Agenda 01-20-09
~~~ctY~T2~ eRA
iii 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.
Special Meeting of the eRA Board
Tuesday, January 20, 2009
City Commission Chambers
100 E. Boynton Beach Blvd
Boynton Beach, FL 33435
5:45 PM
-
I. Call to Order - Chairman Jerry Taylor
II. Pledge to the Flag and Invocation
III. Roll Call
IV. Consideration of Master Development Agreement with Auburn Group
V. Consideration of Subordination Agreement with 3675 Acquisition, LLC
VI. Adjournment
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MASTER
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this _
day of ,2008, by and between AUBURN DEVELOPMENT, LLC with an address at 777 E.
Atlantic Avenue, Suite 200, Delray Beach, FL 33483 ("Auburn"), and the CITY OF BOYNTON
BEACH ("City"), a municipal corporation of the State of Florida, with an address at 100 E. Boynton
Beach Boulevard, Boynton Beach, FL 33435 and the BOYNTON BEACH COMMUNITY
REDEVELOPMENT AGENCY ("CRA") with an address at 915 S. Federal Highway, Boynton
Beach, FL 33435.
WITNESSETH:
WHEREAS, in December, 2001, after several meetings with community residents, the City
and the CRA adopted a redevelopment plan entitled the "Heart of Boynton Community
Redevelopment Plan" (" HOB PLAN") for redevelopment of approximately 480 acres of the CRA
District; and
WHEREAS, through a Request for Proposals ("RFP"), the CRA conducted a competitive
process to select a master developer for redevelopment of a portion of the HOB PLAN. In its
response to the RFP, Auburn, through its written proposal dated August 7, 2006, set forth its
qualifications to act as master developer; and
WHEREAS, the CRA has selected Auburn 1o..serve as the master developer of approximately
26.3 acres to be redeveloped (herein as the "PROJECT"). The PROJECT will be located generally
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fietI}Jpe Martin Luther King Jr. Blvd Corridor between Seacrest Boulevard and Federal Highway;
and
WHEREAS, the properties Auburn agrees to redevelop are currently owned by several
different property owners, including the City and the CRA. The CRA owned properties are listed on
Exhibit "A". The City owned properties are listed on Exhibit "B". The properties to be acquired b)
Auburn from third parties are listed on Exhibit "C". Auburn owns or has legally enforceable
contracts to acquire the properties listed on Exhibit "D"; and
WHEREAS, to improve upon it and to reflect changes to market conditions, the City and the
CRA recognize the need to amend the HOB PLAnt to reflect the PROJECT contemplated by the
City, the CRA and Auburn and hereinafter de:;cn he+RclescI:iJ?~_d in this Agreement. The HOB Plan
amendment is subject to a formal plan amendment process which will include neighborhood
meetings, public workshop(s) and public hearing(s); and
WHEREAS, the parties believe that it is in the best interest of each party to initiate the
process to redevelop the properties in accordance with the requirements described herein.
NOW, THEREFORE, for and in consideration of mutual benefits and the public interest and
other good and valuable considerations, the receipt and sufficiency of which are here b)
acknowledged, the parties hereto agree as follows:
1. Recitals. The foregoing recitations are true and correct and are hereby incorporated
herein by reference. All exhibits to this Agreement are hereby deemed a part hereof. All references
to "parties", means the City, the CRA and Auburn collectively.
2. Authoritv. Each party to this Agreement represents to the other that it has legal
authority to enter into this Agreement.
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3. Effective Date. This Agreement shall become effective upon the date the last party
executes the Agreement.
4. Review. The City and the CRA will process, in the manner required by law, all
applications by Auburn for amendments to the City's Land Use Plan and zoning designations of the
PROJECT in order to develop the PROJECT in the manner described herein.
5. Prooertv Ownershio. The parties acknowledge that because the properties listed on
Exhibit "c" are owned by third parties, the development of such properties by Auburn is contingent
upon acquisition of these properties. In the event Auburn is unable to acquire some of these
properties, the parties agree that the PROJECT shall be modified to exclude the unobtainable
properties. The modification may require a change in the boundaries of the four proposed
development phases from the boundaries contemplated by the parties at the time this Agreement is
signed. The parties agree that both the fustsecond phase, planned for a gated senior rental
community, and the fourth phase, planned for condominium building(s), must be built on contiguous
parcels, whereas the sccondthird phase, planned for single family and townhouse buildings can be
built on non-contiguous parcels.
6. Duration of A!!reement. The duration of this Agreement shall be for a twelve (12)
year period from the date this Agreement is fully executed by the parties hereto ("Effective Date"),
provided the parties may extend the term by mutual written consent.
7. Phased Develooment. The PROJECT will be developed in four (4) phases, which
will include ~a total of seven hundred (700)-tetal dwelling units. The phases are generally
described as:
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Phase 1 A neighborhood retail complex consisting of approximately 2.5 acres, located on the
Seacrest frontage north of Martin Luther King Boulevard.
Phase 2 Up to +69120 senior low income rental apartment units (on up to 4 acres ofland,
designated for 30 units per acre) and a senior center.
Phase 3 Up to 237 townhouses, condominiums or single family homes, or as modified by
mutual consent of the parties, on approximately twelve (12) acres, developed under
the City's Workforce Housing Ordinance.
Phase 4 Two (2) four-story buildings and two (2) mid-rise eight-story buildings on
approximately eight (8) aeres,acres with two (2) _of the buildings on Federal Highway
and two (2) of the buildings on the west side of the FEC railroad tracks. The
buildings shall contain approximately 304 residential units with some retail and
office space in the Federal Highway buildings. Twenty percent (20%) of the units
rrswill be work force units which shall meet the requirements ofthe City's Workforce
Housing Ordinance.
A more particular description of the PROJECT and the properties proposed for each phase ot
development is set forth in Exhibit "E". The exact schedule for development and what type ot
development will occur in each phase are subject to change based upon the mutual written agreement
of the parties. II}. the event Auburn is.jlgJe to ogtain !'!x cr~dit financing ~oX Phase,2 prior LQ
comoletioll,.of Phase 1 , Phase 2 m'!..v Jl!oceed\Vith constructiQn. _Except as specifically set 1'01111
herein, each phase shall constitute a separate development and neither the CRA nor the City shall
have any obligation to advance funds or convey land for a phase until the previous phase is
substantially complete. Auburn acknowledges and agrees that all CRA funding and CRA obligations
set forth in this Agreement shall be conditioned upon the eRA's revenue and availability of adequate
funding. Auburn further acknowledges that appropriation of funds by the City and eRA is d
legislative function.
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8. City and CRA Land. Within thirty (30) days after the City and the CRA receives
written notice from Auburn that it intends to close, within the next thirty (30) days, on its
construction financing eafor a narticular nhase and has acauired the last of any parcels it intends to
acquire (in ..^~uburn' sor will acauire in its sole discretion nrior to closinQ on its construction financinQ
for a pmticularthat phase, the City or the CRA, as applicable, shall convey title to Auburn, any
portion of land they own located within that particular phase, to Auburn for the nominal price of
$10.00. The conveyance shall be efwith marketable title, in accordance with Florida Statutes and free
and clear of all encumbrances but shall containwith a reversionary interest in favor romthe City or
the CRA which will require that the property be used for the PROJECT contemplated by this
Agreement or revert back to the City or the CRA. as annlicable. The conveyance(s) bv the City or
the CRA shall take place at the same time as Auburn's closing on its construction financing for that
particular phase.
9. DeveloDment SUDDort. The CRA and the City shall-isstle, at the request of Auburn,
adopt or issue Resolutions or letters of support to assist Auburn in obtaining licenses, approvals,
clearances or other cooperation from local, County, State, or Federal agencies or regulatory entities.
The CRA and the City shall adopt or issue, at the request of Auburn, Resolutions or letters of support
to assist Auburn in obtaining applications for allocations of Low Income Housing Tax Credits, tax-
exempt bond volume cap, Community Workforce Housing Incentive Pilot Program (CWHIP) funds,
and other State or local funding needed for the PROJECT.
10. Overall Commitment. The CRA, the City and Auburn shall coordinate outreach to
the neighborhood to provide information to the community about the PROJECT.
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11. Land Use. Auburn shall submit applications for ~ l@d use amendment~ ifn~edecl>
TOning dcsignations for Phase 1 and Phase~. of the PROJECT, within thirty 8{}one hundIed twenty
(20) days of the date of the Effectiv~ date of this Agreement. The City will process the land use plan
amendments and rezonings needed for each phase of the PROJECT once a complete application is
submitted to the City. The City shall use its best efforts to complete consideration of the land use
and zoning applications for Phase 1 and Phase 2 as described herein by Jtrn.e..+;~F~brul!!Y 15,
~QIQ.
12. Fundin2: Conditions. The CRA advancements to Auburn described herein shall be
conditioned upon the appropriation of funds in the CRA' s budget for the fiscal year in which Auburn
requests the advancement for a particular phase. In the event that the CRA budget for appropriations
is reduced from the planned amount in the year an advancement of funds is requested, the
advancement shall be reduced in the same percentage as the percentage reduction in the CRA
appropriations budget. All funds advanced by the CRA to Auburn for a particular phase shall be
advanced simultaneously with Auburn's actual closing on the construction financing for that
particular phase. Auburn shall provide an opinion letter prepared by a certified public accountant on
the one, two and three year anniversary ef-t:fle-of an advancement payment evidencing how Auburn
utilized the advancement funds.
13. Future CRA Land Acauisitions. Prior to Auburn's notice to the City and the CRA
that it intends to close within the next thirty (30) days, on its construction financing for a phase, the
CRA may use,=~1l1ti~_~1 to Auburn's written ~011;,~DL the advancement funds designated for a
particular phase to purchase land,;l1bjcct -ffi AUflttffT':...; Wt'tfft:>H f"Ht+'iem-;. required for that particular
phase. Any land acquired by the CRA in such a manner, shall be conveyed to Auburn il}Jh~~<:ime
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manner described in section 8 above. Any CRA advancement to Auburn for that oarticular ohase
shall be reduced by the dollar amount the CRA paid to acquire any such land approved by ,^..uburn
between the Effective Date of this Agreement and Auburn's notice it intends to close on its
construction financing.
14. Grants and Loans. ,^..uhum shall and CR..^.. may, inIn an effort to accelerate the rate
of land acquisition and construction of the PROJECT. Auburn shall. and CRA may, pursue grants,
loans and other funding so as to reduce the amount the CRA is obligated to advance to Auburn for
each phase. See Exhibit "F", attached hereto and made a part hereof for a more detailed example of
how this ~intendedjQ work.
In the event that the CRA does not have to pay the maximum advancement amount for a
given phase due to any grants, loans or other funding obtained by ,^..uburn or the CR.^.. for that phase,
the amount of such advancement not paid to Auburn shall roll over for use in the next phase
("Rollover Amount"). In the event Rollover Funds exist for a subsequent phase, Auburn may choose
to begin a subsequent phase while still constructing the prior phase. Upon Auburn's request in
writing, the CRA shall release the Rollover Funds simultaneously with Auburn's closing on its
construction financing for the subsequent phase. Auburn and the CRA agree that in order to acquire
tax-credit financing, Auburn Reedsmav need to develop Phase 1 first to meet the tax credit grocery
store proximity requirement. The parties acknowledge that Phase 3 funding and construction will, in
all likelihood, take place before Phase 2 due to opportune acquisitions, a shorter approval period for
single family development and available funding.
15. ODtion to Proceed. Auburn shall have the option, in its sole discretion, to proceed
with the development of a subsequent phase ofthe PlaHProiect without completion of a prior phase.
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In such event, however, Auburn shall have no right to any designated advancement from the CRA for
the new phase, until seventy-five percent (75%) of the units planned for the prior phase have
received certificates of occupancy or for Pp.as~ 2.the grocery store has received its certificate of
occupancy; if reauired to secure tax~djtJinanl:;il~gJ9r_Pha?~ 2. Prior to reaching seventy-five
percent (75%) completion of the prior phase~ or th~gro(;ery store for Phase I} Auburn, however, may
utilize Rollover Funds or any other funds received from other governmental agencies, grants or loans
and Rollover~, if any exist. The CRA shall pay any Rollover Funds at the time of Auburn's
closing on its construction financing for the subsequent phase.
16. Eminent Domain. In the event Auburn determines, in its sole discretion, that it has
exhausted all efforts to purchase a parcel needed for an assemblage for a particular phase, the City
agrees, upon a request in writing from Auburn or the CRA, to consider, but shall not be obligated to.
the use of its eminent domain powers to acquire such property for a public purpose. The parties shall
share equally in any attorneys' fees (including paralegal fees) and costs arising out of such litigation
and shall pay for such property, if acquired, by utilizing CRA funds for the PROJECT. The City
shall have the right to select counsel for such litigation and to settle or terminate such litigation at
any time in its sole discretion.
17. Chauter 163 Develoument Ae:reement. The parties acknowledge that when the land
use designation for a particular phase of the PROJECT is adopted by the City, and all applicable
appeal periods have expired, the parties intend to enter into a Florida Statutes, Chapter 163
Development Agreement for each such phase, provided that a Chapter 163 Agreement is otherwise
legally permissible.
PHASE 1
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18. Phase 1 shall consist of the development and management of a neighborhood retail
complex consisting of approximately 2.5 acres, located on the Seacrest frontage north of Martin
Luther King Boulevard by Auburn, or by a partnership between Auburn and a third party or by a
third party subject to the agreement of the parties. Auburn may request in writim! that the CRA
advance up to $1,500,000 from the advancement funds designated for Phase 2 to be utilized for
Phase 1. which shall then reduce the funds available to Auburn for Phase 2 by the same amount. If
such funds are requested for Phase 1, the funds shall be paid at the time the developer closes on its
Phase 1 construction financing. The CRA shall cooperate and assist in obtaining tenants or buyers
for the retail complex.
PHASE 2
19. Phase 2 shall consist of up to -l-6G l2Q senior low income rental apartment units (on up
to 4 acres ofland, designated for 30 units per acre) and a senior center. Auburn shall determine, in its
sole discretion, the exact number of units to be developed and the exact location of the land to be
used for Phase 2. The CRA's contribution to Phase 2 shall be the land it owns in Phase 2 as ofthe
Effective Date of this Agreement, and a payment of up to, but not to exceed, a $1,920,000
advancement, which amount may be reduced pursuant to the terms and conditions contained herein.
The payment by the CRA is based upon the maximum number of units funded by Tax Credits, and in
the event less than 160 units are developed, the advancement shall be reduced proportionately on a
unit by unit basis. For example, if the development is downsized to +49100 units, the cash advance
shall be 140/160100/l20th of$1,920,000, or $1,680,000.1.600.000. The CRA and the City, as the
case may be, agree to enter into a purchase and sale agreement with Auburn for the CRA and City
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owned land in Phase 2 for the purpose of demonstrating site control to the Florida Housing Finance
Corporation. The draft purchase and sale agreement is attached hereto as Exhibit "GII.
19.1 Auburn shall acquire, or place under contract, on or before December 3 I,
2012, all the Phase 2 properties it intends to acquire, in its sole discretion. for Phase +, Within
thirty (30) days after the City and the CRA receive written notice from Auburn that it intends to close
within the next thirty (30) days on its Phase 2 construction financing and has fee simple title or is
under contract for the balance ofthe properties it intends to acquire, in its sole discretion: for Phase
2, the City and the CRA, as applicable, shall convey to Auburn, simultaneously with Auburn closing
on its construction financing, the Phase 2 land acquired by the City or the CRA, either before or after
the Effective Date of this Agreement, for the nominal price of $10, with marketable title 111
accordance with Florida Statutes and free and clear of all encumbrances. At the same time, the CRA
shall pay Auburn up to a maximum advancement of $1 ,920,000 less any monies expended by the
CRA for acquisition of land within Phase 2 since the Effective Date of this Agreement, but not
before, and less any grants, louns or e4=flerfunding obtained by Auburn or the CRA for Phase 2.
Auburn shall provide all other funds for the acquisition and development of Phase 2, through private
sources, loans, grants from other governmental agencies or mortgage lenders it selects, in its sole
discretion.
19.2 At the same time as Auburn closes on its construction financing for Phase 2.
the CRA shall also provide a demolition grant in the amount of$300,000 for the cost of demolishing,
clearing, grubbing, and removing of all underground utilities and subsurface structures and bringing
the site to level grade. In the event that the actual demolition cost is less than $300,000, then the
balance of these funds shall be used by Auburn for Phase 2 construction costs.
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19.3 The senior center shall be a minimum 00,500 square feet and shall be open to
the public but also serve as a clubhouse and leasing office for the Senior Apartments. There shall be
access from the gated senior apartments to the senior center through a pedestrian access gate.
Auburn shall manage and operate the senior center and shall have the right, in its sole discretion, to
contract with a third party for the center's management and operation for a period of fifty (50) ycars
aftcr which the o'vvncrship of the senior center propcrty shall bc transfcrrcd to the City.
JAC NOTE: Added conveyance of center to city at end of auburn's 50 year operation and
maintenance period.
PHASE 3
20. Phase 3 shall consist of up to 237 townhouses, condominiums or single family
homes, or as modified by mutual consent of the parties, on approximately twelve (12) acres. Auburn
shall develop these units under the City's Workforce Housing Ordinance. Auburn shall commence
acquisition of the properties for the Phase 3 assemblage ("Phase 3 Assemblage") as soon as it
desires to do so but no later than the date upon which seventy-five percent (75%) of the units planned
for Phase 2 construction have received their certificate of occupancy. It is agreed that the Phase 3
land acquisition and development may occur in two (2) or more subphases, as funding sources and
market conditions allow.
20.1 Within 30 days after the City and the CRA receive written notice from Auburn
that it intends to close, within the next thirty (30) days, on its Phase 3 construction fmancing and has
fee simple title, or is under contract for the balance of the properties it intends to acquire, in its sole
discretion, for Phase 3, the City and the CRA, as applicable, shall convey to Auburn, for the nominal
price of $1 0, simultaneously with Auburn's closing on its Phase 3 construction financing, the Phase
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3 land acquired by the City or the CRA, with marketable title in accordance with Florida Statutes al1d
free and clear of all encumbrances ~ith a_rey~rsion~ intere~t in favor of th~ City or the CRi\ whic.h
will reauire that the mODertv be used for theJ>ROJEGI cOI}temDlated ..In' this A~u:e~me_nt.. At the
same time, the CRA shall pay Auburn, up to a maximum advancement of $2,844.000, less any
monies expended by the CRA for acquisition ofland within Phase 3 since the Effective Date of this
Agreement, but not before, and less any grunt~;.l()ans or other funding!!rant, obtained by Auburn or
the CRA for Phase 3. Auburn shall provide all other funds for the acquisition and development of
Phase 3 through private sources, loans, grants from other governmental agencies or mortgage lenders
it selects, in its sole discretion.
20.2 At the same time Auburn closes on its Phase 3 construction financing, the
CRA shall provide a demolition grant in the amount of $275,000 to Auburn to cover the estimated
cost of demolishing, clearing, grubbing, removing of all underground utilities, subsurface structures
and bringing the Phase 3 site to level grade. If the actual demolition cost is less than $275,000. then
Auburn shall use the balance of these funds for Phase 3 construction costs. Within three (3) months
after Auburn commences construction ofthe Phase 3 units, the CRA shall complete the acquisition
of the land necessary for the Phase 3 streetscape improvements illustrated in Exhibit "G". Upon
completion of such acquisition, the City shall design and construct the proposed Phase 3 streetscape
improvements which may include, but are not limited to. the construction of the town circle. pavers.
benches, fountains, landscaping as well as curbs, gutters, parallel parking spaces, sidewalks, lighting
and signage. The CRA shall pay to the City the actual costs of such improvements. The CRA shall
discuss with the owners of the church adjacent to the town circle, allowing the CRA to renovate the
exterior ofthe church. The City shall substantially complete the streetscape improvements within
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one (1) year after Auburn has commenced Phase 3 construction. The term "substantially completed"
when used in this Agreement shall mean that the improvement can be used for the purpose for which
it was constructed.
JAC NOTE: Changed CRA's obligation from $1,000,000 to actual cost.
20.3 Auburn shall designate a number of the Phase 3 units as workforce units
which shall meet the requirements of the City's Workforce Housing Ordinance. The CRA shall
create a dedicated $2,500,000 fund earmarked exclusively for assistance to the purchasers of the
Phase 3 units to assist them in qualifying for mortgage financing according to their needs and
abilities, until the dedicated $2,500,000 fund is exhausted.
PHASE 4
21. Phase 4 shall consist of two (2) four-story buildings and two (2) mid-rise eight-story
buildings on approximately eight (8) acres. There will be two (2) buildings on Federal Highway and
two (2) buildings on the west side of the FEC railroad tracks. The buildings shall contain
approximately 304 residential units with some retail and office space in the Federal Highway
buildings. Auburn shall designate twenty percent (20%) of the units as work force units which shall
meet the requirements of the City's Workforce Housing Ordinance. Auburn's plan is to construct a
bridge connecting the two (2) buildings on Federal Highway with the two (2) buildings on the west
side of the FEC railroad tracks. The construction of the bridge shall require approvals from the FEC.
The City and the CRA agree to cooperate and assist in obtaining these approvals in the manner
described in paragraph 9 above.
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21.1 The CRA shall provide a demolition grant in the amount of$150,000 to cover
the cost of demolishing, clearing, grubbing, removing all underground utilities, subsurface structures.
and bringing the site to level grade. The CRA shall pay this grant at the same time it pays Auburn
the Phase 4 advancement described in Subparagraph 21.3. If the actual demolition cost is less than
$150,000, then Auburn shall use the balance of these funds for Phase 4 construction costs. If the
actual cost exceeds $150,000, Auburn shall pay all costs which exceed $150,000.
21.2 The two (2) buildings on the west side of the Phase 4 development shall
consist of two (2) or three (3) floors of structured public parking and five (5) or six (6) stories of
residential units above the parking with no more than a total of eight (8) stories in such structures.
Auburn may commence construction of the parking structures only after Auburn has completed
Phases 1 and ~and thc ucquisition2, and has under contract all the Phase 4 parcels it intends to
acquire, in its sole discretion, and has sold 75% of the Phase 3 units to third-party buyers. Auburn
shall construct, at its own expense, all the residential units above these parking structures.
21.3 Within thirty (30) days after the City and the CRA receive written notice from
Auburn that it intends to close, within the next thirty (30) days, on its Phase 4 construction financing
and has fee simple title, or is undcr contract forwill aCQuire, the baluncelC!~t of the propcrtie:;any
oarcels it intends to acquire, in its sole discretion. for Phase 4, the CRA, simultaneously with
Auburn's closing on its Phase 4 construction financing, shall loan to Auburn up to $1216,000 for the
Phase 4 development costs and loan the lump sum of$11,704,000 for the construction of the two (2)
parking garages, all subject to the condition that 75% of the Phase 3 units have been sold to third-
party buyers. The CRA funding for the planned Phase 4 development is contingent upon approval
for bond financing in a bond validation proceeding. In the event that the bond validation proceeding
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does not permit bond financing for the parking garages, then the loan contemplated for the parking
garages shall be designated for the construction of the work force housing units. and anv other
develonment costs determined bv the bond validation nroceedim! as accentable. The exact amount
of the advancement or the lounlillms may be less than the amount set forth herein if Auburn and the
CRA are able to obtain grants, loans or funding from other sources or from remaining...or Rollover
Funds. Auburn shall provide all other funds for the acquisition and development of Phase 4 through
private sources, grants from other governmental agencies or mortgage lenders it selects, in its sole
discretion. The CRA's Phase 4 loans shall initially be subordinate, interest free loans against the
Phase 4 property, but shall be forgiven by the CRA at the time of the completion of construction and
the issuance of the final certificates of occupancy for the Phase 4 buildings. If Auburn determines
that it is economically infeasible or impossible to acquire the property located on the northeast corner
ofthe PROJECT which is currently utilized for adult entertainment, then Phase 4 may be moved to
the south, but in no event shall the total PROJECT area exceed 26.3 acres. In the event that this
change is made, Auburn shall construct an attractive, architecturally compatible three or four story
commercial building on the northwest corner of US 1 and Martin Luther King, Jr. Boulevard
("MLK"), and the buildings envisioned for the Phase 4 area north of MLK shall be built along
Federal Highway and Railroad A venue to the immediate south ofthe currently designated Phase 4
area. The total Phase 4 area may be larger, but not smaller, than is currently envisioned, but the total
PROJECT may not exceed approximately 26.3 acres.
CITY STAFF COMMENT: Phase IV should not be accepted at the proposed density and
intensity until after formal amendment of both redevelopment plans through proper public
involvement. Preliminarily, staff should not support, at minimum, the proposed height of 8
stories. With respect to building heights, at approximately 80 to 90 feet, this design is
inconsistent with the scale of surrounding properties, does not further the visions represented
FTL:3040340:1
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by the two redevelopment plans, and cannot be accommodated by the current mixed-use
zoning regulations and system. Staff recommends that the agreement be worded to emphasize
the prerequisite of amending the affected redevelopment plans, to reflect staffs general
opposition to the proposed scale of Phase IV, and that staff support of the proposed
scale/density/height is contingent upon proper amendment ofthe subject redevelopment plans.
22. General Contractor. Auburn shall have the right to serve as the general contractor
for all phases of development and, in the alternative, shall have the right to select. in its sole
discretion, general contractors for each phase of development.
23. Permits. The City shall designate a specific Building Department representative to
assist in the processing of building permits for the PROJECT.
24. Termination bv CRA. The CRA's obligations to provide any funds to Auburn is
contingent upon Auburn providing to the CRA, at least forty-five (45) days prior to the payment of
any CRA funds, an income tax basis financial statement representing the financial condition or
Auburn Development, LLC prepared by a certified public accountant. The CRA, in its sole and
absolute discretion, shall determine if Auburn has the financial ability to commence and complete
the particular phase for which funding is requested. In the event. in the sole and absolute discretion
of the CRA, Auburn lacks the financial ability to commence and complete that phase, then the eRA
may terminate this Agreement by providing a written notice of termination to Auburn, within 15 days
after receipt of the financial statement. Within forty-five (45) days of receipt of the written notice of
termination from the CRA, Auburn shall convey to the eRA ttttt! 91:' to the City all of the land in the
PROJECT acquired by Auburn eaefi taftti-.ffie+;-i+y 4rrI+ ~. ~t ~ .tfrat.mopen\ HI'
rcspecti';o party conveyed to i\uburn), with marketable title in accordance with Florida Statutes and
free and clear of any encumbrances. In the event. however, that Auburn has secured a construction
loan commitment from aan F.D.I.~. insured. commercial lending institution for the construction of
FTL:3040340: 1
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such phaseat least fifty oercent (50%) of the units for a oarticular ohase or subnha~e. then the right of
termination contained herein shall be null and void.
JAC NOTE:.The last sentence negates the CRA's power to exit the agreement. At a minimum,
the term "commercial lending institution" should he defined and the amount of the
commitment (stated as a percentage of construction loan to project cost) should he stated.
Notwithstanding the level of respect the Developer expressed at the CRA meeting for current
lending practices, the judgment of a loan officer at a commercial lending institution should not
have greater weight than the judgment of the CRA and its professional consultants.
24.1 Phase 2 is intended to be a Housing Credit senior community of up to MG 120
apartment units and a senior center. If Auburn is unable to obtain an award of Housing Credits for
the Phase 2 Senior Apartments from the Florida Housing Finance Corporation, or a successor
agency, by J unuary -H-,December 31. 2012, then the CRA shall have the option to terminate this
Agreement by providing written notice of same to Auburn. In such event, within forty-five (45) days
after receipt of the written notice of termination from the CRA, Auburn shall convey to the CRA or
to the City ( the C~^~ und the City shull euch receive back that property the respccti','c party
com'cycd to 1\uburn) all the land in the PROJECT acquired by Auburn with marketable title in
accordance with Florida Statutes, and free and clear of any encumbrances. At the time of the
conveyance, the CRA shall pay Auburn the amount Auburn paid for the land less any CRA
contributions for the land and each party shall no longer have any ongoing obligations to the others.
24.2 In the event the CRA terminates this Agreement without cause, the CRA shall
pay Auburn, at the time of conveyance of the land, the amount Auburn paid for the land plus
Auburn's verifiable development expenses and costs less any CRA contributions, with interest on the
net amount at the rate of 7.5% per annum from the Effective Date of this Agreement. All of
Auburn's development rights for the balance of the PROJECT shall be forfeited and the Agreement
shall terminate with each party having no ongoing obligations to the others. Auburn's verifiable
FTL:3040340:1
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development expenses shall not include the salaries of Auburn's five (5) highest paid executives.
Documentation for verifiable expenses shall include quarterly expense reports and copies of executed
contracts with any third party contractors and consultants. Any cost incurred in developing the
Request for Proposals for the PROJECT shall not be included.
25. Termination bv Auburn. If Auburn is unable to obtain Housing Credits for the
Phase 2 Senior Apartments which are acceptable to Auburn, in its sole discretion, by Jftttthth
l~December 3 L 2012, Auburn shall have the right to terminate this Agreement by providing written
notice to the CRA. In such event, Auburn shall convey to the CRA all the land in the PROJECI
acquired by Auburn within forty-five (45) days ofthe CRA's receipt of Auburn's written notification
of termination. At the time of the conveyance, the CRA shall pay Auburn the amount Auburn paid
for the land less any CRA contributions for the land and each party shall no longer have any ongoing
obligations to the others.
26. Independent Third Party Financial Analvsis. The CRA Board 1111:, dire€tt'ti+!."
CR,^.. Executive Director to obtuinshall obtain~ithin thirty (3Q) dl!Ys after the EflectiveDate oftl1\:.':
AQreement an independent third party financial reviewfrom a national certified pu\)lic accountiJ:lg
firm to determine if Auburn has the financial ability to undertake and complete the PROJECT a:;
contemplated by the parties. The independent third party financial review will also evaluate the
CRA's financial ability to fund the project. Within fift_eel} (l,ll4avs after tile rec~t of the financial
review. the CRA shall notify Auburn of its determination in writinQ and if the. eRA does not
terminate this AQreement then the riQhts soecificallv contained il} this oaraQraoh 26 shall expire aIld
become null and void. )n the event the CRA Board determines, based upon the report, that the
PROJECT is not feasible based upon Auburn's financial ability or the CRA's funding ability. the
FTL:3040340: 1
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~NrPortbl\FTL\AMS\3040254 ] DOC
CRA may terminate this Agreement and the Agreement will thereafter be deemed null and void. In
the event of termination under this provision of the Agreement all parties will be released of their
respective obligations as described herein and no party shall have recourse against another for any
expenses incurred in reliance upon this Agreement or damages of any kind. Auburn, by signing this
Agreement, specifically acknowledges that it may not detrimentally ~on this Agreement until such
time as the independent third party financial analysis is delivered to the CRA and the CRA has had
tffiftyfifteen (:3Gli) days to evaluate and act on the financial analysis.
27. Notice. All notices pursuant to this Agreement shall be sent by hand delivery, U.S.
Postal Service, return receipt requested, or by a nationally recognized delivery service such as
Federal Express or United Parcel Service to the following addresses:
CITY:
with a copy to:
CRA:
with a copy to:
Auburn: Thomas Hinners
Auburn Group
777 E. Atlantic Ave.. Suite 200
Delray Beach. FL 33483
FTL:3040340: 1
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1,. ,l<'>el'!rp'pUbJ'J'TL 1A,MS.\.394Q25.U .DOC
with a copy to: Susan P. Motley. Esq. -.-
Ruden McClosky
200 E. Broward Blvd.. 15th Floor
Ft. Lauderdale. FL 33301
AUBURN:
AUBURN DEVELOPMENT. LLC
WITNESSES;
By;_____ ...__ _____ .______.__.._._._._.
Print name: Print Name: ----.----.".-----.--., -------..-.-
Title:
--"-'~"-------~-'-'-"-----"--~"-'~' --,..__.. -'--"--~-._---
Print name:
._u. __ _" ___~_' day of ------ ..-- ----.--. -"--~ .200X
STATE OF )
) SS:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by , the of AUBURN
DEVELOPMENT, LLC, freely and voluntarily under authority duly vested in him/her by said
company. He/She is personally known to me or who has produced _______.____ as identification.
WITNESS my hand and official seal in the County and State last aforesaid this ____ day of
,2008.
----------,-_.__._-~.--_._------_._..
Notary Public
-.
Typed, printed or stamped name of Notary Public
My Commission Expires:
FTL:3040340: 1
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CITY:
WITNESSES: CITY OF BOYNTON BEACH, a Florida
municipal corporation
By:
Print Name: , Mayor
day of , 2008
Print Name:
ATTEST: APPROVED AS TO FORM:
By:
, City Clerk , City Attorney
STATE OF FLORIDA )
) ss:
COUNTY OF BROW ARD )
I HEREBY CERTIFY that on this day before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by , as City Manager of the City of Boynton Beach, a
Florida municipal corporation, on behalf of the City, freely and voluntarily under authority duly
vested in him by said municipal corporation and that the seal affixed thereto is the true corporate seal
of said municipal corporation. He is personally known to me or has produced as
identification.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,2008.
Notary Public, State of Florida
My Commission Expires: Typed, printed or stamped name of Notary
Public
FTL:3040340: 1
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)ltl.'€tlrP.gr:tbl\EIL\AMS\3f24.Q4~:U.DQC
eRA:
WITNESSES: CITY OF BOYNTON BEACH
COMMUNITY REDEVELOPMENT
AGENCY
By:__ --~.- ..-.....--
Print Name: Chairman
____ day of __~_.____' 2008
Print Name:
ATTEST: APPROVED AS TO FORM:
By: ____._.___ -..---
, City Clerk . CRA Attornev
STATE OF FLORIDA )
) ss:
COUNTY OF BROW ARD )
I HEREBY CERTIFY that on this day before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by , as Administrator of the City of Boynton Beach
Community Redevelopment Agency, on behalf of the CRA, freely and voluntarily under authority
duly vested in him by said corporation and that the seal affixed thereto is the true corporate seal of
said CRA. He is personally known to me or has produced _.___. ____. as identification.
WITNESS my hand and official seal in the County and State last aforesaid this _ day ot
, 2008.
Notary Public, State of Florida
---.--
My Commission Expires: Typed, printed or stamped name of Notary
Public
FTL:3040340: 1
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LIST OF EXHIBITS
Exhibit "A" Properties owned by the CRA
Exhibit "B" Properties owned by the City
Exhibit "c" Properties to be acquired by Auburn from third parties
Exhibit "D" Properties owned by Auburn or to which it has legally enforceable
contracts
Exhibit "E" A description of the Project and the properties proposed for each phase of
development
Exhibit "F" Example of how grants, loans and other funding will work
Exhibit "G" Phase 3 streets cape improvements
FTL:3040340:1
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f ~h'"N~()l:!b,t\fIL~S\3Q4:Q25.LL[)OC
EXHIBIT" A"
NOTE: Add clause regarding financial study.
FTL:3040340: 1
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Document comparison done by Workshare DeltaView on Friday, January 16, 2009
2:30:15 PM
Input:
Document 1 interwovenSite:IIFTLDMS 1/FTU3040336/1
Document 2 interwovenSite:IIFTLDMS 1/FTU3040254/1
Rendering set standard
Legend:
Statistics:
Count
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Moved from 1
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FTL:3040340: 1
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement") made as of the _ day
of , 2009, by and between 3675 Acquisition, LLC, a Florida limited liability
company, whose address for notice under this Agreement is 6300 N.E. 1 st Avenue, 3Td Floor, Fort
Lauderdale, Florida 33334, Attention: Brian Smith, ("Lender"), and Boynton Beach Community
Redevelopment Agency, a public body, corporate and politic, duly created and operated pursuant
to Chapter 163, Florida Statutes, whose address for notice under this Agreement is 915 S.
Federal Highway, Boynton Beach, Florida 33435 ("Citv").
Introductory Provisions
A. Lender has agreed to make a loan to NSG Properties, Inc., a Florida corporation
("Borrower"), which will be evidenced by a promissory note (the "Note") made by Borrower to
order of Lender and will be secured by, among other things, a mortgage, assignment and security
agreement (the "Mortgage") made by Borrower covering the land (the "Land") described on
Exhibit "A" attached hereto and all improvements (the "Improvements") now or hereafter
located on the land (the Land and the Improvements hereinafter collectively referred to as the
"Property") .
B. The City and the Borrower entered into that certain Restrictive Covenant and
Right of First Refusal recorded in Official Records Book 22788, Page 1102, of the Public
Records of Palm Beach County, Florida (the "Restrictive Covenant") which includes a right of
first refusal (the "Right of First Refusal") (which Restrictive Covenant, as the same may have
been amended and supplemented as of the date hereof).
C. The parties hereto desire to make the Right of First Refusal subject and
subordinate to the Mortgage in accordance with the terms and provisions of this Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, hereby agree as follows:
1. The Right of First Refusal, as the same may hereafter be modified,
amended or extended, and all of the City's rights, remedies and options related to the Right of
First Refusal under the Restrictive Covenant, are and shall be unconditionally subject and
subordinate to the Mortgage and the lien thereof, and to all renewals, modifications,
consolidations, replacements, substitutions and extensions of the Mortgage.
2. The City agrees to give Lender a copy of any default notice related to the
Restrictive Covenant sent by the City to Borrower. The City agrees not to exercise any right
under the Restrictive Covenant due to any default by Borrower until it has given written notice of
such default to Lender and a period of not less than thirty (30) days for remedying such default.
If Borrower's default cannot be cured within such thirty (30) day period, the time within which
such default may be cured by Lender shall be extended for such reasonable period as may be
necessary to complete the curing of the same so long as Lender proceeds promptly to effect a
cure (including such time as may be necessary to acquire possession of the Premises from
Borrower, if possession is necessary to effect such cure) and thereafter prosecutes the curing of
such default with diligence. Lender's cure of Borrower's default shall not be considered all
assumption by Lender of Borrower's other obligations under the Restrictive Covenant.
3. If Lender acquires fee simple title to the Property Lender shall not be
liable or bound to the City (a) for any act, obligation or omission of any prior Property owner
(including Borrower); or (b) for any claims, offsets or defenses which the City might have
against any prior Property owner (including Borrower); or (c) by any modification or amendment
of the Restrictive Covenant, or any waiver of any terms of the Restrictive Covenant, unless such
modification, amendment, or waiver was consented to in writing by Lender. If Lender becomes
the fee simple title owner of the Property, Lender shall be liable to City under the Restrictive
Covenant only for matters arising during Lender's period of ownership of the Property, and such
liability shall terminate upon the transfer by Lender of its interest in the Property and the
assumption of such liability by Lender's transferee.
4. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute and be construed as
one and the same instrument.
5. All notices or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be considered as properly given it
(a) mailed by first class United States mail, postage prepaid, registered or certified with return
receipt requested; (b) by delivering same in person to the intended addressee; or (c) by delivery
to an independent third party commercial delivery service for same day or next day delivery and
providing for evidence of receipt at the office of the intended addressee. Notice so mailed shall
be effective upon its deposit with the United States Postal Service or any successor thereto;
notice sent by a commercial delivery service shall be effective upon delivery to such commercial
delivery service; notice given by personal delivery shall be effective only if and when received
by the addressee; and notice given by other means shall be effective only if and when received at
the office or designated address of the intended addressee. For purposes of notice, the addresses
of the parties shall be as set forth above; provided, however, that every party shall have the right
to change its address for notice hereunder to any other location within the continental United
States by the giving of thirty (30) days notice to the other parties in the manner set forth herein.
6. This Agreement shall be interpreted and constmed in accordance with and
governed by the laws of the state where the Property is located.
7. This Agreement shall apply to, bind and inure to the benefit of the parties
hereto and their respective successors and assigns. As used herein "Lender" shall include any
subsequent holder of the Mortgage, and any transferee of Lender's or Borrower's title in and to
the Property by or following Lender's exercise of its rights and remedies under the Mortgage.
The remainder of this page is blank. The signature pages follow.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
WITNESSES: LENDER:
3675 Acquisition, LLC,
Print: a Florida limited liability company,
By:
Print: Name:
Print:
ACKNOWLEDGMENT
STATE OF )
COUNTY OF )
The foregoing instrument was sworn to, subscribed, and acknowledged before me this
_ day of ,2009, by , as of 3675 Acquisition, LLC, a
Florida limited liability company, on behalf of the limited liability company. He is personally
known to me or presented a driver's license as identification and did not take an
oath.
Notary Stamp/Seal: Notary Signature:
Notary Print:
Notary Public, State of
Commission No.:
My Commission Expires:
WITNESSES: CITY:
Boynton Beach Community Redevelopment
Agency, a public body, corporate and
politic, duly created and operated pursuant
to Chapter 163, Florida Statutes
Signature
Print Name
By: _'_H
Signature Name: -------.--..
Its:
Print Name
ACKNOWLEDGMENT
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me by , as
of Boynton Beach Community Redevelopment Agency, a public
body, corporate and politic, duly created and operated pursuant to Chapter 163, Florida Statutes,
on behalf of the public body, corporate and politic, duly created and operated pursuant (0
Chapter 163, Florida Statutes, and who is personally known to me or has produced a Florida
driver's license as identification.
Witness my signature and official seal this _ day of ___,2009, in the County and State
aforesaid.
Notary Public State of Florida
Print Name:
My Commission Expires:
Notary Seal/Stamp:
Exhibit "A"
LEGAL DESCRIPTION
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