CORRESPONDENCE
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DEVELOPMENT SERVICES DEPARTMENT
PLANNING AND ZONING DIVISION
MEMORANDUM NO. 97-423
TO:
Jim Cherof, City Attorney
Mike Pawelczyk, Assistant City Attorney
FROM:
Tambri J. Heyden, AICP/ ~
Planning and Zoning Director
DATE:
August 12, 1997
SUBJECT:
Access agreement for Burger King and Discount Auto
See attached documents you requested in order to respond to Planning and Zoning Department
Memorandum 97-398 regarding the above matter.
TJH:dim
Attachments
J:\SHRDATA\Planning\SHARED\WP\CORRESP\CITY AITY\access agr, for BK & DA 2.doc
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RECIPROCAL EASEMENT AND OPERATION AGREEMENT r I ,!'--'1Tl "
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THIS RECIPROCAL EASEMENT AND OPERATION AGREEMENT (the "Agreeme~").~~,~~:~~ ~~',q;t
this _ day of February, 1990, between HOWARD R. SCHARLIN, as T~'t"sl~,e.."A~~'-1.~
an office at 1399 S. W. First Avenue, Miami, Florida 33130 ("SCHARW~i~)\ [ a'ri<( HOME
DEPOT U.S.A., INC., a Delaware corporation, having an office at 21~ ~aces Ferry
Road, 7th Floor, Atlanta, Georgia 30339 ("HD").
Preliminary Statement
Scharlin is the owner in fee of certain real property located in Palm Beach
County, Florida, consisting of 16.51 acres more particularly descilbedin
Schedules "A" and "A-I" annexed hereto, (collectively "Schar1in's Parcel").
Scharlin intends to construct on Schar1in's Parcel, in accordance with plans and
specifications agreed upon by the parties hereto, retail and related ::~ervice use
buildings and related parking and site facilities that are indicated ::on the site
plan attached as Schedule "c" (the "Site Plan"), which Site Plan may:be amended as
set forth herein. 11
II
HD is the owner in fee of certain real property consisting of ap I oximate1y
ten (10) acres (the "HD Parcel"), located contiguous to Scharlin's p' cel. The HD
Parcel is more particularly described in Schedule "B" annexed hereto HD intends
to construct on the HD Parcel a building containing approximately 10 ,250 square
feet of ground floor area exclusive of mezzanine, a garden area and , uck loading
docks, customer pickup and compactor facilities and related parking d site
facilities in the areas indicated on the Site Plan. Schar1in's Pa~c
. Parcel as more particularly described in the Site Plan and as sam(l~m
from time to time are herein collectively referred to as the "ParcJl
"Center", and each individually as a "Parcel".
Schar1in and HD recognize that for the most favorable developmen
Center, it is necessary that they agree and cooperate with respect t' the
operation and maintenance of their Parcels and the common areas and acilities to
be erected thereon as indicated in the Site Plan (the "Common Areas" '. Scharlin
and HD therefore intend herein to grant to each other certain recipr cal easements
for pedestrian and vehicular ingress and egress and use over the co n curb cuts,
roadways, driveways, aisles, retention areas, walkways and sidewalks or access
and for delivery and to grant certain rights to install and maintai ~~ti1ity
lines, drainage and site facilities within the Common Areas. Schar ~ and HD also
intend herein to provide for certain obligations and restrictions w' h respect to
the operation and maintenance of their respective Parcels and the C on Areas and
facilities constructed and to be constructed thereon. Such easemeni, obligations
and restrictions shall run to the benefit of, and bind the respecti ~;Parcels, and
the owners from time to time of the Center or any portion thereof. ~he terms HD
or Scharlin shall be deemed to refer to such parties and the respec ' ve heirs,
successors, grantees and assigns of such parties as the owners of s ! d Parcels,
and any net lessee of any Parcel or part thereof who has assumed a1 of the
obligations of the owning party (individually the "Owner", or colle ive1y, the
"Owners").
;~nd the HD '
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NOW, THEREFORE, in consideration of the mutual covenants and ag
hereinafter set forth, Schar1in and HD hereby grant, covenant and a
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ARTICLE I - GRANT OF EASEMENTS
Section 1.01. Access Easements.
(a) The Owners of the HD Parcel and Schar1in's Parcel hereby gtant and
convey, each to the other, for the benefit of the HD Parcel and Schar1in's Parcel,
a non-exclusive easement and right to the use during the term of thi$ Agr~ement of
the Common Areas and the common curb cuts, roadways, driveways, aisles, walkways
and sidewalks located on the HD Parcel and the Schar1ints Parcel as indicated on
the Site Plan and located on the Parcel of the granting Owner, for purposes of
ingress, egress, passage and delivery, by vehicles and pedestrians.
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(b) The Owners of the HD Parcel and Scharlin' s Parcel hereby ara~\ ,qd,_, p"',\
convey, each to the other, for the benefit of the HD Parcel and Sdi~rHn't,8~l'arcel'
a non-exclusive easement .and rig~t to ~he use during the term of t~fs!l.gr.~~rP~~t,J~f'i
the parking areas from t1me to tlme ma1ntaine~ on the HD Parcel and" Sj'l h~r~~~,:~~:~, <',:~C,'
Parcel and located on the Parcel of the grant1ng Owner, for purpose~ t'j~~~1cHl.~r
parking. Notwithstanding the foregoing easements, each Owner shal!~',~'~"tf.t'(liPq:1.h>c1
its respective Parcel the parking ratio required pursuant to Sect~8~.'3t9'~(C)1:~ ~~:':"
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(c) The easements granted hereby and granted in Section 1.02 shall be for the
benefit of, but not restricted solely to, the Owners of the HD Parcel:and
Scharlin's Parcel (except as otherwise specified in Section 1.02(b)) ;and each such
Owner may grant the benefit of such easement to the tenants and othe~ioccupants of
the BD Parcel and Scharlin's Parcel (except as otherwise specified i~~Section
1.02(b)) for the duration of such occupancy, and to the customers, employees,
agents and business invitees thereof; but same is not intended nor shall it be
construed as creating any rights in or for the benefit of the generaf public nor
shall it affect any real property outside of the Center. Such easement areas are
reserved for said use for the term of this Agreement.
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Section 1.02. Utility Easements. The Owners of the HD Parcel an
Parcel hereby grant and convey, each to the other, for the benefit o~
Parcel and Scharlin's Parcel an easement in, to, over, under and acr
Areas of the HD Parcel and Schar1in's Parcel for the purposes of ins
operation, use, maintenance, repair, replacements, removal and reloc
underground storm drainage and sewer lines, other portions of the st
drainage system including the drainage lake and pre-treatment pond
. pipes, lift stations and related apparatus, septic systems, waterfin
electric power lines, telephone lines, and other underground uti11ly
(collectively the "Utility Lines") to serve the facilities located 0
Parcel and Scharlin's Parcel. The installation or relocation of any
shall be subject, as to location, to the approval of the Owner who u
served by the Utility Lines (the "granting Owner"), which approval s
unreasonably withheld or delayed.
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The Owners of the HD Parcel and Scharlin's Parcel or any designe served by
such Utility Lines may operate, maintain, repair and relocate such i1ity Lines,
provided such repair and maintenance is performed expeditiously and ,n1y after
five (5) business days' written notice to the granting Owner. Befor an Owner can
repair or relocate a Utility Line in any parking area on the Center, :said Owner
must provide written notice to the Owner of any Parcel with an appu enant
easement over said parking area pursuant to Section 1.Ol(h). The p ty performing
the repair or relocation shall, at its cost and expense, repair any amage to any
improvements and restore the area to the condition as existed prior 0 such repair
or relocation work. Each Owner shall indemnify, save, defend and h d the
granting Owner and any occupant of the granting Owner's Parcel harm~ ss from any
claims, damage or loss which may result from the activities in makin such
maintnenance or repairs or relocating its facilities, including with,ut limitation
claims, damages, and loss resulting from an interference with the u1 of the
granting Owner's Parcel.
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Section 1.03. Temporarv Construction Easement. In connection w th any
constructi~n work to be performed in the development of the Center, i ach Owner
hereby grants the other Owner ~emporary easements for incidental ene oachments
upon the party's Parcel which may occur as a result of construction~ so long as
such encroachments are kept within the reasonable requirements of costruction
work expeditiously pursued and so long as customary insurance is maf~tained
protecting the other party from the risks involved. :Iilf
Section 1.04. Pylon Sign Easement. The parties hereby agree t~at HD shall
construct two (2) pylon sign structures in the areas indicated on the Site Plan,
which shall be the only pylons in the Center. Such pylons shall be (i) in
conformance with the City of Boynton Beach's Code unless HD obtains a variation of
the aforesaid City Code at the parties' mutual cost and expense, and (ii) designed
substantially as set forth in the sign exhibit annexed hereto as Schedule "D".
One pylon shall be located in the southeast corner of the HD Parcel as designated
'on the Site Plan ("Sign A") and shall contain the "Shoppes of Woolbright Place"
sign and UD's sign as set forth on Schedule liD". The second pylon shall be
located in the southwest corner of the HD Parcel as designated on the Site Plan
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("Sign BU) and shall contain the "Shoppes of Woolbright Place" Sig~; f '~r~p,~s'i~~C:
and no more than two (2) other tenant signs designated by Schar1intJJ>~ ~ :of.~,J;l.ich
shall be in positions junior to the HD sign as set forth on Scheduf """ ",The rHIl.
sign shall have dimensions not less than ten (10) feet by ten (10) *~ i tnsize or
such smaller dimensions as may be required by the aforesaid Code u~~~, a,vad~nC;lj!
of same is obtained, and shall not utilize less than six~y (60%) ~~~; \,:Qt the
signage area on each pylon. The other two (2) tenant S1.gns on S1gn ;' ., shall use
to.eir standardized logo and colors, if any, otherwise the design, col.' and size
of such other signs shall be subject to the approval of HD and such ot er signs
shall be maintained in good repair at the sole expense of Scharlin. S'char1in
shall reimburse HD for its proportionate share of the costs of constr~cting,
lighting, maintaining and repairing both pylons based on the ratio of~the area of
all signs on the pylon excluding HD's sign over the total area of alll.signs on the
pylon. HD may make changes to and/or replace such pylon structure~ a~d/or its HD
signs, so long as all necessary governmental approvals are obtained tberefor.
Schar1in, as the owner of the Scharlin Parcel exclusive of the Outpar~el, shall
have reasonable access to HD's Parcel for purposes of erectingt maintainingt
repairing and/or replacing its signs on the sign pylons. I
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Section 1.05. Restrictions. The easements granted by this Artic,le I shall be
subject to the covenants and restrictions set forth in Article III. .\:
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ARTICLE II - MAINTENANCE AND OPERATION
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Section 2.01. Maintenance and Repair.
(a) Each Owner shall maintain, repair and replace all improved ~ ,rtions of
the Common Areas located on its respective Parcel, so as to keep suc, lareas at all
times in a safe, sightly, good and functional condition to standards:! 'f comparable
community shopping centers in the market area.!
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(b) Each Owner shall be responsible for keeping the Common Area on its own
Parcel clean and free from refuse and rubbish. Any landscaped areas:lpn the
respective Common Areas shall be mowed and otherwise tended to by th~ Owner
thereof.
(c) Each Owner shall repavet re-stripe and replace markings on 'he surface of
the parking areas and driveways in its Parcel from time to time as a d when
necessary so as to provide for the orderly parking of automobiles ani shall place
and maintain adequate exit and entrance and other traffic control s~ . s to direct
traffic in and out of said parking areas. Any striping and other m~ kings shall
be consistent with the Site Plan, and the lightingt paving and strip ng materials
shall be consistent with that used in the Centert as mutually agree4: upon by the
Owners of the HD Parcel and Scharlin Parcel (exclusive of the Outpat :els).
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(d) Each Owner shall servicet maintain, repair and replace, andiipay the cost
of any .fees or charges in connection with the Utility Lines located :n its Parcel
to the extent that such Utility Lines service the improvements on t I'it Parcel or
service the Center, including without limitation the Common Areas, ~ ' a whole if
such services are not provided by the applicable utility company. T, the extent
that any Utility Line exclusively servicing any Parcel crosses anotH'} Owner's
Parcel, such Utility Line shall be so maintained by the party serve~by the
Utility Line, subject to the provisions of Section 1.02. Maintenan~, of any
portion of any Utility Lines serving more than one Parcel shall be R rformed by
the Owner of the Parcel crossed by the Utility Line, but the cost th reof shall be
shared on an equitable basis based upon the relative consumption or! ~age of the
utility furnished from such Utility Line.
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(e) Each Owner shall payor will cause to be paid by an occupa
any penalty attaching thereto, all real estate taxes, assessments a'
property taxes, if any, imposed upon the land and improvements and
located on its respective Parcel, including, without limitation, th
if any, separately assessed and not part of the development or "Off
Improvement Work" under that development agreement of even date her
the parties recorded simultaneously with this Agreement (the "Deve1
Agreement").
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(f) Each Owner shall cause the Common Areas and all buildings and
improvements located on its Parcel to comply with all applicable requirements of
law and governmental regulation applicable thereto. provided however. that an
Owner may contest any such law or regulation so long as such contest would not
create any material danger of a loss of title to. or impairment in any way of the
use of all or any portion of the Common Areas for their intended purposes.
Section 2.02. Operation and Lighting.
(a) Except on holidays during which the Center is closed. each Owner shall
keep the roadways and parking areas of its respective Parcel open to the customers
of the Center seven (7) days a week at all times and lighted after dusk until
11:00 p.m. on Monday through Saturday and from dusk until 7:00 p.m. on Sunday
("Normal Lighting Hours"). The Owner of either the HD Parcel or Scharlin's Parcel
(but not the Owner of any Outparcel) may require the lights on any other Parcel to
be kept lighted after Normal Lighting Hours if such Owner reimburses the requested
Owner for the additional electrical costs incurred thereby. which cost shall be
shared on a pro-rata square footage basis with any Owner or occupant of either
Parcel which remains open during such additional hours.
(b) Any facilities and fixtures to be used in the lighting of the roadways or
parking areas of the Center shall be mutually compatible with the overall design
of the Center as agreed upon by the Owners and shall be constructed in accordance
with plans and specifications mutually agreed upon by the Owners of the HD Parcel
and Schar1in's Parcel (exclusive or the Outparcels). The Center's lighting
facilities and fixtures shall be designed and installed with separate meters to
measure the electricity consumed on the respective Parcels. The meters and
lighting control switches for the exterior parking and roadway lighting for each
Parcel shall be located in an exterior. accessible location on each Parcel and
each Owner of either the HD Parcel or Scharlin's Parcel (exclusive of the
Outparce1s) and any occupant occupying more than 30.000 square feet of Building
Floor Area as hereinafter defined shall be provided with keys to such controls.
Section 2.03. Delegation of Management. The Owners may enter into an
agreement, with the consent of the Owners of all Parcels affected thereby.
appointing one of the Owners or a third party to perform all or portions of the
maintenance and repair of the Common Areas and related facilities of the Center
and that 5.49 acre tract of additional land owned by Scharlin located on the
Western side of S.W. 8th Street, more particularly described in Schedule "F"
attached hereto and by this reference made a part hereof (the "Western Parcel").
In such event each Owner shall be responsible to pay its respective Share (as
hereinafter defined) of the costs incurred by the designated party in performing
such services, which costs shall include the ordinary operating and maintenance
expenditures incurred as well as capital expenditures to the extent so authorized,
provided however, that any expenditure in which another Owner must share for a
repair or replacement of the designated party costing Five Thousand and No/lOO
Dollars ($5.000.00) or more shall require the prior approval of each such Owner.
As used herein the term "Share" shall mean a fraction. the numerator of which
shall be the number of square feet of floor area (exclusive of mezzanines used for
storage and related office and non-sales uses) in all structures located on such
Owner's Parcel as measured from the exterior base of any exterior wall and to the
center line of any party wall ("Building Floor Area"). and the denominator of
which shall be equal to the aggregate of the Building Floor Area (as so measured)
in all buildings in the Center plus the Building Floor Area on the Western
Parcel.
ARTICLE III - COVENANTS AND RESTRICTIONS
Section 3.01. Restrictions on Common Areas. The Center shall be subject to
the following restrictions which shall be binding on each Owner and each of its
tenants, occupants, employees, agents or invitees:
(a) No obstruction to the free flow of traffic and use of the parking
and delivery facilities shall be permitted. except to the extent. if any.
indicated on the Site Plan or herein expressly provided for.
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(b) No building or other structure of any kind shall be permitted in
portions of the Center except in the "Building Areas" designated on the Site
Plan, nor shall any building or structure in the Building Areas exceed the
"Maximum Building Floor Areas" or the "Maximum Height" (including parapet
walls or any other projections of any kind) indicated thereon. No roof-top
signs shall be erected or permitted on the Center. The parties agree that the
building configurations of the Site Plan attached hereto may be revised by HD
or Schar1in upon the prior written consent and approval which approval will
not be unreasonably withheld or delayed by the other party provided
that the Maximum Building Floor Areas and the Maximum Heights set forth on the
Site Plan shall riot be changed, such revisions shall be at the sole cost and
expense of the party revising the Site Plan, and same shall not effect the
approving party's use and operation of its Parcel nor. the parking ratio of the
Center as set forth herein.
(c) No building or other structure shall be permitted within the Center
if such building or other structure would reduce the parking ratio within the
Center, or any Parcel, to fewer than five (5) parking spaces for every'l,OOO
square feet of floor space (excluding (i) mezzanine level space used only for
storage and related office and non-sales uses provided that same are
incidentally related to a retail use and (ii) the garden center on the HD
Parcel which shall have a minimum parking ratio of one (1) parking space for
every 5,000 square feet of floor space exclusive of non-sales areas) located
thereon, or to below the number of parking spaces required under applicable
governmental rules, regulations and ordinances.
(d) Any construction shall be conducted in a manner which will limit to
the maximum extent practicable any interference with the operation of the
balance of the Center.
(e) No portion of the Center shall be used for a business or use which
creates strong, unusual or offensive odors, fumes, dust or vapors; is a public
or private nuisance; emits noise or sounds which are objectionable due to
intermittance, beat, frequency, shrillness or loudness; or creates unusual
fire, explosive or other hazards.
(f) No portion of the Center may be leased, used or occupied as a health
spa or exercise facility; theatre; movie theatre; bowling alley; billiard
parlor; funeral parlor; flea market; industrial manufacturing; automobile
dealership (except a dealership which stores, displays, sells and operates
entirely from the interior of its building provided HD's prior approval of its
plans and specifications is obtained); discotheque; skating rink; bar (other
than incidental to a business operated primarily as a restaurant), a
restaurant or bar/restaurant marketing a style of operations substantially
similar to thoses bar/restaurants operating under the name of "TGI Fridays",
Chilli's", or ,"Bennigans", adult bookstore or establishment selling, showing,
exhibiting or distributing pornographic or obscene materials; massage parlor;
a facility which sells illegal drug paraphernalia commonly referred to as a
so-called "head shop"; unsupervised amusement arcade or game room; body and
fender shop; car wash (except as incidental to a gasoline filling-station);
off-track betting parlor; or restaurant or fast food operation incorporating
coin-operating amusements or showing movies to its customers thereof other
than as an incidental or immaterial part of its business. Notwithstanding the
foregoing contained in this Section 3.01(f) that fifty thousand (50,000)
square foot space on Schar1in's Parcel designated on the Site Plan as "Anchor
Store 1" may be used as a health spa or a exercise facility or an indoor movie
theatre provided that all other obligations or provisions of this Agreement
are complied with.
(g) No portion of the Center outside of the HD Parcel may be used for
(1) general offices aggregating in excess of 1,500 square feet (exclusive of
the office space used for the management of the Center which space shall not
exceed 1,000 square feet in size); (ii) a restaurant in excess of 4,300,square
feet; or (iii) a home improvement center or for the sale of lumber, hardware
items, plumbing supplies, electrical supplies, paint, wallpaper, carpeting,
floor coverings, cabinets, siding, ceiling fans, gardening supplies, nursery
products, furniture and pool supplies and other related items customarily
carried by a home improvement center except for the incidental sale of such
items so long as the BD Parcel is used for a home improvement center. No
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restaurant shall be permitted to operate an Scharlin's Parcel ~JtH;~ 300 feet
af the main entrance of the building to be erected on the HD P~~ce~! ;',
Notwithstanding the foregaing, the use of less than 2,000 squar;e Beet for the
sale of paint, wallpaper or ceiling fans in the aggregate shal}d'n~~1.l:>e, ,de~med
to. constitute a violation hereof. The parties shall be respon~tib]~p:for\:~~~
special permits to be required by ordinance, law, rules or reg~Ja~~?~~\?fn,~Yl- "-
governmental entity for certain uses of its Parcel, such as th~i:s:llqI1<;tge:qt., .
lumber, garden supplies, paint, etc. it. :::u "t'.:.. :3l'
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(h) There shall be no. promotion, entertainment, amusement o( other
activities in the Common Areas, including the sidewalks immediatelY adjacent
to the premises accupied by such merchants, which wauld interfere;:with the use
af the Comman Areas and related facilities far their intended purpases.
Notwithstanding the foregoing, HD may utilize the portions of thel~ommon Areas
designated by HD in the future in areas an the HD Parcel and an t~e Site Plan
which do. nat materially alter the parking requirements set forth fn this
Agreement for purpases of Christmas tree sales and ather seasona1~~a1es.
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(i) The architectural impravements (including building and.~her
impravements, utility lines, driveways, signs, parking areas, lig~ts,
curb-cuts, access ways, landscaping, and site preparation and sit~ deve1apment
work) erected ar perfarmed an Scharlin I s Parcel fram time to time;' hall be
performed in accardance with detailed plans and specificatians th~ efar which
shall be submitted to. HD ar its successors ar assigns as the titl~ halder af
the HD Parcel prior to. the cammencement af any wark on Scharlin's l arce1.
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(j) In the event HD no. longer uses the HD Parcel for a hame
center, HD shall recagnize any exclus~ve granted. by Scharlin ~~W ~ ""!;Jii,j\,Q,~i~~~1Pr.~t1lMln.l~ Jll:1
than 16,000 square feet af space praVlded that (1) such user 1s.118~~I1$~~ltb"i\liQWIll'U~
in said space for that permitted exclusive, and (ii) the permitte I exclusive
will nat prevent the use of the HD Parcel far general merchadisin . purpases.
Sectian 3.02. Outlot Parcel Restrictians. The parties acknawled e and agree
that three (3) certain autlot parcels exist upon Scharlin's Parcel (cllectively
the "Outparcels" individually referred to. as Out parcels as indicated 'n the Site
Plan) which are more particularly described in Schedule "A-l" annexed, ereto, and
lacated respectively as designated an the Site Plan. In additian to. . e terms and
canditians af this Agreement which relate to. the Outparce1s as part a, the Center,
the develapment of the Outparcels shall be subject to. the following r " trictions:
(a) The Owner(s) of the Outparce1s cavenant and agree to. su" it to. HD
for approval camplete plans and specficatians for the improvement' to be
canstructed an said Outparcel(s) which apprava1 must be obtained !, ior to the
cammencement of any construction upon the subject Outparce1 and w'11 nat be
unreasonably withheld by HD provided that (i) the impravements an' landscaping
shall nat obstruct access to, parking an, nor deviate fram the Ma;imum
Building Floor Areas and Maximum Height set forth on the Site Pla, being that
no building constructed upon any Outparce1 shall exceed ane (1) s ary or
twenty-five (25) feet in height nor mare than 5,000 square feet i ,size, (ii)
the building and ather improvements including Utility Lines, dri ays, signs,
curbing, parking areas, lights, access ways, landscaping, and sit preparation
and site development work erected or perfarmed an the Outparcel s all be
performed in accordance with the appraved plans and specification, (iii) the
Owner af the Outparcel shall provide evidence of its intentian t 'indemnify,
defend, hold and save the other Owners, and their agents, servant, 'employees,
officers and directars harmless fram any and all loss, damages. 1 ability,
costs ar expenses arising or alleged to. have arisen aut af any i ~entionally
tortiaus ar negligent act ar omissian af the Owner af the outpar~'l, its
agents, contractors, subcantractors, servants, employees, licenses or invitees
in cannection with any construction work to. be perfarmed by or at the
directian of the Owner of the Outparcel; (iv) the construction and
improvements an the Outparcel shall be perfarmed in accordance with its
construction schedule which shall be an element af the plans and
specificatians, (v) the balance of the Outparcel shall be paved, striped,
lighted and landscaped in a manner subject to. HD's priar written approval,
which appraval shall not be unreasonably withheld, (vi) the designated parking
for the Outparcels are se1f~supporting. In additian, no building shall be
constructed on the Outparcel autside the building area designate~on the Site
Plan;
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(b) No pylon signr hall be erected or permitted or-4he Outparcels
however tbe Owner may su....ait plans to HD for its approva... ,hicb approval HD
can withhold in its sole and absolute discretion;
(c) The on-site parking on the Outparcels shall provide for the minimum
amount required by law (without variance).
(d) Access to the Outparce1s shall be by two (2) curb cuts as designated
on the Site Plan.
(e) Among other uses permitted by this Agreement, the Outparcels may be
used for no more that two (2) restaurants, provided however in no event shall
such restaurants be the type of restaurant or bar/restaurant restricted by
Section 3.0l(f).
Section 3.03. Development of Schar1in's Parcel: The parties agree that they
intend to develop the HD Parcel and Scharlin's Parcel for shopping center and
related uses with common roadways and parking areas as indicated on the Site Plan
and other site facilities. While the plans and specifications for the development
of Schar1in's Parcel have not been finalized and approved by the parties as of the
date of this Agreement, the parties intend herein to provide for the design and
construction of the site improvements including without limitation roadways,
parking areas, common utilities and other common site improvements. Scharlin
shall construct and develope Scharlin's Parcel as part of the Center in accordance
with all the terms and provisions of this Agreement and the plans and
specifications set forth in Schedule "E" annexed hereto and made a part hereof
(the "Site Improvements"), and in a good and workmanlike manner reasonably
designed to minimize any interference with the RD Parcel. Any modifications,
revisions or additions to Schedule "E", including without limitation the grading,
lighting, landscaping and utility plans and construction schedule shall require
the prior written approval of RD. All such work called for in the approved plans
and specifications shall be done at Schar1in's sole cost and expense in accordance
with all requirements of law, including all rules, regulations, ordinances,
statutes and guidelines promugated by any applicable governmental or
quasi-governmental authorities, agencies or organizations. Schar1in will apply
for and obtain, at its own expense, any and all necessary governmental approvals
for the on and off-site improvement work to Scharlin's Parcel including without
limitation the building permit for any of its improvements. The design of the
site work on Scharlin's Parcel shall be compatible in all functional elements and
generally consistent in quality of workmanship and appearance with the rest of the
Center. Scharlin shall indemnify, defend, hold and save RD and its agents,
servants, employees, officers and directors harmless from any and all loss,
damages, liability, costs or expenses arising or alleged to have arisen out of any
intentionally tortious or negligent act or omission of Scharlin, his agents,
contractors, subcontractors, servants, employees, licensees or invitees in
connection with any construction work to be performed by or at the direction of
Scharlin.
ARTICLE IV - LIABILITY INDEMNIFICATION
Section 4.01. Liability; Indemnification. Each Owner shall indemnify and
hold every other Owner, tenant, and occupant of the Center harmless (except for
loss or damage resulting from the tortious acts of'such other parties) from and
against any damages, liability actions, claims, and expenses (including attorneys'
fees in a reasonable amount) in connection with the loss of life, personal injury
and/or damage to property arising from or out of any occurrence in or upon such
Owner's Parcel, or occasioned wholly or in part by any act or omission of said
Owner, its tenants, agents, contractors, employees, or licensees.
Section 4.02. Liability Insurance. Each Owner shall maintain or cause to be
maintained commercial public liability insurance insuring against claims on
account of loss of life, bodily injury or property damage that may arise from, or
be occasioned by the condition, use or occupancy of the Common Areas in the Center
by the Owner and its tenants, agents, contractors, employees, licensees, customers
and invitees, of such Owner or the occupants of its Parcels except as herein
provided. Said insurance shall be carried by a reputable insurance company or
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023411:
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companies qualified to do business in the State of Florida and having limits for
loss of life or bodily injury in the amounts of not less than One Million and
No/100 Dollars ($1,000,000) single limit coverage for each occurrence and One
Million and No/100 Dollars ($1,000,000.00) for property damage for each
occurrence, or such greater amounts as are typically carried for similar
developments in the Palm Beach County, Florida area. Each Owner shall be named as
an additional insured on each other Owners policy. Notwithstanding the foregoing,
any Owner or party responsible to maintain such insurance may "self insure", or
provide for a deductible from said coverage related to the Parcel, to the extent
of one percent (1%) of the net worth of said Owner or party in its last annual or
fiscal year as certified by an independent certified public accountant and
computed in accordance with generally accepted accounting principles consistently
applied. Such insurance may be carried under a "blanket" policy or policies
covering other properties of the party and its subsidiaries, controlling or
affiliated corporations. Each Owner shall, upon written request from the other
Owner, furnish to the party making such request certificates of insurance
evidencing the existence of the insurance required to be carried pursuant to this
Section or evidence of a self-insurance capacity as hereinabove provided, as the
case may be. Each Owner hereby waives any rights of recovery against any other
Owner, its directors, officers, employees, agents and tenants and occupants for
any damage or consequential loss covered by said policies, against which such
Owner is protected by insurance, to the extent of the proceeds payable under such
policies, whether or not such damage or loss shall have been caused by any acts or
omissions of the other Owner or its directors, officers, employees, agents,
tenants or occupants.
ARTICLE V - CASUALTY AND EMINENT DOMAIN
Section 5.01. Casualty.
(a) If any of the buildings located on any Parcel is damaged or destroyed by
fire or other cause, the Owner of such building shall promptly cause either: (i)
the repair, restorations, or rebuilding of the building so damaged or destroyed,
or (ii) the razing of any damaged building,the filling of any excavation, and
performance of any other work necessary to put such portion of the Center in a
clean, sightly and safe condition.
(b) In the event any Common Area improvements are damaged or destroyed, the
Owner of the Parcel to which such damage has occurred shall promptly cause the
repair, restoration or rebuilding of the Common Area improvements to the extent
necessary to restore the area outlined on the Site Plan to its previously improved
condition and restore such other areas to the extent necessary to avoid
interference with the remaining Common Areas of the Center and to adhere to any
required parking ratios required by law and as set forth herein.
Section 5.02. Casualty Insurance. In order to assure performance of their
respective obligations under Section 5.01, the Owners of the respective Parcels
shall cause to be carried fire and extended coverage insurance on all buildings
and improvements on their respective Parcels in the amount of the replacement cost
of such improvements, and in amounts at least sufficient to avoid the effect of
any co-insurance provisions of such policies, except if the Owner of said Parcel,
or party responsible for any required restorations, is permitted to "self insure",
as hereinafter set forth. Said insurance shall be carried by a reputable
insurance company or companies qualified to do business in the State of Florida.
Such insurance may be carried under a "blanket" policy or policies covering other
properties of the party and its subsidiaries, controlling or affiliated
corporations. All such insurance shall include provisions denying to the insurer
subrogation rights against the other parties to the extent such rights have been
waived by the insured prior to the occurrence of damage or loss. Each Owner
shall, upon written request from the other Owner, furnish to the party making such
request certificates of insurance evidencing the existence of the insurance
required to be carried pursuant to this Section or evidence of a self-insurance
capacity as hereinabove provided, as the case may be. Each Owner hereby waives
any rights of recovery against any other Owner, its directors, officers,
employees, agents and tenants and occupants for any damage or consequential loss
-8-
0234k
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, .
covered by said policies, against which such Owner is protected by insurance, to
the extent of the proceeds payable under such policies, whether or not such damage
or loss shall have been caused by any acts or omissions of the other Owner or its
directors, officers, employees, agents, tenants or occupants. The Owner
responsible to maintain such insurance may "self-insure", or provide for a
deductible from such insurance from said coverage related to the Parcel, to the
extent of one (11) of the net worth of said Owner or party in its last annual or
fiscal year as certified by an independent certified public accountant and
computed in accordance with generally accepted accounting principle consistently
applied.
Section 5.03. Eminent Domain. In the event the whole or any part of the
Center shall be taken by right of eminent domain or any similar authority of law
(a "Taking"), the entire award for the value of the land and improvements so taken
shall belong to the Owner of the property so taken or to such Owner's mortgagees
or tenants, as their interest may appear, and no other Owner shall have a ~ight to
claim any portion of such award by virtue of any interest created by this '
Agreement. Any Owner of a Parcel which is not the subject of a taking may,
however, file a collateral claim with the condemning authority over and above the
value of the land being so taken to the extent of any damage suffered by such
Owner resulting from the severance of the land or improvements so taken if such
claim shall not operate to reduce the award allocable to the Parcel taken. In the
event of a partial Taking, the Owner of the portion of the Center so taken shall
restore the improvements located on the Common Areas of the Owner's Parcel as
nearly as possible to the condition existing prior to the Taking without
contribution from any other Owner and any portion of any condemnation award
. necessary therefor shall be held in trust and applied for such purpose, provided
however that in the event such proceeds are taken by a mortgage to reduce the
mortgage debt under such Parcel such funds shall not be held in trust for such
purposes but the Parcel Owner shall remain liable for and obligate to such
restorations.
ARTICLE VI - REMEDIES
Section 6.01. Self Help; Lien Rights Disputes.
(a) If any Owner shall default in the performance of an obligation of such
Owner (such Owner being herein called a "Defaulting Owner"), which default affects
the Owner of another Parcel (other than the separate Owner of the Outparcel) (an
"Affected Party"), such Affected Party, in addition to all other remedies it may
have at law or in equity, after ten (10) days' prior written notice to the Default
Owner and any first Mortgagee or SL Lessor as herein defined (or in the event of
an emergency after such notice as is practical under the circumstances), shall
have the right ,to perform such obligation on behalf of the Defaulting Owner,
subject to the dispute provisions of Section 6.06 herein. In such event, the
Defaulting Owner shall promptly reimburse the Affected Party the cost thereof,
together with interest thereon from the date of outlay at a rate equal to the
lesser of (i) two percent in excess of the prime lending rate charged by Citibank,
N.A. for commercial loans of its most perferred commercial customers or (ii) the
highest rate permitted by applicable law (the "Interest Rate").
(b) Any such claim for reimbursement, together with interest thereon as
aforesaid, shall be secured by a lien on the Parcel and improvements thereon owned
by the Defaulting Owner, which lien shall be effective upon the recording of a
notice thereof in the appropriate recording office for Palm Beach County,
Florida. The lien shall be subordinate to any first mortgage or deed of trust now
or hereafter affecting the subject Parcel (a "First Mortgage") and to the interest
of any party who has purchased the Parcel and leased it back to the preceding
Owner, or its subsidiary or affiliate, on a net lease basis with the lessee
assuming all obligations thereunder in what is commonly referred to as a "sale
leaseback" transaction (a "SL Lease"); and any purchaser at any foreclosure or
trustee's sale (as well as any grantee by deed in lieu of foreclosure or trustee's
sale) under any such First Mortgage or assignee of such SL Lease shall take title
subject only to liens thereafter accruing pursuant to this Section 6.01.
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(C) In lieu of the aforesaid rights in Section 6.01(a) or Sectb~tli\I~ .02. ! I.'
hereinbelow, if a Defaulting Owner's default affects the outparcelDq~t,p~~any
occupant thereof, then the Outparcel Owner or any occupant thereofa~h~\lt?~ve:~Ll
remedies available in law or in equity. cr.: ' ~~h' I; "
I
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Section 6.02. In ;unctive and Other Remedies. In the event of s~bf,",eac,~ br,any
Owner of any obligation of this Agreement, the Owners of the HD or e'S~f)~i~~S .i
Parcel (exclusive of the Outparcel) shall be entitled to obtain an t,n~~c,~~on;1 :"', 'C'
sped.fically enforcing the performance of such obligation; the own~r~fh~J.~.bY "" ': '
acknowledge the inadequacy of legal remedies and the irreparable ha~m,~hich would
be caused by any such breach, and/or to relief by other available legal and
equitable remedies from the consequences of such breach. Any action taken or
document executed in violation of this Agreement shall be 'void and" may be set
aside upon the petition of the other Owners of portions of the Center. Any costs
and expenses of any such proceeding, including attorneys' fees in a reasonable
amount, shall be paid by Defaulting Owner and, if recorded without effective
Dispute as provided in Section 6.06, shall constitute a lien against the land, and
improvements thereon, or the interests therein, until paid. "~
Seetion 6.03. Non Waiver. No delay or omission of any Owner in i~he exercise
of any right accruing upon any default of any other Owner shall impatr such right
or be construed to be a waiver thereof, and every such right may be e~ercised at
any time during the continuance of such default. A waiver by any o3~r of a
breach of, or a default in, any of the terms and conditions of this grement by
any other Owner shall not be construed to be a waiver of any SUbsequ~' t breach of
or default in the same or any other provision of this Agreement. Ex~ pt as
otherwise specifically provided in this Agreement, (i) no remedy pro'ded in this
Agreement shall be exclusive but each shall be cumulative with allot er remedies
provided in this Agreement and (ii) all remedies at law or in equity 'shall be
available. ,I
\ ~
Section 6.04. Non Terminable A~reement. No breach of the provi~ions of this
Agreement shall entitle any Owner or party to cancel, rescind or oth rwise
terminate this Agreement, but such limitation shall not affect, in a manner, any
other rights or remedies which any party may have hereunder by reaso: of any
breach of the provisions of this Agreement. No breach of the proviso ns of this
Agreement shall defeat or render invalid the lien of any mortgage or; eed of trust
made in good faith for value covering any part of the Center, and an' improvements
thereon.
Section 6.05. Force Majeure. In the event any Owner or any oth r party shall
be delayed or hindered in or prevented from the performance of any a t required to
be performed by such party by reason of Acts of God, strikes, locko~ s,
unavailability of materials, failure of power, prohibitive governme~ al laws or
regulations, riots, insurrections, the act or failure to act of the' ther party,
adverse weather conditions preventing the performance of work as ce~ ified to by
an architect, war or other reason beyond such party's control, then! he time for
performance of such act shall be extended for a period equivalent td the period of
such delay. Lack of adequate funds or financial inability to perfot shall not be
deemed to be a cause beyond the control of such party.!
'i
Section 6.06. Dispute. In the event of any dispute as to the 4 cessity of
any required action or the propriety of any action taken with resped thereto or
the appropriate cost or expense of such action which is the subject I f
reimbursement, if any, or any other claims or dispute under this Agr ement
("Dispute") the disputing party ("Disputing Party") shall notify th other party
.in writing as to the nature of any such Dispute within a reasonable ime sent by
any Affected Party or Owner or occupant of the Center. In the even of a Dispute
against the HD or Scharlin's Parcel (exclusive of the Outparcel), a action taken
by the Affected Party or the owner or occupant of the Outparcel sha be subject
to the rights of the Disputing Party in all respects and no lien or, otice thereof
shall become effective until the judicial determination of such Dis' te or
settlement agreed to by the parties. Any costs and expenses of any. itigation
determining such Dispute, including attorney's fees and fees of col ction in a
reasonable amount, shall be paid by the party judicially determined; 0 be at fault
or in error. Notwi ths tanding the foregoing, if an emergency exis tst: r if the
'failure to take any action might subject a party to fine or prosecu: ion for a
crime or constitute a default under any mortgage or deed of trust, e party whose
Parcel is so affected shall have the right, prior to adjudication 0 the Dispute
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Final
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I
:0 J€ ~~V0~ ~r l~r
as aforesaid, to take reasonable steps so as to protect its positi~~, r;~~~ . ""1
propriety of which as well as the reimbursement of the resulting cq~t~ ah.al).."b~,
adjudicated as aforesaid to be in default or error in such Dispute~n:<y
1. .il t r
TIC di::
I
ARTICLE VII - TERM
This Agreement and the easements, rights, obligations and liabilities created
hereby shall be perpetcal to the extent permitted by law.
'I
ARTICLE VIII - EFFECT OF INSTRUMENT
Section 8.01. Mort~a~e Subordination. Any mortgage or deed of t~ust
affecting any portion of the Center shall at all times be subject and':,subordinate
to the terms of this Agreement, except to the extent expressly otherwise provided
herein, and any party foreclosing any such mortgage or deed of trust, "or acquiring
title by deed in lieu of foreclosure or trustee's sale shall acquire title subject
to all of the terms and provisions of this Agreement, subject to Sec~?ron 6.01
hereof. Each party hereto represents and warrants to the other parti s that there
is no presently existing mortgage or deed of trust lien on its Parcel other than
mortgage or deed of trust liens that are expressly subordinate to the lien of this
Agreement.
Section 8.02. Binding Effect. Every agreement, covenant, promis
undertaking, condition, easement, right, privilege, option and restri
granted or assumed, as the case may be, by either party to this Agree
by such party not only personally for the benefit of the other par,~
. also as Owner of a portion of the Center and shall constitute an J~i
servitude on the portion of the Center owned by such party appurtenan
the benefit of the other portions of the Center. Any transferee of a
the Center shall automatically be deemed, by acceptance of the title~
portion of the Center, to have assumed all obligations of this Agreern
thereto to the extent of its interest in its Parcel and to have agree
then Owner or Owners of all other portions of the Center to execute
instruments and to do any and all things reasonably required to carr'
intention of this Agreement and the transferor shall upon the comp1e
transfer be relieved of all further liability under this Agreement e
liability with respect to matters that may have arisen during its pe
ownership of the portion of the Center so conveyed that remain unsat.
Section 8.03. Non-Dedication. Nothing contained in this Agreem
deemed to be a gift or dedication of any portion of the Center to th
public or for any public use or purpose whatsoever, it being the int
parties hereto and their successors and assigns and that nothing in
Agreement, expressed or implied, shall confer upon any person, other
parties hereto and their successors and assigns, any rights or remed
by reason of this Agreement.
,
tion made,
ent is made
'lleto but
HI_ti4!I~H* ~,~"Hd:
to and for
,y part of
o any
nt relating
with the
y and all
out the
on of such
ept
od of
fied.
t shall be
general
tion of the
is
than the
es under or
Section 8.04. Responsibility. Notwithstanding anything to the
contained in this instrument, each party to this Agreement shall be
responsible for the obligations, covenants, agreements and responsib
created by this Agreement and for any judgment rendered hereon only
of its respective interest in the land and improvements on the Schar
and the HD Parcel, as the case may be.
ontrary
iable and
'lities
o the extent
in's Parcel
ARTICLE IX - NOTICES
~ .
Any notice, report or demand required, permitted or desired to be given under
this Agreement shall be in writing and shall be served, for all purposes, by
registered or certified mail, return receipt requested, or delivered by courier or
expedited mail service, and shall be deemed to have been sufficiently given on the
date of delivery or refusal thereof, to the parties at the below listed address or
such other address as the respective parties may from time to time designate by
like nodce:
If to Scharlin:
Howard R. Scharlin, Trustee
1399 Southwest First Avenue
Miami, Florida 30339
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Final
With a copy to:
The Tradewinds Group
Congress Corporate Plaza
902 C1intmore Road, Suite 125
Boca Raton, Florida 33487
Attention: Mr. Michael Morton
With a copy to:
Leo Rose, Jr., Esquire
Therre1 Baisden & Meyer Weiss
1111 Lincoln Road, Suite 500
Miami Beach, F1ori~a 33139
If to HD:
Home Depot U.S.A., Inc.
2727 Paces Ferry Road
7th Floor
Atlanta, Georgia 30339
Attn: Legal Department
With a copy to:
Mark J. Levick, Esquire
Altman, Kritzer & Levick, P.C.
6400 Power Ferry Road, N.W.
Suite 224 - Powers Ferry Landing
Atlanta, Georgia 30339
ARTICLE X - MISCELLANEOUS
Section 10.01.
(a) If any provision of this Agreement, or portion thereof, or the
application thereof to any person or circumstances, shall, to any extent be held
invalid, inoperative or unenforceable, the remainder of this Agreement, or the
application of such provision or portion thereof to any other persons or
circumstances, shall not be affected thereby; it shall not be deemed that any such
invalid provision affects the consideration for this Agreement; and each provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
(b) This Agreement shall be construed in accordance with the laws of the
State of Florida.
(c) The Article headings in this Agreement are for convenience only, shall in
no way define or limit the scope or content of this Agreement, and shall not be
considered in any construction or interpretation of this Agreement or any part
hereof.
(d) Nothing in this Agreement shall be construed to make the parties hereto
partners or joint venturers or render either of said parties liable for the debts
or obligations of the other party.
(e) This Agreement shall run with the land and shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto.
(f) This Agreement may be amended, modified, or terminated at any time by a
declaration in writing, executed and acknowledged by all the parties to the
Agreement or their successors or assigns; this Agreement shall not be otherwise
amended, modified or terminated during the term hereof.
(g) The term "parties" as used in this Agreement shall mean the fee simple
title holders of the Parcels. It is specifically understood and agreed that there
shall be no personal liability of the parties in respect to any of the covenants,
conditions or provisions of the Agreement. In the event of a breach or default by
a party of any of its obligations under this Agreement, the other party shall look
solely to the equity of the party in its Parcel for the satisfaction of its,
remedies.
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01J4k
Final
If, after HD initially opens for business on the HD Parce~, the HD Parcel
shall become and continue for a period of one (1) year or more to be unleased and
unoccupied, as extended by the period of any delay that is due to force majeure or
other causes beyond the reasonable control of HD (the "Unoccupied Date"), then
Scharlin shall have the option to repurchase the HD Parcel for a repurchase price
equal to the appraised value of the HD Parcel, including the HD Store, as
hereinafter determined plus any incidental costs to HD in acquiring the HD Parcel
including without limitation the cost paid by HD for the Off-Site Improvement Work
under the Development Agreement and all costs paid by HD pursuant to the
acquisition of the HD Parcel ("Option"). Such Option shall be exercisable, if and
only if Scharlin delivers written notice to HD within forty-five (45) days after
the Unoccupied Date exercising its Option. If Scharlin fails to give such notice
within the forty-five (45) day period, then Scharlin shall be deemed to have
waived the Option and such Option shall be null and void. In the event that .
Scharlin exercises the Option pursuant to this Section 11.1, then Scharlin shall
designate in its notice an MAl appraiser having at least five (5) years experience
in appraising real property in the Palm Beach, Florida area. HD shall then
appoint an appraiser with such minimum credentials within fifteen (15) days after
receipt of Scharlin's repurchase notice. The two appraisers shall immediately
appoint a third appraiser with such minimum credentials and all such appraisers
shall all promptly attempt to agree upon the then fair market value of the HD
Parcel. In the event the three (3) appraisers are unable to agree upon a fair
market value, then the appraisers shall independently appraise the HD Parcel and
the fair market value shall be the average of such appraisals provided that and
appraiser that is ten percent (101) greater or lesser than the middle appraisal
shall be disregarded for purposes of averaging. Each party shall pay the fees and
expenses of its own appraiser and divide equally the fees and expenses of the
third appraiser.
Closing shall be within sixty (60) days of exercise of Scharlin's Option
provided that Scharlin may elect to vitiate the exercise of its option witin sixty
(60) days after the determination of the fair market value. If HD leases or
occupies the HD Parcel prior to the end of the forty-five (45) day period or sixty
(60) day period, then the Option shall be vitiated. The purchase price shall be
paid in cash at closing. HD shall convey title at closing by limited warranty ,
deed subject to the same restrictions and easements as were accepted from Scharlin
and such other easements and restrictions as are anticipated or permitted pursuant
to this Reciprocal Easement and Operation Agreement and the Development
Agreement, matters of record or discernible from a visual inspection at closing,
or as Scharlin shall have approved in writing. Real estate taxes shall be
prorated to the date of closing. All documentary stamps or taxes or transfer
taxes and record costs and title insurance premiums shall be paid by Scharlin.
(SIGNATURES ON NEXT PAGE)
02J41c
"lnal
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
SCHARLIN:
Witness
(SEAL)
Trustee
B
Witness
HD:
By:
Law ence A. Smith, Esquire
Vice President - Legal
t~
Witness
STATE OF FLORIDA
COUNTY OF DADE
)
)
. Re fOre~g ~~trument was
/~ day of ..I-~7
acknowledged before me this
, 1990, by HOWARD R. SCHARLIN, Trustee.
L ~~~~
~ Public _~
My Conuniss-l{lOtf'tlB~'i)reS/l1t OF FlOQIDA
M( COMMI:;,lOIl EX? NOV20.1992
6ot-lOEO THRU GENERAL INS, UNO,
',-- -
STATE OF GEORGIA
COUNTY OF COBB
)
)
The foregoing instrument was acknowledged before me this ~~ay
of ~eb~, 1990, by Lawrence A Smith, Vice President - Legal of HOME
DEPOT U.S.A. INC., a Delaware corporation, on behalf of the corporation.
~71J-
Notary P 1C
My Conunission Expires:
Notary Public. Fulton County, Georgia
My Commission Expires Jan, 27. 1991
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0234k
Final
Scharlin'. Parcel
That Parcel of I.and situate in Section 29, Township 45 South, Range 43 Ealt,
" Pal.. Beach County, Florida, be! ng more part icularly described .. follows:
COlMlencing at the said southeast corner of Section 29, Town.hlp 45 South.
Range 43 East, Palm Beach County, Florida, thence along the east line of laid
Section 29 NOl. 34 'l6"W, a dis tance of 730.64 feet to the Point of Beginning.
From the PolnL uf Ileglnnlng; lhelll:u t1ep..rllllt; saJd section line 588e25'4/."W, a
distance of 50.00 fed. thellce N01"'J/,'16"W, u dhtance of 2.95 feet; thence
589-50'2S"W, a clistance of ,,67./11 feeL; then(:e SOO.09135"E. a distance of
33.00 feet; lhclH:c SH9.50'2~"W, u cli::;Llllt~l! of 519.23 feet to the begJnnlng of
a non-tangent cUI.ve having a radJu::; of IM'>I. 7/, feel, from which a radial line
bears S83.21'09"W; thence northwetiledy along the arc of said curve,
lubtending a central angle of 12"33'46", a distance of 406.02 feet to the
beginning of a reverse curve having radius of 1438.26 feet. from which a
radial line bears N70.47'23"E; thence norlhwesterly along the arc of said
curve. subtending a central angle of 05.57'0/,11. a distance of 149.39 feet to a
non-tangent linei thence N37"3S'20"E, a distance of 46.53 feeq thence
N8S-26'13"E, a distance of 1125.37 feet; thence SOl-34116"E, a diltance of
571.91 feet to the Point of Beginning.
The above described parcel contains 14.38 acres of land more or 1es8.
.
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011411
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SCIlEOUI.E "A-l"
Scharl1n~-!arcel Continued
(T~e Ou!parcels)
That Parcel of'Land situate in Stlcliun 29, Township 45 South, Rante 43 East,
Palm Beach County, Florida, being more particularly described aa followa:
Commencing at the said southeast corner of Section 29, Township 45 South,
Range 43 East, Palm Beach County, to'ludela; thence along the south line of said
Section 29 S88-02' 37"W, a dilllt..IIu:t: uf 869.67 feet; thence departing said
sectlon line and perpendicular lo thu preceding course NOloS7'23"W. a distance
of 145.12 feel to tho Poinl uf nUHilllling. From the Point of Beginning; thence
S77'30'21"W, u ,lislunce of 61.~1 l,:cl i 1I1t:llce S8S'4S'32"W. a dltilance of ~1.13
feet; thence N/I1'5','08"W. a ,lislilllC:C uf 57.88 feeq thence N01'33'47"W. a
distance of 395.88 feet to lho hcgillllillg of a curve having a radius of 1851.14
feet from which a radial line h~al'S Sijijo26'13"W; thence northwesterly 'along
the arc of said curve, subtending a central angle of 04-07'12". a distance of
133.15 feet to a non-tangent line; thence N89'SO'2S"E. a distance of 177.64
feet; thence SOO'09'35"E. a distance of 550.35 feet to the Point of 8e8lnnlnl.
The above described parcel contains 2.13 acres of land more or less.
.
'j' .
'.
821411
..,...
-16-
SCHEDULE "B"
The HD Parcel
That Parcel of Land situate in Section 29, Township 45 South, Range 43 East, Palm
Beach County, Florida, being more particularly described as follows:
Commencing at the Southeast corner of said Section 29, thence along the East line
of said Section 29 North 01034'16" West, a distance of 189.66 feet; thence
departing said East line and perpendicular to the preceding course South 88025'44"
West, a distance of 100.00 feet to the Point of Beginning.
From the Point of Beginning; thence South 89050'25" West, a distance of 451.98
feet; thence South 77030'21" West, a distance of 324.66 feet; thence North
00009'35" West, a distance of 550.35 feet; thence South 89050'25" West, a distance
of 177.64 feet to the beginning of a non-tangent curve having a radius of 1851.74
feet, from which a radial line bears South 84019'01" West; thence Northwesterly
along the arc of said curve, subtending a central angle of 00057'52", a distance
of 31.17 feet to the beginning of a non-tangent line; thence North 89050'25" East,
a distance of 519.23 feet, thence North 00009'35" West, a distance of 33.00 feet;
thence North 89050'25" East, a distance of 467.41 feet; thence South OP34'16"
East, a distance of 292.95 feet; thence South 88025'44" West, a distance of 50.00
feet; thence South OP34'16" East, a distance of 250.98 feet to the Point of
Beginning.
-17-
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AMENDING ESCROW AGREEMENT
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PAGE Z of Z
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SCHEDULE -E-
PLANS AND SPECIFICATIONS
(The parties hereto hereby agree that the plans and specifications
for Scharlin's Parcel shall be approved by initialling by HD prior
to construction)
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R!C1L'ROCAL !AS!f"I~'l' AND OPKRA'j,'10N AGREEMENT
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ORB 6378 P9 1953
THIS kBO:uaOCAL BASEMEN'%' AND OPERA'J:ION AOREEMEItl (~he "Alre.l'lIflntlt), ~d.. .. of
~1;~J.. I .,~ ".7 0* l"."~"''':7' 1"0, ho.iI'"'..... lIo..lAM 1\.. IDODAlU.VI, ... T_...., h_~lnl
.u ucr.t.t:"" ~ 139. 3. v. 'F1.ra" "ytsllu.s. Kl...1. :n.''101~ ))l~O CuaClL\J.LrH""). au~ BOMB
DEPOT U.S.A.. INC., . DelClvaro corporation, h4v:!.q ... olfieo .~ 1727 '0001 'erry
R.oad, 7 th Floor, Atlattta. Georaia 30339 ("111)").
Preliminary Statement
Coharl1a I. \he Dwn.~ iD re. ot G.~,.1n ~o.l prOPO~\7 100.-.& l. >>.1. .oaoh
OQunt7' Flo~!4a. Gou.l.~lQ& gf lG.~l OGre. mo~. pa~~1G~1.;lT 4..o~ibo. iu
Schedulu "Aft and "A-1" .nnlxld bu'eto. (collectively "8charlin '. Parcel"). .
_n...h~~.4... of..........A.. +.... .,.......... ...... ""., .",10....1 I..... 1"....i-..,. ..... ...rr...~""''''r... -...... 1:",...... .nolI
Ipecification. agreed upon by the partiel hereto. retail and related .ervice use
building. and relatld parkinG and .ite lacilitie. that are indicated an the .ite
plan attach.d .. Schedule tiC" (thl I'Si te Plan"). which Site Plan may be "",uded ..
.et forth herein.
HD i. thl owner in feo of certain real property con.iatina of approximately
tOft (1.0) acre. (the tlHD larc.l"), locatld cont1luou' to Soharlint. Parcel. '!'he HD
Parcel 11 llare particularly described in Schedule liB" annexed hereto. BD intend..
to construct on the BD Parcel & buildinr containing approximately 102,250 .quare
f..t of around floor area exclusive of melzanine, a larden area and truck lO.din.
~o..'k.. 0....\:011I... p1.o'k...p .A~ OOA'p."t.O" ~..oJ.1J.t:.1.. ..~.,& ....1...t....a ......10..1,".. ..... ....~.
'.n~'~t~~. ~n' th. .r~.~ ~n~~~.tA~ nn th~ R~~~ P1.n. Rnh.r'~"l~ ~Ar~~1 AnA th~ Rn
. r.~~.1 .. ~~. p.~ti~ul.~17 ~..crlb.. In _h. 01~. rlan au4 .. .... maT bo .nl.Elo~
f..om ~:bte t. ti.e aro b....Ln ao11.ot.iv.l" ...f....... to all t:ho n:Paroolo" 0" 'ho
"Cantaru. and uc:h 1ttdividua11Y aa a "parcelll.
BCh6~11ft 6ft4 HD rcco&ft!BO thAt for the MO.~ f.VOrabl. development of the
Center. it i. nlc....ry that they .gree and cooperate with re.pect to the
operation .nd maintenance of their Parcel. and the common area. and facilities to
,... "__A"_~ ..'-_____, __ ,_~,__....a .I. ..\.. "I... "'.,..... (..-.. 110............... ..............). a.\._....1.L..
_.. ~D ~~...f... 1...6. a...L~ _. ..... .. ....~ ..h.. ..w._ln w..lpw...l "A.o.oAiI.
to~ ped.Gt~!~n And v.hiculA~ inlreoa And care.. And U8e over tho common curb oute,
roa4waya, GrlVeway', ala1ea. reten~10~ area., wal~way. anu 11uowaik. tor acce.1
and for deliver1 and to ,rant certain right. to in. tall and maintain utility
line.. dr&inal8 and .ita facilitie. within tbo Common Areae. 8charlin and HD alIa
intend herein to provide for certain obligation. and re.trlction. with re.pect to
~h. operation An" IM1nt...nlllnee of t.hei,~ '('..fleet.i.v. P*reel. and the COl'll1lOn Area. and
fac11itie. constructed and to be conatructed thereon. Such ea.ement.. obligations
and restriction. ,hall run ~o the benefit ot. and bind the re.pective larcell. and
the ownera from time, to time of the Center or any portion thereof. The term. HD
oZ' 8oh4rU,n .hAl1 be doemed to rotcJJ: to .uoh p&~d,.. and. t.ha z=..pac.tJ.ve hd.z=a.
.ucce..ora, Irantee. and a..ign. of luch partie. &1 the owners of .aid Parcel.,
and any ttet le.... of any Parc.l or part thereof who haa aa.umed all of the
u~11u;...I.J.uu. ut 'he own1nl p4Lrt.y (ln41vUually t.he "own.r", or col1ect1velY, tne
"Ownerl"). I
WOW. '1'II2IllV01\K. .." ooW\.l4!el'.tlo~ of the ftNt\&&l oOVllnanta an. _SIr..menta
herlinafter .et forth. Scharlin and HD hereby arant, covenant and agree al followSI
ARTJCl.ll: 1 - GuNr OF EAlSEMENT8
JeetioD 1.01. Acee'l Ea.ementl.
(a) tho <NUtl!"'. ut Lb. lID ParCell and 8c11&r1111" Parcel hereby gr.nt .nd
convey, each to the other. for the bln.tlt of the KD parcel and SchArlin's Parcel,
a non-exclu.ive lallment and riaht to the u.e during tho te~ of thi. A1r~.ment of
the OOlllDOft Areal and the common curb cut., roadway., driveway., aislll. walkw&1'
.A-1 .1.,&(,w.l". 1\J~_\'.11 .,,, \'\nll UD r...,.~'\...u-:& "lo~ ",,1......1J.u.. r."'\I.1 .. J.udJ.~"lInl uu
the Site Plan and loc.ted on the Parcel of the Irantina Owner. for purpoaes of
ingr..., 8Ire'l, p....S. and delivery. by vehiclel and pede.trian..
.
" .
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,""--",
/........
SCHEDULE "F"
(Legal For The Western Parcel)
LEGAL DESCRIPTION
That Parcel of Land situate in Section 29, Township 45 South, Rante 43 East, Palm
Beach County, Florida, being more particularly described as follows:
Commencing at the said southeast corner of Section 29, Township 45 South, Range 43
East, Palm Beach County, Florida, thence along the south line of said Section 29
S88002'37"W, a distance of 1175.28 feet; thence departing said section line and
perpendicular to the preceding course NOP57'23"W, a distance of 124.09 fe'et to
the Point of Beginning. From the Point of Beginning; thence S85045'32"W, a
distance of 265.84 feet; NOo024'll"E, a distance of 191.92 feet; thence
N20054'5l"W, a distance of 513.92. feet; thence N88028'13"E, a distance of 453.50
feet to the beginning of a non-tangent curve having a radius of 1743.74 feet, from
which a radial line bears S81012'02"W; thence southeasterly along the arc of said
curve, subtending a central angle of 07014'11", a distance of 220.23 feet; thence
SOl033'47"E, a distance of 404.87 feet; thence S42005'52."W, a distance of 55.23
feet to the Point of Beginning.
The above described parcel contains 5.49 acres of land more or less.
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-21-
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REClfKOCAL EASEMtNt AND OFKlAt!ON ACR!EM~NT
. ,
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ORB 6378 Pi 1953
THIS kBonaOCAI. J:ASEM!N~ ANf) OPERATtON AOREEHBH'l (t.he "Alreelllen'\t"), ~d. .. of
t,1,,,I.. I." 4.7 o. 1".'-4"~O:7' 1"0, 1t.~'W.... JlOWAIU) 1\. IJUDAIUoV', - '.l'_...., "'.~ln,
au urr.h:~ .u. 1.3" 3. W. Tira" ILYtll1lUS. MJ._I.. !'1.ulol.La ))\:)0 ("aCBAaLrv'). au\! BOMS
DEPOT U.S.A.. INC., . Delawaro corporation. h4ViDs OD oltieo ., 1727 '.00. 'erry
Road, 7th noor, Atlanta, Georaia 30339 (''BD'').
Preliminary Statement
Coharl1. I. _he own.~ iD loo at G.~'.!n ~0.1 P~oPO~-7 looo~o& 1ft '.lM ~oaoh
CQuD~7' Flo~i4a. Gan.i.tin, of lG,~l .~rc. mo~. pa~~LGul&;lT ~..o~ibo~ in
Schedulea "An and "A_1n ann.x.cl h.reto, (collectiv.ly "Scharlin'a Parcel"). .
.n..b,,~~.:,... ........."'.. ..... -:-^^. to. ....1. .... "vl..., 1 I... '. I'....i-__'. t... .................."r>... -~ ~... 1",...... ....J
.pecification. agreed upon by the partie. her.to, retail and related .erv1ce us.
building. and relat.d par'kinK and. .ite lacUitie. that are indicated on the lite
plan attached al Schedule "C" (the "Site Planll), which Site Plan may be lm.ud.d..
.et forth herein.
HD I. the owner in fee of certain real property con.i.tins of approximately
ten (to) acre. (the ItHD lare.l"). located eontlS\1ou' to Scharlin'. Parcel. The UD
Parcel 18 IIOre particularly de.cribed in Schedule "!" annexed hereto. liD intenda
to con.truct on the BD Parcel a buildinr containing approximat.ly 102,250 .quare
f..t of Iround floor area exclusive of melzanine. a larden area and truck loadin&
.loo'k.. o~t:o_" pl~'k...p .A..! ~O.\p"Clt:O" *.o11J.~.1.. ."'01 &'.1..t.w.l .......",1..... ....4 ..LI..
'_n~'~t~~. ~~. th. _~~.. ~n~~~_t~~ nn th~ Ri~~ P'_~. ~nh.p'."'. ~.p~.1 AnA th. wn
. ra~~.1 .. ~~. pa~tlG~1.~17 ~..crl~.~ 1~ _h. Dl~. rl.n .n~ .. ..m. mA7 b. .n1aElo~
fro. ~b. t.o U,lIIe aro b.r.tn oal1.a~l.ve17 r.f.rred t.o all t:"o "l'aroo10" 0.. _ko
"Canter", and ...oh individually A. A "Parcel".
BCM:dlft 6ft4 JU) 1"Oco&t\illo thAt fo~ t.1\0 MOit favor.ble clavalopllIent of the
C.nter, it 1. n.c....ry that thay agree and cooperate with re.pect to the
operation and maintenance ot their Parcel. and the common area. and taailltie. to
'-. ..___..... ..'-____.., __ 8_'" __..~ .... ~..... ~,... ", ~ (.~. ..a.............. ~......._..). a.1._..1..&...
_.. ~n ~~...f.w. IA~... ~...L. _. 8.... .. ...~ .~~.. .....l. ...lr....1 ...._.A~.
for p.d.Gt~i~n and vehicular iftlreoa 4ftd olro.. 4nd u.o ovor tho common curb cuta,
roaQwaya, Gr1Veway', 4181e', reten~101\ area., walkway. .nG.1Qewal~. tor acce..
and for delivery and to ,rant certain right. to in. tall and maintain utility
line., drainale and .ite facilitie. within the Common Areae. 8char11n and HD allo
intend herein to provid. for certain obligationa and re.triction. with re.pect to
'Cha operat.inn Anti "",1nt.fIlftllftee of thei.~ f..C'l!ct:i.ve pare.l. .nd the CotmlOn Are.. and
faciliti.. constructed and to be con.tructed thereon. Such ea.ement.. oblisatlons
and re.tr1ct1on. ,hall run to the benefi\ ot. and bind the reapect1ve larcela, and
the owner. from time, to time of the Center 01' any portion thereof. The term. HD
O~ Schal'U.ft .h41l bc deeMed ~o role,," to .uoh pa~d... and. t.ha J:..p.c.u,va he.iJ:a.
aucceaaora. arantee. and a..ign. of .uch partie. &1 the ownera of aaid Parcel.,
and any net le.... of any Parcel 01' part thereof who haa AI.umed all of the
u\l11~"1.1uu. ut the own1nl party (1nc11v1Clua11y robe "owner", 01' col1.ct1ve11, ~l\e
"Ownor.").
NOW. ftIIUtVOR,E, L" oonelcl.l'atlo" of th. ftNt~1 ClOV1ln.n~G an4 a8'....men~D
hereinafter aet forth, 8charlin and BD hereby arant, covenant and alree al fol10wsI
AR.nCl.~ I - Gv.Nr 0," EA6EMENT8
.
fection 1.01. Ace.'1 Ea.em.nt..
(a) 'l'ho Owu*~'. ut \.1.. JID P...rclll and 8cli...rliu'. Parcel hereby grant and
convey, ..ch to the other. for the benefit of the KD Parcel and Scharlin'. Parcel,
a non.exclu.ive .al.ment and riaht to the Ule during the term of thia Aar!ement of
the Oonmon Area. and the CODlDon curb cut., roadwaya, driveway., ai.l.., walkway.
.A.l .l~or.w.l". 1"'.......&1 ..... ~\.~ UD 1'.&..~1...u~ ~l&o ,,-..l~1.1J.u.. r.40___1 .. J.udJ.\Ot&~.(l UlI
the Bite Plan and locat.d on the Parcel of the Irantina OWner. for purpo.e. of
i~lr'8I, .Ir.... p....g. ancl delivery, by vehicle. and pedeltrian..
CITY of
BOYNTON BEACH
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100 E. Boynton Beach Blvd.
P. O. Box 310
Boynton Beach, Florida 33435-0310
(407) 734-8111
November 6, 1989
David Flinchum, ASLA
Director of Planning
Stanley Consultants of Florida, Inc.
2000 Lombard Street
West Palm Beach, FL 33407
RE: ACKNOWLEDGEMENT OF AN ADMINISTRATIVE WAIVER
Dear Mr. Flinchum:
I was unaware that your visit to my office was to be construed as
an Administrative Waiver until I read your letter dated
October 20, 1989 requesting my acknowledgement of our discussion.
Planning/Zoning staff often refer people to me for interpreta-
tions, not waivers. Our discussion concerned Appendix A-Zoning,
Section 6.F.7.f Peripheral Greenbelt. I
The question, as I understood it, was that the property has a
fifty (50) foot easement on the east side and would the above
section require an additional ten (10) feet between the easement
and the access road or between the road and the building. My
answer was "no". I based that on the fact that the code requires
a minimum of ten (10) feet and the fifty (50) foot easement bank
could be landscaped to meet the code and an additional ten (10)
feet would not be needed.
I did not see the need to address 8 and 9 of Section 6 nor did I
consider that my interpretation of the code would be construed as
a waiver to set aside the code requirement for landscaping around
the property on all four (4) sides. If the bank of the easement
was landscaped, it would meet the code as long as it is at least
ten (10) feet wide. If an accessway for traffic needs to be made
through the ten (10) foot band, then the exception would apply.
RECEIVED.
.lUV 7 1988
PLANNING DEPT~.
~ \,
~
l,.,., ...'.:.o..~,._"-___ ___.~~l.'-_~Y?!t~~_. . ..,:..~('"
~_~;:~~~~~"~:~~~:___'_;~':~:~"~1!'~~~~.ff"7;'.~.~).: :-:-. ::~ '-"'~-:","" '.' oJ '
- --- ,---,- '....,.....,-: --
David Flinchum, ASLA
Stanley Consultants of Florida, Inc.
November 6, 1989
Page Two
I hope this clears up any misunderstanding that I give
Administrative Waivers from the code. If I can be' of any service
to you, please call. I wish you much success on your site
approval.
Sincerely,
Permit Administrator
AN: bh
xc: Jim Golden, Planning Department
Frank Lamia, Greenberg Farrow
3927 Peachtree Road, N.E.
Atlanta, GA 30319
Central files
ADMWAIVR.DOC
STANLEY CONSULTANTS
OF FLORIDA, INC.
2000 Lombard Street. West Palm Beach, FL 33407
Tel: 407/842-7444 . Fax: 4071842-0674
October 20, 1989
Mr. Al Newbold
Building Code Permit Administrator
City of Boynton Beach
100 E. Boynton Beach Blvd.
PO Box 310
Boynton Beach, FL 33425-0310
Re: HOME DEPOT - PCD GREENBELT WAIVER ALONG EASTERN SIDE
NORTHWEST CORNER WOOLBRIGHT ROAD AND INTERSTATE 95
APPENDIX A - ZONING CODE SECTION 6 - F(7)f
STANLEY CONSULTANTS PROJECT NO. 10336
Dear Mr. Newbold:
,
This letter will confirm our meeting last week regarding an
administrative reduction of a portion of the above project's
eastern ten (10) foot PCD peripheral landscape buffer. You will
recall the proposed Home Depot faci1ity's eastern side will be
adjacent to an existing fifty (50) foot FOOT drainage easement, the
SCL railroad corridor and the elevated Interstate 95 interchange.
After our preliminary review with Planning/Zoning staff, it was
recommended we discuss this matter with your department for the
administrative waiver. In consideration of the project being
adjacent to the railroad tracks and the significant separation from
any residential areas to the east, it was felt that this portion of
the PCD's perimeter greenbelt buffer would not be required along
the project's eastern property provided that we still comply with
all other screening and landscape requirements in accordance with
Article II of the Boynton Beach Landscape Code.
I would appreciate if you would confirm our discussion below and
return the acknowledgement to our office in the enc1~sed envelope.
For your convenience, please keep the extra copy for your recor~s.
Thank you for your consideration in this matter.
SinCere'Y~~
David Flinchum, AS LA
Director of Planning
DF/mjb
Acknowledge:
Date:
cc: Jim Golden, City Planner, Boynton Beach
Frank Lamia, Greenberg Farrow
MEMBER OF THE STANLEY CONSULTANTS GROUP . INTERNATIONAL CONSULTANTS IN ENGINEERING, ARCHITECTURE, PLANNING. AND MANAGEMENT