part III of the Fl9rida
Statutes, with a business address of 915 South Federal Highway, Boynton Beach,
Florida 33435.
And
BOYNTON BEACH FAITH BASED COMMUNITY DEVELOPMENT
CORPORATION, a Florida Not-For-Profit Corporation ("Administrator"), with a
business address of PO Box 337, Boynton Beach, FL 33425.
RECITALS
WHEREAS, the eRA recognizes that the future economic health of the City of
Boynton Beach ("City") depends upon the sufficient supply of housing affordable to
working families; and
WHEREAS, the CRA recognizes that the housing prices within the City have
risen so high that many families have been priced out of the housing market; and
WHEREAS, as a result, the CRA has implemented the Homebuyers Assistance
Program ("HAP") to provide down payment assistance to qualified applicants; and
WHEREAS, at the December 12, 2006 meeting the CRA Board of Directors
approved contracting with the Administrator to administer the Homebuyer Assistance
Program.
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained and other good and valuable consideration, the receipt of
which is hereby acknowledged, it is agreed herein between the parties as follows:
Section 1. Recitals. The foregoing recitals are true and correct at the time of the
execution of this Agreement and are incorporated herein.
Section 2. Effective Date. This Agreement shall be effective on the date the last
party to sign executes this Agreement ("Effective Date").
Section 3. Scope. Administer agrees to oversee and administer the Homebuyer
Assistance Program implemented by the CRA by assisting the eRA with qualifying
applicants for the HAP under the general guidelines set forth below and more
specifically described in Exhibit "A" (Program Guidelines) attached hereto: .I
(a)
(b)
(c)
(d)
(e)
Section 4.
The funding provided by HAP is on a first-come, first-approved basis;
Applicants must meet all of the qualification criteria of the State Housing
Initiative Partnership Program ("SHIP");
Administrator shall market the Program to families with dependent I1?-inor
children;
Administrator shall market the Program to persons working within the
City of Boynton Beach;
Administrator shall market the Program to employees in the "essential
services" sectors (educators, police, firefighters, healthcare workers and
skilled building trades)
Administrator's Responsibilities.
(a) Upon execution of this Agreement, Administrator shall provide to CRA
evidence that the Administrator's status as a qualified Community Housing
Development Organization shall be in effect throughout the term of this Agreement.
(b) Administrator shall conduct a minimum of four (4) homebuyer
workshops throughout the term of this Agreement. Prior to each workshop,
Administrator shall notify CRA of the dates of the workshop and after each workshop,
Administrator shall submit to CRA copies of the sign-in sheets from such workshops.
Sign-in sheets shall include the name, address and phone number of each workshop
participant.
Section S.
date.
Term. This Agreement shall be effective for one year from the effective
Section 6. Compensation. Administrator shall be compensated at a rate of Three
Thousand and No Dollars ($3000.00) per approved qualified buyer as determined by
the CRA and in conformance with the Program Guidelines attached hereto as Exhibit
"A", to be paid to the Administrator at closing.
Section 7. Non-Discrimination. Administrator agrees that no person shall, on the
grounds of race, color, disability, national origin, religion, age, familial status, sex or
sexual orientation, be excluded from the benefits of, or be subjected to discrimination
under any activity carried on by the Administrator, its sub-contractors, or agents, in the
performance of this Agreement. Should such discrimination occur, the CRA will
provide notice to the Administrator that it claims there has been a breach of this
condition and thereafter, Administrator shall have fi'fteen (15) business days to demand
arbitration as to the claim of discrimination. The parties will then mutually agree in
2
writing to an arbitrator and if they cannot agree, the rules of the American Arbitration
Association will govern. The arbitration will be governed by the rules of the American
Arbitration Association regardless of whether an arbitrator is agreed upon by the
parties. This arbitration shall be independent of any other actions being taken by other
governmental agencies. However, a finding by any agency or court that such
discrimination has occurred may be relied upon by the CRA as conclusive proof of a
breach of this provision, provided such finding is final and not appealable. If the
Administrator does not demand arbitration within fifteen (15) business days, or if
arbitration is conducted and it is determined by the arbitrator that discriminatio~ has
occurred, the CRA shall have the right to terminate this Agreement and pursue any and
all other lawful remedies. The cost of such arbitration shall be borne by the non-
prevailing party. Such non-prevailing party shall be determined by the arbitrator.
Section 8. Convicted Vendor List. As provided in Sections 287.132 - 287.133,
Florida Statutes, by entering into this Agreement or performing any work in
furtherance hereof, Administrator certifies that it, and its affiliates, contractors, sub-
contractors or agents who will perform hereunder, have not been placed on the
Convicted Vendor List maintained by the State of Florida Department of Management
Services within thirty-six (36) months immediately preceding the date of this
Agreement.
Section 9. Indemnification. The Administrator shall indemnify, defend, save, and
hold harmless the CRA, their elected officers, agents, and employees, from any and all
claims, damages, losses, liabilities, and expenses, direct, indirect or consequential
arising out of, or alleged to have arisen out of, or in consequence of the services
furnished by or operations of the Administrator or his subcontractors, agents, officers,
employees or independent contractors pursuant to the Agreement, specifically
including, but not limited to, those caused by or arising out of any intentional act,
omission, negligence or default of the Administrator andlor his subcontractors, agents,
servants or employees in the provision of services under this Agreement.
Section 10. Notice. Whenever either party desires to give notice to the other party
as required under this Agreement, it must be given by written notice sent by (i) hand
delivery with a signed receipt; (ii) by a recognized national courier service; or (iii) by
Certified United States Mail, with return receipt requested, addressed to the party for
whom it is intended, at the place last specified, and the place for giving of notice shall
remain such until it shall have been changed by written notice in compliance with the
provisions of this Paragraph. For the present, the parties designate the following as the
respective places for giving of notice, to wit:
If to the CRA:
Boynton Beach Community
Redevelopment Agency
Attn.: Lisa Bright, Executive Director
915 Federal Highway
Boynton Beach, Florida 33435
3
With copy to:
Kenneth G. Spillias, Esquire
Lewis, Longman & Walker, P. A.
1700 Palm Beach Lakes Blvd.
Suite 1000
West Palm Beach, Florida 33401
If to Administrator:
Boynton Beach Faith Based
Community Development Corporation
PO Box 337
Boynton Beach, FL 33425
Every notice shall be effective on the date actually received, as indicated on the receipt
therefore, or on the date delivery thereof is refused by the intended recipient.
Section 11. General Provisions.
A. Entire Agreement. The CRA and the Administrator agree that this
Agreement sets forth the entire Agreement between the parties and that there are no
promises or understandings other than those stated herein. N one of the provisions,
terms and conditions contained in the Agreement may be added to, modified,
superseded, or otherwise altered, except by written instrument executed by the parties
hereto.
B. Exhibits. Each Exhibit referred to in this Agreement forms an essential
part of this Agreement. Any exhibits not physically attached shall be treated as part of
this Agreement and are incorporated herein by reference.
C. Severability. If any provision of this Agreement or application thereof to
any person or situation shall, to any extent, be held invalid or unenforceable, the
remainder of this Agreement, and the application of such provisions to persons or
situations other than those as to which it shall have been held invalid or unenforceable
shall not be affected thereby, and shall continue in full force and effect, and be
enforced to the fullest extent permitted by law.
D. Headings. The Headings herein are for convenience of reference only
and shall not be considered in any interpretation of this Agreement.
E. Attorneys' Fees. Should it be necessary to bring an action to enforce
any of the provisions of this Agreement, attorneys' fees and costs, including those at an
appellate level, shall be awarded to the prevailing party.
F. Jurisdiction and Venue. By the execution of this Agreement, the parties
expressly consent to personal jurisdiction of Florida State Courts, and venue in Palm
4
Beach County, Florida, for the limited purpose of litigating a dispute arising out of this
Agreement.
G. Governing Law. This Agreement shall be governed under the l~ws of
the State of Florida.
H. Modification. This Agreement may be modified only upon mutual
written consent of all parties.
I. Assignments. This Agreement may not be signed without written
consent of the CRA.
J. Binding Authority. Each party hereby represents and warrants to the
other that each person executing this Agreement on behalf of the CRA and
Administrator (or in any representative capacity) as applicable, has full right and lawful
authority to execute this Agreement and to bind and obligate the party for whom or on
whose behalf he or she is signing with respect to all provisions contained in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have entered this Agreement on
the day and year first above written.
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
By:
(Witness)
Print Name:
Its: Chairperson
Date:
"BOYNTON BEACH FAITH BASED
COMMUNITY DEVELOPMENT CORPORATION"
By:
(Witness)
Print Name:
Its:
Date:
5
i=- )<J Jut bJ "A jJ
~j~Y~T8~ eRA
iIi East Side-West Side-Seaside RenaISsance
Boynton Beach Community Redevelopment Agency
Homebuyer Assistance Program
(HAP)
2006/2007
The Boynton Beach Community Redevelopment Agency (CRA) recognizes that the future
economic health of the City depends upon the sufficient supply of housing priced for
working families. As housing prices climbed by double digits in 2005-2006, many families
were priced out of the housing market.
The City of Boynton Beach receives State Housing Imitative Partnership Program (SHIP)
dollars to provide down payment assistance to low and moderate income families. Due to
rapid housing appreciation, the number of low and moderate income families who can
afford to buy homes has decreased. In an effort to assist more families the CRA has
implemented the Homebuyer Assistance Program. Program funds can be layered with the
City's SHIP Down Payment Assistance Program to provide gap financing to families. If
SHIP funds are unavailable, HAP funds can be used as the sole source of down payment
assistance as long as applicants meet all SHIP criteria as set by the City of Boynton Beach.
Program Guidelines
1. Funding is on a first-come, first-approved basis.
2. Applicants must meet all of the qualification criteria of the SHIP Down
Payment Assistance Program. HAP qualification will be conducted by the
City's Community Improvement Department or a Community Housing
Development Organization (CHDO). A request for HAP funds must be made
on the applicant's behalf by either the City or CHDO.
3. Purchase Price
New - Not to exceed $280,462
Existing - Not to exceed $280,462
New Home Construction Loans- the value of the City/CRA lot awarded to
homebuyer is excluded from the CRAICity subsidy amount, but is included in
the permanent mortgage encumbrance
4. Eligible Properties include existing, single-family homes, construction of new
single-family homes, townhomes and condominiums located within the CRA.
2
5. Use of Funds:
a. Down payment and closing costs.
b. Rehabilitation costs (if required to bring the home up to code)
6. Families with dependent, minor children will receive preference.
7. Persons working within the City of Boynton Beach will receive preference.
8. Applicants employed in the "essential services" sectors (educators, police,.
firefighters, healthcare workers and skilled building trades) will receive
preference.
9. Income from all adult members of the household will be included in the
computation of gross income.
10. City and CRA funding shall not exceed 40% for moderate income buyers and
50% for low income buyers of the purchase price. The actual amount of
funding awarded shall depend upon the funding gap. In no case shall CRA
funding be awarded above the funding gap amount or $50,000.00.
Rehabilitation expenses related to bringing the home up to code may be
included up to $50,000.
Example # 1 :
Moderate Income Household
Purchase Price of Home
Closing Costs
Maximum Mortgage Amount
City's Maximum SHIP Down payment
Funding Gap
Percent of Public Subsidy
Example #2
Low Income Household
Purchase Price of Home
Closing Costs
Maximum Mortgage Amount
City's Maximum SHIP Down payment
Funding Gap
Percent of Public Subsidy
$ 60,000
$280,000
$ 5,000
$213,771
$ 50,000
$ 21,229
25%
$ 40,200
$280,000
$ 5,000
$164,700
$ 75,000
$ 45,300
43%
11. Projected housing costs, including mortgage, interest, taxes, insurance and
homeowner's association fees shall not exceed 35% of gross household income
or whatever the primary lender determines. The maximum total debt ratio (total
housing expenses plus other monthly debt obligations) shall not exceed 45% of income.
T:\GRANTS\Home Buyer Assistance\Homebuyer Assistance Program Guidelines,doc
3
Example # 1
Moderate Income
Gross Monthly Income
Mortgage Payment (inc!. taxes & insurance)
Other Debt
Housing Expense Ratio (not to exceed 35%)
Overall Debt Ratio
Example #2
Low Income
Gross Monthly Income
Mortgage Payment (inc!. taxes & insurance)
Other Debt
Housing Expense Ratio
Debt Ratio
$60,000
$ 5,000
$ 1,282
$ 500
27%
35%
$ 40,200
$ 3,350
$ 987
$ 300
29%
38%
12. Applicants must be first time homebuyers, with no previous homeownership within the
past three years at the time of application. First time home buyer status shall be
determined by reviewing the three consecutive years of Federal Income tax returns.
9. Funds shall be in the form of a 0% second mortgage behind the first mortgage. If SHIP
funds are used CRA funds will be in the form of a third mortgage behind the City of
Boynton Beach's encumbrance. Repayment of the CRA funds will not be required if
the home is resold to an income qualified buyer. Income qualification of the new buyer
shall be certified by the City of Boynton Beach Community Improvement Division and
forwarded to the CRA prior to closing. Resale to a non-income qualified buyer will
require repayment of the CRA subsidy amount in full at time of closing.
13. Refinancing of the property will result in repayment of CRA funds with interest
accrued at 4% per annum. Refinancing of the property may be permitted in special
circumstances with prior written approval from the City and CRA.
14. Families who receive CRA Homebuyers Assistance shall occupy the residence for the
term of the first mortgage. If the residence is leased and no longer occupied by the
recipient of CRA funds, all CRA funds plus interest at 4% annum from the time of
purchase shall become due and payable in full. Families that receive assistance shall
submit proof of residency to the City and CRA annually by the anniversary of the
closing date. The accepted form of proof is a utility bill showing the program
recipients name and address. Failure to comply will result in the CRA funds becoming
due and payable.
15. Upon sale of the property within the first five years, the owner must pay 80% of the
equity (determined by a fair market appraisal) to the City and CRA proportionate to the
amount of funding from each entity. During years 6-20,50% of the equity and during
years 21-30, ] 5% of the equity is due to the City and CRA upon sale of the property.
Example:
T:\GRANTS\Home Buyer Assistance\Homebuyer Assistance Program Guidelines,doc
4
Original home price:
City SHIP funds
CRA Funds
Mortgage
$225,000
$ 50,000 (71%)
$ 20,000 (29%)
$155,000
$275,000
$ 50,000
$ 10,000
$ 28,400
$ 11,600
New Sales Price @ yr 5
Equity
20% Equity to Seller
Percent of Equity to City
Percent of Equity to CRA
16. The City and CRA shall reserve the right-of-first-refusal to purchase the property at the
fair market appraised value within 45 days of written notice from the property owners.
17. Offering of the program is no guarantee of funding. All decisions are subject to
approval of the CRA Board of Directors.
T:\GRANTS\Home Buyer Assistance\Homebuyer Assistance Program Guidelines,doc
DEC-06-2006 12:23 From:
Fr(Jtn:
To:4098~2419~000~737325 P.3/3
12/DB/200B 10: 17
1750 P, 002/028
" :;..:,
Ilfl~e~ eRA
iii &.1: 51c!t1';'_ Sld...Se..lde Re...l.".....
BOYNTON BEACH eRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF: December 12,2006
AGENDA ITEM:
[ I CoaM:llt AleDda I X I OJd 8_a_ I
Naw B"s..~ L j Pahlic JJeu.!aa I
OtIaer
SUBJECf;
ConsJdetatJon ufBntcring into ~ ))i.Net; lI1centive Funding Afp'eem.eDt with
Boynton Village for The ~ project
SUMMARY:
Tbc attached DIPA provides fot the sale of ~O units to biIies eeming below 120~ ofmedi.an
household income far PBC. DIF A fundI will ~ used to reduce UDit pricing. The DIF A is perfonnance
based, i.e.; .if the developer scstl$ all 50 affordable accegg unlt$~ he will receive 1000A of eligible TIF
funds. Tho Agreement is front loaded with the develop.- n!Otliving 75% of the TIP fo1' years 1-5 mJd
25% of11Fforyem6-10.
FISCAL IMPACT:
Depending on the ftna1assessed value of1he units wiChin the development, tbe eRA'K 1inancw
obligation under the DIFA is approxlmatoly $2.8 million over ten yea~
RECOMMENDATIONS:
Approve the Direct lncentive Fundi"8 Asre==t with Boynton ViJlage for The Preserve project,
L-tJ~ 1---
VIYbIlli. BroOb
CD.A MaDDlag Director
~ErtDM, CONSeNT AGENDAS. MONTHLY R!PCATS\Ccmp1lDd Ag~ Item~! Forms by M~ 1()08-200T Baard
Meetings'o '2 14 CiM ~ MHtIng - ~r'ICO~ OIFI\.CIW
DIRECT INCENTIVE FUNDING AGREEMENT
This Direct Incentive Funding Agreement (hereinafter "Agreement") is entered into as of the
lih day of December 2006, by and between:
I
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY, a public agency
created pursuant to Chapter 163, Part III of the Florida Statutes, (hereinafter referred to as
"CRA"), with a business address of915 South Federal Highway, Boynton Beach, Florida 33435.
And
Boynton Village, LLC, (hereinafter referred to as "Developer"), with a business address of
2121 Ponce de Leon Boulevard, PH, Coral Gables, Florida 33134, and/or assigns.
RECIT ALS:
WHEREAS, as part of its strategy to encourage homeownership by families within certain
income brackets, the CRA has instituted certain programs to provide incentive funding to
developers, including the Direct Incentive Program for Workforce Housing adopted on August 8,
2006, for direct assistance offered by the developer to such qualifying homebuyers; and
WHEREAS, at the September 12, 2006, meeting of the CRA Board, the CRA Board
approved amending its Homebuyers Assistance Program and directed staff to begin negotiations
with Developer to create between 25 and 50 affordable homeoWflership opportunities for a
project known as The Preserve (hereinafter the "Project") (subsequently, Developer agreed to set
aside 50 affordable units as set forth within this Agreement); and
WHEREAS, Developer is hereby submitting to the CRA a proposal to offer to qualified
homebuyers such assistance for the Project; and
WHEREAS, the CRA intends to provide incentive funding to the Developer for such
homeoWflership opportunities on the basis set forth herein; and
WHEREAS, this Agreement is not intended to be a "Development Agreement" within the
meaning of Florida Statutes, Section 163.3221.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, it is agreed herein between the parties as follows:
Section 1. Recitals. The foregoing recitals are true and correct at the time of the
execution of this Agreement and are incorporated herein.
Section 2. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" of a party means any corporation, partnership, limited liability company, trust or
other entity controlling, controlled by, or under common control with such party (whether
O:\CORD003 - Boynton Beach CRA - Cornerstone DIF A - 10-27-06
directly or indirectly through one or more intermediaries). For the purpose of this definition,
"control" means the possession, directly or indirectly, of the power to direct or cause the
direction of management and policies, whether through the ownership of voting interest or by
contract or otherwise.
"
"Affordable Access Unit" means the fifty (50) units committed to by Developer to qualify
for the affordable access as described in this Agreement (also described as "Workforce Housing"
within the CRA Guidelines).
"Agreement" means this Direct Incentive Funding Agreement and all exhibits and
attachments thereto, as any of the same may hereafter be amended from time to time, by mutual
agreement of the parties.
"Developer" means Boynton Village, LLC, and any assignee or transferee of Boynton
Village, LLC, that is permitted under this Agreement, from and after the date of such permitted
assignment or transfer.
"City" means the City of Boynton Beach, Florida.
"Pledged Project Increment Revenues" means the Project Increment Revenues received
by the CRA which are pledged to the Developer as set forth within Section 6.1.C. of this
Agreement.
"Project" means The Preserve as described above in the second "Whereas" clause, and as
further described in the Application defined above and in the site plan defined below.
"Project Increment Revenues" means the amount deposited in the Redevelopment Trust
Fund for the Redevelopment Area pursuant to Florida Statutes, Section 163.387, which is
attributable to the Project, using $1,025,000 as the 2004 base year amount in calculating such
increment revenues, so that increment revenues for the Project are equal to all amounts over the
base year amount.
"Property" means the real property described on Exhibit "A", attached hereto.
"Redevelopment Area" means those areas within the limits of the City which have been
declared blighted in accordance with the provisions of Florida Statutes, Chapter 163, Part Ill.
"Redevelopment Trust Fund" means the trust fund established pursuant to Section
163.387, Florida Statutes for the deposit of incremental revenues attributable to the
Redevelopment Area.
"Site Plan means that as approved by the City of Boynton Beach City Commission by
motion and vote on April 5, 2005, a copy of which is to be attached hereto as Exhibit "B".
"Substantial Completion" or "Substantially Complete" means the point at which the
Palm Beach County Property Appraiser has placed the improvements on the Tax Roll.
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
2
"Tax Collector" means the duly elected tax collector for Palm Beach County, Florida.
"Tax Roll" means the real property ad valorem assessment roll maintained by the Palm
Beach County Property Appraiser for the purpose of the levy and collection of ad valorem taxes.
Section 3. Effective Date. This Agreement shall be effective on the date that the last
party to sign executes this Agreement (hereinafter "Effective Date").
Section 4. Developer Oblie:ations - Construction. Developer agrees to construct or
cause to be constructed the Project as described in the Site Plan in order to receive the full Direct
Incentive Funding as provided for in Section 6 hereof. The Site Plan maybe modified from time
to time in accordance with and pursuant to the Code of Ordinances of the City of Boynton
Beach; provided, however, that Developer shall not have the right to substantially reduce the
number of residential units, change the exterior appearance, including landscaping, the size or
scope of the amenity areas, the number of parking spaces or to make any other change which
would cause the Project to differ substantially from the approved Site Plan without the prior
written approval of the CRA in order to receive the full Direct Incentive Funding as provided for
in Section 6 hereof. "Substantially" as used in this Section means any change that would require
a major Site Plan Modification. Developer and the CRA acknowledge, agree and understand that
the Project is under construction as of the date of this Agreement.
4.1. Non-Discrimination. Developer agrees that no person shall on the grounds of
race, color, disability, national origin, religion, age, familial status, sex or sexual orientation be
excluded from the benefits of, or be subjected to discrimination under, any activity carried on by
Developer, its contractors, sub-contractors, or agents, in the performance of this Agreement.
Should such discrimination occur, the CRA will provide notice to Developer that it claims there
has been a breach of this condition and thereafter, Developer shall have fifteen (15) business
days to demand arbitration as to the claim of discrimination. The parties will then mutually agree
in writing to an arbitrator and if they cannot agree, the rules of the American Arbitration
Association will govern. The arbitration will be governed by the rules of the American
Arbitration Association regardless of whether an arbitrator is agreed upon by the parties. This
arbitration shall be independent of any other actions being taken by other governmental agencies.
However, a finding by any other agency or court that such discrimination has occurred may be
relied upon by the CRA as conclusive proof of a breach of this provision, provided such finding
is final and not appealable. If Developer does not demand arbitration within fifteen (15) business
days, or if arbitration is conducted and it is determined by the arbitrator that discrimination
occurred, the CRA shall have the right to terminate this Agreement and pursue any and all other
lawful remedies. The cost of such arbitration shall be borne by the non-prevailing party. Such
non-prevailing party shall be determined by the arbitrator.
4.2. Convicted Vendor List. As provided in F.S. 287.132-133, by entering into this
Agreement or performing any work in furtherance hereof, Developer certifies that it, and its
affiliates, contractors, sub-contractors or agents who will perform hereunder, have not been
placed on the Convicted Vendor List maintained by the State of Florida Department of
Management Services within thirty-six (36) months immediately preceding the Effective Date.
O:\CORD003 - Boynton Beach CRA - Cornerstone DIF A-I 0-27-06
3
Section 5. Affordable Access ReQuirements. As a condition precedent to its receipt
of any funds pursuant to this Agreement, Developer and its successors or assigns, shall
implement an affordable access component to the Project as provided for in this Agreement, the
CRA's Workforce Housing Direct Incentive Program Guidelines, and as set fqrth below
("Affordable Access Requirements"). Implementation and maintenance of the Affordable Access
Program shall be as follows:
5.1. Affordable Access - Residential.
5.1.1. Developer agrees to set aside fifty (50) units designated as Affordable
Access Units.
5.1.2. Developer agrees to reduce the price of the fifty (50) units designated as
Affordable Access Units by Sixty Thousand and NollOO Dollars ($60,000.00) for the Cypress
Model, Fifty Thousand and Noll 00 Dollars ($50,000.00) for the Palm Model, and Forty
Thousand Dollars ($40,000.00) for the Banyan and Hibiscus Models (see attached Price List
marked as Exhibit "c" which is attached hereto and made a part hereof) to buyers whose income
does not exceed 120% of Median Household Income ("MHI") for Palm Beach County as set by
the United States Housing and Urban Development ("HUD") for the year 2006. Proof of income
qualification for the Affordable Access Units shall be provided to the CRA prior to any
disbursement of Pledged Project Increments Revenue. Examples of acceptable forms of proof
include HUD closing statements executed by the buyer and seller; copies of two years of tax
returns; andlor paycheck stubs for all adults in the buyer's family for the two weeks prior to
closing including proof of family size.
5.1.3. Qualifications for buyers of the Affordable Access Units and related re-
sale requirements and restrictions shall be found in Exhibit "D" attached hereto and made a part
hereof (the CRA Homebuyer Assistance Program Guidelines 200612007).
5.1.4. The re-sale limitations and requirements set forth herein shall be included
in the deeds of sale, to be executed by Developer as seller (or its successors or assigns) and the
purchaser at the time of closing on the initial sale of the Affordable Access Units; shall constitute
a covenant running with the unit; and shall be recorded in the Public Records of Palm Beach
County, Florida. CRA shall approve the form of the deed prior to execution.
5.2. Performance Audit. Prior to receiving the annual allotment of Pledged Project
Increments Revenue, Developer shall provide written audited verification, at its sole cost and
expense, of substantial completion and of compliance with the requirement to sell 50 Affordable
Access Units.
5.2.1. This performance audit shall be conducted by an independent Certified
Public Accountant (CPA), selected and paid for by Developer with the approval of the CRA.
5.2.2. With respect to the Affordable Access Unit component of the Program, the
CP A must examine the qualifying income data for every purchaser identified as a qualifying
purchaser pursuant to the Affordable Access Unit requirements and must certify, in writing, the
eligibility of all such qualifying Purchasers under the Program. The written opinion must include
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
4
verification of the number of residential units which are oWfled by qualified purchasers.
Developer must provide all necessary documents to conduct the audit including, but not limited
to, the executed deeds and closing statements.
i'
5.2.3. The examinations and OpInIOnS required under this Section must be
conducted in accordance with generally accepted accounting standards established by the
American Institute of Certified Public Accountants.
5.2.4. The audit required pursuant to this Section may be performed In
conjunction with other auditing services.
5.2.5. Disbursement of the Pledged Project Increment Revenues shall only occur
upon the CRA's acceptance of a properly documented and supported audit. Disbursement of
Pledged Project Increments Revenue shall be conducted pursuant to the Direct Incentive
Program for Workforce Housing Guidelines. An example of such funding disbursement is
attached as Exhibit E.
5.2.6. It is acknowledged, understood and agreed that Developer may not be able
to sell each Affordable Access Unit. In the event that not all Affordable Access Units are sold,
then the funds Developer would otherwise be entitled to shall be reduced by an amount
corresponding to the percentage as set forth in Section 6.1.A herein. See also Exhibit E as an
example.
5.2.7. Exceeding the agreed upon requirements of the 50 Affordable Access
Units shall not entitle Developer to additional funding under this Agreement or to a credit or set-
off against any reduction in funds due to failure to meet the other Affordable Access
Requirements in earlier years hereunder.
Section 6. Direct Incentive Fundine:. The direct incentive funding provided for
under this Agreement is granted to Developer for the purpose of offsetting, in part, Developer's
cost of creating fifty (50) affordable residential units.
6.1. Direct Incentive Fundine: Formula and Term. The CRA hereby agrees
to direct fund, that is, to pledge and assign to Developer for a period of ten (10)
consecutive years, as provided herein and below, an annual amount which equals the
Pledged Project Increment Revenues as set forth in subsection 6.1.C. herein less any
amounts deducted pursuant to the terms of Section 5 above due to the failure of
Developer to comply with the Affordable Access Requirements ofthis Agreement.
A. The Pledged Project Increments Revenue shall be awarded pro rata
based on the proportion of Affordable Access Units sold to eligible
buyers. For example, if ten (10) percent of affordable access units
are sold in the first year the Project Increment Revenues are
available, Developer is entitled to 10% of the eligible Pledged
Project Increments Revenue that year. If, the following year 100%
of affordable access units are sold, Developer is entitled to 100%
of the Pledged Project Increments Revenues that year and in
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
5
continuing years until the ten-year period has terminated. See
Exhibit E attached hereto and made a part hereof for the estimated
Pledged Project Increments Revenue Calculation for this Project.
"
B. Developer shall have the option to postpone the first Pledged
Project Increments Revenue disbursement to the following year at
Developer's option with written notification provided to the CRA
in advance of the disbursement.
C. For the first through fifth disbursements of the Pledged Project
Increments Revenue, the Developer shall be entitled to 75% of the
Project Increment Revenues. For the sixth through tenth
disbursements, the Developer shall be entitled to 25% of the
Project Increment Revenues.
6.2. Commencement and Conditions of Fundine:. The ten (10) year term for
each Phase for the receipt of Pledged Project Increments Revenue shall commence in the
year that the following conditions are met:
A. The Project is Substantially Complete;
B. The completed improvements of each Phase have been placed on
the Tax Roll;
C. The CRA has determined that Project complies with the
commitments and with all of the terms and provisions of this
Agreement;
D. All requirements as set forth within this Agreement have been
complied with by Developer; and
E. The CRA has received Project Increment Revenues from such
improvements.
6.3. Disbursement of Funds. Except as otherwise provided herein, the
Pledged Project Increment Revenues shall be disbursed to Developer by April I of the
year following the corresponding ad valorem tax year
6.4. No Plede:e of Plede:ed Project Increment Revenues. The CRA warrants
and represents that the Pledged Project Increment Revenues are not the subject of any prior
pledge by the CRA and agrees that such revenues shall not be assigned, pledged, hypothecated or
secured by the CRA for the period covered by term of this Agreement.
6.5. Subordination. Any Pledged Project Increment Revenue of the CRA
pursuant to this Agreement is subordinate to the pledge of the tax increment revenue given to
secure the CRA's Tax Increment Revenue Bonds pursuant to Resolution No. 04-04, adopted
December 6, 2004, as amended and supplemented.
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
6
Section 7. Events of Default. Remedies and Termination.
7.1. Default. Upon the occurrence of anyone or more of the following ,events, all
obligations of the CRA to disburse further funds under this Agreement shall terminate at the
option of the CRA. Notwithstanding the preceding sentence, CRA may at its option continue to
make payments or portions of payments after the occurrence of one or more of such events
without waiving the right to exercise such remedies and without incurring liability for further
payment. The CRA may at its option terminate this Agreement and any and all funding under
this Agreement upon occurrence of anyone or more of the following:
7.1.1. Any representation by Developer in or in connection with this Agreement
is inaccurate or incomplete or false in any material respect.
7.1.2. The failure of Developer or its Affiliate to observe or perform any of the
terms, covenants, conditions, obligations, or provisions of this Agreement in any material respect
to be observed or performed by Developer or such failure continues for a period of thirty (30)
days after written notice thereof from the CRA to Developer provided, however, that if the
nature of Developer's default is such that more than thirty (30) days are reasonably required for
its cure, then Developer shall not be deemed to be in default if Developer commenced such cure
within said 3D-day period and thereafter diligently pursues such cure to completion.
7.2. Remedies. Upon the occurrence of anyone or more of the foregoing events, CRA
may, at its option, give notice in writing to Developer to cure its failure of performance if such
failure may be cured. Upon the failure of Developer to cure, CRA may exercise anyone or more
of the following remedies:
7.2.1. Terminate this Agreement upon not less than fifteen (15) days notice, by
certified letter to Developer at the address specified in Section 8.5 of this Agreement, such notice
to take effect when delivered to Developer.
7.2.2. Commence a legal action for the judicial enforcement of this Agreement
and for any and all damages occasioned by Developer breach of this Agreement including, but
not limited to, repayment of funds disbursed to Developer as a result of fraud or material
misrepresentation.
7.2.3. Withhold the disbursement of any payment or any portion of a payment.
law.
7.2.4. Take any other remedial actions that may otherwise be available under
7.3. Attorney's Fees and Costs. In any judicial action arising from this Agreement
the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs, at
both the trial and appellate levels, from the non-prevailing party. However, the CRA shall not be
required to exceed its limits of liability as set forth in section 768.28, Florida Statutes.
7.4. Law and Remedy. This Agreement shall be governed by the laws of the State of
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
7
Florida. Venue of any and all legal actions arising from this Agreement shall be in Palm Beach
County, Florida. No remedy herein conferred upon any party is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in equity or by statute
or otherwise. No single or partial exercise by any party of any right, power, or remedy hereunder,
shall preclude any other or further exercise thereof.
7.5. Strict Performance. No failure by either party to insist upon strict performance of
any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy
available to such party by reason of the other party's Default and no payment or acceptance of
full or partial payments of amounts due under this Agreement during the continuance (or with
CRA's knowledge of the occurrence) of any Default or Event of Default, shall constitute a
waiver of any such Default or Event of Default or of such covenant, agreement, term, or
condition or of any other covenant, agreement, term, or condition. No waiver of any Default
shall affect or alter this Agreement, but each and every covenant, agreement, term and condition
of this Agreement shall continue in full force and effect with respect to any other then existing or
subsequent Default. Payment by either party of any amounts due under this Agreement shall be
without prejudice to and shall not constitute a waiver of any rights against the other party
provided for under this Agreement or at law or in equity. One party's compliance with any
request or demand made by the other party shall not be deemed a waiver of such other party's
right to contest the validity of such request or demand. All the terms, provisions, and conditions
of this Agreement and the restrictive covenants shall inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns. The Agreement shall not be
construed more strictly against one party than against the other merely by virtue of the fact that it
may have been prepared by counsel for one of the parties, it being recognized that both parties
have contributed substantially and materially to the preparation of the Agreement and the
restrictive covenants.
7.6. Remedies Under Bankruptcy and Insolvency Codes. If an order for relief is
entered or if any stay of proceeding or other act becomes effective against Developer or in any
proceeding which is commenced by or against Developer under the present or any future federal
bankruptcy code or in a proceeding which is commenced by or against Developer, seeking a
reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief
under any other present or future applicable federal, state or other bankruptcy or insolvency
statute or law, CRA shall be entitled to invoke any and all rights and remedies available to it
under such bankruptcy or insolvency code, statute or law or this Agreement.
7.7. Termination. The obligations of Developer and CRA shall terminate upon the
expiration of the Project Increment Revenues payments to Developer as provided in Section 6
above as a result of the expiration of the agreed upon payment periods.
Section 8. General Conditions.
8.1. CRA's Maintenance of Records and Annual Account Fundine:. Commencing
with the Effective Date, the CRA shall maintain and administer separate financial records which
reflect terms of this Agreement. Such records shall clearly document for the benefit of the CRA
and Developer, the Base Year amount and the annual revenue collected by the CRA attributable
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
8
to the Project and the annual amounts owing and paid under this Agreement.
8.2. Successors and Assie:ns. The CRA and Developer each binds itself and its
successors, executors, administrators and assigns to the other party and to the ~uccessors,
executors, administrators and assigns of such other party, in respect to all covenants of this
Agreement. Prior to Substantial Completion of the Project, without the prior written consent of
the CRA, Developer may transfer this Agreement to an Affiliate who reaffirms that Developer
shall continue to be responsible for all the obligations of Developer under this Agreement in
order to receive the full Pledged Project Increments Revenue as provided for in Section 6 hereof;
provided, however, that prior to Substantial Completion of the Project, this Agreement'may not
be assigned by Developer to any third party without the prior written consent of the CRA and
without the assignee's specific written assumption of all of the obligations of Developer under
this Agreement. After Substantial Completion this Agreement may be assigned by Developer;
provided, however, that any assignee thereto shall specifically assume all of the obligations of
Developer under this Agreement. Nothing herein shall be construed as creating any personal
liability on the part of any officer or agent of the CRA, nor shall it be construed as giving any
rights or benefits hereunder to anyone other than the CRA and Developer. In the event that the
CRA determines that Developer is in violation of this paragraph, the CRA shall have the right to
terminate this Agreement and to seek repayment of the funds paid by the CRA to Developer.
8.3. No Brokers. CRA and Developer each represents to the other that it has
not dealt with any broker, finder, or like entity in connection with this Agreement or the
transactions contemplated hereby, and each party shall indemnify the other against any claim for
brokerage commissions, fees, or other compensation by any person alleging to have acted for or
dealt with the indemnifying party in connection with this Agreement or the transactions
contemplated hereby.
8.4. Indemnification and Hold Harmless. Developer agrees to protect, defend,
reimburse, indemnify and hold the CRA, its agents, employees and elected officers and each of
them, free and harmless at all times from and against any and all claims, liability, expenses,
losses, costs, fines and damages, including attorney's fees, and causes of every kind and
character (sometimes collectively "Liability") against and from the CRA which arise out of this
Agreement, except to the extent that any of the Liability results from the negligence or willful
misconduct of the CRA. Developer recognizes the broad nature of this indemnification and hold
harmless clause, and voluntarily makes this covenant and expressly acknowledges the receipt of
good and valuable consideration provided by the CRA in support of this clause in accordance
with the laws of the State of Florida. CRA's indemnification obligations shall not exceed the
statutory limits provided within Section 768.28 Florida Statutes, and CRA does not waive its
sovereign immunity rights. This paragraph shall survive the termination of the Agreement.
8.5. Notices and other Communications. Whenever it is provided herein that notice,
demand, request, consent, approval or other communication shall or may be given to, or served
upon, either of the parties by the other (or any recognized mortgagee), or whenever either of the
parties desires to give or serve upon the other any notice, demand, request, consent, approval or
other communication with respect hereto or to the Project, each such notice, demand, request,
consent, approval or other communication (referred to in this Section 9.4 as a "Notice") shall be
in writing (whether or not so indicated elsewhere in this Agreement) and shall be effective for
O:\CORD003 - Boynton Beach CRA - Cornerstone DIF A-I 0-27-06
9
any purpose only if given or served by (i) certified or registered United States Mail, postage
prepaid, return receipt requested, (ii) personal delivery with a signed receipt or (iii) a recognized
national courier service, addressed as follows:
If to Boynton Village:
Boynton Village, LLC
clo Cornerstone Group Development, LLC
Attention: Leon Wolfe
2121 Ponce de Leon Boulevard, PH
Coral Gables, Florida 33134
With Copies to:
Michael Weiner, Esq.
Weiner & Aronson, P.A.
102 North Swinton Avenue
Delray Beach, Florida 33444
If to CRA:
Boynton Beach Community
Redevelopment Agency
Lisa Bright, Executive Director
915 South Federal Highway
Boynton Beach, Florida 33435
With Copies to:
Kenneth G. Spillias, Esq.
Lewis, Longman & Walker, P.A. ,
1700 Palm Beach Lakes Boulevard, Suite 1000
West Palm Beach, Florida 33401
8.5.1. Any Notice may be given in a manner provided in this Agreement on
either party's behalf by its attorneys designated by such party by Notice hereunder.
8.5.2. Every Notice shall be effective on the date actually received, as indicated
on the receipt therefore, or on the date delivery thereof is refused by the intended recipient.
8.6. Time is of the essence. The parties acknowledge that time is of the essence in
the performance of the provisions in this Agreement.
8.7. Entire Ae:reement. The CRA and Developer agree that this Agreement sets forth
the entire agreement between the parties and that there are no promises or understandings other
than those stated herein. None of the provisions, terms and conditions contained in this
Agreement may be added to, modified, superseded, or otherwise altered, except by written
instrument executed by the parties hereto.
8.8. Exhibits. Each Exhibit referred to in this Agreement forms an essential part of
this Agreement. Any exhibits not physically attached shall be treated as part of this Agreement
and are incorporated herein by reference.
8.9. Severability. If any provision of this Agreement or application thereof to any
person or situation shall, to any extent, be held invalid or unenforceable, the remainder of this
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
10
Agreement, and the application of such provisions to persons or situations other than those as to
which it shall have been held invalid or unenforceable shall not be affected thereby, and shall
continue in full force and effect, and be enforced to the fullest extent permitted by law.
I
8.10. Priority of Interpretation. In the event of any conflict between the terms
and conditions of this Agreement and the Direct Incentive Program, the terms and conditions of
this Agreement shall prevail.
8.11. Headine:s. Headings herein are for convenience of reference only and shall
not be considered in any interpretation of this Agreement.
8.12. Insurance. All parties hereto understand and agree that the CRA does not
intend to purchase property insurance in connection with this Project.
8.13. Bindine: Authority. Each party hereby represents and warrants to the other
that each person executing this Agreement on behalf of the CRA and Developer (or in any
representative capacity) as applicable, has full right and lawful authority to execute this
Agreement and to bind and obligate the party for whom or on whose behalf he or she is signing
with respect to all provisions contained in this Agreement.
8.14. Recordine:. This Agreement may be recorded in the Public Records of Palm
Beach County, Florida.
SIGNATURES ON FOLLOWING PAGE
O:\CORD003 - Boynton Beach CRA - Cornerstone DIF A - 10-27-06
11
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day and
year first above written.
WITNESSES
Print name:
Print name:
Print name:
Print name:
BOYNTON VILLAGE, LLC
By:
Print name:
Title:
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
By:
Print name: Henderson Tillman
Title: Chair
By:
Print name:
Title: Chairperson
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
12
STATE OF FLORIDA
SS:
COUNTY OF PALM BEACH:
BEFORE ME, an officer duly authorized by law to administer oaths and take
acknowledgments, personally appeared as of
and acknowledged under oath that helshe has executed
the foregoing Agreement as the proper official of , for the use and
purposes mentioned herein and that the instrument is the act and deed of
Helshe is personally known to me or has produced
as identification.
IN WITNESS OF THE FOREGOING, I have set my hand and official seal at in the State and
County aforesaid on this _ day of I 2006.
Notary Public, State of Florida at Large
My Commission Expires:
STATE OF FLORIDA
SS:
COUNTY OF PALM BEACH:
BEFORE ME, an officer duly authorized by law to administer oaths and take acknowledgments,
personally appeared as of BOYNTON
BEACH COMMUNITY REDEVELOPMENT AGENCY, and acknowledged under oath that
helshe has executed the foregoing Agreement as the proper official of BOYNTON BEACH
COMMUNITY REDEVELOPMENT AGENCY, for the use and purposes mentioned herein and
that the instrument is the act and deed of BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY. Helshe is personally known to me or has produced
as identification.
IN WITNESS OF THE FOREGOING, I have set my hand and official seal at in the State and
County aforesaid on this _ day of I 2006.
Notary Public, State of Florida at Large
My Commission Expires:
O:\CORD003 - Boynton Beach CRA - Cornerstone DIF A - 10-27-06
13
Exhibit "A"
Property Description
That portion of Lots 20 through 26, inclusive, lying East of the West line of Section 15,
Township 45 South, Range 43 East, Boynton Beach, Florida as shown on the Plat of SAM
BROWN JR.'S HYPOLUXO SUBDIVISION, as recorded in Plat Book 1, Page 81, in and for
the Public Records of Palm Beach County, Florida, less however the South 332 feet, of the West
165 feet, (as measured along the West and South lines) thereof. .
Together with the beneficial interest in that certain Ingress and Egress Easement contained in
Warranty Deed recorded in Official Records Book 3580, page 1323.
Together with the beneficial interest in that certain Utilities Easement contained in Warranty
Deed recorded in Official Records Book 3580, Page 1323, as modified by Relocation and Grant
of Easement recorded in Official Records Book 6686, page 191.
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
14
ft
';" 1;
L. Ml,.l
~~Tf
Exhibit "B"
Site Plan
~~
""-
....
:L
'~1
;,:'.
P"
,....,
. .-4
I ~ . l
~ .
r
~ ,
h .
;: ~ .'
, ~
J~~~~ ',Ii
, h~l~
;j;1,)l,;~",
I nu~
i""{~rv~i"""i,,-f.'..iIH",,~; J"'(,>,~~;.>~''i;;.- ~"-'~~{i{-:)J ~~t'.
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA - 10-27-06
15
Exhibit "C"
Price List
n:u
.q~erPe
PRICE LIS 'I'
Ban}'ilIJ
2 Hed 2El[~th 1 (:<~lt gllIUgC
r ,fVi' f sq fL u/.:: area
Fmm ,~2S'),9"''''H
Cypn:oss
:2 Hed, pJus [',!\;,Hb t B-::dn:)om, :2 Bath I cur t~llmg(~
],56 J sq. h. ale aren
Fr 0111 $341),99n
HfbiSl:Us.
J Bed:; BMh J 1.;a:1' gm'age
1 .5:5 "1 SI'-1' fl:. a.1e J"1If: a
f;t'om $279,99(1
Palm
:~ fk{1 3 Bmb J car g..arage
I JiCH sq_ fc :I/<.: area
a;,"\;utl $289,990
Priccs !.;rlbJt~';;' to dlmlge......ithnul prior rl~)h.T,,"I.ion
7 J},':;v'06
~
W 11..\K'.l'>~"'1^ER'/oJ,$ ...."0 jf;i'Ii(~II\I:'.',nl:1"'> ,.,HE ~J.HliEC'rla ,'..IlCHrrD::Tl.'I{.'l.L., STRIH'li.n -,I".M) (OHm: l<l,"".,.l<I~",~ _.,
!1iE.le' JUi.I! PI:l'-l'>tUi1 ."'-l~""I$."lIUi Il.l( 11:1;:; 1~'F'OrF.f:'IlUll.71F.j( rIIlI\IIOln1):'T. Qti lIS &t.....' Ill" lHY;,)u!?;!;!> Wr' L....W, O~AI
"t:.l'l!;~U~TI\T1~S;-c'.'.l',""'JT'El'Z, RULED Uf'O'l ,;5 ():JflrIEf"15 sr"1Tl:\lO RH'fI,f.:>i",..fI\1111'4"Ffi' 111,ED\"VlilLJl~iP.,,<* -r::01O;RIY':T
Jlltl'R!';5.E"'T I,HCNS, kf!PLKh!'''I:lr,~ Hi;IVtLi BE MAll1: Iti Tu~: Il(KUt'<lE!VT$ IlEOdmi'" II'" :;tl:"T!O'O }; j J-n FJ.i)~:Il'A ST ""n, n,~, TO
In.' Ft"fl2'..I~HEnR'" A IJt:'nT{)l'TIR T'O If. 1l.\."'EiI i>>_l.J::s~r'J' MT I1;E"f.lr:kr:"f~~ '""tlF "'~H~:S:; ro-'C'SliJ:f'I1'i,
O:\CORD003 - Boynton Beach CRA - Cornerstone DIF A-I 0-27-06
16
Exhibit "D"
CRA Homebuyer Assistance Program Guidelines
E'iilrt,S.~dE ...\!Ves t. S.;tdeo.... Se~$f1de ift;e:n~..$$~n{:o
n~.n.(lmBc9fll (,'-OJtiiUtuJ.itJ'~..!Vdl;llnn#n. Agl/'I'I~)'
.:hundJUI)'iCr Asststauee I~g:riuu
(HAP)
2()(.6..~{M17
Th"" BI)ynioQ. E3eu.;::b C{};mmuntty Ro..h."'vdillpmt!r:ri .....,j!:....m;y (CR.1\] re.;oJ,!,t'1i",cs tb:l.~ th{~ !uiun.:
f:('onOlmc, hcaLUiI L.lltlw Ccity di!pendl'i upon tbe iiui21dwlt SUfJj:\ly ofJ:mu:;in\S prill>>d fl}T
w\')rJring famiilies. .a.s bUU:'::ittt;,!;!. pri<et!s I;ljmft~ by 'If(lliMe d~tts hi 1{){151(!(i6, l'11a.ny furnj!i("',a
W(,'3'd prico..'i (n~t "fllne h('fUsil1~ tn.~:ikC!!.
Th.. eif)' of'D..:vynl(')i1iOcad, .....".iC; 'II'"'' 3~nl<; ~(""H!>it.tg hZ.lilatlillt.' l"l:Inmcr:lltltp J~rr).!:!.IriUTl: G"iJiiU')
,hJUnn; tq provide dfloWl"i pa}'ntCtrl >iI.~.!Si$tltm;:>:.! hlh:r...... fmd mooeril.~e iJTlt'(o:n~c fi:i:nlnL.c~_ DUl.! N,!
mp&.d hl.'llBih'!. ~n:(;ii4fir;m~ tbe mUt'ibt'l of 10..... iIllnd mnderale ino:Jme jhmHi~ wtID {~alt
r:tf[on:'! [{} !b!a>' '1i."lUl.<Cl.S hus tll!t:'I:'C'..ll:r.ed. hl,rm effort It,) a5Sist tIl"'!1(;: f:mJili:cs t.'hl! eRA hus
[mpll:'n101ID~cd tbe Homel.:Jwyc; A.sslsl,..llfU..1U Pn)!l.T.1,lT!;, l'ri1'gfirm funds !:'.an be tlJ)-x'Jcd with f!J1;:
C~tY'fi SlUr J)(:'I'W"TIP'+l:tm<enll\ssis1WJceP'm,b't'Jmb:1 pml,ridclf<llpf1rmru:i"8 (0 fWJil:ilh.."S. If
SHIP ful>ds i1!tC lL11aviJila.ibt~, It"leP i'uITI'.ds (:an!be uscrl ii's tbe y,lc ml<un:c ()II" ,df.;IWn ~1:rmo(m(
a!4"i!;l'lnpl;~ H13 1(l;11~ i12 aVI;hciUiis mc(.~t .aH Sl nr {!ri~cn;ll 3S set hy' the City (~f Bo,:rnb:tr1n~;:h,
Pm.J.!.l'a.nt Ou.u:rchtw!'
.I. FUP,':!lIlJJ; ifll:::on .0 nrs.\t-oc'ltU:, H'hJ: upp;m'\.'~dlh.i:rsis
:;::, /ltJ.!.piic;!'IIi:S;ltll1:Jj[ l'11c'Ct ~If' of tbl;l .qlll:liificlltit,lIl C:i'il<'~jia {(if IhcSIIIJ) Pm.vn
Pn.YTli1c',nt ,6,saiat.!lIlC>:J Pt(I{;<;f,mn. E 1.>\ 'P' t'/utl,ifiC3(iOD 'viUbe C(li:-.h,id..:xiby d7.it:
f:$ty'~ Comrrnmit}' [mpr(}VeI'lla:..-lIL UCjDrtmen:t nr .'1COInJ10MH it)" Hou.;.t\l!,f!,
[Xt\jt;,JOptJlwtt ()rs:.rmi7,I1~ion (CHfJO:.. ,A N:.qm::st Ik"1' HAl" iUllds mWl;;1 bl.": mllld(~
i:'!Jl tl:re apl>.liellnl'g bch.alfhy (...;tne:r ti"Je Ci~y.o.r CH[)()
J . I~l.t:tellwl~ l"Ti 1:'....
Nc:(Y- Not to exC-CI...u $1S0,462
E:\istiog - Not to cx.c~l :$2iID,462
Ni:"P.' .fmn~ C~')rv;~n:';;llC'JlLomlS- tilt: vU!ucM' flu: Ci1)'/C'R t~ lot 11'':!''l'lrdedlo
hDn~cl>uyet it; ~x.<:h:J~Jfix..m the CRt'\/Citysubsldy att:lI~U!'1t, l-ou1 1'; iT! i;:JooCtiin
the l~fnllau~jj( t1lortg.:':lgec en-:::urubnlin.r;;r;:
4, ElIgible J:"rl>pCJ:1ic<;, inch.de- .;x~~;1iu~. StU,gl.c-~'ltm:ll..y hOllllm, .::r.11").,ti!'Ai:tionc.f JJ{;1h
fiinglc..f!Jznili)! IHtmL~, h....w.nhom~!: nnd (Jm'ld-:ml inhJJllll ~octilk;d 'wi:lhin in!; CR,h,
O:\CORD003 - Boynton Beach CRA - Cornerstone DlF A - 10-27-06
17
2
:'>. L f:>;e of Fumds:
.8. 1')1;.....,... JI!iI:YImemt ,fUr.d dXj..irlgc''''''t.~"
'b. R-c:l=l..HI...litn1 """"",r", (jf:r.eq~tiT.c.d I,.... hring tho;! hglTlO;! uJl10 cod..:;,:'
<l';. J'."';,.n.i1i....~ with dep,er:.dIC,nt, tnit....... I'hiHl;ro::m wiU n:=lve ~..n:'.i"tr"'nc<::.
7. Pen;.ons w,-"r}:;in,g W"lbftllbe City 'JfR(YYt~IOt'. B.".",-ch will ,...,."",Iv,,", ,f":'ef~.,,,,,..:,,,,;.
l'j,. AiPt-tl:i"-Ul:JL.. l:'\t'J'lJl\Jt:;oycd ~n tbe ~C$Sci"l.;i..l ~.-...1i.:~" ae.::',('I.Mi'Ji (c<:,lucaL'L''''',po~i..::",.
fircfigh1eui, !tc-'.uUI~ ""'.O<!"kers and, f)kdlcCl bual.huB. Lnl.:$,-,,,,-;' wEI re.:,,;:.ivc
J'"";:'f~lloe,
9. Joc';(Wle nx')t:r1 aU a.<Juh rmq,nl:!oc..s o:f11',c, t'l.:.u";d",,,loj' ...dl1 ....,.." i:ncLl.ld~.,.j .n tlhc
c:olnpu:tnl in:n ..:::.'f g:N)B~ hU';':::~.JJl:1e'~
1n CH;j.' i11'".d CnA t'ut:><lil~g ",han no1 >ex.;;......'" 400;:<. :fill'" .....""..'JenlJ:1:: InCOl:llC huyct"l< and
5iYJ1. mr 10".... iO(.^'.':'JllC 11.11.),)0......4':. .,-('the. pu:n:,hO<tic l",,-icc. Tl"" UClu.-..J ,'>;Tnlyt,nto.f
fi.Jndbl;g "'.....aniled !iCllulL rlcIK'7lfld ll>:J1un l't!.... t'lIndin.g;~. In 13<:' en"", ..1>,,,,1, eRA
t'ixndii.f1g 'be a......arded "1,..,,....1: 014.' fundh.;g :!o!"-P Ur1l<JUlnlt or S:SO.<hlO.l){l.
Re:t~p"'jlitnt:ion CX1')ct)~..., .-.;:1W:o;>d t<:> briu.!;!iLng ~bc bU~fL<c U:P'ln CClifi"" may ih."
it,d u..:Jedu;p 1'", $:50.000.
I':",,,,mp']r:; #, l :
r...~tehu::."rnlCHousclt.(lld
PW'.c.ll.-.e 1"'rl""", ."f U<lrn",
Closing: Cc,<;(!1l
l'.{",:>(lrno;ulo Mor"lgn@,C,,"""I.uttal
Ch:,."s M.",.l<::i.ttt,"'..... SllU" [).;:'''V..tlX!l~-'J:U''''Tlt
F~mtding Gap
1"con.'C'nt of"P..nblic Sub;;:Jd)'
$ ('>tl;.o:l(JD
$ ~ 8-1). Uo(JO
'i; S,(JO{~
'$21,3~,..t:.'41
:'10 SO.O{)()
$ 2IL,:2::19
29~...~
E:>illluplc#2
lLct..... lnciJ>'1T1<C H<HtiiCIt<J~d
PU:1'clta.,w: l'7h::-il!! tJot"HQlTIe
Closimg Cost~
l'.f"udm!i'H) J\,.{:OOrlgng,"'........I1cI......r>I'
City's ""'1~~"m;nl"! SHTP'I[).:.v.:l,'u r-':"T1Cl'It
F~u:wl.iI1;g Gap
r""""""'nt of'l'l.ibhc Sh,b...,dly
:l;.4'J,.2 on
S?80<;1.}(1I)
$ 5,~!(IO
,$ j 15:>4,700
S 75,OOUo
S 45,.3'1;):)
43~-{.
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O:\CORD003 - Boynton Beach eRA - Cornerstone DIF A - 10-27-06
18
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O:\CORD003 - Boynton Beach CRA - Cornerstone DIF A-I 0-27-06
19
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O:\CORD003 - Boynton Beach CRA - Cornerstone DIF A - 10-27-06
20
Exhibit "E"
Pledged Project Increment Revenue Formula Examples
% of Project % of Project
# of Affordable Increment # of Affordable Access Increment
Access Units Sold Revenue Units Sold Revenue
1 2% 26 52%
2 4% 27 54%
3 6% 28 56%
4 8% 29 58%
5 10% 30 60%
6 12% 31 62%
7 14% 32 64%
8 16% 33 66%
9 18% 34 68%
10 20% 35 70%
11 22% 36 72%
12 0.24 37 74%
13 26% 38 76%
14 28% 39 78%
15 30% 40 80%
16 32% 41 82%
17 34% 42 84%
18 36% 43 86%
19 38% 44 88%
20 40% 45 90%
21 42% 46 92%
22 44% 47 94%
23 46% 48 96%
24 48% 49 98%
25 50% 50 100%
O:\CORD003 - Boynton Beach CRA - Cornerstone DIFA- 10-27-06
J'
21
DEC-06-2006 12:23 From:
I-rom:
To:4098#2419#000#737325 P.2/3
1210&/2008 10: 15
1t749 P.002/0D7
, ~~.
11~~e~ eRA
11 East Sld.~w... Slde-s....ide ....n.lss.n<.
BOYNTON BEACH eRA
. AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF:
December 12,2006
AG:tNDA InM:
I CODJent~.. I x
Old Bullbl."
New B..ln_
Public Hearing I
Other
SUBJECT:
CUWlidcmtion of Entering into 811 Agreement with Boynton ViII., LLC for the
Purpose of Applying for CWlnP 1WJds.
SlJMMAR.Y: The Cornerstone Group. under the name Boynton vrnap, LtC. is applying to
Florida Housing Finance COrporation for Comm1Ulity Workforce HousiDa Innovativ:~ Pmgr4U:l1 (CWHIP)
funds h1 tho amount ofSS,OOO,OOO for The PfiiKnrc Project. If the CWHIP appllcation is approved,
Cort'\~to!W will miuce the szles price on SO units for sale to buyers who earn below 140% ofMHI.
One ofthe requJre.ments of the CWliIP application is a match by the looal governmem. StafFis
propo~ th81 the match is $2.5 million from the Home~11I Assi~c:e Program.
FISCAL IMPACT:
S2.~ million from the Homebuyer Assistonoe Prognm budget of 53.0 million.
RECOMMENDATIONS:
Approve the agreemlmt with Boynton Village. LLC for the purpose of applYiD8 for CWHIP funds.
~/JI
CRA P1mnlnt: Dtreetor
T:II1O&NDM, CONSENt ,,~. MON1l1LY ~RTS\CampIeM ~genda 18m Reauest ~onn. by MNUng\FV 200S-ZC07 iuard
Moctmgll\DI:I ,~ '01 OM 150atcl MeIetIng - Decembe~ CWHIP Aaree.C1C1(l
COMMUNITY HOUSING WORKFORCE INNOVATION PROGRAM AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this 12th day of
December, 2006, by and between BOYNTON VILLAGE, L.L.C., a Florida limit~d liability
company ("Boynton Village"), and BOYNTON BEACH COMMUNITY REDEVELOPMENT
AGENCY, a public agency created pursuant to Chapter 163, Part III, Florida Statutes ("CRA).
Boynton Village and the CRA are sometimes collectively referred to as the "Parties", or individually,
as a "Party".
WITNESSETH
WHEREAS, the Community Workforce Housing Innovation Program ("CWHIP") is a pilot
program created pursuant to House Bill ("HB") 1363 (Chapter 2006-69, s. 27, Laws of Florida)
which focused on addressing some of the affordable housing issues the State of Florida currently
faces and is administered by the Florida Housing Finance Corporation; and
WHEREAS, CWHIP is administered by the Florida Housing Finance Corporation and funds
are awarded on a competitive basis through a formal Request for Proposals process to public-private
entities planning to construct affordable housing units for Florida's workforce; and
WHEREAS, CWHIP provides forgivable loans and incentives to affordable rental and home
ownership projects for essential service personnel affected by the high cost of housing in Florida and
the program fosters local private-public partnerships and leverages government and private
resources; and
WHEREAS, Boynton Village will be applying for CWHIP funds and as a part of the
application and approval process, a local governm~nt match is required; and
WHEREAS, Boynton Village has applied to the CRA for a financial subsidy in the amount
of Two Million Five Hundred Thousand Dollars ($2,500,000.00) ("Subsidy") under the CRA's
Homebuyer's Assistance Program ("HAP") to serve as the required CWHIP match and for the
purpose of financing the development of workforce housing within the City of Boynton Beach in
connection with the housing development commonly known as "The Preserve at Boynton Beach",
located at 1801 N.E. 4th Street, Boynton Beach, Florida, 33435, to be occupied in part for workforce
housing (the "Development"); and
WHEREAS, the Development will consist of a total of 180 residential units of which 50
units are to be subsidized by the CRA under its Workforce Housing Direct Incentive Funding
Program (the Direct Incentive Funding Agreement was approved by the CRA Board on December
12,2006), and another 50 units are to be subsidized by a combination of the CRA under the HAP
and by the State of Florida under the CWHIP; and
WHEREAS, on December 12,2006, the CRA Board approved this Agreement; and
WHEREAS, the CRA encourages the development of workforce housing within the City of
Boynton Beach and believes the Development will inure to the benefit of the citizens of the City of
Boynton Beach and Palm Beach County, Florida; and
WHEREAS, the Parties desire to join under this Agreement to outline the terms and
conditions pursuant to which the Parties will provide the Subsidy to the owners of those units within
the Development which are designated as workforce housing.
NOW, THEREFORE, in consideration ofthe mutual covenant contained herein, the Parties
agree as follows:
Section 1. Ratification. The recitals herein are true and correct and incorporated
herein by this reference.
Section 2. CRA Obligations. CRA agrees to provide the Subsidy to the
Development for the construction of 50 units for qualified homebuyers through the CRA' s
HAP. The HAP guidelines and required documentation (attached as Exhibit A) shall apply to
all potential home buyers.
Section 3. Boynton Village Obligations. Boynton Venture agrees to make
available fifty (50) units (in addition to the fifty (50) units already designated pursuant to the
CRA's Workforce Housing Direct Incentive Funding Program) for the purpose of workforce
housing.
Section 4. Administration of HAP Funds. The CRA, through its designated
representative, will pre-qualify potential homebuyers of units within the Development
pursuant to the CRA's HAP guidelines, rules and related documents (see attached Exhibit
A).
Section 5. Commitment of Funds/Term. This Agreement shall expire on April 1 ,
2008 unless otherwise extended in writing as agreed to by the Parties. After April I , 2008,
the CRA shall not be obligated to disburse any additional funds under this Agreement, and
neither party shall have any obligations or responsibilities thereafter.
Section 6. Scope of Authority. Except as otherwise expressly provided in this
Agreement, neither of the Parties shall have any authority to act for, or to assume any
obligations or responsibility on behalf of the other Party.
Section 7.
Miscellaneous.
7.1. Notice. All notices, demands or requests authorized or required hereunder shall be in
writing and shall be deemed to have been properly given or served by personal
delivery or by depositing the same in the United States mail, first class, postage
prepaid, and registered or certified with return receipt requested, addressed:
(a) If to the CRA:
Boynton Beach CRA
915 South Federal Highway
Boynton Beach, Florida 33435
Attention: Executive Director
With a copy to:
Lewis, Longman & Walker, P.A.
Attention: Kenneth G. Spillias, Esq.
1700 Palm Beach Lakes Boulevard, Suite 1000
West Palm Beach, Florida 33401
(b) If to Boynton Village:
2121 Ponce de Leon Boulevard, PH
Coral Gables, Florida 33134
Attention: Mara S. Mades
or to such other address as such parties shall designate by notice given in the manner provided above.
All notices, demands and requests shall be effective upon being deposited in the United States mail
or upon personal delivery. However, the time period in which a response to any such notice, demand
or request must be given shall commence to run from the date of personal delivery or the date of
receipt on the return receipt of the notice, demand or request by the addressee thereof.
7.2. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Florida. Venue for any action shall be in Palm Beach
County, Florida.
7.3. Entire Agreement. This Agreement contains the entire agreement between
the Parties respecting the subject matter hereof. Any variations, amendments, modifications or
changes in this Agreement shall not be binding upon a Party unless consented to in writing duly
executed by such Party.
7.4. Attorneys' Fees. If either Party commences an action against the other to
enforce or interpret any of the terms hereof or because of the breach by either Party of any of the
terms hereof, the prevailing Party shall be entitled to recover from the other Party reasonable
attorneys' fees and costs and expenses incurred in litigation through all trial and appellate levels.
7.5. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, and, their respective successors and assigns.
7.6. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which taken together shall constitute one and the same
instrument. A facsimile copy of this Agreement and any signatures thereon shall be considered for all
purposes as originals.
7.7. Captions. The headings and captions in this Agreement are for each of
reference only and shall not be relied upon in construing any provision hereof.
7.8. Benefit of Parties Only. This Agreement is made for the sole benefit of
the Parties hereto and only to the extent provided in this Agreement. Nothing herein shall create, or
be deemed to create, a relationship between the parties hereto, or either of them, and any third person
in the nature of a third party beneficiary, equitable lien or fiduciary relationship.
7.9. Assignment. Boynton Village shall not be permitted to assign its
rights under this Agreement without the prior written consent of CRA, which may be withheld in
CRA's sole discretion.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the year and day
first above written.
WITNESSES:
Print Name:
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
BY:
Print Name:
By:
Henderson Tillman
Chair
Approved by CRA Attorney as
to form and legal sufficiency.
By:
Kenneth Spillias
Print Name:
BOYNTON VILLAGE, L.L.c.,
a Florida limited liability company
Print Name:
By:
Mara S. Mades, Vice President
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of this 12th day of
December, 2006, by and between BOYNTON VILLAGE, L.L.c., a Florida limited liability
company ("Boynton Village"), and BOYNTON BEACH COMMUNITY REDEVELOPMENT
AGENCY, a public agency created pursuant to Chapter 163, Part III, Florida Statutes ("CRA).
Boynton Village and the CRA are sometimes collectively referred to as the "Parties", or individually,
as a "~".
WITNESSETH
WHEREAS, Boynton Village has applied to the eRA for financial subsidy in the amount of
Two Million Five Hundred Thousand Dollars ($2,500,000.00) ("Subsidy") under the CRA's
Homebuyer's Assistance Program funds to finance the development of workforce housing within the
City of Boynton Beach in connection with the housing development commonly known as "The
Preserve at Boynton Beach", located at 1801 N.E. 4th Street, Boynton Beach, Florida, 33435, to be
occupied in part for workforce housing (the "Development"); and
WHEREAS, the Development will consist of a total of 180 residential dwellings of which
100 are to be subsidized by the CRA and Community Workforce Housing Innovation Pilot Program
("CWHIP") funds; and
WHEREAS, Community Workforce Housing Innovation Program funds are used to provide
affordable rental and homeownership to the communities essential workforce; and
WHEREAS, the CRA on December 12, 2006, approved the Subsidy for the construction of
fifty (50) workforce housing units at The Preserve at Boynton Beach; and
WHEREAS, the CRA would like to encourage the development of workforce housing
within the City of Boynton Beach and believes the Development will inure to the benefit of the
citizens of the City of Boynton Beach and to the citizens of Palm Beach County, Florida; and
WHEREAS, the Parties desire to join under this Agreement to outline the terms and
conditions pursuant to which the Parties will provide the Subsidy to those units within the
Development available as workforce housing to the citizens of the City of Boynton Beach, Palm
Beach County, Florida; and
NOW, THEREFORE, in consideration ofthe mutual covenant contained herein, the Parties
agree as follows:
ARTICLE I
FORMATION OF THE JOINT VENTURE
1.
reference.
Ratification. The recitals herein are true and correct and incorporated herein by this
Purpose. The purpose of the Parties to this Agreement is to provide fifty (50)
workforce units within the Development to be available to the workforce citizens of the City
of Boynton Beach and Palm Beach County (the "Subsidized Units"). The CRA agrees to
provide the Subsidy through its Homebuyer Assistance Program to the 50 qualified
home buyers (the "Grant").. The funds Grant does not have to be paid back as long as the
buyer earns less than 120% of Palm Beach County median gross income and owns the unit
for 30 years. The commitment is good through April 1, 2008. Nothing herein shall restrict
the freedom of either Party to conduct any other business or activity whatsoever (i.ncluding
the acquisition, development, financing and sale of real property) without any accountability
to the other Party.
2. Scope of Authority. Except as otherwise expressly provided in this Agreement,
neither of the Parties shall have any authority to act for, or to assume any obligations or
responsibility on behalf of the other Party.
3. Miscellaneous.
3.1. Notice. All notices, demands or requests authorized or required hereunder shall be in
writing and shall be deemed to have been properly given or served by personal delivery or by
depositing the same in the United States mail, first class, postage prepaid, and registered or certified
with return receipt requested, addressed:
(a) If to the CRA:
Boynton Beach CRA
915 South Federal Highway
Boynton Beach, Florida 33435
Attention: Executive Director
With a copy to:
Lewis, Longman & Walker, P.A.
Attention: Kenneth G. Spillias, Esq.
1700 Palm Beach Lakes Boulevard, Suite 1000
West Palm Beach, Florida 33401
(b) If to Boynton Village:
2121 Ponce de Leon Boulevard, PH
Coral Gables, Florida 33134
Attention: Mara S. Mades
or to such other address as such parties shall designate by notice given in the manner provided above.
All notices, demands and requests shall be effective upon being deposited in the United States mail
or upon personal delivery. However, the time period in which a response to any such notice, demand
or request must be given shall commence to run from the date of personal delivery or the date of
receipt on the return receipt of the notice, demand or request by the addressee thereof.
3.2 Governing Law. This Agreement shall be construed and interpreted in accordance
with the laws of the State of Florida. Venue for any action shall be in Palm Beach County, Florida.
3.3 Entire Agreement. This Agreement contains the entire agreement between the Parties
respecting the subject matter hereof. Any variations, amendments, modifications or changes in this
Agreement shall not be binding upon a Party unless consented to in writing duly executed by such
Party.
3.4 Attornevs' Fees. If either Party commences an action against the other to enforce or
interpret any of the terms hereof or because of the breach by either Party of any of the terms hereof,
the prevailing Party shall be entitled to recover from the other Party reasonable attorneys' fees and
costs and expenses incurred in litigation through all trial and appellate levels.
3.5 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the
parties hereto, and, their respective successors and assigns.
3.6 Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which taken together shall constitute one and the same instrument.
A facsimile copy of this Agreement and any signatures thereon shall be considered for all purposes
as originals.
3.7 Captions. The headings and captions in this Agreement are for each of reference only
and shall not be relied upon in construing any provision hereof.
3.8 Benefit of Parties Only. This Agreement is made for the sole benefit of the Parties
hereto and only to the extent provided in this Agreement. Nothing herein shall create, or be deemed
to create, a relationship between the parties hereto, or either of them, and any third person in the
nature of a third party beneficiary, equitable lien or fiduciary relationship.
3.9 Assignment. Boynton Village shall not be permitted to assign its rights under
this Agreement without the prior written consent of CRA, which may be withheld in its sole
discretion.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the year and day
first above written.
WITNESSES:
Print Name:
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENC;::Y
BY:
Print Name:
By:
Approved by CRA Attorney as
to form and legal sufficiency.
By:
Print Name:
BOYNTON VILLAGE, L.L.c.,
a Florida limited liability company
Print Name:
By:
Mara S. Mades, Vice President
I:\Client Documents\Boynton Beach CRA \2419-029\Misc\CWHIP Agreement.doc
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~~~~Y~T2~ eRA
Ii East Side-West Side-Seaside Renaissance
BOYNTON BEACH CRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF: December 12, 2006
AGENDA ITEM:
I Consent Agenda I X I Old Business
New Business
Public Hearing
Other
SUBJECT: Purchase Agreement with the Related Group for the commercial lot at
Marina Village for execution per the letter of intent executed by the Board and the
Related Group at the Board meeting of August 8, 2006.
SUMMARY: The Agency wishes to complete the LOI with the execution of a purchase
agreement to purchase a commercial lot, seventy (70) parking spaces within the Marina
Village garage, and the fuel dispensing station for $3,570,000.00
FISCAL IMPACT: $1,570,000.00 will come from funds the Agency has on hand, with
the balance of $2,000,000.00 to be paid in 48 monthly installments at the rate of 5.0 %.
The first year's debt service has be included in the FY 2006~2007 budget.
RECOMMENDA TIONS: Execute the purchase agreement
~~
Robert T. Reardon, Assistant Director
Attorney Spillias not available to sign
At the time of production of Board packet
Kenneth Spillias, Esq.
CRA LEGAL COUNSEL
T:\AGENDAS. CONSENT AGENDAS. MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2006-2007 Board
Meetings\06 12 14 CRA Board Meeting - December\TRG OLD BUSINESS-PURCHASE AGREEMENT.doc
PURCHASE AND SALE AGREEMENT
(
THIS AGREEMENT ("Agreement") is made as of the _ day of ,2006, by and
among TRG - BOYNTON BEACH, LTD., a Florida limited partnership ("Seller"), and the
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY, a public agency created
pursuant to Chapter 163, Part III of the Florida Statutes ("Purchaser").
WITNESSETH:
WHEREAS, Seller is the owner of (i) that certain real property located in Boynton Beach,
Palm Beach County, Florida more particularly set forth on Exhibit "A-I" attached hereto (the "Real
Property"), (ii) the Improvements, (iii) the Personal Property, (iv) the equipment, submerged fuel
tanks and other assets more particularly set forth on Exhibit" A-2" attached hereto (collectively, the
"Gas Pump Assets"), (v) the Easements, and (vi) the exclusive right to use the Parking Spaces
(collectively, the "Property"), all located within that certain project commonly known as "Marina
Village at Boynton Beach" in Palm Beach County (the "Project"); and
WHEREAS, Seller desires to sell and transfer its interest in the Property and Purchaser
desires to purchase such interest from Seller on the terms and conditions set forth below.
NOW, THEREFORE, in consideration ofthe premises and the respective undertakings of the
parties hereinafter set forth, it is hereby agreed:
SECTION I. DEFINITIONS
Whenever used in this Agreement, the words and phrases set forth below shall have the
meanings set forth below or in an Exhibit or Schedule to this Agreement to which reference is made,
unless the context clearly requires otherwise.
1.1 "Agreed Cure Items" shall have the meaning set forth in Section 7.1 herein below.
1.2 "Association" means Marina Village at Boynton Beach Master Association, Inc.
1.3 "Business Day" means a day that is not a Saturday, Sunday or a day commercial banks in
Florida are permitted or required to be closed.
1.4 "Closing" means the closing at which Seller conveys title to the Property to Purchaser and
Purchaser pays Seller the Purchase Price described in Section 2.1 herein below.
1.5 "Closing Date" shall have the meaning set forth in Section 10.1 below.
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1.6 "Contracts" shall have the meaning set forth in Section 3.4 below.
1.7 "Due Diligence Items" shall have the meaning set forth in Section 5.4 below. I
1.8 "Disclosure Schedule" shall have the meaning set forth in Section 3.3 below.
1.9 "Earnest Money" means the Initial Earnest Money Deposit and, if made, the Second
Earnest Money Deposit, together with any interest thereon as further defined in Section 2
below. .
1 .10 "Easements" means those certain easements appurtenant to the Property as more
particularly set forth in the Master Covenants.
1.11 "Effective Date" means the date when the last one of the Purchaser and Seller has signed
this Agreement and a copy of such signed Agreement is provided to the parties.
1.12 "Escrow Agent" means Greenberg Traurig P.A., having an address at 1221 Brickell
Avenue, Miami, Florida 33131.
1.13 "Escrow Agreement" means the escrow provisions contained in the Joinder to this
Agreement, as such Joinder may be amended by written instrument executed by Seller,
Purchaser and Escrow Agent.
1.14 "Excluded Property" means the Seller's corporate books and financial and employment
records with respect to the Property.
1.15 Intentionally Omitted.
1.16 Intentionally Omitted.
1.17 "Improvements" means all buildings, structures, fixtures and other improvements now or
hereafter located or erected on the Real Property.
1.18 "Initial Earnest Money Deposit" shall have the meaning set forth in Section 2.2 below.
1.19 "Inventory" means all tangible personal property owned by Seller and used exclusively for
the Property, to the extent located on the Property at Closing, but specifically excluding the
Excluded Property.
1.20 "Marina Association" means Marina Village at Boynton Beach Marina Condominium
Association, a Florida not-far-profit corporation.
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I .21 "Master Covenants" means that certain Declaration of Covenants, Restrictions and
Easements for the Marina Village at Boynton Beach recorded September 15, 2004 in
Official Records Book 17511, Page 564 in the Public Records of Palm Beach County,
Florida, as amended. The Master Covenants shall be deemed to be one of the ','Permitted
Exceptions". Prior to Closing, Seller shall have the right to (i) submit the Property to the
Master Covenants, and (ii) otherwise amend the Master Covenants in a manner which does
not materially and adversely affect the Property.
1.22 "Material" means with respect to a casualty; loss that will require more than $500,000.00
to repair.
1.23 "Parking Spaces" means 70 parking spaces as more specifically depicted on Exhibit "A-3"
attached hereto.
1.24 "Permits" means all rights and permits applicable solely to the use and operation of the
Property to the extent transferable.
I .25 "Permitted Activities" shall have the meaning set forth in Section 6.1 below.
1.26 "Permitted Exceptions" means ad valorem property taxes on the Property for the year of
the Closing (which shall be prorated as of Closing in accordance with Section I 0.5 below),
any other matters as set forth on any title commitment or survey which are not objected to
by Purchaser within the time period as set forth in Section 7 below, or which are otherwise
waived as objections by Purchaser.
1.27 "Personal Property" means the Inventory, Permits, plans, surveys and warranties with
respect to the Property, each to the extent assignable.
1.28 "Project" shall have the meaning set forth in the recitals to this Agreement.
1.29 "Property" shall have the meaning set forth in the recitals to this Agreement.
1.30 "Purchase Price" shall have the meaning set forth in Section 2.2 below. The Purchase
price will be allocated in accordance with Schedule 1.30 attached hereto.
1.31 "Real Property" shall have the meaning set forth in the recitals to this Agreement.
1.32 "Second Earnest Money Deposit" shall have the meaning set forth in Section 2.3 below.
1.33 "Title Commitment" means a commitment from the Title Company to issue an Owner's
AL T A Form B Marketability Policy effective as of Closing insuring the Real Property and
the Easements.
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1.34 "Title Company" means a national title company selected by Purchaser.
SECTION 2. EARNEST MONEY; AGREEMENT TO SELL AND PURC/fJASE.
2.1 Purchase and Sale. On the Closing Date, Seller agrees to sell, and Purchaser agrees
to Purchase, the Property for a Purchase Price to be paid by Purchaser to Seller (the
"Purchase Price") of Three Million Five Hundred Seventy Thousand and
No/tOO Dollars ($3,570,000.00), which shall be payable as follows:
(a) $2,000,000, by Purchaser's execution and delivery of a purchase money
note at Closing, as more particularly described in Section 2.4 of this
Agreement.
(b) $1,570,000.00, in current funds (which includes the Initial Earnest Money
Deposit and Second Earnest Money Deposit held by Escrow Agent) at
Closing, subject to prorations and adjustments as hereinafter provided, to
be paid by wire transfer of Federal funds.
2.2 Initial Earnest Money Deposit. Prior to the Effective Date of this Agreement,
Purchaser deposited the sum of One Hundred Thousand and Noll 00 Dollars
($100,000) with the Escrow Agent (the "Initial Earnest Money Deposit").
2.3 Second Earnest Money Deposit. On the Effective Date of this Agreement, Purchaser
shall deposit an additional Four Hundred Thousand Dollars ($400,000.00) with
the Escrow Agent (the "Second Earnest Money Deposit"). Upon receipt of an
executed W-9, the Escrow Agent shall deposit the Earnest Money in an interest-
bearing account in accordance with the Joinder Agreement attached hereto and
incorporated herein by reference. Upon payment of the Second Earnest Money
Deposit, the Earnest Money shall become "at risk" and non-refundable except (i) in
the event of a breach by the Seller, (ii) if Purchaser tenninates this Agreement
pursuant to a failure of a condition to Closing as set forth in Section 8 hereof, or (iii)
as otherwise specifically provided in this Agreement.
2.4 Purchase Money Note. At Closing, Purchaser shall execute in favor of Seller a
promissory note (the "Promissory Note") in the principal amount equal to
$2,000,000.00. The Promissory Note shall bear interest commencing upon the
Closing Date at the rate of five percent (5%) per annum, and payable as provided in
the Promissory Note. The Promissory Note shall be secured and perfected by a
mortgage and security agreement pursuant to which the Purchaser grants to Seller a
first lien against all of Purchaser's right, title and interest in and to the Property (the
"Mortgage") and all required UCC financing statements. The Promissory Note and
the Mortgage shall be drawn in the form attached hereto as Composite Exhibit "8".
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2.5 Disbursement of Funds at Closing. On the Closing Date, as defined herein, Seller
shall receive the Earnest Money, together with interest thereon, and Purchaser shall
pay the balance of the Purchase Price (plus or minus any adjustments or prorations,
including credit for the Earnest Money), by wire transfer of cleared U.S:funds.
SECTION 3. REPRESENT A TIONS AND WARRANTIES BY SELLER.
3.1 Due Organization. Seller is a duly organized and validly existing limited partnership,
under the laws of the State of Florida and has full power and authOlity, and is duly
authorized to execute, enter into, deliver and perfonn this Agreement and its
obligations hereunder.
3.2 Power. This Agreement and all other agreements, instlUments and documents
required to be executed or delivered by Seller pursuant hereto have been or (if and
when executed) will be duly executed and delivered by Seller, and are or will be
legal, valid and binding obligations of such Seller, enforceable against Seller in
accordance with their terms.
3.3 Condemnation. Seller has not received written notice, nor does Seller have any
actual knowledge, of any pending or threatened condemnation proceedings with
respect to the Property.
3.4 Hazardous Substances. Except as may be disclosed in the environmental reports
provided to Purchaser, Seller has not received written notice, nor does Seller have
any knowledge of: (i) any Hazardous Substance (as hereinafter defined) present on
the Lots, (ii) any present or past generation, recycling, reuse, sale, storage, handling,
transport and/or disposal of any Hazardous Substance on the Property, or (iii) any
failure to comply with any applicable local, state or federal environmental laws,
regulations, ordinances or administrative or judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous
Substance. As used herein, the term "Hazardous Substance" means any substance
or material defined or designated as a hazardous or toxic waste material or substance,
or other similar term by any federal, state or local environmental statute, regulation
or ordinance presently or hereinafter in effect, as such statute, regulation or ordinance
may be amended from time to time.
3.5 Contracts. Attached hereto as Exhibit "C" is a list of all contracts or agreements
which are, to Seller's knowledge, currently in effect regarding the Property (which
contracts and agreements are collectively referred to as the "Contracts"). None of
the Contracts will (a) affect the Property following the Closing, or (b) be assigned to
Purchaser at Closing.
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3.6 Not a Foreign Person. Seller is not a foreign person within the meaning of Foreign
Investment in Real Propeliy Tax Act, as amended.
3.7 Property. The Personal Property, ifany, and other portions ofthe Property delivered
to Purchaser at Closing will be free and clear of any and all liens and/or
encumbrances, other than the Permitted Exceptions.
3.8 Limitations on Representations and Warranties. Except for the representations and
warranties set forth in Sections 3.1 and 3.2 which shall survive the Closing
indefinitely, the representations and warranties of Seller in this Agreement shall
survive the Closing for a period of one (I) year following the Closing; and Seller
shall have no liability thereafter with respect to such representations and warranties
except to the extent Purchaser has filed legal action against Seller during such one
year period for breach of any representation or warranty. If Purchaser has actual
knowledge at Closing that any of Seller's representations or warranties in this
Agreement are not true as of the Closing Date and Purchaser elects nonetheless to
close, Purchaser shall be deemed to have waived any claim for breach of such
representation or warranty.
3.9 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR
IN THE DOCUMENTS DELIVERED AT CLOSING, PURCHASER
ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES
NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OR, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY
OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION,
THE WATER, SOIL, AND GEOLOGY, (B) THE INCOME TO BE DERIVED
FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITY AND USES WHICH PURCHASER MAY CONDUCT
THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS
OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY,
INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY,
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H)
COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION
OR LAND USE LA WS, RULES, REGULATIONS, ORDERS OR
REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE PROPERTY
OF HAZARDOUS MATERIALS OR (1) ANY OTHER MATTER WITH RESPECT
TO THE PROPERTY; AND PURCHASER HEREBY WAIVES ANY RIGHT TO
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MIA 179486478v3 12/4/2006
MAKE ANY CLAIM BASED ON ANY OF THE FOREGOING INCLUDING,
WITHOUT LIMIT A TION, ANY RIGHT TO MAKE ANY CLAIM AGAINST
SELLER BASED ON THE VIOLATION OF ANY ENVIRONMENTAL LAWS.
ADDITIONALLY AND EXCEPT AS OTHERWISE SET FORTH HE~EIN, NO
PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE,
AND BY EXECUTION HEREOF PURCHASER ACKNOWLEDGES THAT NO
PERSON HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT,
WARRANTY, GUARANTY OR PROMISE REGARDING THE PROPERTY OR
THE TRANSACTION CONTEMPLATED HEREIN; AND EXCEPT AS SET
FORTH IN THIS AGREEMENT OR IN THE DOCUMENTS DELIVERED AT
CLOSING NO SUCH REPRESENTATION, WARRANTY, AGREEMENT,
GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON
ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON
SELLER UNLESS EXPRESSLY SET FORTH HEREIN. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS
RELYING SOLELY ON ITS OWN INVESTlGA TlON OF THE PROPERTY AND
NOT ON ANY INFORMA TlON PROVIDED OR TO BE PROVIDED BY
SELLER EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN
THE DOCUMENTS DELIVERED AT CLOSING, AND AGREES TO ACCEPT
THE PROPERTY AT THE CLOSING AND WAIVE ALL OBJECTIONS OR
CLAIMS AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY
RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELA TlNG TO
THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE
PROPERTY EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPER TY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS OR
COMPLETENESS OF SUCH INFORMATION EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT. SELLER IS NOT LIABLE OR BOUND IN ANY
MANNER BY ANY VERBAL OR WRITTEN STATEMENT,
REPRESENTATION OR lNFORMA TlON PERTAINING TO THE PROPERTY,
OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE
BROKER, CONTRACTOR, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR
IN THE DOCUMENTS DELIVERED AT CLOSING, PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR
HEREIN IS MADE ON AN "AS-IS WHERE-IS" CONDITION AND BASIS
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WITH ALL FAULTS. THE PROVISIONS OF THIS SUBSECTION SHALL
SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHA~ER.
4.1 Due Organization. Purchaser has full corporate power and authority, and is duly
authorized to execute, enter into, deliver and perform this Agreement and its obligations
hereunder.
4.2 Power. This Agreement and all other agreements, instruments and documents required to
be executed or delivered by Purchaser pursuant hereto have been or (if and when
executed) will be duly executed and delivered by Purchaser, and are or will be legal,
valid and binding obligations of Purchaser, enforceable against Purchaser in accordance
with their terms.
4.3 No Proceedings. Purchaser has not received any written notice nor does it have any
actual knowledge that there is currently pending any proceedings, legal, equitable or
otherwise, against Purchaser that would affect is ability to perform its obligations
hereunder.
All representations and warranties of Purchaser in Sections 4.1 and 4.2 shall survive the
Closing indefinitely and the representations and warranties of Purchaser in Section 4.3 shall
survive the Closing for a period of one (1) year.
SECTION 5. OPERATION OF THE PROPERTY PRIOR TO CLOSING.
Seller shall do all of the following, from and after the date hereof and prior to the Closing:
5.1 Physical Condition. Except as otherwise provided herein, and subject to normal wear and
tear and casualty, maintain the Property in the same manner as it is currently being
maintained.
5.2 No Alterations. Without the prior written consent of Purchaser (except in the case of
emergencies or as required by law), which consent shall not be unreasonably withheld, not
make or obligate itself to make, any material alterations or modifications to the Property.
5.3 Due Diligence Items. Deliver to Purchaser, or make available to Purchaser at the Property,
copies of the items described in Exhibit "D", and upon the reasonable request of Purchaser,
such other documents to the extent they exist and are in the possession or control of Seller or
its agents and to the extent they have not been previously delivered to Purchaser or its agents
(collectively, the "Due Diligence Items").
SECTION 6. ACCESS TO THE PROPERTY.
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Seller hereby grants to Purchaser the right to enter onto the Property for the purpose of inspecting the
Property at Purchaser's sole cost and expense on the following terms and conditions:
(
6.1 Permitted Activities. Seller wil1 provide to Purchaser, its contractors, agents,
employees and assigns upon no less than twenty-four hours advance notice to Seller
(which notice may be delivered by facsimile transmission or telephonically), full access
to the Property during reasonable business hours to conduct and perform such studies
and investigations as Purchaser deems necessary or appropriate, including, but not
limited to, the following (the "Permitted Activities"): .
(A) review of the Due Diligence Items;
(B) review governmental laws and regulations, including, but not limited to,
zoning, land use, federal and state permitting, environmental, species habitat,
building and construction codes, applicable or which affect the Property and
governmental approvals required or obtained in connection with the use and
operation of the Property;
(C) review the environmental conditions of the Property, including conducting a
Phase I environmental site assessment;
(D) examine and inspect the Property;
(E) make surveys, perform soil borings, engineering tests and other tests
regarding the physical condition of the Property; provided, however, that
Sel1er's prior written consent, which may be withheld in its sole discretion,
shall be needed prior to any invasi ve testing being performed on the Property;
(F) review any and al1 matters relating to the Property which Purchaser wishes to
review; and
(G) contact third parties, including governmental authorities, in connection with
its due diligence investigation.
6.2 [Intentionally omitted].
6.3 Seller Representative. Seller and its agents, employees or designated representatives
shall have the right to accompany Purchaser and its authorized representatives during
any inspections, testing or other activity performed at the Property, provided Seller or
its representatives do not unreasonably interfere with the conduct of any inspections or
testing permitted under this Agreement.
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6.4 Purchaser's Expense. Purchaser shall pay for all work and inspections performed on or
in connection with the Property on Purchaser's behalf, and Purchaser shall not permit
the creation of any lien on the Property in favor of any contractor, m~terialmen,
mechanic, surveyor, architect or laborer as a result of Purchaser's inspections. In
addition, Purchaser and its representatives shall take reasonable precautions so that its
inspections shall cause minimum disruption to any occupants or tenants of the balance
of the Project, all other parties in possession and Seller's employees, contractors or
agents that may be located at the Property. Purchaser shall promptly repair any damage
to the Property resulting from any such inspections and/or tests conducted at'or to the
Property and replace and refill any portion of the Property used for such inspection or
tests so that the Property shall be in substantially the same condition that it existed in
immediately prior to such inspection and tests. The provisions of this Section 6.4 shall
survive the Closing or earlier termination of this Agreement.
6.5 Copies to Seller. Should Purchaser fail to close on the Property, Purchaser shall
furnish to Seller, at no cost or expense to Seller, copies of all surveys, soil test results,
engineering studies and environmental studies and reports which Purchaser or its
authorized representatives shall obtain with respect to the Property promptly after
Purchaser's or its authorized representative's receipt of same. The provisions of this
Section 6.5 shall survive the Closing or earlier termination of this Agreement.
6.6 Limitations. Purchaser's entry rights are specifically limited to the Permitted Activities
and to the Property and shall not include any other activities on the Property, without
obtaining Seller's reasonable approval, all governmental approvals and any approvals
required under the Master Covenants.
6.7 Compliance with Law. Purchaser agrees to comply with all local, state and federal
laws, rules and ordinances applicable to the Pennitted Activities.
6.8 Indemnity. Purchaser shall indemnifY, defend and hold hannless Seller, its employees,
agents or contractors, from all claims, actions, damages, liability and expense,
including without limitation reasonable attorney's fees and costs at trial and all
appellate levels, in connection with personal injury or Property damage arising out of
the acts or omissions of Purchaser, its employees, agents or contractors, including
without limitation the Permitted Activities, upon the Property or any other portion of
the Property surrounding the Property. Purchaser's indemnification obligations shall
not exceed its statutory limits as provided in Section 768.28, Florida Statutes, and
Purchaser does not waive its sovereign immunity rights.
6.9 Required Insurances. Purchaser shall maintain, and shall have its agents, contractors
and subcontractors maintain, adequate insurance coverage as approved in advance by
Seller in the amount of at least $] million and naming Seller as additional insured.
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Purchaser shall deliver to Seller a certificate of insurance evidencing such coverage
Plior to commencement of the Permitted Activities, stating that such coverage may not
be terminated without less than thirty days' notice to Seller.
6.10 Intentionally Omitted.
SECTION 7. EVIDENCE OF TITLE
Plior to execution of this Agreement, Purchaser has ordered a Title Commitment and survey
(or shall review the surveys delivered by Seller). "
7.1 Title Obiections. If the Title Commitment or survey reveals any bona fide objectionable
defect or encumbrance to which Purchaser objects ("Title Objections"), Purchaser must give
notice of any such objectionable item within fifteen (15) days following the Effective Date.
Failure of Purchaser to give Seller such timely notification shall operate as a waiver of such
objectionable item and acceptance by Purchaser of same, other than with respect to the
Agreed Cure Items (as hereinafter defined). Seller shall notify Purchaser in writing five (5)
days after Seller's receipt of the Title Objections of which Title Objections it will use its
good faith efforts to cause to be cured at or prior to Closing. Seller's failure to give a notice
to Purchaser as to any Title Objections shall constitute Seller's notice that it shall not
undertake to cure such Title Objection Plior to Closing. If Seller does not agree to use its
good faith efforts to cure the Title Objections, Purchaser shall have the right either to
tenninate this Agreement by delivering to Seller a Notice to Terminate on or before the
Closing Date and receive a refund of the Earnest Money Deposit or accepting title to the
Property subject to the Title Objections other than the Agreed Cure Items. Should Seller
elect to use its good faith efforts to cure any Title Objections, Seller shall have the option, at
Seller's sole discretion, to extend the Closing Date hereunder up forty five (45) days in order
to effectuate such cure. If such matter remains uncured after such forty five (45) day period,
Purchaser may elect to terminate this Agreement and receive a refund of the Earnest Money
Deposit. Notwithstanding anything to the contrary contained herein, in no event shall Seller
be obligated to file a lawsuit or expend any money in order to cure such Title Objections or
Additional Title Objections (as hereinafter defined). Further, notwithstanding anything to
the contrary contained herein, Seller agrees to, on or before Closing (i) provide Purchaser
with a "gap" affidavit, a mechanics' lien affidavit and an exclusive possession affidavit, in a
customary and reasonable form sufficient for the Title Company to delete the applicable pre-
printed exceptions, (ii) remove (x) by payment, all mortgages encumbering the Property, and
(y) by bonding or payment, all additional voluntary liens capable of removal by the payment
of money or posing of a bond, (iii) provide Purchaser with evidence of payment of taxes and
assessments which are then due and payable (which may be paid as part of the Closing), and
(iv) provide Purchaser with evidence of Seller's authority and good standing (collectively,
the "Agreed Cure Items").
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7.2 Additional Title Defects. If any additional defects or encumbrance shall arise within the time
between the effective date of the Title Commitment and the Closing Date ("Additional Title
Objections"), Purchaser shall notify Seller of same within five (5) days of discovery or five
(5) days prior to the Closing Date, whichever is earlier. Seller shall have the righ,t to either
use its good faith efforts to cure such defect or encumbrance and to extend the Closing Date
hereunder an additional forty-five (45) days, if necessary, in order to use its good faith efforts
to cure such Additional Title Objections or give written notice to Purchaser that it does not
intend to cure such Additional Title Objections; provided, however, that Seller shall be
required to give the Agreed Cure Items. If Seller elects not to cure any Additional Title
Objections, Purchaser shall have the right within five (5) days after receipt of notice of
Seller's election not to cure, to elect either to waive the Additional Title Objections in which
case such matters shall be deemed Permitted Exceptions or terminate this Agreement and
obtain a refund of the Earnest Money. Upon such termination, neither party shall have any
further obligation hereunder except for any agreements herein that expressly survive
termination of this Agreement.
SECTION 8. Conditions of Closing.
The parties' obligations to perform their undertakings provided in this Agreement are each
conditioned on the fulfillment of each of the following which is a condition to such party's
obligation to perform hereunder (subject to such party's written waiver in strict accordance with
Section 11 below):
8.1 Performance. As a condition to each party's obligation to perform hereunder, the due
performance by the other of all undertakings and agreements to be perfOlmed by the other
hereunder and the truth in all material respects of each representation and warranty as set
forth herein made pursuant to this Agreement by the other at the Closing Date except for
such changes as are permitted under the terms of this Agreement.
8.2 Risk of Loss. As a condition to Purchaser's obligation to perform hereunder (and not as a
default), there shall have not occurred between the Effective Date and the Closing Date,
inclusive, destruction of or damage or loss to the Property which is Material (whether or not
covered by insurance proceeds). Seller shall promptly notify Purchaser of such damage and
provide Purchaser with evidence reasonably satisfactory to Purchaser of insurance covering
such loss or a statement that such loss it not covered by insurance, and Purchaser shall have
ten (10) days after receipt of such notice and information as to insurance coverage with
respect thereto in which to elect to terminate this Agreement and receive a refund of the
Earnest Money. Upon such termination, neither party shall have any further obligation
hereunder except for any agreements herein that expressly survive termination of this
Agreement. If Purchaser does not elect to terminate this Agreement within such period or if
the damage to the Property is not Material, the parties shall proceed with the Closing in
which case Seller shall assign to Purchaser any claims for proceeds from the insurance
policies covering such destruction or damage (except for any money previously expended by
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Seller to repair such damage), there shall be no adjustment in the Purchase Price, except for a
credit for any deductible, and Seller shall have no obligation to repair such damage.
8.3 Condemnation. As a condition to Purchaser's obligation to perform hereunder (apd not as a
default), there shall have not occurred at any time or times on or before the Closirig Date any
taking or threatened taking of the Property or any part thereof, or that would materially and
adversely limit or restrict access to the Property by condemnation, eminent domain or similar
proceedings; provided, however, Purchaser may elect to waive such condition in which case
Seller shall assign to Purchaser at Closing all of Seller's right, title and interest in and to any
proceeds resulting from any such proceeding solely as to the Property. Seller shall promptly
notify Purchaser of such condemnation or similar proceeding, and Purchaser shall have ten
(10) Business Days after receipt of such notice in which to elect to terminate this Agreement
and receive a refund of the Earnest Money. Upon such termination, neither party shall have
any further obligation hereunder except for any agreements that survive termination of this
Agreement.
8.4 Parking Spaces. As a condition to Purchaser's obligation to close this transaction, Seller
shall (i) prepare and deliver to Purchaser a boundary survey of the Parking Spaces prepared
in accordance with the minimum technical standards of the State of Florida (the "Parking
Survey"), and (ii) in its capacity as the "Declarant" under the Master Covenants, execute and
record on or before the Closing Date, an amendment to the Master Covenants (A)
establishing for the owner of the Real Property the perpetual and exclusive right to use the
Parking Spaces, (B) providing that the rights of the owner of the Real Property shall not be
revoked without the prior written consent of such owner, and (C) establishing and attaching
the Parking Survey as an exhibit to further evidence the perpetual and exclusive interests in
the Parking Spaces for the owner of the Real Property, as set forth and further described in
the Parking Assignment (as defined in Section I 0.3(c) below). To the extent the Seller is
unable to obtain the Parking Survey on or before the Closing Date, Seller may extend the
Closing Date for up to fifteen (15) additional days by providing written notice thereof to
Purchaser on or before the original Closing Date. In the event the conditions precedent set
forth in this Section 8.4 are not fulfilled as of the Closing Date (as the same may be
extended hereunder), then, Purchaser shall have the option of either: (i) waiving the condition
and closing "as is", without reduction in the Purchase Price or claim against Seller therefor,
or (ii) terminating this Agreement by providing written notice thereof within two (2) business
days following the failure of such condition, in which event Earnest Money shall be returned
to Purchaser, whereupon the parties shall be released from all further obligations hereunder
except only those that are expressly stated to survive termination of this Agreement.
SECTION 9. Association: Disclosures: Use Restrictions: Dockmaster's Office: Architectural
Designs: Signage: Gas Pumps.
9. I Association. By purchasing the Property, the Purchaser will automatically become a
member of the Association. The Purchaser acknowledges that the Property is subject to the
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rules and regulations imposed from time to time by the Association and the terms and
conditions of the Master Covenants, including without limitation, the obligation to pay
monthly assessments to the Association. For so long as the Seller remains in control of the
Association, Seller agrees to consult with Purchaser to determine whether any e,xpenses in
the budget for the Association are for the purpose of perfonning any services' which are
otherwise being performed by the Purchaser, and to the extent the Purchaser is performing
services which have been included in the budget for the Association, Seller agrees to adjust
the budget for the Association to reduce such expenses accordingly. The Purchaser further
acknowledges that prior to Closing, to the extent the Property has not previously been
brought under the Master Covenants, a Supplemental Declaration of Covenants, Restrictions
and Easements for The Marina Village at Boynton Beach shall be recorded in the Public
Records of Palm Beach County, Florida submitting the Property to the Master Covenants.
9.2 Disclosure.
(a) THE PURCHASER SHALL NOT EXECUTE THIS AGREEMENT
UNTIL THEY HAVE RECEIVED AND READ THE DISCLOSURE
SUMMARY REQUIRED BY SECTION 720.401.
(b) By execution of this Agreement, the Purchaser acknowledges that it has received and
read that certain Disclosure Summary for Marina Village at Boynton Beach (the
"Association Disclosure Summary"), an executed copy of which is attached hereto
as Exhibit "E".
(c) IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION
720.401, FLORIDA STATUTES, HAS NOT BEEN PROVIDED TO
THE PROSPECTIVE PURCHASER BEFORE EXECUTING THIS
CONTRACT FOR SALE, THIS CONTRACT IS VOIDABLE BY
PURCHASER BY DELIVERING TO SELLER OR SELLER'S
AGENT OR REPRESENTATIVE WRITTEN NOTICE OF THE
PURCHASER'S INTENTION TO CANCEL WITHIN 3 DAYS
AFTER RECEIPT OF THE DISCLOSURE SUMMARY OR
PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY
PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS
NO EFFECT. PURCHASER'S RIGHT TO VOID THIS
CONTRACT SHALL TERMINATE AT CLOSING.
9.3 Use Restrictions. The parties acknowledge and agree that, subject to the exceptions set
forth herein, from and after the Closing, (i) Purchaser agrees that it will not permit fishing or
portable barbeque and related cooking devices on the Prope11y, (ii) Purchaser will install
signs indicating same which Seller shall have the right to approve, and (iii) Purchaser agrees
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not to install barbeques, picnic tables or playgrounds on the Property (collectively, the "Use
Restrictions"). The Purchaser acknowledges and agrees that the Use Restrictions shall be
contained within the Deed (as hereinafter defined).
I"
9.4 Dockmaster's Office. Purchaser acknowledges and agrees that from and after Closing,
Purchaser shall use its best efforts to (i) modify the site plan for the Project, as approved by
the City of Boynton Beach (attached hereto as Exhibit "F" and hereinafter referred to as the
"Approved Site Plan") to the extent required in order to permit the construction of the
Purchaser's Building (as hereinafter defined) and/or the Dockmaster's Office (as hereinafter
defined), and (ii) obtain a building permit for the construction of the Dockmaster;s Office
(the "Building Permit"), and that upon receipt of the Building Permit, Purchaser shall use
its best efforts to deliver to Seller, within twenty-four (24) months of the Closing, and at
Purchaser's sole cost and expense, at least 211 square feet offinished but unfurnished office
space, including electticity, HV AC and water connections, upon the Property for the sole
use by the Marina Association or such third party operator as is hired by the Marina
Association as office space to run the marina located within the Project (the "Dockmaster's
Office"). The Marina Association (or the third party operator) shall not be required to pay
any rental to the Purchaser for the use of the Dockmaster's Office; provided, however, that
the Marina Association (or the third party operator) shall be required to reimburse the
Purchaser for its allocable share, based on square footage, of the cost for its use of
electricity and water. Furthermore, Seller acknowledges that so long as the building
Purchaser is to construct containing the Dockmaster's Office (the "Purchaser's Building")
contains at least the required 2 11 square feet of space for use as the Dockmaster's Office,
Purchaser's Building may be built to a maximum of 1,500 square feet. Other than the
Purchaser's Building, including the Dockmaster's Office, no other buildings may be
constructed on the Real Property. The Purchaser acknowledges and agrees that the
Purchaser's obligations with respect to the Dockmaster's Office and Purchaser's Building
(the "Restrictive Covenant") shall be contained within the Deed.
9.5 Architectural Design: Signage. Notwithstanding anything to the contrary contained in the
Master Covenants, for a period of two (2) years following the Closing Date, Seller shall
have the right to approve the architectural design of any buildings to be built upon the
Property and any signage to be placed upon the Property, which approval shall not be
unreasonably withheld. Seller hereby initially designates Carlos Rosso as the contact
person for Purchaser to seek such approval; provided however, that Seller may change such
designee from time to time by providing written notice thereof to Purchaser. Seller shall
notify Purchaser within twenty (20) days following its receipt of Purchasers plans and
drawings whether Seller approves or disapproves of the plans and/or drawing (and shall
state the basis for disapproval) or needs further information. Should Seller not properly
respond to Purchaser with such twenty (20) days period, approval shall be deemed to be
granted. Any approval by Seller shall be conditioned on Purchaser's plans and drawings
being approved by any county or municipal jurisdiction appropriate for the issuance of
building permits.
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9.6 Compliance with Rules and Laws. After Closing, Purchaser agrees to comply with all
federal, state and local laws, rules, orders, requirements and restrictions, including (a) any
which may be imposed by the Permits, and (b) any which may be required in order to comply
with the Use Restriction, in connection with its use and operation of the Property:
9.7 Gas Pumps. Seller has provided Purchaser with a copy ofa letter from the Department of the
Army, Jacksonville District, Corps of Engineers (the "Army Corps") dated November 9,
2006, (i) acknowledging that a portion of the Gas Pump Assets (referred to as the "fuel
dispenser" in the November 9, 2006 letter) has been relocated along the bulkhead adjacent to
the Real Property (the "Bulkhead"), and (ii) stating that the Anny Corps has no objection to
granting a consent to easement to the new owner of the subject property for the existing
seawall, dock and fuel dispenser (the "Consent to Easement"). A copy of the referenced
November 9, 2006 letter, and the form of Consent to Easement to Use Corps of Engineers
Right-of-Way to be entered into between the Army Corps of Engineers and the Purchaser
following Closing are attached hereto as Exhibit "G". In this regard, from and after
Closing, Seller shall cooperate with Purchaser as reasonably required to assist Purchaser in
its efforts to obtain (i) an executed Consent to Easement from the Army Corps and (ii) the
assignment of any other transferable pennits in connection with the Gas Pump Assets.
The provisions of this Section 9 shall survive Closing.
SECTION 10. Closing.
10.1 Date, Time and Place. The Closing hereunder shall take place thirty (30) days following the
Effective Date (the "Closing Date"), or such earlier date as is agreed to in writing by the
parties; provided however, that Purchaser shall use its best efforts to obtain and review the
Title Commitment as soon as possible and to facilitate Closing on an earlier date. Closing
will occur by mail if requested by either party or at the office of Purchaser's attorney,
Lewis, Longman & Walker, P.A., who will act as closing agent and issue title, provided
such office is in Miami-Dade, Broward or Palm Beach County, Florida.
10.2 Actions. At the Closing, Seller shall convey the Property and deliver the other Closing
documents to Purchaser; and Purchaser shall deliver the Note and Mortgage to Seller and
pay to Seller the Purchase Price, plus or minus prorations as set forth herein and minus the
Earnest Money paid to Seller at Closing. The Closing shall occur through an escrow, with
the Escrow Agent. Seller shall convey, and Purchaser shall receive, full possession of the
Property at Closing, subject only to (i) Permitted Exceptions, (ii) real estate and personal
property taxes not yet due and payable, and (iii) all applicable federal, state and local laws,
ordinances and regulations, including without limitation, any zoning ordinances and
regulations imposed by any governmental or quasi-governmental authority.
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10.3 Seller's Deliveries. At the Closing, Purchaser shall receive each of the following in the
form and substance reasonably satisfactory to Purchaser, all of which shall have been
deposited by Seller in escrow with the Title Company at least one (1) Business Day prior to
the Closing Date:
(a) a Special Warranty Deed executed and acknowledged by the Seller,
conveying the Real Property, subject only to the Permitted Exceptions
and containing the Use Restriction, the Reverter and the Restrictive
Covenant and in the form attached hereto as Exhibit "H" (the "Deed");
(b) a Bill of Sale executed by Seller, conveying the Improvements and
Personal Property, if any, and the Gas Pump Assets;
(c) an Assignment of Perpetual Right to Use the Parking Spaces in the form
attached hereto as Exhibit "I" (the "Parking Assignment");
(d) A closing statement setting forth all prorations and credits required
hereunder (the "Closing Statement");
(e) an affidavit from Seller that it is not a "foreign person" or subject to
withholding requirements under the Foreign Investment in Real Property
Tax Act of 1980, as amended;
(f) the original of the licenses and permits, plans and specifications,
operating manuals and guaranties and wan"anties with respect to the
Property to the extent they are in the possession of Seller or its agents,
provided, however, Seller shall have access to such items after Closing
to the extent reasonably necessary for Seller;
(g) such evidence as Purchaser or the Title Company may reasonably
require as to the due authorization, execution and delivery by Seller of
this Agreement and the documents required to be executed by Seller
hereunder;
(h) the Agreed Cure Items and such additional affidavits as may be
reasonably required by the Title Company;
(i) all other documents Seller is reasonably required to deliver to
consummate the transaction pursuant to the provisions of this Agreement
provided such other documents do not increase Seller's obligations
hereunder.
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Seller shall provide Purchaser with drafts of each of the above referenced documents for
Purchaser's reasonable review and approval prior to Closing. lfthe above referenced documents are
not provided to the Title Company as required by this Section 10.3, Purchaser reserves the right to
extend the Closing Date until one (1) Business Day following Seller's delivery of such qocuments.
10.4 Purchaser's Deliveries. At the Closing, Seller shall have received each of the following, in
form and substance reasonably satisfactory to Seller, all of which documents shall have
been deposited by Purchaser in escrow with the Title Company at least one (I) Business
Day prior to the Closing Date:
(a) payment of the Purchase Price, plus or minus prorations, and less the Earnest Money
paid to Seller;
(b) the Promissory Note, the Mortgage and any UCC-l Financing Statements required
by Seller in connection with the Mortgage;
(c) the Parking Assignment;
(d) payment of a working capital contribution equal to two (2) months of assessments, as
well as assessments for the month of Closing (which shall be prorated) and the month
immediately succeeding Closing, all of which shall be made payable to the
Association;
(e) the Closing Statement;
(f) such evidence as Seller or the Title Company may reasonably require as to the due
authorization, execution and delivery by Purchaser of this Agreement and the
documents required to be executed by Purchaser hereunder, including without
limitation, the Promissory Note and the Mortgage;
(g) at Purchaser's expense, a simultaneous mortgagee title insurance policy in the
amount of $2,000,000.00 in favor of Seller as the mortgagee under the Mortgage,
which policy shall be reasonably acceptable to Seller; and
(h) all other documents Purchaser is reasonably required to deliver to consummate the
transaction pursuant to the provisions of this Agreement provided such other
documents do not increase Purchaser's obligations hereunder.
10.5 Prorations. The Purchase Price for the Property shall be subject to prorations and credits as
follows to be determined as of 12:0 I a.m. on the Closing Date, the Closing Date being a day
of income and expense to Purchaser, with all prorations being based on the actual number of
days in the year, provided, however, if Seller's bank does not receive the Purchase Price by
2:00 p.m. its time on the Closing Date, the prorations shall be determined as of 12:01 a.m.
on the first Business Day following the Closing Date:
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(a) Real estate and personal property taxes due and payable with respect to the Property
in the year in which the Closing occurs (regardless of when such taxes accrue) shall
be prorated based on the prior years taxes and the taxes shall be re-prorate9 when the
tax bill for the year of Closing is received and the actual taxes are known so long as
any such request for re-proration must be made by December 31 5t of the year of
Closing; provided, however, that in the event the Property does not have its own folio
(separate from the remainder of the Project), the tax proration shall be calculated
based on Seller's estimate of Purchaser's share and the taxes shall be re-prorated
when the tax bill solely for the Property for the year of Closing is received and the
actual taxes are known. The provisions of this Section shall survive Closing.
(b) All utilities payable by Seller, including, without limitation, water, electricity, fire
alarm, shall be prorated as of the Closing Date. Seller shall use reasonable efforts to
cause the meters, if any, for utilities to be read on the day on which the Closing Date
occurs and to pay the bills rendered on the basis of such readings. If any such meter
reading for any utility is not available, then adjustment therefore shall be made on the
basis ofthe most recently issued bills therefore which are based on meter readings no
earlier than thirty (30) days prior to the Closing Date; and such adjustment shall be
re-prorated when the next utility bills are received. This agreement to adjust the
proration shall survive the Closing. To the extent assignable, Purchaser shall give
Seller a credit at Closing for all deposits with utility companies serving the Property
in which case Seller shall assign its rights to such deposits to Purchaser at the
Closing; or, at Seller's option, exercised at least ten (10) days prior to the Closing
Date, Seller shall be entitled to receive a refund of such deposits from the utility
companies, and Purchaser shall post its own deposits.
(c) Personal property taxes assessed against the Property, ifany, on the basis of the fiscal
year for which assessed;
(d) Taxes payable by Seller relating to operations of the Property, including, without
limitation, business and occupancy taxes and sales taxes, if any, but excluding any
income or other similar taxes assessed against Seller shall not be prorated;
(e) Any fees on transferable licenses, permits and the like pertaining to any of the
Property shall not be prorated;
(f) Waste and garbage collection charges, if any, and all other similar charges; and
(g) Such other items as are customarily apportioned between sellers and purchasers of
real properties of the type similar to the Property and located in Palm Beach County,
Florida.
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10.6 Liens. Certified, confinned or ratified liens for governmental improvements as of the
Closing Date, if any, shall be paid in full by Seller, and pending liens for governmental
improvements as of the Closing Date shall be assumed by the Purchaser.
Notwithstanding the foregoing, to the extent any of the foregoing certified, coqfirmed or
ratified liens are payable in installments, Purchaser shall take title subject to such lien(s)
and assume the balance of such installment-payments. In such event, the installment
payment for the year of closing shall be prorated as of 12:01 a.m. of the Closing Date.
10.7 Closing Costs. Purchaser shall pay its own due diligence and legal expenses and the working
capital contributions required to be paid pursuant to Section 10.4(d) of this Agi-eement.
Purchaser shall pay for all expenses relating to title examination and its title insurance
(owner's and lender's) premium. Seller shall pay for all documentary stamp taxes and
recording fees on the Deed. Purchaser shall pay for all documentary stamp taxes and
recording fees on the Promissory Note, the Mortgage, and the UCC-l Financing Statements.
Seller shall pay its own legal expenses and recording fees for documents needed to cure title
defects.
SECTION 11. Waiver: Severability.
Each party hereto may, at any time or times, at its election, waive any of the conditions to its
obligations hereunder by a written waiver expressly detailing the extent of such waiver (and no other
waiver or alleged waiver by such party shall be effective for any purpose). No such waiver shall
reduce the rights or remedies of such party by reason of any breach by the other party or parties of
any of its or their obligations hereunder. If any tenn, covenant, condition or provision of this
Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
covenants, conditions or provisions of this Agreement, or the application to any person or
circumstance, shall remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby.
SECTION 12. Brokers.
Each party represents and warrants to the other that it has not engaged or dealt with any
brokers or finders in connection with the sale ofthe Property as set forth herein, and each party shall
indemnify and hold the other party hannless from any claim, liability, loss or damage, including
without limitation, reasonable attorney's fees and costs at trial and all appellate levels, resulting from
the indemnifying party's breach of the foregoing representation and warranty. The provisions of this
Section 12 shall survive the Closing.
SECTION 13. Survival: Further Instruments
Except as expressly set forth herein, none ofthe terms and provisions herein shall survive the
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Closing or termination of this Agreement. Each party will, whenever and as often as it shall be
requested so to do by the other, cause to be executed, acknowledged or delivered any and all such
fuliher instruments and documents as may be necessary or proper, in the reasonable opinion of the
requesting party, in order to carry out the intent and purpose ofthis Agreement and as are,consistent
with this Agreement. The provision of this Section 13 shall survive the Closing.
SECTION 14. No Third Party Benefits.
This Agreement is made for the sole benefit of Purchaser, Seller and Escrow Agent and their
respective successors and assigns (subject to the limitation on assignment set forth below), and no
other person or persons shall have any right or remedy or other legal interest of any kind under or by
reason of this Agreement. Whether or not either party hereto elects to employ any or all of the
rights, powers or remedies available to it hereunder, such party shall have no obligation or liability of
any kind to any third party by reason of this Agreement or by reason of any of such party's actions or
omissions pursuant hereto or otherwise in connection with this Agreement or the transactions
contemplated hereby.
SECTION 15. Default and Remedies.
In the event of the default by Purchaser without default by Seller, which default is not cured
within ten (10) days after receipt by Purchaser of written notice from Seller (provided, however, that
in the event the Purchaser's default is the failure to close on the Closing Date, no notice shall be
given by Seller and the cure period shall be limited to one (1) Business Day unless otherwise
extended in writing by Seller in its sole discretion), Seller shall have the right to receive the Earnest
Money, together with all interest earned thereon as agreed and liquidated damages for said breach
and as Seller's sole and exclusive remedy for default of Purchaser, whereupon the parties shall be
relieved of all fuliher obligations hereunder, except those obligations expressly stated to survive
herein. Purchaser and Seller acknowledge and agree that actual damages are difficult or impossible
to ascertain and the Earnest Money Deposit, together with all interest earned thereon, is a fair and
reasonable estimation of the damages of Seller.
In the event of a default by Seller under this Agreement without default by Purchaser, which
default is not cured within ten (10) days after receipt by Seller of written notice from Purchaser
(provided, however, that in the event the Seller's default is the failure to close on the Closing Date,
no notice shall be given by Purchaser and the cure period shall be limited to one (1) Business Day
unless otherwise extended in writing Purchaser in its sole discretion), Purchaser at its option shall
have the right, as its sole and exclusive remedies, to: (i) receive the return of the Earnest Money
together with all interest earned thereon whereupon the parties shall be released from all further
obligations under this Agreement, except those obligations expressly stated to survive herein, or,
alternatively, or (ii) seek specific performance of the Seller's obligations hereunder.
Notwithstanding the foregoing, in the event of a default by either party of any obligations
which specifically survive Closing, the non-defaulting party shall be entitled to seek any legal
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redress permitted by law or equity.
The provisions of this Section 15 shall survive Closing.
r
SECTION] 6. Notices.
All notices and other communications which either party is required or desires to send to the
other shall be in writing and shall be sent by (i) hand, (ii) fax, provided a copy thereof is also sent by
one of the following means, (iii) certified mail, postage prepaid, return receipt requested, or (iv)
nationally recognized overnight courier service. Notices and other communications shall be deemed
to have been given (a) on the date of delivery if sent by hand or via facsimile, (b) three (3) days
following deposit in the US Mail if sent certified mail, or (c) the next Business Day if sent by
overnight courier. Notices shall be addressed as follows:
(a) To Seller:
TRG-Boynton Beach, Ltd.
315 S. Biscayne Boulevard
Miami, Florida 33131
Attn: Carlos Rosso
Bus 305.460.9900
Fax 305.460.9911
with a copy to:
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attn: Joel Goldman, Esq.
Bus 305.579.0828
Fax 305.961.5828
(b) To Purchaser:
Boynton Beach Community Redevelopment Agency
915 South Federal Highway
Boynton Beach, Florida 33435
Attn: Executive Director
Bus 561.737.3256
Fax 561.737.3258
With a copy to:
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Lewis, Longman & Walker, P.A.
1700 Palm Beach Lakes Boulevard
Suite 1000
West Palm Beach, FlOIida 3340 I
Attn: Kenneth G. Spillias, Esq.
Bus 561.640.0820
Fax 561.640.8202
(c) To Escrow Agent:
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attn: Joel Goldman, Esq.
Bus 305.579.0828
Fax 305.961.5828
or to such other person and/or address as shall be specified by either party in a notice given to the
other pursuant to the provisions of this Section. Seller, Purchaser or Escrow Agent may designate
another addressee or change its address for notices and other communications hereunder by a notice
given to the other parties in the manner provided in this Section 15.
SECTION 17. Attorney's Fees.
In the event either party institutes legal proceedings to enforce its rights hereunder, the
prevailing party in such litigation shall be paid all reasonable expenses ofthe litigation by the losing
party, including its attorney's fees. The provisions of this Section 17 shall survive Closing or earlier
tennination of this Agreement.
SECTION 18. Limitation on Liability.
Any obligation or liability of either of the parties hereunder shall be enforceable only against,
and payable only out of, the property of such party, and in no event shall any officer, directors,
shareholder, partner, beneficiary, agent, advisor, or employee of either party be held to any personal
liability whatsoever or be liable for any of the obligations of the parties hereunder.
SECTION 19. Exhibits.
Any fact or item stated in any Exhibit or Schedule shall be deemed to be disclosed for all
purposes under this Agreement, notwithstanding the omission of a reference or cross-reference
thereto.
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SECTION 20. Assignment.
Purchaser shall not be permitted to assign its rights under this Agreement witho~t the prior
written consent of Seller, which may be withheld in its sole discretion. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of all parties hereto and their
respective successors and assigns.
Section 21. Miscellaneous.
This Agreement (including all Exhibits hereto which are hereby incorporated by reference)
contains the entire agreement between the parties respecting the matters herein set forth and
supersedes all prior agreements between the parties hereto respecting such matters. This Agreement
shall be construed and enforced in accordance with the laws of the State of Florida. The provisions
of this Agreement may not be amended, changed, or modified orally, but only by an agreement in
writing signed by the paIiy against whom any amendment, change or modification is sought.
Purchaser shall not record this Agreement, any memorandum of this Agreement, any assignment of
this Agreement or any other document, including without limitation, a lis pendens, which would
cause a cloud on the title to the Property. The section headings appearing in this Agreement are for
convenience of reference only and are not intended, to any extent and for any purpose, to limit or
define the text of any section or any subsection hereof. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any exhibits or amendments hereto. Any action or
proceeding relating to this Agreement shall be commenced in Palm Beach, County, Florida. Any
date for perfonnance which falls on a day that is not a Business Day shall be extended to the next
Business Day. THE PARTIES HEREBY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Radon Gas.
RADON GAS IS A NATURALLY OCCURRING GAS THAT, WHEN IT HAS ACCUMULATED
IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO
PERSONS WHO ARE EXPOSED TO IT OVER TIME, LEVELS OF RADON THAT EXCEED
FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE
OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.
SECTION 23. Time is of the Essence.
Time is of the Essence.
24
MIA 179486478v3 12/4/2006
SECTION 24. Counterpart Execution and Telecopy Execution and Delivery.
This Agreement may be executed in counterparts and any number of which have been signed
by all parties hereto shall constitute an original. Furthermore, an executed documept may be
delivered to any party by fax and the fax signatures of a person shall be deemed an original signature
of and be binding upon such person subject to each party's right to require that each person who
delivers to this Agreement containing its faxed signature promptly thereafter deliver to the requesting
party an originally executed copy of this Agreement.
[The remainder of this page is intentionally lefi blank.]
25
MIA 179486478v3 12/4/2006
IN WITNESS WHEREOF, the parties have executed this Agreement as ofthe day and year
first above written.
TRG-BOYNTON BEACH, LTD., a Florida
limited partnership
(
By: TRG-Boynton Beach, Inc., a Florida Corporation,
Its General Partner
By:
Robelio Rocha, Executive Vice-President
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY
By:
Henderson Tillman, Chairman
1:\Client Documents\Boynton Beach CRA \2419-025\MISC\FINAL Purchase and Sale Agreement 12.4.06.DOC
26
MIA 179486478v3 12/4/2006
JOINDER
The undersigned acknowledges receipt ofa copy of the foregoing Agreement and agrees to
hold the Earnest Money in accordance with the terms of the Agreement and the followinsadditional
terms:
Escrow Agent shall invest the Earnest Money in a money market account at a
local bank. All interest earned on Earnest Money shall be added to the
Earnest Money and be deemed a part of the Earnest Money for purposes
hereof. .
2 For purposes of complying with Internal Revenue Service regulations (and
not to indicate in any way ownership of the Earnest Money or a right to
withdraw or encumber the Earnest Money), interest earned on the Earnest
Money shall be reported to the Internal Revenue Service as earned by
Purchaser. Purchaser's Federal Tax ID Number is
3 Upon the Closing, Escrow Agent shall disburse the Earnest Money to Seller
and credit it against the Purchase Plice.
4 I f the Closing does not occur or in the event of any doubt or uncertainty by
Escrow Agent as to the propriety of disbursing the Earnest Money, the
Escrow Agent shall be authorized to interplead said amount or the entire
proceeds with any court of competent jurisdiction and thereby be released
from all obligations hereunder.
5 In addition and except as set forth below, if Escrow Agent receives a request
from one party for disbursement of the Earnest Money, then Escrow Agent
shall give written notice of such request to the other party. If the other party
does not deliver a written objection to Escrow Agent within ten (10) days
after actual receipt of such notice, then the Escrow Agent shall disburse the
Earnest Money in accordance with the original request.
6 Escrow Agent shall receive no compensation for holding the Earnest Money
or acting as escrow agent hereunder.
7 Escrow Agent herein is acting solely as a stakeholder for the purpose of
accommodating the Purchaser and Seller. It has no interest whatsoever in the
Earnest Money.
8 Purchaser and Seller agree to jointly and severally indemnify and hold
Escrow Agent harmless from any loss or damage, including reasonable
attorney's fees and costs at trial and all appellate levels, which Escrow Agent
27
MIA 179486478v3 12/4/2006
may suffer or incur, as a result of its activities in holding the Earnest Money;
provided, however, that nothing herein shall be deemed to relieve Escrow
Agent from acts of gross negligence or willful misconduct.
r
9 Escrow Agent shall not be disqualified from representing Seller it any
litigation in connection with this Agreement by virtue of having acted as
Escrow Agent under this Agreement, it being acknowledged that Escrow
Agent is the law firm representing Seller hereunder.
10 The Escrow Agent shall not be liable for any failure of the depository.
11 The foregoing Agreement may not be amended in any manner which would
affect the rights and obligations of the Escrow Agent without the Escrow
Agent's prior written consent; otherwise the foregoing Agreement may be
amended without the consent of Escrow Agent and without Escrow Agent
joining therein.
IN WITNESS WHEREOF, the Escrow Agent has executed this Joinder as of the
date of this Agreement.
GREENBERG TRAURIG, P.A.
By:
Print Name:
Print Title:
28
MIA 179486478v3 12/4/2006
LIST OF SCHEDULES AND EXHIBITS:
Schedules
1.30 Purchase Price Allocation
Exhibits
A-I Legal Description of Real Property
A-2 Gas Pump Assets
A-3 Plan of Parking Spaces
B Fonn of Note and Mortgage
C Contracts
D Due Diligence Items
E Executed Association Disclosure Summary
F Approved Site Plan
G November 9,2006 Letter/Consent to Easement
H Form of Deed
Form of Assignment to Use Parking Spaces
29
MIA 179486478v3 12/4/2006
Total price: $3,570,000:
Gas Pump: $570,000
Additional Lot 1: $2,400,000
Additional Lot 2: $600,000
MIA 179486478vJ2 12/1/2006
Schedule 1.30
Purchase Price Allocation
(
30
Exhibit "A-I"
Legal Description of Real Property
The "Commercial Lot" shown on plat of Marina Village at Boynton Beach, recorded at plat book
102, page 14 on May 13, 2004 in the Public Records of Palm Beach County, Florida.
[Note that Seller is in the process of obtaining separate legal descriptions for each of the
"Additional Lots", as the Property is identified under the Master Covenants, and will
provide these descriptions to Purchaser for its review prior to Closing.]
MIA 179470881 v2 11/8/2006
29
THIS IS A LEGAL DESCRIPTION FOR ADDITIONAL LOT 1:
A portion of the Commercial Lot as shown on the Plat of "Marina Village At Boynton Beach" according to
the Plat thereof as recorded in Plat Book 102 at Page 16 of the Public Records of Palm Beach County,
Florida, being more particularly described as follows;
r
Commence at the Southeast Corner of said Plat "Marina Village at Boynton Beach"; Thence run N
07"-14'-10" E along the East Line of said Plat for 25.19 feet to a point; Thence run N 900~00'-00" W for
68.06 to the Point of Beginning of a Parcel hereinafter described;
Thence from said Point of Beginning run N 900-00'-00" W for 36.00 feet; Thence N 00-000'-00" E for 45.00
feet; Thence N 900-00'-00" E for 36.00 feet; Thence S 000-00'-00" E for 45.00 feet to the Point of Beginning,
Propery contains 1,620 square feet, more or less
All lying within the City of Boynton Beach, Palm Beach County, Florida.
AND
THIS IS A LEGAL DESCRIPTION FOR ADDITIONAL LOT 2:
A portion of the Commercial Lot as shown on the Plat of "Marina Village At Boynton Beach" according to
the Plat thereof as recorded in Plat Book 102 at Page 16 of the Public Records of Palm Beach County,
Florida, being more particularly described as follows;
Commence at the Southeast Comer of said Plat "Marina Village at Boynton Beach"; Thence run N
070-14-'10" E along the East Line of said Plat for 25.19 feet to a point, said point being the Point of
Beginning of a Parcel hereinafter described;
Thence from said Point of Beginning run N 900-00'-00" W for 68.06 feet; Thence N 000-00-'00" E for 45.00
feet; Thence N 900-00'-00" W for 43.81 feet; Thence N 000-00'-00" E for 27.66; N 900-00'-00" E for 121.10
feet; Thence S 070-14'-10" to the Point of Beginning.
Propery contains 6,493 square feet, more or less
All lying within the City of Boynton Beach, Palm Beach County, Florida.
w
8(0
a<D
?~
8'"
z 43.81'
N90.00'OO"W
(1'--- 36.00' ~
I N90.00'OO"E I
N90.00'OO"E
121.10'
+
T
ADDITIONAL
LOT 2
;:
o .
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SCALE: 1 :30
w
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ADDITIONAL g 8 ~ is
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a 8'"
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t N90.00'00"W t N90.00'OO"W 1
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P.O.B- P.O.B j:", $2
- - - - - -= ~ - -+ -- - - - - ~~'lt
PO.C
S.E CORNER OF
MARINA VILLAGE AT
BOYNTON BEACH
PLAT BOOK 102, PG. 16
LEGEND:
P.O.C.-POINT OF COMMENCEMENT
PO.B.-POINT OF BEGINNING
EXHIBIT 2
LEGAL DESCRIPTION & SKETCH
OF ADDITIONAL LOT 1 & 2
SHEET
Exhibit A-2
Gas Pump Assets
Tanks
Two fiberglass fuel tanks with a 10,000 gal capacity each. The tanks are connected to the
dispensers by flex metal pipes contained in conduit.
Dispensers
The dock is equipped with two Bennett dispensers one for each product.
Monitorin2
An electronic monitoring system is in place and it is located inside the temporary fuel
dock office. The system is a Veeder Root TLS 350.
MIA 179470068v1 11/7/2006
MIA 179486478v~.. 12/1/2006
Exhibit "A-3"
Plan of Parking Spaces for Property
33
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3.LON AlIOSSIWOlld
Prepared By/Return To:
Joel K. Goldman, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Documentary Stamp Tax in the
amount of $ and Intangible
Tax in the amount of $ .
are being paid upon recordation
hereof.
[Reserved for Recording Office]
PURCHASE MONEY MORTGAGE, ASSIGNMENT OF RENTS
AND
SECURITY AGREEMENT
Dated:
2006
in the amount of
$2,000,000.00
[Community
a [
from
Redevelopment Agency of Boynton Beach,
], Mortgagor
having an office at:
915 S. Federal Highway
Boynton Beach, Florida 33435
to
TRG-Boynton Beach, Ltd.,
a Florida limited partnership, Mortgagee
having an office at:
315 S. Biscayne Boulevard
Miami, Florida 33131
This document serves as a Fixture Filing under the Florida Uniform
Commercial Code.
LOCATION OF PREMISES:
Marina Village at Boynton Beach
Boynton Beach, Palm Beach County, Florida
MIA 179464753v2 11/6/2006
Exhibit "C"
Contracts
Sea Spill Contract with Sea Spill Service of Palm Beach
35
MIA 179486478vl;; 12/1/2006
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SEA SPILL SERVICES INTERNATIONAL INC.
P.O. BOX 1178 . 1560 YOUNGS AVE.
SOUTHOLD, N.Y. 11971
(631)765.3660 24Hour . (631) 765-5S{)2 Fax
1-600-SEA SPILL' 1-800-732-7745
HI .ACT~'
"IMMEDIATE ACTION CONTAINMENT TEAM'
UH.\ f\GREDIF'\1 - FLORID \
SF \ "PII I (()\TR \CTOH
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EXHIBIT "A"
MISCELLANEOUS:
Air Comprouo,
Air Hcso lSOf1)
Air T:lnu
Anchor ~
Cellular Phonu Basa RatG
Celluiar Phonn MioullI R::J!:O
OuCtTaP41
l:i511~r. P.O. T. Pl;l$\ic Drum {New)
55 g;l:. 0.0 r. PI<JStt~ Drum IRcconditfO/'lK)
5S II;):" O.O.T. SlIXll Drum
55 gaL D.O.T. St..; ON'" {ROCllnd,bonodj
DOT Owr!ladt Drum
High P,..sloUre Waltr Wit$~9<'
Uft BaliS 51100 Ib
4000 lb.
lOOOlb
lOOlllb
IlUnitolo and 11,,",
~"t.d Buoy
Nylon Lillin\l St'lIp~
Nylon Li".ing Sll1>;a
Nylon Sug,n9 Stmps
1/2 in. NylonLi no
Plastic &gs, 1 MIL
Pb&tJC &"a. 6lollL (tOOI,,,,II. 33">:50")
Pla$tic Sn..lJng 10' lC 200'
Pr()lectJW Gl~ NltrUw
Pro~tiv. a-ts
Porta!).. Ulltlt Una
RaclcsfHaNl ",,10
Ratn Suits
5..1\<';190 &x (A.&Soltlld Hou-s &. PiO)O fillings)
S41v:s.go T l>>ol5
Tyvoi< Sum
Hazrnat 13l.e" OnfOoots
Wh9v1b,vrQWl'Hand Truck
Co~4ong
Woo(j Salvagt PI"~lOC Plu\I'
Beach S~G Gilar Au~ (pipos./umber,tnck. e-lc,1
12"x50'
'-x1 r
(For air l>.gs~
$~T5.110Id"y
S 1O.0Qtoay
S t 5.001ea..
S 7.00Ic:!ay
$ 25.0(l{cay
$ 0.45...,ln.
S 10.0011"0"
S 57 .45!u.
$ <40.0018:1.
$ 67 .50:....
$ 47.001o.a.
$170.00IU.
SH5.CCJGJy
S6<)II.OOiday
s.440.00IdilY
UOO.OO/....y
$150.CClday
iZOO.QOil1i1Y
S 25.00Iday
$2.$O.OOlda).
$ 6:I.OOid<:Jy
$125.~y
S C.SOrlL
$ 0 .4~l....,.
S 1.351....
S &5.00110::
4.COlpr.
2{) .00lpt.
$ 2O.001d.a)-
S 25,OOld<ly
S ~.OOl.,,-
$ $C.Celday
$ 150.001OOy
$ 1l1.Cc/.a.
$ eOOipr.
S 10.001d.1y
S 25.OOIul'llli<lIlY
S 12-00ln.
PriCDd accordiJ\~ to the Job and mil\lil"~~
F JlllHl
Joo.$ Act In.vranco .c:.... rOI "0" Sea Spill p.rscnn./ v.Hvl cr_ mambo", sse per day per crew m.mbooir wrth ;) $300
pQrI 03y m~nirt1l1 m.
Hazrmlt T <>.sting ,Di5;>OS.ai anG All Thl rd P;ll1y C~... 3t C05t plus 2!l~.
STANDBY RATE:
The .Standby Rate" for equipment is 1/2 the use rate.
The "Standby Rate" applies to equipment being cleaned.
The "Standby Rate~ for personnel is their normal rate.
PERSONNeL STRAIGHT TfME:
Straight time 15 Monday through Friday 0800 to 1600 local.
PERSONNEL. PREMIUM TIME;
A rate of 1SQo;. of straight time shall apply to hours other U1an straight time.
PERSONNEL HOL.IDAY TIME:
A rat. of 200% of sl:rctight time shall apply to the tcn Federal Holidays.
)-~j ::;:~' -
)~"<'>(; ~~~ l ~~::J ( '{'i j i
:tiI -:WI :;3:JIt,::f3, 11I_'1 .~ J:
~;::-:z~ ;J~ -41; ':J 'J."~
2006 I SEA SPILL AND SEA TOW
SALVAGE
Price Schedule
LABOR STRAIGHT TIME:
Sea Spill Management (If Called to thG Scene)
Diver (in waler timCl .. 2 hours Mobidemob)
Salvage r Spill Safety Officer (u.rge Sa~~~ or Spills)
Supervi$or f Salvage Ma.sterl Technician
FOl'emarJVeaul Captain
Marine Pers.onnol
Equipment Operator
Tnlinod l.1bor
Gener..) Labor (Non-<)SHA Trained)
Ac;counting I Communications
Emergency Medical Technician {Safety VnHIj
EOUIPMENT: (VIIUIa1 ottorod only With ~ Spill Personn"l Ope....ling)
Oil Spill Respon>> Vess.eUSalvago Venel >35ft<tiOft
Oil Spill Rosponse V.uellSalvage Ves~1 >23ft<l51t
Bay 800m Tending Boat <22ft
Jon Boat <25hp
$195.01;)Ihr.
$lSO.00llv,
517S.0Mlr,
S 115.00lhr.
$ 9S.SOlhr.
S 4S.50!h r.
S 46.50fhr.
S 3.8. S<llh r.
S :lO.50lhr.
$ .15,S<lfhr.
S 85.00Ihr.
S25-0.00Jnr,
$ W.OO/hr
$ GO.OO/he
$ 33.00/hr.
VEHICLES: (Does not include o~~torj
20 It. Step Van
Rnponw Trailer
4X4 TruCk
Light Truck
Automobile
SO.1m/mile
SO.65imilo
$O.60imile
SO.5Oimile
$O.SO/milo
S12S.00iday
S100.DO/day
$ 75.00/day
S 75,00/day
S 7500/day
PUMPS & HOSES:
3lr1.cfl Gasolme Pump
J Inch Suction Ho~o, 20 tt. section
3 Inch Dis.charve Hose. S<l II.. wctJon
;2 Inch GnoliM Pump
2 Inch Suction Hose, 20 f1.. section
2 Inch Discha/ge Hou. 50 ft. sectlon
8000 12 volt 3- discharge
4000 12 yol! 2. dischOltgv
2.120 volt electric aoto float HO
S, 25.00/day
$ 20.001d.ay
S 30.00lday
S~ GO.COlday
S 15.00/0a\l
S 20.aa/day
S125.00/dify
S100.00lday
S200.aOldifY
CONTAlNMENT BOOM:
Harbor Boom.1100ft. min.)
Cleaning 8lXlm . Time & Molter;ifls
S 1.15/1tfoay
Ct...EAN-UP SORBENT MATERIAl.:
1.,.. x 19" x 3/16" Pad (200 pads)
17-): 19. x 318. Pild (100 pads)
S. x 14" x 25" Pillow
8" x 10' 4O'bale Sorbent Boom
5" X 10' 4O"balo SortJentBO<lm
30" x 150' Sorbont Roll
30 OiS on 5{J' rope Sn.olre
17" x 100' x 3/S. Sw~op
$ n.50/baJe
S 9O.90/balo
S 1 14.201bale
$l94.6OJba"
SlZT.()().I bale
$136.110Ieach
S 63.80rb<>x
$ 125.50lbale
(I)), : .Je- . j
3~'':; 'A itm.>;I":iJ
.Ji! -H~I:;3JJ.VH,: .[i1 t3:,
,;}t ::{1.\-~ < '. I.
).1 ~ ~;.~\~.
!IT ANOAAO TERMS AND CONOfT/QNS
1. Labor ,lnd l!oq1.Jlpment c:harglts aro POlUllo portal, commenc:ing upon r9'CQipl Qf wntten or
verbal authoriution to respond by Sea Spiil, and includes mobilization and d\lmobili.%atlor.
Of personnel and equipment.
2 All labor and equipment is subjoct to a tour (4) hOwr minimum chargo.
3 Fees will lJ.e billed wei/kJy. or up.on compJetion, whic:hever i~ fir$t. and are due upon
rocolpt 01 lnvol:(:l!. Past due biIClng. ;1(0 $Ubjact to ,.5% interest per month. Attom~)I fees,
ilf1d court CO~t Incurred.
4, I'&e~ for equipment c:lean up after completion of Ine on ~enll work will be asussl!d at
time and materials.
5. Coru for rep2ir or .....pl..CQme,nt of "'Quipm~nt lost or d4maged during r\lnbll pc;rioo shall be
charged to ClJslomer.
6. Labor and expense charges will b" 1$$0$$00 tor all/ndividuaJs actively participating In the
remediation. regard~$$ of the locatlon at whic" thaI individual is working.
1. long lerm equipment ffmtal f'lItlnl avall<1ble upon request. However, thoy stull not be
ilpplicd retroactively and shaJl only apply attqr llcceptance of said raas in writing by 31;
pOlr'Jll'S to tho incident. Healfy equipment nlles upon request and 'O'/. above Invoice
8. Rates adjusted it any spllcial Wi" Lic41oS0<0$ or F~ are Impos~ by Iocai govemmenta!
en titi 111>.
9. Sea Spill ret1llns !till right to designOllll whallypO of labor, amount, <lnd type of o-quipmenr
is necessary to accomplish the !ask at Mnd.
10. The providing of S61'ViclI and assistance hereunder are perform&d ilnd liability govemed by
the Nilticnal Contingency Plan, 33 U.S.C.~. 1321 (c)(4) and Florida Statute 376.Cl9 (4) and
(S). and 3ny olt1ecr State or Loccl Regulations
'1 A 10'J. discount to Marina ownllrs under contrac;t to 5e.. Spill, In the event a salvagE i
spill occurs in therl1filCility and a responsible person is not found.
12.. AH sub Contractors USOd by Sea Spill will be billed at eo,t plus (20''') percent.
13. All expendablos nOI listed on current price schedul<e will bo bill~ at cost plus (20"'~)
per~nt.
14. in the ovent security is needed at tho Saiv;sg; I Spill job site it will be provide at loc,}1
~tllS plus (;W';') perclInt.
, 5. Telephone "Air Timo. charges wilt be billed at cost plus (20'~1 percent This is for cell ular
and h4rd line phonll$.
is. There will be I Pet Diem CharQG of $125.oo!Man tor work requiring an overnight stay for
any IImp1oyee. Normal f<X>d and travel Pllr Diem for labOr $55.DO/day.
EXHIBIT "B"
?.(~;~ 3d.(. l ~;j I .((, )
JH :i.rH Sa:IU;B;: 11(1 'B~:
7.:':(.. j~I:~.\:1.~~ -<:.~- ",'i
Exhibit "D"
Due Diligence Items
None.
t \,
(-~.... ....
I " :-
1- '-
\ \--
\
/
36
MIA 179486478v+2 12/1/2006
EXHIBIT "E"
Executed Association Disclosure Summary
37
MIA 179486478v+2 12/1/2006
HOMEOWNERS' ASSOCIA TION/COMMUNITY DISCLOSURE
DISCLOSURE SUMMARY FOR: THE MARINA VILLAGE AT BOYNTON BEACH PROJECT
r
1, AS BUYER OF PROPERTY IN THIS COMMUNITY, YOU WILL BE OBLIGATED TO BE A
MEMBER OF A HOMEOWNERS' ASSOCIATION ("ASSOCIATION")
2. THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE COVENANTS ("COVENANTS")
GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN THIS COMMUNITY.
3. YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE ASSOCIATION. ASSESSMENTS
MAY BE SUBJECT TO PERIODIC CHANGE. THE CURRENT AMOUNT IS $_ PER _ YOU
WILL ALSO BE OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE
ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE.
4, YOU MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE RESPECTIVE
MUNICIPALITY, COUNTY, OR SPECIAL DISTRICT. ALL ASSESSMENTS ARE SUBJECT TO PERIODIC
CHANGE.
5. YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS LEVIED BY A
MANDATORY HOMEOWNERS' ASSOCIATION COULD RESULT IN A LIEN ON YOUR PROPERTY.
6. THERE IS NOT AN OBLIGATION TO PAY RENT OR LAND USE FEES FOR RECREATIONAL
OR OTHER COMMONLY USED FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE
HOMEOWNERS' ASSOCIATION.
7. THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE RESTRICTIVE COVENANTS
WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP OR THE APPROVAL OF THE
PARCEL OWNERS
8. THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE ONLY SUMMARY IN
NATURE, AND, AS A PERSPECTIVE PURCHASER, YOU SHOULD REFER TO THE COVENANTS AND
THE ASSOCIATION GOVERNING DOCUMENTS BEFORE PURCHASING THE PROPERTY.
8. THESE DOCUMENTS ARE MATTERS OF PUBLIC RECORD AND CAN BE OBTAINED FROM
THE RECORD OFFICE IN THE COUNTY WHERE THE PROPERTY IS LOCATED,
COMMUNITY REDEVELOPMENT AGENCY OF BOYNTON BEACH
By:
Henderson Tillman, Chairman
MIA 179463410v111/1/2006
EXHIBIT "F"
Approved Site Plan
38
MIA 179486478v~12 12/1/2006
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MIA 179486478v12- 12/1/2006
EXHIBIT "G"
November 9,2006 Letter/ Consent To Easement
39
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DEPARTMENT Of THE ARMY
JAC':SONYIU.E OiSTRICT CORPS Of' ENGINEERS
POBOX 4Sro
JACKSONVRlE. Fi.OR'DA 32n2-OO19
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DEPAK't"NBNT OF THE AIUI'i
CONSmn TO BASDDI'
TO USE CORPS or BNOIJdtERS RIGH'r-OP-iO..1
CO~Bent No. C^CW17-9-03-:045
?rcject~ !:1,:ra.coa.sta.l Wa:erwA"/.
Jac~Go~vi:~e :0 M:a~l, ~a~~ s=a~h
:o~nty. Florida
Tract Xos. 666 and 668
THIS CONSENT TO EASKMXNt AGRBSMENT. Tade by ~.d bet"ee~ [~e
UNITED STA'fBS OF A.lC'ERlCA. D&PARTMBN'f 01' THB ARMY. hCl.e1 :'.af ler
:: e f,r;; r ~e oj -t-, 't: a 9' t be .. ~:) ~.:e .r n"J'\,r..~.~. ~ltl..l:> ,,:.~__-~pt.. "s~ :1;. ~._ b T.__ .._.._ ~r_..,~_:. C' e=.. ~~ '~." u'~ r_~~ _. ~.~,-I :.-...._. .' ~.:~,' ',1 C.',: c.:,':.
:'c';;"l~ Es:",tt: U........l;,;:..e':.., 'J S ......... __ - __ - ~~-!..-- ,- ,1'.- -
~:"':~ ~ _~~.~, h..-::~'eir:.afteT l€:("~:r~d t{;' as "sa:d c-:t_::e: ' 3:-_d
-:-;;>:;~9'':'<1~gt'''';'11 Bea~~r;, L~d. :3, =......'::::l.~.a -,.:,n:e, ;"'d!..~;:lers:-,:p, ~iCr(":';'':.b.:t.-:::l
!~fe~r~1 :~ as ~he .Gl~l~~ee~
WHKREAS, :...ht C;"':;'leI'r~::'!:;-.":': r:a$ \"i(:"1'-i.ir>;.:l :'igt-~t (;: -'..;":' cas-~:;',.Ci~:5
,_,....._ ::H": ab':')'lr.-'-n'J~:''''?1':('~=- txar::t s (-:! :a.::j~ -wh:c:: cast;':r'1ent I t.j' i LS
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:':.'1,):::.._ '..... Fl or- .~-d?'\; ar..:i
"'''HERDS I t r~e Gr~"\'~tt'~ h~n req"...;.es t:ed ?tir:r.iss ;.or: to conS'tl-"...i.i::~ >
~jGt~J na_ntalc.. repa,l.t a.::.d re'l':"lQve .a sea\ll.~all ar...d dc::;.~ i.n, enl
acr.';S5, over, and under a p:>rt:.on C)f the landS icient:f led as TL;;'':,.
!\us. 666 and 668, Sect10n 2.7, TO'A'oship 45. SCllJ::h_ RaT'~3e .~t3 East.
fa:'" Beach C::unty. Flor::ia. The al'e... COft'p:l'ls~ng C 01 of .an i.iC1:e,
:n"Jr e c,r 2.ess I j sshow-:". in red 01) Exhlb.ir "A>i at tach-ed here:.c anj
~dde a par~ ~ereo[.
NON 'THKRBroRB~ ttl-:S c:cnse;~:. :s gr-o,;:te.:i and accep:t.e1 -.;nder "'~.e
:'::1:C....,1.9 cond~tio:1e:
1. That ef fecti ve as of t ~e r:i:l te of execul ~on he.reof Q:l ber.a; f
af :he u,,_ted Scat.!;S this consent s::all replace a~d supersede
:.~el:art.iT,c~t: of tbe krrn'l C~nser:t t~ Ea;;EHr~nt ~o DAC1ill~'3-9g-':'J~
L!dtcd 6 October 1999 <'\r.d Cepa:J;"c01'lel:t of the A.rMY ('Qlwer.t tc
Easer.lent ~o DhC1l17-'3-:n.i);)S4. dated :.6 July 2(;0:
<. Thdt it is understood that this consent 15 effect:ve only
: rUlOtar nS r.he prcpert.y r J.gh'.::l of the C70ve:-r.menl :'0 the l.dnd tc, b~
c,c.cup: ed are ccncerned. ar:d :hat I t does 1':01:' rel1 eve the C1rante.e
frem the ncceczity o! t;btain:..ag g,-antB fro~ the o....ners of the fee
a~djor or.her inter~st5. t::erejn, r:ar oce9 :.t obviat.e the !-equ:..re-
Men~ ~h.:lt:. :.he Crd.!~:.ee cbtCi it: .state cr l'J-ca: assen:: req::l: ~'t-d by -~ :;'..J
i~y :he act:vi~y authDtize~ ~erei~.
EXHIBIT "H"
Form of Deed
r
40
MIA 179486478v12 12/1/2006
This instrument prepared by, or under the supervision of (and after recording,
return to):
Joel K. Goldman, Esq.
Greenberg Traurig, PA
1221 Brickell Avenue
Miami, Florida 33131
A portion of ParcellD. No.:
(Reserved for Clerk of Court)
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made and entered into as of the _ day of December, 2006 by TRG-
BOYNTON BEACH, LTD., a Florida limited partnership, Grantor, whose office address is 315 S. Biscayne Blvd.,
Miami, Florida 33131, to BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY, a public agency created
pursuant to Chapter 163, Part III, Florida Statutes, Grantee, whose mailing address is 915 South Federal Highway,
Boynton Beach, Florida 33435, Attn: Executive Director. Wherever used herein, the terms "Grantor" and "Grantee" shall
include all of the parties to this instrument and their heirs, legal representatives and assigns.
WITNESSETH:
GRANTOR, for and in consideration of the sum of $10.00, in hand paid by the Grantee, the receipt and
sufficiency whereof is hereby acknowledged, does hereby grant, bargain and sell to the Grantee and Grantee's
successors and assigns forever, the following described lot, piece or parcel of land, situate, lying and being in the County
of Palm Beach, State of Florida (the "Property"):
SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN
TO HAVE AND TO HOLD the same unto Grantee in fee simple,
SUBJECT TO: Easements, covenants, restrictions, limitations, reservations and other matters of record,
provided this shall not operate to reimpose any of the above; existing zoning ordinances and other restrictions as may be
imposed by applicable governmental authority; taxes and assessments for the year 2006 and subsequent years, which
are not yet due and payable; matters that would be disclosed by an accurate survey and inspection of the premises; and
those restrictions set forth on Exhibit B attached hereto and incorporated herein.
TOGETHER with all the tenements, hereditaments and appurtenances thereto belonging or in anywise
appertaining.
GRANTOR hereby warrants the title to the Property and will defend the same against the lawful claims of all
41
MIA 179486478v1?, 12/1/2006
persons claiming by, through or under Grantor,
MIA 179486478v+? 12/1/2006
42
written.
IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal as of the day and year first above
Witnessed by: TRG.BOYNTON BEACH, LTD., a Florida limited partnership
By: TRG-Boynton Beach, Inc., a Florida corporation,
General Partner
Name:
By:
Name:
Title:
Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
) ss:
The foregoing Special Warranty Deed was acknowledged before me, this _ day of
,2006, by , as ofTRG-BOYNTON BEACH, INC.,
a Florida corporation, the General Partner ofTRG.BOYNTON BEACH, LTD., a Florida limited partnership, on behalf of
said entities. He is personally known to me or has produced as identification.
Name:
My commission expires:
Notary Public, State of Florida
Commission No,
(Notary Seal)
43
MIA 179486478v,'? 12/1/2006
MIA 179486478v~f; 12/1/2006
EXHIBIT "I"
Form of Assignment of Right to Use Parking Spaces
46
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~1~~y~T2~ eRA
iIi East Side-West Side-Seaside Renaissance
BOYNTON BEACH CRA
AGENDA ITEM STAFF REPORT
/'
eRA BOARD MEETING OF:
December 12, 2006
I Consent Agenda I
Old Business
New Business
Public Hearing
Other
SUBJECT: MLK Corridor Development Agreement
SUMMARY: At the CRA Board Meeting of November 14th the board requested staff updates on the
progress of the negotiations. The CRA staff and counsel met on November 20th to evaluate and respond
to InTown's response to the draft agreement. The second CRA response was forwarded to InTown's
counsel on November 30th and at the time of board packet production we had not received a response.
InTown Partners' response draft agreement highlights substantive differences from the CRA Board's
direction and to move negotiations forward staff needs clarification from the board.
FISCAL IMPACT:
None.
RECOMMENDATIONS: Provide staff with clarification and policy direction on the MLK
Corridor, pevelopment Agreement.
(
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2005 - 2006 Board
Meetings\05 1213 CRA Board Meeting\MLK Corridor Development Agreement.doc
NDU-30-2006 18:17 From:
To:0007#2419#028#737325 P.2/10
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LEWIS, LONGMAN & W^LKER, P.A.
^11UI<NI:\', ^r LAW
R~ply To: West Palm Beadl
November 3D, 2006
VIA (t'ACSIMILE and U.S. MAIL
E. Lee Worsham, Esquire
Ruden, McClosky, Smith. Schu~ter
& Russell, P.A.
222 Lakeview Ave., Suite 800
West Palm Beach, FL 33401
Re: Comments regarding November 10, 2006 Revised Draft Development
and Disposition Agreement for the MLK Corridor Develo~menl
Dear Mr. Worsham:
We have received and reviewed your revisions, submitted to us on November 10, 2006, to the
draft development and disposition agreement for the MLK Corridor, which we provided to you on
September 27, 2006. The revisions appear to provide an outline of Intown's proposed approacb to
some of the larger issues.
Preliminarily, we feel that it is necessary to clarify what type of Agreclllcnr we are working to
prepare at this time. We believe the eRA Board has directed us to negotiate the terms of an 311-
inclusive agreement. which will includc detailed provisions to govern the entire MLK Corridor Prl11ect
and that is the process we have been following. Based on your response to the initial drnft agreement
that we provided and based on conversation~ between the parties. we feel Intown Pnrtners, Inc.
("Intown") may feel differently.
Specifically, we have the impression that Intown would like to negotiate a conceptual
agreement that names it as Master Developer and that provides the framework - hut not t.he details - of
the project and which contemplates the execution of future agreements regarding the detailed issues. If
our impression is correct, then we feel it necessary La present the issue to t.he eRA Board for
reaffirmation of its intention as to the direction our negotiations should be taking. If we have misread
your intentions, and Intown is agreeable to negotiating a complete agreement, we have enclosed our
comments to your revisions wi th this letter.
Helpillg Shape Florida's t"uture.A
DRAOI;N fON
1(1l11 Thll"" AVr.I'tlr.- Wf':~'
~ull': bIt)
BradM!OIl. FloridOl J420~
JACKSONVILLE
~45 RivQr:;id9 Avqnt.'c
!;,.He 150
J.H..~~I~UlU:II,",. F=11:(:IJ.~ .1.">.)11)
TALlAHASSi;:E
p rJ Bo~ 1Q768 (32302)
t2S :,ol~th n,'M!'.d(!'n :;tr~('t, '=.l:.t..:- jfJCJ
T ",II ~f: 04'~.Jt"I.' 1-1'.1r :dJ J1J01
IIIH~lOn.",ill/. /IH'On4.'12~2
WEST ~AlM BI;ACH
ll1JO Palm Lleach L"k." el~d
SUi[l~ 1000
VII"., r"lm R.;.;".l., f-1'Jrlda JJ401
p' 561.640.0aJO . t , ,61.6110.82(
p I 941.700.4040 . I I ?4f.708..sn24
,,11,104 l~dMlIi. fl'IC'~.l:>.l ii>1'I
NDV-30-2006 18:17 From:
To:0007#2419#028#737325 P.3/10
.Ii Lee Worsham, Esquire
November 30, 2006
Page 2
We have not enclosed any fll1ther revisions to the draft agreemenL at this tinle because we do
not feel that that would be the mOSL productive effurL given the preliminary state of many of the key
tenns. Therefore, in an effort to move the draft along and in response to the outline of provisiuns you
have provided, we have developed a list of substantive q~lestion8 relating lo specific provisions of the
uraft which must be answered before the draft agreement can move furward. This list is included
below. In addilion. we have included a lil)t or our corrunenls regarding some of the deletions you have
made to the initial drafL.
We would be happy to meet with you at any time to discuss any of the issues presented in the
JeLler. The eRA Board will be meeting on December 12, 2006. II is our gual to present some of these
major issues to the Board for their determination at that time. If you have any questions, please do nol
hesitate to call.
Very t~y yours,
-,/ ~'
Ke nelh G. Spillias
KGS/ma
cc: Lisa Bright
Kurt Bressner
NDV-30-2006 18:17 From:
To:0007#2419#028#737325 P.4/10
E. Lee Worsham, E~qulre
November 30, 2006
Page 3
Substantive Issues to be Resolved
Below, please tlnd our comments regarding some of the provisions you have udded to the draft
agreement. This list is not exhaustive, hut serves to identify the major substantive issues that l'equire
fUl'ther discussion and description in the agreement prior to its finalization.
Article/Section
Article I
Article n
2.2(a)
2.2(b)
2.2(c)
2.3
Issue
Dermitions
The Pro 'ed
What is proposed to be the Conceptual Master Plan? Please provide a
bubble plan which depicts the elements of the proposed development
including the location of proposed commercial, re!;idential, public, and other
uses, the transition bet.ween densities, and a view of the corridor from the
nonh, east, west and south. See olso comments regarding Section 10.9
re ardin Infrastructure 1m rovements.
What are the propnsed densities and intensities for the Plan? Please include
a list keyed to the Concept.ual Master Plan which indicates the densities, or
range of densities, that YOll arc proposing for the varjous components of the
ro . ecL
The eRA cannot be assured that the project, as proposed, complies with the
HOB Plan and the TCRPC Feasibility Study until we are presenled with a
Conce tual Mat)l~r Phm and .liSl of ro osed densities and intensities.
What are the "changed ll.lisumptions and conditions" that trigger the ability
to amend the Plan and the Density and Intensity table?
While we agree that the Conceptunl Master Plan and proposed densities and
intensities must be fl~xiblc in order to adjusl to changed conditions, there
needs to be some limitation placed un what "changed assumptions and
conditions" allow for the Conceptual Master Plan and proposed densities
and intent>>ilics to bc altcrcd. See Section 2.2(d) as an example of one
tli er s died out in the A eement.
Who detennines when there are "changed assumptions and conditions"?
This should be a mutual process which allows Developer to make the inihal
determination that the Conceptual Ma.qter Plan and/or proposcd dcnsities
and int~nsities must be amended and the City and eRA to approve :such
proposed changes. The City and CRA's approval of the Conceptual Master
Plan and/or amendments thereto does not constitute approval of the requisite
re lator a rovals for the im .lementaLion nf that Plan.
What is the Developer's proposed Conceptual Master Development
Schedule? Again, the eRA understunds that the Master Development
Schedule must be flexible to allow for changed conditions, however, we
need to under:sland lntown's perceived Limeframes for 1) obtaining land, 2)
applying for n~essary regulatory approvals, 3) receiving necessary
re uinta a rovals, and 4 be 'nnin construction. Tn addition, the eRA
NDV-30-2006 18:17 From:
To:0007~2419#02B#737325 P.5/10
E. Lee Worsham, Esquire
November 30, 2006
Page 4
A rticlelSedion Issue
needs to understand how the project will be phased. Such milestones musl
be identified because the failure of either party to meet the m.Hcstone dales
constitutcs a brcach of the ar,1'ccmcnt.
What are the tn gger~ allowing t.he Conceptual Master Development
Schedule to be amended?
Article ill Ref!ulnwry Approvals
3.1 (a) Preliminarily, we would like to include a provision in the agreement which
requires that the parties hold a pre-application conference to discuss the
substance of all regulatory approval applications which must be submilted.
What are the antioipated approvals needed'?
What does "acquisition of a sufficient number of parcels" mean? As will be
discussed in greater deLail laler with regard to the provisions of Article 7,
the "acquisition of a sufficient number of parcels" is not a sufficient trigger
for Developer to fulfill its various obligations under lhe Agreement. This
lerm needs to be det1ned and the detclmination of when a "sufficient
number of parcels" have been obtained must he made hy both the Developer
and the eRA.
Article IV Effec::livl!ness~ Parlips' Obliaations. Default
Generally, provisions detailing wh~t happens in the event of termination of
the Agreement by the Developer, eRA and City need to be incJudcd. Issues
that need to be considered incJude a determination or huw property
ownership wiJI be handled in the event of termination. For instance, will the
City and eRA purchase aU of the propc11y from the Developer in t.he event
of tennination'?
4.2 There needs to be discussion of how the land acquisition phase affect~ the
oarties oblh~alioms during the ore-aDoroval Dhase.
4.S(b) When and how may Interim Milestone Dates be amended? See comments
above re: Section 2.3.
What are the Interim Milestones? See comment.lI; above rc: Section 2.3
Arti~le V Proiect Reuresentatives. Kev Personnel. Project Administration
5.2 The City and eRA would like a list of all "Principal Members," and a copy
of Intown' s aJ?;reement~ with theNe narties.
Article VI Relocation Assistance Policy
Bccause the Relocation of re~jdent~ and hu~ine~ses within the MLK
Canido!' is a critical clement of this project from the CRA' s prespecti ve, the
Developer must proposc a detailed relocation program for review and
consideration by the eRA Board. In addition, the consequences for hreach
must be provided.
6.1 Whnt is the Relocation Assistance Policy'! See Federal Hun Guidelines.
Who will administer the pr02ram and how'?
Does the Program anticipate eRA staffin2 and fundinli!.?
What will be lhe CRA'g rolc?
NDV-30-2006 18:18 From:
To:0007#2419~028#737325 P.5/10
E. Lee Worsham, E~quire
November 30, 2006
Page 5
Article/Section Issue
6.1 (c) Have agreements been reached with all Churches? If agreements t=an't be
r.eached, then what?
6,1(e) What does "best efforts" mean'! This I.erm is used throughout the Agreement
as to the Developer's commitmentc;, but .it is not a defined term.
How will the JnOltgage bencfit progI"am he Funded, fldministc~cd and by
whom?
Article VII ACQuisition of Third..Partv PcuDecties and City/eRA I..and Sales
7.1(0) What cooperation does the Developer need from City and eRA rcgarding
acquisition of Third-Party Parcels? What is the Strategy'? Whal is the
"agreed upon timetable"? See also 7.1(c)
This is a critical element of the Agreemenl and the eRA cannot go to the
Board with this Agreement without a clear understanding of what resources
the eRA is being asked to expend on the acquisition of third-party
properties. Specifically, the eRA needs to understand what financial and
staff resources are being requcsted as part of the "cooperat;on" described in
this provision.
"Until Developer determ.ines that a sufficient number of parcels" have been
obtained is not. a specific reference point. As many provisions of the
agreement turn on this issue, this must be more speCifically defined and the
decision as to when "sufficient parccls" have been acquired cannot be
within the Developer's sole discretion. See also commenbi regardin~
Section 3.1(0)
7.1(d) What does "cooperatively negotiate,j mean?
Who will lead such nelZotiat;ons?
What triggers other Partics getting involved'!
Define "commercially reasonable"
Define "reasonably acccptable terms'''!
What are the impljcatjon~ of notic1ng a "Holdout Parcel" to the City/CRA.
oth~r than allowing the Develooer to amend the ConcePtual Master Plan'!
7.1(e); 7.2- 7.3; The tet:1Tls of the sale of the City and eRA properties to the Developer must
7.11.7.16 be approved by the Board. However, there are remaining questions as to lhe
Developer's proposed terms, including:
- How wiJI Developer's obligation to pay be secured'! Mortgage'!
- Is Developer proposing to use these properties as collateral in some way,
and if so, how will Dcvdoper assur~ the security of its obligation to pay [or
the propcrty?
- The Terms of Closing need to be soecifica1Jv addressed.
A rtide VIII Develoner Commitments
Generally, the Developer's commitments as SeL forth in this Article are too
lIeneral to provide any means of enforcement. Thus, more detail as to the
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November 30,2006
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Al'ticlcJScctlon Issul!
when. whcrc and how of each commitment must be included such that it
will be clear when and if Developer has met its commitments under the
contract.
8.3(a) How will the Droirr'dIIl be administered and by whom'?
Is there a limit on the number of Qualified persons who wiH receive benellts
How wil1 the Of02Tam be funded?
H.3(b) How many Phases of the Project arc there? See commen18 regarding
S8;tinn 2.3
What is the proposed total unit count for the project?
8.3(c) What assurances will be given'? How wHl this be enforced'!
8.3(d) Define "Sustainable Homeowershio Pro2I'an1."
Who will administer'? How will it be funded'?
8.5 Are these the only commitments that the Developer is seeking from the City
and eRA other than the transtcr of City/eRA property (see Sl!dions 7.3 et
scq.)? No financial commitments'!
8.5(8) More details arc needed regarding what "financial assistance" the Developer
is seeking for the demolition and removal of existing structures before the
eRA can commit to provide such assistance.
Article IX FJnancin2
How will DeveloDer finance the purchase of the properly? -
9.1
How will the Developer finance the project through the Pre-Approval
Period'!
How wiJ1 the Developer finance the construction of lhe projcct?
What assurances will Developer provide City/CRA regarding its t1nancial
capability at each of the above sta~es of the project?
9.2 The feasibility of the eDD to fund all infrastmcture improvements for this
project in a timely manner needs to be fuJly researched. See also 9.3 and
Article XII
Who will fund infrastructure construction if a con cannot?
A rticle X Project Construction. Operation, Munaeement Requirements
10. 1 (a) What does "land assemblv" mean?
What do "Concept Plan" and "development schedule mean",! How do these
relate to Ma.~ter Conceotual Plan and Master Develooment Schedule'!
lO.l(c) What are the Interim Milestones and dates for accomplishing them? How
does this relate to 1O.1(b)'!
1. O.4(b) On what grounds may t.he Conceptual Mastcr Dc:vclopment Schedule be
amended? This cannot be an ever-moving target as failing to meet the
lntcdm Milestone dates constitutes a breach of this Agreement.
10.7 Design Details need to be detlned and/of explained.
10.9 What Infrastructure Improvements will be needed? Before the parties can
determine who and how the needed infrastmcture improvements will be
funded, the Developer must identify what infrastructure wiH be needed in
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E. L~e Worsham. Esquire
November 30, 2006
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Article/Section Issue -
I'
coniunction with the pl'Oposcd Conceolual Master Plan.
Who will oveo;ee their construction?
Can CnD fund all Tnfraslruclure Tmnrovements? In a timely manner? ..-
Who will fund Infrastructure Imorovemenls UP front if enn cannot?
Who will fund regulatory approvHIs needed for Infrastructure
Imorovements?
Article XI OMITTED
Article XII Community Development District
A rticle XIII Tr.msfers and AssiSlDments
Article XIV Damaee, Destruction and Restoration
Article XV Condemnation
A rticIe XVI No Subordination
Article XVII Roo ulrements
Article XVIII No Liability for In1ury or Damaf!e. Etc...
Article XIX Representations and Warranties
Article XX Certilicntes by eRA, City and Develooer
Article XXI Notices, Consents and Approvals
Article XXII Indictment. Investismt1ons. Etc...
A rticle XXIII Environmental Indemnification
Article XXIV Miscellaneous
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E. Lee Worsham, E~quire
November 30, 2006
Page 8
Notes ReJ:.ardina Deletions Made to Orlainal Draft Provided By eRA
,
Below, please find uur comments regarding some 01' Lhe deletions you have made to the
original draft Agreement we provided to you on September 27, 2006. This list is not exhausLive, hut
servos to identify some of the major issues we have with your edits to the original draft.
O.'i{!ina) Section Issue with Deletion
List of Exhibits
Exhibit I We believe a graphic depicting the Infrastructure Improvements is still a
necessary exhibit.
Exbibit J We believe an Tnfra~tructure Improvement"i Budget is still a necessary
exhibit.
Article I Definitions
The definition of "City's Project Representative" appears to have been
inadvertently deleted.
A definition of "Critical Properties" should remain.
The definition of 'IInfrastructure Improvements," "Inf1'8sll1Jcture
Improvements Budget," "Infrastructure Design and Construction
Contractors," and "Tnfra..;;lruclure Improvement.s Design and Construction
Contracts" should remain.
Article II The Proiect
Comment$; in the original draft requesting a Master Development Schedule
which identifies the phasing of the construction of the project, the timing
and phasing of lnnd acquisition, the timing of applying for/receiving
required development approvals, the timing of const11Jction of necessary
infmslruclure, and the tinting and availability of relocation bcnefil!i remain
outstanding; reQuests for informatiun from the Develooer.
Article III Repulatorv ADnrovals
Article IV ~tTedlvencss and Termination Obli2ations: Events of Default: Breach;
Remedies
4.1 We disagree with the language that has been changed in this provision lo
the extent it now provides that "Developer shall be the designated 'Ma~ter
Developer' for the MLK Corridor..." rather than the original language
which provided that "Developer shall be the designated 'Master Developer'
for those areas identified in Section _ as the Project Site." In sum, the
reference here should be to the Droioot site as described in thc agreement.
Article V Proied Renresentatlvcs! Kev PerMnnel' Protect Administration
Article VI Assembly 01" Land by Develooer - Third Party Prouerties - merged inlO
Article VII
6.3 This provision, which require~ the Developer lO comply with the Relocation
Assistance Policy in the purchase of Third Party Parcels, :should remain.
Comments requesting detailed information regarding what relocation
assistance will be provided and informalion rC}i!;arding the procedure for
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November 30,2006
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Orhdnal Seclinn Issut! with Deletion ..
implementing the program remain outstanding requests for infonnation
from the Developer.
~~. Acauisition of Land b}: Deve)o..ner - City/eRA Sales Transactio.!!
Article VII
renamed "Acquisition of Third-Party Properties and City/eRA Salcs
Transaction"
Article VIII Develoner Commitments
8.1 Comments requesting the Developer LO identify documentation that the
Developer. will be r.equired to provide to make a good faith showing of its
financial capabilities, project budget, etc... remain outstanding reque~tl; for
information from the Developer.
Article IX Financina
9.1 The language, or some similar language, requiring Developer to
demonstrate its financial capabilities prior to the execution of thi~
A1ll"Ccment should rcmain in the Al!l'ccmcnt.
9.3 Comments regarding the need to determine how infrastructure
improvements will be funded throughout the construction of [he project
remains un out..,tanding issue to he resolved prior to the execution of a final
aSl;reement.
A rticle X Proied Construction. Qoeration and ManoSlement Reouirements
This language describiT1g t.he t'ole of the City and eRA during the
construction of the Project mll.llt he negotiated further. The level of
oversight cUll'cntIy proposed by Developer may not be lSuft1cient for the
eRA Board.
The language regarding the construction of the Infrastructure Improvements
which has been deleted, or some other language, must be included to
describe the responsibilities of thc p811ies with regard to the construction of
the infrastructure improvements
Article XI Intentionallv Omitted
Article XII Communitv Develonment District
A rtide XI V Danla~e. DestrodJon and Restoration
Article XV Condemnation
A rticle X VI No Subordination
Artide XVII Reouirement.'l1
Ardcle XVIII No Liability for Iniorv or Damage. etc.
Article XIX Renresentatlons and Warranties
Article XX Certificates bv CRA. Citv Ilnd Develooer
Article XXI Notices Consents and Annrovals
Article XXII Indictment:.-Investi~tioD8. etc.
Article XXIII En\'ironmental Indemnification
Article XXIV Mh;ccllancnus
.,
HEART OF BOYNTON COMMUNITY REDEVELOPMENT
MARTIN LUTHER KING CORRIDOR PROJECT
BOYNTON BEACH, FLORIDA
DEVELOPMENT AND DISPOSITION AGREEMENT
BY AND AMONG
CITY OF BOYNTON BEACH
("City")
BOYNTON BEACH COMMUNITY REDEVELOPMENT AGENCY
("CRA")
AND
INTOWN PARTNERS, LLC
("Developer")
Dated as of __ 2006
DRAFT -Confidential / 12006
WPB:273992:2
TABLE OF CONTENTS
I. Defini ti ons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
II. The Project........................................................................
III. Regulatory Approvals............................................................
IV. Effectiveness, Parties' Obligations, Default.. .. .. .. .. .. . .. .. .. .. .. . .. .. .. .. ..
V. Project Representatives, Key Personnel, Project Administration.... ......
VI. Relocation Assistance Policy. ............ ......... ............ ......... . .......
VII. Acquisition of Third-Party Properties and City/CRA Land Sales
Transaction.. .. . .. . ... .. ... . ... . . ... . .. . .. . .. . .. . .. . .. . .. . . . . .. . .. . .. . .. . .. . .. . ....
VIII. Developer Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....
IX. Financing. . .. . .. . .. . ... .. . . . . . . . .. . .. . .. . .. . ... .. . . . ... . .. . .. . .. . .. ... . .. . .. . .. . .. . .
X. Project Construction, Operation and Management Requirements..........
XI. Omitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...
XII. Community Development District. ... . . . .. .. ... .. . .. . ... ... .. . .. . .. ... . .. . .. . ..
XIII. Transfers and Assignments........ .............. . .. .... .............. ...... .... .
XIV. Damage, Destruction and Restoration. ..................... ....................
XV. Condemnation.............. .... ............................... .......... ...........
XVI. No Subordination....... .......... ............ ..... .... .................... . .......
XVII. Requirements........................................................................
XVIII. No Liability for Injury or Damage, Etc............. ................ ...... .......
XIX. Representations and Warranties.. .. . .. . .. . . .. .. . .. . . . .. . . .. . .. . .. . . . . .. . .. . .. . ...
XX. Certificates by CRA, City and Developer.......................... .............
XXI. Notices, Consents and Approvals........ .............. .......... ............ ....
XXII. Indictment, Investigations, Etc. . .. . ... .. . .. ... . .. . .. . .. ... . " . .. . .. . . . . .. . . . . .. . .
XXIII. Environmental Indemnification. ............ ....... ... ...... ..... ......... ........
XXIV. Miscellaneous.. ........... ............................................. .............
WPB:273992:2
(
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Exhibit A
Exhibit A-i
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit I
Exhibit J
Exhibit M
Exhibit N
Exhibit 0
Exhibit P
Exhibit Q
Exhibit R
WPB:273992:2
LIST OF EXHIBITS
J'
Conceptual Master Project Site Plan
Conceptual Density, Intensity and Mix of Use Table
Conceptual Master Development Schedule
Development Approvals
City Properties - Property Control Numbers
CRA Properties - Property Control Numbers
Third-Party Properties - Property Control Numbers
Omi tted
Omitted
Omitted
Form of Interlocal Agreement
Project Documents
Required Contract Provisions
Memorandum of Development and Disposition Agreement
Insurance Requirements
Site Legal Description
MLK CORRIDOR DEVELOPMENT CITY OF BOYNTON BEACH
THIS DEVELOPMENT AND DISPOSITION AGREEMENT (the "Agreement") is
made this _ day of , 2006, by and among the City of Boynton Beach, rFlorida, a
municipal corporation existing under the laws of the State of Florida (the "City"), the Boynton
Beach Community Redevelopment Agency, a public body corporate and politic created pursuant
to Chapter 163, Part III, Fla. Stats. (the "CRA") and Intown Partners, LLC, a Florida limited
liability company (the "Developer").
WITNESSETH:
WHEREAS, the CRA approved the issuance of a Request for Proposals ("RFP") for
Developer for the redevelopment of the
Martin Luther King East Corridor In the Heart of Boynton ("MLK Corridor
Development"); and
WHEREAS, Developer submitted a proposal ("Developer's Proposal") in response to the
RFP; and
WHEREAS, after presentations by developers and public input, on August 17, 2006, the
CRA selected the Developer's Proposal, thus naming Developer as the preferred Master
Developer for the MLK Corridor Development; and
WHEREAS, the CRA, City and Developer now desire to enter into a definitive
agreement concerning their respective obligations; and
WHEREAS, the Developer's Proposal is hereby merged into and completely superseded
by this Agreement; and
WHEREAS, the Developer has developed a conceptual master project site plan and a
conceptual master development schedule for implementation of the plan, which are the subjects
of this Agreement; and
WHEREAS, the City, the CRA and Developer have determined to work cooperatively to
create a Community Development District (the "CDD") to provide for financing, construction,
maintenance of and land acquisition for Infrastructure Improvements for the MLK Corridor
Development; and
WHEREAS, the City and the CRA have determined that creation of a CDD is consistent
with all applicable elements and portions of the state comprehensive plan and the City
comprehensive plan; and
WHEREAS, the area of land contained within the MLK Corridor Development is
sufficiently compact and contiguous to be developable as one functional, interrelated
community; and
WPB:273992:2
WHEREAS, a CDD is the best alternative available for delivering community
development services and facilities to the area to be served by such districts; and
(
WHEREAS, the community development services and facilities of the CDD will be
compatible with the capacity and uses of existing local and regional community development
services and facilities; and
WHEREAS, the area that will be serviced by the CDD is amenable to separate special
district government; .
NOW, THEREFORE, it is hereby covenanted and agreed by and among the parties
hereto that this Agreement is made upon the terms, covenants and conditions hereinafter set
forth.
ARTICLE I
DEFINITIONS
For all purposes of this Agreement, the following terms shall have the following
meanmgs:
"ADA" means The Americans with Disabilities Act of 1990, as amended, together with
any rules or regulations promulgated thereunder, or any successor act thereto.
"Affiliates" means, with respect to the Developer, any other Person directly or indirectly
controlling or controlled by Developer, or under direct or indirect common control with the
Developer or any charitable entity or trust created by any of the foregoing.
"Agency" or "CRA" means the Boynton Beach Community Redevelopment Agency and
any assignee or transferee of all of the Agency's rights, obligations and interests herein, from and
after the date of any such assignment or transfer thereof (by operation of law or otherwise);
provided, however, that any such assignment shall be permitted only if such assignee or
transferee is a governmental or quasi-governmental body or entity (including, without limitation,
the City or any agency thereof).
"Agreement" means, collectively, this Development and Disposition Agreement and all
exhibits and attachments hereto, as any of the same may hereafter be supplemented, amended,
restated, severed, consolidated, extended, revised and otherwise modified, from time to time,
either in accordance with the terms ofthis Agreement or by agreement ofthe Parties.
"Architect" means the architect designated by Developer having responsibility for the
overall design of the Project or any phase or Component of the Project, as the context requires.
"CDD" means a community development district formed pursuant to Chapter 190, Fla.
Stats.
WPB:273992:2
2
"CDD Bonds" means any bond or other financing which may be issued or imposed by a
CDD.
"City" means the City of Boynton Beach, Florida.
"City/CRA Closing Date" shall mean the date when the closing(s) shall be held on the
City/CRA Sale Transaction as stated in Section 7.3, et al.
"City Properties" means those certain parcels of real property within the MLK Corridor
Development Project Site which are owned by the City, which are required for development of
the Project and which must be acquired by Developer from the City under the terms set forth in
this Agreement. The property control numbers for the City Properties are set forth on Exhibit
'D." The City Properties shall include all improvements now or hereafter situated on the said
parcels, option rights, strips, gaps, gores, easements, rights-of-way, privileges and appurtenances
thereto, including, without limitation, all leases and all rents and other income derived therefrom
and all licenses, permits, entitlements and governmental approvals pertaining to the said
premIses.
"Commission" means the City Commission or its successors as the City's governing
body.
"Completion Guarantee" shall mean any and all guarantees provided to assure
completion of construction of the Project or a Project Component.
"Completion Guarantor" shall mean any person or entity giving a Completion Guarantee.
"Conceptual Master Development Schedule" means the development schedule attached
hereto as Exhibit "B," as it may be amended from time to time.
"Concept Plan" has the same meaning provided in Section 1 0.4 below.
"County" means Palm Beach County, Florida.
"CRA Indemnified Party or Parties" means, collectively, the CRA and the City and their
respective elected and appointed officials (including the Chair, the Members, the Mayor and the
Commissioners), employees, permitted successors and assigns and agents.
"CRA Master Plan" or "CRA Plan" means the Heart of Boynton Community
Redevelopment Plan, as the same may be amended from time to time.
"CRA's Project Representative" has the meaning provided in Section 5.1 (b) below.
"CRA Properties" means those certain parcels of real property within the MLK Corridor
Development Project Site which are owned by the CRA, which are required for development of
the Project and which must be acquired by Developer from the CRA under the terms set forth in
WPB:273992:2
3
this Agreement. The property control numbers for the CRA Properties are set forth on Exhibit
"E." The CRA Properties shall include all improvements now or hereafter situated on the said
parcels, option rights, strips, gaps, gores, easements, rights-of-way, privileges and appurtenances
thereto, including, without limitation, all leases and all rents and other income deriveditherefrom
and all licenses, permits, entitlements and governmental approvals pertaining to the said
premIses.
"Default" means any condition or event, or failure of any condition or event to occur,
which constitutes, or would after the giving of notice, lapse of time or both, constitute (in
accordance with the terms of this Agreement), an Event of Default.
"Default Notice" has the meaning provided in Section 4.5(c) below.
"Developer" means Master Developer for the MLK Corridor Development, Intown
Partners, LLC, and any assignee or transferee of the Developer that is permitted under this
Agreement, from and after the date of such permitted assignment or transfer.
"Developer's Project Representative" has the meaning provided in Section 5.1(a) below.
"Development Approval" or "Development Approvals" means all City and CRA
approvals, consents, permits, amendments, zonings decisions, conditional uses or variances as
well as such other official actions of the federal, state or local governments that are necessary to
develop the MLK Corridor Development as contemplated by the Agreement, as described in
Article III below.
"District" means the Community Development District to be formed pursuant to Chapter
190, Fla. Stats., for the MLK Corridor Development.
"Due Diligence" means examination of the history and physical characteristics of any
portion of the Project Site to determine if it is suitable for development for the purpose intended
as set forth in the Agreement
"EEO Program" shall have the meaning provided in Section 1 0.11 below.
"Effective Date" means the date this Agreement is fully executed and delivered by all
parties hereto.
"Event of Default" has the meaning provided in Section 4.5 below.
"Final CO" means a final certificate(s) of occupancy issued by the City's Building
Department for all or a portion of any constructed improvements.
"Governmental Authority or Authorities" means the United States of America, the State,
the City, the County, the CRA, the District, any other community development district and any
agency, department, commission, board, bureau, instrumentality or political subdivision
(including any county or district) of any of the foregoipg, now existing or hereafter created,
WPB:273992:2
4
having jurisdiction over Developer or over or under the Project (or any portion thereof) or over
the Infrastructure Improvements (or any portion thereof).
"Hazardous Substances" shall mean (i) petroleum and its constituents; (ii) radon gas,
asbestos in any form, urea formaldehyde foam insulation, transformers or other equipment which
contain dielectric fluid containing levels of polychlorinated biphenyl in excess of Federal, state
or local safety guidelines, whichever are more stringent; (iii) any substance, gas, material or
chemical which is or may during the Term of this Agreement be defined as or included in the
definition of "hazardous substances," "hazardous materials," "hazardous wastes," "pollutants or
contaminants," "solid wastes" or words of similar import under any Requirement including the
Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42
U.S.C. ~ 9601 et seq.; the Hazardous Materials Transportation Act, as amended, 49 V.S.C. ~
1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.c. ~ 6901;et
seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. ~ 1251, et seq.; and Fla.
Stats., Chapters 376 and 403; and (iv) any other chemical, material, gas or substance, the
exposure to or release of which is regulated by any governmental or quasi-governmental entity
having jurisdiction over the Project Site or the operations thereon.
"Improvements" means all items which are to be constructed as part of the MLK
Corridor Development.
"Interim Milestone Dates" are the estimated dates for completion of a certain activities as
provided in the Copceptual Master Development Schedule, attached hereto as Exhibit "B."
"Interlocal Agreement" means the agreement or agreements to be executed among the
CRA, the City and the District to be formed pursuant to Chapter 190, Fla. Stats., for the MLK
Corridor Development, governing the financing, development, construction, operation,
maintenance of, and acquisition of land for, the Infrastructure Improvements, substantially in the
form attached as Exhibit "M" hereto, including all exhibits, appendices and schedules thereto.
"Notice" has the meaning provided in Section 21.1 below.
"Parcel" means a parcel of real property which is part of the MLK Corridor
Development or a portion thereof.
"Party" means Developer, the CRA or the City as indicated by the context.
"Parties" means, collectively, the Developer, the CRA and the City.
"Person" means an individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, estate, trust, unincorporated association or other entity;
any Federal, state, county or municipal government or any bureau, department, political
subdivision or agency thereof; and any fiduciary acting in such capacity on behalf of any of the
foregoing.
"Plans and Specifications" means schematic plans, design development plans and
WPB:273992:2
5
construction plans for the project component.
"Pre-Approval Period" shall have the meaning as set forth in Section 4.2.
I
"Project" means the MLK Corridor Development depicted and described in Exhibit "A"
and as further described in Article II.
"Project Component" or "Component" has the meaning as set forth in Section 3.1.
"Project Documents" means this Agreement, the Interlocal Agreement and the other
documents listed on Exhibit "N" hereto.
"Project Site" means the property depicted in Exhibit "R" and described in Section 7.1
below, for development of the MLK Corridor Development.
"Redevelopment Trust Fund" or "Trust Fund" has the meaning pursuant to Section
163.387, Fla. Stats.
"Relocation Assistance Policy" is as described in Article VI.
"Requirements" has the meaning provided in Section 17.1 below.
"State" means the State of Florida.
"Sub-Developer" shall have the meaning as set forth in Section_.
"Sub-Developer Agreement" means an agreement between the Developer and a Sub-
Developer concerning the construction of the Project or a Project Component by the Sub-
Developer, and agreement by Sub-Developer to abide by the terms and conditions of this
Agreement with respect to the Component at issue.
"Substantial Completion" means (i) the completion of all improvements with respect to
the Project or a Project Component in substantial accordance with the applicable Plans and
Specifications therefor and all applicable Requirements, as evidenced by the issuance of a Final
CO, together with a certification by the Architect and the CRA Project Representative and that
such Improvements have been substantially completed in accordance with such Plans and
Specifications and all applicable Requirements; (ii) delivery to the CRA of a final "as-built"
survey showing the completed Improvements; (iii) delivery to the CRA of a full and complete set
of "as-built" Plans and Specifications, or their equivalent, certified by the Architect, as amended,
for construction of Improvements; and (iv) delivery to the CRA of evidence reasonably
satisfactory to the CRA that such Improvements have been substantially completed, including
receipt of final contractor affidavits and lien waivers and releases, except for any such liens
being contested in accordance with the provisions of this Agreement.
"Tax Increment" or "Tax Increment Revenue" mean ad valorem taxes collected on
taxable properties above the Tax Increment Base year within the Project Site and deposited in the
WPB:273992:2
6
Redevelopment Trust Fund.
"Tax Increment Base Year" means , the year of the most recent ad valorem tax
assessment roll used by each taxing authority prior to the effective date of the ,ordinance
providing for the funding of the Redevelopment Trust Fund.
"Term" means the period commencing on the Effective Date and, subject to earlier
termination as provided hereunder, expiring on the earlier to occur of the dissolution of the CRA
or Substantial Completion ofthe Project.
"Third-Party Properties" shall have the meaning as set forth in Section
"TIF" means tax increment financing pursuant to Chapter 163, Fla. Stats., including TIF
Bonds or BANS or other obligations, including CDD Bonds, which are secured by Tax
Increment Revenue pursuant to Section 163.387, Fla. Stats.
"TIF Bonds" means any bonds or other long term financing permitted to be issued by the
CRA or the City under Chapter 163 or 166, Fla. Stats.
"Title Commitment" shall mean a commitment from the Title Company to issue the Title
Policy.
"Title Company" shall mean
"Title Policy" shall mean a title policy in a form acceptable to AL T A, issued by the Title
Company, insuring Developer's title interest in accordance with the Agreement.
"Unavoidable Delays" means delays due to any of the following (provided that such
delay is beyond a Party's reasonable control): strikes, slowdowns, lockouts, acts of God, inability
to obtain labor or materials, war, enemy action, civil commotion, fire, casualty, abnormal
weather conditions, litigation, including eminent domain litigation, a court order which causes a
delay, delays in governmental approvals, the application of any Requirement, or other such cause
beyond such Party's reasonable control. Such Party shall use reasonable good faith efforts to
notify the other Party not later than twenty (20) days after such Party knows of the occurrence of
an Unavoidable Delay. In no event shall (i) any Party's financial condition or inability to fund or
obtain funding or financing constitute an "Unavoidable Delay" with respect to such Party, and
(ii) any delay arising from a Party's (or its Affiliate's) default under any Project Document
constitute an "Unavoidable Delay" with respect to such Party's obligations hereunder.
"Workforce Housing" means housing that which will be sold or rented to persons
earning between 60% to 140% of the Palm Beach County median household income, adjusted
for household size.
ARTICLE II
WPB:273992:2
7
THE PROJECT
Section 2.1 Proiect Site
The MLK Corridor project area is from the east side of North Seacrest Boulevard to and
including the west side of US 1 between the north side of N.E. 9th Avenue to and including the
south side of N.E. 11th Avenue. The legal description of the Project Site is contained in Exhibit
"R. "
Section 2.2 Project Description
(a) The Project consists ofa cohesive plan for a mixed-use development composed of
single and multifamily housing and neighborhood retail with service uses, as depicted on the
attached Exhibits "A" and "A-i."
(b) The Project is consistent with the Heart of Boynton Plan and the City of Boynton
Beach Comprehensive Plan. The Project also implements recommendations contained in
Treasure Coast Regional Planning Council's HOB Plan Feasibility Analysis.
(c) The Parties agree to amend the Conceptual Master Project Site Plan (Exhibit "A")
and Density, Intensity and Mix of Use Table (Exhibit "A-i"), when and if necessary due to
changed assumptions or conditions. The CRA agrees that an amendment to these exhibits
proposed by Developer shall not be unreasonably withheld, delayed or denied.
(d) Alterations to Conceptual Master Project Site Plan/Conceptual Master
Development Schedule. Upon issuing notice to the CRA and City of the existence of a Holdout
Parcel(s), as referenced in Section 7.1, that renders completion of the Conceptual Master Project
Site Plan impossible, the Developer shall proceed with creation of an Alternative Conceptual
Master Project Site Plan and Alternative Master Development Schedule, as necessary in light of
these changed circumstances. Developer will have ninety (90) days from the time of issuing
notice of the Holdout Parcel(s) to present its Alternative Master Conceptual Plan and Alternative
Master Development Schedule to the City and the CRA for approval.
Section 2.3 Sequence of Development/Phasing. - See Exhibit B, "Conceptual Master
Development Schedule." The schedule is estimated and may be subject to amendment due to
unforeseen circumstances. The Parties agree to approve reasonable amendments and that
agreement thereto shall not be unreasonably withheld, delayed or denied.
ARTICLE III
REGULATORY APPROVALS
Section 3.1
Development Approvals and Fast-Track Processing.
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(a) Following acquisition of a sufficient number of parcels within the MLK Corridor for
the Project to proceed as provided in Section 7.1, The Developer, the CRA or the City, as
applicable, shall apply for all Development Approvals necessary to develop the Project. Each
Party will join in all applications, permits, etc., requested by another Party and which are
required to obtain the Development Approvals, which joinder shall not be unreasonably
withheld, delayed or denied. Developer shall author all applications, when appropriate, and
request where deemed necessary the City and CRA to submit applications for such approvals as
Comprehensive Land Use Amendment Changes, Zoning District Changes, and the like. Certain
provisions of this Agreement may require the City and/or its boards, departments or agencies, or
the CRA, acting in their governmental capacity to consider certain changes in the City's
Comprehensive Plan, and/or zoning codes, the CRA Plan, as well as to consider taking other
governmental actions. The term "Development Approvals" as used in this Agreement shall mean
all City and CRA approvals, consents, permits, amendments, rezonings, conditional uses or
variances as well as such other official actions of the federal, state or local governments which
are necessary to develop the Project as contemplated by this Agreement, including, without
limitation, those approvals set forth on Exhibit "C," attached hereto. All parties hereto shall use
their best efforts to apply for the Development Approvals pursuant to the Master Development
Schedule.
(b) The obligations of the parties to obtain the Development Approvals shall be deemed
satisfied and fulfilled at such time as the Development Approvals are fully adopted by all
requisite federal, state, county or city governmental actions with conditions, if any, reasonably
acceptable to the Developer, the City and the CRA, and the same have become final, binding and
no longer subject to appeal. In the event any of the Development Approvals include a
requirement that the City or CRA, as a property owner, provide its joinder or consent to the
Developer, the City and the CRA agree to provide such joinders and consents.
(c) The CRA and City agree, to the extent not otherwise prohibited by the Florida
Building Code or other applicable law, the City will "Fast-Track Permits and Approvals." Fast-
Track Permits and Approvals means that Developer may submit separate Plans and
Specifications as to a portion of the Project then being built; e.g, the residential development, and
that City will assign senior staff persons to be in charge of processing the required permits.
Under Fast-Track Permits and Approvals, Developer may separately request and City shall
separately issue the following permits for the various portions of the Project to be constructed:
(a) demolition; (b) formal life safety review; (c) pilings; (d) foundation; (e) structural framing
and exterior cladding (collectively, shell permit); (f) interior framing and interior partitioning; (g)
full mechanical, electrical and finish package; (h) all other permits or approvals necessary for
the completion of the construction of that portion of the Project being built. Developer shall
provide as many copies of the Plans and Specifications as necessary for the various departments
to review the Plans and Specifications simultaneously (instead of sequentially) to the extent such
simultaneous review is not prohibited by the Florida Building Code or other applicable law. City
shall also Fast-Track Processing of any necessary new road additions or changes to existing
roads for the Project. Further, it is understood and agreed upon that, to the extent not otherwise
prohibited by the Florida Building Code or other applicable law, the Department of Building and
Engineering Services may approve Plans and Specifications and/or work for portions of the
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Project without reviewing a complete set of Plans and Specifications for the entire Project.
However, in no event shall Developer cause any work to be performed on any portion of the
Project without an approved set of Plans and Specifications for that portion of the Project.
I
Section 3.2
Applications for Development Approvals.
(a) Promptly following the date of this Agreement, and immediately following the
acquisition of a sufficient number of parcels as defined by Developer's Conceptual Master
Project Site Plan within the MLK Corridor for the Project to proceed as provided in Sec.tion 7.1,
Developer, the City and the CRA shall initiate and diligently pursue the Development Approval
applications in substantial accordance with the Conceptual Master Development Schedule
attached hereto as Exhibit "B."
(b) The City and the CRA shall consent to the filing of all applications for the foregoing
as necessary, and that the Developer may file applications on behalf of the City and CRA when
appropriate. In the event this Agreement requires modifications of any comprehensive plan,
ordinances, resolutions, rules or regulations of the City, the CRA or other governmental entity
which must (as a matter of law) be initiated by the City or the CRA, then, any modifications to
such ordinances, resolutions, rules and/or regulations will be initiated by the City and/or the
CRA following the date of this Agreement. Developer, City and CRA agree that Developer shall
act as the City's and/or the CRA's agent on all Development Approvals for which the City
and/or the CRA shall be required to be the applicant. Developer agrees to pay all application
costs, advertising costs or other required expenses for the processing of these applications and all
Development Approvals. Consistent with its obligations to fully and fairly review all
applications, the City and the CRA will process all Development Approval applications within
the control of the City and/or the CRA in an expedited manner as permitted by law, and the City
and/or the CRA shall cooperate with the Developer in processing all necessary Development
Approvals from federal, state and local government agencies.
Section 3.3 Cooperation in Obtaining Development Approvals.
(a) In addition to cooperating in obtaining the Development Approvals, the City and the
CRA, to the extent permitted by law, shall cooperate and assist Developer in the applications for
and processing of any and all other development approvals or other approvals with respect to the
development of the Project (including, without limitation, any building permit requested by the
Developer) as may be required to allow the construction of the Improvements as long as and to
the extent that such Improvements are consistent with the terms of this Agreement and as long as
such cooperation and assistance does not include the exercise of the City's and the CRA's police
power or arise out of the exercise of the City's and the CRA's powers when acting in a quasi-
judicial capacity. The City and the CRA will process all such Development Approval
applications in a timely manner as permitted by law and agree to expedite such approvals to the
extent practicable. However, the City and the CRA shall not be obligated to expend any funds in
support of any such applications, apart from customary and routine internal staff and other
processing costs.
(b) As provided above, the parties recognize and agree that certain provisions of this
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Agreement may require the City and/or its boards, departments or agencies, or the CRA, acting
in their police power/quasi-judicial capacity, to consider certain changes in the City's
Comprehensive Plan, City zoning code or other applicable City codes, plans or regulations, the
CRA Plan, as well as to consider other governmental actions. It is acknowledged that. the City
and/or its boards, departments or agencies, or the CRA must observe all obligations as regulatory
bodies, and that all actions taken hereunder shall be done in accordance with the requirements of
the Florida Statutes, the City Charter and City ordinances. Nothing in this Agreement is intended
to limit or restrict the powers and responsibilities of the City and/or the CRA in acting on such
applications by virtue of the fact that the City and/or the CRA may have been required to. consent
to such applications as a property owner or pursuant to its authority under the Florida statutes.
The parties further recognize and agree that these proceedings shall be conducted openly, fully,
freely and fairly in full accordance with law and with both procedural and substantive due
process to be accorded the applicant and any member of the public that may be entitled to
participate in any proceeding.
ARTICLE IV
EFFECTIVENESS AND TERMINATION OBLIGATIONS;
EVENTS OR DEFAULTS; BREACH; REMEDIES
Section 4.1
Effectiveness and Termination
This Agreement shall be effective as of the Effective Date and shall terminate on the
Date of Substantial Completion (as defined in Article I) of the Project, unless sooner terminated
pursuant to the terms of this Agreement, and subject to all provisions of this Agreement which
specifically survive any such termination of the Agreement. From and after the Effective Date,
Developer shall be the designated "Master Developer" for the MLK Corridor and shall construct,
or cause to be constructed, the Project in substantially the form depicted and described on
Exhibit "A" and in accordance with the Conceptual Master Development Schedule set forth on
Exhibit "B."
Section 4.2
Parties' Obligations During Pre-Approval Period
(a) During the period from the Effective Date to the date of receipt of the Development
Approvals ("Pre-Approval Period"), Developer, City and CRA shall each use all reasonable
efforts to secure all necessary Development Approvals in an expedited manner.
(b) Due Diligence. Unless caused by an Unavoidable Delay or by actions or omissions of
the City or the CRA, Developer shall undertake and complete due diligence of the history and
physical characteristics of the Project Site as it determines necessary, including Parcels acquired
by the CRA or City. Developer shall provide the City and the CRA with a copy of all due
diligence reports prepared by or for the Developer promptly upon the receipt or preparation of
such reports. In no event shall the due diligence reports be used or relied upon by the City or the
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CRA to create any liability upon the Developer. Promptly upon completion of due diligence, the
Developer shall back fill and grade any portion of the Project Site previously excavated by
Developer or its agents and otherwise cause the Project Site to be restored to its condition prior
to the undertaking of such due diligence. Within thirty (30) days after the Effective Date, City
and CRA shall make available to Developer all studies, reports, documents or other iriformation
in their possession or in the possession of any of the City's or the CRA's engineers, consultants
or agents relating to the physical, geotechnical, environmental, chemical, geological,
hydrological, archaeological, historical or biological characteristics of the Project Site.
(c) Each Party shall, on a regular monthly basis, provide the other Party with a written
report describing the status of its efforts to secure the Development Approvals. As reasonably
requested by each Party, the Parties shall meet to discuss these efforts and the information
provided in such reports.
(d) Developer shall proceed with its financial commitments pursuant to the terms of
Article VIII hereof.
(e) Developer shall use all reasonable efforts to cause the Concept Plans to be prepared
and submitted to the CRA in accordance with the Interim Milestone Dates set forth in the
Conceptual Master Development Schedule, Exhibit "B."
Section 4.3 Developer Termination Rights. Developer shall have the right, upon written
notice to the City and the CRA, to terminate this Agreement and all other Project Documents to
which it is a party if:
(a) The CRA's or City's authority to enter into and carry out the provision of this
Agreement is invalidated pursuant to a final decree of a Court of competent jurisdiction, but then
Developer may only terminate the agreement as to the Party without authority;
(b) The City or CRA is otherwise in default under any provision of this Agreement or
other agreements entered between the Parties, which are not cured after thirty (30) days advance
written notice unless same cannot be cured within such thirty (30) day period in which event City
or CRA shall have up to one hundred fifty (150) days to cure such default so long as City or
CRA is diligently pursuing the cure thereof but then Developer may only terminate the
agreement as to the Party in default. In the event of a default by City or CRA, Developer shall
have such rights or causes of action that may exist under common law, Florida statutes, or those
equivalent to those remedies of the City or CRA pursuant to Sections 4.5- 4.13 of this
Agreement, as appropriate, in the event of a default by Developer; or
(c) A sufficient number of Parcels as defined in the Conceptual Master Project Site Plan
have not been acquired by the Parties to be able to proceed with the. Project, as provided in
Section 7.1.
Section 4.4 Citv/CRA Termination Rights. The City and/or CRA shall have the right,
upon written notice to the Developer, to terminate this Agreement and all other Project
Documents to which it is a party:
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(a) If the Developer's authority to enter into and carry out the provIsIOns of this
Agreement is invalidated pursuant to a final decree of a Court of competent jurisdiction;
('
(b) If the Developer is otherwise in default under any provisions of this Agreement or
other agreements entered between the Parties which are not cured after thirty (30) days advance
written notice unless same cannot be cured within such thirty (30) day period in which event
Developer shall have up to one hundred fifty (150) days to cure such default so long as
Developer is diligently pursuing the cure thereof; or
(c) A sufficient number of Parcels as defined in the Conceptual Master Project Site Plan
have not been acquired by the Parties to be able to proceed with the Project, as provided in
Section 7.1.
Section 4.5 Events of Default: Definition.
Each of the following events shall be an "Event of Default" hereunder;
(a) If the Substantial Completion of any Project Phase (or, if the Project is not phased,
then the Project) is not completed by the date specified in the Conceptual Master Development
Schedule, Exhibit "B" of this Agreement, as revised pursuant to this Agreement, as such date
may be extended by Unavoidable Delays or as a result of acts or omissions of the CRA, or of the
District or the City pursuant to the provisions of the Interlocal Agreement, such failure shall be
deemed to be an Event of Default if such failure continues for a period of ninety (90) days after
delivery by the CRA to Developer of a Default Notice (as defined below) and Developer shall
fail to diligently and continuously prosecute to completion the remedy of such Default; provided
that during such cure period, Developer shall report to the CRA and its designated
representatives on a regular basis (but in no event less frequently than monthly), and upon
request provide such information and documentation to the CRA and/or such designated
representatives, regarding the status of completion of construction and Developer's efforts to
cure such Default; or
(b) If Developer fails to meet any Interim Milestone Date (as may be extended by
Unavoidable Delays) as stated in the Master Development Schedule Exhibit "B," as may be
amended from time-to-time pursuant to Section 2.3 of this Agreement; or
( c) If Developer fails to observe or perform in any material respect any other term,
covenant or condition of this Agreement on Developer's part to be observed or performed and
Developer shall fail to remedy such Default within ninety (90) days after notice is given by the
CRA (any such notice of Default given by the CRA under this Agreement being referred to
herein as a "Default Notice") with respect to such Default and Developer shall fail to diligently
and continuously prosecute to completion the remedy of such Default; provided that during such
cure period, Developer shall report to the CRA and its designated representatives on a regular
basis (but in no event less frequently than monthly), and upon request provide such information
and documentation to the CRA and/or such designated representatives, regarding the status of
completion of construction and Developer's efforts to cure such Default;
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(d) If Developer, or any of Developer's Affiliates involved in the Project (if as a result
thereof Developer's performance or ability to perform any of Developer's obligations under this
Agreement is materially adversely affected) admits, in writing, that it is generally unable to pay
its debts as such become due; or .
(e) If Developer or any of Developer's Affiliates involved in the Project (if as a result
thereof Developer's performance or ability to perform any of Developer's obligations under this
Agreement is materially adversely affected) makes an assignment for the benefit of credi~ors; or
(f) If Developer or any of Developer's Affiliates involved in the Project (if as a result
thereof Developer's performance or ability to perform any of Developer's obligations under this
Agreement is materially adversely affected) files a voluntary petition under Title 11 of the
United States Code, or if Developer, or any of Developer's Affiliates involved in the Project files
a petition or an answer seeking, consenting to or acquiescing in, any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under the
present or any future Federal bankruptcy code or any other present or future applicable Federal,
state or other bankruptcy or insolvency statute or law, or seeks, consents to, acquiesces in or
suffers the appointment of any trustee, receiver, custodian assignee, sequestrator, liquidator or
other similar official of Developer, or any of Developer's Affiliates involved in the Project, of all
or any substantial part of its properties or of all or any part of Developer's interest in the Project,
and the foregoing are not stayed or dismissed within ninety (90) days after such filing or other
action; or
(g) If, within ninety (90) days after the commencement of a proceeding against
Developer or any of Developer's Affiliates involved in the Project (if as a result thereof
Developer's performance or ability to perform any of Developer's obligations under this
Agreement is materially adversely affected) seeking any reorganization, arrangement,
composition readjustment, liquidation, dissolution or similar relief under the present or any
future Federal bankruptcy code or any other present or future applicable Federal, state or other
bankruptcy or insolvency statute or law, such proceeding has not been dismissed or if, within
ninety (90) days after the appointment without the consent or acquiescence of Developer or any
of Developer's Affiliates involved in the Project, of any trustee, receiver, custodian, assignee,
sequestrator, liquidator or other similar official of Developer or any of Developer's Affiliates
involved in the Project, of all or any substantial part of its properties, or of all or any part of
Developer's Interest in the Project, such appointment has not been vacated or stayed on appeal or
otherwise, or if, within ninety (90) days after the expiration of any such stay, such appointment
has not been vacated.
Section 4.6 Enforcement of Performance; Damages; and Termination.
(a) If an Event of Default occurs, the City and/or CRA may elect to do any or all of the
following: (i) enforce performance or observance by Developer of the applicable provisions of
this Agreement; (ii) recover from Developer Actual Damages (as defined below), plus interest
thereon at the rate of ten (10%) percent per annum; (iii) enforce any of the Completion
Guarantees; (iv) terminate this Agreement in accordance with Section 4.7 below; and (v) with
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respect to a Default arising from Developer's failure to satisfy its payment obligations under this
Agreement, recover said payment. The City and/or CRA's election of a remedy hereunder with
respect to an Event of Default shall not limit or otherwise affect the City and/or CRA' s right to
elect any of the other remedies available to the City and/or CRA hereunder. Notwithstanding
anything in the foregoing to the contrary, if the City and/or CRA is enforcing any Completion
Guarantee, the City and/or CRA may not elect to pursue its other remedies based on a Default
arising from such failure to achieve Substantial Completion.
(b) "Actual Damages" means an amount equal to the sum of (i) any and all amounts paid
by the City and/or CRA to cure any Default; but shall not include the cost of development and
construction and (ii) reasonable costs, fees and expenses incurred by the City and/or CRA,
whether through direct personnel cost or through engaging third-party consultants, to pursue the
rights and remedies of the City and/or CRA, as a result of or in connection with an Event of
Default.
Section 4.7 Termination of Agreement Upon Default. If an Event of Default occurs, the
City and/or CRA shall have the right to give Developer notice stating that this Agreement shall
terminate on the date specified in such notice and this Agreement and all rights of Developer
under this Agreement shall expire and terminate as of the date specified in the notice.
Section 4.8 Strict Performance. No failure by the City and/or CRA to insist upon strict
performance of any covenant, agreement, term or condition of this Agreement or to exercise any
right or remedy available to such party by reason of Developer's Default or an Event of Default,
and no payment or acceptance of full or partial payments of amount due under this Agreement
during the continuance (or with the City and/or CRA's knowledge of the occurrence) of any
Default or Event of Default, shall constitute a waiver of any such Default or Event of Default or
of such covenant, agreement, term or condition or of any other covenant, agreement, term or
condition. No covenant, agreement, term or condition of this Agreement to be performed or
complied with by either party and no default by either party, shall be waived, altered or modified
except by a written instrument executed by the other party. No waiver of any Default or Event of
Default shall affect or alter this Agreement, but each and every covenant, agreement, term and
condition of this Agreement shall continue in full force and effect with respect to any other then
existing or subsequent Default. Payment by Developer to the City and/or CRA of any amounts
due under this Agreement shall be without prejudice to, and shall not Constitute a waiver of, any
rights of Developer against the City and/or CRA provided for under this Agreement or at law or
in equity. Developer's compliance with any request or demand made by the City and/or CRA
shall not be deemed a waiver of Developer's right to contest the validity of such request or
demand.
Section 4.9 Right to Enjoin Defaults. In the event of Developer's Default or Event of
Default, the City and/or CRA shall be entitled to seek to enjoin the Default or Event of Default
and shall have the right to invoke any rights and remedies allowed at law or in equity or by
statute or otherwise.
Section 4.10 Remedies Under Bankruptcy and Insolvency Codes. If an order for relief is
entered or if any stay of proceeding or other act becomes effective against Developer or in any
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proceeding which is commenced by or against Developer, under the present or any future federal
bankruptcy code or in a Proceeding which is commenced by or against Developer, seeking a
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief
under any other present or future applicable federal, state or other bankruptcy or lllsolvency
statute or law, the CRA shall be entitled to invoke any and all rights and remedies available to it
under such bankruptcy or insolvency code, statute or law or this Agreement.
Section 4.11 Right to Perform Developer's Obligations. If a Default shall occur and be
continuing beyond any applicable notice and cure period, the City and/or CRA may, but shall be
under no obligation to, perform the obligations of Developer, the breach of which gav'e rise to
such Default, without waiving or releasing Developer from any of its obligations contained
herein, provided that the City and/or CRA shall exercise such right only in the event of a bona
fide emergency or after five (5) business days' notice, and Developer hereby grants the City
and/or CRA access to the Project Site in order to perform any such obligation. Any amount paid
by the City and/or CRA in performing Developer's obligations as provided in this Section,
including all costs and expenses incurred by the City and/or CRA in connection therewith, shall
be reimbursed to the City and/or CRA within thirty (30) days following the City and/or CRA's
demand therefor, together with a late charge on amounts actually paid by the City and/or CRA,
calculated at the Late Charge Rate from the date of notice of any such payment by the City
and/or CRA to the date on which payment of such amounts is received by the City and/or CRA.
Section 4.12 Reimbursement for Amounts Paid Pursuant to this Article. Any amount
paid by the City and/or CRA in performing Developer's obligations as provided in this Article,
including all costs and expenses incurred by the City and/or CRA in connection therewith, shall
be reimbursed to the City and/or CRA within thirty (30) days following the City and/or CRA's
demand therefor, together with a late charge on amounts paid by the City and/or CRA calculated
at the rate of ten (10%) percent per annum from the date of such payment by the City and/or
CRA to the date on which payment of such amounts is received by the City and/or CRA
Section 4.13 Waiver, Release and Assumption of Obligations. The City and/or CRA's
payment or performance pursuant to the provisions of this Article shall not be, nor be deemed to
constitute the City and/or CRA's assumption of Developer's obligations to payor perform any of
Developer's past, present or future obligations hereunder
ARTICLE V
PROJECT REPRESENTATIVES;
KEY PERSONNEL; PROJECT ADMINISTRATION
Section 5.1 Project Representatives.
(a) Developer hereby designates Samantha Simons (or her successor or alternate for
such purpose) as the "Developer's Project Representative" to represent Developer in all of its
dealings with the City and CRA and the CRA's Project Representative relating to the
implementation and enforcement of this Agreement; provided that it is acknowledged and agreed
that Developer may delegate in writing (a copy of which shall be made available to the City
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and/or CRA upon request) certain of her responsibilities to another person to be determined by
the Developer. The City and CRA shall direct all communication regarding this Agreement to
Developer's Project Representative.
('
(b) Within thirty (30) days after execution of this Agreement, the CRA will designate an
individual (or his successor appointed for such purpose) as the "CRA's Project Representative"
to represent the CRA in all of its dealings with Developer and Developer's Project
Representative relating to this Agreement. Developer shall direct all communication regarding
this Agreement to the CRA's Project Representative. The Project Representative shall be
qualified in the areas of development, construction, construction management, urban planning,
and the like.
(c) Within thirty (30) days after execution of this Agreement, the City will designate an
individual (or his successor appointed for such purpose) as the "City's Project Representative" to
represent the City in all of its dealings with Developer and Developer's Project Representative
relating to this Agreement. Developer shall direct all communication regarding this Agreement
to the City's Project Representative.
Section 5.2 Princi{'al Members. In addition to the designation of Developer's Project
Representative, Developer shall assign and direct principal members of Developer's Affiliates
involved in the Project to assist in the development and implementation of the Improvements.
Section 5.3 CRA's Right to Use Field Personnel. The CRA reserves the right, at its sole
cost and expense, to conduct inspections of the Project Site, to the extent reasonably necessary to
perform such inspections. Developer agrees to provide safe access to the Project Site, including,
without limitation, access to inspect the Improvements. No such inspection by the CRA's field
personnel shall impose upon the CRA any responsibility or liability for any failure by Developer
to observe any Requirements or safety practices in connection with the construction of
Improvements, or constitute an acceptance of any work which does not comply with the
provisions of this Agreement, and no such inspection shall constitute an assumption by the CRA
of any responsibility or liability for the performance of Developer's obligations hereunder, nor
any liability arising from the improper performance thereof. The CRA's field personnel shall not
interfere with the construction of the Improvements at the Project Site and shall comply with all
safety Standards and other job-site rules and regulations of Developer. Any material interference
which is caused by the CRA's field personnel shall extend the date for completion of the
Improvements one day for each day of such interference, or if the interference causes a delay of
more than one day for each day of interference, the actual length of the delay caused by the
interference. The CRA's field personnel are Inspectors only. The field personnel shall make only
such communications with Developer's Project Representative or any other Person as are
reasonably necessary to enable such on-site representative to conduct its investigations, and in no
event shall the field personnel give directions to any such Persons.
Section 5.4 Access and Review of Developer's Books and Records. Developer shall at
all times keep and maintain accurate and complete records pertaining to acquisition of the
Parcels and including such matters required to demonstrate Developer's compliance with its
obligations under this Agreement; provided that such records shall not include proprietary and
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financial information relating to the allocation of profits and losses among the Developer's
Affiliates nor information concerning leasing incentives offered or provided to prospective
tenants or sub-tenants. The City, CRA and/or their representatives shall have, during normal
business hours and upon reasonable advance notice, access to inspect, review and photocopy any
and all such books and records of Developer relating to the Project as described above: The City
and CRA shall sign a log book for Developer whenever records are inspected.
ARTICLE VI
RELOCATION ASSISTANCE PROCEDURE
Section 6.1. Compliance With Relocation Assistance Policy. Developer shall, in
purchasing the Third-Party Parcels under this Article VI, comply with the Relocation Assistance
Policy, including the payment of all costs due hereunder. The following are entitled to relocation
assistance:
(a)
plan area;
Residents who have homesteads in the MLK Corridor within the designatec;l site
(b) Businesses - the CRA, in accordance with its Business Genesis Program shall
provide assistance to all small businesses in the site area, as consistent with this program;
(c) Churches located within the designated site plan area shall be relocated III
accordance with agreements with the Developer;
(d) Developer shall pay reasonable moving expenses for homeowner residents III
accordance with Federal Relocation Guidelines; and
(e) Developer shall use best efforts to relocate homeowner residents living in a home
to another home in the Heart of Boynton neighborhood, or within the local area, with a similar
mortgage or no mortgage, in an effort to maintain their status quo. Developer shall not be
responsible for any increase in taxes, insurance or other fees outside the control of the
Developer.
ARTICLE VII
ACQUISITION OF THIRD-PARTY PROPERTIES AND
CITY/CRA SALES TRANSACTION
Section 7.1. Cooperation by City, CRA and Developer for Acquisition of Third-Party
Properties by Developer.
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(a) Commencing on the Effective Date, the Developer, CRA and the City shall
develop and cooperate in the implementation of a coordinated and efficient strategy, pursuant to
an agreed-timetable, for acquisition of all Third-Party Parcels within the Parcel Site until the
Developer determines that a sufficient number of the Parcels within the property described in
Exhibit "R," and in accordance with the Conceptual Master Project Site Plan Exhibit "A," as
amended, have been acquired. The CRA agrees to hire a third party consultant to work with the
parties to acquire the Third-Party Parcels.
(b) To the extent the City deems advisable under its discretion in the exerci~e of its
police power, and as allowed by law, the City shall consider imposing a development and
permitting moratorium for the MLK Corridor during the land acquisition process described in
this Section 7.1.
(c) Parcel acquisition shall be on an accelerated basis with a goal of the Developer
acquiring all Third-Party Parcels within the MLK Corridor within 9-12 months from the
Effective Date.
(d) Developer, City and the CRA shall cooperatively negotiate the acquisition of
Parcels within the Project area pursuant to an agreed schedule. In the event the Developer, the
City and the CRA determine that they will be unable, after commercially reasonable attempts
exercised in good faith, to purchase on reasonably acceptable terms any parcel in the Project Site
(a "Holdout Parcel"), the Developer shall, as a last resort, provide notice to the City and/or the
CRA of the inability to purchase said Holdout Parcel. Such notice to the City and the CRA shall
include the address of the parcel, a copy of the independent appraisal of the property, and copies
of written offers and counteroffers made with regard to the property.
(e) It is agreed that the City and CRA Properties shall be conveyed on the Effective
Date to Developer without consideration but subject to an obligation for Developer to pay the
City and CRA for their Properties pursuant to the provisions of Sections 7.2 et seq. when
sufficient properties have been acquired pursuant to Section 7.1 and at or before the closing of
the remaining Third-Party Parcels.
Section 7.2. Acquisition of Land from City and CRA. The City agrees to sell to
Developer, and Developer agrees to purchase from the City, all the City Properties within the
Project Site. The CRA agrees to sell to Developer, and Developer agrees to purchase from the
CRA, the CRA Properties within the Project Site. The purchases shall be accomplished in a
single transaction and shall be referred to as the "City/CRA Sales Transaction." The terms and
conditions of the City/CRA Sales Transaction shall be as set forth in this Article VII.
Section 7.3 Purchase Price. The purchase price ("Purchase Price") for the City Properties
and the CRA Properties shall be as follows:
(a) Developer shall pay the City up to $1,981,153 for the City Properties;
(b) Developer shall pay the CRA $1,561,349 for the CRA Properties.
Section 7.4 CRAlCity Deliveries. The CRA and the City shall provide to
Developer, for inspection and review, copies of all surveys, tests, studies and reports which the
WPB:273992:2
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CRA and the City have with respect to the City Properties and the CRA Properties. Any reliance
upon such items provided by the CRA and City is at the sole risk of Developer, and the City and
the CRA make no representations or warranties with respect thereto.
r
Section 7.5 Condition of Title. The City and the CRA shall convey to Developer fee
simple, good and marketable title to the City Properties and the CRA Properties respectively,
free and clear of all liens, encumbrances, easements and restrictions, encroachments and survey
exceptions, except for easements and restrictions which do not adversely affect the Developer's
use or intended development of the City and the CRA Properties for the purposes of the Project
(the "Permitted Exceptions"). From and after the Effective Date, to the extent that any of the City
Properties or CRA Properties are the subject of a lease, the City or the CRA shall not amend,
extend, renew or otherwise modify any lease (either by direct action or inaction as any lease may
provide) without the express written consent of Developer. Not less than (thirty) 30 days prior to
City/CRA Closing, the City and the CRA shall each provide to Developer a commitment for title
insurance (subject only to the Permitted Exceptions) in the amount of the applicable Purchase
Price, covering the City Properties and the CRA Properties, respectively, along with copies of all
easements and restrictions.
Section 7.6 Title Defects. Developer shall advise the City and the CRA of any title
matters revealed by the Title Commitment or surveys which it may obtain, which constitute
objectionable title defects which are not Permitted Exceptions. The applicable Seller shall make
reasonable efforts to cure any such defect and shall satisfy any monetary liens. If legally
possible, the City or the CRA shall institute eminent domain proceedings to eliminate such title
problems. In the event that City and CRA are unable to deliver title in accordance with this
Section, Developer may accept such title as the City or the CRA can provide, without abatement
of the Purchase Price. If the elimination of the property makes the Project infeasible, Developer,
the City and the CRA shall cooperate to revise the Project to accommodate such problem, in
accordance with Section 2.2(d) of this Agreement.
Section 7.7 Inspections. Developer may, within 60 days (the "Inspection Period")
perform, at Developer's sole cost and expense, such investigations and inspections of the City
Properties and the CRA Properties, the physical condition thereof, survey and environmental
condition and all other matters with respect to the said properties (collectively, the "Inspections")
as it deems advisable. City or CRA, respectively, shall be advised three (3) business days prior to
such Inspections. If a phase one environmental audit as to any property reflects a
recommendation for further environmental audits (a "phase two report"), the City and the CRA
acknowledge that Developer shall be authorized, at its sole cost and expense, to obtain same. If
the phase two report and Inspections reveal the existence of any Hazardous Substances, then
Developer shall request that its environmental consultants recommend any remediation that
might be required by any governmental authority as a result of such condition. The consultant
shall also provide a good faith estimate, to the extent possible, of the anticipated cost of such
remediation. The seller of the affected property may retain its own consultant to review the
conclusions of Developer's consultant. The applicable Seller shall proceed with remediation of
the environmental contamination and pay for any required remediation costs. If the applicable
Seller fails to remediate the environmental contamination, Developer may either (i) refuse to
close on the subject property, or (ii) may close on the subject property and remediate the
WPB:273992:2
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environmental contamination at its own expense.
Section 7.8 Indemnity. Developer shall indemnify City and CRA, respectively, of, from
and against any and all costs, losses, claims, damages, liabilities, expenses and other obligations
(including reasonable attorneys' fees and court costs) arising from, at of or in connection with
the Inspections. Developer shall evidence to the City and the CRA liability insurance coverage
with respect to said Inspections.
Section 7.9 Closing Dates. Subject to all of the provisions of this Agreement, Ci~y, CRA
and Developer shall close the City/CRA Sale Transaction for the properties
TIMING OF SALE(S)
Section 7.10 Title. Title to the City Properties and the CRA Properties shall be in
compliance with the requirements of this Agreement, and the Title Company shall have
committed to issue the Title Policy insuring Developer's title in accordance with the terms of this
Agreement.
Section 7.11 Seller's Closing Documents. The City and the CRA shall deliver the
following documents at the City/CRA Closing:
(a)
(b)
Section 7.12 Developer's Closing Documents and Deliverables. The Developer shall
deliver the following documents to the City and the CRA, respectively at the City/CRA Closing:
(a)
(b)
Section 7.13 Prorations. Seller shall pay all real estate taxes payable with respect to any
year prior to the year of the City/CRA Closing. The following items shall be prorated and
adjusted between the City and Developer and between the CRA and Developer as of midnight of
the day preceding the City/CRA Closing, except as otherwise specified: Real estate taxes, any
items of income and expense, payable for or in connection with the use or occupancy of the
properties, gas, water, electricity, heat, fuel, sewer and other utilities and other operating
expenses relating to the properties.
Section 7.14 City/CRA Closing Costs. City and CRA shall pay for the following items at
the time of the City/CRA Closing:
(a)
WPB:273992:2
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(b)
Section 7.15 Developer Closing Costs. The Developer shall pay for the following items
at the time of the City/CRA Closing: ('
(a)
(b)
Section 7.16 Conditions to Closing.
(a) The City and CRA's obligation to close the City/CRA Sales Transaction shall be
conditioned on Developer not being in Default hereunder beyond any applicable cure period, and
Developer having complied and performed its obligations contemplated hereunder with respect
to the City/CRA Closing.
(b) Developer's obligation to close the City/CRA Sales Transaction shall be conditioned,
at Developer's option, on the City and the CRA not being in Default hereunder beyond any
applicable cure period, and each of the City and the CRA having complied and preformed its
obligations contemplated hereunder with respect to the City/CRA Closing.
Section 7.17 Possession. Developer shall be granted full possession of the City
Properties and the CRA Properties at the City/CRA Closing subject to parties in possession
under existing leases.
Section 7.18 Assignment. Developer may assign its rights to acquire the City Properties
and the CRA Properties to an Affiliate of Developer upon notice to and with the prior written
consent of the City and CRA and provided that Developer's assignee shall be obligated to close
under this Article in the same manner as Developer.
Section 7.19 Deeds to Rights-Of-Way. To the extent that any of the City Properties or
the CRA Properties constitute (or will constitute following construction) a public street or other
right-of-way (or part thereof), Developer or a CDD as appropriate, shall execute and deliver
deed(s) to said parcels to the City or the CRA following the Completion of Construction of the
Infrastructure Improvements thereon.
ARTICLE VIII
DEVELOPER COMMITMENTS
Section 8.1 Contributions by the Developer:
(a) Public Safety Building;
(b) Lit pedestrian walkways and connections throughout the community;
(c) Street signage to incorporate history of the community including, but not limited
WPB:273992:2
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to names of matriarchs and leaders of the community;
(d) Fitness Center with free or reduced membership fees for police, fire department
and governmental workers who participate in the community mentoring program;
(e) Showcase public art in addition to pocket parks, fountains, water features,
environmentally friendly design, shaded courtyards, lush landscaping, open plaza areas,
pedestrian friendly side streets, on-street, structured and surface parking; public amenities such
as pools, tennis courts and basketball courts, seating areas and gathering places;
(f) Gateways at both ends of the community - one at Seacrest Blvd. main entrance
and one at Federal Highway. The design of the eastern gateway along Federal Highway' shall be
emphasized by a retail corridor which opens up onto a community plaza. The design could
easily embrace the addition of a potential SFEC light rail stop in the future to coordinate with the
new commuter SFEC planned rail-line;
(g) Site shall incorporate trolley stops for connection to the downtown core which
will be a transportation connection for residents and visitors; and
(h) Incorporation of urban smart growth and sustainable design features.
Section 8.2 Other contributions by Developer.
(a) 15,000 sq. ft. Community Center;
(b) $300,000 Community Trust Fund to be established - - Developer to use best
efforts to provide programs including, but not limited to, job training, healthcare, youth
programs, homeownership programs, and ongoing community outreach programs as suggested
by the community.
Section 8.3 Contribution for Affordable and Workforce Housing Programs
(a) Residential Workforce Housing Buy-down Program - $30,000 for each family
who qualifies for Workforce Housing as defined herein;
(b) Seacrest Village will include 10-13% of "Workforce Housing" in each phase;
(c) Workforce housing will blend architecturally with other residences;
(d) Sustainable Homeownership Program - Developer shall contribute $10,000 to
seed this program.
Section 8.4 Contributions for Other Community Benefits Programs
(a) Developer shall establish a college scholarship program that will provide $25,000
a year to a student within the Heart of Boynton community; and
(b) Developer shall donate $150,000 for revitalization of Sarah Sims Park.
Section 8.5
Contributions by City and CRA
WPB:273992:2
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(a) Financial assistance for demolition and removal of existing structures;
(b) Relocation of Deliverance by Faith Church;
I
(c)
Relocation of Delray Boynton Academy Charter School;
(d) Assistance with public nuisance abatement;
(e) Commitments to rent space; and
(f) To the extent deemed practicable, waive impact fees, building permit fees and
connection charges and capital costs for construction and installation of water and sewer
facilities.
ARTICLE IX
FINANCING
Section 9.1 Developer Financing.
(a) Developer shall make and shall demonstrate to the CRA and City that, following land
acquisition for the Project, it has secured a commitment to finance development of the Project.
Section 9.2
Public Financing - Source of Funds.
(a) CDD (Community Development District) Revenue Sources. As set forth in the
recitals to this Agreement and in Article XII, the Parties have determined to work cooperatively
to create the MLK Corridor Community Development District. City and CRA agree to support
the creation of the District which will enable the issuance of CDD Bonds, a portion of which
may be secured by Tax Increment Revenues pursuant to an Interlocal Agreement, as defined in
Article I, -to finance qualifying infrastructure costs related to the Project. If requested, the CRA
shall pledge Tax Increment Revenue as security for one or more issues of CDD Bonds for the
Project.
Section 9.3 Financing of the Infrastructure Improvements.
(a) The acquisition of necessary land and the construction and operation of the
Infrastructure Improvements shall be funded by the CDD.
ARTICLE X
WPB:273992:2
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PROJECT CONSTRUCTION, OPERATION
AND MANAGEMENT REQUIREMENTS
Section 10.1 Construction Obligations.
(a) Developer shall design and construct, or cause the design and construction of, the
Project. Developer will initially be obligated, subject to Unavoidable Delays, to commence
construction of the Project within eighteen (18) months following land assembly pursuant to
Section 7.1.
(b) Construction and development of the Project shall be commenced and ~ubstantially
completed in accordance with concept plans and development schedules mutually and
reasonably acceptable to Developer and CRA, which shall be agreed upon by the Parties prior to
commencement of construction of the Project or Project Component. Following approval of the
applicable development schedule, subject to Unavoidable Delay and without limiting the
provisions of subparagraph (a) above, Developer will, at all times subsequent to the Effective
Date: (i) ensure that sufficient manpower and materials are deployed throughout the development
and construction of the Project, (ii) otherwise proceed diligently and continuously towards the
completion of the development and construction of the Project, (iii) not abandon or otherwise
terminate the development and construction of the Project, and (iv) substantially complete the
Project or Project Component by the date agreed to by the parties in the applicable development
schedule.
(c) The approved initial Conceptual Master Development Schedule is attached hereto as
Exhibit "B." Failure to satisfy the Interim Milestone Dates set forth in the Conceptual Master
Development Schedule shall not, in and of itself, be deemed a breach by Developer of its
obligations or otherwise be deemed a Default under this Agreement if such failure is caused by
Unavoidable Delay or other circumstances beyond the control of the Developer.
(d) For purposes hereof, "Substantial Completion" of the Project or a Project Component
shall mean:
(i) the completion of all Improvements therein (including, without limitation,
leasehold improvements to the extent provided herein) in substantial accordance with the
applicable Plans and Specifications therefor and all applicable Requirements, as
evidenced by the issuance of a Final CO, together with a certification by the Architect
and Developer's Project Representative that such Improvements have been substantially
completed in accordance with such Plans and Specifications and all applicable
Requirements;
(ii) substantial completion of all related Infrastructure Improvements necessary
for the operation of the Project or Project Component;
(iii) delivery to the CRA of a final "as-built" survey showing the completed
Improvements and Infrastructure Improvements;
WPB:273992:2
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(iv) delivery to CRA of a full and complete set of "as-built" Plans and
Specifications, or their equivalent, certified by the Architect, as amended, for
construction of such Improvements and Infrastructure Improvements; and
(v) delivery to CRA of evidence reasonably satisfactory to CRA. that such
Infrastructure Improvements have been substantially completed on a lien-free basis.
Section 10.2 Regulatory and Design Requirements.
(a) Developer shall construct the Project Improvements (and each Project Component or
Parcel of the Project and each element or component of each Project Component or Parcel) in
accordance with all Development Approvals and all other Requirements, including, without
limitation, the ADA. Developer shall be responsible for timely payment of all applicable
permitting, licensing, utility connection and similar fees and charges in connection with the
design and construction of the Project.
Section 10.3 Design and Construction Review Procedures/Provisions Applicable to
Construction.
(a) Any material changes to the Conceptual Master Project Site Plan and Density,
Intensity and Mix of Use Table, as set forth on Exhibit "A" and "Ai" shall be submitted by
Developer to City and CRA for their review and approval. Developer shall submit to the CRA
staff a concept plan for Phase I of the Project (the "Concept Plan") within 240 days after the
effective date or 180 days after the Parcels have been acquired, as referenced in Section 7.1. The
Concept Plan shall cover all Improvements to be constructed pursuant hereto within Phase I of
the Project, excluding Infrastructure Improvements. The Concept Plan shall include conceptual
drawings, architectural renderings, exterior elevations, facades, proposed site and landscaping
plans and a narrative description of the design and construction standards and materials proposed
for the exterior finishes and appearances. The CRA shall have thirty (30) days after receipt
thereof to approve or disapprove the Concept Plan. Failure to disapprove in writing within such
time period shall constitute approval. If the CRA disapproves the Concept Plan, Developer shall
be given written notice of such disapproval setting forth the reason(s) for such disapproval and
the changes that would cause the CRA to approve it. The Concept Plan, or any portion thereof,
which if properly disapproved, shall be resubmitted for approval within sixty (60) days of such
disapproval. Developer shall submit Concept Plans for other Project phases as they are
developed, which shall be approved using the same process described above.
(b) In no event shall the CRA Representative or the CRA have any liability in connection
with the construction or operation of the Project as a result of or arising from any approvals
relating thereto given or withheld (or the right to give or withhold such approvals) pursuant to
this Agreement, or as a result of or arising from any other right to review documents in
connection with the construction or operation of the Project. In no event shall any such review,
approval, comment or evaluation by the CRA relieve Developer of any liability or responsibility
under this Agreement, it being understood and agreed that the eRA is at all times ultimately
relying on Developer's skill, knowledge and professional training and experience in preparing
(or causing the preparation of) any project documents.
WPB:273992:2
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(c) Developer shall notify the CRA in writing of the names of all architects, engineers,
construction contractors, project managers, program managers and other design and construction
consultants engaged by Developer in connection with the design and construction of ~he Project
(collectively, the "Project Design and Construction Contractors"). The CRA shall have no right
of approval with respect to any such engagement; provided, however, that Developer covenants
and agrees that all Project Design and Construction Contractors shall have experience with the
type of project being undertaken and shall be duly licensed to practice under the laws of the State
of Florida. The CRA shall have no right of approval with respect to any contract entered into py
Developer with any Project Design and Construction Contractor; provided, however, each such
contract shall contain the "Required Contract Provisions" attached as Exhibit "0" hereto. Upon
execution of any such contract, Developer shall provide the CRA with appropriate written
evidence of its compliance with the preceding sentence.
(d) Developer shall prosecute, if it deems, in the exercise of its reasonable business
judgment, such prosecution to be in the best interest of the Project under the circumstances, any
claims it may have against any Project Design and Construction Contractor for failure by any
such contractor to comply in any material respect with the standards of performance imposed
upon it in any applicable contract. Nothing contained in this Agreement shall grant or be deemed
to grant any Project Design and Construction Contractor or any other Person engaged by
Developer with any right of action or claim against the CRA with respect to any work any of
them may do in connection with the Project. Nothing contained herein shall create or be deemed
to create any relationship between the CRA and any Project Design and Construction Contractor
or any such other Person engaged by Developer, and the CRA shall not be responsible to any of
the foregoing for any payments due or alleged to be due thereto for any work pertained or
materials purchased in connection with the Project.
(e) In connection with the Project, Developer shall require all Project Design and
Construction Contractors to comply with the EEO Program (as defined in Section 10.11), as
modified or adjusted from time to time. The provisions of the EEO Program shall be applicable
to all Project Design and Construction Contractors and subcontractors at any tier of construction.
Developer shall furnish to the CRA data, including but not limited to compliance reports, related
to the operation of the EEO Program, as reasonably requested by the CRA.
(f) Developer shall be responsible for initiating, maintaining and supervising all security
precautions and programs reasonably required in connection with the performance of the
Construction Work.
Section 10.4 Project Oversight Prior to Completion.
(a) Prior to Completion of the Project (or any or portion thereof), the Developer and the
City and the CRA shall cooperate to exchange information relevant to parcel acquisition and the
development of the Project (or any or portion thereof), subject to compliance with third party
confidentiality agreements, and the restrictions placed on the disclosure of material non-public
information by applicable law and/or the terms of any corporate or similar agreements, by-laws,
formation documents, operating agreements, etc.
WPB:273992:2
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(b) During construction of the Project, the Developer shall prepare an updated
Conceptual Master Development Schedule, subject to the provisions of Section of this agreement
and no less frequently than the first day of each quarter commencing on the first day of the
month immediately following commencement of physical work on the Project. The initial
Conceptual Master Development Schedule is attached hereto as Exhibit"B."
Section 1 0.5 Progress Meetings. The Developer agrees to schedule regular progress
meetings to report on the status of the Project and to review the progress under the C~nceptual
Master Development Schedule. The CRA's Project Representative may attend each of such
meetings. The Developer shall provide the CRA with three (3) Business Days advance written
notice of such meetings, unless such meetings are to be held on a designated day during each
month at a designated time and place. The meetings shall be held at the Project Site or at a
location to be designated by the Developer. Prior to the Meeting, representatives of the CRA
may, in compliance with State and federal laws, regulations and ordinances, visit the Project Site
accompanied by representatives of the Developer to inspect the progress of the work on the
Project. The agenda for the meeting shall include, but not be limited to, a status report with
regard to Development Approval submission and approvals, financial commitments, construction
of the Project and the Infrastructure Improvements. At the meeting, this information may be
reasonably evaluated by the CRA to determine whether the Developer is materially in
compliance with the material terms and conditions of this Agreement and the Conceptual Master
Development Schedule.
Section 10.6 Progress Reports. The Developer shall endeavor in good faith to submit to
the CRA a quarterly written progress report (the "Progress Report") (or more frequently
information regarding the progress of the Project, if reasonably requested in writing by the CRA)
that shall include a description of activities completed, the activities to be undertaken prior to the
next quarterly progress report, the status of all Development Approvals, the status of any Project
financing, an explanation of each activity, if any, that is showing delay, a description of problem
areas, current and anticipated delaying factors and their estimated impact on performance of
other activities and scheduled completion dates in the Master Development Schedule and an
explanation of corrective action taken or proposed.
Section 10.7 Construction and Operation Standards.
(a) Developer shall construct the Project with due diligence and III a good and
workmanlike manner.
(b) Developer shall operate and manage the Project with that degree of skill, care and
diligence normally exercised by operators and managers of first-class, mixed-use development
projects with a scope, magnitude and location that is comparable to the Project and otherwise in
compliance with this Agreement.
(c) Architecture. The architectural standards shall be included in the Concept Plan.
(d) Design details:
WPB:273992:2
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1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
*UNIVERSAL DESIGN UNITS
* SPECIFIC AMENITIES
* ENERGYST AR CERTIFIED
* HURRICANE STANDARDS
* FOUNDATION/SLAB
* VERTICAL ENCLOSURE SYSTEMS
* FLOORING
* ROOFS
*WINDOWS AND DOORS
* PLUMBING
* MECHANICAL
* FLOOR PLANS
Section 10.8 Legal and Prohibited Uses.
(a) Developer shall use and operate the Project Site throughout the Term as required by
this Agreement. In any event, the Project Site shall be used only in accordance with the Final
CO(s) therefor (or Temporary CO(s), to the extent that Final CO(s) have not been issued
therefor).
(b) Without limiting the provisions of subparagraph (a) above, Developer shall not use or
occupy the Project Site or any part of the Project Site, and neither permit nor suffer the Project
Site to be used or occupied, for any of the following ("Prohibited Uses"): (i) for any unlawful or
illegal business, use or purpose or for any business, use or purpose which violates any
Requirements; (ii) for any use which is a public nuisance; or (iii) in such manner as may make
void or voidable any insurance then in force with respect to the Project Site.
(c) Immediately upon its discovery of any Prohibited Use, Developer shall take all
reasonably necessary steps, legal and equitable, to compel discontinuance of such business or
use, including, if necessary, the removal from the Project Site of any subtenants, licensees,
invitees or concessionaires, subject to applicable Requirements.
(d) Notwithstanding anything in this Agreement to the contrary, Developer reserves the
right to close or restrict access to any portion of the Project Site in connection with
improvements undertaken in accordance with the provisions of this Agreement or to such extent
as may, in the reasonable opinion of Developer's counsel, be legally necessary to prevent a
dedication thereof or the accrual of prescriptive rights to any Person or Persons.
Section 10.9 Design and Construction of the Infrastructure Improvements -
Infrastructure shall be designed and constructed by the CDD pursuant to the Interlocal
agreement.
(a) In no event shall the Developer, the CRA or any other CRA Indemnified Party have
any liability in connection with the construction of the Infrastructure Improvements as a result of
or arising from any approvals relating thereto given or withheld (or the right to give or withhold
WPB:273992:2
29
such approvals) pursuant to this Agreement, or as a result of or arising from any other right to
review, comment on or evaluate any plans, drawings, specifications or other documents in
connection with the construction or operation of the Infrastructure Improvements.
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Section 10.10 Cooperation Developer shall use all reasonable efforts not to disrupt the
construction of other development and construction projects within the City. The City and CRA
shall use all reasonable efforts not to disrupt, and to prevent other persons from disrupting the
construction of the Project or the Infrastructure Improvements.
Section 10.11 Equal Opportunity Program Developer hereby establishes an equal
opportunity program ("EEO Program") with respect to the construction of the Improvements.
Developer shall:
(a) Comply with the City Ordinance Number
, as amended from time to
time;
(b) Utilize minority business enterprises ("MBE") and women's business enterprises
("WBE") participation of at least fifteen percent (15%), cumulatively, in the design,
development and construction of [each Component of] the Improvements (the "Participation
Percentage"). Developer is required to utilize at least MBE's or WBE's to meet the
Participation Percentage. MBE's and WBE's shall be those enterprises which are certified as
MBE's and WBE's under the applicable regulations of Palm Beach County. Developer shall
utilize best efforts to use MBE's or WBE's which have their principal place of business within
miles of the City, but Developer shall utilize its bests efforts to retain WBE's and MBE's
which are located within the City;
(c) Developer shall use best efforts to cooperate with agencies to implement job training
programs for women and minority workers, as well as local residents, throughout the
development and construction of the Improvements
(d) Developer shall retain an economic development coordinator for design,
development, and construction of the Improvements who will cooperate with the CDD to
promote and enhance minority participation in the design, development and construction of the
Improvements. and
( e) Developer shall submit written reports to the CRA no later than January 31 of each
year regarding compliance with the EEO Program for the prior calendar year.
The EEO Program stated herein shall be modified from time to time to incorporate such
reasonable comments and suggestions by the CRA as are deemed appropriate. Developer shall
use all reasonable efforts to implement the EEO Program and satisfy the various requirements
hereof.
Section 10.12 Conveyance of Title to Certain Infrastructure Improvements. Following
the completion of Infrastructure Improvements for the Project or a Project Component, the CDD
shall, if not already owned by the CRA or City, and if appropriate under the circumstances,
WPB:273992:2
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transfer title to the City or other Governmental Authority (or the Land Trust, if applicable) to all
parking facilities not intended to be owned by Developer, streets, rights of way, alleys, parks,
promenades, boardwalks, boat ramps and other vehicular or pedestrian public ways.
ARTICLE XI
INTENTIONALLY OMITTED
ARTICLE XII
COMMUNITY DEVELOPMENT DISTRICT
Section 12.1 MLK Corridor Community Development District. As set forth in the
Recitals to this Agreement, the City, CRA and Developer have mutually determined to work
cooperatively to create the District, pursuant to Chapter 190, Fla. Stats., to provide for
financing, construction and operation and maintenance of certain of the Infrastructure
Improvements for the Project Site and to exercise the general powers and powers for public
improvements and community facilities enumerated in Sections 190.011 and 190.012, Fla.
Stats. CRA and Developer each covenant to use all reasonable efforts to cooperate with the City
to set promptly the boundaries of the District so as to be consistent with the boundaries set forth
in or referred to in the Interlocal Agreement.
ARTICLE XIII
TRANSFERS AND ASSIGNMENTS
Section 13.1 Limitations on Transfers and Assignments by Developer.
(a) Prior to Substantial Completion, Developer may transfer ownership of a Project
Component or a Parcel with the prior written consent of the City and the CRA which will not be
unreasonably withheld, denied or delayed. However, the City and CRA may require any
transferee to demonstrate its financial ability to comply with the obligations that it has
undertaken. Such transfer shall not release Developer from its obligations with respect to such
Project Component or Parcel under this Agreement.
(b) Developer may in the ordinary course (a) transfer ownership of a portion of a Project
Component in the ordinary course to purchasers of residential units, (b) lease a portion of a
Project Component to residential tenants in the ordinary course, and (c) sell, lease or sub-lease
WPB:273992:2
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completed portions of a Project Component to end users, purchasers and investors consistent
with this Agreement. Upon such conveyance, Developer's liability under this Agreement with
respect to such transferred portion of a Project Component shall be terminated.
r
Section 13.2 Transfer and Assignment by CRA and City. The CRA and the City shall not
transfer or assign any of its rights, interests and obligations under this Agreement except to one
another.
ARTICLE XIV
DAMAGE, DESTRUCTION AND RESTORATION
Section 14.1 Effect of Damage, Destruction or Restoration. The rights and obligations of
the Parties under this Agreement shall not be modified or terminated if the Project Site is
damaged or destroyed in whole or in material part by fire or other casualty prior to Substantial
Completion; provided that any such event shall be deemed an Unavoidable Delay for Purposes of
compliance with the provisions of Article I of this Agreement.
ARTICLE XV
CONDEMNATION
Section 15.1 Effect of Condemnation.
(a) If all or substantially all of the Project Site is taken for any public or quasi-public
purpose by any Governmental Authority by the exercise of the right of condemnation or eminent
domain (a "Taking"), this Agreement shall terminate and the Developer shall have no further
rights, interests or obligations with respect to the Project or Project Site. If a Taking is of an
individual Project Component, Developer shall have no further rights, interests or obligations
with respect to the Project Component. However, if there is a Taking of a Critical Parcel within
the Project Site, Developer shall have the right to develop an Alternative Master Conceptual Plan
and Alternative Master Development Schedule as described in Section 2.2. The terms of this
provision do not apply to any takings undertaken by the City or CRA in the furtherance of the
Project.
(b) The Parties hereby agree to look solely to the condemnation award for compensation
for their respective interests in the Project Site.
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( c) In the event of any Taking, the condemnation award shall be paid to Developer for all
Parcels owned by it.
(d) Developer shall have the right to intervene in any condemnation proceeding
involving the City Properties or/the CRA Properties prior to transfer to Developer.
ARTICLE XVI
NO SUBORDINATION
Section 16.1 Rights of the City and CRA. Except as set forth in Section _, the City
and CRA' s interest in or rights under this Agreement as the same may be modified, amended or
renewed in accordance with the provisions of this Agreement, shall not be encumbered by or
subordinated in any way to (a) any mortgage now or hereafter existing, (b) any other liens or
encumbrances hereafter affecting, created or suffered by Developer on its leasehold interest or
otherwise, or (c) any sublease or any mortgage liens or encumbrances now or hereafter placed on
any interest of any subtenant. Developer shall in no event have any right or authority to create
liens or encumbrances on or affecting any interest in or rights of the City or CRA in this
Agreement.
ARTICLE XVII
REQUIREMENTS
Section 17.1 Requirements.
(a) In connection with its performance of each and everyone of its obligations
hereunder, Developer shall comply promptly with any and all applicable Requirements. No
consent to, approval of or acquiescence in any plans or actions of Developer by the City or CRA
(or any agent or representative thereof) under this Agreement, shall be relied upon or construed
as being a determination that such are in compliance with the Requirements or, in the case of
construction plans, are structurally sufficient, prudent or in compliance with the Requirements.
(b) For purposes hereof, the term "Requirement(s)" means (i) any and all laws, rules,
regulations constitutions, orders, ordinances, charters, statutes, codes, executive orders and
requirements (now existing or hereafter applicable) of all Governmental Authorities having
jurisdiction over Developer or other Persons, or the Project, or any street, road, avenue or
sidewalk comprising a part of, or lying in front of, the Project Site, or above or below the Project
Site (including, without limitation, the ADA and any of the foregoing relating to handicapped
access or parking, the building code of the City and the laws, rules, regulations, orders,
ordinances, statutes, codes and requirements of any applicable fire rating bureau or other body
exercising similar functions); (ii) the Temporary and/or Final COs issued for the Project or the
Infrastructure Improvements, as then in force; (iii) any and all provisions and requirements of
any property, casualty or other insurance policy required to be carried by Developer under this
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Agreement; (iv) any and all terms, conditions or covenants of any and all easements covenants,
conditions or restrictions of record, declarations, or other indentures documents or instruments of
record; and (v) the Project Documents.
/'
(c) Developer shall be an equal opportunity employer, and shall not engage in any
unlawful discrimination against any Person because of race, creed, national on gIll, sex, age,
disability, marital status, or sexual orientation.
ARTICLE XVIII
NO LIABILITY FOR INJURY OR DAMAGE ETC.
Section 18.1 CRA's Exculpation; Developer's Indemnification; Waiver of
Subrogation.
(a) The CRA Indemnified Parties shall not be liable to Developer for, and Developer
shall indemnify, defend and hold the CRA Indemnified Parties harmless from and against, any
loss, cost, liability, claim, damage, expense (including, without limitation, reasonable attorneys'
fees and disbursements) penalty or fine incurred in connection with or arising from: (i) any
injury (whether physical, economic or otherwise) to Developer or to any other Person in, about
or concerning the Project Site or the Infrastructure Improvements; (ii) any damage to, or loss (by
theft or otherwise) of, any of Developer's property or of the property of any other Person in,
about or concerning the Project Site, or the use or occupancy thereof, irrespective of the cause of
injury, damage or loss (including, without limitation, the acts or negligence of any tenant or
occupant of the Project Site or of any owners or occupants of adjacent or neighboring property or
caused by any construction or by operations in construction of any private, public or quasi-public
work) or any latent or patent defects in the Project Site; or (iii) any act, omission or negligence of
Developer or its Affiliates or of the contractors, agents, servants, employees guests, invitees or
licensees of Developer or its Affiliates, including, without limitation, acts, omissions and
negligence arising out of the Due Diligence undertaken by the Developer pursuant to Section of
this Agreement; except to the extent any of the matters described in clauses (i) or (ii) are due to
the gross negligence or willful misconduct of any CRA Indemnified Party. The CRA
Indemnified Parties shall not be liable, to the extent of Developer's insurance coverage (if
available to cover the loss and in any case exclusive of deductibles), for any loss or damage to
any Person or property even if due to the gross negligence or willful misconduct of any CRA
Indemnified Party and, to that extent, Developer relieves the CRA Indemnified Parties from such
liability. Without limiting the generality of the foregoing, except to the extent caused by the
gross negligence or willful misconduct of any of the CRA Indemnified Parties (and then only in
such CRA Indemnified Party's proprietary capacity as opposed to its governmental capacity), the
CRA Indemnified Parties shall not be liable for (i) any failure of water supply, gas or electric
current (ii) any injury or damage to person or property resulting from gasoline, oil, steam, gas,
electricity, or hurricane, tornado, act of God, act of war, enemy action, flood, wind or similar
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storms or disturbances, water, rain or Ice, or (iii) leakage of gasoline or oil from pIpes,
appliances, sewer or plumbing works.
Section 18.2 Notice of Injury or Damage. Developer shall notify the CRA within thirty
(30) days of any occurrence at the Project Site of which Developer has notice and which
Developer believes could give rise to a claim of $1,000,000 (adjusted for inflation) or more,
whether or not any claim has been made, complaint filed or suit commenced.
Section 18.3 Contractual Liability. The obligations of Developer under this Arti.cle shall
not be affected in any way by the absence or presence of insurance coverage (or any limitation
thereon, including any statutory limitations with respect to workers' compensation insurance), or
by the failure or refusal of any insurance carrier to perform any obligation on its part under
insurance policies affecting the Project Site; provided, however, that if the CRA actually receives
any proceeds of Developer's insurance with respect to an obligation of Developer under this
Article, the amount thereof shall be credited against, and applied to reduce, any amounts paid
and/or payable hereunder by Developer with respect to such obligation.
Section 18.4 Defense of Claim, Etc. If any claim, action or proceeding is made or
brought against any CRA Indemnified Party which is or may be subject to indemnification by
Developer hereunder, then, upon demand by the CRA or such CRA Indemnified Party,
Developer shall either resist, defend or satisfy such claim, action or proceeding in such CRA
Indemnified Party's name, by the attorneys for, or approved by, Developer's insurance carrier (if
such claim, action or proceeding is covered by insurance) or such other attorneys as the CRA
shall reasonably approve. The foregoing notwithstanding, such CRA Indemnified Party may, at
its own expense, engage its own attorneys to defend such CRA Indemnified Party, or to assist
such CRA Indemnified Party in such CRA Indemnified Party's defense of such claim action or
proceeding as the case may be.
Section 18.5 Notification and Payment. Each CRA Indemnified Party shall promptly
notify Developer of the imposition of, incurrence by or assertion against such CRA Indemnified
Party of any cost or expense as to which Developer has agreed to indemnify such CRA
Indemnified Party pursuant to the provisions of this Article. Developer agrees to pay such CRA
Indemnified Party all amounts due under this Article within sixty (60) days after receipt of the
notice from such CRA Indemnified Party.
Section 18.6 Survival. The provisions of this Article shall survive the termination of this
Agreement.
ARTICLE XIX
REPRESENTATIONS AND WARRANTIES
Section 19.1 Mutual Representations.
(a) No Brokers. City, eRA and Developer each represents to the other that it has not
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dealt with any broker, finder or like entity in connection with this Agreement or the transactions
contemplated hereby, and each party shall indemnify the other against any claim for brokerage
commissions, fees or other compensation by any Person alleging to have acted for or dealt with
the indemnifying party in connection with this Agreement or the transactions contemplated
hereby.
(b) Authority to Execute. City, CRA and Developer each represents to the other that each
Person executing this Agreement on behalf of City, CRA or Developer (or in any representative
capacity), as applicable, has full right and lawful authority to execute this Agreement. Developer
agrees to furnish to City and CRA on or prior to the date of execution of this Agreement'true and
correct copies of such instruments or documents evidencing to the CRA's reasonable satisfaction
the authority of each such Person executing this Agreement on behalf of Developer (or in any
representative capacity).
Section 19.2 CRA and City Representations. CRA and City each represent and warrant
to Developer that:
(a) To the best of the CRA and City's knowledge, the Project is not in violation of any
order or decree of any court of competent jurisdiction or any governmental agency and City or
entity having jurisdiction. There are no pending or, to the best of the CRA's and City's
knowledge, threatened judicial or administrative proceedings which, if determined adversely to
the interest of the CRA and City, could materially affect the contemplated development or use of
the Project Site as set forth in this Agreement or the other documents contemplated by this
Agreement (collectively the "Project Documents" Exhibit "N").
(b) Prior Contracts. There are no existing agreements or contracts regarding the
development of the Project Site other than those contemplated with the Developer under the
Development Documents.
(c) No Legal Conflicts. The execution, delivery and performance of its obligations under
the Development Documents by the CRA and City will not: (1) violate, conflict with, result in a
material default (following notice and/or expiration of the related grace/cure period without cure
or both, as applicable) under any agreement or other instrument to which the CRA and City is a
party or by which the property may be bound or affected, or any requirements of law; (2) result
in the creation or imposition of any lien whatsoever upon any of its assets, except as may be
permitted by the Development Documents; nor (3) require any authorization or consent from, or
any filing with, any governmental authority, except as contemplated by the Development
Documents.
Section 19.3 Developer Representations. Developer represents and warrants to the CRA
and City that:
(a) Organization; Legal Status. Developer is duly organized, validly existing and in good
standing under the laws of its state of formation and; (a) is duly qualified to transact business and
is in good standing in the State of Florida; and (b) has all necessary approvals, governmental and
otherwise, and full power and authority to own, operate and sell and construct the Project and
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otherwise carryon its business as now conducted and proposed to be conducted. Developer's
correct legal name is set forth on the first page of this Development Agreement.
(b) Power, Authorization; Enforceable Obligations. Developer has full powerr authority
and legal right to execute, deliver and perform its obligations under the Development
Documents. Developer has taken all necessary action to authorize the execution of the
Development Documents on the terms and conditions contained herein or as may be
subsequently negotiated, and Developer has taken all necessary action to authorize the execution
and delivery of its performance under the Development Documents. The officer or representative
of Developer signing the Development Documents has been duly authorized and empowered to
do so. The Development Documents constitute legal, valid and binding obligations of Developer,
enforceable against Developer in accordance with their terms.
(c) No Legal Conflicts. The execution, delivery and performance of its obligations under
the Development Documents by Developer or its members will not: (a) violate, conflict with,
result in a material default (following notice and/or expiration of the related grace/cure period
without cure or both, as applicable) under any agreement or other instrument to which Developer
is a party or by which the property may be bound or affected, or any requirements of law; (b)
result in the creation or imposition of any lien whatsoever upon any of its assets, except as may
be permitted by the Development Documents; nor (c) require any authorization or consent from,
or any filing with, any governmental authority, except as contemplated by the Development
Documents.
(d) No Litigation. No action, suit or proceeding, or investigation, judicial, administrative
or otherwise (including, without limitation, any reorganization, bankruptcy, insolvency or similar
proceeding) currently is pending or, to the best of Developer's knowledge, threatened or
contemplated against or affecting Developer or any of its members, partners or shareholders or
the property that has not been disclosed by Developer in writing to City and CRA and which, if
adversely determined, could reasonably be expected to have a material adverse effect on
Developer's ability to perform under the Development Documents.
(e) Financial Condition. Developer and each of its members are currently solvent. No
change has occurred in the financial condition of Developer or any of its members or their
respective constituent equity owners, general partners or managing members, which would have
a material adverse effect since the date of most recent financial statements submitted to the CRA
and City with respect to each such party, other than has been disclosed in writing to the CRA and
City.
(f) No Illegal Activity as Source of Funds. No portion of the Site has been or will be
purchased, improved, equipped or furnished with proceeds of any illegal activity.
(g) Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering
Laws. Developer, each of its members, and, after having made reasonable inquiry each person
owning an interest of 20% or more in Developer or its members (i) is not currently identified on
OF AC List, and (ii) is not a person with whom a citizen of the United States is prohibited to
engage in transaction by any trade embargo, economic sanction, or other prohibition of United
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States law, regulation, or Executive Order of the President of the United States, including,
without limitation, any anti-Terrorism Laws. Developer agrees to confirm this representation and
warranty in writing on an annual basis if requested by the CRA or City to do so.
(h) Complete Disclosure; No Change in Facts or Circumstances. Developer has disclosed
to the CRA or City all material facts and has not failed to disclose any material fact that could
cause any representation or warranty made herein to be materially inaccurate, incomplete or
misleading. All information provided in or supplied with the bid for the Project, or in satisfaction
of the terms thereof, remains true, complete and correct in all material respects, and no adverse
change in any condition or fact has occurred that would make any of such information materially
inaccurate, incomplete or misleading.
Section 19.4 No Other Representation. Developer confirms that, except for the
representations contained in Sections and (and any other representation expressly set forth in this
Agreement or the other Project Documents) (i) no representations statements or warranties,
express or implied, have been made by, or on behalf of, City or CRA with respect to the Project
Site or the transactions contemplated by this Agreement, the status of title thereto, the physical
condition thereof (including but not limited to subsurface conditions) the leases and occupancies
thereof or with respect thereto, if any, the zoning, wetlands or other laws, regulations, rules and
orders applicable thereto or the use that may be made of the Project Site, or the presence or
absence of Hazardous Substances on or under the Project Site, (ii) Developer has relied on no
such representations, statements or warranties (iii) City and CRA shall not be liable to
Developer, in any event whatsoever to correct any latent or patent defects in the Project Site, and
(iv) any and all copies of the environmental reports provided by the City or the CRA to the
Developer have been delivered without representation or warranty. Without limiting the
generality of the foregoing, but rather in confirmation and furtherance thereof, Developer shall
be obligated to perform its duties and obligations under this Agreement regardless of any
condition of or defect in the Project Site.
ARTICLE XX
CERTIFICATES BY CRA, CITY AND DEVELOPER
Section 20.1 Certificate of Developer. Developer shall, within fifteen (15) days after
request by the CRA or City for reasonable purposes, execute, acknowledge and deliver to the
CRA, or any other Person specified by the CRA, a written statement (which may be relied upon
by such Person) (a) certifying that this Agreement is unmodified and in full force and effect (or if
there are modifications, that this Agreement, as modified, is in full force and effect and stating
such modifications) (and, if so requested, that the annexed copy of this Agreement is a true,
correct and complete copy of this Agreement), and (b) stating (i) whether Developer has given
the CRA or City written notice of any default, or any event that, with the giving of notice or the
passage of time, or both, would constitute a default, by the CRA in the performance of any
covenant, agreement, obligation or condition contained in this Agreement, which default or event
has not been cured, and (ii) whether, to the actual knowledge of Developer (but without
independent inquiry), the CRA or City is in default in performance of any covenant, agreement,
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obligation or condition contained in this Agreement, and if so, specifying in detail each such
default.
Section 20.2 Certificate of CRA. CRA shall, within fifteen (15) days after ;equest by
Developer for reasonable purposes, execute, acknowledge and deliver to Developer, or such
other Person specified by Developer, a written statement (which may be relied upon by such
Person) (a) certifying that this Agreement is unmodified and in full force and effect (or if there
are modifications, that this Agreement, as modified, is in full force and effect and stating such
modifications) (and, if so requested, that the annexed copy of this Agreement is a true, correct
and complete copy of this Agreement), and (b) stating (i) whether an Event of Default has
occurred or whether the CRA has given Developer notice of any event that, with the giving of
notice or the passage of time, or both, would constitute an Event of Default, which Default or
Event of Default has not been cured, and (ii) whether, to the actual knowledge of the CRA (but
without independent inquiry), Developer is in default in the performance of any covenant,
agreement, obligation or condition contained in this Agreement, and, so, specifying, in detail,
each such Default or Event of Default and concerning such other matters as reasonably requested
by Developer.
Section 20.3 Certificate of City. City shall, within fifteen (15) days after request by
Developer for reasonable purposes, execute, acknowledge and deliver to Developer, or such
other Person specified by Developer, a written statement (which may be relied upon by such
Person) (a) certifying that this Agreement is unmodified and in full force and effect (or if there
are modifications, that this Agreement, as modified, is in full force and effect and stating such
modifications) (and, if so requested, that the annexed copy of this Agreement is a true, correct
and complete copy of this Agreement), and (b) stating (i) whether an Event of Default has
occurred or whether City has given Developer notice of any event that, with the giving of notice
or the passage of time, or both, would constitute an Event of Default, which Default or Event of
Default has not been cured, and (ii) whether, to the actual knowledge of City (but without
independent inquiry), Developer is in default in the performance of any covenant, agreement,
obligation or condition contained in this Agreement, and, so, specifying, in detail, each such
Default or Event of Default and concerning such other matters as reasonably requested by
Developer.
ARTICLE XXI
NOTICES, CONSENTS AND APPROVALS
Section 21.1 Service of Notices and Other Communications.
(a) Whenever it is provided herein that notice, demand, request, consent, approval or
other communication shall or may be given to, or served upon, either of the parties by the other,
or whenever either of the parties desires to give or serve upon the other any notice, demand,
request, consent, approval or other communication with respect hereto or to the Project Site, each
such notice, demand, request, consent, approval or other communication (referred to in this
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Section 21.1 as a "Notice") shall be in writing (whether or not so indicated elsewhere in this
Agreement) and shall be effective for any purpose only if given or served by (i) certified or
registered United States Mail, postage prepaid, return receipt requested, (ii) personal delivery
with a signed receipt or (iii) a recognized national courier service, addressed as follow~;
IF TO DEVELOPER:
IF TO CRA:
IF TO CITY:
Any Notice may be given, in the manner provided in this Section 21.1 (i) on either party's behalf
by its attorneys designated by such party by Notice hereunder, and (ii) at Developer's request, on
its behalfby any Recognized Mortgagee designated in such request.
(b) Every Notice shall be effective on the date actually received, as indicated on the
receipt therefor or on the date delivery thereof is refused by the recipient thereof.
(c) All references in this Agreement to the "date" of Notice shall mean the effective date,
as provided in the preceding subsection (b).
Section 21.2 Consents and A{'provals.
(a) All consents and approvals which may be given under this Agreement shall, as a
condition of their effectiveness, be in writing. The granting by a party of any consent to or
approval of any act requiring consent or approval under the terms of this Agreement, or the
failure on the part of a party to object to any such action taken without the required consent or
approval, shall not be deemed a waiver by the party whose consent was required of its right to
require such consent or approval for any other act. The Executive Director of the CRA in
conjunction with the CRA Board of Directors shall be deemed to have all necessary authority to
act on the CRA's behalf and to give all approvals hereunder, and that any reference herein to
consent of the CRA shall mean the Executive Director in conjunction with the CRA Board of
Directors.
(b) All consents and approvals which may be given by a party under this Agreement
shall not (whether or not so indicated elsewhere in this Agreement) be unreasonably withheld or
conditioned by such party and shall be given or denied within the time period provided, and if no
such time period has been provided, within a reasonable time. Upon disapproval of any request
for a consent or approval, the disapproving party shall, together with notice of such disapproval,
submit to the requesting party a written statement setting forth with specificity its reasons f9r
such disapproval.
(c) If a party entitled to grant or deny its consent or approval (the "Consenting Party")
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within the specified time period shall fail to do so, then, except as otherwise provided in Section
below, and provided that the request for consent or approval (and the envelope in which
such request is transmitted to the extent permitted by the carrier) bears the legend set forth below
in capital letters and in a type size not less than that provided below, the matter for 'Yhich such
consent or approval is requested shall be deemed consented to or approved, as the case may be:
"FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME PERIOD
PROVIDED IN THE DEVELOPMENT AGREEMENT BETWEEN THE BOYNTON
BEACH COMMUNITY REDEVELOPMENT AGENCY ("CR4") AND INTOWN
PARTNERS, LLC SHALL CONSTITUTE AUTOMATIC APPROVAL OF THE
MATTERS DESCRIBED HEREIN WITH RESPECT TO SECTION [FILL IN
APPLICABLE SECTION] OF SUCH DEVELOPMENT AGREEMENT."
ARTICLE XXII
INDICTMENT, INVESTIGATIONS, ETC.
Section 22.1 Cooperation by Developer. Developer shall cooperate fully and faithfully
with any investigation, audit or inquiry conducted by any Governmental Authority that is
empowered directly or by designation to compel the attendance of witnesses and to examine
witnesses under oath, or conducted by a Governmental Authority that is a party in interest to the
transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the
subject of the investigation, audit or inquiry relating to affecting the. performance of this
Agreement or any other Project Document. In addition, Developer shall promptly report in
writing to the City Attorney and the CRA's General Counsel any solicitation, of which
Developer's officers or directors have knowledge, of money, goods, requests for future
employment or other benefit or thing of value, by or on behalf of any employee of City or CRA,
or other Person relating to the procurement or obtaining of this Agreement or any other Project
Document by Developer or affecting the performance of this Agreement.
ARTICLE XXIII
ENVIRONMENTAL INDEMNIFICATION
Section 23.1
Environmental Indemnification.
(a) Without limitation on any obligation which the Developer may have as a matter of
law, the Developer shall indemnify, defend, release and hold the City and CRA harmless against
(i) all claims or alleged cairns and response costs and fines and penalties against the City, CRA
or the Developer by any Governmental Authority or third party which concern the presence of
Hazardous Substances which become present on or within the Project Site, or the discharge of
Hazardous Substances in excess of any limitations provided by law, whenever such Hazardous
Substances become present on or within the Project Site, whether prior to or after the Effective
Date, (ii) all claims or alleged claims against the City or CRA by any Governmental Authority or
third party for injunctive relief for the abatement of a nuisance or related to the presence of
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Hazardous Substances which become present on or within the Project Site or the discharge of
Hazardous Substances in excess of any limitations provided by applicable law, whenever such
Hazardous Substances become present on or within the Project Site, whether prior to or after the
Effective Date, and (iii) all claims or alleged claims of bodily injury or property damage asserted
against the City and CRA by third parties which are related to the presence of Hazardous
Substances which become present on or within the Project Site, or the discharge of Hazardous
Substances in excess of any limitations provided by applicable law, whenever such Hazardous
Substances become present on or within the Project Site whether prior to or after the Effective
Date, but, with respect to discharges from Hazardous Substances which become present on the
Project Site prior to Closing Date, only to the extent that such discharge directly results from, (a)
failure by the Developer to properly design, implement, construct, perform or supervise any
work relating to the remediation, or (b) any action or failure to act by the Developer or any
person acting on behalf of the Developer, or (c) any failure by the Developer or any Person
acting on behalf of the Developer to observe the requirements of applicable law. The
indemnification under this Section shall not apply to conditions which existed in any City
Property or CRA Property prior to conveyance to Developer.
(b) Any claims made pursuant to this Section may include all reasonable attorneys',
engineers' and consultants' fees and costs incurred by the City and/or CRA in defending against
any matter as to which the Developer is required to indemnify the City and/or CRA under the
foregoing clauses (a) (i) through (a)(iii), inclusive.
(c) The provisions of this Section shall not apply and may not be relied upon by the City
and/or CRA, with respect to claims or alleged claims, damages and response costs and fines and
penalties to the extent that such claim or liability was caused by the gross negligence or willful
conduct of the City and/or CRA.
(d) The Developer's obligations under this Section shall be secured under the
Comprehensive General Liability Policy described in Section hereof and this
Agreement shall constitute a "covered contract" for such purpose.
ARTICLE XXIV
MISCELLANEOUS
Section 24.1 Governing Law and Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida, without regard to principles of
conflict of laws. Venue of all proceedings in connection herewith shall be exclusively in Palm
Beach County, Florida.
Section 24.2 Dispute Resolution.
(a) ALL DISPUTES UNDER THIS AGREEMENT SHALL BE FIRST SUBJECT TO
BINDING ARBITRATION.
Section 24.3 Attorney's Fees. In the event of binding arbitration, the Arbitrator may
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award the prevailing party its reasonable attorneys' fees and costs. In the event of litigation, the
prevailing party shall be entitled to an award of its reasonable attorneys' fees and costs
(including all fees and costs through all levels of appeal.
!
Section 24.4 No Waiver of Sovereign Immunity. Nothing contained in this Section or
elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon
the CRA's liability and the City's liability, as set forth in ~768.28, Fla. Stats" or of any other
constitutional, statutory, common law or other protections afforded to public bodies or
governments.
Section 24.5 References.
(a) The captions of this Agreement are for the purpose of convenience of reference only,
and in no way define, limit or describe the scope or intent of this Agreement or in any way affect
this Agreement.
(b) The Table of Contents is for the purpose of convenience of reference only, and is not
to be deemed or construed in any way as part of this Agreement.
(c) Nothing in this Agreement or in the parties' acts or omissions in connection herewith
shall be deemed in any manner to waive, impair, limit or otherwise affect the authority of the
CRA or City in the discharge of its police or governmental powers.
(d) All references in this Agreement to the terms "herein", "hereunder" and words of
similar import shall refer to this Agreement, as distinguished from the paragraph, Section or
Article within which such term is located.
Section 24.6 Entire Agreement, Etc.
(a) This Agreement, together with the exhibits and attachments hereto, contains all of the
promises, agreements, conditions, inducements and understandings between the City, CRA and
Developer concerning the Project and there are no promises, agreements, conditions,
understandings, inducements, warranties or representations, oral or written, express or implied,
between them other than as expressly set forth herein and in such attachments hereto or as may
be expressly contained in any enforceable written agreements or instruments executed
simultaneously herewith by the parties hereto, except for the other Project Documents.
(b) No covenant, agreement, term or condition of this Agreement shall be changed,
modified, altered, waived or terminated except by a written instrument of change, modification,
alteration, waiver or termination executed by City, CRA and Developer. No waiver of any
Default or default shall affect or alter this Agreement, but each and every covenant, agreement,
term and condition of this Agreement shall continue in full force and effect with respect to any
other then existing or subsequent Default or default thereof.
Section 24.7 Invalidity of Certain Provisions. Subject to the proVISIons of Section
WPB:273992:2
43
of this Agreement, any provision of this Agreement or the application thereof to
any Person or circumstances is, to any extent, finally determined by a court of competent
jurisdiction to be invalid and unenforceable, the remainder of this Agreement, and the
application of such provision to Persons or circumstances other than those as to whicli it is held
invalid and unenforceable shall not be affected thereby and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
Section 24.8 Remedies Cumulative. Each right and remedy of either party provided for
in this Agreement shall be cumulative and shall be in addition to every other right or remedy
provided for in this Agreement, or now or hereafter existing at law or in equity or by statute or
otherwise (except as otherwise expressly limited by the terms of this Agreement), and the
exercise or beginning of the exercise by a party of anyone or more of the rights or remedies
provided for in this Agreement, or now or hereafter existing at law or in equity or by statute or
otherwise, except as otherwise expressly limited by the terms of this Agreement, shall not
preclude the simultaneous or later exercise by such party of any or all other rights or remedies
provided for in this Agreement or now or hereafter existing at law or in equity or by statute or
otherwise except as otherwise expressly limited by the terms of this Agreement.
Section 24.9 Successors and Assigns. The agreements, terms, covenants and conditions
herein shall be binding upon, and inure to the benefit of, City, CRA and Developer and, except
as otherwise provided herein, their respective successors and permitted assigns and shall be
construed as a covenant running with the land.
Section 24.10 Non-liability of Officials and Employees. No member, official or
employee of the CRA, the City, or any other governing body (including, without limitation, the
Chair or Members of the CRA, the Mayor or the Commissioners) shall be personally liable to
Developer, or any successor in interest, in the event of any default or breach by the City or CRA
for any amount or obligation which may become due to Developer or successor under the terms
of this Agreement; and any and all such personal liability, either at common law or in equity or
by constitution or Statute, of, and any and all such rights and claims against, every such Person,
or under or by reason of the obligations, covenants or agreements contained in this Agreement or
implied therefrom are expressly waived and released as a condition of, and as a consideration
for, the execution of this Agreement.
Section 24.11 Conflict of Interest. Developer represents and warrants that, to the best of
its actual knowledge, no member, official or employee of the CRA or the City has any direct or
indirect financial interest in this Agreement, nor has participated in any decision relating to this
Agreement that is prohibited by law. Developer represents and warrants that, to the best of its
knowledge, no officer, agent, employee or representative of the City or the CRA has received
any payment or other consideration for the making of this Agreement, directly or indirectly from
Developer. Developer represents and warrants that it has not been paid or given, and will not pay
or give, any third person any money or other consideration for obtaining this Agreement, other
than normal costs of conducting business and costs of professional services such as architects,
engineers, and attorneys. Developer acknowledges that City and CRA are relying upon the
foregoing representations and warranties in entering into this Agreement and would not enter
into this Agreement absent the same.
WPB:273992:2
44
Section 24.12 No Partnership. The parties hereby acknowledge that it is not their
intention under this Agreement to create between themselves a partnership, joint venture,
tenancy-in-common, joint tenancy, co-ownership or agency relationship for any purpose
whatsoever. Accordingly, notwithstanding any expressions or provisions contained herein,
nothing in this Agreement or the other Project Documents shall be construed or deemed to
create, or to express an intent to create, a partnership, joint venture, tenancy-in-common, joint
tenancy, co-ownership or agency relationship of any kind or nature whatsoever between the
parties hereto. The provisions of this Section shall survive termination of this Agreement.
Section 24.13 No Permit. This Agreement is not and shall not be construed as a
development permit, development approval or authorization to commence development, nor
shall it relieve the Developer of the obligations to obtain necessary Comprehensive Plan
amendments and development approvals that are required under applicable law and under and
pursuant to the terms of this Agreement.
Section 24.14 Not a Section 163.3220 Fla. Stats. Development Agreement. Developer
and City acknowledge and agree that this Agreement is not intended to and does not constitute a
Development Agreement under the Florida Local Government Development Agreement Act
(Sections 163.3220 - 163.3243, Fla. Stats.).
Section 24.15 Time Periods. Any time period which shall end on a day other than a
Business Day shall be deemed to extend to the next Business Day.
Section 24.16 No Third Party Beneficiaries. Nothing in this Agreement shall confer upon
any Person, other than the parties hereto and their respective successors and permitted assigns,
any rights or remedies under or by reason of this Agreement; provided, however, that a
Developer lender shall be a third party beneficiary hereunder to the extent such Recognized
Mortgagee is granted rights hereunder.
Section 24.17 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW,
DEVELOPER, CITY AND CRA W AWE KNOWINGLY AND VOLUNTARILY FOR ITSELF
AND ALL PERSONS CLAIMING BY OR THROUGH THEM, ALL RIGHT TO TRIAL BY
JURY IN ANY OTHER JUDICIAL PROCEEDINGS HEREAFTER INSTITUTED IN
RESPECT OF THIS AGREEMENT.
WPB:273992:2
45
Section 24.18 Recordation. A short form Memorandum of Development and Disposition
Agreement, in the form attached hereto as Exhibit "X", shall be recorded by the Developer. The
CRA agrees to execute the short form Memorandum of Agreement for this purpose.
/'
CITY OF BOYNTON BEACH
By:
Title:
BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY
By:
Title:
INTOWN PARTNERS, LLC
By:
Title:
WPB:273992:2
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BOYNTON BEACH eRA
AGENDA ITEM STAFF REPORT
eRA BOARD MEETING OF:
December 12, 2006
AGENDA ITEM:
I Consent Agenda
Old Business I X I
New Business
Public Hearing
Other
SUBJECT:
Consideration of Issuance of an RFP to Conduct Visioning workshops and the
Creation of a Downtown Master Plan
SUMMARY:
The idea of conducting visioning exercises and the creation of a unified Downtown Master Plan is an
offshoot of The Boynton Beach Assembly held on October 20,2006. The purpose of the visioning
exercises is to help shape consensus as to the ultimate appearance and functionality of the downtown.
FISCAL IMP ACT:
Approximately $120,000 to come from the contingency fund.
RECOMMENDA TIONS:
Approve the issuance RFP to Conduct Visioning workshops and the Creation of a Downtown Master
Plan.
L/it#-
CRA Planning Director
c
T:\AGENDAS, CONSENT AGENDAS, MONTHLY REPORTS\Completed Agenda Item Request Forms by Meeting\FY 2006-2007 Board
Meetings\06 12 14 CRA Board Meeting - December\Downtown MP RFP.doc
Request for Proposals
To Conduct A Visioning Workshop and Development of a
Downtown Master Plan
For
Boynton Beach, Florida
Boynton Beach Community Redevelopment Agency
/'
Submittal Deadline: January 26, 2007
The Boynton Beach Community Redevelopment Agency ("CRA") invites qualified firms
with demonstrated expertise in the areas of urban and town planning, urban design, and
related fields to submit qualifications for conducting visioning workshops and creating a
downtown master plan for the Boynton Beach Community Redevelopment Area. Upon
selection of the most qualified firm, a contract will be entered into that requires visioning
exercises, community meetings, graphic renderings and the completion of a Downtown
Master Plan for the downtown area within six months after a notice-to-proceed has been
issued. Once the plan is approved by the CRA, it will be integrated into the Official
Community Redevelopment Plan and therefore must be consistent with the City of
Boynton Beach's Comprehensive Plan.
General Information
The City of Boynton Beach is located in southeastern Florida in Palm Beach County
along the Intracoastal and has a population of approximately 60,000. The Community
Redevelopment Area is located along the eastern area of the City (See Attachment "A").
The study area lies in the in the center of the CRA (See Attachment "B"). There are two
major thoroughfares, U. S. Highway One and Boynton Beach Boulevard within the study
area. The area is primarily commercial in nature with some older homes and
condominiums.
The Future Land Use of the study area is primarily mixed-use with densities up to 80
dwelling units per acre. However, to date, only one mixed-use building has been
constructed in the downtown area.
Scope of Services
The successful firm will plan and execute visioning workshops and create a downtown
master plan for the study area that will provide direction for the future by addressing the
built and natural environments and their relationship to the larger community. The
waterfront and its role in the development of the downtown shall be a key element of the
work. These services include but are not limited to the following:
· Meet with members of the CRA and City and CRA staff to discuss the project and
product deliverables.
· Conduct at least two visioning workshops.
· Create graphics to assist for visioning workshops.
· Provide examples of integrated thematic elements to create a brand for the area.
· Review existing CRA plans, present and Future Land Use, waterfront
relationship, census data, area history, and other relative sources of information
that will assist in attaining the necessary depth and breadth of understanding for
/'
the study area.
· Integrate final results with the Community Redevelopment Plan for the CRA.
· Provide a comprehensive "Downtown Master Plan" within six months of the
"Notice to Proceed." The report shall be provided in hard copy and electronic
deliverables.
Minimum Qualifications
· Experience in completing similar projects for other communities with similar
characteristics and demographics.
· Experience in engaging community leaders and residents in successful
ch a rrettes , public hearings and workshops.
· Experience with urban design principles.
· Ability to create visual aids to educate charrette participants about urban design
concepts.
· Ability to create an interactive, hands-on charrette that is engaging to
participants.
· Experience in directing charrette participants in coming to consensus in the
charrettes.
· Experience in producing work products that are professional, informative, reader
friendly, and clearly outline specific and obtainable goals.
Selection Criteria
· A firm will be formally selected by the CRA Board of Directors.
· Firms submitting qualifications may be required to make a presentation to the
CRA Board of Directors.
· Evaluation of qualifications by CRA staff will be made on a predetermined basis
to ascertain which proposal best meets the community's objectives.
Proposal Criteria
The proposal must include the following:
· Name and address of the proposing firm or entity.
· Proposal amount and rates.
· A list of the professional team members, historical background information on the
principals and a description of their experience with similar projects.
· A qualifications statement of the proposing firm or entity, including verifiable
examples of experience, photographs, addresses and project information.
· A certificate of good standing from the Secretary of State, Division of
Corporations.
· A list of clients and phone numbers.
Timeline:
December 15, 2006
Publication of Notice of the RFP
December 21,2006
Pre-proposal meeting at CRA office at 9:00 am
January 26, 2007
Proposal packages due by 3:00 pm
February 13, 2007
Selection of contractor by CRA Board of Directors
Submittal Requirements:
Provide twelve bound copies of the Proposal to:
Vivian L. Brooks
CRA Planning Director
Boynton Beach CRA
915 S. Federal Highway
Boynton Beach, FL 33435
Submittals must be received no later than 3:00 p.m. EST on Friday, January 26, 2007 at
the CRA offices located at 915 S. Federal Highway in Boynton Beach. Faxed proposals
will not be permitted. The failure to strictly meet this deadline will result in the submittal
being rejected and returned unopened. Any question regarding whether a submittal has
been submitted timely shall be resolved by reference to the time kept at the CRA office
by the CRA's receptionist or other delegated representative for the receipt of the
submittals.
Contact:
All correspondence and requests for information regarding the request for proposals,
should be directed to:
Vivian L. Brooks
CRA Planning Director
Boynton Beach CRA
915 S. Federal Highway
Boynton Beach, FL 33435
E-mail brooksvil@ci.boynton-beach.fl.us
Telephone: (561) 737-3256
Non-Discrimination
The selected Proposer, its successors and assigns, agree that no person shall on the
grounds of race, color, disability, national origin, religion, age, familial status, sex, or
sexual orientation be subjected to discrimination. Should such discrimination occur, the
CRA will provide notice to the Proposer of a breach of this condition and thereafter,
Proposer has 15 days to demand arbitration as to the claim of discrimination. The parties
will then mutually agree to an arbitrator and if they cannot agree, the auspices of the
American Arbitration Association will govern. This arbitration is independent of any other
actions being taken by other agencies. However, a finding by any other agency or court
that such discrimination has occurred may be relied upon by the CRA as conclusive
proof of a breach of this provision. If Proposer does not demand arbitration within 15
days, or if arbitration is conducted and it is determined by the arbitrat~r that
discrimination occurred, the CRA shall have the right to terminate any such Agreement it
has entered into with Proposer and pursue any and all other lawful remedies.
Protests
Any and all decisions by the CRA Board to modify the schedule described herein,
requests for additional information, reject insufficient or unclear proposals, formulate an
objective point system for review, rate and rank proposals, negotiate agreements,
abandon negotiations, approve agreements, etc., shall be at the CRA's sole discretion
and no protests whatsoever shall be considered by the CRA Board. Submittal of a reply
to this RFP on the part of any and all proposers constitutes acceptance of this policy.
Formation of Contract
The existence of a contractual relationship between the parties is contingent upon the
terms and conditions of the contract being negotiated to the satisfaction of both parties
and the execution of said contract by both parties. The contract documents shall include,
but not be limited to, terms and conditions of this RFP, the submitted proposal inclusive
of qualifications, the negotiated services as agreed by both parties, and the ordering
mechanism.
Permits, Taxes and Licenses
Proposer shall at its own expense obtain all necessary permits, pay all licenses, fees
and taxes, required to comply with all local ordinances, state and federal laws, rules and
regulations applicable to the business to be carried on under the contract.
Public Records
Florida law provides that records of a public agency shall at all times be open for
personal inspection by any person. Section 119.01, F.S., the Public Records Law.
Information and materials received by the CRA, in connection with a submittal shall be
deemed to be public records subject to public inspection. However, certain exemptions
to the public records law are statutorily provided for in Section 119.07, F.S. If the
Proposer believes any of the information contained in its Submittal of Proposals is
exempt from the Public Records Law, then the Proposer must in its response specifically
identify the material which is deemed to be exempt and cite the legal authority for the
exemption and the CRA will evaluate the material to determine whether it is exempt from
the Public Records Law. Otherwise. the CRA will treat all materials received as public
records.
Public Entity Crimes
"A person or affiliate who has been placed on the convicted vendor list following a
conviction for a public entity crime may not submit Proposals, bids or qualificati9ns (as
applicable), in response to a solicitation for said products/services in support of a public
entity, and may not submit qualifications, a proposal or 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 be awarded or perform work as
a 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 Section 287.017, for CATEGORY TWO for a period of 36 months
from the date of being placed on the convicted vendor list."
Drug Free Workplace Certification
All Proposers must complete and sign the attached "Drug Free Workplace Certification
by Vendor", and submit it with their Proposals. Failure to do so may result in rejection of
your proposal.
CERTIFICATION OF DRUG FREE WORKPLACE PROGRAM
(
I certify the firm of responding to this RFP
maintains a drug-free workplace program, and that the following conditions are met:
(1) We publish a statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance is prohibited in the
workplace; and specifying that actions will be taken against employees for violations of
such programs.
(2) We inform employees about the dangers of drug abuse in the workplace, the
company's policy of maintaining a drug-free workplace, any available drug counseling,
rehabilitation, and employee assistance programs, and the penalties that may be
imposed upon employees for drug abuse violations.
(3) We give each employee engaged in providing the commodities or contractual
services included in this RFP a copy of the statement specified in Subsection (1).
(4) In the statement specified in Subsection (1), we notify the employee that, as a
condition of working in the commodities or contractual services covered under this RFP,
they will abide by the terms of the statement; and will notify the employer of any
conviction of, or plea of guilty or nolo contendere to any violation of Chapter 893 or any
controlled substance law of the United States or any state, for a violation occurring in the
workplace no later than five (5) days after such conviction.
(5) We impose a sanction on, or require the satisfactory participation in a drug abuse
assistance or rehabilitation program if such is available in the employee's community, by
any employee who is convicted.
(6) We make a good faith effort to continue to maintain a drug-free workplace through
implementation of this section.
As the person authorized to sign the statement, I certify that this firm complies fully with
the above requirements.
Authorized Signature:
Date
Name & Title (typed)
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City of Boynton Beach CRA
Henderson Tillman
915 South Federal Highway
Boynton Beach, FL 33435
October 19,2006
Dear Mr. Henderson Tillman
I had the pleasure of sitting down with Samantha Simon, with Uptown Development.
This is the developer that the CRA approved to complete the project for the Heart of Boynton
Beach. Attached is a letter I sent to her concerning our meeting and a request for more
information concerning something she brought up at that meeting.
Our reason for this meeting was to discuss the purchase of my property. We could not
come to an agreement at that time. But there were information she brought up during this
meeting in which I need your help. Samantha, mention that the City had a BLACK LIST that she
would have my name added to if I did not accept her offer. I was not aware of such a list and I
was wondering if you could help me by providing a copy of this list to me.
If you should need more information please feel free to contact me at the above mention
address or phone numbers. Thanking you in advance for your prompt attention concerning this
information.
. Jerry Taylor, City Mayor
James Cherof, City Attorney
Kurt Bressner, City Manager
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October 19, 2006
Uptown Development
Samantha Simons
826 Estuary Way
Delray Beach, FL 33483
Dear Ms. Samantha Simons,
Just wanted to thank you for taking the time to meet with us on October 19,2006 at
Doc's Ice Cream and Hot Dog stand on the corner of Swinton Blvd. and Atlantic Ave. in Delray
Beach, FL.
Donnie, and I was surprise with your actions and your professionalism when we disagreed
with your offer for the purchase of our property. Samantha, I am sorry if our refusal was
upsetting to you. We are not against your project going forward. You must understand this is
income property which helps with the way we make our living. We have a daughter who attends
the University and the income pays for her dorm and other living expenses that comes with
attending college I'm sure you understand.
Samantha, you said something that was bewildering to both Donnie, and I; you said "if we
did not take this offer you will notify the City and they would put us on a BLACK LIST and we
would be forced to sell through Enimont Domain and we would not get nearly as much as you are
offering now". Well, we are not aware of such a list. My question to you is could you tell me
who or where I can go to get a copy of this list or better yet tell me just who appears on this list.
I will also be writing to City for confirmation of such a list and request that they provide me with
a copy as well. I really don't want to upset you any more than you already are. I was hoping we
could solve this issue in a more professional manner where we could all walk away happy. That's
my ultimate goal.
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Office Of The City Manager
100 E Boynton Beach Boulevard
P.O. Box 310
Boynton Beach, Rodda 33425-0310
City Manager's Office: (561) 742-6010
FAx.' (561) 742-6011
e-mail: bressnerk@ci.boynton-beach.fl.us
www. boynton-beach.org
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November 15, 2006
Ms. Doris Jones
3021 E. Palm Drive
Boynton Beach, FL 33435
Dear Ms. Jones:
I am in receipt of your letter dated October 19, 2006 and wish to advise you that I am
not aware of any list described in your letter to Mr. Tillman and your letter to Ms. Simon
both dated October 19, 2006.
Sincerely,
Kurt Bressner
City Manager
C: Henderson Tillman, Chair CRA
Samantha Simons, Uptown Development
Jim Cheraf, City Attorney
AMERIOA'8 GATEWA Y TO THE GULF8TREAM
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East Side-West Side-Seaside Renaissance
November 27,2006
Ms. Doris Jones
3021 E. Palm Drive
Boynton Beach, FL 33435
Dear Ms. Jones,
Thank you for your letter outlining your meeting with Samantha Simon oflnTown Development Group.
First let me set the record straight. During the selection of a Master Developer for the MLK Corridor, a
Request for a Proposal (RFP) was issued by the Community Redevelopment Agency (CRA). Two
development groups responded to the RFP. They were In Town Development and the Auburn Group.
The CRA heard both proposals at a special meeting at the Clayton Conference Center at the Bethesda
Memorial Hospital on August 16th, 2006. After hearing both proposals, the CRA Board, with a 4-3 vote
asked staff to move forward with producing a Development Agreement with the InTown Group. The
Auburn Group would be asked to do the same if InTown could not deliver on its proposal. At that time,
the CRA Board did not approve anyone as the Master Developer. We only began negotiations with
InTown.
Our staff took the lead in the process as was directed by the CRA Board. I am dismayed and shocked to
hear that InTown told you we approved them as Master Developer. That is incorrect. It further disturbs
me that you were threatened with being placed on a blacklist if you did not sell your property to InTown.
No such list exists in this city. The CRA Board does not condone this type of "arm twisting" and we
apologize for any harm this may have caused you. The CRA Board of Boynton Beach stands for the
utmost in credibility and integrity and seeks to build a better Boynton Beach through all of our
deliberations.
We hope that the above claiifies the matter and our position. However, should you have further questions,
please contact us.
Sincerely,
~-/;~
Henderson Tillman
Chairman, CRA Board of Directors
Cc: CRA Board
eRA Attorney
Jerry Taylor, Mayor
Kurt Bressner, City Manager
CRA Staff
12-12-2006 15:46
From-Ruden McClosky
5616323036
T-456 P 002/002 F-411
~Ruden
~'IMcClosky
200 EAST BROW,,^RD BOULEVARD
SUITE 1 SOo
FORT LAUDERDAlE FLORIDA 3330'
POST OFFICE BOX 1900
FORT LAIJDE'RDALE, FLORIDA 33302
(954) 527-2476
PAX. (954) 333-4076
BONNiE.MI$KEl@RUDEN.COM
VIA FACSIMILE
Lisa Bright
Executive Director
Boynton Beach eRA
915 South Federal Highway
Boynton Beach, FL 33435
December 12, 2006
RE; Intown Development
Comments made by Donis Joans concerning Intown Developments potential acquisition
of property in the heart of Boynton.
Dear Lisa:
Immediately after discussing the above referenced comments with you, I contacted my
client to determine her involvement in the alleged discussions with Ms. Jones. My client advised
me that had she neither time made any such representations to Ms. Jones nor suggested that
should Ms. Jones choose not to sell to her that Ms. Jones would be blacklisted with the city.
In fact, her conversations related to affordable housing had nothing to do with her
decision to sell her property for the redevelopment for the heart of Boynton.
Ms. Jones allegations are not Simply unwarranted but completely untruthful. If you are in
possession of any written correspondence from Ms_ Jones making such allegations, please
forward it to my office. My client intends to take alllcgal action necessary to insure that Ms.
Jones ceases and desist from such misrepresentations and untruthful statements.
1 hope this letter clarifies the facts and sets the record straight. If you need any additional
information, please do not hesitate to calL
Sincerely,
BLM/kmo
RlJDEN, McCLOSK Y, SMITH,
SCHUSTER & RUSSELL, P.A
~
Bonnie L. Miske!
WPB:282703: 1
RUDEN, McCLOSKY, SMITH, SCHUSTER & RU$SE,LL, P.A.
CA~ACAS . FT. LAl.JI)ERDALE . MIAMI' NAPLES. OKLANDO . PORT ,~T.LUCl[ . SAKA~OTA . Sf. PEHRSaURG . TALLAfiASSEE . TAMP" . WEST PALM ~EACH
12/13/2006 10:44
5619971610
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PAGE 01/02
~G
74-'2. - t?O Cf 0 IZ./!J.~
WHO MUST FILE FORM 8B
This form is for use by any person serving at the county, city, or other local level of govemment on an ap~olnted or elected board. council,
commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a votIng
conflict of interest under Sectton 112.3143, Florida Statutes.
Your responsibilities under the law when faced with voting on a measure in which yOLl have a conflict of intaf1lst will vary great!Y depending
on whether you hold an elective or appointive position. For this reason, please pay close attention to the InstnJctlons on thbi form before
completing the reverse sIde and filing the form. .
INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES
.1. .:
A pel'9on holding elective or appointive county, municipal, or other local pLlblic office MUST ABSTAIN from votih9.Jeri a'inea~~~ 'Which
inures to his or her special private gain Or loss. Each eleciled Or appointed local officer also is prohibited from knowingly voting on a niea-
sure which inures to the spedal gain or loss of a principal (other than a government agency) by whom he or she Is retained (lnclutling the
~arent organization or subsidiary of a corporattl principal by which he or she Is retained); to the special private gaIn or loss of a relaUve; or
to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under See.. 163.356 or.
163.357, F.S., and officers of Independent special tax districts elected on a one~acre. one-vote basis are not prohibited from voting in th~f
capacity. .. ..
For purposes of this law, a 'relatlve" includes only the officer's tattler, mother, son, daughter, husband, wife, brother, sist8r.~thef~i-Haw,
mother-in-law. son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged tn or C8nying on ~ bU$iness
enterprise with the officer as a partner, Joint venttrrer, coowner of property, or corporate shareholder (where the shares of the corporation
are not listed On any national or regional stock exchange).
.
.
.
.
.
ELECTED OFFICERS:
.,;,;.
In addition to abstaining from voting in the situations described above, you must disclose the conflict .,
PRIOR TO THE VOTE BEING TAKEN by publicly statIng to the assembly the nature of your interBst in the measure on whlch.~you
are abstaining from voting: end
WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this fonl'l with the person responsible for recording the min--
utes of the meeting, who should incorporate the fonn In the minutes.
*
.
.
.
.
.
.
.
*
APPOINTED OFFICERS:
" . .~.... .'. ,:
Although you must abstain from voting in the situations described above, you othelWise may participate In these matters. HOWElver, you
must dIsclose the nature of the conflict before making any attempt to influence the decisIon, whether oraliy or in writing and whether made
by you or at your direction. ' .
IF YOU INTEND TO MAKE ANY ATTEMPT TO INFlUENCE THE DECISION PRIOR TO THE M~'NG AT WHICH THE VOTE WILL Be
TAKEN:
. You mU$t complete and file this form (before making any attempt to influence the decision) w~h the person responsible for recording the
minutes of the meeting, who will incol'!)orate the form In the minutes. (Continuecl on other elde)
ce rORM BB - EFF. 1/2000 PAGE 1
12/13/2006 10:44
5619971610
QJJMWAV
PAGE 02/02
I. ,.
A.PPOINTED OFFICERS (continued)
. A copy of the form must be pro\licled Immediately to the other members of the agency.
. The form must be reed pUblicly at the next meeting afbar the form is filed.
IF YOU MAKE .NO ATTEMPT TO INFLUe~CE THE DECISION EXCEPT BY 'DISCUSSION AT THE MEETING:
r.'
. You must disclose orally the nature of your conflict in the measure before participating. '.
. You 'must co~plete the form and file it within 15 days after the vote occurs yvIth th. Person tWtIponslble for rac;ordl~g the minutes of the
meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the dffler rnembel'$ of the
agency, end the k1rm must be read publicly at the next meeting after the fonn Is filed.
DISCLOSURE OF LOCAL OFFICER'S INTEREST
I. 71l!5V/3 M'{b-rf . herebydisclo!lett1aton . /)6C". I~
(8) A measure came orwlll come before my agency which (check one)
inured to my special pnV8te gain or loss;
inured to the special gain or 1095 of my busineu associate.
Inured to ltle special gain or loss of my relative,
.)S. Inured to the special gain or 10$S of ~"jI..JJ t!!i/IIJS -m }./tiS
whom I am retained; or
inur&d to ~ special gain Or loss of
is the parent organlzatlofl or sUb8idiBry of a prindpoll which has retained me.
(b) The measure before I11Y agency and the natunt of my confllcttng Interest in the measure is 8$ follows:
(;O/UJEYI-'S7r;J/t/6 AffUW FO/L d/U
PI FA }aND CNH'I' FuNDS FOIL fJ,IU'VI"/~
,4FFOp.p.4J5LE f{tJ()'5/# ~ lJN rrs J<I {r" /;</" of-/lt;
'/L~VB" f,lU}J /ij"t:.--r: Ft/l.1I4 ",HGlz.tJ I ~H .4
fA/l7'lJBfl..- IVA 1> A/l.&tlrr6U'" R:>,fZ. ,~ 5t:.--r 0 /lIfJfK:;t'
'I? c'lI~.,t."tt fJ}./D6t2- CON$""JlLtJ~ 7'ION.
.20~
,by
. which
/2'/~. O@
Date Flied
Signature
NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES i112.317. A FA'LU~E TO MAKE ANY REQUIRED DISCLOSURE
CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING; IMPEACHMENT,
REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT. OEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A
CIVIl. PENAL TV NOT TO EXCEED $10,000.
CE I=ORM 88 . EFF. 112000
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